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Parks, J.:
This is an appeal by the Kansas Department of Human Resources (KDHR). of the district court’s decision granting summary judgment to the plaintiff, Morton Buildings, Inc., (Morton) on its appeal of an administrative decision. KDHR is the statutory assignee of wage claims of two former employees of Morton. K.S.A. 44-324(b). The wage claims were granted by administrative order but denied by the district court on appeal. The issue now presented is whether profit sharing benefits provided by the employer were “earned wages” under K.S.A. 44-315(a).
Theresa Keck was'employed by Morton as a secretary pursuant to an oral contract of employment and the written terms of the Morton Sales and Office Personnel Employee Handbook. As a salesman, the second employee, Donald Delzeit, was employed under the terms of a written employment agreement as well as those stated in the employee handbook. The employment of both individuals was terminated by the employer in January 1982. They each filed a claim for wages with the KDRH and the administrative hearing officer ordered that they be awarded their profit sharing benefit for 1981 plus prejudgment interest. On appeal the district court reversed and granted summary judgment to Morton on the grounds that the profit sharing benefit did not constitute earned wages because the condition precedent in the profit sharing plan had not been satisfied. KDHR appeals this decision, as' assignee of the wage claims.
The fringe benefit of profit sharing sought by the former employees in this case is governed by the following provision of the employee handbook:
“PROFIT SHARING PLAN. In 1963 the Company instituted a profit sharing plan with benefits payable to full-time employees based on a formula under which 20% of the profits, after providing a 5% return on the stockholders’ investment is divided by the total payroll to obtain a Company wide profit sharing percentage. This percentage is applied to each employee’s yearly gross wages to arrive at their profit amount.
“This method is still used for plant and office employees.
“Sales office employees may get more or less than the Company wide percentage. Employees of sales offices get V4 of the profit sharing money based on the company wide percentage. The other half is put into a pool which is distributed according to the percentage of profit each office makes in relation to the total profit made by all the sales offices.
“The final profit sharing percentage is not computed until after the year-end closing. The Company does, however, distribute a portion of the profit sharing percent during the month of December, with the final payment being made as soon as possible after March 15.
“EMPLOYEES MUST BE ON THE PAYROLL AT THE DECEMBER AND MARCH DISTRIBUTION DATES TO RECEIVE PROFIT SHARING.”
In addition to these provisions of the handbook, Delzeit’s written employment contract with Morton included the following provision regarding termination:
“Upon termination, Employee shall be paid that portion of his base salary accruing prior to termination and commissions, bonuses, profit sharing, incentives and the like, to the extent applicable and only if Employee’s interest therein is vested upon termination, vesting to be determined in accordance with Morton’s published corporate procedures in effect upon the date of termination. In no event shall Employee be deemed to have a vested interest in .. . (b) profit sharing benefits unless Employee was employed on the date of payment of such amounts to Mortons Employees . . . .” (Emphasis supplied.)
The Kansas Wage Payment Act requires all employers to pay a discharged employee his “earned wages” within a specified time. K.S.A. 44-315(a). The act further defines wages as “compensation for labor or services . . . determined on a time, task, piece, commission or other basis. . . .” K.S.A. 44-313 (c). The KDHR, as the agency charged with the task of administering this law, enacted the following regulation:
“ ‘Or other basis,’ within the meaning of K.S.A. 44-313(c), shall 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. Conditions subsequent to such entitlement, eligibility, accrual or earning resulting in a forfeiture or loss of such earned wage shall be ineffective and unenforceable.” K.A.R. 49-20-l(d) (1983 Supp.).
Despite the apparent remedial purpose of the wage payment law, the condition precedent/condition subsequent terminology of this regulation has compelled our courts to conclude that the wording of the documents describing the terms of the employment contract control the determination of entitlement to fringe benefits. Sweet v. Stormont-Vail Regional Medical Center, 231 Kan. 604, Syl. ¶ 3, 647 P.2d 1274 (1982); Dangerfield v. Montgomery Ward Co., 236 Ka. 594, 694 P.2d 439 (1985). Thus, our task of deciding whether the profit sharing benefit was an earned wage is framed by the KDHR regulation and court precedents as one of deciding whether the documents drafted by the employer place a condition precedent on entitlement to the benefit or whether they attempt to impose a forfeiture.
A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract Sweet, 231 Kan. at 610. In Sweet, a contract provision conditioning the receipt of compensation for unused vacation time on the tendering of two weeks’ notice prior to voluntary termination, was held to be a controlling condition precedent. Thus, an employer may condition entitlement to a benefit on the performance of some act other than actual job tasks. However, a benefit earned under the employment contract cannot be reduced or forfeited by subsequent act or circumstance. Thus, a provision authorizing deductions from a bonus, which constituted the wages of an employee and which was fixed by the hours and location of work performed, was held to be an unenforceable condition subsequent in Yuille v. Pester Marketing Co., 9 Kan. App. 2d 464, 468, 682 P.2d 676 (1984).
The KDHR contends that because the procedure described in the employee handbook for computing the profit sharing benefit of any particular Morton employee turns on figures which are calculated at the end of the year, the point at which the benefit is earned is actually December 31. Thus, it argues that the additional requirement that the employee be employed with the company on the March distribution date is an attempt to take away an earned benefit. This argument overlooks the maxim that a court must construe written contracts based on the whole without isolating individual sentences or provisions. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976). The final paragraph of the handbook provision unambiguously states the condition of employment at distribution as a condition of entitlement. Moreover, the intention to condition the earning of the benefit is stated even more forcefully in the written contract signed by claimant Delzeit. In sum, this case is like Sweet, not Yuille. The condition unfulfilled by the wage claimants is part of the contract definition of the point at which the benefit is earned rather than an attempt to withdraw a benefit which by definition has been earned. Therefore, the district court correctly held that the requirement of March employment was an enforceable condition precedent.
The KDHR argues that even assuming a condition precedent was not performed by the wage claimants, their position is distinguishable from the claimant in Sweet because they were fired before they had the opportunity to fulfill the condition. The doctrine of prevention provides that a party to a contract cannot derive any benefit or escape any liability from his own failure to cause or failure to seek the happening of a condition precedent. Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 (1965). See In re Estate of Wurtz, 214 Kan. 434, Syl. ¶ 4, 520 P.2d 1308 (1974); Bartlett & Co., Grain v. Curry, 1 Kan. App. 2d 242, 247, 563 P.2d 1096 (1977). Since Keck and Delzeit were prevented from being on the company payroll in March by their January termination by Morton, the KDHR argues that the employer should not be able to rely on nonperformance of the condition precedent to escape liability for the profit sharing benefits.
The doctrine of prevention is an equitable doctrine of excuse. 5 Williston on Contracts § 676 (3rd ed. 1961). A party who fails to satisfy a condition precedent may avoid the consequences of his failure if it is caused by the conduct of the other party to the agreement. However, the burden is on the party seeking to take advantage of the doctrine to prove its application. Jensen v. Jensen, 205 Kan. 465, 467, 470 P.2d 829 (1970). In addition, the conduct alleged to have thwarted performance of the condition must in some way be unjustified. Thus, in Wallerius, 194 Kan. at 412, the court stated that “the party who has demanded the condition precedent cannot hinder, delay or prevent its happening for the purpose of avoiding performance of the contract.” (Emphasis supplied.) Similarly, it is generally acknowledged that nonperformance of a condition may not be excused when the actions taken by the party allegedly hindering performance are actions which are permitted by the contract. 5 Williston on Contracts § 677A, p. 235. For example, a party who assumes the risk of cancellation of the contract with the inclusion of a provision permitting either party to cancel with five days’ notice could not claim prevention of his performance by reason of the other party’s exercise of its cancellation right. Motor Co. v. Motor Co., 112 Kan. 522, 526, 212 Pac. 100 (1923). Therefore, in the context of this case, the employee seeking to rely on prevention to excuse his nonperformance of a condition precedent must be able to demonstrate his own lack of complicity in the employer’s hindering conduct.
It is the law in this state that in the absence of a contract between the employer and its employee which establishes the duration of employment, the employment is terminable at the will of either party. Anco Constr. Co. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985). Therefore, with limited exception (a cause of action has been recognized for discharge in retaliation for filing a worker’s compensation claim, Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 [1981]), an employee may be discharged with or without cause. The at-will employee has no enforceable expectation of continued employment.
In this case, the wage claimants were both at-will employees. Delzeit had a written employment contract but it did not include any provisions establishing an agreed duration for his employment. In addition, although the result of subsequent unemployment compensation proceedings indicates that neither Keck nor Delzeit was discharged for a breach of duty (K.S.A. 44-706), the parties agree that there was no evidence that when it fired them in January, Morton acted with bad faith or for the purpose of depriving them of the profit sharing.
Keeping in mind the status of the wage claimants as at-will employees and the burden of proving the excuse of prevention, we conclude that the former Morton employees failed to establish that the company unjustifiably prevented them from satisfying the condition precedent to their right to obtain profit sharing benefits. Since claimants were not on the payroll at the March 1982 distribution date, the profit sharing benefit was not an earned wage under the terms of their employment contract.
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Meyer, J.:
This is an appeal by Johnny Ray Maxwell (defendant) from a jury trial finding him guilty of one count of the sale of marijuana (K.S.A. 1983 Supp. 65-4127b[b][3] and K.S.A. 1983 Supp. 65-4105[d]).
Defendant contends several errors occurred at the trial court level. Central to defendant’s charges of error are alleged conversations made while defendant, Donnette Thomas, and Mi chael Thomas were represented by common counsel. Later, defendant obtained new counsel who represented him at trial.
Defendant claims that while all three parties were discussing the case with their original counsel, Donnette Thomas and Michael Thomas, on separate occasions, stated that defendant was not their usual supplier of marijuana and that the night defendant was arrested was the first time they had purchased any marijuana from him. At trial, both Donnette and Michael Thomas testified that defendant was their principal source of marijuana and had supplied it to them on previous occasions.
After Donnette so testified, defendant sought to introduce her prior inconsistent statement which had been made to the parties’ original counsel.
Defendant argues that if there was an attorney-client privilege protecting the statement Donnette Thomas made to their original common counsel, it was later waived. Defendant claims this waiver occurred upon disclosure of this information by original counsel to the assistant district attorney. The trial court found that such disclosure by the attorney did not waive the attorney-client privilege held by Donnette Thomas and overruled defense counsel’s-request to impeach the witness by use of this earlier statement.
K.S.A. 60-426 sets forth the attorney-client privilege and the exceptions thereto. The general rule may be summarized as follows: (1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived. See 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961).
The rule has always been that communications between attorney and client are privileged when made in professional confidence. Communications not made in such confidence are not so privileged. McCormick on Evidence § 91 (2d ed. 1972); 8 Wig-more on Evidence § 2311. In the case at bar, Donnette and Michael Thomas allegedly made prior statements to their attorney inconsistent with their testimony at trial.
We will first consider whether original counsel’s subsequent disclosure to the district attorney can be said to have waived his clients’ privilege. Certainly the answer is no. The privilege belongs to the client. K.S.A. 60-426(a); State v. Wilkins, 9 Kan. App. 2d 331, 333, 676 P.2d 159 (1984). Only the client can waive the privilege. When information is disclosed within the confines of the attorney-client relationship, this imposes upon the attorney a general duty not to disclose this information. Cranston v. Stewart, 184 Kan. 99, 334 P.2d 337 (1959). See also Hutton v. Hutton, 184 Kan. 560, 337 P.2d 635 (1959); Fisher v. Mr. Harold’s Hair Lab, Inc., 215 Kan. 515, 519, 527 P.2d 1026 (1974). Accordingly, if an attorney violates his duty of confidentiality, this cannot be said to waive his client’s privilege. This principle has been codified in K.S.A. 60-426(a)(3)(iii).
Defendant argues, however, that the communication involved falls within the exception to the attorney-client privilege provided in K.S.A. 60-426(b)(5). This exception is only applicable when there is an action between the clients. The case at bar is a suit by the State of Kansas against defendant. Donnette and Michael Thomas are not parties to this lawsuit; therefore, this exception is inapplicable. Defendant attempts to circumvent the clear statutory language, however, by arguing that, although Donnette and Michael Thomas are not defendant’s adversaries, they are openly hostile and antagonistic, and that their interests are, in effect, aligned with the State. In light of the unambiguous statutory language, this argument is not persuasive.
It is next contended that because defendant was present at the time Donnette and Michael Thomas made disclosures to counsel, this constitutes a waiver by the Thomases of their attorney-client privilege. The trial court found the presence of the defendant, when all three persons were being represented by the same counsel, did not prevent the meeting from being confidential and thus did not waive the attorney-client privilege. We agree.
At the time Donnette and Michael Thomas communicated to their original counsel, they and defendant were his clients. Where two or more persons employ an attorney as their common attorney, their communications to him in the presence of each other are regarded as confidential so far as strangers to the conference are concerned. Annot., 141 A.L.R. 553, 562. When a controversy arises between third persons and the several clients, communications made by the clients to their common attorney are entitled to the protection from disclosure which the attorney-client privilege affords.- 81 Am. Jur. 2d, Witnesses § 189.
The rule goes further and provides that where several persons employ an attorney and a third party seeks to have communications made therein disclosed, none of the several persons — not even a majority — can waive this privilege. 81 Am. Jur. 2d, Witnesses § 189. These rules are based on a “joint defense privilege” which extends the attorney-client privilege to communications made in the course of joint defense activities. Where two or more persons jointly consult an attorney concerning mutual concerns, their confidential communications with the attorney, although known to each other, will be privileged in controversies of either or both of the clients with the outside world. Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21 (N.D. Ill. 1980). See United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied 444 U.S. 833 (1979); United States v. Bigos, 459 F.2d 639 (1st Cir.), cert. denied 409 U.S. 847 (1972); International Bro. of Teamsters, Etc. v. Hatas, 287 Ala. 344, 252 So. 2d 7 (1971); People v. Kor, 129 Cal. App. 2d 436, 277 P.2d 94 (1954).
We next address whether the original counsel’s disclosures to defendant’s present counsel waived the attorney-client privilege held by the Thomases. As stated above, when Donnette and Michael Thomas communicated to their original counsel, they did so in the course of their confidential attorney-client relationship. There is no evidence proving otherwise. When original counsel told defendant’s trial counsel certain information which had been told to him by the Thomases, he breached his attorney-client relationship as there had been no consent to such disclosure by the Thomases. In K.S.A. 60-426(a), it is provided that a client has a privilege to prevent a witness from disclosing a communication the client had with his or her attorney if the communication “came to the knowledge of such witness . . . (iii) as a result of the breach of the lawyer-client relationship.”
It is hard to imagine a situation more closely applicable under this statute than the facts of the present case. Because defendant’s trial counsel received his information from defendant’s original counsel and thus through a breach of the attorney-client privilege between original counsel and the Thomases, it cannot be said it was error for the trial court to refuse to allow defend ant’s present counsel to withdraw and to testify as to this communication or to overrule defendant’s motion for mistrial.
Furthermore, federal courts have endorsed the joint defense exception to the general rule that no privilege attaches to communications made in the presence of third parties. The disclosure of privileged information by an attorney to counsel of actual or potential codefendants does not constitute a waiver of the attorney-client privilege. See, e.g., Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965); Continental Oil Company v. United States, 330 F.2d 347 (9th Cir. 1964); Matter of Grand Jury Subpoena, Etc., Nov. 16, 1974, 406 F. Supp. 381 (S.D.N.Y. 1975).
The joint defense privilege encompasses shared communications “to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings.” Hunydee, 355 F.2d at 185. It is also essential that the codefendants have exchanged the information in confidence, “not ... for the purpose of allowing unlimited publication and use, but rather . . . for the limited purpose of assisting in their common cause.” Wilson P. Abraham Const., 559 F.2d at 253.
It has been established that the joint meetings undertaken between Donnette Thomas, Michael Thomas, defendant, and their original common counsel were confidential, concerned common issues, and were intended to facilitate representation in proceedings brought by the State of Kansas against them. The assurance of confidentiality is as important and appropriate in a joint defense of defendants whose attorneys are separately retained as it is where codefendants have engaged common counsel. Matter of Grand Jury Subpoena, 406 F. Supp. at 387-88. We can see how no policy served by the privilege is disserved by recognition of the joint defense privilege.
The district court properly construed, and applied, the law relative to the attorney-client privilege.
Defendant’s fourth contention of error relates to the admission of “other crimes” evidence under K.S.A. 60-455. At trial, Michael Thomas testified that he had purchased marijuana from defendant on eight to ten prior occasions. The trial court overruled defendant’s objection and allowed the testimony to remain.
Defendant’s argument is that the admission of the testimony was not properly allowed under K.S.A. 60-455. Defendant goes to great lengths to illustrate the inadmissibility of the testimony under this statute. The State, on the other hand, argues the trial court erroneously characterized the testimony as K.S.A. 60-455 type evidence, and that, regardless of its admissibility under 60-455, it was admissible independent of the statute.
The Kansas Supreme Court has addressed a case closely analogous to the instant case. In State v. Solem, 220 Kan. 471, 552 P.2d 951 (1976), the court found that evidence of prior offers by the defendant therein to sell drugs to an undercover agent was relevant, material, and admissible as evidence of the defendant’s ultimate sale of the drugs despite the fact the questioned evidence related to prior crimes. Solem, 220 Kan. at 476. The court stated that evidence of an independent offense may possess evidentiary value to show commission of the offense in question and may be admissible independent of the provisions in K.S.A. 60-455. Solem, 220 Kan. at 476. Evidence which has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction; and is not rendered inadmissible because it may disclose other or independent offenses. Solem, 220 Kan. at 476.
The Solem case has been cited with approval in this context in State v. Glazer, 223 Kan. 351, 360, 574 P.2d 942 (1978); and State v. Holt, 228 Kan. 16, 21, 612 P.2d 570 (1980).
In the case at bar, the State sought to prove the defendant came to sell drugs, not to buy them. Michael Thomas’ testimony was that he had purchased drugs from the defendant on eight to ten prior occasions, and that the defendant was always the seller, never the buyer. These statements disclose an ongoing series of contacts related to drugs between the Thomases and defendant. Michael Thomas’ statements tend to prove the existence of those contacts and that those contacts eventually led to the transaction at issue. As in Solem, the defendant’s prior offers here to sell marijuana to the Thomases can be seen as relevant and material to his ultimate sale of drugs to the agent. Merely because this testimony relates to prior crimes (K.S.A. 1983 Supp. 65-4127b(b)(3): sale of marijuana), this does not prohibit its introduction now to show commission of the offense charged. Solem, 220 Kan. at 476.
In sum, admission or exclusion of evidence is within the sound discretion of the trial court. State v. Mack, 228 Kan. 83, 87, 612 P.2d 158 (1980); State v. Reed, 226 Kan. 519, 524, 601 P.2d 1125 (1979). The testimony was relevant and material. The question of whether defendant was there to sell marijuana was a material issue which tends to be proved by evidence of past sales of drugs by defendant to the Thomases. Therefore, it cannot be said the trial court abused its discretion.
The trial court, however, admitted the evidence under K.S.A. 60-455. Assuming this was an erroneous admission under 60-455, based on Solem, supra, the evidence was nevertheless independently admissible. It is a standard rule of law that the judgment of a trial court, if correct, will be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. State v. Durst, 235 Kan. 62, 69, 678 P.2d 1126 (1984); Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980). We therefore conclude the trial court’s ruling was correct.
The defendant next contends the trial court erred in allowing the State to introduce certain rebuttal evidence. Defendant testified that he came to see the Thomases to buy, not to sell, marijuana. Michael Thomas was then called back to the stand as a rebuttal witness to testify that the story told by defendant was not true and that, since his arrest, the defendant had approached Michael Thomas asking Thomas to “take full responsibility for the sale.” The trial court admitted this evidence over defendant’s objection as proper rebuttal evidence.
In State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980), the court stated the following:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. . . . The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” (Citing State v. Lovelace, 227 Kan. 348, Syl. ¶ 7, 607 P.2d 49 [1980]; and State v. Shultz, 225 Kan. 135, 138, 587 P.2d 901 [1978].)
Defendant testified he came to the Thomases to buy marijuana. Michael Thomas was called to rebut these statements with evidence defendant had admitted to him he was there to sell. Thomas further testified that defendant wanted Thomas to take responsibility for the crime. This evidence is proper rebuttal evidence under the definition above.
The defendant next complains the trial court erred in its instructions to the jury in the following three areas:
a) Instructions to the jury regarding the burden of proof.
The trial court instructed the jury as follows:
“You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions.”
The defendant complains of the use of the word “innocence” in the instruction, arguing that innocence is never an issue in a criminal case, in that innocence is presumed. This is a correct statement of the law. Defendant does not state specifically in his argument that it is the above quoted instruction’s use of the word “innocence” which is objectionable. The trial court’s instruction, however, is taken almost verbatim from PIK Crim. 52.02. PIK Crim. 52.02 was specifically approved by the Kansas Supreme Court in State v. White, 213 Kan. 276, 280-81, 515 P.2d 1081 (1973). The 1983 Supplement to PIK Crim. 2d 52.02 does replace the statement, “You should . . . determine the innocence or guilt of the defendant . . .” with the sentence, “You should . . . determine whether the defendant is guilty or not guilty . . . .” As this sentence is the only change in the instruction, it will be assumed this is the basis for defendant’s argument. Pattern Instructions, however, are merely guides; they are not mandatory and need not be used verbatim. Although the PIK Committee changed the sentence in question, this does not make the prior wording of the instruction extinct. On the contrary, although the present wording of PIK Crim. 2d 52.02 (1983 Supp.) may be preferred, it still remains that the Kansas Supreme Court has previously approved PIK Crim. 52.02. Accordingly, use of this instruction was not erroneous.
b) Instructions to the jury regarding the definition of sale.
The trial court’s instruction on “sale” is identical to PIK Crim. 2d 67.13-A, and was approved by the Kansas Supreme Court in State v. Griffin, 221 Kan. 83, 85, 558 P.2d 90 (1976); and State v. Nix, 215 Kan. 880, 529 P.2d 147 (1974). Therefore, it cannot be said the trial court erred in giving this instruction.
c) Refusal to give an instruction on the crime of possession of marijuana.
The defendant argues it was error for the trial court to refuse to give an instruction on the crime of possession of marijuana as a lesser included offense of the sale of marijuana.
Under State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974), and State v. Greenlee, 228 Kan. 712, 722, 620 P.2d 1132 (1980), our Supreme Court has. held that possession of marijuana is not a lesser included offense of the sale of marijuana. Defendant concedes the validity and applicability of these two opinions, but attempts to distinguish these cases by showing that, in the instant case, possession of marijuana was a factually related lesser included offense because both defendant and a detective admit defendant had marijuana in his possession.
In State v. Arnold, 223 Kan. 715, 717, 576 P.2d 651 (1978), our Supreme Court reversed the Court of Appeals decision (State v. Arnold, 1 Kan. App. 2d 642, 573 P.2d 1087 [1977]), wherein the Court of Appeals had held:
“The duty under K.S.A. 21-3107(3) to instruct on lesser crimes . . . arises . . . when there is evidence upon which the accused might reasonably and properly be convicted of the lesser offense.” Syl. ¶ 2.
“Under K.S.A. 21-3107(2)(d) a defendant may be convicted of a lesser crime . . . if it is one factually charged in the information . . . .” Syl. ¶ 4.
By reversing the Court of Appeals holding,-the Supreme Court ruled that factually related lesser offenses were not, and are not, recognized in Kansas. Arnold, 223 Kan. at 717. We do not see that State v. Long, 234 Kan. 580, 587-92, 675 P.2d 832 (1984), compels a different conclusion.
The defendant contends his sentence was contrary to the constitutional prohibition on cruel and unusual punishment, yet at the same time concedes the sentence was within the statutory limits. Defendant argues, however, that the trial court failed to follow certain recommendations given and that this constitutes cruel and unusual punishment, or, in the alternative, constitutes an abuse of discretion.
The defendant was sentenced under the Habitual Criminal Act (K.S.A. 1983 Supp. 21-4504) to a term of 7-10 years. Kansas courts have repeatedly upheld the constitutionality of the Habitual Criminal Act. See Clinton v. State, 210 Kan. 327, 328-29, 502 P.2d 852 (1972); State v. Caldrone, 205 Kan. 828, 473 P.2d 66 (1970), cert. denied 401 U.S. 916 (1971). Under this act, a court may fix a minimum sentence of not more than twice the greatest minimum sentence authorized by K.S.A. 1983 Supp. 21-4501, and may not fix a maximum sentence of more than twice the greatest maximum sentence so authorized for the crime. As the defendant was convicted of a class C felony, the greatest minimum sentence allowed could have been twice the 3-5 year minimum, or 6-10 years; and the greatest maximum could have been twice the 10-20 year maximum, or 20-40 years. Under these circumstances, the defendant’s 7-10 year sentence is clearly within the statutory guidelines and is far below the maximum sentence which could have been imposed by the court.
Generally, Kansas courts will not interfere with a sentence handed down by a trial court which is within the permissible statutory limits. State v. Steward, 219 Kan. 256, 270, 547 P.2d 773 (1976); State v. Pettay, 216 Kan. 555, Syl. ¶ 4, 532 P.2d 1289 (1975). When a sentence is fixed by the trial court within the permissible limits of the applicable statutes, the sentence is not erroneous and in the absence of special circumstances showing an abuse of discretion, will not be disturbed on appeal. State v. Crispin, 234 Kan. 104, 671 P.2d 502 (1983); State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982); State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977). Normally a trial court has not abused its discretion when it follows the mandates of K.S.A. 21-4601 and K.S.A. 21-4606 in sentencing a defendant. State v. Reeves, 232 Kan. 143. No such showing has been presented here; therefore, it cannot be said the trial court abused its discretion.
The defendant’s final argument is that the trial court judge, Judge Owen Ballinger, should have recused himself from hearing this case because his son works for the Sedgwick County District Attorney. The defendant relies on State v. Logan, 9 Kan. App. 2d 353, 678 P.2d 181 (1984) as support. In Logan, the issue of Judge Ballinger’s disqualification from hearing a case because of his son’s contacts with the district attorney’s office was raised and this court found there had been no impropriety, although we recommended that Ballinger recuse himself under similar circumstances in the future. Logan, 9 Kan. App. 2d at 355. However, on appeal to our Supreme Court, it was held Judge Ballinger need not recuse himself from criminal cases merely because his son works for the district attorney’s office. State v. Logan, 236 Kan. 79, 689 P.2d 778 (1984). Therefore, defendant’s argument is without merit.
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Beier, J.:
Enrique L. Luna appeals his convictions of two counts of aggravated assault arising out of a drive-by shooting. Fie contends that the. juvenile court erred in determining he should be tried as an adult and that his later waiver of his right to a jury trial was involuntary.
Luna, who was 17 at the time of the crime, was originally charged in juvenile court with one count of criminal discharge of a firearm at an occupied vehicle and two counts of aggravated assault. His criminal history worksheet indicated he had nine prior juvenile convictions, including assault.
The State filed a motion to have Luna prosecuted as an adult. The allegations in the motion read as follows:
“1. That the Respondent, Enrique Luna, was 16 or more years of age at the time of the offenses alleged in the complaint.
“2. That one of the alleged offenses, Criminal Discharge of a Firearm at an Occupied Vehicle, pursuant to K.S.A. 21-4219(b), is severity level 7, person felony and the offenses, Aggravated Assault, pursuant to K.S.A. 21-3410 is a severity level 7, person felony.
“3. That the alleged offenses were committed in an aggressive, violent, premeditated, or willful manner.
“4. That die alleged offenses were committed against a person and not property.
“5. That K.S.A. 38-1636(e)(3) requires die Court to give greater weight to offenses against persons in determining whether or not prosecution as an adult should be authorized.
“6. That the Respondent has an extensive previous history of prior adjudications and antisocial behavior which have not been resolved through the juvenile court process, despite intervention dirough probation, community corrections, and juvenile correctional facility placements.
“7. That the sophistication and maturity of the Respondent merits his treatment as an adult.
“8. That because of die Respondent’s age and lengthy history of previous attempts by the juvenile system to rehabilitate the Respondent through probation, community corrections, andyoudi center placements, insufficient facilities orprograms are available to the Court which are likely to rehabilitate the Respondent prior to the expiration of die Court’s jurisdiction under Chapter 38 of K.S.A.
“9. That the interests of the community would be better served by a criminal prosecution.”
No record was taken of the hearing on the motion; however, the journal entry indicates Luna stipulated to the State’s allegations. The court dismissed the juvenile proceedings, and the charges were brought in district court.
Luna later appeared in district court with counsel and waived his right to a jury trial. The record reflects the following exchange at the time of the waiver:
“THE COURT: [T]he defendant is here in person and is being represented by Kerry Granger. Mr. Luna, the, this case was set, or is set, right, for a jury trial tomorrow morning at 9:00 o’clock in diis courtroom. And it is my understanding that from having spoken to your attorney a few minutes ago that you want to waive your right to trial by jury?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. Is anyone pressuring you, promising you anything, or threatening you with anything to get you to waive that?
“THE DEFENDANT: No, sir, by my choice.
“THE COURT: It is your choice?
“THE DEFENDANT: Yeah.
“THE COURT: Okay. I am going to allow you to waive the trial by jury. The jury will be called off tomorrow, at least for your case. And we will set it down for a bench trial, and you have to keep in touch with Mr. Granger because he will know when the court date is.”
After a bench trial, Luna was convicted of two counts of aggravated assault.
Certification for Trial as an Adult
In order to evaluate whether the certification of a juvenile to be tried as an adult was proper, we must determine whether the decision as a whole was supported by substantial competent evidence. State v. Smith, 268 Kan. 222, 244, 993 P.2d 1213 (1999). Substantial evidence possesses “ ‘both relevance and substance’ ” and “ ‘furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ ” In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998) (quoting Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 [1993]).
K.S.A. 1999 Supp. 38-1636(e) states the eight factors a district court must consider in deciding a motion to prosecute a juvenile as an adult:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injuiy resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) die previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous histoiy of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of tire respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether die interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.”
Luna argues that the juvenile court erred in determining he should be prosecuted as an adult because it failed to consider all of the statutory factors under K.S.A. 1999 Supp. 38-1636(e) in addition to his stipulation to the allegations in the State’s motion for authorization for prosecution as an adult.
Luna relies primarily on Smith, 268 Kan. 222. In Smith, the State’s motion for adult prosecution failed to track the statutory factors, alleging only that the juvenile was 16 years or older at the time of the offense and that he was not a fit and proper subject to be dealt with under the Juvenile Code. Thus, on appeal, our Supreme Court held that the juvenile’s stipulation to the State’s allegations in its motion could not substitute for the juvenile judge’s explicit consideration of all of the K.S.A. 38-1636(e) factors. 268 Kan. at 246.
The facts of this case are more analogous to those before us in State v. Randolph, 19 Kan. App. 2d 730, 876 P.2d 177, rev. denied 255 Kan. 1006 (1994), which was discussed in Smith. Randolph also involved a juvenile’s stipulation to the allegations in the State’s motion for adult prosecution. In addition, at the hearing, the court asked the prosecutor to explain the factual basis for the motion and received the following response:
“(1) Randolph was under 18 years of age, (2) he is alleged to be a juvenile offender based on a violation of K.S.A. 21-3301 and 21-3427, attempted aggravated robbery, (3) he is over 16 years old but younger than 18 years old, (4) ‘such offenses would be felonies if committed by an adult,’ and (5) Randolph’s record, the serious, violent nature of this offense, Randolph’s lack of amenability to programs available in juvenile court, and the safety of the community all compelled Randolph’s prosecution as an adult.” 19 Kan. App. 2d at 731.
Based on this recitation and the stipulation, the juvenile court granted the motion. We affirmed that result, observing that the recorded response and the stipulation constituted a “rough approximation” of the K.S.A. 38-1636(e) factors to be considered by the juvenile court. 19 Kan. App. 2d at 737-38.
As in Randolph, the juvenile judge considering Luna’s case had before him a “rough approximation” of the K.S.A. 38-1636(e) factors to be considered. We hold that a juvenile may stipulate to the State’s allegations in a motion to certify the juvenile for prosecution as an adult, and, provided the allegations and/or the factual basis reviewed at the motion hearing constitute a “rough approximation” of the eight mandatory considerations listed in K.S.A. 38-1636(e), the certification will not be overturned on appeal.
Moreover, despite the absence of a transcript of the motion hearing, we can now say with confidence that there was substantial evidence to support the decision to waive jurisdiction. Luna was accused of firing a gun into a car containing two people, a serious offense; it was a person felony, done in a violent, aggressive, and willful manner. Luna had nine previous juvenile convictions, including unlawful use of a weapon and assault. His last progress report from a juvenile correctional facility had indicated that he had matured since his previous stays, but that he obviously was not rehabilitated. Given the apparent lack of success of various juvenile placements, it was in the best interest of the community to prosecute him as an adult.
Waiver of Jury Trial
The question of whether Luna voluntarily waived his right to a jury trial is a question of fact, and, on appeal, we review the record to determine whether substantial competent evidence supported the district court’s finding. State v. Stuber, 27 Kan. App. 2d 160, 163, 1 P.3d 333, rev. denied 269 Kan. 940 (2000) (citing State v. Boan, 235 Kan. 800, 805, 686 P.2d 160 [1984]).
Luna argues the record does not demonstrate a knowing, voluntary, and intelligent waiver of his right to a jury trial under State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975), because the district court judge did not personally convey to him that he had a constitutional and statutory right to a jury trial or the significance of waiving those rights. In addition, he contends the judge should have informed him of his right to a jury of twelve citizens, whose verdict would have to be unanimous and reached on a finding beyond a reasonable doubt.
In Irving, the Kansas Supreme Court discussed the test for determining the validity of jury trial waiver:
“Since die right to trial by jury is constitutionally preserved, waiver of die right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by juiy. It is provided by statute in diis state that a juiy trial may be waived in any criminal trial where the defendant, die state, and the trial court assent to such waiver. (K.S.A. 22-3403 [1], 22-3404 [1].) We have stated the test for determining die validity of a waiver of the right to a jury trial is whedier the waiver was voluntarily made by a defendant who knew and understood what he was doing. (State v. Blanton, 203 Kan. 81, 453 P.2d 30.) Whedier this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record.” [Citations omitted.] 216 Kan. at 589.
The court went on to state: “ The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by juiy, personally waives his right to trial by juiy, either in writing or in open court for the record.’ ” 216 Kan. at 590.
In Stuber, this court recently upheld a waiver of the right to a juiy trial when the record reflected this brief exchange:
“ ‘THE COURT: Your attorney indicates diat you’re willing to waive your right to a jury trial in this case. What that means is that if diis case goes to trial, it will be tried before a judge and you will be giving up your right to have this case tried before a jury of 12 persons; is that what you wish to do?
“ ‘MR. STUBER: Yes, I understand that, Your Honor, and that’s, I guess, what I wish to do, yes.’ ” 27 Kan. App. 2d at 164.
This court found substantial competent evidence supported a finding that Stuber’s waiver was voluntaiy because the trial court told him the rights he was waiving by having a bench trial, and Stuber orally indicated on the record he wanted to waive his right to a jury trial. 27 Kan. App. 2d at 165.
Although the exchange in this case was brief, the transcript demonstrates that Luna was aware he had a right to a jury trial and that he emphasized the decision to waive it was his choice. Although we would have preferred to see a more expansive explanation of the jury trial right from the court, it appears the judge met the minimum standard set by Irving and Stuber. Substantial competent evidence supports the finding of a voluntary waiver.
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PlERRON, J.:
Steven R. Mueller appeals the denial of his motion filed pursuant to K.S.A. 60-1507.
Mueller was convicted of aggravated robbery, a class B felony, occurring on Januaiy 28,1985. He was sentenced to a prison term of 10 to 20 years which was to run consecutive to a sentence from Shawnee County. The sentence was later modified to show the sentence was to run consecutive to a sentence from Douglas County. Muller was granted parole on June 15, 1992.
Effective July 1, 1993, the legislature enacted the Kansas Sentencing Guidelines Act (KSGA). See L. 1992, ch. 239. As a part of the KSGA, K.S.A. 1993 Supp. 22-3717(f) provided:
“If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1,1993, the old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows. . . .”
This subsection was in effect from July 1, 1993, until it was amended on March 24,1994. See L. 1992, ch. 239, § 270; L. 1994, ch. 21, § 1. Mueller violated his parole conditions in February 1994 by failing to submit to a timely drug screen and was returned to prison.
After the amendment in 1994, the relevant part provided:
“If a person is sentenced to prison for a crime committed on or after July 1, 1993, while on . . . parole ... for a crime committed prior to July 1, 1993, and the person is not eligible for retroactive application of the sentencing guidelines and amendments thereto pursuant to K.S.A. 21-4724 and amendments thereto, the new sentence shall not be aggregated with the old sentence, but shall begin when the person is paroled or reaches the conditional release date on the old sentence. If die offender was past the offender’s conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when die person is ordered released by the Kansas parole board or reaches the maximum sentence expiration date on the old sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law.” K.S.A. 1994 Supp. 22-3717(f).
This 1994 amendment placed the same limitations for retroactive sentence conversion upon parolees who committed a new offense as those placed upon parolees who committed a technical parole violation under K.S.A. 1993 Supp. 21-4724(b)(2). Subsection (b)(2) provided that offenders on “parole for crimes classified in subsection (b)(1) committed prior to July 1, 1993, who have such . . . parole revoked shall have their sentences modified according to the provisions specified in the [KSGA].” K.S.A. 1993 Supp. 21-4724(b)(l) limited retroactive sentence conversion to offenses classified in the presumptive probation grid block or border box blocks on the nondrug grid. Mueller was not eligible to have his sentence converted under that statute because aggravated robbery was a severity level 3 offense, see K.S.A. 21-3427, and a severity level 3 offense is classified as presumptive prison. See K.S.A. 21-4704(a).
In April 1994, Mueller was paroled again. In July 1995, Mueller missed an appointment with his parole officer, causing his parole to be revoked. He was not convicted of or sentenced for any new offense.
In 1999, Mueller filed a pro se motion to correct an illegal sentence. He argued the KSGA’s limited retroactive provisions for sentence conversion, K.S.A. 1993 Supp. 21-4724(b) and K.S.A. 1993 Supp. 22-37l7(f), violated his due process rights because parolees could only have their pre-KSGA sentence converted if they committed a new felony while on parole and were sentenced to prison for the new felony. Mueller argued the conversion statutes placed an unconstitutional condition upon parolees by requiring relinquishment of their parole status, which is a protected liberty interest. This, he claimed, violated the “doctrine of unconstitutional conditions.”
Mueller also claimed the statutes violated his equal protection rights under the 14th Amendment. He believed the statutes created an arbitrary distinction between parolees who committed a technical violation and parolees who committed a new felony. Thus, similarly situated parolees were not being treated equally.
Mueller stated the denial of sentence conversion had resulted in the infliction of severe emotional distress. By continuing to be held under his pre-KSGA sentence, he claims his sentence had evolved into cruel and unusual punishment, thereby violating § 9 of the Kansas Constitution Bill of Rights.
The district court found the sentence imposed was legal and applicable to the law in effect when the offense occurred as set forth in K.S.A. 21-4501. Also, Mueller had filed a previous 60-1507 motion raising substantially the same issues. Those findings and conclusions of the discussion on that motion were adopted.
After an analysis of jurisidictional issues, we have decided to address the substantive issues raised by Mueller.
Mueller raises equal protection arguments under K.S.A. 1993 Supp. 21-4724(b)(2). Chiles v. State, 254 Kan. 888, 869 P.2d 707 (1994), controls this issue. Chiles involved offenders who were incarcerated when the KSGA became effective. Those offenders challenged the limited retroactive provision of K.S.A. 1993 Supp. 21-4724(b)(l), which makes eligibility for sentence conversion dependent upon the classification of the offense, i.e., less serious of fenders. The Chiles court held the limited retroactive provision of subsection (b)(1) did not violate the Equal Protection or Due Process Clauses of the United States Constitution or the Kansas Constitution. 254 Kan. at 901, 903.
Under K.S.A. 1993 Supp. 21-4724(b)(2), which Mueller challenges, parolees who had their parole revoked can have their preKSGA sentence converted only if they are eligible under subsection (b)(1). Because conversion eligibility under subsection (b)(2) is dependent upon the conditions of (b)(1), Mueller’s challenge is actually upon the conditions in subsection (b)(1). Thus, he is asking this court to reverse Chiles, which we cannot do. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998). There is no indication the Supreme Court is departing from its previous positions. Further, Mueller’s argument for reversing Chiles is flawed.
Mueller argues he should be considered a less serious offender because he was granted parole. He relies upon language in Payton v. State, 22 Kan. App. 2d 843, 846-47, 923 P.2d 1059 (1996) (The parole board found there was a reasonable probability that Payton was able and willing to fulfill the obligations of a law-abiding citizen and granted him parole. Therefore, inmates who are granted parole are those individuals considered less serious offenders or not a threat to public safety.). While the parole board may have found that Mueller was able and willing to fulfill the obligations of a law-abiding citizen by granting him parole, the legislature chose the classification of the offense for determining whether a person was a less serious offender and eligible for sentence conversion. Under Chiles, the limited retroactive sentence conversion provision of K.S.A. 1993 Supp. 21-4724(b)(2) is not violative of the Equal Protection and Due Process Clauses of the Constitutions of the United States or Kansas.
Mueller’s motion also raises an equal protection argument regarding K.S.A. 1993 Supp. 22-3717(f). This argument has been considered and rejected by our appellate courts. See State v. Perez, 269 Kan. 340, 11 P.3d 52 (2000) (adopting the rationale of Adams v. State, 27 Kan. App. 2d 292, 5 P.3d 1002 [2000]). Again, this court is duty bound to follow Kansas Supreme Court precedent. Gadberry, 25 Kan. App. 2d at 808. There is no indication the Supreme Court is departing from its previous positions.
Mueller also makes a due process challenge to K.S.A. 1993 Supp. 22-3717(f). Neither the Perez nor the Adams courts addressed a due process challenge to K.S.A. 1993 Supp. 22-3717(f). His new claim is considered. See State v. Bissell, 24 Kan. 169, 170, 943 P.2d 76 (1997).
“The constitutionality of a statute is a question of law; therefore, we have unlimited review.” A statute is presumed constitutional, and the party attacking the statute has the burden of proof. “If there is any reasonable way to construe a statute as constitutionally valid, we must do so. [Citation omitted.]” Perez, 269 Kan. at 342.
Due process emphasizes fairness between the state and the individual dealing with the state. The due process test is whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. When a court has addressed whether a statute violates equal protection, it will have implicitly determined whether the statute violates due process. The due process and equal protection tests weighs almost identical factors in determining the constitutionality of a statute. Chiles, 254 Kan. at 902.
As noted in Perez, the legislature enacted K.S.A. 1993 Supp. 22-3717(f) to bridge the gap between two different statutory sentencing schemes for parolees who would be subjected to both. The statute has a reasonable relation to that objective. A parolee who is returning to prison after having been convicted and sentenced on a new felony will face an additional sentence which is most likely to be served consecutive to the pre-KSGA sentence. Restricting conversion to offenders facing sentences from both statutory schemes is reasonably related to the KSGA’s goal of “ ‘consistency and proportionality, as well as public safety, by diminishing the disparity in sentences where it would most prominently appear.’ ” 269 Kan. at 343 (quoting Adams, 27 Kan. App. 2d at 294). K.S.A. 1993 Supp. 22-3717(f) is reasonable in relation to the KSGA’s ob jective, diminishing sentence disparity, and was adopted in the interest of public safety. It is not violative of due process.
Mueller s last argument involves the doctrine of unconstitutional conditions. Appellate review for a constitutional challenge to a statute has been stated above.
Mueller’s appellate counsel argues in his brief that when the parole board grants parole to prisoners, parole becomes a liberty interest protected by the Constitutions of the United States and Kansas. To convert their pre-KSGA sentence under K.S.A. 1993 Supp. 22-3717(f), the parolees must relinquish their protected parole liberty interest, i.e., have their parole revoked by committing a new felony offense and being sentenced to prison for the new offense. According to Mueller, this places an unconstitutional condition upon the parolee.
Mueller’s pro se brief makes essentially the same argument regarding K.S.A. 1993 Supp. 21-4724(b)(2). To convert a pre-KSGA sentence under K.S.A. 1993 Supp. 21-4724(b)(2), a parolee must relinquish his or her protected parole liberty interest, i.e., have his or her parole revoked by committing a technical violation.
Both briefs cite Morrissey v. Brewer, 408 U.S. 471, 481-82, 33 L. Ed. 2d 484, 494-95, 92 S. Ct. 2593 (1972), as authority for parole being a fundamental liberty interest protected by the 14th Amendment. The Morrissey court stated revocation of parole deprives a parolee not of absolute liberty but only of conditional liberty dependent upon compliance with parole restrictions. 408 U.S. at 480. This limited liberty interest is within the protection of the Due Process Clause of the 14th Amendment. 408 U.S. at 482.
However, the issue in Morrissey was what process was due before parole could be revoked. Morrissey only protects a procedural right to a hearing which meets the minimum requirements of due process prior to the revocation of parole. 408 U.S. at 487-89. Neither brief argues Mueller was denied procedural due process regarding his parole revocation. And, as discussed above, neither statute violates substantive due process rights.
The doctrine of unconstitutional conditions has been explained as follows:
“The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that die beneficiary surrender a constitutional right, even if die government may withhold that benefit altogedier. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt.” Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989).
Mueller relies upon Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S. Ct. 967 (1968), as authority for this doctrine. In Simmons, the defendant moved to suppress from evidence a suitcase containing incriminating items. The defendant testified he owned these items. The court denied the motion. The defendant’s testimony at the suppression hearing was admitted at trial. On appeal, he argued it was reversible error to admit his testimony from the motion hearing at trial because that testimony established his ownership of the suitcase, connecting him to the crime.
The lower court reasoned that the defendant’s testimony was voluntary and he had waived his Fifth Amendment right against self-incrimination in order to establish standing to invoke his Fourth Amendment right to be free from illegal searches and seizures. The Supreme Court rejected this reasoning because it assumed the defendant had a choice — refuse to testify at the suppression hearing and forego the benefit, i.e., the constitutional protection from illegal searches and seizures. 390 U.S. at 393-94. The Court found “it intolerable that one constitutional right should have to be surrendered in order to assert another.” 390 U.S. at 394. It held a defendant’s testimony in support of a motion to suppress evidence cannot be admitted against the defendant at trial regarding guilt unless no objection is made. 390 U.S. at 394.
Mueller’s argument is flawed. His parole status was dependent upon his not violating any parole conditions. A parolee cannot be returned to prison without a parole violation. Once he had violated a parole condition and parole had been revoked pursuant to the due process procedures under Morrissey, he no longer had a constitutionally protected limited liberty interest. It had been extinguished. To invoke the unconstitutional condition doctrine, the statutes would have had to authorize retroactive sentence conver sion only if the parolees relinquished their parole status and returned to prison without violating any parole conditions. In such circumstances, the parolee still possesses a limited liberty interest which he or she must relinquish to be eligible for retroactive sentence conversion.
Whether a parolee disobeys a parole condition by committing a new offense or by violating a parole condition, he or she does not have a statutory right to have a pre-KSGA sentence converted to a KSGA sentence. “The legislature did not intend to guarantee any particular offender that his or her sentence would be subject to modification and conversion after 1993.” State v. Roseborough, 263 Kan. 378, 387, 951 P.2d 532 (1997).
Last, Mueller claims his sentence has evolved into cruel and unusual punishment, violating § 9 of the Kansas Constitution Bill of Rights. He argues that a person who had a sentence for a class A felony converted under K.S.A. 1993 Supp. 22-3717(f) could serve less prison time than he will for his class B felony.
As discussed above, Mueller’s sentence was in accordance with the sentencing statute in effect when the crime was committed; his sentence is legal. Providing for the punishment of convicted criminals is the exclusive role of the legislature. Only the Constitutions of the United States and of the State of Kansas control the legislature’s power to punish convicted criminals. Roseborough, 263 Kan. at 384. Muller’s constitutional rights were not violated by denying him sentence conversion. Authorizing sentence conversion to reduce the punishment or grant leniency to some convicted criminals was an act of grace by the legislature. 263 Kan. at 386. Mueller’s claim of cruel and unusual punishment fails.
Mueller was free to choose to keep his limited liberty interest by complying with his parole conditions. The statutory conditions placed upon a parolee to have a pre-KSGA sentence converted to a KSGA sentence are within the control of the legislature, not the courts.
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Beier, J.:
Plaintiff-appellant Larry L. Rebarchek appeals the district court’s decision to grant summary judgment in favor of defendants-appellees Farmers Cooperative Elevator and Mercantile Association of Dighton, Kansas (Farmers) and Floyd G. Barber. Because we reverse and remand for trial on Rebarchek’s claim of retaliatory discharge for the filing of a workers compensation claim, we must also address issues regarding the statute of limitations, potential supervisor liability, and punitive and emotional distress damages. The remand makes Rebarchek’s remaining issue regarding the use of previous testimony moot.
The controlling facts are these: Rebarchek began his employment with Farmers, a Kansas Corporation, in 1979 and eventually became branch manager of Farmers’ Shields facility. Rebarchek’s job was to receive grain at harvest time and to maintain the quality of stored grain. Among his duties in maintaining the grain was checking for “hot spots.” When hot spots were detected, Rebarchek was supposed to ensure that the grain was turned and blended to keep it from becoming sour, musty, or burned. Untreated hot spots cause grain to lose value because it becomes overheated, burned, and discolored. According to Rebarchek, he delegated his responsibility for reading the temperatures of the grain to his subordinate, Robert Mudd.
In January 1994, Rebarchek injured his back. Later, he claimed that the injuiy was work-related and filed a workers compensation claim. He notified Farmers of the injury in November 1994 and filed an application for a workers compensation hearing the following month.
On November 16, 1994, Rebarchek told Farmers’ secretary that he reinjured his back that day while placing a taip on a customer’s truck. The following day, Barber, the general manager of Farmers, commented on Rebarchek’s injuiy while Rebarchek was clocking out. A couple of days later, Barber told Rebarchek that he could no longer drive the company pickup truck. Barber said he did not want Rebarchek to reinjure his back by operating the truck’s clutch.
On November 21, 1994, Barber reassigned Rebarchek to work at the Alamota facility. Rebarchek considered this a demotion. That day, Rebarchek’s attorney sent a letter to Barber, alleging that the reassignment was retaliatory and demanding that Rebarchek be permitted to keep his position and duties at the Shields facility. Barber admits that he was angry when he received the letter, but he permitted Rebarchek to return to Shields.
Barber also admits that he followed Rebarchek home from work on one occasion in this time period. Rebarchek testified at his deposition that, at his home, Barber told him he was “tired of getting nasty letters” from Rebarchek’s attorney and accused him of shipping out “bad grain.”
Farmers had first noticed problems with the condition of the grain at the Shields facility in late September 1994. Barber talked to Rebarchek about the bad grain, and Rebarchek assured him that Farmers had simply run through a pocket of bad wheat. From September 1994 to February 1995, the temperatures of the grain apparently were rarely tracked. Then, in February 1995, Rebarchek found hot corn and discovered the temperatures had not been read as they should have. Rebarchek and Mudd received written reprimands concerning the damaged grain on March 21, 1995.
Within a few days after his reprimand, Rebarchek underwent back surgery. On April 17,1995, his physician released him to work on light duty. Rebarchek’s temporary work restrictions included prohibitions on lifting more than 40 pounds, bending or twisting of his back more than halfway, and ladder climbing.
Farmers started receiving settlements from corn sales in April 1995, which confirmed the specific magnitude of its losses associated with the hot spots in the Shields facility grain. Farmers fired Rebarchek and Mudd on April 24,1995, one week after Rebarchek was released to return to work on light duty.
Rebarchek filed suit in both state and federal courts. In his petition in this action, he alleged that Farmers and Barber discharged him in retaliation for filing a workers compensation claim. He also alleged that the defendants’ retaliatory discharge was “willful, intentional, malicious, and done with the intent and purpose to damage the plaintiff.” The court subsequently dismissed the action against Barber in his capacity as a representative of Farmers but permitted it to continue against Barber in his individual capacity.
The district court granted defendants’ motion for summary judgment, finding that Rebarchek failed to show a correlation between the time of filing the workers compensation claim and his discharge 7 months later and that he failed to show a satisfactory work performance. Given its ruling on the summary judgment motion, the district court also denied Rebarchek’s motion to amend his pleadings to add a punitive damages claim without reaching the merits of the motion.
Summary Judgment
The standard of review on appeals from summary judgment rulings is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. . . . On appeal, we apply the same 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 plaintiff must prove a claim for retaliatory discharge by a preponderance of the evidence, but the evidence must be clear and convincing in nature. Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188 (1994).
In SanJuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998), the United States Court of Appeals for the Tenth Circuit laid out the elements of a prima facie claim for retaliatory discharge for filing a workers compensation claim: (1) The plaintiff filed a claim for workers compensation benefits or sustained an injury for which he or she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff s workers compensation claim injury; (3) the employer terminated the plaintiff s employment; and (4) a causal connection existed between the protected activity or injury and the termination.
Our Supreme Court has adopted a burden-shifting approach to analyze cases involving retaliatory discharge based on discrimination. We hold that the same analysis should be applied in workers compensation retaliatory discharge cases.
“The burden of proof ... is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to the respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.” Woods v. Midwest Conveyor Co., 231 Kan. 763, 767-68, 648 P.2d 234 (1982).
Judge Earl E. O’Connor of the United States District Court for the District of Kansas has concluded that Kansas would utilize the burden-shifting analysis in workers compensation discharge cases. Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996). The parties wisely agree that this analysis should be applied here, and we hold that it does.
In this case, there is no dispute that Rebarchek has come forward with sufficient evidence on the first three elements of a prima facie case. The district court found that he lacked such evidence on the fourth element, a causal connection between his workers compensation claim and his discharge, relying in large part on the length of time that passed between his November 1994 notice to Farmers of his workers compensation claim and his late April 1995 discharge.
This court has noted the persuasive force of close temporal proximity between a discharge and the filing of a workers compensation claim:
“ ‘Ordinarily the prima facie case must, in the nature of tilings, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisoiy evaluations.’ ” Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 540, 840 P.2d 534 (1992) (quoting 2A Larson’s Workmen’s Compensation Law § 68.36[c][1992]).
Although our Supreme Court has not specifically addressed the issue of what constitutes an acceptable period of time between the claim and the discharge, the federal courts have done so. In Nguyen v. IBP, Inc., 905 F. Supp 1471, 1482 (D. Kan. 1995), the court found that 5 months may be too remote. See also Spradley v. Custom Campers, Inc., 68 F. Supp. 2d 1225, 1235 (D. Kan. 1999) (10-month span between filing of a workers compensation claim and termination insufficient to establish causal connection); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (absent. additional evidence, 4-month span between protected activity and alleged retaliation insufficient for prima facie case); Filipovic v. K & R Exp. Systems, Inc., 176 F.3d 390, 399 (7th Cir. 1999) (4-month span between filing of charges with EEOC and termination a substantial lapse of time; lapse constituted counter-evidence of any causal connection).
If Rebarchek were relying only on temporal proximity between his notice of his workers compensation claim to Farmers and his discharge, we would agree with the district court that his claim for retaliatory discharge must fail as a matter of law. However, a plaintiff in his position can avoid summary judgment by showing a pattern of retaliatory conduct stretching from the filing of a workers compensation claim to termination. See Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996).
Rebarchek mustered evidence that Barber was angry and that he followed him home from work one evening after the filing of the workers compensation claim. Barber also assigned Rebarchek to the Alamota facility, which Rebarchek considered to be a demotion, until Rebarchek’s attorney complained. Barber prevented Rebarchek from driving the company pickup truck previously assigned to him. A fellow Farmers employee testified that Barber said he was angry with Rebarchek for refusing to accept an offer of money to be paid “under the table” in place of pursuit of the workers compensation claim. Rebarchek has also established that certain employees with similar or even more serious performance issues were not terminated. Rebarchek was fired within 1 week of his post-surgery release to fight duty. The surgery could be characterized as a significant milestone in terms of Rebarchek’s workers compensation benefits.
We believe Rebarchek assembled enough bits and pieces of circumstantial evidence to raise a genuine issue of material fact regarding a causal connection between his workers compensation claim and his termination.
Once Rebarchek escapes summary judgment on his prima facie case, then the burden shifts to Farmers to present a legitimate, nondiscriminatory reason for Rebarchek’s termination. See Woods, 231 Kan. at 767-68. Farmers satisfied this requirement by pointing to the quantity of grain lost, allegedly because of Rebarchek’s failure to perform.
The burden then shifts back to Rebarchek to show that Farmers’ stated reason was merely a pretext. See Woods, 231 Kan. at 767-68. On this point, Rebarchek reminds us that defendants were well aware of the nature of the loss and the financial consequences thereof at the time the written reprimand was given to him and Mudd. This is correct. Although it was not until April 1995 that Farmers’ specific monetary loss was calculated, Barber had accumulated enough information about the loss to have an estimate of its magnitude before he reprimanded Rebarchek and Mudd. In addition, as noted above with reference to the causation element of Rebarchek’s prima facie case, other employees with similar problems were not terminated. Farmers takes issue with just how similar the other employees’ problems and their consequences were, but this argument merely highlights the genuine issue of material fact on the existence of pretext. Compare Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (Age Discrimination in Employment Act of 1967 case; jury may consider evidence supporting prima facie case in evaluating pretext).
We find that Rebarchek is entitled to test his case before a jury, and we reverse the district court’s ruling on summary judgment and remand to give him that opportunity.
Statute of Limitations
In addition to its other rulings, the district court found that the statute of hmitations set out in K.S.A. 60-513(a)(4) barred Rebarchek from seeking damages for any of defendants’ actions that preceded April 22,1995, i.e., 2 years before this state court action was filed. This would ehminate, among other things, Rebarchek’s ability to seek damages for his temporary demotion in November 1994, which, he admits, are minimal.
We have de novo review of statute of hmitations issues. See Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
Our Supreme Court has recognized that, in the context of discriminatory acts covered by the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., events predating the period of hmitations may provide a basis for recovery because they were part of a continuing pattern of discrimination. Evidence of such events also may be admissible to prove that the ultimate termination sued upon was motivated by unlawful discrimination. See Woods, 231 Kan. at 765.
The same analysis applies with equal force to a common-law action for retaliatory discharge for fifing a workers compensation claim. Rebarchek has come forward with adequate evidence to proceed to trial on the theory that defendants’ actions constituted a continuing pattern of discrimination, and the jury may further consider the evidence of events predating the limitations period for whatever weight it elects to afford it on the issue of discriminatory intent.
Potential Supervisor Liability
Rebarchek also argues on appeal that Barber, in his individual capacity, should be jointly and severally liable with Farmers for any damages arising from Rebarchek’s wrongful termination. This argument raises a question of law reviewable de novo. See Wilkinson v. Shoney’s, Inc., 265 Kan. 141, 146, 958 P.2d 1157 (1998).
Our prior decision in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), is the starting point of our analysis. In Murphy, a public employee sued his employer and three individual supervisors, alleging that he was fired when he refused the supervisors’ demands that he withdraw his workers compensation claim. The panel first noted that the three supervisors were accused of willful and wanton misconduct and of acting in abuse of their authority, i.e., acting in a legally unauthorized manner that could defeat any governmental immunity defense. It then gave its imprimatur to a tort cause of action for retaliatory discharge based on the fifing of a workers compensation claim and held, without further explanation, that the plaintiff could maintain such an action against the three supervisors in their individual capacities. 6 Kan. App. 2d at 494-97.
The Kansas Supreme Court has never considered a case of potential supervisor or individual employee liability for this intentional tort since Murphy. We have published only two decisions in cases where individuals were sued in addition to the entity employer.
In the first of those cases, Marinhagen, 17 Kan. App. 2d 532, the husband and wife plaintiffs sued two individuals along with their former corporate employer, alleging that both spouses had been terminated because of the wife’s pursuit of workers compensation benefits. Although it was not our principal holding, we affirmed the district court’s decision to grant summary judgment in favor of one of the individual defendants who was not alleged to have done the actual firing or to have had any role beyond the provision of certain true information leading to it. 17 Kan. App. 2d at 542. Thus, Marinhagen added little to the law governing individual supervisor liability for retaliatory discharge based on workers compensation claims. Its point- — -that in order to be exposed to suit, a supervisor must have been more than peripherally involved in the discharge at issue — had already been implicit in the Murphy decision. It also was consistent with Kansas law limiting the individual liability of corporate agents, officers, or directors to situations in which they were personally involved in the alleged wrongdoing. See, e.g., Kerns v. G.A.C. Inc., 255 Kan. 264, 272, 875 P.2d 949 (1994); Beeler v. Campbell Supply Co. v. Riling, 132 Kan. 499, 504-06, 296 Pac. 365 (1931); see also Wempe v. Sunrise Medical HHG, Inc., 61 F. Supp. 2d 1165, 1176 (D. Kan. 1999) (under Kansas law, director or officer of corporation individually liable for torts he committed or in which he participated).
Our second case in which a supervisor was a named defendant along with the employer was decided earlier this year. That case, Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 (2000), focused almost exclusively on the applicability and breadth of the after-acquired evidence doctrine in workers compensation retaliatory discharge cases. 27 Kan. App. 2d at 80-88. The district court had granted summary judgment to the defendants on the plaintiffs retaliatory discharge and defamation claims, and that judgment was reversed with no discussion of the contours of the named supervisor’s potential individual liability for either tort. 27 Kan. App. 2d at 80-81.
Rebarchek urges us to hold that a supervisor’s liability for a workers compensation retaliatory discharge is like a supervisor’s liability for any other intentional tort he or she commits in a work situation. In his view, regardless of whether a supervisor, for example, commits an assault against a subordinate or unlawfully terminates a subordinate, the supervisor should be directly fiable as an individ ual because the supervisor committed the tort. See Sieben v. Sieben, 231 Kan. 372, 377-79, 646 P.2d 1036 (1982). Moreover, according to Rebarchek, provided the supervisor was acting within the scope of his or her authority or employment at the time of the termination, the employer also should be liable under the doctrine of respondeat superior. See 231 Kan. at 377-79. Finally, Rebarchek argues, the direct liability of the supervisor and the indirect liability of the employer should be joint and several. See York v. InTrust Bank, N.A., 265 Kan. 271, 311-14, 962 P.2d 405 (1998) (common-law rule is joint and several liability for compensatory damages for defendants in intentional tort actions; no joint and several liability for punitive damages); Sieben, 231 Kan. at 377-79 (apportionment not allowed; individuals and company jointly and severally liable for total damages from battery).
For his part, Barber responds that the employment relationship or contract existed only between Farmers and Rebarchek, and he cannot be held individually responsible for any breach by Farmers. Barber also invokes the doctrines of assumption of the risk and injuiy by a fellow servant and analogizes to the statute prohibiting liability on the part of members or managers of limited liability companies. See K.S.A. 17-7631. We agree with Rebarchek that these last three arguments are completely ineffectual. Both assumption of the risk and injury by a fellow servant generally apply in negligence cases rather than intentional tort cases, and the Kansas Limited Liability Company Act explicitly distinguishes between limited liability companies and corporations such as Farmers. See K.S.A. 17-7603(b).
There is, however, some merit in Barber’s initial point about the nature of the employment relationship and the identity of the parties to it. Although it is always true that an entity employer and its discharged employee must have been parties to the former employment relationship, it is not necessarily true that the supervisor who actually discharged the employee was also a party to that relationship. We believe that status — and the potential for individual supervisor liability that accompanies it — should turn on whether the supervisor was free to exercise his or her sole discretion to arrive at the termination decision.
The amount of discretion that existed in any given case raises a fact issue. The question for the fact-finder is whether the supervisor in the particular set of circumstances at issue had the sole discretion to fire the employee. In short, was the job the supervisor s to give or take away? If so, the supervisor has the potential for joint and several liability for a workers compensation retaliatory discharge. If not, the supervisor does not have that potential. Only the entity employer does.
We illustrate the application of the rule we announce: A supervisor who (1) is merely following orders from a superior, (2) must have or seek the pre-approval of a superior or board, or (3) is simply responsible for tallying rule infractions such as absences and enforcing a firm company policy requiring termination when a specific total is reached does not have the freedom to exercise his or her sole discretion to arrive at the termination decision. As a matter of law, such a supervisor should not and shall not be individually hable for a workers compensation retaliatory discharge; to allow liability in such a situation would be shooting the mere messenger.
On the other hand, when a supervisor is charged by his or her employer with the freedom or sole discretion to decide who has a job and who does not, then, as a matter of law, the supérvisor may be held legally responsible for damages suffered when he or she discharges an employee unlawfully. Exposure to the potential of joint and several liability with the employer for an unlawful termination is in keeping with the independence of the actor.
We do not interpret Murphy to limit the potential for a supervisor’s individual liability in workers compensation retaliatory discharge actions to situations in which the supervisor’s actions can be described as willful or wanton or outside the scope of his or her employment. The willfulness or wantonness of the supervisor’s behavior may be determinative of whether punitive damages should be considered or awarded against him or her, but not of whether liability should attach in the first place. We read Murphy’s mention of its three supervisors’ lack of authority for their actions merely as a function of the public employment context and the necessity of addressing the possibility of a governmental immunity defense. See 6 Kan. App. 2d at 494-95; but see Edwards v. Western Mfg., Div. of Mont Elev., 641 F. Supp. 616, 617 (D. Kan. 1986) (in dicta reading Murphy to require willful and wanton conduct).
On the record before us, we believe there exists a genuine issue of material fact on whether Barber had the sole discretion to fire Rebarchek on behalf of Farmers. If so, he can be held directly liable for his tort, and his liability will be joint and several with that of Fanners. If not, he cannot. We believe this rule adequately protects supervisors who merely deliver bad news and adequately deters those who would engage in the unlawful conduct that prompted the Murphy panel to recognize this cause of action.
Punitive Damages
Rebarchek also seeks reversal of the district court’s denial of his motion to amend his pleadings to add a claim for punitive damages. Our review of the record indicates that the district judge did not address the merits of Rebarchek’s motion, finding that the decision to grant summary judgment made consideration of the merits of the punitive damages motion unnecessary.
Our typical standard of review for decisions on motions to amend to add claims for punitive damages is abuse of discretion. Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999). “ ‘ “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court. [Citation omitted.]” ’ ” 267 Kan. at 689.
Because there was no ruling on the merits of the motion to amend to add a claim for punitive damages in this case, we cannot judge the propriety or impropriety of the judge’s exercise of discretion. “When a trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the court’s findings, meaningful appellate review is precluded and the case will be remanded to the trial court for additional findings of fact and conclusions of law.” Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 1, 608 P.2d 1032 (1980). We remand the motion for further action on its merits by the district court.
Recovery for Emotional Distress
The parties also appear to disagree on whether and to what extent Rebarchek may recover for emotional distress suffered as a result of his discharge. Farmers and Barber take the position that Rebarchek cannot recover for emotional distress because there is no medical proof of a physical personal injury.
We agree that, if Rebarchek were pursuing claims for outrage (intentional infliction of emotional distress) or for negligent infliction of emotional distress, each claim would fail as a matter of law. Kansas requires that the conduct of a defendant be extreme and outrageous before a plaintiff can recover for outrage, and we see no evidence of extreme and outrageous behavior in this case. See Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999). With regard to a negligent infliction claim, Farmers and Barber are right that a plaintiff must come forward with some evidence of physical injury to recover; Rebarchek has not done so. See Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988); Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 861, 954 P.2d 11 (1998).
This does not necessarily rule out any recovery for pain and suffering, however. Farmers and Barber are being sued for an intentional tort — retaliatory discharge for filing a workers compensation claim. We agree with the Tenth Circuit that Kansas law would permit recovery for mental or emotional pain and suffering without physical injury in a retaliatory discharge action. See Southwest Forest Industries, Inc. v. Sutton, 868 F.2d 352, 356 (10th Cir. 1989); Flenker v. Willamette Industries, Inc., 68 F. Supp. 2d 1261, 1268 (D. Kan. 1999). Although plaintiffs wishing to recover for such damages generally would be well advised to sponsor expert psychiatric or psychological testimony on their existence and extent, we are unwilling to require it in every case. On the contrary, we believe it wise to leave the determination of the necessity and sufficiency of expert evidence on these points to the sound discretion of the district judge who will try the case.
Consideration of Previous Testimony
Rebarchek also complains on appeal that the defendants impermissibly relied upon transcripts of unemployment compensation and workers compensation benefits hearings to support their motion for summary judgment. Rebarchek cites K.S.A. 60-256(c), pointing out that its list of potential summary judgment support documents omits such transcripts. He also relies on K.S.A. 44-714(f), which prohibits the discovery or admission of unemployment compensation benefits hearing transcripts in “any other proceeding, hearing or detennination of any land or nature.”
Our decision to reverse and remand this case for trial means the issue of whether previous testimony of this type is appropriate for consideration on summary judgement is moot. We therefore express no opinion on it.
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Sanders, J.:
Moffitte Duarte Millen, now Moffitte Rice, appeals the trial court’s order changing primary residence of her daughter, M.L.M., to M.L.M.’s father, Matt Froggatte, and changing M.L.M.’s last name to Froggatte. We affirm.
M.L.M. was born on July 21, 1998, and shortly thereafter, Matt filed a paternity action and petitioned for visitation. The trial court issued a temporary order for visitation and ordered mediation. Moffitte failed to attend the mediation. In response, Matt filed a petition for enforcement of visitation and a contempt citation. At some point during this period, Moffitte moved from Chetopa, Kan sas, to Welch, Oklahoma, and then to Memphis, Tennessee. The trial court concluded that she relocated out of state without giving written notice to Matt as required under K.S.A. 1999 Supp. 38-1132. Subsequently, Moffitte and Matt entered into a mediation agreement which included a detailed visitation schedule with M.L.M.
In June 1999, Moffitte informed Matt by telephone that she was moving to South Carolina with her fiance. She told Matt that he would have to travel to South Carolina to visit M.L.M. Moffitte did not leave Matt a mailing address or a working telephone number. As a result, Matt lost contact with M.L.M. and did not see her for over 5 months.
Matt searched extensively for Moffitte and M.L.M. He eventually suspended child support payments and was contacted by Moffitte. Another round of litigation followed. The trial court held a hearing on December 16,1999, and changed primary residency to Matt. The trial court also granted Matt’s request to change M.L.M.’s last name to Froggatte. The trial court reasoned that since Moffitte had married and took the last name of Rice, it was in M.L.M.’s best interest that her last name match that of her other natural parent. Moffitte appeals both rulings.
When the custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interest of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966); see Struble v. Struble, 19 Kan. App. 2d 947, 879 P.2d 37 (1994).
It is critical to a child’s development that he or she have a significant, healthy relationship with both parents, if possible. Where a residential parent willfully prevents a nonresidential parent access to the child and thereby undermines that relationship, that failure or refusal can constitute a material change in circumstances. See In re Marriage of Cobb, 26 Kan. App. 2d 388, 391-92, 988 P.2d 272 (1999); K.S.A. 1999 Supp. 60-1610(a)(3)(B)(vi).
During M.L.M.’s life, Moffitte has changed residences eight times and resided in six different states. Moffitte now leads a tran sient lifestyle due to her husband’s occupation as a pipe fitter. Moffitte has had three attorneys in these proceedings. One attorney withdrew in part due to Moffitte’s failure to remain in contact with him. Finally, the trial court found her in contempt of its orders regarding this matter. We conclude that Moffitte has not respected the bond between Matt and M.L.M.
Matt has a steady job and a stable residence. He appears equally able to care for M.L.M. The record on appeal contains ample evidence to support the trial court’s transfer of primary residency to Matt. We affirm this portion of the trial court’s ruling.
Next, Moffitte argues that the trial court should have appointed a guardian ad litem. Her failure to raise the issue to the trial court below precludes our review. State ex rel. Secretary of SRS v. Mayfield, 25 Kan. App. 2d 452, 458, 966 P.2d 85 (1998).
Last, Moffitte protests the trial court’s order changing M.L.M.’s last name to Froggatte. Moffitte argues that the trial court lacked statutory authority to do so. As noted, Moffitte has married and took the last name of her husband - Rice. The trial court found that it was in M.L.M.’s best interest that her last name match that of her other natural parent. It is difficult to fault the trial court’s ruling in this respect.
We are not unmindful that K.S.A. 38-1130 gives the trial courts the authority to change a child’s name with the consent of both parties. Does this particular statute specifically preclude the change of name? Under the factually unique circumstances herein, we think not. The net effect of Moffitte’s remarriage and refusal to consent to a name change leaves M.L.M. bearing a last name not used by either parent, particularly the custodial parent. K.S.A. 38-1130 contained this language when two cases before this court reached opposing rulings on this issue. In Denk v. Taylor, 25 Kan. App. 2d 172, 958 P.2d 1172 (1998), this court held that the trial court does not have the authority to change a surname or amend a birth certificate without the express consent of both parties. Denk, however, does not overrule Struble v. Struble, 19 Kan. App. 2d at 949. Struble holds that where a child is bom to parents who are not married and the child’s surname is contested, it should be decided by the trial court on the basis of what is in the best interest of the child.
We find the rationale in Struble better applies to this case. To construe K.S.A. 38-1130 so that one parent could unilaterally hold the other parent or a court forever hostage as to the name of a child with no recourse makes no sense, and would be a result certainly not intended by the legislature. Such a construction would also seem to violate the broad public policy interests stated in In re Marriage of Ross, 245 Kan. 591, 597, 783 P.2d 331 (1989), where the Supreme Court stated: “[T]he Kansas Parentage Act [is] to provide that eveiy child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his [or her] parentage.” (Emphasis added.)
We find that under the singular facts of this case, it was not an abuse of discretion for the trial court to change M.L.M.’s last name and that K.S.A. 38-1130 does not prevent such a change.
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Beier, J.:
Respondent-appellant David Allen Oliphant appeals the district court’s imputation of income in determining his child support obligation. Specifically, he contends that the court should have imputed a smaller amount of income to him because his historical salaried job sometimes required him to work in excess of 40 hours a week. We affirm the district court’s finding, but we refuse to grant attorney fees and costs sought by petitioner-appellee Teresa Lynn Hoffman.
An understanding of this second appeal in this divorce case requires a brief review of the issue and outcome in the first. In the first appeal, Oliphant sought review of the district court’s finding of $38,000 of imputed income in determining his child support obligation. In re Marriage of Hoffman, No. 80,482, unpublished opinion filed September 24, 1999. The district court had found Oliphant was capable of making $30,000 a year, his earned salary in 1989. In addition, the court imputed $8,000 per year from Oliphant’s computer pornography business. On appeal, this court reversed and remanded because there was no basis in the record for concluding Oliphant was capable of engaging in both occupational pursuits simultaneously. We also held, however, that the district court’s finding that Oliphant was capable of earning $30,000 a year was supported by evidence in the record and not an abuse of discretion.
At the hearing on remand, Oliphant testified that he had earned an annual salary of $30,000 while working in his last full-time job as a restaurant manager, but he was required to work 60 hours per week. Oliphant acknowledged that he knew when he accepted the salaried position that the work week probably would exceed 40 hours. Nevertheless, Oliphant’s attorney argued that die district court could not impute income for more than 40 hours of work per week under the Kansas Child Support Guidelines (Guidelines).
In general, a district court order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion. See In re Marriage of Scott, 263 Kan. 638, 645, 952 P.2d 1318 (1998). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. See State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999). However, the interpretation of the Guidelines is a question of law subject to unlimited review. In re Marriage of Johnson, 24 Kan. App. 2d 631, 636, 950 P.2d 267 (1997), rev. denied 264 Kan. 821 (1998). This appeal first requires us to interpret those Guidelines.
The relevant sections of the Guidelines provide:
“1. Income may be imputed to the noncustodial parent in appropriate circumstances including the following:
“a. Absent substantial justification, it should be assumed that a parent is able to earn at least the federal minimum wage and to work 40 hours per week.
“b. When a parent is deliberately unemployed, although capable of working full time, employment potential and probable earnings may be based on the parent’s recent work history, occupational skills, and the prevailing job opportunities in the community.” Kansas Child Support Guidelines, Supreme Court Administrative Order No. 128 §§ II.E.l.a, II.E.l.b (1999 Kan. Ct. R. Annot. 91).
No previous Kansas cases have ruled on whether Section II.E.l.a prohibits a district court from imputing income at a historical salary that required more than 40 hours of work per week. Oliphant attempts to rely primarily on In re Marriage of Soden, 251 Kan. 225, 834 P.2d 358 (1992), cert. denied 506 U.S. 1001 (1992), to argue that imputing income at such a level is improper. But Soden, which dealt with a parent who was working two jobs for a total of 72 hours per week and who, after his divorce, elected to reduce his work week and moved for a reduction in the child support amount, is plainly distinguishable. Unlike Soden, Oliphant has been a college student for several years and is not working at all. The district court needed to impute income based on his earnings in 1989, his last full-time employment, to calculate his child support obligations.
The Kansas Supreme Court provides the following guidance for this court when interpreting the Guidelines:
“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.” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Oliphant’s suggested interpretation of Section II.E.l.a would read legislative intent into the statute that is neither readily apparent nor particularly sensible. Under his interpretation, any party who earns a salary rather than hourly pay would be able to adjust his or her income and child support as workload fluctuated. We are confident the legislature did not intend for child support obligations to be subject to such a volatility.
The more practical and obvious interpretation of the Guidelines section is that the 40-hours passage is intended to assist judges who must impute income with no historical earnings or other factors listed in Section II.E.l.b to guide them. In such cases, the Guidelines tell the deciding judge, the product obtained when the federal minimum wage is multiplied by 40 is the floor under which imputed income cannot descend.
The 40-hours passage simply has no applicability to a parent who has had a recent full-time salaried position at which he or she was sometimes required to work in excess of 40 hours per week. For that parent, the district court can impute income at the earlier salaried level, as long as that level does not run afoul of factors such as “employment potential . . . , occupational skills, and the prevailing job opportunities in the community.” Section II.E.l.b. Because the record reveals no countervailing factor to Oliphant’s historical salary, we see ample evidence in the record and no abuse of discretion in the district court’s decision to impute a $30,000 annual income for the purpose of calculating Oliphant’s child support obligation.
For her part, Hoffman argues that this was a frivolous appeal made for purposes of harassment and delay, and she asks for appellate costs and attorney fees pursuant to Supreme Court Rule 7.07(c) (1999 Kan. Ct. R. Annot. 50.) We deny this motion because the appeal raised a legitimate — and previously unsettled — question of statutory interpretation.
Affirmed; Hoffman’s motion for appellate costs and attorney fees is denied. | [
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Powers, J.:
Employer and its insurance carrier appeal an order of the Workers Compensation Board (Board) awarding claimant permanent partial disability benefits and 50 percent work disability.
On November 15,1995, Gregory K. Ford sustained a back injury which arose out of and in the course of his employment with Lan doll Corporation. Ford continued to work light-duty job assignments until January 11,1996, when he was taken off work by treating physicians. At that time, he applied for and received temporary total disability benefits under the Kansas Workers Compensation Act. The temporary total disability benefits continued for approximately 11 weeks. Ford then applied for and received unemployment compensation. Ford sustained a nonwork related cervical herniation in January 1997.
On July 22, 1997, the administrative law judge (ALJ) found that Ford had sustained a 3.5 percent functional impairment, and he had a 100 percent wage loss and a 0 percent task loss for a 50 percent work disability. The ALJ awarded Ford compensation for permanent partial disability.
Landoll requested review by the Board. The Board found that Ford had sustained a 9 percent whole body functional impairment due to his work-related back injuiy and affirmed the ALJ’s finding of a permanent partial disability.
Landoll appealed.
REFUSAL OF OFFER OF ACCOMMODATED EMPLOYMENT
There is no dispute that Ford’s back injury of November 15, 1995, was a compensable injury, and Landoll does not contest the finding of a 9 percent functional disability. The question is whether Landoll’s offer of an accommodated position at a comparable wage triggers the statutory presumption of no work disability.
Findings supported by substantial evidence will be upheld by an appellate court even though evidence in the record would have supported contrary findings. Shields v. J. E. Dunn Constr. Co., 24 Kan. App. 2d 382, 385, 946 P.2d 94 (1997). Substantial competent evidence is evidence possessing something of substance and relevant consequence, and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved. Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 26, 947 P.2d 1 (1997). Whether the findings of fact by the Board are supported by substantial competent evidence is a question of law. Roberts v. J.C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997). The appellate court will not reweigh evidence or evaluate witnesses’ credibility. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 871, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996).
Regarding Ford’s refusal to accept Landoll’s accommodated position, the ALJ found:
“The Respondent never offered to return the Claimant to work until April of 1997. [Citation omitted.] By this time die Claimant had moved away from Marysville, where the Respondent’s business is located, to Haddam, Kansas. [Citation omitted.] Also by this time the Claimant’s vehicle had stopped working and he was without the funds for repairs or to procure another vehicle. . . .
The Court finds that Respondent took an unusual amount of time in offering accommodated employment to the Claimant. In that period of time the Claimant moved to Haddam where he could live rent free. Due to his lack of transportation, which came about through no fault of his, the Claimant was in no position to accept die job offer when it was finally made in April of 1997. The Respondent cannot expect its injured employees to neglect dieir personal welfare and remain within walking distance of its plant on the hope that someday an offer of accommodated work will be made. It was entirely reasonable for die Claimant to make die move diat he did. Even if die Claimant had no cervical problem prohibiting him from working his transportation problem still existed and he would still be unable to report to work.”
Upon review of the case, the Board found that because of the financial problems resulting from being unable to work, Ford moved from Marysville, Kansas, where he had worked for Landoll, to Haddam, Kansas, where he could live rent free. The Board noted that Haddam is approximately 60 miles from Marysville.
Landoll argues that the Board’s affirmance of the ALJ is incorrect as a matter of law. Landoll contends that its offer of an accommodated position and Ford’s subsequent refusal to accept the position trigger the statutory presumption of no work disability and preclude a work disability award.
Ford argues that the issue is a question of fact, and this court must affirm the Board if there is substantial evidence to support the Board’s finding of a work disability.
In Tharp v. Eaton Corp., 23 Kan. App. 2d 895, 940 P.2d 66 (1997), this court reviewed the Board’s affirmance of the ALJ’s award of a work disability where the employer had offered to the worker what it considered to be an accommodated position. This court affirmed the Board’s order by determining that there was substantial evidence to support the Board’s findings. 23 Kan. App. 2d at 896-98. The Board’s order in this case will be reviewed accordingly.
K.S.A. 44-510e(a) governs the award of permanent partial general disability benefits. K.S.A. 44-510e(a) provides, in part:
“An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
Prior to 1993, this statute set forth a presumption against disability benefits if an employee engaged in work for wages comparable to the gross weekly wage earned by the employee at the time of the injury. Although the language in the statute has changed, the law surrounding the presumption has not. Swickard v. Meadowbrook Manor, 26 Kan. App. 2d 144, 148, 979 P.2d 1256 (1999).
In Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), this court considered whether the presumption of no work disability applied to cases where the worker has the ability to engage in work at a comparable wage but does not do so. This court found that in such cases the presumption of no work disability applies, and the employee is precluded from receiving work disability compensation. The court stated: “[I]t would be unreasonable ... to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.” 20 Kan. App. 2d at 284.
In Tharp, this court reviewed the Board’s finding that Tharp’s employer, Eaton Corporation, had made an insufficient attempt at accommodation where Eaton had accommodated Tharp by creating a job for her where she was required to sit in a room by herself and wait for someone to give her something to do. Tharp quit the job after only a month because she claimed it was humiliating for her to constantly have to ask for work and because she did not believe she was doing the company any service. 23 Kan. App. 2d at 896. We affirmed the Board’s order, finding substantial competent evidence in the record to support the Board’s finding that the attempt by Tharp’s employer to place Tharp in an accommodated job was not sufficient to invoke the statutory presumption of no work disability.
Landoll relies heavily on the recent case of Swickard, 26 Kan. App. 2d 144, where this court considered whether the employer’s offer of an accommodated position established the presumption of no work disability where the accommodated position was on a different shift than the worker fonnerly worked and the worker had no transportation to go to work on that shift. The ALJ had concluded that the worker failed to meet her burden to prove the employer’s offer of an accommodated position was unreasonable or not made in good faith. This court affirmed, stating that the worker’s reason for not taking the proffered accommodated position was her transportation problem, which had nothing to do with her physical ability to perform the work. 26 Kan. App. 2d at 150.
This case is distinguishable from Swickard. Whether transportation is an issue depends on the facts; it is not a matter of law. In Swickard, there was no factual finding that the employer had contributed to the worker’s transportation problem or had dealt with the worker in bad faith. Here, the ALJ found that Landoll had taken an “unusual amount of time in offering accommodated employment” and in that period of time Ford had moved to Haddam where he could live rent free. Under the circumstances, the ALJ found it reasonable for Ford to have moved outside Marysville. The ALJ’s statement that Landoll could not “expect its injured employees to neglect their personal welfare and remain within walking distance of its plant on the hope that someday an offer of accommodated work will be made” clearly articulated the ALJ’s view that Landoll had acted unreasonably in delaying an offer of accommodated work.
Landoll disputes that it delayed offering Ford an accommodated position. Landoll argues that, even though the offer of an accommodated position came more than a year after Ford’s injury, it was timely offered in view of the fact that Ford did not receive work restrictions from his physician until January 1997.
Landoll’s argument does not take into account that on April 1, 1996, Landoll’s evaluating doctor examined Ford and placed him on medium to medium/heavy work restrictions and found Ford to be at maximum medical improvement, and that in May 1996, when Ford applied for unemployment compensation, Landoll stated that it had no work available for Ford. This is substantial competent evidence to support the Board’s finding.
We hold that where the employer has offered appropriately accommodated work to an injured worker, and the worker does not accept it due to transportation problems, the statutoiy presumption of no work disability is not invoked where the employer has contributed to the workers transportation problems or dealt with the worker in bad faith.
WAGE LOSS SUPPORTED BY EVIDENCE
In addition to Ford’s transportation problems, Ford was unable to find work because he had, after leaving Landoll’s employment, sustained a nonwork-related cervical injury which further limited his physical ability to work. The ALJ found that the cervical injury was of no consequence to the finding of a work disability because “[e]ven if the Claimant had no cervical problem prohibiting him from working his transportation problem still existed and he would still be unable to report to work.”
The Board found that since last working for Landoll, Ford had been unable to find employment. The Board pointed to testimony that in July 1996, Ford had applied for work in Marysville and Belleville, Kansas, as well as in Fairbury, Nebraska. The Board concluded that, considering the challenges created by Ford’s lack of transportation and medical limitations, Ford had made a good faith effort to find appropriate employment following his work-related accident.
The standard of review is substantial competent evidence to support the Board’s finding. See Tharp, 23 Kan. App. 2d at 896.
Evidence in the record supporting the Board’s finding includes testimony from Ford that he had sought reemployment from Landoll in May 1996; he had applied for and received vocational rehabilitation assistance; he had applied for work in most of the stores in Washington County, including the library and clothing stores such as Jeeters and JC Penneys; and he had looked for work in Fairbury, Nebraska, Belleville, Kansas, Marysville, Kansas, and all the surrounding towns in the area where he lived.
The evidence is competent and substantial to support the Board’s finding.
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Lewis, J.:
Defendant Amanda Irene Edwards was charged with driving while suspended, a severity level 9 nonperson felony; no proof of insurance; and driving without a tag assigned to the vehicle. The trial court dismissed the felony driving while suspended charge, and the State appeals from that order of dismissal.
We reverse and remand.
The crime of driving while suspended was committed by defendant on May 5, 1999. The complaint filed against her by the State was filed on June 27,1999. Prior to July 1,1999, the penalty for driving while suspended after two or more convictions was a felony. The legislature amended K.S.A. 1998 Supp. 8-262(a) effective July 1, 1999, and the amendment changed the penalty for driving while suspended after two or more convictions from a felony to a misdemeanor.
Based upon the change in the statute, defendant argued that the date on which the classification of the crime was to be determined was the date of conviction. In other words, defendant argued she could not be convicted of a felony charge of driving while suspended because the statute had been changed on July 1,1999, and on the date of her conviction, she would have been guilty only of a misdemeanor. The trial court agreed with defendant’s argument and held the statute was to be applied based upon the date of defendant’s conviction and not the date of the crime. Accordingly, the trial court dismissed the felony charge without prejudice.
Interpretation of a statute is a question of law over which we have unlimited review. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998). We are not bound in any way by the trial court’s interpretation of the statute. Cure v. Board of Hodgeman County Comm'rs, 263 Kan. 779, 782, 952 P.2d 920 (1998).
The facts are not at all complicated. Prior to July 1, 1999, if one were convicted of driving while suspended after two or more convictions, the conviction was a felony. Effective July 1, 1999, if one were convicted of driving while suspended after two or more convictions, the conviction was a misdemeanor. The question is whether the amendment to the statute applies to the instant matter. We hold that the trial court erred and that the amendment does not apply.
“It is well established that criminal statutes in effect at the time of the offense control the charge as well as the sentence resulting therefrom.” State v. Patry, 266 Kan. 108, 111, 967 P.2d 737 (1998). The law is clear that a statute operates only prospectively unless the legislature clearly intends it is to operate retrospectively. However, when the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties, the statutory change will operate retrospectively as well as prospectively. The question in this case is whether 8-262(a) was a statute of substantive criminal law which either defines a crime or involves the length or type of punishment. See State v. Billington, 24 Kan. App. 2d 759, 761, 953 P.2d 1059 (1998). “Changes in the length of sentences for criminal acts have been given prospective application only.” State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980).
In State v. Dailey, 228 Kan. 566, 618 P.2d 833 (1980), the defendant was a minor who committed his crime prior to the effective date of an amendment to a firearms sentencing law which excluded minors from its scope. The question was whether the statute operated prospectively. The defendant was found guilty and sentenced after the effective date of the amendment, and the law in effect at the time the crime was committed was applied. Our Supreme Court held in this case that the fact that the defendant had been convicted and sentenced after the effective date of the statute made no difference. The court applied the general rule that statutes will be applied prospectively and that the penalty applicable to a crime is the penalty provided by statute at the time the crime was committed. See 228 Kan. at 569.
In this case, at the time defendant committed the crime, it was a felony. We have examined the language of K.S.A. 1999 Supp. 8-262(a), and it does not clearly state an intention on the part of the legislature for retroactive application. In accordance with the Supreme Court decision in State v. Dailey, the form of the statute which was in effect at the time the crime was committed applies. This means that in the event defendant is convicted of the charges, she will be convicted of a felony. We hold the trial court erred in dismissing the charge, and we reverse that decision and remand the matter with instructions to reinstate the felony charge against defendant and proceed to trial.
Reversed and remanded with instructions. | [
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BEIER, J.:
Defendant-appellant Carl R. Kirkley contests the district court’s dismissal of his appeal for lack of jurisdiction when he failed to file his appeal bond within 10 days of the date of judgment.
Kirkley was convicted in municipal court for possession of drug paraphernalia and carrying a deadly weapon. The court set Kirkley’s appeal bond at $1,750. Kirkley filed a timely notice of appeal to the district court.
Kirkley’s counsel failed to appear at Kirkley’s first appearance in district court. The district court advised counsel that the municipal court had set an appeal bond of $1,750, that no record showed the appeal bond had been posted, and that the district court did not have jurisdiction to hear the case. The district court gave defense counsel 7 days to provide a reason why the case should not be dismissed for failure to perfect the appeal.
The district court later sent counsel a letter saying it was dismissing the case for lack of jurisdiction and remanding it to the municipal court for execution of sentence. The court explained that, although the notice of appeal was appropriately filed, the appeal bond was not filed within 10 days of judgment under K.S.A. 1999 Supp. 22-3609(2).
Kirkley filed a motion to reinstate his appeal in district court because his appeal was timely filed but not perfected due to confusion on the part of defense counsel concerning how the appeal bond should be prepared. He also filed the appeal bond with the district court. The district court held the decision to retain jurisdiction was not discretionary and that it did not have jurisdiction to reinstate the appeal.
The existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Likewise, the interpretation of a statute is a question of law over which this court has unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
K.S.A. 12-4602 provides in relevant part: “An appeal to the district court may be taken as provided in K.S.A. 22-3609. The appearance bond may continue in effect throughout the appeal; however, the municipal judge may require a separate appeal bond.” (Emphasis added.)
K.S.A. 1999 Supp. 22-3609(2) provides:
“An appeal to the district court shall be taken by filing, in the district court of die county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court. Municipal court clerks are hereby audiorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds to die district court. No appeal shall be taken more dian 10 days after the date of die judgment appealed from.”
Kirkley contends the district court erred in dismissing his case for lack of jurisdiction, arguing the filing of an appeal bond is not jurisdictional under City of Salina v. Aldridge, 14 Kan. App. 2d 108, 110, 782 P.2d 1257 (1989).
Aldridge was convicted of petty theft in municipal court, and the municipal court set an “appeal bond” on the day he filed his notice of appeal. The district court dismissed the appeal for lack of jurisdiction because the bond was not filed within 10 days of judgment.
On appeal, the city relied upon City of Overland Park v. Barron, 234 Kan. 522, 526, 672 P.2d 1100 (1983), which held the failure to comply with the provisions of K.S.A. 22-3609 deprives the district court of jurisdiction. 14 Kan. App. 2d at 109. The Aldridge court noted that Barron dealt primarily with the late fifing of a notice of appeal and did not focus on the specific issue of appearance bonds.
This court differentiated between an appearance bond under K.S.A. 1999 Supp. 22-3609(2) and an appeal bond under K.S.A. 12-4602. Although we observed that the parties called the bond an “appearance bond” at oral argument, and that it contained a promise to appear, we found the bond was an “appeal bond” under K.S.A. 12-4602. It was called an appeal bond by the municipal court; the bond form was titled “Appeal Undertaking”; and the bond was referred to as an appeal bond throughout the record. 14 Kan. App. 2d at 108. We recognized that 22-3609 does not require an appeal bond as part of the 10-day fifing scenario and concluded: “The fifing of an appeal bond within ten days is not a jurisdictional requirement.” 14 Kan. App. 2d at 110. We now observe that the Aldridge holding was further supported by the statutory construction maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another. In short, if the legislature had intended the fifing of an appeal bond within 10 days to be jurisdictional, it could have mentioned the appeal bond in 22-3609(2) alongside the notice of appeal and the appearance bond.
Here, the city argues that the bond was an appearance bond that must be filed within 10 days to secure jurisdiction because it was set to assure Kirkley s appearance in district court, and the district court’s journal entry does not identify which type of bond was not timely filed. We disagree.
The record shows us the title of the municipal court’s order for the bond was “Order for Appeal Bond.” The bond itself is titled “Appeal Bond,” and the district court repeatedly refers to the bond as an appeal bond in its correspondence with the attorneys. Under Aldridge, the filing of an appeal bond within 10 days is not jurisdictional.
Reversed and remanded for reinstatement of the appeal and further proceedings thereon. | [
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Green, J.:
Herman Allen challenges the sentence imposed following a remand by this court to the trial court. The remand was to determine whether Allen received ineffective assistance of counsel regarding the inclusion of three battery convictions in his criminal history. The trial court refused to hear evidence on whether Allen’s counsel fell below a reasonable standard of competence and denied his ineffective assistance claim. In addition, the remand was to determine if Allen could be sentenced under K.S.A. 1999 Supp. 21-4603d even though he was placed on parole by the State of California. The trial court determined that although Allen was entitled to presumptive probation for his convictions for burglary and theft, Allen’s parole in California allowed the trial court to sentence him to imprisonment despite his presumptive probation status.
Allen agreed to plead guilty to reduced charges of two counts of vehicular burglary and one count of felony theft, all severity level 9 felonies. The presentence investigation report revealed Allen had three municipal misdemeanor battery convictions. These convictions were aggregated into one person felony, increasing Allen’s criminal history score from E to C. As a result, the trial court sentenced Allen to consecutive terms of 13 months, 7 months, and 6 months.
On remand from this court, the trial court refused to hear testimony on whether Allen received ineffective assistance of counsel regarding the inclusion of the battery convictions in his criminal history. Instead, the trial court construed Allen’s prehearing motion as a proffer of evidence on his ineffective assistance of counsel claim. The trial court reviewed the journal entries of the three misdemeanor convictions and determined that they were correctly aggregated to enhance Allen’s criminal history score. Based on that finding, the trial court determined that Allen could not satisfy the prejudice prong under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). As a result, the trial court denied Allen’s claim of ineffective assistance of counsel.
First, Allen contends that he was denied effective assistance of counsel. Our standard of review is well established. Before this court will find that defendant was deprived of effective assistance of counsel, the defendant must prove that (1) counsel’s performance was sufficiently deficient to render that performance below that guaranteed by the Sixth Amendment; and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997) (quoting Strickland v. Washington, 466 U.S. at 687). The ineffective assistance of counsel inquiry involves mixed questions of law and fact, which are subject to de novo review. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).
Deficient Performance
Allen claims that his sentencing attorney’s performance was deficient in allowing his three misdemeanors to be aggregated as one person felony without investigating their validity for enhancement purposes. Allen’s proffer of deficient performance evidence indicated that his counsel received the presentence investigation report shortly before sentencing and reviewed it with Allen for accuracy. Because Allen did not dispute any of the convictions, counsel did not object to any of them.
Nevertheless, counsel “ ‘has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” See State v. Orr, 262 Kan. at 327 (quoting Strickland, 466 U.S. at 691). When previous misdemeanor convictions are being used to enhance a defendant’s sentence, defendant’s counsel should make some inquiry about the validity of the convictions, especially when defendant has served a sentence on one or more of the convictions. This inquiiy should be made especially when the record is silent or unclear on whether the defendant was represented by counsel or waived his right to counsel. K.S.A. 22-4709 permits both an inspection of records and a challenge to criminal history. Also, under K.S.A. 21-4715, if a defendant’s counsel disputes a defendant’s criminal history, the burden falls on the State to produce additional evidence. See K.S.A. 21-4715(c).
We are, however, impeded in our review of this matter because of the trial court’s refusal to hear evidence and to make findings. When a trial court neglects to address an issue that has been remanded to it for consideration, this greatly hinders an appellate court from doing its job. Because the trial court failed to take evidence in this matter and to state the controlling facts on whether Allen’s counsel’s conduct fell below the standard of reasonable performance, we are unable to determine from this limited record if Allen’s counsel performed in a deficient manner. Although we are unable to determine whether Allen’s counsel’s performance was deficient, it is clear that prejudice would flow from Allen’s asserted error in sentencing.
Prejudice
Allen contends his misdemeanor pleas were obtained in violation of his Sixth Amendment right to counsel. Even if only one of Allen’s misdemeanor convictions is constitutionally infirm, under the standards of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), he is prejudiced. See Graham v. State, 263 Kan. 742, 757, 952 P.2d 1266 (1998) (admission of prior conviction which is constitutionally infirm under Sixth Amendment standards is inherently prejudicial). Allen correctly claims if one of his misdemeanor convictions was invalid, his criminal history score would not have included a person felony. Thus, his score would have been E rather than C and he would have been sentenced to less time. See K.S.A. 1999 Supp. 21-4704. Assuming Allen would have received the presumptive maximum sentences with an E history score, he would have served 4 months less time, that is, 26 months under C versus 22 months under E. As a result, if one of Allen’s misdemeanor convictions is invalid, he satisfies the prejudice prong under Strickland. See Glover v. United States, 2001 WL 15331 (U.S. Jan. 9, 2001) (any amount of actual jail time has Sixth Amendment significance).
Are the Misdemeanor Convictions Constitutionally Valid?
Three constitutionally valid misdemeanors can be aggregated into one person felony in order to raise a defendant’s criminal history score and to enhance his or her sentence under the Kansas sentencing guidelines. K.S.A. 1999 Supp. 21-4711(a); State v. Delacruz, 258 Kan. 129, 135, 899 P.2d 1042 (1995). Both parties cite to Delacruz, which adopted and applied the rulings in Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 995 S. Ct. 1158 (1979), and Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994). Neither party cites to K.S.A. 12-4405, which provides for the appointment of counsel in municipal court proceedings as follows:
“If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.”
When charged with a misdemeanor, a defendant’s constitutional right to counsel is not absolute. An uncounseled misdemeanor is constitutionally valid if the defendant is not incarcerated. “Actual imprisonment” is the line defining when the constitutional right in misdemeanor cases is triggered. Delacruz, 258 Kan. at 132 (citing Scott, 440 U.S. at 373-74). If an uncounseled misdemeanor does not result in incarceration, it may be used in determining criminal history even for enhancement purposes. 258 Kan. at 135 (citing Nichols, 511 U.S. at 748). However, if a misdemeanor conviction results in jail time, either the record must demonstrate that the defendant was represented by counsel or that the defendant waived counsel, or the State must prove by a preponderance of evidence that the defendant was represented by or waived counsel, before it can be included in the defendant’s criminal history. 258 Kan. at 140.
At the remand hearing, the district court reviewed the three journal entries and made the following findings:
“1. Defendant’s exhibits show the defendant was advised of his rights in municipal court . . . (docket number 93CM13133) and . . . (docket number 92CM00038) and that he waived his rights in the latter case. . . . ([D]ocket number 95CM02347) shows neither.”
The trial court relied on the following stamped language appearing on two of the journal entries: “DEFENDANT HAS BEEN ADVISED OF HIS CONSTITUTIONAL RIGHTS AND ENHANCEMENTS.” On one journal entry, the trial court accepted the prosecutor’s explanation that a word written on the entry read “waiver” and indicated a waiver of rights.
Convictions 93CM13133 and 9SCM02347
In 93CM13133 and 95CM02347, the journal entries reflect a judgment of both a fine and jail time. Although the municipal judge ordered jail time in each of these cases, it seems that the municipal judge did not require Allen to serve any jail time and placed him on probation both times. Nevertheless, Allen argues such apractice triggers the right to counsel. He contends his case is distinguishable from Delacruz, which did not consider the right to counsel under a conditionally suspended sentence scenario. Instead, he relies on a 10th Circuit case, U.S. v. Reilley, 948 F.2d 648, 654 (10th Cir. 1991), as persuasive authority for the proposition that the 6th Amendment right to counsel attaches when a defendant is faced with a conditionally suspended sentence.
On the other hand, the State contends Allen’s convictions are valid under Delacruz and Reilley is inapplicable to Allen’s case. The State maintains that Delacruz drew the line in Kansas at “actual imprisonment” before a constitutional right to counsel attaches in misdemeanor convictions. 258 Kan. at 132 (citing Scott, 440 U.S. at 373-74).
Although Reilley rejected the actual imprisonment standard for conditionally suspended cases, the State argues that because the Reilley decision predates both Nichols and Delacruz, its authoritative value is minimized. However, another 10th Circuit case decided July 6, 2000, relied on Reilley, and held:
“In this Circuit, the Supreme Court’s requirement a defendant be sentenced to imprisonment before a constitutional right to counsel attaches is satisfied by the imposition of a suspended sentence or probation.” Shayesteh v. City of South Salt Lake, 217 F.3d 1281, 1284 (10th Cir. 2000).
Nevertheless, we are not bound by the Reilley and Shayesteh holdings. Although Delacruz is not a conditionally suspended sentence or a probation case, we agree with and adopt the rationale in Delacruz. Citing Scott, the Delacruz court points out that because actual imprisonment is a penalty different in kind from fines and threats of imprisonment, the constitutional right to appointment of counsel attaches when the defendant is incarcerated. 258 Kan. at 132. Therefore, we determine that the “actual imprisonment” standard should apply to a suspended sentence or a probation case. We further determine that the journal entries indicate that Allen was not jailed for either of these two uncounseled misdemeanors. As a result, the trial court properly determined that they were constitutionally valid and that they counted toward the three person misdemeanor convictions required to enhance Allen’s sentence.
Conviction 92CM00038
In 92CM00038, Allen was ordered to and did serve jail time. Although the trial court determined that he was advised of his rights and waived them, it did not specify which rights he waived. On the other hand, Allen argues that his conviction was not valid under Scott. Allen maintains that because he served time, the stamped language on the journal entry and the word the prosecutor explained as reading “waiver” are insufficient to establish he was advised of or waived his right to counsel. Finally, the State argues Allen’s challenge to this conviction amounts to an impermissible collateral attack on a previous conviction.
Because of the interest in promoting the finality of judgments, collateral attacks on prior convictions are limited. Nevertheless, failing to appoint counsel for an indigent defendant when required is a “unique constitutional defect” justifying “the right to attack collaterally prior convictions used for sentence enhancement.” See Custis v. United States, 511 U.S. 485, 496, 128 L. Ed. 2d 517, 114 S. Ct. 1732, (1994); accord State v. Chiles, 260 Kan. 75, Syl., 917 P.2d 866 (1996) (collateral attack not permitted unless prior conviction obtained in violation of right to counsel). See also Delacruz, 258 Kan. at 139 (collateral attack is allowed in those cases involving a denial of counsel).
As a result, Allen’s collateral attack is justified. Moreover, under K.S.A. 12-4405, it appears appointment of counsel was required. Allen was actually imprisoned so his constitutional right to counsel was triggered. See Delacruz, 258 Kan. at 132. Thus, before this conviction can be counted for enhancement, either the record must show that Allen was represented by counsel or that he waived counsel, or the State must establish by a preponderance of evidence that Allen was represented by counsel or waived counsel. See Delacruz, 258 Kan. at 140.
No evidence exists in the record that Allen was represented by counsel. The essence of the parties’ dispute hinges on whether the record shows or the State established by a preponderance of the evidence that Allen waived counsel. In support of its position, the State cites State v. Likins, 21 Kan. App. 2d 420, 433, 903 P.2d 764, rev. denied 258 Kan. 861 (1995). In Likins, the record contained a signed form in which defendant waived his right to counsel and a notation in the journal entry form. The defendant challenged the sufficiency of the waiver form as failing to demonstrate he know ingly and voluntarily waived counsel. This court concluded that his challenge amounted to a collateral attack. The Likins court noted: “The record affirmatively show[ed] defendant was advised of his right to counsel and waived that right” and there was no evidence “suggesting any irregularity” with the prior plea. 21 Kan. App. 2d at 433.
Like Likins, no evidence of irregularity was shown in Allen’s case. Nevertheless, when evaluating the constitutional validity of prior convictions, the Delacruz court indicated that the trial court cannot simply presume that all of the actions of the municipal court followed the law. Furthermore, because a waiver of counsel may not be presumed from a silent record, there must be a showing that the waiver was knowingly and intelligently made, and the attempted waiver must be strictly construed. See State v. Daniels, 2 Kan. App. 2d 603, 586 P.2d 50 (1978). Also see State v. Buckland, 245 Kan. 132, 137, 777 P.2d 745 (1989) (a trial court should follow the guidelines set forth in Daniels in determining if the right to counsel is knowingly and intelligently waived).
The word written on the journal entiy that the State maintains reads “waiver” is difficult to decipher. However, even assuming the word is “waiver,” it does not specifically explain what is being waived.
As a result, we determine that although the stamped language may show that Allen was told of his right to counsel, the word the State maintains reads “waiver,” when strictly construed, does not affirmatively show that Allen knowingly and intelligently waived his right to counsel. If on remand the trial court determines that Allen’s sentencing counsel’s performance was deficient, then the conviction in 92CM00038 is unconstitutional under Scott and may not be used in Allen’s criminal history. Because only two previous person misdemeanor convictions would remain, the trial court would be required to vacate Allen’s sentence and impose a new sentence consistent with this opinion.
Finally, Allen challenges whether the trial court could sentence him to imprisonment under K.S.A. 1999 Supp. 21-4603d even though he was paroled by the State of California. Interpretation of the Kansas Sentencing Guidelines Act is a question of law and this court’s scope of review is unlimited. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
The relevant portion of K.S.A. 1999 Supp. 21-4603d(a)(ll) states:
“When a new felony is committed while the offender is . . . on . . . parole ... a new sentence shall be imposed pursuant to tire consecutive sentencing requirements of K.S.A. 21-4608, and . . . the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
On remand, the trial court determined that K.S.A. 1999 Supp. 21-4603d applies even though the defendant was placed on parole by California authorities. Allen contends that parole by an out-of-state authority does not meet the definition of parole under K.S.A. 21-4602(d), which defines parole as release by the Kansas Parole Board.
When interpreting a statute, if a literal reading would “ ‘contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” State v. Hankins, 19 Kan. App. 2d 1036, 1045, 880 P.2d 271 (1994). The rule of strict construction concerning criminal statutes is “subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and . . . intent.” State v. Aleman, 16 Kan. App. 2d 784, 788, 830 P.2d 64, rev. denied 251 Kan. 940 (1992).
In Aleman, the defendant made a similar argument concerning out-of-state releasing authorities based on similar statutes in effect at that time. In construing legislative intent, the Aleman court stated:
“If we were to adopt the rationale suggested by Aleman, persons who commit additional crimes in the state of Kansas while on probation or parole from a Kansas conviction would suffer more severe consequences than their counterparts who have been released on probation or parole in other states. It is more logical to conclude . . . the legislature intended to treat all persons coming before Kansas courts the same and, further, to address in a more severe way those persons who commit crimes in Kansas while on parole or probation regardless of the location of the releasing authority.” (Emphasis added.) 16 Kan. App. 2d at 790.
Geography alone should not confer sentencing benefits. See e.g., State v. Chronister, 21 Kan. App. 2d 589, 593, 903 P.2d 1345 (1995) (illogical to provide sentencing benefit merely because crime occurred in one Kansas county rather than in another county or in another state or federal jurisdiction). If Allen’s argument is adopted, he would derive a sentencing benefit of presumptive probation merely because he was paroled by California rather than Kansas authorities. Because we decline to adopt Allen’s logic, his argument fails.
Affirmed in part, reversed in part, and remanded with directions to determine whether Allen’s sentencing counsel’s performance was deficient. If it is determined that Allen’s sentencing counsel’s performance was deficient, the trial court must vacate Allen’s sentence and impose a new sentence consistent with this opinion. This remand will be made to a different judge. | [
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Pierron, J.:
William R, Holt appeals the trial court’s decision denying his request to reinstate his petition for writ of habeas corpus. Holt claims he was denied effective assistance of counsel when his attorney allegedly dismissed the petition without Holt’s permission and that his attorney had not communicated effectively with him.
This case is ultimately determined by the interpretation of the 30-day rule in K.S.A. 1999 Supp. 60-1501(b) and whether this can be a claim of ineffective assistance of counsel in the context of post-conviction habeas corpus proceedings.
On July 1, 1997, Holt filed a petition for writ of habeas corpus as a result of a parole board decision rendered on April 24, 1997, passing him for 2Va years. On July 28, 1998, the respondent filed a motion to dismiss alleging that Holt failed to file his petition within 30 days from the date of the board’s decision. Over the next year, Holt had three different attorneys. During that time, Holt’s case was voluntarily dismissed, apparently without his consent or consultation, and then proceedings were conducted on Holt’s motion to reinstate his petition for writ of habeas corpus based on claims of ineffective assistance of counsel. The trial court eventually denied Holt’s request, and he appealed to our court.
In that appeal, we initially remanded the case to the trial court for an evidentiary hearing on Holt’s claim of ineffective assistance of counsel. We retained jurisdiction over the case pending resolution of whether Holt received prejudicial ineffective assistance of counsel in the dismissal of his action and notification of the dismissal of his action. After a subsequent evidentiary hearing, the trial court ruled Holt failed to meet his burden to prove he was denied effective assistance of counsel. The trial court held that Holt offered no evidence to show he was prejudiced as a result of the errors, i.e. but for the alleged errors, the result of his case would be different.
Before counsel’s assistance is determined to be so defective as to require the reversal of a conviction, the defendant must establish (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. To show prejudice, the defendant must show 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. State v. Sperry, 267 Kan. 287, 297-98, 978 P.2d 933 (1999).
Our standard of review would normally be limited by the trial court’s negative finding that Holt failed to meet his burden of proof. When a trial court makes a negative finding, the party challenging that finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice, because the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it. Thomason v. Stout, 267 Kan. 234, 238, 978 P.2d 918 (1999).
However, the trial court’s decision in this case was not made on a factual basis, but rather on the legal conclusion that Holt could not show prejudice because he had filed his writ outside the 30-day statutory time period in K.S.A. 1999 Supp. 60-1501(b), and the court would have been without jurisdiction to hear the matter anyway. The trial court did not discuss its analysis of the time computation issue, which requires an interpretation of K.S.A. 1999 Supp. 60-1501(b) and gives this court an unlimited review. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Smith v. Printup, 262 Kan. 587, 603, 938 P.2d 1261 (1997).
K.S.A. 1999 Supp. 60-1501 provides:
“(a) Subject to the provisions of K.S.A. 60-1507, and amendments thereto, any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever, and any parent, guardian, or next friend for the protection of infants or allegedly incapacitated or incompetent persons, physically present in this state may prosecute a writ of habeas corpus in tire supreme court, court of appeals or the district court of the county in which such restraint is taking place. No docket fee shall be required, as long as the petitioner complies with the provisions of subsection (b) of K.SA. 60-2001 and amendments thereto.
“(b) Except as provided in K.S.A. 60-1507, and amendments thereto, an inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) within 30 days from the ¿late the action was final, but such time is extended during the pendency of the inmate’s timely attempts to exhaust such inmate’s administrative remedies.” (Emphasis added.)
The 30-day limitation in K.S.A. 1999 Supp. 60-1501(b) was added by the Kansas Legislature in 1994. L. 1994, ch. 227, § 3. Section 3 of H.B. 2832 originally contained a 2-year limitation, but the time period was later shortened to 30 days. See Battrick v. State, 267 Kan. 389, 392, 985 P.2d 707 (1999). The applicability and constitutionality of the 30-day rule have been addressed by our courts, but not the physical computation of the time period during an inmate’s timely attempts to exhaust administrative remedies.
In Peters v. Kansas Parole Board, 22 Kan. App. 2d 175, 915 P.2d 784 (1996), we considered the applicability of the 30-day rule in K.S.A. 1999 Supp. 60-1501(b) to a petition time pending during the enactment of the 30-day rule. We held: “For a cause of action under K.S.A. 60-1501 (Ensley) that had accrued prior to July 1, 1994, but had not yet been filed by that date, a petition for writ of habeas corpus shall be time barred unless it was filed within 30 days from July 1, 1994.” 22 Kan. App. 2d 175, Syl. ¶ 2.
In Taylor v. McKune, 25 Kan. App. 2d 283, 962 P.2d 566 (1998), we addressed the question of whether a prisoner’s petition under K.S.A. 1999 Supp. 60-1501 must be file stamped within the 30-day period. We held: “The delivery of a pro se habeas petition to prison authorities for mailing to the clerk of the district court constitutes a filing within the meaning of K.S.A. 60-1501(b) and tolls the 30-day statute of limitations.” 25 Kan. App. 2d 283, Syl. ¶ 1.
In Battrick v. State, 267 Kan. 389, 985 P.2d 707 (1999), three consolidated K.S.A. 1998 Supp. 60-1501 habeas corpus cases challenged the constitutionality of the 30-day rule in K.S.A. 1998 Supp. 60-1501(b). The Kansas Supreme Court held K.S.A. 1998 Supp. 60-1501(b) to be constitutional on its face and that it was not a bill of attainder, an unconstitutional limit on petitioners’ access to the courts, or a suspension of petitioners’ rights to the writ of habeas corpus in violation of the Kansas Constitution Bill of Rights, § 8. 267 Kan. at 389.
Holt appeared before the Kansas Parole Board (Board) on April 16, 1997, for his parole hearing. On April 24, 1997, the Board passed Holt for parole for 2Vz years until November 1999. The reasons the Board gave were: “serious nature and circumstance of crime; history of crim. acts; non-completion of PA; disciplinary reports.” The Board indicated it passed Holt until November 1999 since it was not reasonable to expect that Holt would be paroled until then because he had continued to receive class I disciplinary reports, was a sex offender, and had not completed treatment.
Pursuant to K.S.A. 1999 Supp. 60-1501(b), Holt had 30 days from April 24, 1997, to file a petition or until May 24, 1997. The question not addressed by K.S.A. 1999 Supp. 60-1501(b) is the running of the 30-day period when an inmate attempts to exhaust administrative remedies. Does the 30-day period run continuously through efforts to exhaust administrative remedies? Does the 30-day period toll when the administrative effort is sought and then the time picks up again where it stopped prior to the administrative effort? Does the inmate get a new 30-day period after the final order of the administrative effort?
The administrative regulations concerning parole procedures provide for a request for the Board to reconsider its decision. K.A.R. 45-4-6(b) (1997) states:
“An appeal to the board or a request to reconsider shall be granted only on the basis that the inmate has new evidence which was unavailable at the prior hearing. An appeal to the board or a request for reconsideration shall be made to the board in writing, and shall detail the new evidence that was unavailable at the prior hearing. The inmate need not be present.”
Although Holt’s request for reconsideration was permissible under the K.A.R., such recourse was not a necessary requisite for him to seek judicial review under K.S.A. 1991 Supp. 60-1501. This distinction was critical in the case of State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 880 P.2d 783 (1994). In Emery, the court considered whether the Office of the State Bank Commissioner had filed its petition for judicial review out of time under K.S.A. 77-613(b) of the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). K.S.A. 77-613(b) provided that a petition for judicial review of an order was not timely “unless filed within 30 days after service of the order, but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.”
The Emery court held that when the filing of a motion to reconsider is permissive, the fifing of such a motion “temporarily tolls the running of the time to file a petition for judicial review. If the motion to reconsider is denied, the count towards the time for fifing a petition for judicial review recommences from the point at which it was tolled when the motion to reconsider was filed.” 19 Kan. App. 2d 1063, Syl. ¶ 4.
In line with Emery, the test for determining when an appeal must be filed depends upon whether a petition for rehearing or reconsideration was required to be submitted to the administrative agency. If a request for rehearing was required before the administrative process would be exhausted, then the 30-day time for appeal does not begin to run until the timely petition for reconsideration has been denied. However, if a petition for reconsideration is not required to exhaust administrative remedies, then the filing of a petition for reconsideration merely tolls the 30-day time period, which begins to run again upon the issuance of the original administrative decision.
The Board’s decision on April 24, 1997, was the final order. From May 12, 1997, to June 2, 1997, a total of 22 days, Holt attempted to exhaust an administrative remedy by asking the Board to reconsider its decision. Extending the 30-day limitation by 22 days set June 15, 1997 as the terminal date. The State concedes that Holt may have even been entitled to 3 extra days pursuant to the mailing rule in K.S.A. 60-206(e). Thus, the 30-day statute of limitations would expire on June 15, 1997, or June 18, 1997.
Holt filed his petition on July 1,1997, a date clearly beyond the extended 30-day limitation under K.S.A. 1999 Supp. 60-1501(b). Although Holt’s petition appears to be untimely, the facts are not clear. From the record, we are unable to determine whether Holt’s petition was outside the 30-day period of K.S.A. 1999 Supp. 60-1501(b). Pursuant to Taylor, 25 Kan. App. 2d 283, the critical date for inmate appeals under K.S.A. 1999 Supp. 60-1501 was when the inmate delivered the habeas petition to prison authorities for mailing to the clerk of the district court. There are no facts to determine whether Holt gave his petition to prison authorities before June 18, 1997, and, consequently, the trial court erred in basing its decision on the 30-day rule.
Although the trial court erred by making a finding under the 30-day rule, the court’s ruling was right for a different reason. “A trial court’s decision which reaches the right result will be upheld even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision.” Bergstrom v. Noah, 266 Kan. 847, Syl. ¶ 7, 974 P.2d 531 (1999).
A K.S.A. 1999 Supp. 60-1501 hearing, just like a 60-1507 hearing, is a civil proceeding and the rules of civil procedure govern. Robinson v. State, 13 Kan. App. 2d 244, 246, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). In a criminal proceeding, the right to effective assistance of counsel protects the defendant at all critical stages. However, habeas corpus proceedings and motions under 60-1507 are civil in nature and are not controlled by the constitutional or statutory requirements applicable to criminal cases. State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980). Although there is no constitutional right to counsel in a 60-1507 proceeding, the Kansas Legislature has provided a statutory right if the motion presents “substantial questions of law or triable issues of fact.” K.S.A. 1999 Supp. 22- 4506(b). Under existing statutes and case law, Holt is entitled to appointment of counsel if his 60-1501 motion presents substantial questions of law or triable issues of fact. K.S.A. 1999 Supp. 22-4506(b).
Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel. In Robinson v. State, 13 Kan. App. 2d 244, 249, 767 P.2d 851, rev. denied 244 Kan. 738 (1989), this court held the defendant’s rights under the Due Process Clause of the Fourteenth Amendment were not violated when his appeal from the dismissal of his K.S.A. 60-1507 petition was dismissed due to the failure of his counsel to timely perfect the appeal. In reaching its conclusion, the Robinson panel discussed Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985). The court in Evitts held the dismissal of a criminal defendant’s direct appeal violated the defendant’s due process rights when the dismissal was the result of ineffective assistance of counsel. The Robinson panel noted the constitutional right to effective assistance of counsel compelled the court in Evitts to hold that an appeal may not be cut off due to ineffective assistance of counsel. Because the constitutional right to counsel does not exist in a post-conviction proceeding, the de fendant in Robinson could not save his untimely appeal. 13 Kan. App. 2d at 249-50.
In Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982), the United States Supreme Court held that because a criminal defendant has no constitutional right to counsel in a discretionary appeal, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to timely file an application for review in the Florida Supreme Court of the Court of Appeals’ decision to affirm his convictions.
In Foy v. State, 17 Kan. App. 2d 775, 776, 844 P.2d 744 (1993), we held Foy had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court and that he was not deprived of the effective assistance of counsel by his appointed counsel’s failure to file a petition for review or the failure of such counsel to inform Foy he had the option of seeking discretionary review.
There is no constitutional right to appointment of counsel in either state post-conviction proceedings or in federal habeas corpus proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987). If there is no right to counsel, there can be no claim of ineffective assistance of counsel. Petitioner’s claim of ineffective assistance is without merit.
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Marquardt, J.;
Farmers Alliance Mutual Insurance Company (Farmers) appeals the trial court’s ruling that it was required to provide automobile liability insurance coverage to Mychael and Anna May (Mays). We reverse.
On December 20, 1997, the Mays, neighbors of Angela How, agreed to purchase How’s car for $500. The Mays paid How $300 and took possession of the car on December 20. They agreed to pay the remaining $200 at a later time. How had insured the car with Farmers.
December 20 was a Saturday. How planned to remove her tags from the car on Monday, December 22, when the courthouse was open and sign the title over to the Mays. How did not discuss insurance with the Mays.
On the evening of December 20, the Mays drove the car to Missouri and were involved in a head-on collision with a car driven by Vernon Guss. Mychael was killed. The other occupants of both vehicles sustained serious injuries. Guss’ car was insured by American States Insurance Company (ASI). The Mays did not have insurance on the car at the time of the accident.
Anna paid How the remaining $200 on the purchase price of the car. How gave the car title to Anna on January 16, 1998. How requested return of the title so that she could recover her license plate from the demolished car which was being held at a salvage yard.
In March 1998, ASI filed a petition for declaratory judgment and asked the trial court to determine the liability of ASI and Farmers for the accident. ASI asserted that the Mays were insured under How’s liability insurance policy and claimed that they were permissible users of How’s car.
Depositions were presented to the trial court and the parties presented closing arguments. The trial court accepted ASI’s findings of fact and conclusions of law. The trial court found that How’s policy with Farmers provided liability coverage to the Mays. The trial court held that the transaction between How and the Mays was a conditional sale that was contingent upon the title being transferred on Monday, December 22, 1997. The trial court ruled that both How and the Mays had an ownership interest in the car at the time of the accident, but since the Mays were uninsured, they could only operate the vehicle under How’s insurance policy. Farmers timely appeals.
Farmers argues that it is not necessary for the certificate of title to physically pass between the parties for the sale to be complete. Farmers’ position is that the sale is complete at the time of delivery as long as the title is delivered within 30 days of the sale. Farmers maintains that there is no evidence in the record which would support the conclusion that the sale was conditional.
Where the controlling facts are based upon written or documentary evidence byway of pleadings, admissions, depositions, and stipulations, the appellate review is de novo. Giblin v. Giblin, 253 Kan. 240, 253, 854 P.2d 816 (1993).
A conditional sale is one in which vesting of the title in the purchaser is subject to a condition precedent, or in which its revesting in the seller is subject to a failure of the buyer to comply with a condition subsequent. Brown v. Tri-State Ins. Co., 177 Kan. 7, 9-10, 274 P.2d 769 (1954).
No particular words or forms of expression are necessary to create a conditional sale. Any words which indicate an intention to annex a condition to the sale will be sufficient. Such phrases, however, as “on condition,” “provided,” and “if it shall so happen,” are found in constant use in the making of conditional sales, and, if employed, will usually remove any doubt as to the sale or transfer being conditional. However, if it is the intention of the parties to make the sale dependent upon the happening of some event or the performance of some collateral obligation, that makes it a conditional sale, no matter what language was used. Brown, 177 Kan. at 10.
The general rule is that the intention of the parties as shown by the terms of the agreement determines whether a contract is conditional. The whole contract is to be considered, and no detached term or condition should be given prominence or effect over another. The question of intent is a fact determination. Brown, 177 Kan. at 10.
Anna stated that she believed they bought the car from How on December 20. Anna “assumed” that Mychael took care of all the details of the purchase. As far as Anna was concerned, she and Mychael owned the car on the morning of December 20. Anna stated that if she and Mychael were not able to deliver the $200 balance to How, they would not have returned the car.
ASI asked How, “So you were going to give the title to them [the Mays] actually before they paid the entire purchase price?” How responded, “Oh yes, it was sold. I had a new vehicle, I didn’t need it [the car sold to the Mays].” How did not believe that she needed to give the Mays permission to use the car, since “[i]t was their vehicle, they bought it.” How understood that the car belonged to the Mays once she gave the keys to Mychael.
There was no written contract; however, the intent of the parties is clear from their testimony. There was no conditional language present in their exchange. How and Anna repeatedly testified that the car was sold and the transaction was complete.
ASI maintains that the sale was not complete because it was subject to the transfer of the title on December 22. ASI also contends that the Mays could not have been the legal title holder for insurance purposes because the car still bore How’s license plate.
“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed 30 days, inclusive of weekends and holidays, after the time of delivery, there shall pass between the parties a certificate of title with an assignment thereof. The sale of a vehicle required to be registered under the laws of this state, without assignment of the certificate of title, is fraudulent and void, unless the parties shall agree that the certificate of title with assignment thereof shall pass between them at a time other than the time of delivery, but within 30 days thereof.” K.S.A. 2000 Supp. 8-135(c)(7).
The title was delivered to Anna on January 16, 1998, within 30 days of the sale. The sale of an automobile is complete at the time of delivery as long as the title is delivered within 30 days of the sale. K.S.A. 2000 Supp. 8-135(c)(7). See Heshion Motors, Inc. v. Trinity Universal Ins. Co., 229 Kan. 412, 415, 625 P.2d 437 (1981).
ASI maintains that the actions of How and the Mays indicate an agreement was made so that the title would not be effective until at least December 22, when Mychael could register the title in his name. The record on appeal discloses no such agreement.
ASI points out that the Mays could not have legally used How’s license plate if ownership of the car changed hands. Additionally, the Mays would have been driving an uninsured vehicle. ASI contends that the only logical conclusion is that the parties did not intend to commit any violation of the law, but instead intended for How to own the car until Monday.
The Mays had not owned a car for over 1 year prior to purchasing How’s vehicle. Anna thought that she and Mychael would have tagged the car after his next paycheck. Anna also “guessed” that Mychael would insure the vehicle in their name.
How assumed that the Mays would obtain insurance coverage for the car on Monday, December 22. How was not sure how her insurance coverage would be affected by the sale. She stated, “All I knew is I was selling it and I was getting a new car.” How acknowledged that she left her tag on the car so that the Mays could drive the vehicle before Monday. We see no evidence in the record on appeal that the parties intended to delay transfer of ownership to allow the Mays to complete registration and insurance paperwork.
The testimony provided by How and Anna clearly shows that both parties intended the ownership of the vehicle to be transferred on December 20. The transfer of the title and the presence of How’s tags on the car do not make this a conditional sale. The trial court erred when it ruled that How and the Mays engaged in a conditional sale.
ASI relies on Farmers Ins. Co. v. Schiller, 226 Kan. 155, 597 P.2d 238 (1979); however, that case is clearly distinguishable. In Farmers, the parties agreed that the sale of a vehicle would be completed when the purchaser returned a borrowed battery and the tag the following day. The seller purposely left the tags on the vehicle as an indication of ownership. Those are not the facts of the instant case.
Insurance policies are contracts. The interpretation and construction of a contract is a question of law. A trial court’s interpretation of a contract may be reviewed by this court de novo. AMCO Ins. Co. v. Beck, 261 Kan. 266, 269, 929 P.2d 162 (1996).
There are no Kansas cases that support the trial court’s conclusion that automobile insurance automatically transfers from the seller of a car to the buyer until the buyer insures the purchased car. In general, the rule is that the buyer of a vehicle insures the car under existing automobile insurance.
How’s insurance policy has not been included with the record on appeal. However, we are confident that there is no clause in the policy which requires Farmers to insure vehicles which had been sold because the policyholder no longer has an insurable interest.
We do not believe that the trial court had the authority to rewrite How’s insurance policy. The Mays owned the car on December 20, 1997. At that time, How’s insurance no longer applied. We decline to require How’s insurance company to provide coverage to the Mays.
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BEIER, J.:
Defendant-appellant Scott D. Dwyer appeals the district court’s denial of his motion to suppress evidence from a warrantless search of his apartment. We affirm the district court’s ruling and Dwyer’s convictions for possession of methamphetamine and marijuana.
Our standard of review requires us to uphold the trial court’s denial of a motion to suppress if its factual findings are supported by substantial competent evidence and we are satisfied that its ultimate application of the law to those facts is correct. See State v. Wakefield, 267 Kan. 116, 131, 977 P.2d 941 (1999); State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995); State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994).
The evidence regarding what happened on the day Dwyer was arrested conflicted in certain critical details. The police testified that they talked to Dwyer outside his apartment door, which he was holding shut behind him. They smelled burning marijuana and asked Dwyer if he wanted to show them where the marijuana was. Dwyer said, “Yeah, okay,” and went into his apartment, leaving the door open behind him. The police officers interpreted this exchange to mean that they had permission to follow, and they did so. Having entered the apartment, the police recovered the marijuana, sought and received Dwyer’s permission to search the apartment further, and recovered additional drug evidence.
Dwyer’s only significant departure from the police version of events at his apartment is that the police did not ask him if he wanted to show them where the marijuana was but requested he get it for them. He said he did not expect the police officers to follow him into his apartment and denied that he consented to the later search.
Dwyer also testified the officers were not yelling or talking in a loud tone; they did not touch him; and they did not physically intimidate him. Although he suggested that they go upstairs to talk, he did not attempt to leave the area immediately outside of his door, and the officers did not prevent him from doing so.
Dwyer also said he did not protest when the officers walked into his apartment because he did not think there was any point in it. The police testified that Dwyer was cooperative at all times and appeared to be relaxed during their conversation with him. After he had received his Miranda warnings, Dwyer discussed his drug use with the officers.
Dwyer argues initially that the conversation with the officers outside his door amounted to a seizure of his person subject to Fourth Amendment analysis. We disagree. Dwyer’s own testimony belies the conclusion that his freedom was restricted in any mean ingful way at this point. He could have told the officers he did not want to talk to them and retreated to his apartment or shut the door and walked up the stairs and away from them. The politely and calmly executed “knock and talk” conversation outside the apartment did not constitute an investigatory detention. See United States v. Park-Swallow, 2000 WL 82183 (D. Kan., April 18, 2000) (noncoercive “knock and talk” a consensual encounter); see also State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997) (officers’ initial approach to sleeping defendant in parked automobile a voluntary encounter).
Dwyer next argues he merely submitted to authority and did not consent to police entry into his apartment; further, any consent was not “unequivocal and specific” as required under State v. Henry, 14 Kan. App. 2d 416, 420, 792 P.2d 358, rev. denied 247 Kan. 706 (1990). Consent must be given voluntarily, intelligently, and knowingly, and proved by a preponderance of the evidence. “ ‘[I]t must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion.’ ” State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997) (quoting State v. Crowder, 20 Kan. App. 2d 117, 120, 887 P.2d 698 [1994]).
The district court is charged with resolving factual conflicts because it is in a position to assess the demeanor and credibility of witnesses. It did so here by accepting the police testimony and rejecting Dwyer’s testimony of what occurred just before the officers’ entry into the apartment. We cannot and will not assess witness demeanor and credibility in the same manner as the district court, see 23 Kan. App. 2d at 938 (quoting State v. Ruden, 245 Kan. 95, 106, 774 P.2d 972 [1989]), and we are satisfied that substantial competent evidence supports its factual findings in this case. We thus assume the truth of the police version of events in evaluating whether Dwyer’s statements and behavior met the legal standard for consent.
According to the police, when they asked Dwyer if he wanted to show them where the marijuana was, he responded affirmatively and opened the door he had been holding closed. He then walked into the apartment and left the door open behind him. Obviously, he knew where the marijuana was when he said he would show the police its location, and he knew they would have to enter his apartment to be able to see it. He did not tell the officers to wait outside. He did not shut the door behind him as he walked inside. Rather, he led the police into his bedroom, where he pulled the marijuana out from its hiding place. Under these facts, we have no trouble agreeing with the district court’s legal conclusion that Dwyer voluntarily, unequivocally, and specifically consented to the officers’ entry into his apartment.
Dwyer next argues that he did not consent to the later search of his apartment. On this point too, the district court resolved a factual dispute by accepting tire police version of events. According to that version, after the marijuana was found, the police asked Dwyer if they would find any other drugs. He responded that what they had already seen was “all of it.” One of the officers then asked Dwyer if he would mind if the officers looked around to make sure there was not anything else. Dwyer said, “Sure, go ahead.”
Again, it is not our function to reweigh witness credibility when testimony is conflicting. 23 Kan. App. 2d at 938. The police version accepted by the district court constituted substantial and competent evidence sufficient to support its factual findings and its conclusion of law on the adequacy of the consent to search. Moreover, Dwyer’s own testimony about the demeanor of the police and the police testimony about Dwyer’s outward appearance of relaxation and his cooperation support the conclusion that Dwyer’s will was not overborne.
Affirmed. | [
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Rulon, J.:
The natural father of H.B.S.C. (child) appeals the district court’s order that his consent to adoption was not required under K.S.A. 59-2136(d) in the adoption of the child by the child’s stepfather. We affirm in part and reverse in part.
This is a stepparent adoption case. The minor child was bom on November 23, 1993, in El Dorado. The natural father, C.L.C., was not married to the natural mother, S.L.R., but he provided $300 for support during her pregnancy. In May 1995 the father assaulted the mother because she would not stay and talk to him during the visitation with the child. This incident resulted in a no contact order issued against the father. The father was ordered to pay $170 a month for child support on October 5, 1995. On December 16, 1995, the natural mother married S.C.R., the petitioner in this stepparent adoption proceeding. On February 5, 1996, the father was incarcerated in Oklahoma for armed robbery and assault and battery and he was scheduled to be released by the end of 1999. Although the father received $30 a month while he was on the work release program, he did not pay any child support.
During his incarceration, the father tried to maintain a relationship with his child by writing letters. The prison log showed 21 entries for a 6 months’ period that the father sent letters addressed to the child and the mother. The mother testified that only seven letters were addressed to the child and the rest to either her or to both. The mother further testified she never read the letters to the child because “she was too young and it would only confuse her.” Some letters stated: “Stacy, I will love you until the end of time” and “I still love your mother. I always will love her, but I know your mother just wants to go on with her life and forget all about me and I don’t blame her for that.” The jailer in Oklahoma testified the father had talked to him about the child, showing “deep concerns for her or fondness.”
On May 13, 1998, the stepfather filed a petition for adoption with consent of the natural mother in the Magistrate Court of Greenwood County. The natural father did not give consent to the adoption. On July 1, 1998, the magistrate judge ordered an appointment of counsel for the natural father. A hearing was conducted with the natural father participating by telephone. The magistrate judge heard the evidence and the arguments by counsel, and held that
“pursuant to K.S.A. 59-2136, the natural father of the minor child, [C.L.C.] after knowledge of the child’s birth has knowingly failed, neglected and refused to assume the duties of a parent and has failed, neglected and refused to provide a substantial portion of the child’s support, required by judicial decree, and when financially able to do so, for the two (2) year period next preceding the filing of the Petition herein.”
The natural father filed a notice of appeal to the district court and a hearing was held with the additional testimony of the parties, briefs, and arguments by counsel. The district court found that the natural father failed or refused to assume his parental duties of financial support or emotional support, love, and affection for 2 years next preceding the filing of the petition for adoption. The district court further found the natural father failed to maintain a close relationship with the child even with the limitations placed on him by incarceration. The district court held the consent by the natural father was not required for the adoption of the child by the stepfather.
The natural father filed a notice of appeal on October 28, 1999. On December 29, 1999, the stepfather filed a motion to oppose the appointment of appellate counsel for the natural father. On January 26, 2000, the district court granted the motion, finding the right to appointed counsel under the probate code was a creature of statute and the legislature did not intend appointed counsel to continue to the appellate level. The district court held that appellate counsel would not be appointed and that an appeal bond of $5,000 should be posted by the father. The natural father appeals from the order granting the adoption by the stepfather, denial of appellate counsel, and the order of a cash appellate bond.
APPOINTED APPELLATE COUNSEL
The natural father argues the district court erred in not appointing appellate counsel for him in this stepparent adoption case which resulted in termination of his parental rights to his child. The decision to remove appellate counsel was based on the court’s interpretation of K.S.A. 59-2136(h), which states:
“When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following: . . . .”
The district court compared the above statutory language with the other statutes dealing with appointed counsel. The statutory provision in a child in need of care proceeding, K.S.A. 1999 Supp. 38-1505, states:
“(b) Attorney for parent or custodian. A parent or custodian of a child alleged or adjudged to be a child in need of care may be represented by an attorney, other than the guardian ad litem appointed for the child, in connection with all proceedings under this code. If at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent.
“(d) Continuation of representation. A guardian ad litem appointed for a child or an attorney appointed for a parent or custodian shall continue to represent the client at all subsequent hearings in proceedings under this code, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue.”
Another statute relied upon by the district court was from the Treatment Act for Mentally 111 Persons. K.S.A. 1999 Supp. 59-2960(a)(3) provides: “Upon the filing of the petition . . . the district court shall issue . . . [a]n order appointing an attorney to represent the proposed patient at all stages of the proceedings and until all orders resulting from such proceedings are terminated.”
The district court concluded there is no clear legislative intent for appointment of appellate counsel for indigent parents in adoption proceedings.
The interpretation of a statute is a question of law over which this court has plenary review. Stafford v. State Farm Mut. Automobile Ins. Co., 27 Kan. App. 2d 224, 226, 1 P.3d 924 (2000).
The natural father argues on appeal that the duties of appointed counsel continue until final resolution of the cause, which occurs only after judgment has been rendered and the availability of appeal has been exhausted. The father cites In re Brehm, 3 Kan. App. 2d 325, 594 P.2d 269 (1979), for support. In Brehm, the trial court terminated a natural mother’s parental rights, finding her an unfit person to have custody of her child. At trial, the mother was represented by court-appointed counsel. Although the trial court did find the natural mother to be an indigent person, the court denied her request for appointment of counsel pending appeal. The Brehm court concluded:
“The trial judge was technically correct in that there is no specific legislative authority for the appointment of counsel for an indigent person on appeal from an order severing parental rights. However, there is no doubt that the relationship of natural parent and child is a fundamental right of which neither may be deprived without due process of law as guaranteed by the Constitution of the United States and the Kansas Bill of Rights. Nor can there be any doubt that, in such case, the right to counsel, either retained or appointed, is essential to due process.” 3 Kan. App. 2d at 326.
Although Brehm dealt with the termination of parental rights based on neglect, the same rationale applies to the factual situation in this case. The Brehm court concluded:
“[A]bsent a statutory provision to the contrary and absent limitation by the appointing authority, the responsibilities and duties of court-appointed counsel continue until final resolution of the cause for which assigned. Such occurs only after judgment has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed.” 3 Kan. App. 2d at 327.
The fundamental principle at the core of parental rights termination cases, either through a child in need of care or an adoption proceeding, is the natural parent’s right to be a parent. The United States Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected.” Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978). The Kansas courts have likewise consistently held that “child custody is a fundamental right of a parent, protected by the due process clause of the Fourteenth Amendment.” In re Guardianship of Williams, 254 Kan. 814, 819, 869 P.2d 661 (1994); see Sheppard v. Sheppard, 230 Kan. 146, 153, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982).
Some state courts have determined that an indigent parent is entitled to appointed counsel in stepparent adoption proceedings where there was no express statutory privilege to have appointed counsel. For example, when a trial court denied an indigent father’s request for appointed counsel in a contested adoption and entered a judgment of adoption, the appellate court reversed the adoption, stating that the contested adoption proceeding involved state action sufficient to invoke due process concerns. See Matter of K.L.J., 813 P.2d 276 (Alaska 1991); O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. Dist. App. 1998); Matter of Adoption of K.A.S., 499 N.W.2d 558 (N.D. 1993).
Additionally, an equal protection argument was raised by a father in Zockert v. Fanning, 310 Or. 514, 520-23, 800 P.2d 773 (1990), where the indigent father was denied assistance of appointed counsel at the hearing. The Oregon Supreme Court reversed, stating that parents are entitled to be treated upon the same terms under the equal privileges and immunities provision of the state constitution. 310 Or. at 523. The Zockert court concluded the legislative grant of the opportunity for a parent to benefit from the privilege of assistance by counsel in one mode of termination of parental rights requires that the opportunity to exercise that privilege be extended to all similarly situated parents directly threatened with permanent loss of parental rights. 310 Or. at 523.
A stepparent adoption differs from other parental termination cases because it is not brought by the State; however, such proceedings are not a purely private dispute either. Adoption, not recognized under the common law, is wholly a creature of statute. Matter of Adoption of K.A.S., 499 N.W.2d at 566; Zockert v. Fanning, 310 Or. at 517. In order to accomplish an adoption, a legis latively created scheme must be followed regarding notice, hearing, consent, and pleadings, whether it is an independent or agency adoption in Kansas. See Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq.
Although die Kansas courts have not dealt with the question in the past, the same issue was presented under the similar factual circumstances in In re Sanchez, 422 Mich. 758, 375 N.W.2d 353 (1985). In Sanchez, the probate court terminated the incarcerated natural father’s parental rights, entered an order of stepparent adoption, and denied the father’s request for appointment of appellate counsel. The Michigan Court of Appeals held the father had no right to the appointment of appellate counsel but remanded the case to the probate court for the purpose of exercising that court’s discretion in determining whether appellate counsel should be appointed to represent the father. On appeal from the denial of appointment of appellate counsel, the Michigan Supreme Court reversed, stating:
“We find that the probate court is authorized to appoint counsel for a nonconsenting noncustodial parent in proceedings brought pursuant to § 51(6) of the Adoption Code. In exercising such discretion, the trial court will be guided by the principle of assuring die nonconsenting parent the ability to present a case properly, measured in the particular case by factors such as the relative strength of die adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity. [Citation omitted.]
“We further find that where the trial court has determined that trial counsel is necessary to protect die noncustodial parent’s interests at die termination proceedings, counsel should also be appointed on appeal, absent some change in circumstances, identified by the trial court, which would justify denial of appellate counsel.” 422 Mich, at 770-71.
K.S.A. 59-2136(h) directs the district court to appoint an attorney for the father if he desires but is financially unable to employ an attorney in a contested adoption proceeding. This statute does not limit the appointed counsel to represent the father only at the trial court level. Based on the rationale in Brehm, 3 Kan. App. 2d at 327, absent a statutory provision to the contrary, the responsibilities and duties of court-appointed counsel continue until final resolution of the case, including the appeal.
There is a strong public policy argument which supports the availability of appellate counsel for indigent persons. When an indigent parent facing the termination of parental rights in a child in need of care proceeding is entitled to appointed appellate counsel but is not entitled to appointed counsel in a stepparent adoption situation, the procedural differences do not justify the different treatment. In either situation, the parent may face permanent loss of his or her rights to a child.
THE APPEAL BOND
The district court held an appeal bond of $5,000 was appropriate to cover costs for the appeal in the event the father was unsuccessful. The father argues that termination of his parental rights concerns a fundamental interest and posting of an appeal bond bars his appeal in violation of his due process rights.
K.S.A. 59-2401 provides:
“(a) An appeal may be taken within 30 days from the date of entry of any of the following orders, judgments, decrees and decisions:
(23) An order decreeing or refusing to decree an adoption.
“(b) Notwithstanding the provisions of K.S.A. 60-2103 and amendments thereto relating to bonds, the appellant, other than die state or municipality or a fiduciary appealing on behalf of die estate, shall file in the court from which the appeal is taken a bond in such sum and with such sureties as may be fixed and approved by die court, conditioned that the appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against the appellant.”
The father argues on appeal the district court’s holding here contradicts M.L.B. v. S.L.J., 519 U.S. 102, 136 L. Ed. 2d 473, 117 S. Ct. 555 (1996). In M.L.B., the natural mother filed a timely appeal from the termination decree in a stepparent adoption case, but Mississippi law conditioned her right to appeal on prepayment of record preparation fees estimated to be more than $2,000. The mother applied to appeal in forma pauperis but the Mississippi Supreme Court denied her application, holding there is no right to proceed in forma pauperis in civil appeals. The United States Supreme Court stated:
“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ [citation omitted], rights sheltered by the Fourteenth Amendment against die State’s unwarranted usurpation, disregard, or disrespect. [Citations omitted.] M.L.B.’s case, involving the State’s authority to sever permanently a parent-child bond, demands the close consideration die Court has long required when a family association so undeniably important is at stake.” 519 U.S. at 116-17.
The M.L.B Court concluded the State may not “bolt the door to equal justice,” in a termination of parental rights case by requiring an appeal bond. 519 U.S. at 124. See Griffin v. Illinois, 351 U.S. 12, 24, 100 L. Ed. 891, 76 S. Ct. 585 (1956) (Frankfurter, J., concurring).
The resolution of this issue seems to be closely related to the previous issue of privilege of appointed appellate counsel. If an indigent natural parent should be afforded appointed appellate counsel before parental rights may be severed, then posting of an appeal bond, which practically makes the appeal impossible, runs contrary to the fundamental right to be a parent.
Under the facts of this case, the district court erred when requiring this indigent father to post an appeal bond.
LACK OF CONSENT
Finally, we must decide if the district court erred when finding the natural father s consent was not necessary under K.S.A. 59-2136(d), which permitted the child to be adopted by the stepfather.
K.S.A. 59-2136(d) states:
“In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father's consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”
Our standard of review is stated in In re Adoption of K.J.B., 265 Kan. 90, 94, 959 P.2d 853 (1998):
‘“In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to [K.S.A. 59-2136(d)] is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing.’” (Quoting In re Adoption of F.A.R, 242 Kan. 231, Syl. ¶ 1, 747 P.2d 145 [1987].)
Financial Support
The natural father does not dispute that from May 13, 1996, to May 13, 1998, he did not provide monetary support for his child because he was incarcerated during the entire 2-year period. In re Adoption of S.E.B., 257 Kan. 266, 274, 891 P.2d 440 (1995), held that to apply presumption of failure of parental duties, “the courts are required to take into consideration the period of time that the father was incarcerated and unable to support the children.” The S.E.B. court reversed the granting of the adoption, stating the father was incarcerated for 7 of the 24 months (approximately 30% of the 2-year period) and it “[i]s obvious from the facts that while in prison Father was not financially able to support the children.” 257 Kan. at 274.
In F.A.R., the district court denied the petition for stepparent adoption, finding the stepparent failed to meet his burden of proof that consent was not necessary under the statute. The stepparent appealed, arguing the court erred in considering the natural father’s incarceration as a factor in determining whether he failed to assume parental duties and in finding the children’s mother had interfered with the father’s attempts to maintain contact with his sons. Our Supreme Court affirmed the denial of stepparent adoption, stating:
“It is obvious that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts. . . . We hold that it was not error for the trial court to take into consideration the limiting aspects of appellee’s confinement in determining whether he had failed to assume his parental duties.” 242 Kan. at 236-37.
Here, the district court found it important the father paid no child support after being ordered to do so in October 1995, assuming that he was able to do so until the time he was incarcerated in Oklahoma in February 1996. The father’s unwillingness to support his child before he was incarcerated was a factor the trial court could consider. See In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 313-14, 822 P.2d 76 (1991). The facts show the natural father paid $300 during the mother’s pregnancy, but he failed to contribute financially at all after the birth of the child. The father was earning about $30 a month while on a work release program in prison, but he testified he needed the money to buy laundry soap and other hygiene items. K.S.A. 59-2136(d) requires a finding the father failed to support a child “when financially able to do so” in order to form a rebuttable presumption.
When the father is incarcerated and unable to provide financially for the child, the focus of the trial court’s inquiry seems to shift to the love and affection side of parenting. Even assuming the father failed to provide financial support for his child, the court’s inquiry continues to the emotional support factor. To judicially sever parental rights under K.S.A. 59-2136(d), there must be a failure of both financial and emotional support. See In re Adoption of K.J.B., 265 Kan. at 101-02 (citing In re Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 [1995] [Lewis, J., concurring]).
Emotional Support
The natural father argues there was more than enough evidence to deny the stepparent adoption. As we understand, the father sent at least 21 letters in a 6-month period to the mother and/or child. The father argues he made a reasonable attempt to maintain a close relationship with the child given the limitations placed on him by incarceration. A trial court must consider whether the parent has made reasonable attempts, under all the circumstances, to main tain a close relationship with his or her child, and whether those attempts are sufficient to require the parents’ consent be given to an adoption. In re Adoption of A.J.P., 24 Kan. App. 2d 891, 893, 953 P.2d 1387 (1998). Here, the district court found such attempts by the father were insufficient under the A.J.P. analysis and any contact between the father and the child were incidental.
“Incidental” has been defined as “ ‘casual; of minor importance; insignificant; [and] of little consequence.’ ” In re Adoption of McMullen, 236 Kan. 348, 351, 691 P.2d 17 (1984). Here, the district court found the letters from the father contained inappropriate material for the child, citing, e.g.: “It is too late for your mother and I,” “I know I have made mistakes,” “Stacy, I will love you until the end of time.” The trial court pointed out that the child’s name was misspelled in many of the letters. The district court further found the mother was justified in not reading or showing the letters to the child and concluded the father’s correspondence to the child was nothing more than a thinly disguised ruse to keep in the good graces of the mother.
This court will not reweigh evidence or pass on the credibility of witnesses, but will only review the facts as presented, in the light most favorable to the party prevailing below, to determine whether the decision of the trial court is properly supported by the testimony and other evidence. A.J.P., 24 Kan. App. 2d at 893.
Under the facts of this case, the district court did not err when finding the consent of the natural father was not required in this stepparent adoption proceeding.
We affirm in part and reverse in part. Appellate costs and fees and attorney fees shall be considered by this court upon the father’s timely application under Rule 7.07 (1999 Kan. Ct. R. Annot. 50). | [
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Pierron, J.:
Barbara Bishop appeals the district court’s finding that a road existed by prescriptive easement on her property.
Bishop and her nephew own the north one-half of Section Twenty-Two, Township Eleven, Range Thirty-Five in Logan County. Harland G. and Darline K. Stramel own the southwest quarter of Section Twenty-Two, Township Eleven, Range Thirty-Five. Raymond and Donald Schroeder own all of Section Twenty-One, Township Eleven, Range Thirty-Five, which borders Bishop and the Stramels on the west.
A roadway, variously described as a road or a two-track trail, runs north to south between Bishop’s and the Stramel’s properties and then turns east onto the Stramels’ property. The Stramels used the road for access to their property. The road had also been used through the years to bus schoolchildren and for general public use. The Stramels claimed that on or about September 1, 1998, Bishop instructed an employee to plow up and destroy the road. They also claimed she put “No Trespassing” signs at the north and south ends of the road.
At about the same time, Bishop reported to authorities that someone had trespassed on her land near the road and destroyed some of her wheat. Sheriff Pat Parsons investigated and was informed by the secretary for the road department that the road was not an open road. The county commissioners informed Parsons that the road was open. Parsons informed the Stramels and Bishop that the matter was a civil one.
The Stramels filed a petition against Bishop, alleging they and their predecessors-in-title had acquired an easement appurtenant in the roadway due to open and notorious use of and a belief of ownership in the road for many years. The Stramels eventually filed a second amended petition adding as defendants the Schroeders and the Board of Logan County Commissioners (County). The County entered an appearance in writing but did not enter an appearance at trial. The County also filed an answer stating it had never formally opened the road but would maintain it as a minimum maintenance road if ordered to do so by the court. The amended petition contained the same allegation regarding the road as made in the original petition, attempting to establish an easement by prescription.
After a bench trial, the district court ruled the evidence was that the road had been a public roadway used by the public adverse to Bishop’s interests for more than 15 years. The court ordered that the road be re-established to a width of 50 feet.
A public roadway may be established in Kansas by a prescriptive easement. Kratina v. Board of Commissioners, 219 Kan. 499, 502, 548 P.2d 1232 (1976). The Kratina court discussed the elements of a prescriptive easement:
“ ‘To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner’s permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.’ ” 219 Kan. at 502 (quoting Shanks v. Robertson, 101 Kan. 463, 465, 168 Pac. 316 [1917]).
Kansas cases have indicated that courts use the adverse possession statute, K.S.A. 60-503, to determine if the elements of a prescriptive easement are present. Brady Fluid Svc., Inc. v. Jordan, 25 Kan. App. 2d 788, 794, 972 P.2d 787 (1998); Allingham v. Nelson, 6 Kan. App. 2d 294, 298, 627 P.2d 1179 (1981). That statute provides: “No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.” K.S.A. 60-503. The court in Brady Fluid found no prescriptive easement existed because the plaintiffs did not have a belief of ownership and the use was not exclusive. 25 Kan. App. 2d at 794. In this case, the Stramels’ theory at trial appears to be that general public use over the years has created a prescriptive easement, not that the Stramels believed they owned tíre property. They believed it belonged to the public. This differs from cases where an individual attempts to assert an ownership right. The elements approved in Kratina are more applicable to this case: The adverse use by the public with the actual or implied knowledge of the landowner, continuously and uninterrupted for 15 years. These elements must be shown by clear and convincing evidence. See 25 Kan. App. 2d at 794.
Bishop lays out facts in her brief apparently intended to show the road was not on her property, but rather on the Schroeders’ property. She claims a survey taken shows the road to be on Schroeders property. Bishop also elicited testimony from Harland Stramel at trial that according to distance estimates provided by Bishop, the entire road would have been on the Schroeders’ property. However, Bishop did not call the surveyor as a witness to explain his findings, and the trial judge did not mention in his ruling that he found the road to be completely on the Schroeders’ property.
There was testimony supporting the finding that the road was at least partially on Bishop’s property. Don Schroeder testified he always believed the middle of the road was the boundary fine between his property and Bishop’s. Bishop cross-examined Schroeder on why the county valuation for his property showed 640 acres, which he stated was one full section of land, with no road taken out. Schroeder stated he did not know why that was.
Harland testified about rods found in the middle of the road that seemed to line up with another road that was not in dispute.
The district court found that the Stramels had shown the road was used by the public adverse to the rights of the owners for more than 15 years. This would seem to imply the court felt the road was at least partially on Bishop’s property. There is sufficient evidence in the record to support this implication.
Harland testified he used the road for access to his property and for transporting livestock and farm machinery. His children rode the school bus on that road. Howard Koons testified he drove a snow plow down the road and up to the Stramels’ door on occasion. He assumed the road was a public road since everyone used it. Dewey Council rode a school bus on the road in the 1920’s and 1930’s and it was also used by the public for whatever purpose was needed. There is ample evidence in the record for the district court to conclude the public had used the road continuously for more than 15 years.
To establish a prescriptive easement, the use of the road must be adverse to the owner. Use of a road with the permission of the owner can never ripen into an easement. Brady Fluid Svc., 25 Kan. App. 2d at 794. Bishop argues that since the Stramels’ predecessor-in-title, Alois Stramel, signed a petition to have the road made a county road in 1943 and the petition was rejected, the Stramels knew the road did not belong to them and thus the only way the road could have continued to exist after 1943 was by permission. This argument is contradictoiy. Bishop testified at trial that the road was on the Schroeders’ land, so she never objected to anyone using it. She only began objecting when she felt they were going off the road and coming onto her property. She also denied plowing up the road in dispute, claiming Harland and the County tore it up. We note that if Bishop did not believe the road belonged to her, she could not grant permission to use it. If she would have objected had she known it was her property, the road was being used adversely.
In Kratina, the court pointed to maintenance done on a road as imputing knowledge to the owner the road was being used. 219 Kan. at 505. In this case, there was evidence the road was maintained by the county, at least on a periodic basis. The county elevated the road in the 1970’s. Norman Boyd, the Logan County Road Supervisor, testified the road had been maintained by the township and the county since 1946. He also testified on cross-examination, however, that the County will sometimes maintain private roads when requested to do so, and when the road in dispute was maintained, it was usually maintained clear through the Stramels’ property.
A former heavy equipment operator for the county testified that he also maintained the road, apparently in the 1980’s. The road maintenance performed by the county in whatever fashion it was done provides more evidence to support the district court’s finding of adverse use for a period of more than 15 years.
The district court did not err in applying the law of prescription. The evidence in the record certainly supports a finding of a prescriptive easement located at least partially on Bishop’s property.
Bishop counter-sued for damage she claimed was done to her wheat. During a deposition, Harland stated that he drove on Bishop’s property at some point, but at trial, he testified it was not until he was given permission to do so by the court and the sheriff. Based on the district court’s findings regarding the prescriptive easement, there appears to be no trespass. The district court stated:
“I didn’t see any evidence whatsoever that would lead this Court to believe there was any trespass. If there was any trespass, it would have been by whoever destroyed Mr. Schroeder’s property and planted it to wheat, and I’m not going to go into that issue because it’s not . . . material.”
Based on the district court’s findings regarding the prescriptive easement, there is sufficient evidence to support its ruling on this issue.
Bishop also includes as an issue in her brief whether the district court erred in failing to quiet title in her and her nephew’s name to all of the northern one-half of Section 22-11-35. It is questionable whether Bishop briefed this issue. An issue not briefed is deemed abandoned. Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999). Regardless of whether the issue was sufficiently briefed, the district court’s rulings on the easement issue dispose of this issue.
Bishop also claims the district court should not have awarded damages. She is apparently referring to the order by the court that the cost of re-establishing the road to its previous condition should be assessed to her. In their petition, the Stramels prayed for damages based on the allegation that Bishop had destroyed the road and prevented others from using it. The court stated that Logan County would bear the cost of maintaining the road. Since it ordered Bishop to pay the costs of re-establishing the road, the court must have determined that she was the one who destroyed it. Though the court does not make that finding on the record, it is the only plausible explanation for the court’s ruling, and there is sufficient evidence to support that ruling.
On October 9, 1997, the district court issued an ex parte temporary restraining order ordering Bishop not to interfere with the Stramels’ use of the roadway. Bishop is apparently arguing it was error not to vacate this order because she was only farming her own property. In light of the court’s rulings already discussed, this issue becomes moot.
The Stramels state they are reserving the right to request attorney fees pursuant to Supreme Court Rule 7.07(b) (1999 Kan. Ct. R. Annot. 50) based on the facts of this case and the history of Bishop in this court.
Supreme Court Rule 7.07(b) requires a request for attorney fees to be made by filing a motion accompanied by an affidavit specifying the nature and extent of services rendered, the time expended on the appeal, and the factors considered in determining the rea sonableness of the fee. The Stramels have not complied with this rule and therefore are not entitled to attorney fees. See C.M. Showroom, Inc. v. Boes, 23 Karl. App. 2d 647, 654, 933 P.2d 793 (1997) (request for attorney fees must comply with Supreme Court Rule 5.01 [1999 Kan. Ct. R. Annot. 30] and Supreme Court Rule 7.07[b]).
Affirmed. | [
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Beier, j.:
Defendant-appellant Ricky Bolden seeks review of the district court’s summary denial of his motion to withdraw his guilty plea. He argues (a) that his due process rights were violated because his motion was denied by means of an order prepared by the State; (b) that the district court failed to make findings of fact and conclusions of law as required; (c) that his counsel was ineffective for failing to investigate a diminished capacity defense; (d) that his counsel was ineffective by failing to explain the elements of the charges and urging him to plead guilty without a sufficient factual basis; and (e) that his counsel was ineffective by failing to inform him of a possible upward departure and failing to take reasonable steps to mitigate a harsher penalty. We reverse for appointment of counsel and evidentiary hearing.
The pertinent facts and events in the procedural history are these: The evidence at trial proved that Bolden forced his way into a trailer where his wife Dixie and children were staying; that he began to beat her, turned on the gas stove burners, and said they were all going to die; and that he then chased her into a neighbor’s trailer and hit the neighbor and kicked Dixie in the head before he set himself on fire. He sustained burns over 55 percent of his body.
As a result of this incident, Bolden was charged with one count each of aggravated burglary, aggravated battery, criminal threat, and misdemeanor battery. He pleaded guilty to all of the charges without a plea agreement. At the time, he told the court that he was satisfied with defense counsel, that he had an opportunity to discuss the charges with his attorney, and that he did not have any questions. The district judge read the charges to Bolden and found a sufficient factual basis to accept his plea.
In Bolden’s presentence investigation interview, he explained his version of the incident. Bolden claimed that Dixie let him in the house; however, he admitted that he threatened her and said he was going to blow up the house. Bolden admitted to striking his wife and chasing her out of the house. He stated that he intended to die that day, but he was not going to kill anyone else. Bolden said he eventually went back to the trailer, rubbed alcohol on himself, and set himself on fire. Bolden did not allege any memory loss in the interview. Bolden said he had undergone a psychiatric evaluation after the incident, and he had since been taking medication for depression and pain.
Defense counsel filed a motion for downward departure and a motion challenging criminal history. The State filed a motion for upward departure.
At sentencing, defense counsel argued in support of the downward departure that Bolden’s criminal history and subsequent presumptive range was higher than originally anticipated when he entered the plea. Defense counsel said Bolden was aware of the possibility that the State might seek an upward departure, and, although it could possibly double the sentence, Bolden would proceed to sentencing. The district court granted the State’s motion for upward departure on the aggravated batteiy charge, doubling the high sentence to 324 months, to be sexved concurrent with the other sentences. Bolden’s later challenge to his criminal history and sentencing were affirxned on appeal by this court.
The district court summarily denied the motion that is the subject of this appeal by means of an order drafted and subxnitted by the assistant district attorney. The order stated that there were no appearances; that the motions, files, and records of the case did not show manifest injustice; and that Bolden’s conclusoxy allegations did not entitle him to relief. The order did not address each of Bolden’s arguments individually.
Preparation of Order
Bolden first argues the district court violated his due process rights by using an order prepared by the State in denying his motion. Bolden contends the procedure used constitutes an appearance by the State, and, under State v. Nunn, 247 Kan. 576, 802 P.2d 547 (1990), he was entitled to notice and the opportunity to appear in person or through counsel.
This court recently addressed a similar issue in Miller v. State, 28 Kan. App. 2d 39, 13 P.3d 13 (2000), rev. denied_Kan.__ (2001). Miller filed a K.S.A. 60-1507 motion to withdraw his plea because of malicious or discriminatory prosecution and manifest injustice, and he filed an amended motion to impose sanctions and remove the charge from his record. The district court denied the motions without holding a hearing or appointing counsel, and the order was prepared and submitted by the district attorney.
On appeal, Miller argued that, under Nunn, he was entitled to counsel and a hearing and the district court violated his due process rights under Supreme Court Rule 183(j) (2000 Kan. Ct. R. Annot. 210) by having the district attorney prepare the order. This court found Nunn inapplicable and went on to discuss the effect of having the district attorney prepare the order:
“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.” 28 Kan. App. 2d at 42.
The court concluded that, if having the district attorney draft the order was error, it was harmless because Miller’s claims were meritless. 28 Kan. App. 2d at 42-44.
The relevant facts of this case are almost identical to Miller, in that the district court did not appoint counsel or hold a hearing on the motion but merely notified the district attorney’s office of the outcome and asked an assistant to prepare an order. As in Miller, we do not believe there was a hearing under Nunn. We also adhere to Millers holding regarding Rule 170(a) (2000 Kan. Ct. R. Annot. 205), despite neither side’s satisfaction with our interpretation of that Rule. Evidently the Rule was not followed here. However, because we remand for appointment of counsel and an evidentiary hearing, the issue is moot. We simply remind the district court and the State that Miller requires journal entries of judgment in 1507 cases to be treated like other journal entries of judgment under Rule 170(a).
Sufficiency of Findings and Conclusions
In State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994), the Kansas Supreme Court held that the procedures governing post-conviction motions filed under K.S.A. 60-1507 should apply to motions to withdraw guilty pleas after sentencing. Bolden argues the district court erred by failing to make findings of fact and conclusions of law on all of the issues presented in his motion, as required by Supreme Court Rule 183(j). We agree that the order was insufficient.
Last year, in State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000), the Kansas Supreme Court made clear that Rule 183(j) has teeth. Monda had filed a motion for new trial based on newly discovered evidence, which included affidavits that stated another person had admitted to involvement in the murder for which Monda was convicted. After a nonevidentiary hearing, the district judge said only: “ Thank you very much. At this time, based upon all matters before the Court, based upon the record which occurred at the trial, after reviewing all these matters, the court feels that a new trial is not proper at this time. I will overrule the motion.’ ” 269 Kan. at 63.
On appeal, Monda argued the district court should have held an evidentiary hearing to explore the credibility and materiality of the evidence and should have explicitly analyzed and ruled upon the evidence alleged to be newly discovered. The Kansas Supreme Court held Monda had no automatic right to an evidentiary hearing, but it compared the procedure for motions for new trial to the procedure for K.S.A. 60-1507 motions. It found that the district court’s ruling did not comply with Rule 183(j). 269 Kan. at 64-65.
Observing that it could only speculate as to the basis of the district court’s decision, the court said:
“The merits of Moncla’s motion aside, the fundamental problem with the district court’s approach here is that it impedes appellate review. How are we to review the decision, even under the abuse of discretion standard, when neither findings nor conclusions based on the findings are stated? Motions for new trials, like many 60-1507 motions, may be meritless and, thus, not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review.” 269 Kan. at 65.
Monda counsels us to monitor district court compliance with Rule 183(j) more strictly than we may have in the past. Compare Jackson, 255 Kan. at 462 (affirming denial of motion because movant failed to allege sufficient factual basis in motion); Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980) (affirming denial of motion without a hearing because movant failed to show new evidence would add to that already in the record). Under Monda, the district court’s order in this case was insufficient because it failed to make findings of fact and conclusions of law regarding each of Bolden’s arguments. The court’s failure to address the two-part ineffective assistance of counsel test is very similar to the court’s neglect of the applicable test for newly discovered evidence in Monda. Even if this case were not ripe for reversal for an evidentiary hearing, it would be remanded for compliance with Rule 183(j).
Diminished Capacity
Bolden first argues that his attorney was ineffective by failing to investigate an insanity or diminished capacity defense. Bolden relies on evidence that he could not remember the incident, that he set himself on fire, that he underwent a mental evaluation, and that he had an unusual blank expression on his face while beating Dixie. He asserts these factors should have prompted his counsel to explore such defenses.
After sentencing, the district court may, in its discretion, set aside a judgment of conviction and permit the defendant to set aside his plea to correct manifest injustice. K.S.A. 2000 Supp. 22-3210(d).
“ ‘To set aside a guilty plea because ineffective assistance of counsel lias rendered the plea involuntary, a defendant must show that counsel’s performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the defendant would not have pleaded guilty and would have insisted on going to trial.’ ” State v. Shears, 260 Kan. 823, 830, 925 P.2d 1136 (1996) (quoting State v. Wallace, 258 Kan. 639, Syl. ¶ 2, 908 P.2d 1267 [1995]).
The State correctly points out that both the insanity and diminished capacity defenses had been abolished by the time of Bolden’s crimes. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000) (“K.S.A. 22-3220 prevents a defendant from raising insanity or diminished capacity as a defense.”) But the analysis of this issue does not begin and end with that simple statement.
After January 1, 1996, a defendant might still raise a defense based on mental disease or defect if the disease or defect was such that it could negate the mens rea element of the crime. In our view, Bolden’s motion raises substantial issues of fact and law regarding the availability of this defense in his case and his attorney’s responsibility to investigate and evaluate its utility. The State admits that at least the burglary count required proof of specific intent and that the defense of mental disease or defect negating intent replaced what was formerly called the defense of diminished capacity or insanity. Bolden is entitled to appointment of counsel and an evidentiary hearing on this claim.
Failure to Explain Charges and Ensure Factual Basis
Bolden next argues his attorney was ineffective because she failed to explain the elements of his charges and urged him to enter his plea when there was no factual basis.
The files and records of this case conclusively dispose of these claims in favor of the State. At his plea hearing, Bolden told the judge he had been provided the opportunity to discuss the charges with his attorney and he did not have any questions about the charges. The district court read the charges to Bolden and was informed that the aggravated burglary and criminal threat charges included elements of the “intent to commit a felony” and the “intent to terrorize another.” Bolden did not tell the court that he could not remember the incident at the plea hearing and proceeded to plead guilty.
Moreover, a factual basis existed for Bolden’s guilty pleas to aggravated burglary, aggravated battery, criminal threat, and misdemeanor battery. A police detective interviewed Dixie shortly after the incident, and she told him that Bolden forced open the iocked door of her home; threatened to blow up the trailer; and punched her, breaking her jaw. When she ran outside and Bolden followed, Bolden hit a neighbor who attempted to defend her and kicked her in the head.
Allegations Regarding Sentencing
Bolden’s final argument is that counsel was ineffective because she gave him the impression he would automatically be found guilty by a jury and sentenced to a harsher prison term if he did not plead as charged. Bolden contends his counsel did not inform him that an upward departure could result in a harsher sentence, and she failed to take reasonable steps to mitigate the imposition of such a sentence.
“Defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant. [Citation omitted.] A mere inaccurate prediction by defense counsel, however, does not constitute ineffective assistance of counsel.” State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995).
At the plea hearing, the district court informed Bolden of the possible range of imprisonment for each of his charges, depending upon his criminal history. At sentencing, defense counsel explained to the court that she and Bolden had concerns about criminal history because Bolden might have other convictions, and they were aware the State might seek to depart from the presumptive sentence. Still, defense counsel said Bolden was willing to proceed. Bolden did not interject and say that he was unaware of the possibility of an upward departure or a harsher sentence. The record does not support Bolden’s contention that counsel was ineffective by failing to discuss the possibility of an upward departure with him.
Bolden’s argument that his attorney was ineffective by failing to take reasonable steps to prevent an upward departure sentence also is meritless. Defense counsel filed a motion for a downward departure, and she argued against an upward departure at sentencing, pointing out that Bolden’s criminal history score was higher than originally anticipated. Defense counsel’s actions were not unreasonable.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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Green, J.:
Rick E. Fortune appeals his convictions of possession of marijuana with intent to sell, failure to have a drug tax stamp affixed to marijuana, possession of amphetamine, failure to have a drug tax stamp affixed to amphetamine, and possession of psilocybin. On appeal, Fortune argues the trial court erred in denying his motion to suppress evidence seized from his residence during the execution of a search warrant. Specifically, Fortune claims that the warrant was supported by information obtained from unreliable informants and by evidence obtained from his trash in violation of the Fourth Amendment to the United States Constitution. Fortune further contends that the trial court erred by allowing hearsay evidence regarding his previous sales of marijuana. We affirm.
In early 1998, the Wichita Police Department received information from confidential informants that Richard Fortune was trafficking marijuana from his residence. In the weeks that followed, Officer Kevin Goebel conducted surveillance on Fortune’s trailer house and noticed a trash container next to the east end of the trailer, approximately 8 feet from the street. Each time Goebel observed the trash cart it was in the same position regardless of whether it contained garbage.
The container belonged to BFI, a garbage collection company. Goebel contacted BFI and learned trash collection at Fortune’s trailer park was scheduled for Tuesdays. Goebel also learned that the BFI trash hauler would retrieve carts located next to the trailers if the distance was not too great and if the hauler did not have to enter the yard area.
In the early morning hours of Tuesday, April 14, 1998, Goebel observed Fortune’s overflowing trash container, with garbage spilling over the top despite the closed lid. Goebel and another detective searched Fortune’s garbage and discovered clear plastic bags containing a green, botanical substance that resembled marijuana. The substance found inside the plastic bags tested positive for marijuana.
Based on the information from the informants and on the evidence discovered in Fortune’s trash, officers secured a search warrant for Fortune’s residence. In the trailer, officers found two triple beam scales, several bricks of marijuana, “mushrooms” or psilocybin, and marijuana seeds. In addition, an officer disconnected the plumbing underneath the trailer and discovered two baggies containing amphetamine in the sewer pipes. The officers also found a recipe for methamphetamine, cash, and miscellaneous drug paraphernalia.
Fortune filed pretrial motions requesting suppression of all seized evidence and disclosure of the confidential informants’ identities. Fortune contended that the trash container was not abandoned but was located within the curtilage of his home and, as such, the search violated his Fourth Amendment rights. The trial court denied Fortune’s motions after finding that the search of the trash container did not violate Fortune’s rights as it was in the location customarily used for trash collection. The trial court further determined that the informants were mere tipsters and their identity was not essential to assure Fortune received a fair trial, as the real probable cause to obtain the warrant was derived from the search of Fortune’s trash container.
Fortune was convicted of possession of marijuana with intent to sell, failure to have a drug tax stamp affixed to marijuana, possession of amphetamine, failure to have a drug tax stamp affixed to amphetamine, and possession of psilocybin. He filed a motion for a new trial and a motion for judgment of acquittal, both of which were denied.
Fortune’s first argument on appeal is that the trial court erred in denying his motion to suppress evidence seized from his residence because the search warrant was supported by information obtained from unreliable informants and by evidence obtained from his trash in violation of the Fourth Amendment to the United States Constitution.
If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court will not substitute its view of the evidence for that of the trial court. When reviewing a trial court’s suppression of evidence, the appellate court normally gives great deference to the factual findings of the trial court. When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court’s scope of review on questions of law is unlimited. State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
The relevant facts of this case are not really in dispute. Both parties agree that the police were alerted of possible marijuana trafficking at Fortune’s residence by confidential informants, that Fortune’s trash was seized without a search warrant, that the trash was located in an area adjacent to Fortune’s residence and approximately 8 feet from the street, and that the trash was put in this location for a private sanitation company to pick up and discard. Accordingly, we shall treat the issue as a matter of law with an unlimited scope of review. See State v. Kimberlin, 267 Kan. 659, 662, 984 P.2d 141 (1999).
Fortune first claims that the information provided by the informants lacked indicia of credibility and reliability. However, it is no longer necessary for the State to prove the reliability or credibility of an informant to establish probable cause for the issuance of a search warrant. In the words of our Supreme Court:
“We now recognize the ‘totality of the circumstances’ approach adopted in [Illinois v.] Gates, [462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, reh. denied 463 U.S. 1237 (1983),] whereby the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citations omitted.]” State v. Roudybush, 235 Kan. 834, 846-47, 686 P.2d 100 (1984).
In the absence of any evidence establishing the reliability or credibility of the informant, corroboration by an independent police investigation will help establish probable cause. State v. Hemme, 15 Kan. App. 2d 198, 202, 806 P.2d 472, rev. denied 248 Kan. 998, cert. denied 502 U.S. 865 (1991).
Here, the police corroborated the information received from the informants by searching Fortune’s trash and discovering evidence of drug trafficking. Fortune, however, contends that the evidence recovered from his trash cannot support probable cause because the police searched his trash container in violation of his Fourth Amendment rights.
To support his argument, Fortune attempts to distinguish his case from California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988). In Greenwood, police received information from several sources that Greenwood was selling drugs from his home. As part of their investigation, the officers asked the neighborhood trash collector to pick up and keep separate the garbage bags that were placed for collection on the curb in front of Green wood’s house. On each occasion, the police searched the garbage bags and discovered items indicative of drug use and used the fruits of the searches to obtain warrants to search Greenwood’s house. The searches of the house revealed quantities of illegal drugs, and Greenwood was arrested on felony narcotics charges. The charges were dismissed on the ground that the warrantless garbage searches violated the Fourth Amendment and the California Constitution.
The United States Supreme Court held that the warrantless search and seizure of the opaque plastic garbage bags left for collection outside Greenwood’s home did not violate the Fourth Amendment. The Court stated such a search would only violate the Fourth Amendment if the persons discarding the garbage manifested a subjective expectation of privacy in their garbage that society accepted as objectively reasonable. It noted that Greenwood may have had a subjective expectation of privacy in the contents of the garbage bags but concluded he had sufficiently exposed the garbage to the public, rendering his subjective expectation of privacy unreasonable. 486 U.S. at 39-41.
Under Greenwood, the location of a person’s garbage standing alone does not establish whether the search of the garbage was reasonable; rather, the analysis must include an examination of whether the person manifested a subjective expectation of privacy in the trash container and whether that expectation of privacy in the garbage is objectively reasonable. This analysis comports with Kansas cases construing the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. See State v. Timley, 25 Kan. App. 2d 779, 781, 975 P.2d 264 (1998), rev. denied 266 Kan. 1115 (1999) (citing Greenwood for the proposition that location is only one factor in determining whether an individual has a reasonable expectation of privacy). See also State v. Tinsley, 16 Kan. App. 2d 287, 290, 823 P.2d 205 (1991) (stating existence of a property right is only one element in determining whether expectations of privacy are legitimate); State v. Waldschmidt, 12 Kan. App. 2d 284, 291-92, 740 P.2d 617, rev. denied 242 Kan. 905 (1987) (noting curtilage is entitled to a high degree of Fourth Amendment protection but is not free from all warrantless searches).
A more recent case addressing the warrantless search of garbage is U.S. v. Long, 176 F.3d 1304 (10th Cir.), cert. denied 528 U.S. 921 (1999). Long appealed the district court’s denial of his motion to suppress evidence obtained through a warrantless search of trash bags taken from his property. Long parked a trailer with a camper shell in a grassy area between the attached garage of his house and the alley. The trailer was located 7 feet from the garage and 3 feet from the edge of the alley. No fence or barrier separated the trailer from the alley. A county garbage collector testified that he had an agreement with Long to pick up the trash Long placed on top of the trailer. The collector indicated that sometimes there were trash bags near the garage, but he did not pick up any trash bags that were not on the trailer.
Police officers received an anonymous tip regarding drug activity at Long’s residence. During surveillance of Long’s property, officers saw the trash bags on the trailer on a Thursday and noted that the bags were gone the next day. They surmised that Long placed his garbage on the trailer for pick-up by sanitation crews. The following week, officers driving through the alley stopped next to the trailer, left their vehicle, stepped onto Long’s property, and removed three dark-colored garbage bags from atop the trailer. A search warrant was obtained based on evidence found in the trash bags. Upon executing the search warrant, officers found methamphetamine and other evidence in Long’s residence.
Long moved to suppress the evidence, arguing that officers obtained the trash bags from the curtilage of his home in violation of the Fourth Amendment. The district court held that the trailer was parked outside the curtilage of the home, but regardless of where it was parked, inside or outside the curtilage, Long lacked a reasonable expectation of privacy in the trash bags.
After examining the curtilage argument, as well as the expectation of privacy, the Tenth Circuit affirmed. 176 F.3d at 1308. First, the court held that the trailer was located outside the curtilage of the home. It was closer to the alley than the garage, being positioned as close to the alley as it could have been without being in the alley. Long did not demonstrate that this area of his backyard was used for an intimate activity associated with the sanctity of the home; rather, it was used for depositing garbage.
As for the expectation of privacy, the court indicated that whether officers violated the Fourth Amendment does not depend solely on curtilage. In garbage cases, Fourth Amendment reasonableness turns on public accessibility to the trash. See Greenwood, 486 U.S. 35. Society does not recognize a reasonable expectation of privacy in trash left for collection in an area accessible to the public. Long’s.placement of the trash bags so close to the alley made the garbage readily accessible and visible from a public thoroughfare. The location Long selected for trash pick-up, by arrangement with the trash collector, was not secluded or difficult to reach and was near the alley with no fence or other barrier separating the trash from the alley. Long had purposefully placed the trash bags on the trailer, near the alley, for collection. The court held that once Long put his trash on the trailer adjacent to a public thoroughfare for collection, he lost any reasonable expectation of privacy in the garbage (citing Greenwood, 486 U.S. at 40). The Long court held that the officers did not violate the Fourth Amendment when they removed the trash bags from the trailer.
Our Supreme Court relied on Long in Kimberlin, 267 Kan. at 664-65. Kimberlin involved a tip received by police that marijuana was being used at Kimberlin’s address. Without a search warrant, officers picked up opaque plastic bags of trash located 5 to 8 feet from the street on the other side of a small ditch which was approximately 35 to 40 feet in front of the house. The trash was sitting in the location customarily used for trash pick-up by city sanitation crews. Items retrieved from the trash bags established they belonged to Kimberlin and contained contraband and paraphernalia supporting the issuance of a search warrant. Execution of the search warrant yielded drugs and paraphernalia from Kimberlin’s residence. Before trial, Kimberlin moved to suppress the evidence seized in the search of his residence but his motion was denied by the trial court. He was convicted of possession of marijuana and possession of drug paraphernalia.
On appeal, our Supreme Court held that the searches of Kimberlin’s trash which led to the issuance of the search warrant were not in violation of the Fourth Amendment or § 15 of the Kansas Constitution Bill of Rights. The Kimberlin court noted the following rationale for its holding:
“Here, defendant placed his trash by the street for collection. The trash was 5 to 8 feet from the street and 35 to 40 feet from the house. A drainage ditch separated the trash from the street. There was no fence or barrier separating tire trash from the street, other than the drainage ditch. Trash was placed in this location regularly for collection by sanitation crews. As in [U.S. v.] Long, [176 F.3d 1309 (10th Cir.), cert. denied 528 U.S. 921 (1999)] there was no indication that this was a secluded place or a place used for intimate activities associated with the sanctity of the home, thus, it does not have the basic attributes of curtilage. Whether the trash was inside or outside the curtilage is not determinative in garbage cases. Once defendant placed his trash out for collection adjacent to a public thoroughfare, he defeated any reasonable expectation of privacy in tire garbage.” 267 Kan. at 665-66.
These cases, however, are distinguishable from the instant case in that Fortune’s trash container was located adjacent to his residence when the officers searched his garbage. Other jurisdictions have upheld the warrantless search of garbage even though the trash was deposited in close proximity to defendant’s residence. See, e.g., U.S. v. Redmon, 138 F.3d 1109 (7th Cir. 1998), cert. denied 525 U.S. 1066 (1999) (holding that defendant did not have a reasonable expectation of privacy in his garbage placed in front of the joint garage on the shared driveway-sidewalk to his townhouse); U.S. v. Hedrick, 922 F.2d 396 (7th Cir.), cert. denied 502 U.S. 847 (1991) (holding that defendant had no reasonable expectation of privacy in his garbage where the distance between the garbage cans on defendant’s driveway and the sidewalk was 18 feet, the garbage was collected by the garbage service at that location, and the garbage cans were clearly visible from the sidewalk); U. S. v. Shelby, 573 F.2d 971 (7th Cir.), cert. denied 439 U.S. 841 (1978) (holding that search of defendant’s garbage, located inside a low fence, by a trash collector at the FBI’s request did not violate the defendant’s reasonable expectation of privacy); People v. McNeal, 175 Ill. 2d 335, 677 N.E.2d 841, cert. denied 522 U.S. 917 (1997) (holding exigent circumstances justified warrantless search of garbage cans leaning against the back of defendant’s townhouse, near the back door); State v. Trahan, 229 Neb. 683, 428 N.W.2d 619, cert. denied 488 U.S. 995 (1988) (holding that defendant lacked constitutionally protected expectation of privacy in trash located approximately 4 feet from the back door of his trailer); Levario v. State, 964 S.W.2d 290 (Tex. App. 1997) (holding that defendant lacked reasonable expectation of privacy in garbage located within a few feet of his home); cf. U.S. v. Certain Real Property Loc. at 987 Fisher Road, 719 F. Supp. 1396, 1407 (E.D. Mich. 1989) (holding that defendant had reasonable expectation of privacy in his garbage bags that were placed against the back wall of his house and hidden from the view of individuals passing in front of his house). See generally Annot., Searches and Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle, 62 A.L.R.5th 1, 20-21.
We conclude that Fortune had no reasonable expectation of privacy in discarded trash even if it were within the curtilage of his home. The officers retrieved the garbage from the location Fortune normally placed it for collection. Although the garbage was discarded near Fortune’s residence, it was easily accessible to the public in that the distance between the trash container and the road was short, only 8 feet. Moreover, the garbage was clearly visible from a public thoroughfare. The proximity of the garbage container to the road and the absence of a fence or any other barrier indicates that the garbage was knowingly exposed to the public.
Although Fortune may have attempted to shield his garbage from public view by placing it in a lidded container, the trash was overflowing the container and was visible and accessible to the public. See State v. Alexander, 26 Kan. App. 2d 192, 200, 981 P.2d 761, rev. denied 268 Kan. 888 (1999) (noting that claimed expectation of privacy was not significantly more reasonable because defendant’s garbage was contained in a closed container with the fid strapped shut because the garbage was still accessible to the public).
In addition, it is of little significance that officers trespassed onto Fortune’s property to retrieve the garbage. Alexander noted property rights are only one element in determining the legitimacy of the expectation of privacy and upheld a warrantless search of defendant’s garbage despite a slight trespass onto his property. See also Kimberlin, 267 Kan. at 665 (upholding warrantless search of defendant’s garbage even though officers entered 5 to 8 feet on his property to retrieve the trash).
Fortune further attempts to distinguish his case from Greenwood by noting that police rather than garbage collectors removed his trash. However, both Kimberlin and Alexander upheld searches when the defendants’ trash was removed from the premises by police. Kimberlin, 267 Kan. at 665 (“The officers did not violate the Fourth Amendment when they removed the trash bags from the trailer.”); Alexander, 26 Kan. App. 2d at 201.
Fortune’s final argument on this issue is that the search of his trash was unlawful because he had a heightened expectation of privacy in his garbage since he contracted with a private rather than a municipal garbage collection company. This argument, however, was rejected in Alexander. That case involved the warrantless search of garbage deposited in a trash receptacle supplied by a private garbage collection company. Police obtained a warrant to search Alexander’s house based on the evidence discovered from the trash and discovered cocaine, cash, and drug paraphernalia inside Alexander’s residence. The trial court granted Alexander’s motion to suppress, noting that Alexander’s garbage was placed in a private container and the police had to enter Alexander’s property to remove it. On appeal, this court rejected Alexander’s contention that the search of his garbage was unlawful because he contracted with a private collector. The court reasoned that the garbage was conveyed to a third party and presumably both private and public garbage collectors are capable of sorting through the garbage and allowing others to do the same. See U.S. v. Hall, 47 F.3d 1091, 1097 (11th Cir.), cert. denied 516 U.S. 816 (1995) (“We fail to see how contracting with a private garbage collection service diminishes the probative value of the fact that the garbage was conveyed to a third party.”).
We find that Fortune had no reasonable expectation of privacy in his garbage once he placed it in a location accessible to the public. The police did not infringe upon any societal values protected by the Fourth Amendment when they searched Fortune’s trash even though the garbage was located adjacent to his home, was deposited in a private garbage company’s lidded container, and was retrieved from the container by police rather than garbage haulers. As a result, the search of Fortune’s garbage was lawful and fruits of the search were sufficient to establish probable cause for a warrant to search Fortune’s residence.
Next, Fortune contends that the court erred in admitting hearsay testimony concerning statements made by the confidential informants. Fortune argues that the State was allowed to introduce hearsay evidence over his objection during its direct examination of Officer Goebel. Fortune contends that information related to Goebel by the confidential informants constituted hearsay evidence since the statements were offered to prove the truth of the matter stated.
In reviewing the trial court’s admission of evidence, the appellate court must decide: (1) whether evidence was admissible or inadmissible, and (2) if evidence was inadmissible, whether to apply the harmless error rule of review or the federal constitutional error rule. State v. Smallwood, 264 Kan. 69, 80-81, 955 P.2d 1209 (1998).
Under K.S.A. 60-460 hearsay is “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” However, the hearsay rule does not preclude “[statements of dispatchers or informants, offered only to explain the course of action of an investigating officer.” State v. Laubach, 220 Kan. 679, 683, 556 P.2d 405 (1976).
Similarly, U.S. v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987), held that out-of-court statements are not hearsay when offered for the limited purpose of explaining why a government investigation was undertaken and why the government took the preparation and steps it did in preparing for an arrest. See United States v. Mancillas, 580 F.2d 1301, 1309 (7th Cir.), cert. denied 439 U.S. 958 (1978) (“Whether or not the . . . statement was true, the fact that it was made would surely explain the flurry of investigative activity in three states the jury was soon to hear about. [Citations omitted.] For this purpose, outlining the background of the investigation with the evidence not being offered to prove its truth, it could be said not to be nonadmissible as hearsay.”).
Fortune, however, contends that the substance of the informants’ communications with Officer Goebel is inadmissible hearsay because the information tended to identify him as the accused and establish his guilt. Fortune argues that the confidential informants provided information which tended to establish that he was the person who, among five possible suspects within his residence, most likely possessed the drugs and the information helped establish that the marijuana was for sale. To support his argument, Fortune cites State v. Thompson, 221 Kan. 176, 179, 558 P.2d 93 (1976), and State v. Rowe, 252 Kan. 243, 843 P.2d 714 (1992). In Thompson, testimony concerning an anonymous phone call to a police officer advising that a crime under investigation was committed by a man identified as “Crazy John” was held to be inadmissible. The Rowe court held that testimony regarding a confidential informant’s oral and written statements were not offered merely to explain the steps involved in an investigation, but rather were the only evidence linking the defendants to the alleged drug sales.
Thompson and Rowe, however, are distinguishable from the instant case because the confidential informants were not the only means the State had to establish Fortune’s identity and guilt. Officers verified that Fortune resided at the address provided by the informants by checking police and utilities records. In addition, the informants’ statements were further corroborated by the trash search, which yielded evidence of drug traffic at Fortune’s residence.
Moreover, Fortune’s guilt was established through the voluminous amount of drugs seized from his residence. Fortune, however, argues that there was no evidence which tended to indicate that he, as opposed to the other four viable suspects in his residence, was in possession of the drugs. When a defendant is in nonexclusive possession of the premises upon which drugs are found, it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. State v. Cruz, 15 Kan. App. 2d 476, Syl. ¶ 11, 809 P.2d 1233, rev denied 249 Kan. 777 (1991).
Here, other incriminating circumstances connected Fortune to the drugs. First, many of the bricks of marijuana recovered from Fortune’s residence were found in plain view. See State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978) (holding that the evidence tended to show knowledge and intent because drugs and paraphernalia were found in defendant’s house in plain view). Moreover, some of the drugs and paraphernalia, including the mushrooms, were found in a dresser containing men’s clothing, which suggests that the drugs belonged to Fortune. See State v. Walker, 217 Kan. 186, 189-90, 535 P.2d 924 (1975) (holding that the defendant constructively possessed heroin which was found in the bedroom of a house that only he occupied). Furthermore, when officers entered Fortune’s residence upon execution of the search warrant, the officers observed Fortune near the door to the bathroom, suggesting that he flushed away the amphetamines that were discovered in the sewer pipes underneath the trailer. This evidence sufficiently links Fortune to the drugs even in the absence of the confidential informants’ statements.
We find that Goebel’s testimony relative to the confidential informants’ statements was offered not for its truth but only to explain why the officers began investigating Fortune. As such, it was not inadmissible hearsay and was not the only evidence tending to establish Fortune’s identity and guilt. As a result, the trial court did not err in admitting the confidential informants’ statements into evidence.
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Marquardt, J.:
Asset Management and Marketing L.L.C. (Asset) and Richard Downey appeal the trial court’s decision that allowed the Board of County Commissioners of Reno County, Kansas, (County) to violate Paganica Peaks No. 1 (Paganica) subdivision restrictive covenants and construct a water tower on one of the lots in the subdivision. We affirm.
The Paganica subdivision was created in 1977. In 1979, Reno County Water District No. 8 was established with a series of booster pumps, approximately 8 miles of pipe, and three water wells that fill a 60,000 gallon in-ground well. The size of the pipes, elevation changes, and the area covered by the pumps limited the water flow to the subdivision.
At present, there are 82 residences and 5 commercial customers relying on the water system. The system was designed to provide 50 gallons of water per capita per day, for a total usage of 27 million gallons per year and to serve approximately 1500 people. In 1998, the district pumped over 20 million gallons of water, for a per capita per day usage of 184 gallons. Currently, at peak usage times, the demand for water may exceed the capacity of the pump station and cause the water pressure to drop. If the subdivision is filled to full capacity, the water needs will exceed the' system’s capacity by four times.
In May 1997, BG Consultants, Inc. (BG) completed an engineering feasibility study of the water system for the County and suggested four improvement options. The only option that did not have severe limitations was to construct a water tower.
In July 1998, the County acquired land in the subdivision by warranty deed. The land was subject to easements and a restrictive covenant which limited use of the land to single family homes no higher than two stories. Exceptions to the restrictions had to have prior approval of the Architectural Control Committee. The land was zoned for residential use only; however, the County rezoned the land for heavy industrial use.
After several public hearings, in December 1998, the County adopted a resolution which authorized the construction of the wa ter tower. Asset voiced concerns about placement of the water tower and stated that it believed it had standing to obtain an injunction to stop construction of the water tower. In December 1998, the County filed a petition for declaratory judgment. The County argued that construction of the water tower did not violate the restrictive covenants and that an injunction would cause economic loss. Appellants filed general denial answers and counterclaimed for an injunction to prohibit construction of the water tower. Appellants claimed irreparable injury to the value of their land should the water tower project be allowed to continue.
After an evidentiary hearing, the trial court found that construction of a water tower was clearly prohibited by the restrictions. However, the trial court considered the matter of the injunction in light of equitable principles. The trial court found that “[t]he present system will not handle peak usage now and adequate fire protection for the area is extremely questionable. The trial court ruled that “granting] an injunction in this case would not be equitable or just. The public interest in this case will be best served if the proposed water tower is constructed as planned.” The trial court stated that the restrictive covenant did not act equitably and did not provide any benefit or substantial value to either party. Appellants’ request for an injunction was denied. Appellants appeal the trial court’s ruling.
On appeal, appellants argue that the trial court’s findings of fact and conclusions of law are not specific enough to inform the parties of their current and future legal rights. Appellants believe that the trial court failed to address whether: (1) the County had the right to rezone the property, (2) the County could acquire the lot by deed instead of by eminent domain, and (3) the County should be treated as a public or private entity. These issues were not part of the declaratory judgment motion.
K.S.A. 60-1701 governs declaratory judgment actions:
“Courts of record within their respective jurisdictions shall have power to declare the rights, status, and other legal relations whether or not further relief is, or could be sought. No action or proceedings shall be dismissed or stayed for the sole reason that only declaratory relief has been sought. The declaratory [judg ment] may be either affirmative or negative in nature; and such declarations shall have the force and effect of a final judgment.”
The function of a declaratory judgment action pursuant to K.S.A. 60-1701 is to provide a speedy and flexible method for determining the rights and obligations of parties in cases of actual controversy where there is actual antagonistic assertion and denial of right.
In its petition, the County asked the trial court for a declaratory judgment as to whether the restrictive covenants of Paganica subdivision prohibited the construction of a water tower. The trial court ruled: “The use of the lot suggested by the County is clearly prohibited by the restrictions contained in the plat.” It also ruled that “[t]he restrictive covenant sought to be enforced does not act equitably in this instance and serves no benefit or substantial value to either party.”
Appellants fault the trial court for not ruling on whether the County could rezone the property or whether the County could acquire the property by purchase rather than by eminent domain. However, these issues were not part of the County’s petition for declaratory judgment. The County asked a specific question, and the trial court provided an appropriately specific answer. The trial court had no obligation to rule on issues not raised. In general, issues not raised before the trial court cannot be raised on appeal. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). We find no error in the trial court’s decision.
Appellants claim that when the County rezoned the property, it showed questionable motives in direct violation of Kansas case law. They argue that the government cannot rezone property and ignore an existing restrictive covenant.
Zoning is regulated by statute and/or ordinance. Interpretation of a statute or ordinance is a question of law, and is subject to unlimited review by this court. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998). Although appellants did mention the issue of zoning in their trial pleadings and brief, there was no mention of the zoning controversy at the evidentiary hearing held on this matter. They did not give the trial court the chance to consider the ramifications of the County’s re zoning of the property. Therefore, the trial court did not rule on the issues, and, thus, we do not have any trial court ruling to review.
We also note that appellants have failed to follow the statutory procedure to contest a zoning decision. K.S.A. 12-759(d) states that any person aggrieved by the zoning decision of any city or county should appeal the decision to the local board of zoning appeals. If a citizen is still aggrieved, he or she may take an appeal to the district court within 30 days of the final decision of the city or county. See K.S.A. 12-760(a). There is no evidence in the record on appeal to show that appellants pursued these remedies. The issue of zoning does not properly belong in this appeal.
We note that there is some confusion as to what appellants are actually appealing. In their appellate brief, appellants ask this court to find that the trial court erred in allowing the County to violate the restrictive covenants. They also assign error to the trial court’s refusal to grant their request for an injunction. However, in their reply brief, appellants state that they are appealing from the declaratory judgment issued by the trial court. Statements made in the reply brief indicate that appellants believe the trial court did not rule on the issue of the injunction.
The memorandum opinion from the trial court clearly states that the declaratory judgment was granted and appellants’ request for injunction was denied.
Essentially, appellants argue that the County should be treated like any private party who purchases land subject to restrictive covenants. They contend that the County is trying to benefit from ownership of the lot without suffering the burdens of compliance with the restrictive covenants. Appellants claim that if the County wishes to violate the restrictive covenants, it should exercise its power of eminent domain in order to acquire land. They believe an injunction is appropriate because inverse condemnation is not a true remedy.
The granting of injunctive relief involves the exercise of judicial discretion and will be reviewed by this court for abuse of discretion. A party that asserts abuse of discretion bears the burden of proving it. Kansas East Conf. of the United Methodist Church v. Bethany Med. Ctr., 266 Kan. 366, 377-78, 969 P.2d 859 (1998).
An injunction is an order to do or refrain from doing a particular act. K.S.A. 60-901. An injunction is an equitable remedy designed to prevent irreparable injury by prohibiting or commanding certain acts. 42 Am. Jur. 2d, Injunctions § 1, p. 550-51. Injunction is not appropriate if a remedy at law can furnish the injured party with the full relief to which he or she is entitled. 42 Am. jur. 2d, Injunctions § 1, p. 551.
To obtain injunctive relief, the movant must show: (1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Sampel v. Balbernie, 20 Kan. App. 2d 527, 530-31, 889 P.2d 804 (1995).
Appellants claim that construction of a water tower will cause irreparable injury by greatly diminishing the value of its property. However, at die evidentiary hearing, an owner of a lot adjacent to the proposed water tower testified that he was going to construct a residence on his lot and did not believe that the proposed water tower would have any impact on his property value. Radine Shafer Downey, who is the president of Asset and a real estate consultant and developer, testified that she lost two sales when prospective buyers learned of the proposed water tower. Downey admitted that she did not have a written agreement for these sales.
The Paganica homeowners association approached the County in 1997 and asked it to remedy the chronic low water pressure. They were especially concerned that the current water system was grossly inadequate for fire protection.
An injunction will only issue if the applicant is threatened with irreparable injury. See Sampel, 20 Kan. App. 2d at 531. Appellants presented no evidence to support their claim of irreparable harm. We find no abuse of the trial court’s discretion as to this issue.
Appellants must next prove that an action at law will not provide an adequate remedy. Sampel, 20 Kan. App. 2d at 529-530. Where there is full, complete, and adequate remedy at law through recovery of calculable money damages, the injury is not irreparable and equity will not apply the extraordinary remedy of injunction. Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, Syl. ¶ 10, 726 P.2d 287 (1986).
The County suggests that appellants could be compensated through an inverse condemnation action. See Sanders v. State Highway Commission, 211 Kan. 776, 779-80, 508 P.2d 981 (1973). Inverse condemnation is an action to obtain compensation for the taking of private property by government which is initiated by the person having an interest in the private property. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 771-72, 958 P.2d 656 (1998).
There is nothing which would prevent appellants from initiating an inverse condemnation proceeding. Appellants claim that it is not a full remedy because it would be unfair to force private landowners to suffer the burden and expense of fifing an inverse condemnation claim. However, the law does not require that landowners be given the most expedient remedy.
The remaining two factors identified above which might warrant obtaining an injunction involve questions of public interest. See Sampel, 20 Kan. App. 2d at 530-31. The study from BG noted that the current water system is inadequate to handle the proposed growth for the subdivision. In addition, the system is currently inadequate for providing fire protection. Even appellants agree that the current water system is inadequate. These factors weigh in favor of constructing the water tower. The trial court was not in error in rendering its decision.
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Gernon, J.:
This appeal concerns a summary judgment ruling in favor of Old Republic Insurance Co. (Old Republic), a question as to the effect of failure of the plaintiffs to obtain relief from an automatic stay in the bankruptcy of one of the defendants, and whether Union Insurance Company (Union) should have been allowed to intervene. Alvin and Debi Becker are the appellants.
The facts are complex but will be condensed as much as possible.
Alvin and Debi Becker owned Becker’s Body Shop. Union was their insurer. Ralph Becker is Alvin’s father. Ralph was insured by Old Republic.
Ralph was doing some work on his truck behind the body shop with a welder and started a fire. The body shop was destroyed in the fire.
Union paid Alvin and Debi a portion of the damages and filed a subrogation claim for the amount of that payment with Old Republic. Old Republic notified Alvin, Debi, and Union that Ralph’s automobile policy did not cover the damage to the body shop. Alvin and Debi then filed suit against Ralph, and Ralph filed a Chapter 7 bankruptcy petition.
Alvin and Debi received notice of the bankruptcy petition but failed to file a claim or hire an attorney to represent them in the bankruptcy action. Alvin and Debi did not enter an appearance in the bankruptcy action, did not file any documents in their names in the action, and did not have an attorney do so on their behalf. Union applied for and obtained an order for relief from the automatic stay provisions of 11 U.S.C. § 362 (1988) to proceed with its subrogation claim against Ralph and his insurer. Alvin and Debi did not file a motion for relief from the automatic stay with the bankruptcy court.
Ralph’s bankruptcy discharge hearing took place on April 15, 1988, still with no appearance or request for a stay by Alvin and Debi. Two weeks after the discharge hearing, Alvin and Debi filed a default motion in the district court case.
A default judgment in the amount of $171,918.95 plus interest was entered against Ralph in the district court case on May 13, 1988, which included Union’s subrogation claim of $90,132.50. At the hearing on the default judgment, Alvin and Debi advised the court of the status of the bankruptcy and that personal recovery was not being sought against Ralph but rather against Old Republic. Ralph was granted final discharge from the bankruptcy court on May 16, 1988.
A garnishment request was filed against Old Republic. Old Republic moved for summary judgment, arguing that the judgment was void because it violated the automatic stay provisions of the United States bankruptcy code, 11 U.S.C. § 362. Alvin and Debi filed a motion for summary judgment, which was denied. They then filed a motion to alter or amend. Union then sought to intervene.
All of the above events took place between October 5,1985, the date of the fire, and August 1990.
Six years later, on June 28, 1996, the district court denied Alvin and Debi’s and Union’s motions. The court again found the underlying judgment was void because Alvin and Debi had not filed for relief from the automatic stay. In denying Union’s motion to intervene, the court found the statute of limitations had expired for any claims Union may have raised.
Alvin and Debi and Union appealed the decision to this court, and this court dismissed the appeal because the record did not reflect an order granting summaiy judgment to Old Republic. Becker v. Becker, case No. 77,171, unpublished opinion filed July 17, 1998.
The district court, in August 1999, filed a journal entry granting Old Republic’s motion for summary judgment.
Alvin and Debi then filed for bankruptcy. The bankruptcy trustee and Union jointly appeal the trial court’s rulings adverse to their respective interests.
Default Judgment/Automatic Stay
The automatic stay provisions of 11 U.S.C. § 362 provided, in relevant part:
“(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of tire Securities Investor Protection Act of 1970 (15 U.S.C. 78eee[a][3]), operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before tire commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
“(c) Except as provided in subsections (d), (e), and (f) of this section—
(2) tire stay of any other act under subsection (a) of this section continues until the earliest of—
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied.”
Alvin and Debi first argue that they were not required to obtain relief from the automatic stay in bankruptcy court in order to proceed with their motion for default judgment against Ralph in state court, and that the trial court erred in finding the May 1988 default judgment against Ralph void based on United Northwest Fed’l Credit Union v. Arens, 233 Kan. 514, 664 P.2d 811 (1983).
In United Northwest, the Arens filed a Chapter 7 petition in bankruptcy on September 8, 1980, and the credit union filed a petition for recovery of money advanced pursuant to its open-ended loan agreement to purchase a mobile home the next day, September 9, 1980. The credit union received notice of the bank ruptcy September 10, and the bankruptcy petition was subsequently dismissed on May 4, 1981, for failure of the debtors to appear. A default judgment was entered in favor of the credit union on May 11, set aside on May 15, and reinstated on January 4,1982. The Arens challenged the entry of default judgment entered in favor of the credit union as violating the automatic stay provision of § 362(a). On appeal, the Kansas Supreme Court held:
“The import of section 362(a)(1) is that all legal actions pending or to be taken against the debtor are halted. As such, no new lawsuit can be commenced. [Citation omitted.] The filing of appellee’s foreclosure action on September 9,1980, was thus in violation of the automatic stay. It is settled that acts done in violation of the stay are Void and without effect.’ [Citation omitted.]” 233 Kan. at 516.
Thus, the court held the filing of the foreclosure action was void, and the trial court was without jurisdiction to enter a default judgment. 233 Kan. at 516.
Cases cited by Alvin and Debi do not hold that a plaintiff does not have to get relief from the automatic stay in order to proceed against a debtor and his or her insurance company before a discharge. Here, the § 362(a) automatic stay was still in effect when the default judgment was entered against Ralph on May 13, 1988, as the discharge was not filed until May 16, 1988. In order to proceed with their suit before the bankruptcy case was closed, dismissed, or the debtor discharged, Alvin and Debi were required to request relief from the stay under 11 U.S.C. § 362(d). 11 U.S.C. § 362(b) lists those situations when the automatic stay does not apply, and none of those exceptions allows a creditor to proceed against a debtor for the purpose of establishing secondary liability against a debtor’s insurer. Alvin and Debi’s claim does not fall under any of these exceptions.
Alvin and Debi were required to seek relief from the automatic stay before proceeding with the default judgment against Ralph. They never requested such relief or filed an appearance in the bankruptcy action. The cases relied upon by Alvin and Debi are not controlling of this issue because the judgment was entered before the discharge. This argument fails.
Alvin and Debi next argue that even if this court concludes the pending action was subject to the automatic stay provisions of the bankruptcy, they were entitled to proceed with the action in their name because Union properly obtained relief from the stay. Alvin and Debi provide no authority which holds that if a creditor s insurer, who is not a party to the creditor s lawsuit, has a subrogation claim and obtains relief from the automatic stay, the creditor does not have to obtain the same relief in his or her own name. Rather, Alvin and Debi raise the issue of “party in interest” and “real party in interest” to argue that Union properly obtained relief as a “party in interest,” which should have enabled the state litigation to continue. Alvin and Debi contend that to have required them to obtain additional relief from the bankruptcy court in their name would have been a formality. However, this argument appears to support the trial court’s finding that the default judgment entered on May 13, 1988, was void.
11 U.S.C. § 362(d) provides, in relevant part: “On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay. . . .” (Emphasis added.) K.S.A. 60-217(a) provides, in relevant part: “Every action shall be prosecuted in the name of the real party in interest.” A distinction exists between these two phrases, as a “real party in interest” is the proper party to bring the lawsuit. This court defined a “real party in interest” in Thompson v. James, 3 Kan. App. 2d 499, 502, 597 P.2d 259, rev. denied 226 Kan. 793 (1979):
“The real party in interest is the person who possesses the right sought to be enforced, and is not necessarily the person who ultimately benefits from the recovery. [Citation omitted.] The real party in interest requirement has as one of its main purposes ‘the protection of the defendant from being repeatedly harassed by a multiplicity of suits from the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party.’ [Citation omitted.]”
This court also cited Thompsons discussion of a “real party in interest” in a more recent case, Fidelity & Deposit Co. of Maryland v. Shawnee State Bank, 13 Kan. App. 2d 182, 184-85, 766 P.2d 191 (1988), rev. denied 244 Kan. 737 (1989):
“ “When a loss is covered but partially by insurance, the insured is tire proper party under this statute to bring suit for the entire loss. The insured will then hold in trust for the insurer such part of the recovery as tire insurer has paid. [Citations omitted.]
“ “When such loss is fully covered and paid the rule is otherwise, provided the policy of insurance contains a subrogation clause whereby the insurer succeeds to rights of the insured.
“ “When a loss is fully paid by an insurer and the insurer becomes subrogated to all rights of the insured, the right of action against the wrongdoer vests wholly in tire insurer. In such case the insurer becomes tire real party in interest and must undertake the maintenance of the action for reimbursement. [Citations omitted.]’
“In the partial payment situation, both the insurer and the insured are considered to be real parties in interest. However, the insured is the proper party to bring the action because he suffered tire entire loss in the first instance, while the insurer could not establish a claim beyond the amount for which it was liable under the policy.”
Also necessary to this analysis is the text of the bankruptcy court order granting Union the right to proceed with that claim:
“For good cause shown, Union Insurance Company should be, and is hereby granted Relief from the Automatic Stay in order to proceed with a subrogation claim against Debtor, in rem, and his insuror and that case which is currently pending in [Osborne] County District Court Case 87-C-57, or to take such other and further action as may be necessary for Union Insurance Company to enforce its rights under applicable Insurance and Contract law.”
Clearly in this case, Union was a party in interest because it had a valid subrogation claim against Ralph for the claim it had paid to its insureds, Alvin and Debi. The bankruptcy court was within its power to grant the order of relief to Union. However, the order specifically grants Union the right to proceed with its subrogation claim in Alvin and Debi’s negligence lawsuit against Ralph. It is uncontroverted that Union’s subrogation claim was only for $90,132.50, and Alvin and Debi sought and obtained a default judgment for $171,918.95. Alvin and Debi were clearly seeking more than the claims paid by Union. Under Fidelity and Thompson, this was a partial payment situation, and both parties were a “real party in interest,” However, Alvin and Debi were the proper party to bring the action because they suffered the entire $171,918.95 loss initially, and Union could not establish a claim beyond the $90,132.50 subrogation claim amount. Union would only be entitled to bring the action if Alvin and Debi refused to allow their names to be used, which is clearly not the case in this situation.
Intervention
The trial court denied Union’s motion to intervene.
Our standard of review on a denial of a motion to intervene is abuse of discretion. Herrmann v. Board of Butler County Comm’rs, 246 Kan. 152, 155, 785 P.2d 1003 (1990). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998).
Union argues that the action was properly commenced in the names of Alvin and Debi, as this was a partial loss situation and Union had no reason to seek formal intervention until the district court set aside the May 13, 1988, judgment as void in July 1990. Thus, Union argues it should have been allowed to intervene under K.S.A. 60-224(a).
K.S.A. 60-224(a) provides:
“Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
The Kansas Supreme Court has interpreted this section of the statute to require the occurrence of three factors: “(1) timely application; (2) substantial interest in the subject matter; and (3) inadequate representation of the applicant-intervenor’s interest.” Herrmann, 246 Kan. at 155.
The trial court denied the motion because the statute of limitations had run on Union’s claim. The record reveals the trial court could have denied the motion based on its untimeliness. Union could have intervened in 1988 when it became clear the judgment was being challenged; however, it chose to wait 2 years when the judgment was set aside as void. At that point, it was clear that Union and Alvin and Debi had differing interests, but Union could have avoided this situation by intervening in the suit in 1988. Union essentially wanted to relitigate the default judgment by becoming a named party and arguing the subrogation portion of the judgment was proper. Thus, an alternative basis existed for denying the motion.
We find no reversible error in the trial court’s ruling on the motion to intervene.
Summary Judgment Ruling
Alvin and Debi argue that their motion for summary judgment should have been granted. They argue about several defenses that Old Republic had raised in its response which were never ruled on by the trial court.
However, the trial court granted summary judgment in favor of Old Republic for the sole reason that there is no valid underlying judgment to support the garnishment. As the judgment was void, Alvin and Debi had no valid judgment upon which to base a garnishment against Old Republic. The trial court properly entered summary judgment in favor of Old Republic, and this court need not consider Alvin and Debi’s arguments in support of their motion for summary judgment because they are moot.
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Pierron, J.:
Brenda Lee Naff appeals from the Workers Compensation Board (Board) order denying her request for attorney fees for post-award services and expenses.
This case has been before our court once before and the facts are, for the most part, undisputed. Naff v. Davol, Inc., No. 79,250, unpublished opinion filed January 8, 1999. In 1994, Naff suffered an on-the-job injury to both arms, hands, and shoulders. Davol, Inc., fired Naff in 1996 citing her inability to perform work duties. Naff instituted workers compensation proceedings.
Special Administrative Law Judge (ALJ) William Morrissey entered a final award on November 27,1996. Naff was awarded compensation of approximately $11,000 for 15% loss of use of her left arm and 10% loss of use of her right arm. For the purpose of this appeal, the critical language in the final award provided continuing medical care as follows: “Continuing conservative medical care, as needed, is order [sic] provided by a physician of respondent’s choice. Claimant shall file application with the director for approval of more extensive medical care, if indicated.”
Approximately 1 week after entry of the final award, on December 4, 1996, Naff s counsel sent a letter to counsel for Davol requesting additional medical treatment. Naff filed an application for a preliminary hearing after Davol failed to agree to pay for additional medical care. At the hearing, Naff testified that she had consulted three doctors since the original award had been made on her behalf. One of those doctors, Dr. Lynn Ketchum, had recommended surgery, while the other two did not recommend surgery. Davol’s counsel questioned Naff on the fact that Dr. Ketchum had recommended surgery prior to the original award, but that Naff chose not to pursue surgery, and that her condition had not changed since the original award. The ALJ ordered respondent to pay for medical treatment, including surgery by Dr. Ketchum.
Davol appealed the ALJ’s order to the Board arguing the ALJ had no authority to designate Naffs medical expert as the treating physician. The Board dismissed the case finding it had no jurisdiction to hear an appeal from a preliminary order. Davol appealed to our court. We reversed the Board’s decision and ordered a decision of the case on its merits.
On remand, the Board entered an order on August 31, 1999, sustaining Davol’s position and holding the ALJ erred in designating Dr. Ketchum as the treating physician. The Board concluded the ALJ should have ordered a change of treating physician pursuant to K.S.A. 1999 Supp. 44-510(c). The Board ordered Davol to submit the names of three physicians from which Naff would select the authorized treating physician. Davol submitted the names of three physicians to claimant on September 7, 1999.
On September 29, 1999, Naff filed a motion to assess attorney fees pursuant to K.S.A. 44-536(g). Naff argued Davol was responsible for her attorney fees in connection with pursuing additional medical treatment after the original award. Naff s counsel attached billing records demonstrating approximately $7,600 in attorney fees and expenses since the original award had been entered in November 1996. ALJ Brad Avery awarded Naff her attorney fees and expenses as requested, finding the payment of attorney fees by the employer and its insurance carrier was mandatory under K.S.A. 44-536(g). Davol applied for review of the ALJ’s decision by the Board.
The Board reversed the ALJ’s decision. The Board found that to order Naffs attorney fees paid by Davol under the circum stances where the physician recommending surgery made the same recommendation before the regular hearing, and Naff chose not to pursue surgery at that time, would be inconsistent with the purpose of the post-award attorney fees provisions of K.S.A. 44-536(g). Naff appeals the Board’s decision.
The resolution of case issue involves an interpretation of a statute. The interpretation of a statute is a question of law, and our review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The statutory provision at issue is K.S.A. 44-536(g), which provides:
“(g) In the event any attorney renders services to an employee or the employee’s dependents, subsequent to the ultimate disposition of the initial and original claim, and in connection with an application for review and modification, a hearing for additional medical benefits, an application for penalties or otherwise, such attorney shall be entitled to reasonable attorney fees for such services, in addition to attorney fees received or which the attorney is entitled to receive by contract in connection with the original claim, and such attorney fees shall be awarded by die director on die basis of the reasonable and customary charges in die locality for such services and not on a contingent fee basis. If the services rendered under diis subsection by an attorney result in an additional award of disability compensation, the attorney fees shall be paid from such amounts of disability compensation. If such services involve no additional award of disability compensation, but result in an additional award of medical compensation, penalties, or odier benefits, die director shall fix the proper amount of such attorney fees in accordance witii this subsection and such fees shall be paid by the employer or the workers compensation fund, if the fund is liable for compensation pursuant to K.S.A. 44-567 and amendments thereto, to the extent of the liability of die fund. If the services rendered herein result in a denial of additional compensation, the director may authorize a fee to be paid by die respondent.”
Three cases have addressed K.S.A. 44-536(g). In Lackey v. D & M Trucking, 9 Kan. App. 2d 679, 687 P.2d 23 (1984), the court considered issues surrounding an employer’s lump-sum payment made to a surviving spouse and a subsequent remarriage by the surviving spouse. In terms of attorney fees under K.S.A. 44-536(g), the court held the district court lacked statutory authority to award attorney fees where no request was made to the ALJ or the Workers Compensation Director. 9 Kan. App. 2d at 686-87.
In Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 786 P.2d 618 (1990), the court considered the situation of an employer’s failure to pay compensation when due pursuant to an award and the attorney fees resulting from the claimant’s civil penalty action under K.S.A. 44-512a(b). The Hatfield court reconciled K.S.A. 44-512a(b) and K.S.A. 44-536(g) to hold that a contingent fee is not recoverable in a K.S.A. 44-512a(b) action. The court permitted attorney fees on the basis of a reasonable number of hours worked, multiplied by a reasonable hourly rate and then adjusted by the factors listed in K.S.A. 44-536(b)(l)-(8). 14 Kan. App. 2d at 198-200.
Naff cites Hatfield for the general principles stated in the opinion concerning statutory attorney fees. The Hatfield court expressed the following policy reasons: (1) Statutory attorney fee awards serve to deter potential violators and encourage voluntary compliance with the statute involved; and (2) Statutes allowing an award of attorney fees are not passed to benefit the attorney, but are passed to enable litigants to obtain competent counsel. 14 Kan. App. 2d at 199.
The most recent case to address K.S.A. 444536(g) is May v. University of Kansas, 25 Kan. App. 2d 66, 957 P.2d 1117 (1998). In May, the claimant requested attorney fees under K.S.A. 44-536(g) for services in connection with ongoing medical benefits. There was never any dispute concerning the claimed medical bills and the bills were paid without protest. The court held the attorney work for which the claimant requested fees involved monitoring her case to assure the timely payment of medical compensation from the respondents, who had never been delinquent in making those payments, and the simple monitoring of the cases resulted in no benefit to the claimant and was not contemplated by K.S.A. 444536(g). 25 Kan. App. 2d at 70.
The May court reiterated the policy reasons for statutory attorney fees outlined in Hatfield and then added the following: “It is contrary to public policy to add the burden of attorney fees to a respondent who has conscientiously complied with all provisions of an award. Such a holding would defeat the policy of encouraging timely compliance by respondents.” 25 Kan. App. 2d at 70.
Initially, we address two factual findings entered by the Board.
“The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantial basis of fact from which the issue tendered can be reasonably resolved.” Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
First, the Board found Davol had complied with all orders of the Court and that the disagreement between Naff and Davol did not concern providing medical treatment. Instead, the Board found the disagreement was about which physician should provide treatment and specifically whether Naff should receive the more aggressive treatment recommended by Dr. Ketchum.
The purpose of this first finding is to address the public policy reasons stated by the court in May, 25 Kan. App. 2d at 70. As stated above, May provides authority that attorney fees are not to be assessed against employers and insurance companies who conscientiously comply with workers compensation awards.
Naff argues her case is markedly different from May in that Davol has refused to voluntarily provide additional medical treatment to her at each juncture of the proceedings. She contends Davol has repeatedly argued that she is not entitled to additional treatment of her injuries. Therefore, Naff maintains Davol should not receive the same protection established in May when they have clearly objected to additional medical treatment.
We disagree with Naff s argument and hold the Board’s finding that Davol conscientiously complied with the awards of the Board and the Court is supported by substantial competent evidence. Davol’s original objection to the ALJ’s order dated March 6, 1997, was that the ALJ did not have authority and jurisdiction to authorize a particular physician to provide treatment to Naff. Davol had a right to challenge the procedure by which Naff obtained additional medical care if the procedure was not pursuant to the award or the applicable workers compensation statutes. Davol challenged Naff at every juncture after the original award concerning additional medical care. However, the Board’s ultimate decision after the first appeal that the ALJ incorrectly ordered Dr. Ketchum to perform the medical treatment validated Davol’s claim that the ALJ did not follow the proper procedure in permitting subsequent medical treatment.
The second important finding made by the Board was that the surgery recommended by Dr. Ketchum was the same treatment he recommended prior to the original award and that Naff represented to the ALJ that she had reached maximum medical improvement by proceeding to a regular hearing and award. Naff does not challenge this factual finding, but instead challenges the Board’s failure to strictly follow K.S.A. 44-536(g). The evidence clearly establishes that Dr. Ketchum recommended surgery prior to Naffs original award, but she chose not to pursue that as an option.
Naff argues the Board incorrectly interpreted K.S.A. 44-536(g) to include a requirement that a claimant’s circumstances have changed in order to allow attorney fees. Naff states a reading of K.S.A. 44-536(g) includes no such requirement. She indicates the express language of K.S.A. 44-536(g) provides for attorney fees for services in this case: (1) rendered subsequent to the initial award; (2) in connection with an hearing for additional medical benefits; and (3) that are reasonable for such services. K.S.A. 44-536(g) then provides that if the attorney’s services result in additional disability compensation, the fee is deducted from the award. If the attorney’s services result in additional medical compensation, then the fee is paid by the employer or its insurer.
Naff claims the Board’s requirement of a change or worsening of circumstances in order to award attorney fees under K.S.A. 44-436(g) is unjust. She argues the requirement of a change in circumstances puts the injured worker in a nearly impossible situation. She contends if the injured worker claims his or her condition has worsened, the insurance company will likely argue the worsening represents some intervening factor for which they are not responsible. On the other hand, Naff states that if the injured worker’s condition is unchanged, the insurance company can argue that treatment should not be required because there has been no change in circumstances. Naff suggests that to place the injured worker in such a dilemma is unjust, and contemplated neither by the statutory language or caselaw.
Davol does not address Naff s argument concerning the statutory elements in K.S.A. 44-536(g). Davol argues Naff s attorney should not be allowed to manipulate the workers compensation statutes to allow the employee’s attorney to collect a fee from the opposing party where the fee would otherwise be encompassed within the attorney fee from the employee.
Pursuant to K.S.A. 44-536(c), prior to the original award, an attorney is not entitled to attorney fees with respect to compensation for medical expenses. An attorney is awarded a fee based on the amount of disability compensation recovered in the case. K.S.A. 44-536(a). However, under K.S.A. 44-536(g), an attorney can collect attorney fees for services rendered in connection with medical compensation subsequent to the ultimate determination of the case and have the employer pay those fees.
In this case, the Board was attempting to stop an apparent abuse of the workers compensation system. Instead of pursuing the medical treatment recommended by Dr. Ketchum in June of 1996, Naff proceeded to regular hearing claiming her condition was at maximum medical improvement. She received an award for permanent disability to both her arms and shoulders. Yet, a short time after receiving her award, she decided to pursue the surgery recommended prior to the award.
We recognize Naffs statutory argument concerning the elements of K.S.A. 44-536(g). However, we hold that in a case where medical treatment being sought was recommended prior to the issuance of the original award and the employee choose not to pursue that medical treatment, it is proper for.the Board to require a change in circumstances of the employee’s injuries in order to award attorney fees under K.S.A. 44-536(g). Any attorney fees associated with challenging the extent of medical compensation prior to the original award would not have been compensable under these facts. The Board properly recognized that immediately reopening the question, right after the disability determination award for no discemable reason, should not give rise to the awarding of attorney fees under our statutory setup.
Under the facts of this case, we hold the Board did not err in requiring a change in circumstances in order for the attorney to receive attorney fees under K.S.A. 44-536(g).
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Green, J.:
Cedar Ridge Apartments (Cedar Ridge) appeals the judgment of the trial court which awarded Sarah R. Wurtz a security deposit, rent credit, and penalty. On appeal, Cedar Ridge argues (1) that statutory and case law do not prohibit the forfeiture of a security deposit as liquidated damages and (2) that the trial court erred in fading to award it a cancellation fee as provided for in the lease. Alternatively, Cedar Ridge argues that if the trial court did not err in awarding Wurtz a security deposit, the trial court erred in assessing the penalty. We affirm in part and modify in part.
Cedar Ridge and Wurtz entered into a lease agreement for 1 year to run from March 1,1999, to February 29,2000. The monthly rent was $395. Wurtz paid a $200 security deposit to Cedar Ridge pursuant to the lease agreement. The provision referring to the security deposit provides that the deposit may be retained to reimburse Cedar Ridge for damages as a result of a breach of the covenants or for rents and damages resulting from Wurtz’ early termination of the lease agreement. The lease agreement also contained a cancellation provision which required Wurtz, upon early termination of the lease, to give 30 days’ written notice, forfeit the security deposit, and pay a cancellation fee in the amount of $474.
Wurtz sent a letter dated October 1, 1999, to Cedar Ridge requesting cancellation of the lease due to unacceptable living conditions, return of the security deposit, and waiver of the cancellation fee. Cedar Ridge responded by a letter dated October 4,1999, which stated that if Wurtz wished to terminate the lease early she would have to give 30 days’ notice, forfeit the security deposit, and pay the cancellation fee of $474. On October 29,1999, Wurtz completed a notice to move form upon which she noted that she was moving because she had bought a house. Wurtz then vacated the apartment and paid prorated rent for the month of November in the amount of $356.
A move-out inspection was conducted on November 9, 1999. On the inspection sheet, Cedar Ridge claimed that Wurtz forfeited the $200 security deposit, owed the $474 cancellation fee, and owed $104 for cleaning and miscellaneous expenses, resulting in a total due from Wurtz of $578. The apartment was re-let on November 20, 1999, to another tenant. The re-letting of the apartment before the end of November resulted in a rent overpayment by Wurtz of $106. Cedar Ridge indicated that the overpayment amount would be credited to the $578 it claimed Wurtz owed, alleging the revised total due to be $472.
Wurtz then sent a letter to Cedar Ridge dated January 11, 2000, indicating that in light of the rent overpayment she would not pay any of the money claimed by Cedar Ridge. Cedar Ridge responded in a letter requesting that she pay the balance of $472 within 2 weeks to maintain a good credit reference.
Wurtz then filed a small claims court petition seeking the return of the security deposit, damages, and a finding that the cancellation fee provision was null and void as a grossly unfair amount. Cedar Ridge filed a counterclaim in small claims court seeking $472. The small claims court denied both parties’ claims.
Wurtz appealed to the district court but Cedar Ridge did not file a cross-appeal. The district court found that liquidated damages are prohibited by statute and awarded Wurtz the security deposit ($200) less damages ($104) plus a rent credit ($106) and assessed a penalty in the amount of $303 under K.S.A. 1999 Supp. 58-2550(b) for a total of $505. The district court refused to consider whether the small claims court correctly denied Cedar Ridge’s counterclaim for the cancellation fee because Cedar Ridge failed to preserve the issue for appeal.
Cedar Ridge’s first argument on appeal is that the trial court erred in awarding Wurtz the security deposit. Specifically, Cedar Ridge contends that statutory and case law do not prohibit the forfeiture of a security deposit as liquidated damages. Interpretation of a 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). Likewise, a de novo standard of review applies to the interpretation of case law. NEA-Coffeyville v. U. S.D. No. 445, 268 Kan. 384, 386, 996 P.2d 821 (2000).
The Kansas Residential Landlord and Tenant Act (RLTA), K.S.A. 58-2540 et seq., addresses the forfeiture of security deposits. A security deposit is defined in the RLTA as
“any sum of money specified in a rental agreement, however denominated, to be deposited with a landlord by a tenant as a condition precedent to the occupancy of a dwelling unit, which sum of money, or any part thereof, may be forfeited under the terms of die rental agreement upon the occurrence or breach of the conditions specified therein.” K.S.A. 58-2543(m).
The RLTA also specifies when a security deposit may be forfeited. K.S.A. 1999 Supp. 58-2550(b) provides:
“Upon termination of the tenancy, any security deposit held by die landlord may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant’s noncompliance with K.S.A. 58-2555, and amendments thereto, and the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant.”
Under K.S.A. 58-2555(f) the tenant is responsible for actual damages including “any destruction, defacement, damage, impairment or removal of any part of the premises.”
The issue of whether a security deposit provision in a lease constitutes liquidated damages was addressed in Vogel v. Haynes, 11 Kan. App. 2d 454, 456, 730 P.2d 1096, rev. denied 240 Kan. 806 (1986). Vogel involved a lease which termed the security deposit as a “deposit ... as security to the Lessor for the performance of this Agreement.” The Vogel court found that this language did not constitute a liquidated damages provision. Vogel further held that “a lump sum penalty, common to liquidated damages, is proscribed by K.S.A. 58-2550(b) which provides only for actual damages sustained.” 11 Kan. App. 2d at 456.
Here, the lease between Cedar Ridge and Wurtz provides for a $200 deposit “as security for the payment of all charges which may accrue and for the full and faithful performance of all the covenants and conditions of this Lease Agreement.” This provision is similar to that addressed in Vogel. As in Vogel, the $200 security deposit is designed to cover actual damages and is not a liqudated damages clause. Although Wurtz’ lease provides for a forfeiture of the entire security deposit upon early termination of the lease, such a penalty is prohibited by 58-2550(b) because, as noted in Vogel, the statute only provides for actual damages sustained. Furthermore, 58-2550(b) requires that these actual damages must be itemized. In contrast, a forfeiture or a liquidated damages clause, by its nature, is not itemized. As a result, we find that the district court correctly refused to award Cedar Ridge the entire security deposit as liquidated damages, but correctly deducted $104 in damages from the deposit.
It is next necessary to determine whether the district court erred in calculating the penalty Cedar Ridge was to pay Wurtz for failing to return the security deposit to her. The district court calculated the penalty at $303 by first determining that Cedar Ridge owed Wurtz $202 ($200 security deposit, less $104 damages, plus $106 rent credit) and assessing the penalty against that amount (lVk x $202) for a total judgment against Cedar Ridge in the amount of $505.
Cedar Ridge contends that the penalty should have been assessed against the amount of the security deposit wrongfully withheld, which we have calculated at $96. Wurtz, on the other hand, concedes that the district court erred in calculating the penalty, suggesting that the penalty should have been assessed against the $200 security deposit.
K.S.A. 1999 Supp. 58-2550(b) governs the procedure to be followed by a landlord in returning the security deposit to a tenant upon termination of the lease agreement. The pertinent part of the statute reads:
“If the landlord proposes to retain any portion of the security deposit for expenses, damages or other legally allowable charges under the provisions of the rental agreement, other than rent, tire landlord shall return the balance of the security deposit to the tenant within 14 days after the determination of the amount of such expenses, damages or other charges, but in no event to exceed 30 days after termination of the tenancy, delivery of possession and demand by tenant.”
Under this statute, Cedar Ridge was entitled to retain $104 from the security deposit for damages and expenses. Accordingly, Cedar Ridge wrongfully withheld $96 of the security deposit and may be penalized for doing so under K.S.A. 1999 Supp. 58-2550(c). The statute provides that “the tenant may recover that portion of the security deposit due together with damages in an amount equal to IV2 the amount wrongfully withheld.” (Emphasis added.) Recause Cedar Ridge wrongfully withheld $96 of the security deposit, the district court should have assessed the penalty against that amount. As a result, the penalty assessed against Cedar Ridge is decreased to $144 (IV2 X $96).
It is important to note that the trial court also erred in assessing a penalty against the $106 rent credit Cedar.Ridge failed to pay Wurtz. K.S.A. 1999 Supp. 58-2550 does not provide for a penalty on a wrongfully withheld rent credit, only for wrongfully withheld security deposits.
Cedar Ridge also contends that the district court erred in refusing to award it a cancellation fee in the amount of $474. However, Cedar Ridge did not cross-appeal to the district court the issue of whether the small claims court erred in refusing to award it a cancellation fee. Cedar Ridge contended at oral argument that it was not required to file a cross-appeal in the district court because under K.S.A. 61-2709(a) all appeals from small claims judgments “shall be tried and determined de novo before a district judge.” Cedar Ridge interprets this statute as providing for a new trial on all issues considered by the small claims court, not merely a trial on the issues appealed by Wurtz. Interestingly, this is an issue of first impression.
Statutes purporting to grant the authority to hold trials de novo on appeal are to be strictly construed. Nurge v. University of Kansas Med. Center, 234 Kan. 309, 316, 674 P.2d 459 (1983).
This court interpreted 61-2709(a) as expressing legislative intent that a district court reviewing a small claims action sits as an appellate court. Armstrong v. Lowell H. Listrom & Co., 11 Kan. App. 2d 448, 725 P.2d 540 (1986). The Armstrong court rationalized:
“We construe words and phrases according to the context in which they are used and give words in common use their natural and ordinaiy meaning. [Citation omitted.] In natural and ordinary usage, ‘appeal’ does not signify an original action, but a review of a lower court’s decision by a higher court. The provision for appeal ‘from any judgment’ and the requirement that the notice of appeal specify ‘the order, ruling, decision, or judgment complained of supports our conclusion that the legislature used ‘appeal’ in K.S.A. 61-2709(a) in its natural and ordinary sense.
“In the absence of express legslative directive to the contrary, we interpret ‘appeal’ in K.S.A. 61-2709(a) to refer to a review of the judgment of the small claims court, not to a new, original action in the district court. The provision for de novo review does not alter the appellate nature of the district court’s authority, but rather specifies the procedure to be employed on appeal of a small claims judgment, directing the district court to make an independent determination of the facts.” 11 Kan. App. 2d at 451-52.
Armstrong determined that the district court acted beyond its jurisdiction as a small claims appellate court when it awarded plaintiff a judgment exceeding the small claim.
The scope of a district court’s appellate jurisdiction has been consistently construed as limited. See, e.g., McCracken v. Wright, 159 Kan. 615, 618, 157 P.2d 814 (1945) (“It has been the settled law of this state for many years that a district court takes a case appealed from a justice of the peace with only the limited jurisdiction of the justice and does not acquire any original jurisdiction.”); Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 765, 758 P.2d 226, rev. denied 243 Kan. 777 (1988) (“[T]he Supreme Court has not interpreted any statute to allow true de novo review in the sense of a new trial on facts and issues as though they had never been tried. Even under the de novo review recognized in KCCR cases, the court is restricted to those issues preserved in a motion for rehearing . . . .”)•
We conclude that a district court hearing an appeal from a small claims action may only decide those issues properly preserved for appeal by an appellant or cross-appellant. Even though K.S.A. 61-2709(a) provides for de novo review, the proceeding is still predominantly appellate in nature. If an appellee were allowed to raise an issue in the district court without filing a cross-appeal, the proceeding would not be truly appellate. Because Cedar Ridge failed to cross-appeal the denial of its counterclaim, the district court was precluded from addressing the cancellation fee issue. Moreover, because the cancellation fee issue was not raised before the district court, the issue cannot be raised in this appeal. See Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). As a result, we find that Cedar Ridge failed to preserve for appeal the issue of cancellation fee provisions in the lease agreement.
In summary, we find that Wurtz is entitled to the security deposit ($200), less damages and expenses ($104), plus a rent credit ($106) and a penalty ($144) for a total of $346 plus interest. In addition, Wurtz is not required to pay the cancellation fee because that issue was not preserved for appeal.
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Knudson, J.:
Johnnie McKay appeals the imposition of a dis-positional upward departure sentence. The district court’s stated reasons were that McKay absconded while on pretrial release and was, therefore, not an appropriate candidate for probation.
We reverse and remand for resentencing before another district judge.
McKay was charged with five counts of forgery and released on a $2,500 appearance bond without surety. He subsequently waived preliminary examination, was arraigned, and was given a trial date of March 15, 1999. Notwithstanding successful plea negotiations that would avoid trial, McKay had failed to appear for entry of his guilty pleas and had absconded from March 15, 1999, until May 17,1999. The record is not clear as to how McKay was later taken into custody. It does not appear there was any extradition proceeding or that the State incurred any travel expenses. In any event, we know McKay was in custody from May 17, 1999, until sentenced on June 30, 1999, a total of 45 days. We also note McKay was given a total of 50 days’ credit on the sentences that were imposed.
On June 3, 1999, McKay appeared before Judge Joseph Bribiesca and, pursuant to the plea negotiations, entered pleas of guilty to five counts of forgery. The State agreed to recommend presumptive sentences to be served concurrently and not to request departure. McKay was ordered to appear before Judge David Kennedy for sentencing.
On June 9,1999, McKay’s motion for a reduction of the $15,000 bond, which had been imposed when he absconded, came before Judge Kennedy for hearing. McKay’s attorney told the court: “[McKay] has a wife and three children and, when he was out, he’s always been employed, providing for them. Without his being out, his wife and children are otherwise eligible for assistance. His wife is also seven months pregnant.”
Kennedy denied the motion and informed the parties:
“I also at this time will give notice to [McKay s attorney] the fact that Mr. McKay was gone for two months shows his inability to or at least is some indication of his inability to be rehabilitated by probation, and that that will be a factor I will be considering at the time of sentencing in this case.”
On June 30, 1999, McKay appeared before Judge Kennedy to be sentenced. McKay’s criminal history consisted of four prior nonperson misdemeanors. The presumptive midline sentence for each forgery was 8 months’ imprisonment with probation for 24 months. In rejecting the parties’ joint recommendation for concurrent sentences and probation, Judge Kennedy imposed consecutive sentences totaling 13 months and denied probation. Kennedy’s reasons for the dispositional departure were: “I’ll find Mr. McKay’s attitude toward the seriousness of this offense, his intentional missing of a court date indicates he’s not a candidate for probation. He’s not subject to rehabilitation at this point in time.”
On appeal, McKay contends the factor relied upon by Judge Kennedy was not a substantial and compelling reason to depart from the presumptive sentence of probation.
Our review of a sentencing departure is twofold. K.S.A. 21-4721(d) first requires this court to review the district court’s departure findings to determine if the evidence supports those findings. State v. Smart, 26 Kan. App. 2d 808, 813, 995 P.2d 407 (1999). A sentence may only be enhanced if the departure factor is supported by substantial evidence. In order to reverse the district court’s findings, this court must be convinced the findings are clearly erroneous or unsupported by the evidence. 26 Kan. App. 2d at 813 (citing State v. Gideon, 257 Kan. 591, 622-23, 894 P.2d 850 [1995]).
Second, this court must review the findings to see if they constitute substantial and compelling reasons to depart. Whether the district court relied upon a substantial and compelling basis for departure is a question of law over which this court has unlimited review. See Gideon, 257 Kan. at 623. The court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. The court’s comments at the time of sentencing govern as to the reasons for departure. State v. Jackson, 262 Kan. 119, 134-35, 936 P.2d 761 (1997).
K.S.A. 1999 Supp. 21-4716(b)(2) provides a list of nonexclusive factors to be considered by the court in ordering a durational upward departure. Leaving the court’s jurisdiction and missing a court date is not one of the enumerated factors. However, in State v. Billington, 24 Kan. App. 2d 759, 763, 953 P.2d 1059 (1998), failure to appear as ordered was considered and held to be a substantial and compelling reason for imposition of an upward dis-positional departure sentence. In Billingon, the defendant absconded for 2 years. In upholding the district court’s decision to depart, the Court of Appeals held: “The fact that the defendant in this case had absconded for over 2 years after being placed in a halfway house on bond was a substantial and compelling reason to depart from the presumptive sentence.” 24 Kan. App. 2d 759, Syl. ¶ 4.
We believe the underlying facts in Billington need to be carefully considered. Billington was on house arrest in a halfway house when he absconded for 2 years. As part of a plea agreement, the State agreed to recommend that Billington be placed on probation through community corrections. The trial court refused to impose the sentences recommended by the parties, finding the defendant’s behavior showed that he was not amenable to probation. In the case now before us, there are no similar aggravating factors sup porting the conclusory finding of unamenability to probation or community correction services.
“The final analysis in reviewing a departure sentence is not whether any departure factor, in isolation, can be a substantial and compelling reason for departure but whether, as a whole, the factors are substantial and compelling reasons for imposing a departure sentence in light of the offense of conviction, the defendant’s criminal history, and the purposes of the sentencing guidelines.” State v. Grady, 258 Kan. 72, Syl. ¶ 11, 900 P.2d 227 (1995).
McKay has no prior felony convictions. His crimes of conviction were for nonviolent misdemeanors. He has never been subject to supervised felony probation or placement in community corrections. McKay’s absconding, although a serious transgression, was of limited duration and did not deter the State from proceeding with a recommendation for probation, McKay served 45 days in confinement after he was returned to custody. He has a pregnant wife and 3 children who depend on him for support. He apparently has a credible work history.
In his dissent, Judge Lewis accuses the majority of usurping the authority of the trial court. Nothing could be further from the truth. Under the sentencing philosophy expressed in Grady, we believe whether there are substantial and compelling reasons to support a sentencing departure must turn on the totality of circumstances shown of record. The holding in Billington turned on the specific facts of that case. So, also, the correct result in this case must rest upon the totality of facts we have related. We firmly believe those facts do not support the district court’s decision. We conclude substantial and compelling reasons have not been shown to support a dispositional departure.
Reversed, sentence vacated, and remanded for resentencing. | [
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Rulon, j.:
Defendant Clifton E. Logan was convicted by a jury of driving while a habitual violator in violation of K.S.A. 1998 Supp. 8-287 and driving with an expired license tag. Defendant was sentenced to 13 months’ imprisonment on the habitual violator charge and 6 months in jail on the expired tag charge. Defendant only appeals from the habitual driving charge. We reverse.
The sole issue raised in this appeal questions whether a person who has never obtained a valid driver’s license may be convicted of driving while a habitual violator. This question involves statutory interpretation, which is a question of law. Therefore, this court has unlimited review. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
Recently, our Supreme Court addressed the parallel question of whether a person who has never obtained a valid driver’s license may be convicted of driving while suspended. See State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000). The Bowie court reasoned that because Kansas law extends driving privileges only to those who have obtained a valid driver’s license, a person who has never obtained a license does not possess any driving privileges which may be suspended or revoked for successive violations. See Bowie, 268 Kan. at 800-01.
Here, the defendant was convicted of driving while a habitual violator, in violation of K.S.A. 8-285; K.S.A. 1998 Supp. 8-286; and K.S.A. 1998 Supp. 8-287. K.S.A. 1998 Supp. 8-286 reads:
"Whenever the files and records of the division shall disclose that the record of convictions of any person is such that the person is an habitual violator, as prescribed by K.S.A. 8-285 and amendments thereto, the division promptly shall revoke the person’s driving privileges for a period of three years.”
K.S.A. 1998 Supp. 8-287 states that “[operation of a motor vehicle in this state while one’s driving privileges are revoked pursuant to K.S.A. 8-286 and amendments thereto is a severity level 9, nonperson felony.”
Clearly, a person cannot be convicted under K.S.A. 1998 Supp. 8-287 until his or her driving privileges have been revoked pursuant to K.S.A. 1998 Supp. 8-286 due to a finding that he or she is a habitual violator. Under the reasoning of Bowie, a person who has never obtained a driver’s license has never obtained the privilege to drive in Kansas. Because the State cannot possibly revoke the driving privileges of a person who never obtained such privileges, the defendant in the present case cannot be convicted of a crime where an element of the crime is that the defendant’s driving privileges had been revoked. The only crime available to the prosecution under the current legislative scheme is driving without a license, in violation of K.S.A. 1998 Supp. 8-235(a).
We reverse the defendant’s conviction of driving while a habitual violator and remand with directions to the district court to vacate that portion of the defendant’s sentence. | [
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Lewis, J.:
In September 1995, police officers employed by the City of Leavenworth shot and killed Shawn Perryman. The administratrix of his estate brought an action under 42 U.S.C. § 1983 (1994) and common-law negligence, alleging that the City of Leavenworth was Hable for Perryman’s wrongful death. It was the contention of the administratrix that the officers had used excessive force in shooting and killing Perryman and were negligent in the performance of their official duties. The trial court granted summary judgment to the defendants, and the administratrix has appealed from that decision.
The facts on which the trial court granted summary judgment were uncontroverted. The unfortunate chain of events resulting in Perryman’s death began when Coleen Brown reported to the Leavenworth police that Perryman had stolen her car. Brown was a friend of Perryman, and both had recently been released from the Osawatomie State Hospital. The police responded to Brown’s report and found her automobile at a nearby convenience store.
A short time after the car was located, the Leavenworth officers found Perryman near St. John’s Hospital and St. Mary’s College in Leavenworth. When he saw the police officers, he ran in a direction towards St. Mary’s College. Officers then observed him running towards the hospital.
As the officers watched Perryman’s retreat, they noticed that he had a large metal object in his hand, and they immediately began to tell him to drop the object. One of the officers told Perryman that they simply wanted to talk to him. They set up a triangle around Perryman and allowed him to retreat up a hill towards the hospital as they attempted to get him to surrender. At one point as he fled, Perryman shouted at tire officers, “Fucking shoot me.” He also stated, “You’re going to have to kill me or I’ll kill you,” and he said, “I want to die.”
Despite the counsel of the police officers, Perryman continued to look over his shoulder and refused to surrender. At one point he stopped and held the large metal object upward and flailed it about in front of him and lashed out in the direction of the officers. At that point, Officer Todd A. Bledsoe sent his police dog to subdue Perryman, but Perryman refused to surrender, stabbing at the dog, who apparently retreated.
The officer sent the dog at Perryman a second time and, at this point, he charged towards Officer Bledsoe with the large metal object held in a threatening position. At a point when Perryman was approximately 8 feet away from Officer Bledsoe with the weapon held over his head, the police officer shot Perryman two times and killed him. Another of the officers at the scene, Officer Roger M. Hundley, had made a decision to fire his weapon when Perryman charged at Officer Bledsoe, but indicated he could not do so because another police officer was in his line of fire. The other officer, Officer Jeffrey L. Downing, also made a decision to fire, but just as he began to squeeze the trigger on his handgun, he heard the shots from Officer Bledsoe’s gun.
Perryman’s death was investigated by the Kansas Bureau of Investigation and the Leavenworth County Attorney’s office, which both concluded that the use of deadly force in this instance was justified under K.S.A. 21-3215. The Leavenworth Chief of Police indicated that he believed the officers involved “[utilized only the force necessary to overcome the aggressive resistance of Perry-man.”
In the action filed against the defendants, the plaintiff alleged that the three police officers, Bledsoe, Hundley, and Downing, and the City of Leavenworth, had violated Perryman’s constitutional rights and negligently performed their duties.
The plaintiff s expert was a professor of criminology, Dr. George Kirkham. Dr. Kirkbam testified that he did not believe that the officers had followed acceptable law enforcement procedures. It was his opinion that the officers made no attempt to diffuse the situation and caused the use of excessive deadly force. He believed that the officers failed to use alternatives which were available to them, such as the more effective use of the dog or of their batons.
After discovery was completed, the defendants filed a motion for summary judgment which was ultimately granted by the trial court.
Our standard of review on summary judgment is well known:
“Summary judgment is appropriate when the pleadingfs], 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 tire evidence in favor of tire 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 tire 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).
UNREASONABLE USE OF DEADLY FORCE
The plaintiff pursued this action under 42 U.S.C. § 1983 (1994). That statute only applies when the defendant acts under color of state law. Monroe v. Pape, 365 U.S. 167, 184, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), overruled on other grounds Monell v. New York Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). We also note that § 1983 only creates a cause of action for violation of federal rights. See Monroe, 365 U.S. at 180. In addition, the defendants in this case are law enforcement officers, and in those instances, as a general rule, the plaintiff must over come the qualified immunity exception. See Pierson v. Ray, 386 U.S. 547, 557, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967).
The question is whether the officers violated Perryman’s Fourth Amendment rights by using excessive force. That is a question of fact and in analyzing the evidence, the court must determine whether the officers’ actions were objectively reasonable in the light of the facts and circumstances surrounding those actions. Swinehart v. City of Ottawa, 24 Kan. App. 2d 272, 278, 943 P.2d 942 (1997). There are a number of facts which need to be examined to determine reasonableness, including the severity of the crime involved, whether the decedent posed an immediate threat to the safety of the officers, and whether the decedent was resisting arrest. Of course, if there is a material issue of fact concerning the use of excessive force, then summary judgment would not be appropriate. See 24 Kan. App. 2d at 278-79.
In this case, it appears clear to us that Perryman posed an immediate threat to the safety of the officers. He ran at Officer Bledsoe with a sharp metal object held over his head, which has been described as a large barbecue fork, and got within 8 feet of Officer Bledsoe before that officer fired his revolver at the decedent. The decedent not only posed an immediate threat to Officer Bledsoe, he was also resisting arrest and we do not believe there to be any question that the officers were justified in the force used. We believe it shows considerable courage to allow someone to come within 8 feet of your person before taking steps to protect your own life.
It is plaintiff s position that there was a material issue of fact in this case as to whether the force used was excessive or reasonable. The plaintiff cites in support of her proposition the case of Sevier v. City of Lawrence, 853 F. Supp. 1360 (D. Kan. 1994). In that case, the officers had killed the decedent and claimed that he was lunging at them with a knife. The plaintiff disputed the fact that the decedent lunged at the officers and presented some evidence that would demonstrate that he did not lunge at or attack the officers.
In Sevier, the federal district court denied summary judgment on the basis that there was a factual dispute as to whether the decedent had lunged at the officers which had an impact on the issue of whether the officers had acted unreasonably.
The facts of this case are different from those in Sevier, and we do not believe that case to be of any controlling authority on the facts shown. The evidence in this case is uncontradicted that at the time the officers shot the decedent, he was charging at them with a large metal object over his head and had just threatened to kill the officers and indicated that he wanted to die himself. There was no evidence that decedent was not charging at the officers with a weapon at the time he was killed and, therefore, nothing to prevent the court from granting summary judgment on the excessive force claim.
The plaintiff also argues that there is evidence from which it could be concluded that the officers utilized excessive force when pursuing and apprehending the decedent. Although this issue is not briefed in any detail by the appellant, the contention apparently refers to the fact that the officers should have calmed Periyman down, should have used their dog, etc., in order to prevent the show of force. Plaintiff cites Romero v. Board of Commissioners, 60 F. 3d 702, 705 (10th Cir. 1995), in support of his argument. However, as we read that decision, the 10th Circuit indicated that the court would not look at the officers’ conduct prior to the incident that led to the deadly force in deciding whether the action of the officers was reasonable. The court indicated that “we followed other circuits that have confined the reasonableness inquiry in excessive force cases ‘to whether the officer was in danger at the moment of the threat.’ ” 60 F. 3d at 704-05.
We conclude that the facts before the trial court on the motion for summary judgment conclusively demonstrate that there is no material issue of fact as to the reasonableness of the officers’ use of force.
We conclude that the officers’ actions must be determined in light of the facts and circumstances which led to those actions. We agree with the United States District Court for the District of Kansas that the “ ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” U.S. v. Holloway, 906 F. Supp. 1437, 1441 (D. Kan. 1995). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” 906 F. Supp. at 1441.
We note that the plaintiff did present a letter from her expert witness which indicated that in his opinion, the actions of the police officers were unreasonable. We do not believe that the trial court or this court is required to find that a material issue of fact exists simply because of an expert’s opinion which is not supported by the evidence. The fact that an expert witness may disagree with a police officer’s actions does not make those actions unreasonable. Reynolds v. County of San Diego, 84 F.3d 1162, 1170 (9th Cir. 1996), overruled on other grounds Acri v. Varian Associates, Inc., 114 F.3d 999 (9th Cir. 1997). We hold that the uncontroverted facts in this case show that the officers did not use excessive force. We conclude that, as a matter of law, the opinion of the plaintiff s expert witness was not sufficient to create a question of fact under the circumstances shown in this case.
The plaintiff s expert also indicated that he believed the officers were faced with a situation of “suicide by police,” where a mentally disturbed individual attempted to force the police to kill him. The term “suicide by police” is not used in the plaintiff s brief. Plaintiff fails to argue a “suicide by police” theory of recovery. “A point incidentally raised but not argued is deemed abandoned.” McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).
The uncontroverted facts of this case show that at the time he was shot, the decedent was charging at Officer Bledsoe with a large metal object held over his head. The decedent was allowed to get within 8 feet of Officer Bledsoe before he was shot, and there is no question in our mind that the officer properly acted in self-defense and did not use excessive force in firing at the decedent.
IMMUNITY
There are two types of immunity which could apply to a case of this nature. One is qualified immunity and the other is discretionary immunity. We will briefly discuss both theories.
Qualified immunity is an affirmative defense to a § 1983 excessive force claim. See Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995). Qualified immunity provides an immunity from suit and from liability. 52 F.3d at 1552. The standard for determining whether qualified immunity would apply to law enforcement officers in this case is “whether the agents acted reasonably under setded law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224, 228, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991). The doctrine of qualified immunity “gives ample room for mistaken judgments” by protecting all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 343, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). In this case, the officers were entitled to qualified immunity on the § 1983 claim because the uncontradicted evidence in this case showed that the officers’ acts of force were reasonable.
Discretionary immunity is defined by K.S.A. 1999 Supp. 75-6104(e). The trial court held that the officers were immune under discretionary immunity.
Discretionary immunity would not apply to an excessive force claim which is based on a negligence theory. The negligence theory in this case was not based on § 1983. Discretionary immunity does not apply to the negligence claim in this case. If, the plaintiffs theory is based on “suicide by police,” there are decisions which hold that an officer acts reasonably in using deadly force if he acted in self defense. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994); Martinez v. County of Los Angeles, 47 Cal. App. 4th 334, 54 Cal. Rptr. 2d 772 (1996).
In this case, the officers were entitled to discretionary immunity from the 1983 claim because the plaintiff was unable to show that any special duty was owed to the decedent.
We affirm the trial court’s grant of summary judgment in favor of the defendants in this case.
Affirmed. | [
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Beier, J.:
Plaintiff-appellant Dr. Thomas F. Gray, an audiologist and hearing aid dispenser, brought suit against defendants-appellees Manhattan Medical Center, Inc. (MMCI), Dr. John M. Bar low, and Dr. Benjamin C. Pease. Gray wanted to prevent competition from another audiologist and hearing aid dispenser employed in the defendant physicians’ otolaryngology practice in MMCI, the office building all of the individual parties share. Gray now seeks review of the district court’s ruling in favor of defendants on cross-motions for summary judgment.
Our standard of review on cases decided in the district court on a motion for summary judgment is 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, tire facts subject to the dispute must be material to the conclusive issues in die 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).
Gray pursued two causes of action. In the first, he attempted to employ a shareholder derivative theory. Gray claimed that, as an MMCI shareholder, he was entitled to take action on MMCI’s behalf against his fellow shareholders, Barlow and Pease, for their alleged violation of their lease with MMCI and for an alleged violation of MMCI’s bylaws. In his second cause of action, Gray asserted he was a third-party beneficiary of the lease between MMCI and Barlow and could sue for breach of the lease.
Gray has been a shareholder of MMCI since the 1980s and signed a lease with MMCI in 1993. Barlow also became a shareholder in MMCI in the 1980s and signed a lease with MMCI in 1993. He later hired Pease, and MMCI approved Pease as a tenant and future stockholder. At the time of Gray’s lawsuit, Pease had not yet signed a lease with MMCI.
In his effort to prevent Barlow and Pease from employing a masters level audiologist in their practice, Gray relied on the following provisions from Barlow’s lease:
“3. USE:
“The entire leased area shall be for the exclusive use of the TENANT, TENANT’S agents, servants and invitees for the purposes of the practicing the art of TENANT’S profession. This paragraph is subject to the provision in paragraphs concerning termination.
“12. EMPLOYMENT:
“No TENANT shall employ or associate with a person licensed to practice the person’s profession until such person has been approved by the LANDLORD in accordance with Article VIII of its By-laws, or any amendments thereto.”
Gray also argued that the lease incorporated MMCFs bylaws and that Articles VIH and IX of the bylaws prohibited Barlow and Pease from providing services that compete with another tenant of MMCI. Article VIII entitled “Renters” states:
“Stockholders may approve the leasing of premises or establishment of other share arrangements with physician, non-physician, dentist, non-dentist or non-health profession affiliates which will enhance or aid the patients of stockholders. These renters are not construed to be eligible at any time to become a stockholder.
“If, however, a renter is to be allowed under this Section, then he/she shall be in a specialty area not currently available or offered within the Manhattan Medical Center and must be practicing in the Manhattan Medical Center on a part-time basis.”
Article IX of the MMCI bylaws entitled “Office Tenancy” states:
“Any stockholder may propose as a tenant, any doctor or health profession affiliate, if the doctor or health profession affiliate proposed is a specialist in a field in which no stockholder is practicing. When there is a stockholder who is practicing in a medical specialty and the proposed doctor or health profession affiliate has not practiced within the Manhattan community for two (2) years or more, then only the stockholder practicing in that specialty may propose a tenant who also practices in that specialty. If there are two (2) separate suites or units of stockholders who are practicing in the same specialty, the new tenant need only be proposed by one (1) of the specialty suites or units.”
When Barlow hired an audiologist to conduct hearing tests and dispense hearing aids, Gray notified Barlow and MMCI that he believed the employment of the audiologist violated the lease and bylaw provisions. Gray also sought corrective action by MMCI. MMCI’s board of directors elected not to respond to either of Gray’s demands because it found no violation had occurred. Gray has not claimed that any member of the board had an improper personal interest in the issue. Nor has he claimed that any board member committed fraud or gross negligence in reaching the decision.
The district court ruled Gray’s shareholder derivative cause of action failed as a matter of law because Gray had no evidence that there was a “ ‘wrong’ to the corporation as a result of the board’s decision not to pursue any action on Dr. Barlow’s hiring of the audiologist or, framed differently, a ‘right’ that the board improperly failed to exercise.” In light of that holding, the court held the third-party beneficiary claim to be moot.
Shareholder Derivative Action
One or more shareholders may file a derivative lawsuit to enforce a right of the corporation if the corporation fails to enforce that right. Generally, before filing suit, the shareholder or shareholders must make a demand upon the corporation requesting the desired action to be taken. The court must be satisfied the shareholder or shareholders adequately represent the interest of the corporation. K.S.A. 60-223a.
MMCI argues that it is irrelevant whether the terms of the lease and bylaws were breached because MMCI’s decision not to take the corrective action sought by Gray was a discretionary and protected business judgment. MMCI relies upon Delaware case law to support this argument.
Decisions by the Delaware courts regarding corporation law are persuasive because the Kansas “General Corporation Code has been patterned after, and at times contains identical provisions of, the Delaware general corporation law.” Achey v. Linn County Bank, 261 Kan. 669, 676, 931 P.2d 16 (1997).
In Delaware, the business judgment rule undergirds a presumption of the propriety of a board’s decision in certain circumstances. The rule evolved from Del. Code Ann. tit. 8, § 141(a) (1991), the statute granting the directors of Delaware corporations their managerial decision-making power. Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981).
The Delaware statute is nearly identical to K.S.A. 17-6301(a), which provides:
“The business and affairs of every corporation shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this act or in the articles of incorporation. If any such provision is made in the articles of incorporation, the powers and duties conferred or imposed upon the board of directors by this act shall be exercised or performed to such extent and by such person or persons as shall be provided in the articles of incorporation.”
The business judgment rule encompasses decisions whether to initiate, or refrain from entering, litigation. 430 A.2d at 782. It presumes a board’s decision was made by disinterested directors who acted on an informed basis, in good faith, and in the honest belief the decision was in the corporation’s best interest. Spiegel v. Buntrock, 571 A.2d 767, 774 (Del. 1990). Its protection can be claimed when disinterested directors have fulfilled their duty to inform themselves of all material data reasonably available to them and then acted with due care. Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984), overruled in part on other grounds Brehm v. Eisner, 746 A.2d 244 (Del. 2000). A corporation may invoke the rule itself to short-circuit a suit such as this by demonstrating that the members of its board of directors who took the questioned action would be protected by the rule if they were sued individually. See Zapata, 430 A.2d at 784 n.10 (when stockholders, after making demand and having their suit rejected, attack board’s decision as improper, decision falls under business judgment rule if requirements of rule met).
Under K.S.A. 17-6301(a) and K.S.A. 60-223a, Kansas follows Delaware’s basic principles regarding application of the business judgment rule to insulate board decisions from attack. As our Supreme Court has said:
“It is not the function of the court to manage a coiporation nor substitute its own judgment for that of the officers thereof. It is only when the officers are guilty of willful abuse of their discretionary power or of bad faith, neglect of duty, perversion of the corporate purpose, or when fraud or breach of trust are involved, that the courts will interfere.” Cron v. Tanner, 171 Kan. 57, 64, 229 P.2d 1008 (1951).
Because Gray does not contend any of the MM Cl directors had a personal interest in the outcome or that any was grossly negligent, we must determine if there was evidence to assist Gray in demonstrating that the directors were ill informed.
Our review of the record persuades us that the MMCI board took pains to carefully review all material information reasonably available to it before arriving at a decision. Gray and his attorney first presented their letter and comments regarding Gray’s position on Barlow’s audiologist at a meeting of the board. The board then elected to address Gray’s demand at a special meeting.
Prior to the special meeting, Barlow’s attorney wrote to MMCI’s attorney, advising that he believed the bylaws were ambiguous and that Barlow was allowed under the bylaws to employ anyone who could assist him in his medical specialty.
At the special meeting, Gray, his attorney, Pease, and the attorney for Barlow and Pease appeared and presented arguments regarding their respective positions. Before voting, the MMCI board also considered a written opinion by its attorney, which said Barlow and Pease did not breach the bylaws or the lease. The opinion reviewed the governing documents and concluded, among other things, that a “renter” was different from a “tenant.” Barlow’s audiologist was neither a shareholder, tenant, nor renter and none of the bylaws provisions were applicable. Moreover, according to the opinion, Barlow was entitled under the lease to employ an audiologist to assist in his ear, nose, and throat practice. Such services were routine in similar practices throughout the country.
By a vote of 5 to 1, the board found no violation of its bylaws and declined to take action upon Gray’s demand. The directors in the majority believed legal action against Barlow and Pease was neither financially prudent nor legally correct.
MMCI later received another letter from Gray’s attorney, providing more argument and threatening litigation. The board reviewed and discussed the letter with MM Cl’s attorney at its next monthly meeting and again declined to take action against Barlow and Pease. The directors believed they acted in M MCI’s best interest.
Despite this record, Gray argues that language in Schraft v. Leis, 236 Kan. 28, 686 P.2d 865 (1984), required the board to take action against Barlow and Pease. Schraft acknowledged that bylaws are the rules governing the corporation and that they prescribe the rights and duties of the members regarding the internal govern ment of the corporation, the management of its affairs, and the rights and duties existing among the members. 236 Kan. at 34-35. Gray’s argument fails to recognize that the business judgment rule gives a corporation’s directors the authority to interpret and apply the bylaws and the lease in the corporation’s best interest. The principle enunciated in Schraft is consistent with this. If the directors did not violate their duty in interpreting and applying the bylaws, they also did not run afoul of Schraft.
In this case, there was a dispute regarding the interpretation of the lease and bylaws. Gray did not come forward with evidence to support the existence of a genuine issue of material fact on whether the directors fulfilled their duly to inform themselves about all material information reasonably available or whether, after being so informed, they acted with requisite care in making their decision. It is undisputed that the board considered all of the material information available to it from both parties and, after relying upon legal counsel to assist in interpreting the parties’ arguments and the documents, acted with requisite care. The fact that they chose a course of action Gray disagrees with does not affect the applicability or reduce the protection of the business judgment rule.
The district court was correct in its conclusion. Although it relied upon its interpretation of the documents and we rely on the business judgment rule to give summary judgment to the defense on the shareholder derivative action, the outcome is the same. A district court’s reason for its decision is immaterial if the ruling is correct for any reason. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997).
Third-Party Beneficiary Theory
Under the above analysis, Gray’s third-party beneficiary argument is not moot. However, given the argument’s dependence on documentary evidence, we are able to determine the issue as a matter of law and need not remand for an initial consideration of its merits by the district court. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998) (appellate court may examine documents and determine de novo what they establish); Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997) (regardless of construction given written contract by district court, appellate court may construe contract and determine its legal effect).
Recent cases focusing on third-party beneficiary law divide “beneficiaries” into two classes: intended beneficiaries and incidental beneficiaries. Only intended beneficiaries are allowed to sue for damages resulting from the breach of a contract. Further, because parties are presumed to contract for themselves, their intent that a third person receive a direct benefit must be clearly expressed in the contract. Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 388-89, 736 P.2d 930 (1987).
In determining whether a particular person is an intended beneficiary, the court applies the general rules for construction of contracts. The whole contract is to be considered, not one isolated provision. Where the contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from the contract itself. Contract ambiguity occurs when the words in the contract expressing the intention of the parties may be understood in two or more ways. 241 Kan. at 391.
The lease between MM Cl and Barlow does not expressly state the parties’ intention to benefit a third party. Nevertheless, Gray contends that the uniformity of the various leases of MM Cl tenants meant each was intended to be protected from unwanted competition in the building. See Fasse, 241 Kan. 387 (contract provision referring to “wages” with no mention of “employees” clearly and unambiguously makes employees members of class of intended beneficiaries). We do not read the lease in that manner, however. Uniformity does not necessarily mean the tenants were to be third-party beneficiaries of each other’s leases. Parties to a contract may have known that it would benefit third parties, but that knowledge alone is not necessarily equivalent to an intention to benefit the third parties. See Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989).
Even assuming Gray’s claim that he is an intended beneficiary had merit, his theory would fail for at least one other reason. Paragraph 19 of the lease provides that MM Cl’s failure to require strict performance on any of the contract terms “shall be deemed a waiver of any rights or remedies that [MMCI] may have and shall not be deemed a waiver of any subsequent breach.” MMCI’s refusals to grant Gray’s demand were, in essence, waivers of any applicable lease restrictions. As a third-party beneficiary, Gray’s rights would be “measured by the terms of the contract between the promisor and promisee, and such rights are no greater than those of the promisee under the contract.” 17A Am. Jur. 2d, Contracts § 459, p. 481 (1991).
The district court did not err in finding for defendants on Gray’s third-party beneficiary action.
Completeness of Factual Findings
Gray also argues on appeal that the district court’s findings of fact may be incomplete because the court did not acknowledge the existence and application of the lease and bylaws. Our review of the record indicates the district court specifically referred to the paragraphs in the lease and bylaws upon which Gray relied; thus the district court implicitly found the lease and bylaws existed. In addition, if a party believes findings of fact or conclusions of law are incomplete, that belief must be made known at the district court level so that the omission has a chance of being corrected there. Without an objection, omissions in findings will not be considered on appeal, and the district court is presumed to have found all facts necessary to support its judgment. In re Care & Treatment of Hay, 263 Kan. 822, 836, 953 P.2d 666 (1998).
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Per Curiam,-.
Claimant Kathryn Wilson appeals the Workers Compensation Board’s (Board) decision finding claimant’s injuiy did not arise in the course of claimant’s employment. We affirm.
At the time of the injury, claimant was a surgical nurse at Mercy Health Center. Over time, claimant’s hearing had deteriorated due to illness and aging. Claimant’s supervisor informed claimant that her hearing troubles interfered with claimant’s work and posed a safety risk to the patients. Claimant visited an audiologist on her own time in order to be fitted for hearing aids in both ears. When the physician attempted to cast a mold of claimant’s right ear, claimant’s eardrum ruptured. Claimant suffered permanent hearing loss in her right ear as a result of the accident.
Claimant contends the injury arose out of and in the course of her employment because the supervisor’s admonishment was the impetus for getting fitted for the hearing aids. The administrative law judge and the Board disagreed and denied coverage.
Whether an injury arose out of and in the course of employment is a question of fact, and we review for substantial competent evidence. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 771, 955 P.2d 1315 (1997). In general, courts construe the Worker’s Compensation Act, K.S.A. 44-501 et seq., liberally for the purpose of bringing employers and employees within the coverage of the Act. Chapman v. Beech Aircraft Corp., 258 Kan. 653, 655, 907 P.2d 828 (1995).
The phrases “arising out of’ and “in the course of’ employment, as used in the Workers Compensation Act, have separate and distinct meanings. The phrase “arising out of’ employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. The phrase “in the course of’ employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995).
Claimant cites no case in which a claimant received compensation for an injury resulting from negligent medical treatment, when the claimant was neither injured on the job or on an employer-specific errand. Arguably claimant was required to address her hearing problem in order to maintain employment. That alone is insufficient. Claimant’s original hearing loss was not caused by working conditions or by an accident at work. Claimant was not on company business when she underwent the treatment. Brobst does not apply because in that case the claimant was attending professional training specific to her job, an activity understood as intrinsic to her profession. 24 Kan. App. 2d at 774-75. Treatment for hearing loss not attributable to work conditions is not compensable. See Dept. of Health and Rehab. Services v. Meade, 499 So. 2d 877 (Fla. Dist. App. 1986), rev. denied 508 So.2d 14 (Fla. 1987) (injury during visit to health center for blood pressure test was not compen sable, even where receiving sick leave from work was contingent on the results of the test).
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Knudson, J.:
This is a direct appeal by Charles Bourassa after jury trial convictions for the rape and kidnapping of V.R. and the kidnapping of L.R. Bourassa contends the district court erred in denying his pretrial requests for production of V.R.’s mental health records, a mental evaluation of V.R., and permission to introduce evidence of V.R.’s previous sexual history. Bourassa also contends the district court erred in its failure to instruct the jury on the crimes of criminal restraint and aggravated indecent solicitation as lesser included offenses of kidnapping.
We conclude denial of Bourassa’s pretrial motions for V.R.’s evaluation and use of her sexual history constituted an abuse of judicial discretion and denied him access to evidence fundamental to his theory of defense. We reverse Bourassa’s convictions and remand this case to the district court for retrial.
General Facts
During the late morning of March 28,1998, sisters V.R., age 11, and L.R., age 9, were in a Wichita city park located about one-half mile from their home. While it is far from clear exactly how it happened, we know from the evidence that the two children got in 63-year-old Charles Bourassa’s van and went with him on approximately a 20-mile trip, during which they stopped at local fishing lakes, a liquor store, another park by Bourassa’s home in Valley Center, and a Dairy Queen. Eventually, L.R. got out of the van and went home. V.R. stayed with Bourassa until late afternoon when he dropped her off at a Dollar Store. From there, V.R. went to a nearby self-service laundry and several hours later at approximately 8:20 p.m. called the police for help. V.R. was not aware her family had earlier notified the authorities she was a runaway. Wichita Police Officer Salcido went to the laundry and immediately recognized V.R. from a previous encounter with her. Salcido took V.R. to the Sedgwick County juvenile intake and assessment cen ter. When interviewed, V.R. indicated she had been molested, and the investigation was turned over to Detective Swanson. A subsequent sexual assault examination at a local hospital disclosed injuries consistent with trauma or force to V.R.’s vagina and anal area. Further investigation quickly identified Bourassa as the perpetrator; he was arrested and charged with rape and kidnapping. Upon conviction, Bourassa was sentenced to a total term of 341 months’ confinement.
Request For V.R.’s Mental Evaluation and Mental Health Records
Bourassa contends that the district court erred in denying his motion for a mental evaluation of V.R. and production of her mental health records.
At the hearing on this motion, Bourassa’s trial counsel explained to the district court that V.R. had been under psychological care at Prairie View in Newton, Kansas, and had accused her father of sexually molesting her. The judge was also told that V.R. had reportedly mutilated two kittens and had a tendency to soil herself. Counsel then stated:
“[T]he Court does not have the transcript of the preliminary hearing before it. One has been requested and ordered, but it has not yet been prepared by the court reporter. It was a preliminary hearing held in front of Judge Dewey that the victim of the rape, [V.R.], testified that the rape took place in the front seat of the van with her sister being in between herself and Charles Bourassa. The younger sister did not testify that she saw any sexual contact between Charles Bourassa and her older sister. Thank you.”
It is unfortunate a transcript of V.R.’s testimony at the preliminary hearing was not available at the time the motion was heard. A reading of the transcript discloses other incongruous statements made by V.R. that supported Bourassa’s requests.
In its response to Bourassa’s argument, the State without elaboration acknowledged V.R. was taking Prozac and does have behavior disorders.
District Judge Rebecca Pilshaw, in denying Bourassa’s motion, stated:
“I’m overruling the motion based on tire fact that this is a direct evidence case, that there is corroborating evidence in addition to that. This is not one of those ‘he said/she said’ type of things; it’s whether all of the witnesses will be believed by the jurors. Probably die closest you come in your argument is the — your theory, I’m going to call it, that perhaps diere have been false allegations made in the past; but by no means does the fact diat no charges were ever filed mean that diese were false allegations, especially if these are things that are just now coming to light through the course of dierapy diat the girl is currently in.
“It is obtrusive. It does diminish the confidentiality and the confidence that someone who needs — desperately needs the help of a psychologist desires, and therefore I find diat there should be compelling reasons and diat those — the reasons stated are not compelling to the degree rendering disclosure of the records or an independent psychological evaluation to be warranted.”
Mental Evaluation
The standard of review when a district court denies a motion to compel a psychiatric examination in a sex crime case is abuse of discretion. State v. Lavery, 19 Kan. App. 2d 673, 676, 877 P.2d 443, rev. denied 253 Kan. 862 (1993). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998).
In the following reported cases, the decision of the district court not to allow a psychiatric examination was upheld. There are no published cases where an appellate court has found an abuse of discretion.
In State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), the Supreme Court established the “middle ground” approach to deciding whether the district court should have ordered a psychiatric examination of the complaining witness: “[A] trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.”
In Gregg, the defendant was convicted of aggravated sodomy and aggravated indecent solicitation of a child. Defendant filed a pretrial motion requesting that the victim be given a psychiatric evaluation. The defendant based his request on factors such as the victim’s age, the seriousness of the crime, and the lack of corrob orating evidence. The Supreme Court noted that defense counsel presented no evidence of the child’s mental instability, lack of veracity, or similar charges against other men proven to be false. The court equated the motion to a fishing expedition “in the hope something damaging and admissible in the trial would be unearthed.” 226 Kan. at 490. The court concluded that no compelling reason for ordering the mental evaluation was given, and the district court did not abuse its discretion. 226 Kan. at 490.
In State v. Lavery, 19 Kan. App. 2d 673, 877 P.2d 443 (1993), the defendant was convicted of aggravated criminal sodomy. The district court denied his request for a psychiatric examination of the complaining witness. Lavery contended that the victim, K.R., had been inappropriately exposed to sex and that she was using the knowledge to falsely accuse him. He presented evidence that K.R. used foul language, was possibly molested by another man in the neighborhood, and had told a false story about killers in the school basement to two neighborhood girls. The district court also noted that there was an incident where K.R. was “playing doctor” with other children. 19 Kan. App. 2d at 676-77.
The district court concluded that there was no evidence that would tend to indicate that K.R. was using any knowledge of sexual activity gained through conduct with Forth to fabricate an allegation against Lavery. It also found that foul language or lack of supervision did not indicate any kind of mental aberration, flight of fancy, or lack of veracity. It found that the evidence presented did not reach the “compelling reason” standard. On appeal, this court affirmed the district court’s decision. 19 Kan. App. 2d at 677.
In State v. Blackmore, 15 Kan. App. 2d 539, 540, 811 P.2d 54, aff'd in part and rev'd in part 249 Kan. 668, 822 P.2d 49 (1991), the defendant was convicted of indecent liberties with a child. Blackmore requested a psychiatric examination of Jacob, the complaining witness. The district court denied the motion.
Jacob’s grandmother had taken him to a mental health center for treatment of behavior problems. His problematic behavior included hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited. On appeal, this court found that the district court did not abuse its discretion. It found that there was no evidence that Jacob had made similar charges against other men that were proven to be false. It also concluded that there was no evidence that he was mentally unstable. Finally, this court stated that although Jacob took medication for earaches and asthma, there was no showing that the medication affected his veracity or mental stability. 15 Kan. App. 2d at 542.
We believe all of the above cases are distinguishable from the case now before us. Bourassa’s lawyer did proffer evidence of V.R.’s mental instability and that she had made a recent charge of her father sexually molesting her. The motions judge was told V.R. had mutilated two kittens the previous summer and she had a tendency to soil herself. The State acknowledged V.R. was taking the drug Prozac and currently undergoing mental health counseling for behavioral disorders. Bourassa’s attorney also brought to the district court’s attention that V.R. had testified at the preliminary hearing that the rape occurred in the van, notwithstanding that her sister did not testify as to anything improper happening in the van.
The motions judge denied Bourassa’s motion for two reasons. First, according to the judge, this is not a “he said/she said” case. Second, the fact no charges were ever filed against V.R.’s father does not mean she made a false allegation against him.
We do not believe the reasons stated by the motions judge are sufficient to deny Bourassa’s motion. We return to Gregg for the sine qua non necessary to support a denial for an evaluation: “No facts were stated or evidence introduced as to the child’s mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.” 226 Kan. at 490.
Bourassa did provide facts as to V.R.’s instability, possible lack of veracity, and other reasons that supported the motion. The motion was neither a fishing expedition by the defendant nor a tactic intended to harass or intimidate V.R. We conclude Bourassa did present compelling reasons for V.R. to be evaluated, and the district court abused its discretion in denying his motion.
Mental Health Records
Bourassa also contends that the district court erred in denying his request for the production of V.R.’s mental health records generated as a result of her counseling and treatment at Prairie View.
A similar situation arose in In re J.T.M., 22 Kan. App. 2d 673, 922 P.2d 1103, rev. denied 260 Kan. 993 (1996). The defendant was adjudicated as a juvenile offender for aggravated battery. The district court denied his request for discovery of all of the victim’s medical records for purposes of cross-examination of the victim.
On appeal, this court reasoned that the alleged victim was not a party to the action and that the district court, therefore, had no jurisdiction to compel discovery other than as provided in the Code of Civil Procedure. This court said that if the defendant wanted to discover documents in the victim’s custody, he should have issued a subpoena duces tecum under K.S.A. 60-245(b). It noted that the defendant did not allege that the medical records were ever in the custody or control of the prosecution, so the district court lacked the jurisdiction to compel the State to obtain the documents from the victim. Also, there was no evidence that the defendant tried to subpoena the documents. Thus, the court found that the district court did not err. 22 Kan. App. 2d at 678-79.
Bourassa contends, under K.S.A. 22-3212, the State should have been required to produce V.R.’s mental health records. We do not agree. V.R.’s records were not shown to be in the State’s possession and were not records made in connection with this case. Further, the State argued that information in V.R.’s past psychological records would be privileged under K.S.A. 65-5602(a). As the court suggested in In re J.T.M., Bourassa’s trial attorney should have issued a subpoena duces tecum to the mental health provider to properly initiate an effort to obtain the records. Bourassa has not shown an abuse of judicial discretion by the motions judge in denying the request for production of V.R.’s mental health records.
Motion To Admit K.S.A. 21-3525 Evidence
This motion was considered before yet another district judge, Warren M. Wilbert. In a supportive affidavit, Bourassa alleged there were police reports indicating V.R. had previously accused her father of sexually assaulting her. Because V.R. had been with her father on the morning of March 28, 1998, the defendant wanted to present evidence of the prior accusations made by V.R. against her father to make credible the defendant’s theory of defense — that V.R.’s father could have molested her that morning.
In overruling the motion, Judge Wilbert stated:
“I don’t think it is relevant and material. I’ll overrule both on the merits that it’s not relevant and material and pursuant to the statute that it wasn’t filed in a timely fashion. I didn’t want to get technical just on the timing, but I think I’ll just throw it in. But I’m not going to find that it’s relevant and material given the allegations of this case and how it was brought to the attention of law enforcement.”
We note K.S.A. 21-3525 provides that a motion must be made at least 7 days before the commencement of trial unless waived by the court. Bourassa’s motion was filed and considered at least 9 days before the trial. Judge Wilbert erred in concluding Bourassa’s motion was not timely made.
The admission or exclusion of evidence under the rape shield statute is within the judicial discretion of the district court. See Lavery, 19 Kan. App. 2d at 680.
As we previously noted, Bourassa’s trial attorney filed a supporting affidavit that V.R. had “been sexually assaulted by her father prior to the allegations in the current case.” At oral argument, the motion’s judge was also informed that V.R. was with her father on the morning of March 28, 1998, before going to the park, and it was the defendant’s theoiy of defense that her father could have molested her again.
The conclusion of the motion’s judge that the testimony sought by Bourassa would not be relevant is difficult to understand. The evidence sought by Bourassa was highly relevant. The district court’s ruling substantially prevented Bourassa from pursuing his theory of defense that appears to have been based upon V.R.’s own allegations of past sexual abuse at the hands of her father and credible evidence she had been in his custody before going to the park. We conclude the motions judge abused his discretion. Upon remand, further hearing should be held to determine “what evidence may be introduced by the defendant and the nature of the questions to be permitted.” K.S.A. 21-3525(b).
Due Process Considerations
On appeal, Bourassa additionally argues the cumulative effect of the pretrial rulings prevented a rational presentation of his theory of defense — that, if V.R. was sexually molested, someone other than Bourassa was responsible. Essential to this defense was the need to show someone else had the opportunity to commit the crime and there were plausible reasons why V.R.’s testimony should not be found credible.
Fundamental due process requires that a defendant in a cri minal proceeding be allowed to present his or her theory of defense to the jury. A district court’s exclusion of evidence that is an integral part of the defendant’s theory of defense violates due process of law. State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 (1978).
Bourassa did not make this constitutional argument before the district court. Ordinarily, even a constitutional ground for reversal must first be presented to the district court if it is to be considered on appeal. State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, a recognized exception is when “questions are raised for the first time on appeal [and] consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights.” State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). Whether we should consider this issue requires us to consider the totality of circumstances and whether at the end of the day we can say with reasonable certainty Bourassa received a fair trial.
a. Trial Testimony
V.R.
V.R.’s direct testimony was similar to that given at the preliminary hearing but on cross-examination the following exchanges took place:
“Q. .. . [D]o you see die man seated next to die prosecutor in the suit, Detective Swanson?
“A. Yes.
“Q. You ever talk to him before about this case?
“A. Yeah.
“Q. Do you recall telling liim that Mr. Bourassa and you had sex on the merry-go-round?
“A. Yeali.
“Q. Was that correct?
“A. Yeah.
“Q. Tell me about that. When did that happen?
“A. In die evening.
“Q. That night?
“A. Yes.
“Q. About what time diat night?
“A. 5:00 or 6:00.
“Q. How was it that’s what happened, because you’re telling me that you went to the Dollar Store and then the Laundromat. Did he pick you up later and have sex with you again in die park?
“A. Yes.
“Q. Where did he pick you up from, this second time? Were you at your house?
"A. No.
“Q. Where were you?
“A. With my boyfriend.
“Q. Where was that address?
“A. By his house.
“Q. How old is your boyfriend?
“A. Nine.
“Q. You’re telling me that Mr. Bourassa picked you up that night in his van?
"A. Yes.
“Q. How did that happen? Did he come to the door?
“A. Yes.
“Q. He knocked on die door?
“A. Yeah.
“Q. Who answered the door?
“A. My boyfriend.
“Q. Were any parents there?
"A. Yes.
“Q. What did they say?
“A. Do not open die door, you get strangers here.
“Q. But Mr. Bourassa was at the door?
“A. Yes.
“Q. You left with him?
“A. Yes.
“Q. This would have been six o’clock that same evening. It would have been that same evening?
“A. Yes.
“Q. So, if I’m correct, then you leave the Laundromat after calling 911 at the Laundromat, you go to your boyfriend’s house?
“A. Yeah.
“Q. And Mr. Bourassa picks you up later after tire sun’s gone down?
“A. Yeah.
“Q. At that point you have sex on the merry-go-round?
“A. Yes.
“Q. How did you get back home?
“A. Walking.
“Q. So, after the two of you have sex on the merry-go-round you walk back home?
“A. Yes.
“Q. Did [sic] you also recall being in court a few months later?
“A. No.
“Q. Do you remember seeing me there, though?
“A. Yes.
“Q. Do you remember telling the Judge what happened to you?
“A. Yes.
“Q. Do you remember telling tire Judge that Mr. Bourassa and yourself had sex in the front seat of the van with your sister in the middle?
“A. Yeah.”
Detective Swanson
When interviewed, V.R. told Detective Swanson that she went to Prairie View School in Newton. Swanson testified that the school is designed for children with behavior disorder and mentally retarded children. He also talked to her about what happened during the time she was with Bourassa. When V.R. testified, she told the jury Bourassa raped her a second time when he came back and picked her up that evening at a friend’s house and they returned to the park where he had sex with her on the merry-go-round. Swanson acknowledged V.R.’s testimony that this second rape occurred was impossible.
The State’s theory was that Bourassa raped V.R. after L.R. had left. Moreover, both V.R. and L.R. were consistent in their testimony that L.R. sat in the middle of the bench seat of Bourassa’s van the entire time both girls were in the van. At preliminaxy examination, V.R. testified that Bourassa raped her in the front seat of the van while her sister was present. L.R. testified that nothing improper happened while she was present. Swanson acknowledged that this version of what had occurred given by V.R. was not consistent with what she had told him had happened.
V.R. told the nurses at the hospital that Bourassa took her into his house in Valley Center. Swanson testified when he questioned V.R. at one point she would tell him that happened, and then tell him it did not happen.
Swanson also testified that V.R. had told him about meeting some friends at a house after Bourassa had let her out at the Dollar Store. Swanson stated:
“I believe that she said she went to a young boy named Jose’s house [sic], but she didn’t know his name or where he lived. She mentioned another friend, I believe the name was Paul, didn’t know too much about him. She was very, very tired and very scattered. That’s why the [second] interview was so short.”
Forensic Evidence
A crime scene investigator went to Bourassa’s apartment and made a thorough investigation that did not reveal any crime had occurred upon the premises. The investigator did not locate or identify any trace evidence putting V.R. in the apartment.
Shannon Steger, DNA lab manager at the Sedgwick County Regional Forensic Science Center, analyzed the evidence collected from the sexual assault collection kit — swabs, blood, hair, and clothing. Additionally, DNA samples were obtained from Bourassa. There were no DNA matches, and the trace evidence did not implicate or exonerate Bourassa. However, V.R. had told investigators that Bourassa had ejaculated on her abdomen. Steger testified there was human DNA on V.R.’s abdomen that did not match either her or Bourassa’s DNA. However, the substance was not blood or semen.
Based upon the entire record before us, we believe a mechanistic legal approach of taking a snapshot of each pretrial ruling and assessing its impact under an abuse of discretion standard misses this crucial point — the pretrial orders preventing V.R.’s evaluation and the introduction of evidence of her previous allegations of sexual abuse at the hands of her father destroyed any reasonable possi bility Bourassa had to present his theory of defense. Without the benefit of this potentially critical evidence, the jury was left with the accusations of V.R., a mentally challenged 11-year-old, who had been sexually molested, and the denials of Bourassa, a 63-year-old stranger, who picked the children up in a park and took them away in a van. It is no small wonder the jury was not overly concerned with the absence of trace evidence and the unexplained DNA evidence. We conclude Bourassa has been denied fundamental rights afforded under the Due Process Clause of the Fourteenth Amendment and should be granted a new trial.
Lesser Includled Crimes
Bourassa contends that the district court should have instructed the jury regarding criminal restraint and aggravated indecent solicitation, as lesser included offenses to kidnapping and aggravated kidnapping. This contention lacks merit.
The district court has a duty to instruct the jury on lesser included offenses. The duty arises whether or not the instruction was requested. State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995). The determination is to be based on the evidence as a whole. State v. Bell, 266 Kan. 896, 915, 975 P.2d 239 (1999). The standard of review is as follows:
“ ‘[A] criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.’ ” State v. Moncla, 262 Kan. 58, 74, 936 P.2d 727 (1997), quoting State v. Harris, 259 Kan. 689, 702, 915 P.2d 758 (1996).
Criminal Restraint
The district court denied defense counsel’s request for an instruction regarding criminal restraint. Although the offense of criminal restraint may be considered a lesser included offense of kidnapping and aggravated kidnapping, it was unnecessary for the district court to give such an instruction under the facts presented in this case. See State v. Lile, 237 Kan. 210, 213, 699 P.2d 456 (1985).
In Count II, the State charged Bourassa with kidnapping by deception, in violation of K.S.A. 21-3420(b). For purposes of this case, kidnapping is defined as the “taking or confining of any person, accomplished by . . . deception, with the intent to hold such person ... to facilitate . . . the commission of any crime.” In Count I, Bourassa was charged with aggravated kidnapping by deception, in violation of K.S.A. 21-3421, which defines aggravated kidnapping as “kidnapping, as defined in K.S.A. 21-3420 and amendments thereto, when bodily harm is inflicted upon the person kidnapped.” The elements of criminal restraint are found in K.S.A. 21-3424(a): “Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person’s liberty.”
Here, Bourassa does not argue that criminal restraint was a crime necessarily proven under State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). Rather, he argues that under the facts, the juiy could have found that there was no kidnapping of L.R. and V.R., only the criminal restraint of the girls. However, the evidence shows two possible versions of what occurred. Bourassa testified he did not take the girls against their will and that he did not touch V.R.’s private parts. His theoiy of defense was that the girls voluntarily entered his van and voluntarily remained with him. He testified that he never made them do anything that they did not want to do.
The other version presented at trial was that Bourassa took the girls against their will, dropped off L.R., and raped V.R. If the jury believed Bourassa’s theory of defense, it necessarily would have believed that he did not restrain, confine, or deceive the girls. It would also have believed that he did not rape V.R. A lesser included instruction need be given only where it is “ ‘ “clearly required by the evidence,” ’ ” and “ ‘ “the jury might naturally and probably have convicted of a lesser degree or offense” ’ ” if it had been given. State v. Bell, 266 Kan. 896, 906, 975 P.2d 239 (1999), quoting State v. Mason, 208 Kan. 39, 42, 490 P.2d 418 (1971). Under the evidence presented in this case, Bourassa was either guilty of kidnapping L.R. and V.R., or he was not guilty.
Bourassa also argues that the jury should have been given the opportunity to determine the factual question of whether he had the specific intent required under the kidnapping statutes. However, there was no evidence introduced at trial to raise a factual issue about whether defendant had the capacity to form the requisite specific intent so as to require an instruction on criminal restraint. Under the facts of this case, the district court did not err in failing to instruct the jury on criminal restraint.
Aggravated Indecent Solicitation
The district court also denied defense counsel’s request for an instruction regarding aggravated indecent solicitation. Bourassa argues that the district court should have given such an instruction as a lesser included offense to kidnapping and aggravated kidnapping. The State contends that aggravated indecent solicitation is not a lesser included offense to these crimes. The State’s contention has merit.
In State v. Fike, the Supreme Court set out the two-part test for determining whether a crime is a lesser included offense of the charged crime. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. 243 Kan. at 368. Aggravated indecent solicitation is defined, in pertinent part, as “inviting, persuading or attempting to persuade a child under the age of 14 years to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.” (Emphasis added.) K.S.A. 21-3511(b). Bourassa concedes that the present case does not meet the first prong of the Fike test. Aggravated indecent solicitation contains an age element that is not present in the definitions of kidnapping and aggravated kidnapping. See K.S.A. 21-3420, 21-3421, 21-3511(b).
The second prong of the Fike test involves analyzing whether the alleged lesser crime would be necessarily proved in proving the crime charged. 243 Kan. at 368. Bourassa argues that aggravated indecent solicitation was necessarily proved in proving kidnapping. First, it must be noted that there was no evidence that Bourassa intended to commit a sexual act upon L.R.; thus, the jury would not have had a basis for convicting Bourassa of the aggravated indecent solicitation of L.R. The district court did not err in failing to give such a jury instruction with regard to L.R.
With regard to V.R., the State had to prove that Bourassa took or confined her by deception with the intent to hold V.R. to facilitate the crime of rape or aggravated indecent liberties with a child. In this case, in proving the crimes of rape or aggravated indecent liberties, the State had to prove that V.R. was under the age of 14. See K.S.A. 21-3502(a)(2); K.S.A. 21-3506.
Where a defendant is charged with kidnapping by deception, the State must prove that the taking or confinement was the result of the defendant knowingly and willfully making a false statement or representation, expressed or implied. State v. Holt, 223 Kan. 34, 41, 574 P.2d 152 (1977). Bourassa erroneously argues that aggravated indecent solicitation also requires a taking. The crime of aggravated indecent solicitation does not involve a taking or confining, but an act of solicitation — inviting, persuading, or attempting to persuade a child to enter a vehicle, building, room, or secluded place. Thus, the State’s proving a taking did not necessarily prove a solicitation. Moreover, the State’s proving deception did not necessarily prove a solicitation.
Here, the State may have shown that Bourassa gained the girls’ trust by giving them burgers and ice cream, but the kidnapping statutes did not require the State to prove an invitation, persuasion, or attempted persuasion. Bourassa has confused what the State may have actually proved in its evidence establishing that a kidnapping occurred with what the State was required to prove to establish the crime charged. The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense. See State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990). Aggravated indecent solicitation is not a lesser included offense of kidnapping or aggravated kidnapping. The district court did not err in failing to give such an instruction.
Affirmed in part, reversed in part, and remanded for new trial. | [
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KNUDSON, J.:
This is an interlocutory appeal by the State from the order of the district court suppressing evidence seized pursuant to a search warrant. We have jurisdiction under K.S.A. 22-3603.
The parties frame the issue on appeal to be whether the underlying affidavit in support of issuance of the search warrant was factually insufficient to establish probable cause. However, the district court conducted a Franks hearing to determine whether the affidavit by Rice County Sheriff Milton Gillespie contained false statements made knowingly, intentionally, or with reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). This makes our standard of review somewhat complicated. Findings from the Franks hearing are to be upheld if based upon substantial competent evidence. State v. Henry, 263 Kan. 118, 126, 947 P.2d 1020 (1997). However, if those findings are immaterial to the magistrate’s determination of probable cause or if probable cause may otherwise be said to exist without taint from the false statements identified at the Franks hearing, our standard of review is
“to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In making its determination, a reviewing court is required to pay great deference to the issuing magistrate’s finding of probable cause for the issuance of a warrant, and such after-the-fact scrutinizing should not take the form of a de novo review.” State v. Gilbert, 256 Kan. 419, Syl. ¶ 4, 886 P.2d 365 (1994).
We turn to the content of Sheriff Gillespie’s affidavit in support of the issuance of the search warrant.
On February 16,1999, Sheriff Gillespie filed an affidavit in support of a search warrant for Jeff Bowles’ residence at 312 North Logan. The affidavit set out Gillespie’s experience in law enforcement and his experience with drug dealers and drug trafficking. It stated Gillespie believed paraphernalia, records of drug transactions, currency, weapons, electronic media, photographs, and illicit and illegal drugs, among other things, were concealed at 312 North Logan. It then stated that Jeff Bowles lives at 312 North Logan and Bobby Bowles is also known to reside there from time to time.
The affidavit next provided that on January 30, 1999, the owner of a store in Lyons contacted Gillespie because Bobby Bowles and Bobby McGhee had purchased two 1-gallon solar tea bottles and asked the owner if he had any such bottles with metal tops. McGhee asked about buying sulfuric acid and plastic tubing; when told these items were not available, McGhee said he would get them at another store. Bobby Bowles then went to other stores and bought sulfuric acid and plastic tubing; this information was confirmed by the clerks who sold the material to Bobby Bowles. All of these items “are used in the manufacturing, production and sale of methamphetamine.” Also,“Bobby Bowles has been convicted of the sale of narcotics, possession of methamphetamine and has, by his own statements, been involved in the manufacture of methamphetamine.”
The affidavit then stated: On February 2,1999, Jeff Bowles purchased six cans of John Deere starting fluid, which contains 80% ether. “John Deere starting fluid is known to be a choice product in the manufacture of methamphetamine due to its high ether content.” Jeff used the alias of Bill Jones when signing for the purchase of the starting fluid.
Further information in the affidavit included the following: On February 9, 1999, at approximately 12:30 a.m., Lyons Police Officer Chris Detmer was in the vicinity of 312 North Logan and smelled an odor of ether. Detmer walked around the neighborhood and smelled a mild odor coming from 329 North Sherman; he looked in the window of the detached garage at 329 North Sherman and saw a large mason jar with rubber tubing coming from its top. Based on Detmer’s training and experience, this jar appeared to be a gas generator used in the production of methamphetamine. Detmer then walked to 312 North Logan where he smelled a very strong ether odor coming from the house. The backyards of 312 North Logan and 329 North Sherman are located catty-comer to each other. Detmer knocked on the door of 312 North Logan; Jeff answered the door and, when questioned about the odor, stated he had accidentally exploded a can of ether. Detmer requested permission to search the home, but Jeff denied the request.
The affidavit then stated that on February 9, 1999, about 1:45 a.m., Sergeant Dale Higgins of the Rice County Sheriffs Office drove by 312 North Logan and smelled a strong odor of ether. On February 16, 1999, a confidential informant (Cl) was interviewed by Gillespie and provided the following information:
“Cl has personal knowledge that Marty Sheridan has manufactured methamphetamine at least four times in the last two months; that the Cl has observed Sheridan provide and sell methamphetamines to other individuals; that the Cl has personal knowledge that Bobby Bowles and Jeff Bowles have also been involved in the manufacture of methamphetamines; that this has been done at the residence of Jeff Bowles; that similar information has also been provided to the Cl by Slieridan that Bobby Bowles and Jeff Bowles are producing metliamphetamine at the Jeff Bowles’ residence.”
The last paragraph of the affidavit requested the magistrate to issue a “ ‘no-knock’ ” warrant because the last time Bobby Bowles was arrested by Gillespie “he was in possession of no less than six guns and has made statements in the last year that he would not go back to prison alive.”
Magistrate Judge Don L. Alvord issued a search warrant for 312 North Logan on February 16, 1999. Bowles filed a motion to suppress all evidence seized by the State as a result of the search authorized by the warrant, claiming the search warrant and/or affidavit in support of the search warrant was factually insufficient for the judge to have issued a warrant to search Jeffs home. The district court conducted a Franks hearing because in numbered paragraph (19) of the motion, Bowles claimed “[tjhat the affidavit is false in alleging that Bobby Bowles resided at 312 North Logan, Lyons, Rice County, Kansas, from time to time, which misrepresentation will be proved by the testimony of Jeff Bowles and his affidavit attached.”
At the evidentiary hearing, Jeff Bowles testified Bobby Bowles never stayed the night, resided, or lived with him at 312 North Logan. Sheriff Gillespie testified he had never seen Bobby Bowles in the defendant’s house. The sheriff also stated he did not know when Bobby Bowles was seen in the defendant’s home by the people who had provided that information.
After the evidentiary hearing, the district court granted the motion to suppress based on remoteness, lack of specificity, and lack of nexus between the information in the affidavit and 312 North Logan. The court also concluded the statements within the affidavit regarding the Cl’s information about Marty Sheridan did not indicate Jeff participated in manufacturing methamphetamine and did not implicate 312 North Logan as a location where methamphetamine was being produced.
Conspicuously absent from the district court’s ruling is any finding that Sheriff Gillespie lied or made a statement within the affidavit in reckless disregard for the truth as to whether Bobby Bowles lived with his brother on occasion. In any event, whether Bobby Bowles lived with the defendant is not particularly significant in determining whether the affidavit supports probable cause. The uncontroverted facts remain that Bobby Bowles is the defendant’s brother and is at the defendant’s residence from time to time.
As to the defendant Jeff Bowles’ residence, the district court did state:
“I have four cases in front of me that have Mr. Bowles as the defendant. Each one of those has a different residence, so whether this was at this residence or somewhere else is totally up in the air. This has no connection to the address, and I mean, just the affidavit that this is used to — for two different residences, whether they are catty-comer to each other or not doesn’t make any — a bit of difference, doesn’t make this any more reliable than any argument that is — or anything that’s set forth in here. There is no probable cause for this search warrant.”
The district court’s reference to other cases ostensibly showing alternative residences for the defendant is clearly outside the record. Additionally, this representation by the district court does not contradict the information in the Gillespie affidavit that on February 9,1999, Bowles was living at 312 North Logan. We conclude the court’s statement to be insufficient as a finding of fact under the evidence presented at the Franks hearing. Consequently, the issue on appeal must be based upon whether the four comers of the affidavit support probable cause for issuance of the search warrant.
Our Supreme Court has compared probable cause supporting the issuance of a search warrant to a jigsaw puzzle where
“ ‘[b]its and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.’ [Citation omitted.]” State v. Lockett, 232 Kan. 317, 320, 654 P.2d 433 (1982).
We do not find the content of the affidavit in this appeal to be remote or stale. Most of the information in the affidavit referred to events that had occurred within 30 days of the application for a warrant. Seven days before the warrant was issued, two law enforcement officers smelled ether emanating from 312 North Lo gan, and Bowles gave a dubious explanation of the odor, together with a refusal to permit a search of his residence. Additionally, the suspected criminal activity is the maintenance of a clandestine laboratory to manufacture methamphetamine, not some limited, transitory event. It is unreasonable to conclude there was a lapse of time tending to remove indicia of probable cause under the facts and circumstances shown within the underlying affidavit. See State v. Jacques, 225 Kan. 38, Syl. ¶ 2, 587 P.2d 861 (1978). Based upon the content of the affidavit, a magistrate could reasonably conclude the items being sought would still be located on the premises of 312 North Logan.
We have set out in detail the content of the affidavit. We conclude the factual representations of the affidavit would lead a reasonably prudent person to believe a methamphetamine lab and related contraband would be found at 312 North Logan.
One of Bowles’ contentions is that his refusal to let the police officer come into his home on February 9, 1999, should not have been considered to support probable cause, citing Florida v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). The holding in Royer is distinguishable from the case before us. In Royer, the police attempted to justify a warrantless search based solely upon Royer’s refusal to consent to a search. Here, the issue is not whether the exercise of a constitutional right to refuse a request to search, standing alone, can be used to justify a warrant-less search. That fact was only one of many in the affidavit that supported a finding of probable cause. See U.S. v. Manuel, 992 F.2d 272, 274 (10th Cir. 1993) (noting that Royer held the exercise of a right to refuse consent alone cannot be the basis to formulate reasonable suspicion). We are not persuaded it was inappropriate for the magistrate to consider Bowles’ refusal to consent to a search, together with all of the other circumstances supportive of probable cause. In any event, even if we were to redact that single factual representation, the affidavit still contains overwhelming averments of fact supporting probable cause.
Finally, we do recognize a part of the information in the affidavit was based on hearsay from a Cl with no showing regarding his basis of knowledge, veracity, or reliability. However, the unadorned statements of the Cl were substantially corroborated by the other factual information known by the police. See State v. Olson, 11 Kan. App. 2d 485, 491, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986) (in. cases lacking evidence of the informant’s reliability or credibility, independent police investigation is valuable in corroborating the informant’s tip).
We hold the underlying affidavit in support of the warrant does support a finding of probable cause; the magistrate did not err in issuing the search warrant for search of the premises at 312 North Logan. The district court’s order suppressing evidence seized under the warrant is set aside, and this case is remanded for trial or further proceedings consistent with our opinion.
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Lewis, j.:
Defendant Jeffrey A. Baldwin entered a plea of guilty to one count of possession of cocaine. After he found out that his criminal history was less serious than he thought it was, he filed a motion to withdraw his plea. The trial court denied that motion. This appeal followed.
This case has a strange twist in it which, to the best of our knowledge, has not been presented before in a sentencing guidelines action. Defendant entered into plea negotiations with the State, and the State indicated that defendant’s criminal history score was “F.” If defendant’s criminal history score was F, he would have fallen into a border box. This, of course, meant that he had the possibility of going to prison. In order to avoid that possibility, he entered into a plea agreement whereby the State would recommend the mid-number in the appropriate grid box and would not oppose a border box sentence of probation.
Prior to the presentence investigation (PSI) report, defendant had told his attorney he had been charged and convicted of a drug crime in the mid-1970’s in Virginia. He could not remember whether he was convicted of two counts or more. He did, however, recall that one or more of the original charges against him was dropped prior to entering a guilty plea.
When defendant received the PSI report prior to sentencing, he found that his criminal history score was only G, which was lower than he previously believed and lower than the State previously believed. With a criminal history score of G under the sentencing guidelines, defendant was automatically entitled to presumptive probation with an underlying sentence of 14 to 16 months. Since defendant insists he pled guilty only to avoid the possibility of going to prison, and since there would have been no possibility of going to prison with his criminal history score of G, he believes he should be allowed to withdraw his guilty plea.
The trial court denied his motion to withdraw the plea of guilty and sentenced him to 24 months of probation with an underlying sentence of 15 months’ incarceration.
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 1999 Supp. 22-3210(d). The trial court’s denial of a motion to withdraw a plea of guilty will be reversed only if the trial court abused its discretion. State v. Dighera, 22 Kan. App. 2d 359, 361, 916 P.2d 68, rev. denied 260 Kan. 997 (1996).
“In determining whether a defendant should be allowed to withdraw his plea, the trial court should consider whether the defendant was represented throughout by competent counsel; whether he was misled, coerced, mistreated, or unfairly taken advantage of; and whether his plea was freely, fairly, and understandingly made.” State v. Ford, 23 Kan. App. 2d 248, 251, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997).
As we review the record in this case, it appears defendant was represented throughout by competent counsel; that he was not misled, coerced, mistreated, or unfairly taken advantage of; and that his plea was freely, fairly, and understandingly made. Accordingly, the trial court did not err in denying his motion to withdraw his plea. If anyone made a mistake in this case, it was defendant, who simply did not seem to remember what he had been convicted of in the 1970’s.
If there is a mutual mistake as to defendant’s criminal history score, the trial court is obligated to sentence defendant on his true criminal history score. State v. Haskins, 262 Kan. 728, 732, 942 P.2d 16 (1997). In Ford, 23 Kan. App. 2d at 253, we rejected an argument that a plea was not “intelligently” made because the defendant relied upon the representation of the State as to the criminal history score. It is true in this case that defendant believed his score was higher than it turned out to be, but that does not change the legal principles which we have applied time after time in these cases. We hold the trial court did not abuse its discretion in denying the motion to withdraw defendant’s plea.
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Malone, J.:
Deborah Saroff, f/k/a Deborah Haun, appeals the district court’s ruling allowing her ex-husband, Rudy Haun, to terminate his maintenance obligation on the date of Saroffs remarriage and to prorate that month’s payment accordingly. The issue is whether a maintenance obligation, which is due on the first day of the month, can or should be prorated to the date that a remarriage occurs during the month. This is an issue of first impression in Kansas.
The facts are undisputed. The Hauns were divorced on November 1, 1994. They entered into a settlement agreement that was approved by the court and incorporated by reference into the decree of divorce. Under paragraph 11 of the settlement agreement, maintenance payments were due from Haun on the first day of each month, but were terminable upon the death or remarriage of Saroff. The maintenance payment was $3,350 per month when the remarriage occurred.
Rudy Haun paid maintenance in full through March 2000. On March 17, 2000, Haun’s attorney sent to Saroff s attorney a check in the amount of $782, representing the next month’s maintenance, prorated to April 8, the anticipated date of Saroffs remarriage. Saroff remarried on April 8, 2000. On April 11, 2000, Haun’s attorney wrote to Saroff s attorney requesting approval of a consent order terminating maintenance.
On April 18, 2000, Saroff caused an order of garnishment to be issued against Haun’s bank account to collect the unpaid April maintenance. Haun filed an answer controverting the garnishment and a motion to set aside the garnishment, to which Saroff replied. On June 1, 2000, the district court issued a memorandum decision finding Haun’s obligation to pay maintenance automatically ended on April 8, 2000, and thus the maintenance for April was prorated as asserted by Haun and the garnishment was set aside. Saroff filed a timely notice of appeal.
This case involves construction of a written instrument and statutory interpretation. These are questions of law over which an ap pellate court exercises unlimited review. Elliott v. Farm Bureau Ins. Co., Inc., 26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999).
Haun asserts that the settlement agreement specifically prescribes for maintenance to terminate upon remarriage. Thus, Haun argues, Saroff consented by conduct to the termination of maintenance by virtue of her remarriage and any amounts which accrued after the date of remarriage became void and not subject to execution.
Saroff contends that she is entitled to the full amount of maintenance for the month of April. In support, she states that maintenance becomes a judgment when due and cannot be retroactively modified under K.S.A. 1999 Supp. 60-1610(b)(3). Saroff then argues that since the maintenance was due and payable on the first day of the month, the court erred when it modified that judgment based on her subsequent marriage.
Both arguments have merit.
Although there is no case law directly on point, both Haun and the trial court rely on In re Marriage of Quint, 258 Kan. 666, 907 P.2d 818 (1995), and Dodd v. Dodd, 210 Kan. 50, 499 P.2d 518 (1972). In Quint, the court found that maintenance payments automatically cease upon the payee’s remarriage when the judgment awarding maintenance so provides. 258 Kan. at 677. However, in Quint, the former wife remarried on the last day of the month, so obviously there was no issue relating to a partial payment.
In Dodd, the court granted the husband a judgment against the former wife in order to collect in restitution all of the maintenance payments made by the husband after the former wife’s remarriage, of which he was initially unaware. 210 Kan. at 56. In that case, the settlement agreement provided payments were due on or about the first of each month and the wife’s remarriage was on the 13th day of the month. The court’s opinion in Dodd is instructive and relevant in terms of what it did not award to the husband. Although not specifically addressed in the opinion, the court did not award the husband a prorated amount for the portion of the month in which his former wife remarried.
Saroff is correct that under K.S.A. 1999 Supp. 60-1610(b)(3), matters which are settled by a separation agreement and incor porated in a divorce decree, other than custody, support, or education of the minor children, are not subject to subsequent modification by the court except as prescribed by the agreement or as subsequently consented to by the parties. When maintenance payments become due and are unpaid, they become determinable as to the amount and are final judgments. Kendall v. Kendall, 218 Kan. 713, 717, 545 P.2d 346 (1976). Here, the separation agreement is silent on whether a maintenance payment, due on the first day of the month, can be prorated as to the date of Saroff s remarriage when Saroff never consented to the modification.
Furthermore, K.S.A. 1999 Supp. 60-1610(b)(2) does not expressly provide for termination of maintenance upon the payee’s remarriage unless such language is prescribed in the divorce decree. Here, the parties could have drafted specific language in the separation agreement which would have controlled the outcome of this dispute.
We recognize that certain equities favor the result reached by the district court in this case. However, the practical implications of the district court’s decision extend well beyond the facts in this case and have the potential of creating enormous uncertainty, problems, and disagreements in other cases. There is no logical basis to limit the trial court’s decision to cases of remarriage or even to cases of spousal support. Under the district court’s rationale, if Haun paid the April maintenance in full on April 1 and petitioner had died on April 2, Haun would have a claim against her estate for 2%oths of the April maintenance. Likewise, in a case where maintenance was to terminate upon the payor’s death, his estate would have a claim for refund against the obligee if he died after paying the maintenance owed on the first. The same rationale would apparently apply to child support. If a child (out of school) turns 18 on June 15, under the trial court’s rationale, the child support obligor would be entitled to a refund of one-half the June child support. Court trustees, who are charged with the obligation of collecting child support, would apparently have the additional burden of prorating monthly payments based upon contingencies not addressed in the divorce decree.
Also, who is to say that support payments should be prorated on a per diem basis? If Saroff s marriage ceremony occurred at 2 p.m., should the maintenance obligation be prorated to the hour of the ceremony?
In this case, the settlement agreement provides that maintenance payments were due on the first of the month, to terminate upon the death or remarriage of Saroff. On April 1, Saroff was neither deceased nor remarried. Thus, the payment was due and owing. Hauris full obligation for the month of April accrued prior to the terminating event of remarriage. There is no provision in the agreement referring to proration of payments if Saroff were to be remarried in the middle of the month. We hold, in the absence of a provision in the divorce decree or consent by the parties, a maintenance payment due on the first day of the month cannot be prorated to the date of the payee’s remarriage during that month. In this case, Haun is hable for the entire April maintenance payment.
Saroff requested attorney fees in district court and has requested them on appeal. Because this was a matter of first impression, the district court denied her request. Since this dispute arose from a garnishment action, Vanover v. Vanover, 26 Kan. App. 2d 186, 987 P.2d 1105, rev. denied 268 Kan. 896 (1999), is controlling. In Van-over, the court ruled that K.S.A. 60-1610(b)(4) cannot be used to award attorney fees in a garnishment action. 26 Kan. App. 2d at 191. Furthermore, appellate courts may award attorney fees for services on appeal only in cases where the trial court had authority to award attorney fees. Supreme Court Rule 7.07(b) (2000 Kan. Ct. R. Annot. 52). In any event, this appeal concerns a legitimate dispute in which both parties advanced meritorious arguments. We find no basis for awarding attorney fees.
Reversed. | [
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Rulon, C.J.:
The State of Kansas filed an interlocutory appeal arguing that the district court erred in suppressing the results of defendant Jody Daniel Wick’s blood alcohol test because the defendant was not properly advised of the law governing implied consent. We reverse and remand for further proceedings.
Factual Background
In the early morning hours of January 29,1999, Officers Swartz and Sanders were dispatched to the scene of a one-vehicle acci dent. The officers arrived at the scene moments later and noted a vehicle had struck a tree and the front end was demolished.
One of the occupants of the vehicle, Christian Muck, had been thrown from the car and was lying, unmoving, on the passenger side of the vehicle. Officer Sanders began to administer first-aid to Muck until the paramedics arrived. The defendant, who subsequently identified himself as the driver of the vehicle, was extremely agitated, pacing back and forth and talking to himself about killing his friend.
As Officer Swartz attempted to calm the defendant, she noticed the smell of alcohol. Swartz questioned the defendant whether he had been drinking. The defendant responded he had had a beer. The defendant further admitted to Swartz he had driven too fast around the comer and hit the tree.
After the arrival of the paramedics, Officer Swartz discontinued the questioning while Muck was rushed to the hospital and the defendant was examined by the paramedics. Although the paramedics did not find any injuries which required hospitalization, they recommended a doctor examine the defendant to be certain he sustained no hidden injuries. Swartz accompanied the defendant to the hospital.
After learning the defendant had not suffered any severe injuries, Swartz read the defendant an implied consent advisory and placed a form with the advisory printed on it in the defendant’s pocket. The parties dispute which version of the implied consent advisory was actually read to the defendant. Eventually, the defendant consented to a blood test. The results from that test ultimately showed the defendant possessed a blood alcohol concentration of .10.
When Muck died from his injuries sustained in the accident, the State charged the defendant with involuntary manslaughter while operating a vehicle with a blood alcohol concentration exceeding .08, in violation of K.S.A. 1998 Supp. 21-3442.
After a preliminary hearing, the defendant moved to suppress the results of his blood test on the grounds he was not read the implied consent advisory applicable to persons under the age of 21.
The prosecution recalled Officer Swartz. After listening to the testimony, the district court was unconvinced the officer had read the defendant the implied consent advisory applicable to persons under 21 years of age and granted the defendant’s motion to suppress the results of the blood test. The prosecution filed this interlocutory appeal.
The Suppression
The State argues the district court erred in suppressing the results of the blood test on two bases. First, the State contends the district court held the prosecution to a higher burden of proof than demanded by law and the district court erroneously held the officer had failed to read the implied consent advisory applicable to minors.
In the alternative, the State argues that even if the district court properly found the consent form for minors was not read, the court erred as a matter of law because the officer read the general implied consent advisory and the results of the blood test indicated a blood alcohol level exceeding .10.
Our review of the suppression of evidence involves a mixed question of fact and law. The district court’s determination of the facts underlying the suppression question are entitled to deference, and the record on appeal is reviewed solely for substantial competent evidence to support the district court’s findings. The suppression question, however, is a question of law subject to unlimited review. See State v. DeMarco, 263 Kan. 727, Syl. ¶ 1, 952 P.2d 1276 (1998); State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).
Initially, the State contends the district court imposed an improper standard of proof by requiring the prosecution to prove by “clear and convincing evidence” that the proper implied consent advisory was issued.
Our search revealed no case in any jurisdiction which has specifically established the prosecution’s burden of proof when a defendant challenges the procedure applied in obtaining a breath or blood alcohol test. However, cases dealing with challenges to procedures involving constitutional protections have generally been held to a preponderance of the evidence standard. See Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972) (ruling that the Constitution mandates only that the government prove the voluntariness of a confession to a preponderance of the evidence); State v. McClain, 258 Kan. 176, 181-82, 899 P.2d 993 (1995) (discussing State v. Garcia, 250 Kan. 310, 315-17, 827 P.2d 727 [1992], and applying a preponderance of the evidence standard to the State’s proof that a stop of a defendant’s vehicle was valid); State v. Ruden, 245 Kan. 95, 105-06, 774 P.2d 972 (1989) (holding that the State’s burden to prove a consent to search was by a preponderance of the evidence).
We conclude that a higher burden of proof is not required of the government in establishing the defendant was read the applicable implied consent advisory.
In suppressing the evidence, the district court specifically held that due to the lack of documentation and the conflicting testimony, the evidence did not indicate which form was read to the defendant. If the record as a whole supports such a finding, the State would have failed to establish its burden of proof by a preponderance of the evidence, and this court may properly affirm the district court’s conclusion. See State v. Corrigan, 10 Kan. App. 2d 55, 59-60, 691 P.2d 1311 (1984), rev. denied 237 Kan. 888 (1985).
Our review of this record shows the testimony regarding the implied consent advisory during the prefiminaiy hearing was vague. At times, the arresting officer testified she read the implied consent advisory from the DC-27 form, which contained only the general implied consent advisory. Contrarily, the officer testified she never carried DC-27 forms with her on patrol and she read the implied consent advisory from a smaller sheet of paper with all the implied consent advisory notices printed on it, which is then given to the person under suspicion of DUI. The officer testified the actual DC-27 or DC-28 would be completed at the station later, and either given or mailed to the defendant after a test conclusively showed that the defendant’s blood alcohol concentration exceeded .08.
During the hearing on the motion to suppress the test results, Swartz testified she had, in fact, read the implied consent advisory from the DC-70, which is a half sheet of paper upon which the general implied consent advisory is printed on one side and the advisory applicable to drivers under the age of 21 printed on the reverse. The officer insisted she read the defendant the 1999 version of the DC-70. However, the officer conversely admitted the 1999 version of the DC-70 did not take effect until July 1, 1999, and that she would have read the defendant the 1997 version.
Based upon the confusing state of the record, we conclude the district court’s finding that the prosecution failed to carry its burden of proof is supported by substantial evidence, even if a preponderance of the evidence standard is applied to the record.
Alternatively, the State argues the defendant’s blood test results were admissible under K.S.A. 1998 Supp. 8-1001, despite the officer’s failure to read the implied consent advisory applicable to drivers under the age of 21 as provided by K.S.A. 1998 Supp. 8-1567a. This issue involves a question of statutory interpretation, over which this court has unlimited review. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
K.S.A. 1998 Supp. 8-1567a provides, in pertinent part:
“(b) Whenever a law enforcement officer determines that a breath or blood alcohol test is to be required of a person less than 21 years of age pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, in addition to any other notices required by law, the law enforcement officer shall provide written and oral notice that: (1) It is unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater; and (2) if the person is less than 21 years of age at the time of the test request and submits to and completes the test or tests and the test results show an alcohol concentration of .02 or greater, the person’s driving privileges will be suspended for at least 30 days upon the first occurrence and for at least 90 days upon a second or subsequent occurrence.” (Emphasis added.)
It is a fundamental rule of statutory construction that when the language of a statute is clear and unambiguous, the legislative intent as expressed in the language governs the meaning to be extended to the statute. See In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Because the statute states that the law enforcement officer “shall provide written and oral notice” that it is unlawful for drivers under 21 years of age to operate a vehicle with a breath or blood alcohol concentration of .02 or greater, the notice provision is mandatory. Following the reasoning of State v. Luft, 248 Kan. 911, 912-13, 811 P.2d 873 (1991), an officer s failure to give an arrestee proper notice mandates exclusion of any subsequent test results.
Here, the officer informed the defendant of the general implied consent advisoiy applicable to any person who operates a vehicle, but failed to inform the defendant of the implied consent advisory applicable to persons under 21. As a result, K.S.A. 1998 Supp. 8-1567a requires exclusion of the test results if the statute was intended to apply to the factual circumstances before us.
The State argues the notice requirements of K.S.A. 1998 Supp. 8-1567a do not apply to this factual situation because the statute provides only for administrative penalties. As such, the State claims the notice provisions do not apply to defendant’s criminal prosecution for involuntary manslaughter while under the influence of alcohol.
K.S.A. 1998 Supp. 8-1567a states: “It shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater.” The statute’s placement within the traffic code raises a reasonable argument that criminal penalties are to apply to a violation of the conduct prohibited therein. The statute was placed in the general proximity of K.S.A. 1998 Supp. 8-1567 which clearly establishes criminal penalties for driving under the influence of alcohol, rather than with the civil penalties found in K.S.A. 1998 Supp. 8-1002.
In contrast, while the language of K.S.A. 1998 Supp. 8-l567a indicates criminal prohibition of the conduct specified therein, the penalties provided by the statute do not constitute criminal penalties but merely civil restrictions on driving privileges, evidencing the legislature’s intent to provide only administrative penalties for violation of the statute. See State v. Mertz, 258 Kan. 745, 758-61, 907 P.2d 847 (1995) (holding that suspension of a driver’s license for driving under the influence of alcohol is a civil remedy designed to protect the public, not a criminal penalty designed to punish the driver).
By promulgating a statutory provision to govern minor drivers who have consumed alcohol, we conclude, the legislature intended to maintain existing provisions and sanctions. The statute explicitly states this intent: “Except where there is a conflict between this section and K.S.A. 8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A. 8-1001 and 8-1002 and amendments thereto, shall be applicable to proceedings under this section.” K.S.A. 1998 Supp. 8-1567a (g).
Logic dictates that K.S.A. 1998 Supp. 8-1567a was designed to cover conduct not previously covered in K.S.A. 1998 Supp. 8-1002 and K.S.A. 1998 Supp. 8-1567. The statute discusses only the penalties to be applied to persons under 21 years of age for breath or blood alcohol concentrations between .02 and .08, not the penalty to apply to persons whose breath or blood alcohol concentration exceeds .08. See K.S.A. 1998 Supp. 8-1567a (d), (e), (f), and (h).
A violation of K.S.A. 1998 Supp. 8-1567a constitutes a separate and distinct offense from the conduct proscribed by K.S.A. 1998 Supp. 8-1002 and K.S.A. 1998 Supp. 8-1567. Because the proscribed breath or blood alcohol levels within the statutes differ, a person under age 21 is subject to prosecution under K.S.A. 1998 Supp. 8-1567a only when his or her breath or blood alcohol concentration falls between .02 and .08. Otherwise, the penalties provided in K.S.A. 1998 Supp. 8-1002 or K.S.A. 1998 Supp. 8-1567 apply.
Because defendant’s blood alcohol concentration exceeded .08, the penalties of K.S.A. 1998 Supp. 8-1002 and K.S.A. 1998 Supp. 8-1567were applicable. Defendant was informed of the implied consent advisory applicable to a breath or blood alcohol concentration of .08 or greater. Although the officer erred in failing to inform defendant of the implied consent advisory applicable to persons under 21 years of age, defendant was not prejudiced by the omission.
Had the test results demonstrated a blood alcohol concentration between .02 and .08, Luft would demand suppression of the test results. 248 Kan. at 913. Here, the officer notified defendant of the consequences applicable to a driver who tests above the .08 limit on blood or breath alcohol concentration.
The notice provisions provided by K.S.A. 1998 Supp. 8-1567a apply only to situations in which the breath or blood alcohol con centration of a driver under the age of 21 is found to exceed .02 but under the legal intoxication limit of .08. Although law enforcement officers would be well advised to inform persons under the age of 21 of the statutorily imposed implied consent advisory as promulgated by K.S.A. 1998 Supp. 8-1567a, a defendant who is informed only of the implied consent advisory required by K.S.A. 1998 Supp. 8-1001 is not prejudiced when a breath or blood alcohol test reveals a concentration exceeding the legal limit of .08.
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Beier, J.:
Defendant-appellant Jonathan B. Phelps seeks review of his conviction after retrial on one count of disorderly conduct. He poses four questions: (1) Did the district court give an erro neous instruction on disorderly conduct? (2) Did the district court err by denying defendant’s post-trial motion to arrest judgment? (3) Did the district court err by denying defendant’s post-trial motion for reconsideration based on selective or bad faith prosecution? and (4) Did the district court err by ordering defendant to pay travel expenses and in its calculation of those expenses?
The pertinent facts are these: Teresa Roles was a passenger in a car driven by her sister. Roles observed Phelps and his family crossing a Topeka street, carrying signs. Roles rolled down her window and told defendant that “hate was not a family value.” Defendant then approached the car and screamed, “Dyke,” in what Roles described as the loudest voice she had ever heard. Roles got out of the car while defendant walked away from her across a driveway. She said, “Excuse me?” and defendant screamed at her, calling her a whore, a lesbian, a sodomite, and a dyke repeatedly for a couple of minutes until Roles got back into the car.
Phelps agreed that he yelled at Roles in a “rapid fire” manner and may have used some of the words she described. He further testified that the driver got out of the car and walked to Roles, and the driver appeared to be addressing Phelps’ wife. Although he probably told the driver that she was blocking traffic, he testified that his yelling and gesturing were directed at Roles.
Defendant was charged with disorderly conduct, and the complaint read in pertinent part:
“COUNT 01
“DISORDERLY CONDUCT
“K.S.A. 21-4101; Class C Person Misdemeanor
“On or about the 3rd day of August, 1995, in the State of Kansas and County of Shawnee, Jonathan B. Phelps, did, then and there, unlawfully, and with knowledge or probable cause to believe that such acts will alarm, anger or disturb others, did use offensive, obscene or abusive language tending reasonably to arouse alarm, anger or resentment in others, to-wit: Teresa Roles, and others, such case made and provided and against the peace and dignity of the State of Kansas.”
He filed a pretrial motion to dismiss, motion for discharge, motion to disqualify prosecutor, and/or for other appropriate relief, which was heard and denied by the district court.
After a first jury trial, Phelps was convicted of one count of disorderly conduct. As a condition of his probation, the district court ordered him to pay $1,098.22 for Roles’ travel costs from the state of Washington to Topeka, Kansas. In arriving at that amount under K.S.A. 22-4203, the court multiplied 29 per mile times a total of 3,718 miles, the roundtrip distance point-to-point, which totaled $1,078.22. Roles’ actually had spent only $460.00 on airfare and $56.00 on a shuttle to and from the airport. The award thus exceeded her actual travel expenses by $582.22; the court indicated that difference included $20 for 2 days of witness attendance.
On appeal after this first trial, Phelps raised several issues, including the method of calculating Role’s travel expenses. This court reversed on only one issue, however, ruling that retrial was necessary because the district court did not tell the juiy the existence of “fighting words” must be determined by an objective test. State v. Phelps, Case No. 77,292, unpublished opinion filed April 10, 1998.
At defendant’s second trial, the district court gave the following jury instruction regarding disorderly conduct over defendant’s objection:
“The defendant is charged with the crime of disorderly conduct. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“One, that the defendant used offensive, obscene or abusive language of such a nature that it would tend to provoke a reasonable person to an immediate assault or other breach of the peace.
“Two, that the defendant acted with knowledge of reasonable cause to believe that the defendant’s words would tend to cause such an immediate assault or other breach of peace.
“An assault is an intentional placing of another person in reasonable apprehension of immediate bodily harm.”
Defendant was convicted again. He filed a post-trial motion to arrest judgment as well as a motion for reconsideration of the motion to dismiss he had filed to challenge what he saw as selective prosecution before his first trial. The district court denied the motions, finding:
“K.S.A. 22-3208(3) requires that all defenses and pbjections based on defects in the institution of the prosecution of the complaint/information, except jurisdiction, must be raised by motion before trial and failure to raise these issues constitutes a waiver. [Citation omitted.] It appears from liberal interpretation of [the] motion and brief that this ‘newly discovered evidence’ was known to [Phelps] after the first trial and before the second trial, which would require him to raise this issue before the second trial or his failure would constitute a statutory waiver of these issues. [Phelps] failed to raise these issues before the second trial and his failure constitutes a statutory waiver of all existing defenses and objections raised by his renewed motion.”
Defendant was sentenced to 12 months’ probation, and the district court ordered defendant to pay $2,496.60 in restitution as a condition of probation. The record is not clear on how this new amount was calculated.
Disorderly Conduct Instruction
Defendant argues for the first time on appeal that the district court erred in its disorderly conduct jury instruction by failing to include a requirement that Phelps’ words be “directed to” Roles. This was not the basis of the defense objection at trial.
“[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).
Phelps correctly states in the abstract that conviction on a charge of disorderly conduct requires the defendant to have uttered “fighting words” and a necessary element of “fighting words” is that the words be directed to a specific person or group. Texas v. Johnson, 491 U.S. 397, 409, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (direct personal insult needed).
In this case, however, the district court’s failure to include the requirement that Phelps’ words be directed at Roles was not clearly erroneous. Even defendant admitted that he directed his offensive “rapid fire” comments at Roles. And in closing argument, defense counsel talked to the jury solely about the statements made to Roles and whether those words would provoke Roles to fight with defendant. No real possibility exists that the jury would have returned a different verdict if the “directed to” language had been included in the instruction.
Defendant also argues that the disorderly conduct instruction was insufficient because it included the term “assault” without a proper definition. This specific objection was made at trial; thus Phelps need not meet the “clearly erroneous” standard of review. Nevertheless,
“we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute, reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
Defendant asserts that “assault” should have been defined to mean “[w]ords that are inherently likely to provoke a reasonable person to retaliate immediately against the speaker with personal physical violence.” He cites no authority for this language other than his own belief that the court’s version was convoluted and the observation that the definition of criminal assault has changed over the years.
Kansas’ disorderly conduct statute, K.S.A. 21-4101(c), which took its current form after the only legal authority cited by Phelps was written, provides:
“Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace-.
“(c) Using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.” (Emphasis added.)
The companion PIK instruction also uses the term “assault.” PIK Crim. 3d 63.01. Our Supreme Court has upheld the constitutionality of K.S.A. 21-4101(c) when construed to regulate only “fighting words” such as those alleged here. State v. Huffman, 228 Kan. 186, 192, 612 P.2d 630 (1980). Phelps has supplied us with nothing that persuades us otherwise.
Phelps’ final attack on the disorderly conduct instruction takes issue with the district court’s failure to define “breach of the peace.” This issue was preserved for our review.
In the landmark case discussing “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766 (1942), the United States Supreme Court defined “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Emphasis added.) The Kansas courts have repeatedly used the Chaplinsky definition in cases involving “fighting words.” See Huffman, 228 Kan. at 190; City of Wichita v. Edwards, 23 Kan. App. 2d 962, 965, 939 P.2d 942 (1997); State v. Beck, 9 Kan. App. 2d 459, 461, 682 P.2d 137, rev. denied 235 Kan. 1042 (1984).
We do not agree with Phelps that the phrase “breach of the peace” was unintelligible to the jury without further explanation. A district judge need not define words or phrases that are used in a manner commonly understood. See State v. Roberts-Reid, 238 Kan. 788, 789-90, 714 P.2d 971 (1986) (no definition of “material” needed); State v. Royal, 234 Kan. 218, 223, 670 P.2d 1337 (1983) (definition of “bodily harm” not required); State v. Brown, 6 Kan. App. 2d 556, 560-61, 630 P.2d 731 (1981) (“theft” need not be defined; generally sufficient to give statutory definition of crime; not necessary to define every word or phrase).
"It is only when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined. A term which is widely used and which is readily comprehensible need not have a defining instruction. A word or phrase which persons of common intelligence and understanding can comprehend is not one which requires definition.” 6 Kan. App. 2d at 561.
In our view, particularly given the widespread use of the phrase “breach of the peace” from at least the time of Chaplinsky forward, no further definition was required in this case to ensure the reach of the disorderly conduct statute was limited to “fighting words.”
Motion to Arrest Judgment
As Phelps properly renewed his motion to arrest judgment after the second trial, our standard of review is as follows:
“ ‘In Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.’ ” State v. Crockett, 26 Kan. App. 2d 202, 205, 987 P.2d 1101 (1999) (quoting State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 [1992]).
“The sufficiency of the charging document is measured by whether it contains die elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of die statute or charges the offense in equivalent words or words of the same import.” State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 (1999).
The district court denied defendant’s post-trial motion to arrest judgment, holding:
“Defendant claims die complaint was defective because it failed to include a necessary element of the offense. State v. Huffman, 228 Kan. [186] (1980), clearly provides that judicial officers have a duty to uphold the legislative work-product if there is any reasonable way to construe the statute as constitutionally valid. [Citations omitted.] Once authoritatively construed, the statute will diereafter be immune from attack on grounds of overbreadth. [Citations omitted.] The case law has been codified, K.S.A. 22-3201 controls, a complaint in the language of the statute is sufficient and this complaint is sufficient.”
Defendant argues that, because the Huffman decision construed subsection (c) of the disorderly conduct statute to apply only to “fighting words,” certain words must be stricken from any complaint drawn in the language of the statute.
While Phelps is correct that Huffman narrowly construed K.S.A. 21-4101(c) to apply only to “fighting words,” it did not strike the words “alarm, anger or disturb others” or “using offensive, obscene, or abusive language” from the language of the statute when used to draw a complaint as defendant suggests. The court specifically considered the first of those collections of words included when it stated: “Persons of common intelligence need not guess at the meaning of the words ‘alarm, anger or disturb,’ when used in conjunction with fighting words.” Huffman 228 Kan. at 193. Phelps was not unfairly surprised by the details of the State’s allegations against him; nor was his ability to prepare a defense hampered in any way. The district court did not err in finding the complaint sufficient.
Motion for Reconsideration
A defendant alleging discriminatory prosecution must show: “ T) Others who are similarly situated are not generally prosecuted for conduct similar to that for which defendant is being prosecuted, and 2) the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion.’ ” State v. Marino, 23 Kan. App. 2d 106, 108, 929 P.2d 173 (1996) (quoting State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 1, 646 P.2d 1091 [1982]).
On this issue, Phelps makes only allegations that evidence and witnesses damaging to the district attorney who were previously unavailable are now available and that state law on the subject of selective prosecution had become clearer. Defendant’s brief does not expand on his bases, and he cites no authority to support his arguments. An issue which is not briefed is deemed abandoned. State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
We also observe that the record contains no evidence that is truly “new.” Thus, even if we were to reach the merits on this issue, defendant could not meet his burden of proving that the “evidence” he relied upon was “new” and could not have been produced at his second trial with the exercise of reasonable diligence.
Travel Expenses
Defendant argues that the district court erred by ordering him to pay Roles’ travel expenses for both trials as a condition of probation and that it miscalculated the expenses under K.S.A. 22-4203 and K.S.A. 75-3203(a).
“A sentencing court has substantial discretion in determining the conditions of probation. The sentencing court also has substantial discretion when ordering the amount of restitution. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court.” State v. Hymer, 27 Kan. App. 2d 1054, 1056-57, 11 P.3d 94 (2000.)
Phelps has failed to ensure that the appellate record contains adequate information to tell us exactly what the final amount of $2,496.60 includes. Assuming that it includes expenses from the first trial, we agree that the district court had erred in its initial method of calculation.
“ ‘It is well settled in [Kansas] that upon conviction in a criminal action the defendant is hable for the costs made in both the prosecution and defense of the case.’ State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344, cert. denied 382 U.S. 881 (1965).” State v. Rother, 23 Kan. App. 2d 443, 931 P.2d 1268, rev. denied 261 Kan. 1088 (1997); see K.S.A. 22-3801.
K.S.A. 22-4203 provides that, if an out-of-state individual is summoned to appear and testily in a prosecution, the witness shall receive the mileage rate under K.S.A. 75-3203a “for each mile by the ordinary traveled route to and from the court where the prosecution is pending” and witness fees under K.S.A. 28-125 for each day he or she is required to travel and appear as a witness. K.S.A. 28-125 provides that a witness shall receive $10 per day for attending any proceeding before a court and mileage at the rate prescribed by law for each mile necessarily and actually traveled in going to and returning from the place of attendance. K.S.A. 75-3203a states the mileage rate for witnesses shall be the applicable amount that is fixed by the rules and regulations of the Secretary of Administration.
K.A.R. 1-18-la (1996 Supp.), which implements K.S.A. 75-3203a, provides in relevant part that an individual is entitled to mileage reimbursement for the use of a privately owned automobile or the use of a privately owned airplane. The regulation, however, further provides that “[w]hen a mode of transportation is available and is less costly than transportation by privately owned conveyance, mileage payments for use of a privately owned conveyance shall be limited to the cost of that other mode of transportation.” K.A.R. l-18-la(d)(l) (1996 Supp.).
The clear policy behind allowing witness fees and mileage is to reimburse witnesses for their time and travel while in service to the court system. Here Roles traveled round trip by air from Washington to Topeka to testify in at least one trial. These modes of travel were less costly than the amount of mileage reimbursement she would have otherwise received. Upholding the command that Phelps pay the amount of the difference would, in essence, allow the State to impose an unauthorized additional monetary penalty on Phelps.
Accordingly, we reverse and remand to the district court for a determination of Roles’ correct travel expenses in light of K.A.R. 1-18-la (1996 Supp.) for the first trial and, to the extent necessary, K.A.R. 1-18-la (1999 Supp.) for the second trial.
We do not consider or rule upon Phelps’ additional argument that the reversal after his first trial cuts off the district court’s discretion to demand payment of expenses from that proceeding. Phelps failed to address that argument to the district court in the first instance.
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Rulon, C.J.:
T.A.T., the birth mother of Baby Girl T, appeals from the district court’s denial of her motion to revoke her consent to the adoption of Baby Girl T. We affirm.
The material facts are as follows:
The birth mother has lived with her mother, M.W., her stepfather, J.W., her full sister, and her two half-sisters since she was 4 years old. The birth mother’s relationship with her stepfather had been continually strained. Although J.W. adopted the birth mother’s full sister shortly after J.W. married M.W., the birth mother refused to consent to being adopted by J.W.
The situation worsened in 1994 when J.W.’s eldest daughter engaged in writing bad checks, which placed a financial hardship on the family as J.W. attempted to assist his daughter in paying her debts. As a result, tension threatened to disrupt the relationship between J.W. and M.W. M.W. threatened to divorce J.W. unless he quit assisting his eldest daughter. J.W. ultimately complied but estranged his daughter in the process.
J.W. blamed M.W. for the schism in his relationship with his daughter and his parents. J.W. warned the birth mother not to make the same mistake his daughter had made. M.W. pushed the birth mother to excel in school and to avoid behavior that J.W. could use to justify expelling her from the home. The birth mother excelled in school, earning a grade point average exceeding 3.8 and held various class offices.
However, despite M.W.’s attempts to control the birth mother’s behavior, the birth mother became sexually active. When M.W. discovered the birth mother was engaging in sexual activity, M.W. took her to Statcare for a shot of Depo Provera, a contraceptive. Yet, in spite of the precautions, the birth mother discovered she had become pregnant in May 1999.
Initially, the birth mother attempted to hide the pregnancy, fearing the reaction of M.W. and J.W., her classmates, and her teachers. She shared the knowledge of her pregnancy only with a close friend.
Eventually, M.W. noticed the birth mother had gained weight and asked her if she was pregnant. When the birth mother confessed she was 8Vz months along in her pregnancy, M.W. began calling adoption agencies without consulting the birth mother. M.W. also scheduled an appointment with a local doctor. Throughout M.W.’s intervention upon learning of the pregnancy, the birth mother did not object to her mother’s suggestion to enter an adoption plan for the baby.
By the time the birth mother attended an appointment with a gynecologist, Dr. M.B., she represented a decided intent to place the child for adoption. K.R., the administrative assistant to Dr. M.B., presented die birth mother with the portfolios of Mr. and Mrs. A who were interested in adopting. K.R. offered to call Mrs. A so that the birth mother could ask some prehminary questions. As a result of the telephone conversation, the birth mother agreed to meet Mrs. A. as a prospective adoptive parent for her baby.
The birth mother visited with Dr. M.B. and then joined K.R. and Mrs. A. at a local restaurant. Mrs. A. explained her previous adoption experience with the birth mother, describing the open adoption process and visitation of the birth family on special occasions. At trial, the testimony regarding the extent of the visitation discussed that evening was conflicting.
The birth mother felt comfortable with Mrs. A. and invited her to view the sonogram scheduled for the following day. She also made arrangements to meet with Mrs. A. and Mrs. A.’s attorney following the sonogram.
At the meeting Mrs. A.’s attorney, J.B.A., informed the birth mother that she had handled Mrs. A.’s previous adoption and that Kansas law does not prohibit an attorney from representing both the adoptive parents and the birth mother in an adoption. J.B.A. further explained that, should a conflict arise between the birth mother and the adoptive parents, J.B.A., as the attorney for both parties, must withdraw from representation of either side.
Additionally, J.B.A. told the birth mother how she had become interested in working on adoptions, discussed some of the legal requirements for adoption, and emphasized the need to obtain the consent of the birth father, if he was known. The birth mother, fearing the birth father’s mother would demand rights to the child, told J.B.A. and Mrs. A that she did not know the identity of the baby’s father. Again, the testimony concerning what was discussed about visitation after the adoption is disputed.
Eventually, the birth mother informed Mrs. A. and J.B.A. that she knew the identity of the birth father and was able to contact him. M.W. also revealed that she knew the identity of the birth father but explained her hesitancy with allowing the paternal grandmother visitation with the child. Mrs. A. reassured M.W. that any visitation would be supervised.
J.B.A. scheduled a meeting between the adoptive parents and the birth parents at a local restaurant. The birth mother, her current boyfriend, M.W., E.P. (the birth father), J.B.A., and Mr. and Mrs. A. attended. The birth mother brought several documents with her that J.B.A. had previously mailed to her.
Starting with E.P.’s documents, J.B.A. reviewed each document with the birth mother and E.P. before requesting that E.P. sign a pre-birth consent to adopt. After E.P. had signed and left the restaurant, J.B.A. explained that the birth mother’s documents were similar to those just reviewed with E.P., except that pre-birth consent was not binding and that she retained the right to withdraw her consent at any time until she had signed the final consent following the birth of the child. J.B.A. provided the birth mother with an opportunity to ask questions about the documents. When the birth mother asked about the consequences of signing the prebirth consent and then withdrawing her consent to adopt, J.B.A. explained that the birth mother would be responsible for the costs of the birth.
On December 27, 1999, the birth mother kept an appointment with Dr. M.B., who authorized the inducement of labor. She im mediately checked into the hospital under an assumed name. The birth mother was accompanied to the hospital by M.W., Mrs. A., and L.B., a close friend.
While waiting for labor to begin, the birth mother talked with Mrs. A. about the baby, although the interpretations placed on the conversation by the birth mother and Mrs. A. diverged greatly.
At 5:15 a.m. on December 28, 1999, the birth mother delivered a healthy baby girl. Mrs. A. and L.B. were present for the delivery.
The birth mother remained animated and alert after giving birth, not needing heavy medication, and her conversation remained lucid as she expressed a continued desire to proceed with the adoption. J.B.A. called shortly after the birth to confirm the arrival of the baby and, subsequently, called the birth mother to request a meeting at the hospital to sign the final consent forms at 5:30 p.m. that evening. The birth mother agreed.
At no time, during or after the birthing process, did the birth mother express a reluctance to carry through with the adoption. Even when Dan Gard, the hospital social worker, came to inquire about her decision regarding the placement of her child for adoption, the birth mother confirmed her desire to proceed with the adoption.
At 5:30 p.m., the birth mother, M.W., Mr. and Mrs. A., E.P., J.B.A., and Dan Gard met in a hospital lounge so the birth mother could sign the final consent to adopt. After signing the papers, she asked to go home. After a short delay in which the birth mother was examined prior to release, M.W. drove her home.
The next morning the birth mother called the hospital wanting to speak to Mrs. A. but upon discovering that Mrs. A. was unavailable, simply told a nurse that she was having second thoughts about placing the child for adoption. When M.W. awoke, she noticed the telephone directory open to the hospital’s number, so she confronted the birth mother who then expressed her desire to revoke her consent to adopt. M.W. called an attorney who advised M.W. that the only method of regaining the child after the consent to adopt was final was to ask the adoptive family to return the child.
The birth mother returned to the hospital with the purported intent of asking M.W. to seek return of the child. The birth mother, afraid of angering Mrs. A., requested her mother to ask for the child. Mrs. A. refused to return the child.
The birth mother then asked her mother to make an appointment with an attorney to determine whether she could lawfully revoke her consent to adopt. Later, the birth mother canceled the appointment when she was able to visit the child at Mr. and Mrs. A.’s home. Between December 31, 1999, and January 22, 2000, the birth mother visited Mr. and Mrs. A.’s home nine times. She admitted that neither Mr. nor Mrs. A. ever denied her a requested visit.
However, during the visit on January 22, Mrs. A. informed the birth mother that she should consider reducing the frequency of her visits because Mr. A. was not comfortable. The birth mother then realized that her concept of “open” adoption was dissimilar to that held by Mr. and Mrs. A.
The birth mother filed the present motion for revocation of consent to adopt on January 26, 2000. After 3 days of trial, the district court considered the evidence and the parties’ trial briefs before determining that revocation was not proper under the factual circumstances presented. The court denied the motion.
Revocation of Consent
In her motion to revoke her consent, the birth mother argued her consent was not freely and voluntarily given. Nevertheless, the district court specifically held that the birth mother deliberately established an adoption plan to accomplish several goals and that only after signing an informed and voluntary consent to adopt did she begin to second-guess her choice.
An appellate court’s role in reviewing a motion to revoke a consent to adopt is to determine whether the district court’s findings of fact and conclusions of law are supported by substantial competent evidence. Substantial evidence possesses both relevance and substance, furnishing an adequate basis of fact from which the legal conclusions may be drawn. See In re J.A.B., 26 Kan. App. 2d 959, 961, 997 P.2d 98 (2000).
Here, the birth mother attempts to dissect the voluntariness arguments by distinguishing the conduct of the adoptive parents and her coercive home environment from the conduct of attorney J.B.A. as a basis for revoking her consent. However, the birth mother concedes, whether J.B.A. adequately explained the legal effect of the adoption is not a separate basis for revoking a consent to adopt but merely a factor the district court must consider in determining whether the consent was entered into voluntarily and knowingly. See In re Adoption of N.A.P., 23 Kan. App. 2d 257, 266, 930 P.2d 609 (1996), rev. denied 261 Kan. 1085 (1997).
The birth mother’s argument that her consent was obtained as a consequence of coercion and fraud relies upon three factual allegations: (1) that the birth mother’s consent was premised upon an agreement that she could visit at any time; (2) that J.B.A. failed to adequately explain the legal implications of the pre-birth and post-birth consent forms; and (3) that the birth mother’s home and school environments placed undue pressure upon her to adopt rather than keeping the child.
The district court, in its findings of fact regarding visitation, found that any visitation agreement to see the child at any time was purely the invention of the birth mother. The court found no written record of such a visitation agreement and no corroboration from any witnesses other than the testimony of the birth mother, M.W., and L.B. The court specifically found the evidence did not support such an interpretation of the events.
Here, the birth mother, M.W., and L.B. all testified that Mrs. A. promised the birth mother visitation whenever she wanted to see the child. But, both Mr. and Mrs. A. denied extending such a promise. Moreover, J.B.A., Dan Gard, and E.P. testified that such a promise was never made within their hearing. Additionally, none of the written documents supports a finding of unrestricted visitation. The consent form clearly states: “I wish to sign this consent and understand that by signing this consent I do permanently give up all custody and other parental rights I have to such child.”
Furthermore, a letter of commitment for private adoption from J.B.A. to the birth mother states: “[My attorney] has explained to me that if there is an understanding with the adoptive parents regarding ‘openness’ updates and/or ongoing visitation that if at some future date the adoptive couple decides that such ‘openness’ is not in the best interest of the child, I cannot use that issue as a basis to overturn the adoption.”
The birth mother admitted that she understood that signing the consent form meant she would release all rights to her child and acknowledged such decisions concerning visitation would be left to the discretion of the adoptive parents. However, she testified that her understanding of a denial of visitation in the best interests of the child was limited to conduct which threatened the welfare of the child.
While the birth mother’s perception of the meaning given to “the best interests of the child” is not contradicted, there is no indication that she shared that interpretation with anyone. Nor is there any indication that the terms of any visitation were discussed. We are satisfied the district court’s refusal to rely upon the birth mother’s interpretation of the “best interests of the child” clause in the consent agreement to establish the existence of a visitation agreement is reasonable and supported by the weight of the evidence.
Even the letters within Mr. and Mrs. A.’s portfolio discussing visitation between a prior adopted son and his birth family do not support the birth mother’s argument. Such letters are evidence only of Mr. and Mrs. A.’s willingness to allow some visitation under appropriate circumstances. There is nothing within the letters to indicate that such visitation is desirable or intended within the present circumstances. In any case, there is nothing about the letters which suggests that visitation for their prior adopted son is not entirely within the discretion of Mr. and Mrs. A.
K.S.A. 59-2114 provides that a person wishing to revoke a consent to adopt must establish the consent was not freely and voluntarily given by clear and convincing evidence. This burden of proof is more substantial than a mere preponderance of the evidence. Because the district court denied the birth mother’s motion for revocation of her consent, the court implicitly held the movant had not sustained her burden of proof, which amounts to a negative finding of fact. See Adoption of N.A.P., 23 Kan. App. 2d at 267.
“ ‘Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ ” Adoption of N.A.P., 23 Kan. App. 2d at 267 (quoting Mohr v. State Bank of Stanley, 244 Kan. 555, 568, 770 P.2d 466 [1989]).
As previously stated, this record supports the findings made by the district court. The court’s finding there was no promise of visitation to influence the birth mother’s decision to sign the adoption consent is not erroneous.
Moreover, even if the birth mother could have established a binding visitation agreement, she cannot demonstrate such an agreement influenced her decision to place the child for adoption. She clearly testified that, regardless of a promise of visitation, she felt compelled by the circumstances within her home to sign the consent. Arguably, the only reasonable finding to be made from this testimony is that, had the consent form specifically stated that no visitation was to be allowed, the birth mother would have still proceeded with the adoption. Consequently, we are unable to conclude the misunderstanding regarding visitation constitutes fraud, misunderstanding, or duress which vitiated the voluntariness of the birth mother’s consent, compelling her to place her child for adoption against her will.
The birth mother additionally contends that J.B.A.’s improper representation provides grounds to revoke her consent to adopt. She argues that, although she held responsible positions within the school governing body and maintained a high grade point average, she had never before dealt with contracts or legal responsibility. She claims that J.B.A.’s failure to provide complete and private legal advice renders her consent invalid. We disagree.
In Kansas, legal representation of both the adoptive parents and the birth parents is permitted subject to certain conditions. In re Adoption of Irons, 235 Kan. 540, 549, 684 P.2d 332 (1984). One of those conditions is that the attorney must obtain the consent from both parties being represented after fully disclosing the foreseeable consequences of the dual representation. Supreme Court Rule 1.7 (2000 Kan. Ct. R. Annot. 339). This record supports the district court’s finding that J.B.A. fully disclosed her representation to both parties.
The Irons case imposes a duty of good faith to inform both parties of the legal consequences of their actions, in this case, the legal consequences of adoption. 235 Kan. at 549. Again, this record supports the district court’s finding that J.B.A. explained the legal effect of the birth mother’s consent to adoption was to terminate all legal rights and responsibilities affecting the child. In any event, the birth mother admitted she was aware of the effect of her consent.
The birth mother now claims that J.B.A.’s good faith duty demanded an explanation of the options available to an unwed mother. Assuming, without deciding, that an attorney owes such a duty and that J.B.A. failed to perform that duty, the birth mother fails to demonstrate how the failure affected her ability to freely and voluntarily consent to the adoption of her child. This record is clear that the birth mother was aware the option of keeping her child remained open to the point she signed the final consent form.
This record clearly shows the birth mother never expressed any doubts about placing her child for adoption before consenting to the adoption. We are satisfied that it is not unreasonable for an attorney, under the circumstances shown here, to fail to inform an unwed mother about community programs designed to assist unwed mothers in caring for their children.
As a note for future reference, an attorney representing both sides of an adoption would be well advised to visit with the birth mother or birth father individually, explaining each section of the adoption consent, allowing time for questions after each section, perhaps asking the birth parent to initial each section as he or she reads the section to ensure the client has an opportunity to disclose information to the attorney without fear of recrimination from parents, spouses, or the adoptive family.
Here, the district court specifically found the birth mother chose adoption to fulfill several objectives: (1) she feared prejudice from her peers and her teachers at school based upon her pregnancy out of wedlock; (2) she wanted to avoid aggravating her already strained relationship with her stepfather; (3) she wanted to prevent the paternal birth grandmother from having unsupervised visitation with the child; (4) she wanted to attend college; (5) she wished to remain in her mother s house and feared she would be expelled if her stepfather learned of the pregnancy before an adoption plan was established; (6) she did not wish to repeat her mother’s experience as an unwed mother; and (7) she feared that she would be incapable of supporting the child. All of these findings are supported by the birth mother’s testimony.
Even if the birth mother was counseled about alternatives to adoption and discovered the means to financially support the child as well as attend college, there is no indication these facts would have had any effect on her fear of her stepfather’s reaction or affect the social stigma her pregnancy would cause at school. The birth mother has not established with clear and convincing evidence that J.B.A.’s failure to advise her of community programs that would enable her to keep her child would have affected her decision to place the child for adoption at the time the consent was signed. As such, an alleged failure in representation on the part of the birth mother’s attorney does not provide a basis for overturning the challenged consent in this case.
Next, the birth mother suggests the pressures she received from her mother and stepfather to place the child for adoption controlled her life. The birth mother further feared the societal pressures imposed upon her by community standards disapproving of pregnancy out of wedlock. Without minimizing the impact such pressures might bear upon the psyche of a young, high school-aged, unwed mother, the district court concluded such influences did not overcome the birth mother’s will, forcing her to place her child for adoption involuntarily. Such finding is substantiated by the record.
Constitutionality of the 12-hour waiting period
The birth mother’s final argument relates to the constitutionality of K.S.A. 59-2116. As we understand, she argues that because the statute arbitrarily provides greater protection to persons who relinquish their parental rights within the 12-hour period following the child’s birth, the statute violates her due process and equal protection rights under the Fourteenth Amendment.
The constitutionality of a statute is a question of law, a question over which this court has unlimited review. Hart v. Kansas Board of Healing Arts, 27 Kan. App. 2d 213, 218, 2 P.3d 797 (2000). An appellate court presumes a statute is constitutional and resolves any doubt in favor of upholding its validity. Before an appellate court may strike a statute as unconstitutional, a review of the statute must clearly reveal, beyond substantial doubt, that no reasonable construction will bring the statute into conformity with the mandates of the state or federal constitutions. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
Without question, the Fourteenth Amendment protects the parent/child relationship as a fundamental liberty interest which cannot be abrogated by the State without compelling interest. In re Adoption of C.R.D., 21 Kan. App. 2d 94, 98, 897 P.2d 181 (1995). However, neither the Due Process nor the Equal Protection Clauses prevent an individual from voluntarily relinquishing their legal rights and responsibilities to a child. See Pfoltzer v. County of Fairfax, 775 F. Supp. 874, 881-82 (E.D. Va. 1991), aff'd 966 F.2d 1443 (4th Cir. 1992) (citing Weller v. Dept. of Soc. Serv. for Baltimore, 901 F.2d 387, 392 [4th Cir. 1990], holding that “ ‘[i]f one voluntarily surrenders a liberty interest to the State, there has been no “deprivation” of that interest by the State, and no due process violation’ ”). -
A signed consent is prima facie evidence of a parent’s intent to voluntarily relinquish his or her rights to a child, and due process only requires notice and a hearing upon the voluntariness of such a parent’s actions. The birth mother has taken advantage of her due process rights to challenge the validity of her consent by arguing that she did not voluntarily consent. Due process affords no greater protection.
The birth mother argues that K.S.A. 59-2116 arbitrarily causes a disparate treatment among similarly situated individuals, distinguished only by the timing of the relinquishment of their rights. She further contends the challenged statute violates equal protection by treating her differently regarding a fundamental liberty interest.
This court first considered the effect that the execution of a consent to adoption had on the voluntariness of that consent in In re Adoption of Baby Girl H., 12 Kan. App. 2d 223, 739 P.2d 1 (1987). Realizing that the voluntariness of a person’s consent is influenced by the circumstances of each case, we refused to establish a “bright line” rule to address the appropriate timing of a voluntary consent but indicated the legislature could adopt a waiting period as deemed necessary for public policy. 12 Kan. App. 2d at 231.
After the legislature enacted K.S.A. 59-2116 in 1990, providing that an adoption consent executed within 12 hours of the birth is voidable, our Supreme Court construed the statute in the context of determining whether a birth mother must exercise the statutory right to revoke a voidable consent prior to the issuance of a final adoption decree. See In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1994). Finding the legislature clearly intended to balance the interests of a birth mother’s need to contemplate the decision to place a child for adoption with the child’s need for stability and finality, the court concluded the legislature intended the time limitations of K.S.A. 59-2114 to be read in conjunction with the waiting period of K.S.A. 59-2116. See 254 Kan. at 789-91.
Important to our determination of this issue is our emphasis upon the intent of the legislature. Contrary to the birth mother’s assertions here, the legislature clearly contemplated the public policy considerations of a 12-hour waiting period. 254 Kan. at 789-91 (quoting the minutes of the Judicial Council Family Law Advisory Committee meetings for December 10, 1987, July 7, 1989, and October 6, 1989). We conclude the legislature wanted to protect birth mothers from being coerced into signing a consent while under the influence of pain or pain-inhibiting medication, while balancing the need for permanency in the legal status of the child.
Clearly, by promulgating the 12-hour waiting period mandated by K.S.A. 59-2116, the legislature did not limit a birth mother’s rights regarding her child, but extended greater protection than that afforded by the Due Process Clause of the Fourteenth Amendment. The legislature provided for a legal attack on a consent by a birth mother which was induced by fraud, coercion, mis take, or lack of understanding. K.S.A. 59-2114; see generally In re J.A.B., 26 Kan. App. 2d 959, 966, 997 P.2d 98 (2000) (describing what may rebut the presumption' of validity of a final consent).
The issue before us is not whether the Kansas Legislature may limit fundamental rights to a disparate class, which invokes a level of strict scrutiny, but whether the legislature may grant greater constitutional protection to a disparate class. Accordingly, the birth mother’s assertion that this court should apply strict scrutiny to a review of the statute is misplaced. The birth mother’s constitutional rights have not been limited, nor does the statute discriminate between members of a suspect classification requiring heightened scrutiny; the only classification is one based on the time in which the consent was obtained. The proper level of scrutiny to consider is whether the legislature had any rational basis for distinguishing between birth mothers who sign a consent within the first 12 hours following the birth and those who sign after the first 12 hours following the birth. See U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 88-89, 966 P.2d 68 (1998).
We conclude the legislature desired to limit the waiting period provided in K.S.A. 59-2116 to assist a determination of permanency for the child. A valid public policy concern is that the legal status of children should not be suspended for a longer period of time than necessary to effect a valid adoption. As a result, the legislature’s decision to treat similarly situated birth mothers differently on the basis of the timing of their consent is reasonable. The statutoiy waiting period found in K.S.A. 59-2116 does not offend either our state or federal Constitutions.
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Parks, J.:
This is an appeal by the Workers’ Compensation Fund from the district court’s judgment holding it liable to the employer’s insurer for the entire amount of compensation paid its injured employee. The employee’s claims for compensation were settled and he is not a party to this appeal.
The claimant, Oldrich Brozek, worked as a member of the Lincoln County Highway Department road maintenance crew for fifteen years. On October 28, 1981, he was injured when he fell four or five feet from a bridge, landing on his buttocks. Brozek was taken to the hospital where he was examined, admitted and diagnosed as having sustained a compression fracture of the LI vertebra. After about a month of rest, claimant was released to return to light duty at work. Brozek returned to work but his duties were principally confined to driving a truck. Whenever he attempted more strenuous work, claimant suffered back pain. He therefore decided to consult a specialist, Dr. Sloo.
Dr. Sloo examined Brozek on March 22, 1982, and admitted him to the hospital for lab work and a myelogram. The doctor confirmed the earlier diagnosis and assessed claimant’s disability as a 15% functional impairment of the body as a whole. Sloo prescribed conservative treatment. When he saw Brozek on May 19, Sloo believed the fracture was healed and released claimant for his regular heavy work.
On June 22, 1982, Brozek reinjured his back while swinging a sledge hammer to knock down old bridge banisters. During the work, Brozek began having severe back pains and swelling in the stomach. The claimant left work and has not returned to the job. He filed a second workers’ compensation claim based on this second accident.
When Dr. Sloo examined claimant on July 9, he concluded that Brozek could never again perform heavy labor and assigned him a 100% work disability. The doctor testified that the June 22 injury would not have occurred had it not been for the compression fracture suffered in the earlier accident but he maintained that the second incident was not a separate injury from the first. Sloo stated that he could detect no objective changes in the claimant’s back condition and that in his opinion, the June incident made an existing condition symptomatic but was not a new injury to the back. Sloo acknowledged that an individual may suffer an injury without manifesting any objective proof of that injury.
The claimant and the employer’s insurer entered settlement negotiations and reached an agreement to settle the claims arising out of both the October 28, 1981, and the June 22, 1982 accidents. The Fund was impleaded for the settlement hearing where it made no objection to the settlement but reserved any question concerning its obligation to reimburse the employer’s insurer. The settlement provided that claimant would receive $9,709.61 based on a 15% permanent partial disability for the first accident and a lump sum payment of $5,616 plus $72,000 in monthly payments of $300 each for the injury sustained in the second accident. The cost of the annuity to generate the monthly payments was $28,159.70.
The Fund and the employer’s insurer then litigated the issue of the Fund’s liability for reimbursement of the amount paid by the employer’s insurer as settlement for the second injury. The administrative law judge (ALJ) held that the claimant sustained two compensable accidents and was a handicapped worker at the time of the second injury. Since there was medical testimony that the second injury would not have occurred but for the first accident, the ALJ ordered complete reimbursement of the $28,159.70 cost borne by the employer’s insurer for the second injury. Upon director’s review this decision was reversed. The director held that while the claimant’s back condition became more symptomatic after the June incident, there was no evidence that he suffered any new permanent disability. Since the director found there was no second injury there was no liability assessed against the Fund. On appeal, the district court reversed the director and reinstated the decision of the administrative law judge. The Fund now appeals to this court.
The Workers’ Compensation Fund is obligated to reimburse employers for liabilities incurred as a result of injury to handicapped employees knowingly retained by an employer. K.S.A. 1984 Supp. 44-567. Thus, for the respondent to shift a portion of its liability to the Fund, it has to establish that the employee Oldrich Brozek became handicapped by the October 28, 1981, accident, was retained despite the employer’s knowledge of this handicap and then that Brozek sustained a second injury June 22, 1982, for which compensation should be made by the Fund. Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, 619, 609 P.2d 687, rev. denied 228 Kan. 807 (1980). The Fund has not contested either claimant’s status as a handicapped worker after the 1981 accident or the employer’s knowledge of this handicap. In fact, the only disputed issue in this litigation has been the existence of a second injury and the amount of any reimbursement which might be due if such a second injury did occur.
Arguing from the opinion testimony of Dr. Sloo, the Fund contends that the pain manifested by claimant’s back after the June 22 incident was simply a symptom of the preexisting injury and not itself a separate injury. The respondent, on the other hand, argues that since claimant was able to return to work and Dr. Sloo believed his previous injury was healed to the point that he could resume his normal activities, the second accident, which left claimant completely unable to perform his job, caused a reinjury of the back.
The existence of an injury is a factual question which must be upheld on appeal if supported by substantial competent evidence. Furthermore, the evidence must be considered in the light most favorable to the prevailing party. Hampton v. Professional Security Co., 5 Kan. App. 2d 39, 40, 611 P.2d 173 (1980). An injury is defined in K.S.A. 1984 Supp. 44-508(e) as any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An accident is the event or manifestation of force which precipitates injury. K.S.A. 1985 Supp. 44-508(d).
The evidence indicated that prior to the sledge hammer incident, claimant experienced periodic back pain but was able to continue working. After June 22, he suffered from swelling and disabling pain which has since kept him from working at the job. Viewed from the light most favorable to claimant, this evidence is sufficient to support the conclusion that the claimant suffered a change in the physical structure of his body. The testimony of Dr. Sloo may well reflect a medical viewpoint of claimant’s condition but it does not control the factual issue of whether a compensable injury has been sustained pursuant to the workers’ compensation law.
We conclude that the district court did not erroneously apply the definition of “injury” and find that the evidence of pain and swelling experienced by claimant on June 22 provided substantial competent evidence that a. second injury was sustained.
Once it has been determined that a knowingly retained handicapped worker has sustained an injury, the amount of the Fund’s liability must be determined. The general rule is that if the ultimate injury or disability would not have occurred but for the preexisting handicap, the Fund is liable for the entire amount of the award paid for the subsequent injury. On the other hand, if the injury or disability probably or most likely would have occurred regardless of the handicap, but was contributed to by it, the Fund is only liable for that portion of the award for the subsequent injury which is attributable to the preexisting impairment. K.S.A. 1984 Supp. 44-567.
In this case, Dr. Sloo testified that the second injury would not have occurred had it not been for the occurrence of the first injury. The Fund does not dispute the conclusion that this testimony is sufficient to render it liable for the entire award paid because of the second injury but it does dispute the cost which may actually be attributed to the second injury. Since the claimant and the employer entered into a structured settlement which assessed some of the total settlement against the first injury and the balance against the second injury, the ALJ and district court simply adopted the amount of the settlement for the second injury as representing the liability of the Fund. The Fund contends that the apportionment accomplished in settlement of the two claims should not be determinative of the amount of its liability. It argues that the district court must still make findings concerning the extent of claimant’s final disability which is attributable to the first injury and that resulting from the second. In addition, the Fund contends that even if the amount of the settlement figure agreed by the claimant and respondent to be due to the second injury is binding or appropriate, it is entitled to a credit under K.S.A. 44-510a for overlapping benefits.
In Spencer v. Daniel Constr. Co., 4 Kan. App. 2d at 619-22, this court was faced with a similar situation. The claimant suffered two back injuries less than a month apart and filed two separate compensation claims. The Fund was impleaded on the ground that the claimant became handicapped as a result of the first injury. The respondent and the claimant negotiated a settlement of both claims and the Fund reserved its right to contest any apportionment against it. The settlement did not apportion the total amount agreed to between the two accidents and the examiner entered a single award based on the settlement. When the issue of the liability of the Fund was subsequently litigated before the examiner and the district court, no findings were made regarding the portion of the settlement which was payable as a result of the first injury. Instead, the court apportioned 90% of the total settlement award against the Fund apparently concluding that the medical testimony indicating that 90% of the ultimate disability was contributed to by the preexisting handicap meant that the same proportion of the cost of the award should be assumed by the Fund.
This court initially held that the district court erred in failing to hold the employer and its insurer totally liable for the amount of the award attributable to the first injury. The court then discussed the manner in which the case should have been addressed by the district court and the findings which must be made on remand, stating as follows:
“In view of the medical testimony that the disc herniated when the first accident occurred, the examiner should have considered the two accidents separately. He must determine the percentage of disability attributable to the first accident a.nd assess liability for that award against the employer. The Fund may not be held liable for any part of the award for the first accident and the payment of that entire award is the responsibility of the employer. Day and Zimmerman, Inc. v. George, 218 Kan. 189. The Fund is liable for only the proportion of the cost of the award attributable to the second injury and then only to the extent the second injury was contributed to by the preexisting impairment. K.S.A. 1975 Supp. 44-567(a)(2).
“The Fund takes the position the examiner and district judge have already determined that 90 percent of the award is attributable to the first accident. This argument assumes that the examiner’s finding that 90 percent of the claimant’s present disability is attributable to the first injury is equivalent to a finding that 90 percent of the monetary award for both injuries combined would be the same amount as the monetary award for the first injury if such an award had been made. This assumption is erroneous. Evidence existed in the record from which a trial judge conceivably could have found that 90 percent of claimant’s injury is attributable to the first accident, but that specific finding was not made and attempting now to say that the actual finding is equivalent to that suggested by the Fund is somewhat like comparing apples and oranges.
“On remand, after making an award for the first injury, the examiner should consider the second accident, then determine the percentage of disability and assess liability for it, giving due consideration to K.S.A. 1975 Supp. 44-566. The examiner should also give the Fund the benefit of K.S.A. 1975 Supp. 44-510a (the anti-pyramiding statute) in computing liability for the award. This statute pro vides for a credit against compensation for permanent disability if such disability was contributed to by a prior permanent disability for which compensation was paid or is collectible. The credit shall consist of the extent, expressed as a percentage, by which the prior permanent disability contributes to the overall disability following the later injury.” Spencer, 4 Kan. App. 2d at 620-21.
The holding in Spencer indicates that regardless of the terms of the settlement, the apportionment of the award between the Fund and the respondent must be based on the actual amount of the disability which is attributable to the second injury as well as the extent that the handicap contributed to the second injury. Similarly, in this case the fact that the settlement assessed some of the award to the first accident and some to the second should not control the apportionment of liability to the Fund. Since the uncontradicted medical testimony indicated that but for the first injury the second most probably would not have occurred, the percentage of the Fund’s liability for the second injury would have to be fixed at 100% (K.S.A. 1984 Supp. 44-567[a][A]), but the dollar amount of the award attributable to the second injury would still have to be determined.
Dr. Sloo testified that claimant suffered a permanent partial functional disability of 15% after the first accident and that this disability was not increased by the second accident. Moreover, despite the fact that work disability is a judicial rather than a medical concept, the doctor also testified that Brozek’s work disability was 100% after the second injury. The court apparently adopted this work disability figure as its own stating that claimant’s work disability “went up to 100%.” Since a claimant may recover compensation based on either work or functional disability, whichever is greater, (Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 45, 588 P.2d 482 [1979]), the court should have compared disability figures before and after the second injury to determine the proportion of the total cost of the settlement which is attributable to the second injury. The functional disability rating did not change so the difference in work disability would be controlling. Since the court made no finding concerning work disability after the first accident, there is no basis for comparison. Therefore, like Spencer, there are insufficient findings upon which review of the apportionment may be made. Spencer, 4 Kan. App. 2d at 618, citing Burch v. Dodge, 4 Kan. App. 2d 503, 608 P.2d 1032 (1980).
The respondent argues that the absence of findings indicates that the court found the apportionment effected by the structured settlement to be reflective of the evidence. However, the settlement provided that $9,709 of the total award was due to the first injury while an annuity costing the employer $28,160 was assessed as resulting from the second injury. The medical testimony, if anything, certainly indicated that the major portion of the final disability was due to the injury sustained in the first accident. Therefore, it would seem that the employer, not the Fund, should bear the majority of the financial responsibility for the award. We cannot assume that the court’s factual findings would parallel the apportionment made by the settlement.
The Fund also argues that any liability it might have to the employer for compensation paid for the second injury should have been reduced by a credit as provided in K.S.A. 44-510a. As explained in Spencer, this credit prevents the collection of duplicative compensation for a permanent disability. If a worker suffers a compensable injury which renders him handicapped and later sustains a new injury contributed to by his handicap, he will not be permitted to stack permanent disability payments as if the injuries were unrelated or compensated from different sources. The precise means of calculating the allowable credit is described as follows:
“The amount of the credit is figured by applying the percentage of contribution for the prior disability to disability compensation resulting from the later injury. The resulting figure is then subtracted from the amount of weekly permanent disability compensation resulting from the later disability. The product represents the reduced rate of compensation. The credit, however, is not applicable to temporary total disability resulting from the later injury. Moreover, the credit is limited to only those weeks of prior permanent disability for which compensation is paid or is collectible, which occur subsequent to the date of the later injury, the credit terminates, in other words, on the date that compensation for the prior disability terminates and compensation for weeks due after such date is paid at the unreduced rate.” Spencer, 4 Kan. App. 2d at 621.
This credit is applicable to reduce the liability of the Fund standing in the shoes of the employer, despite the fact that the employer may not actually have reaped the benefit of the credit in its settlement. Therefore, once the portion of the Fund’s liability for the monetary amount paid by the respondent is figured, it should also be reduced by the credit permitted for the presumed overlapping of payments.
From Spencer, we learn that despite the fact that the respon dent settles with the claimant, the workers’ compensation fact-finders are not relieved of responsibility to determine the amount of an appropriate award when a second injury is involved. The Fund may not be held liable to the respondent based on figures settled by the respondent without reference to the actual relationship between the award and the contribution of the preexisting handicap. In addition, the fact that the settlement is not structured in weekly payments should not deprive the Fund of the right to a credit for overlapping disabilities.
Accordingly, the judgment of the district court concerning the occurrence of a second injury is affirmed. The judgment assessing the cost of the annuity in the amount of $28,159.70 against the Fund is reversed and remanded with directions to determine the amount of liability for the second injury and whether a credit should be allowed in accordance with the discussion in this opinion. | [
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Foth, C.J.:
This appeal is from a judgment against Home Federal Savings and Loan Association, of Manhattan, based on its alleged complicity in the conversion of funds by a conservator who did business with it. Plaintiffs were the appellees Cindy Hubbard, the former conservatee; and Aetna Life and Casualty Co., surety on the conservator’s bond. Defendants were the appellant Home Federal; George Bishop', the conservator; and Citizens State Bank of Manhattan.
George Bishop was appointed conservator for his minor niece, Cindy Lynn Hubbard, in March 1977. Bishop deposited some $20,000 of conservatorship funds in various fiduciary accounts at Citizens. The remaining $40,000 was used to purchase a $40,000 certificate of deposit at Home Federal. The C.D. was issued to “George D. Bishop as conservator for Cindy Lynn Hubbard.”
On April 17, 1978, Home Federal loaned $20,000.00 to Bishop in the name of “George D. Bishop as Conservator for Cindy Lynn Hubbard,” using the $40,000 C.D. as collateral. On October 6,1978, a second loan of $10,000 was made to Bishop, again using the C.D. as collateral. Although the loan papers indicate the loan was to Bishop in his capacity as conservator, the proceeds check was made out simply to “George D. Bishop.” A third loan of $10,000 against the C.D. was made on March 5,1979, at a time when approximately $80.00 had been paid toward the principal of the previous loans. The total of the three loans against the C.D. as of March 5, 1979, was $39,916.24. The proceeds check for the third loan was made payable to George D. Bishop as conservator.
Bishop deposited $19,000 of the proceeds from the first loan, $8,000 of the proceeds from the second loan, and $9,900 of the proceeds from the third loan in his personal checking account at Citizens, which he maintained jointly with his wife. Bishop was married to Bobbi J. Bishop, formerly Bobbi J. Degener. Home Federal held a mortgage on her Manhattan real estate in the name of Bobbi J. Degener, but knew she was Bishop’s wife. Beginning in March 1978, monthly payments on the mortgage loan were frequently delinquent. Shortly after each loan to Bishop as conservator payments were made on the Bishops’ mortgage loan at Home Federal as follows: April 19, 1978, $1,002.00 (2 months); October 10, 1978, $1,509.00 (3 months); March 6, 1979 $1,509.00 (3 months).
Interest payments on the C.D. were deposited into the conservatorship checking account at Citizens. Interest payments to Home Federal on the conservatorship loans were made by preauthorized drafts on the same account at Citizens. This arrangement continued until April 1981. When the Citizens conservatorship account no longer contained sufficient funds to cover the payments, the drafts were discontinued. Home Federal continued to pay interest on the C.D. directly into the conservatorship account at Citizens until May 1, 1981. Thereafter, and until the time of trial, Home Federal credited the C.D. on its books with the interest earned and charged the conservatorship loan account on its books with interest due.
On August 20, 1981, Hubbard and Aetna filed this suit against Bishop, Home Federal, and Citizens, alleging Bishop wrongfully converted the Hubbard Conservatorship assets to his personal use and that the financial institutions facilitated and participated in the conversion to their benefit with actual or constructive knowledge of the conversion. All claims against Citizens were dismissed with prejudice on the plaintiffs’ motion in June 1983. Summary judgment as to liability was entered against Bishop in January 1984, and the case continued to trial to the court on the claim against Home Federal.
It was plaintiffs’ theory that Home Federal should be liable for the entire $40,000.00 lent to Bishop plus interest paid on the C.D. because of the pattern of dealing between Home Federal and Bishop. They relied primarily on the repeated delinquencies on the Bishops’ personal mortgage, plus the catching up of those delinquencies shortly after each of the three loans. In addition, they pointed out that the interest rate on the loans exceeded that available on treasury bills, suggesting that the loans were therefore imprudent financial transactions. Bishop’s stated reason for the loans was a desire to obtain a higher yield than the C.D. provided, and still avoid a penalty for early withdrawal. These facts, they claimed, should have alerted Home Federal to the possibility that Bishop was converting the conservatorship funds to his own use. There was no claim that anyone at Home Federal had actual knowledge of the conversions, but only that it was on such constructive notice that it had a duty to inquire.
The trial court, however, largely rejected plaintiffs’ theory. Instead, it found partial liability employing several different theories:
1. As to the first loan of $20,000 it found no liability, concluding as a matter of law that Home Federal “acted in good faith and had no knowledge, either actual or constructive of the fraud by defendant Bishop.”
2. As to the second loan, it concluded that “defendant Home Federal wrongfully, by inadvertence and error, gave the proceeds of that loan to defendant Bishop individually, although the loan was secured by the Hubbard Conservatorship assets, and defendant Home Federal is liable for the amount of such loan in the sum of $10,000.00.”
3. As to the third loan, it concluded “defendant Home Federal, by and through its agent, Mary Jones, acted wrongfully in making said loan by exceeding the limits of a loan on collateral contrary to the established policy of defendant Home Federal. Further, the Court concludes that the knowledge of Mary Jones at the time of the making of the third loan to defendant Bishop was such as to impute constructive notice to defendant Home Federal to inquire into Bishop’s actions, and defendant Home Federal is liable for the amount of the third loan in the sum of $10,000.00.”
4. On the subject of interest, the court concluded, without giving any reason, “that the further payment by defendant Home Federal of interest on the Hubbard Conservatorship Certificate of Deposit after the third loan and until May 1, 1981, was wrongfully made by defendant Home Federal, and defendant Home Federal is liable for the amount of such interest payments in the sum of $6,500.00.”
Upon Bishop’s confession of liability, the court entered judgment against him in the amount of $121,311.00, being $60,655.50 in actual damages doubled pursuant to the provisions of K.S.A. 59-1704. It entered judgment against Home Federal in the amount of $26,500.00, representing the second and third loans plus the interest paid. It is from this latter judgment that Home Federal now appeals. The plaintiffs filed a cross-appeal, contending the judgment against Home Federal should be doubled pursuant to the provisions of K.S.A. 59-1704.
We are unable to agree with the trial court on any of its findings of liability.
I. The Second Loan of October 5, 1978
The trial court concluded that Home Federal was liable for the entire amount of the second loan of $10,000 because Home Federal, through “inadvertence and error,” made the proceeds check payable to “George D. Bishop” and did not include a notation indicating the check was given to him in his capacity as conservator.
In Wickens v. Valley State Bank, 125 Kan. 751, 757, 266 Pac. 81 (1928), the court discussed ways in which a bank may incur liability and be compelled to make good deposits that have been misappropriated by a fiduciary. Generally such liability will only be incurred if:
(1) The bank violates the contract, express or implied, between it and the owner of the fund;
(2) the bank appropriates the fund to the payment of the fiduciary’s debt at the bank; or
(3) the bank assists the fiduciary in accomplishing the misappropriation with actual or constructive knowledge that the fiduciary is peipetrating or about to perpetrate a fraud.
The trial court cited no authority for its conclusion that failure to make the check payable to Bishop as conservator resulted in Home Federal’s liability. We find no Kansas cases which would impose such liability, and do find cases from other jurisdictions to the contrary.
E.g., in National Casualty Co. v. Caswell & Co., 317 Ill. App. 66, 45 N.E.2d 698 (1942), a surety brought suit to recover funds diverted by a trustee (Kester) against an investment securities business that had purchased a certificate of deposit subject to the trust from Kester with a check payable to him individually rather than as trustee. In finding that liability could not be imposed on the investment securities business, the court said:
“Plaintiff says that if defendant’s check had been made payable to Kester ‘as trustee’ plaintiff would have been protected, but this is not true. Under section 9 of the Fiduciary Obligations Act the check to Kester as trustee could have been indorsed by him as trustee,and deposited in his personal account and the depositary bank would not be bound to inquire whether Kester was breaching his fiduciary obligation in so doing. This section of the statute authorizes the bank under such circumstances to pay the amount of the deposit or any part thereof upon the personal check of the fiduciary without being liable unless the bank has actual knowledge that the fiduciary in so doing is committing a breach of his obligation. This would also be true under the provisions of sections 4 and 9 if the check had been made to Kester’s principal, the Central & Northwest Corporation, for he could have indorsed the check in the name of his principal and deposited it in his personal account.” National Casualty Co. v. Caswell & Co., 317 Ill. App. at 71.
Although National Casualty Co. v. Caswell & Co. was decided under the provisions of the Uniform Fiduciaries Act which has not been adopted in this state, the principles of law supporting the decision represent the common law.
The text writers agree:
“Similarly, if a trustee draws a check upon his account as trustee payable to himself personally, the bank is not bound to make inquiry whether the trustee is committing a breach of trust thereby, whether the check is presented by the trustee over the counter for payment, or is presented by a third person to whom it has been indorsed by the trustee, or is presented properly indorsed through another bank. Nor is the bank bound to make such inquiry where the trustee deposits the check in the bank to the credit of his personal account with the bank.” Comment g to Restatement (Second) of Trusts § 324 (1957).
“Accordingly a drawee bank is not liable merely because it honors a check drawn by a depositor as fiduciary and payable to a third person. Nor is it liable where it honors such a check payable to the depositor personally, either by paying cash over the counter to the depositor, or by paying a subsequent holder, or by paying another bank through which the check is collected for the depositor or for subsequent holder, or by crediting the depositor’s individual account in the drawee bank. And a bank is not liable when after allowing a depositor to deposit fiduciary funds in his individual account, it subsequently honors his personal checks drawn on that account. The bank is not bound in any of these cases to inquire into the use the fiduciary depositor is making or intends to make of the proceeds of the checks.” IV Scott on Trusts § 324.3 (3rd ed. 1967).
The same principles have long been accepted by the Kansas courts. In Bank v. Bank, 60 Kan. 621, 627, 57 Pac. 510 (1899), the court stated:
“A case which substantially involves the principle, though differing somewhat from it in point of fact, is Munnerlyn v. Augusta Bank, 88 Ga. 333; s.c. 30 Am.St.Rep. 159, 14 S.E. 554. In that case it was ruled:
“ ‘When a trustee deposits money in a bank to his credit as agent, the bank would be discharged by paying it back to the individual who made the deposit, and, in the absence of knowledge or notice to the contrary, has the right to assume that he will appropriate the money to its proper uses and trusts.’
“There can be no substantial difference between a case where an agent makes a deposit of money as ‘agent,’ thus informing the bank that the fund is not in reality his, and one in which the agent makes the deposit in his own name but at the same time informs the bank that he is only the agent of another for it. In both cases the bank would have the right to assume that the agent in dealing with the fund was acting within the terms of his agency.”
In this case plaintiffs concede that Home Federal could have delivered the $10,000.00 to Bishop in cash without incurring liability in the absence of actual notice of the intended conversion. (The court found no notice, only “inadvertence and error.”) If it could have delivered cash, there is no reason it could not issue a check payable to the conservator individually.
In addition, the omission of the fiduciary designation had no apparent effect on Bishop’s ability to negotiate the check. Both the first and third loan checks were deposited to his personal account in Citizens despite the presence of the designation on each. There is thus no showing of any causal connection between Home Federal’s mistake on the check for the second loan and the loss to the conservatorship. The conversion of all three checks was accomplished at Citizens without any complicity on the part of Home Federal.
Plaintiffs suggest that Home Federal should be liable for the proceeds of the second loan because it benefited from the misappropriation when it received delinquent mortgage payments from Bishop. The evidence shows that delinquent mortgage payments were made after each of the three conservatorship loans was deposited in Bishop’s personal account. If Home Federal is liable on the second loan simply because it received some benefit, clearly it should incur liability on all three of the loans. However, plaintiffs do not contend that the trial court erred in finding no liability on the first loan.
A majority of the cases discussing a bank’s liability when it benefits from the misappropriation of trust funds have arisen when trust funds are deposited in the personal account of a trustee and used to reduce the trustee’s personal indebtedness at the same bank. Here the proceeds of the conservatorship loans given to Bishop by Home Federal were not deposited in a personal account at Home Federal, but in his personal account at Citizens.
No Kansas cases have addressed the liability of a bank in this situation. Three cases do, however, provide some guidance. In Washbon v. Bank, 87 Kan. 698, 710, 125 Pac. 17 (1912), the court held: “Where a bank knowingly participates with a depositor in a misappropriation of trust funds and reaps the fruit of the breach of trust it becomes liable to the beneficiary for whatever wrong is done him.” Emphasis added. The case focuses in large part on the knowing participation of the bank in the misappropriation and does not indicate that liability could be based solely on the benefit to the bank without actual or constructive knowledge of the misappropriation.
In Wickens v. Valley State Bank, 125 Kan. at 757, the court indicated that a bank could be held liable for misappropriation of funds by a trustee if the bank appropriates the fund, with or without the fiduciary’s consent, to the payment of the latter’s debt to the bank. In such a case “ “liability is based upon the general theory that the owner of a fund may follow it into the hands of and recover it from any person who has not innocently given value therefor.’ ” Annot., 1915C L.R.A. 519, cited in 125 Kan. at 757. Emphasis added. The case implies that if the bank acts innocently, with no actual or constructive knowledge of the misappropriation, it cannot be held liable for the benefit it receives even if it is the appropriator.
Finally, in Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118 (1904), the court held that a bank was protected in applying a deposit it received from an agent in his own name, without notice of the agency, to a past due debt of the depositor to the same extent as it would be in paying it out upon his checks. In reaching this conclusion the court stated:
“ ‘If a trustee or other fiduciary person, in violation of his own duty, uses trust money to pay an antecedent debt of his own to a creditor who has no notice of the breach of trust, or that the money is subject to the trust, in such a manner that the money is received as a general payment, and not as a distinct and separate fund, then the money becomes free from the trust, and cannot be followed by the beneficiary into the hands of the creditor, although, in general, an antecedent debt does not constitute a valuable consideration.’ (Pom. Eq. Jur. 2d ed., § 1048.)” Kimmel v. Bean, 68 Kan. at 606.
The court went on to agree with the holding in Meyers v. New York County Nat. Bank, 36 App. Div. 482, 55 N.Y.S. 504 (1899), where the New York court held in essence:
“A bank, having previous authority to apply a customer’s deposit to his debt, can appropriate it to the debt, though the deposit was in part money of the depositor’s ward, the bank having no knowledge of the fact.” Kimmel v. Bean, 68 Kan. at 607.
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. Again, tire trial court here found no knowledge on Home Federal’s part as to a breach of trust.
We conclude the court erred in imposing liability for the October 1978 loan.
II. The Third Loan of March 5, 1979.
A. The trial court found Home Federal liable for the proceeds of this $10,000 loan first because the head teller, Mary Jones, processed the loan which exceeded the limits of a loan on collateral contrary to Home Federal’s established internal policy. Home Federal’s policy for share loans permitted loans up to 100% of the face amount of the collateral, but required the approval of the President or one of three Vice Presidents if the amount of the loan exceeded 90% of the face value of the collateral. Jones turned the proceeds of the third loan over to Bishop, without executive approval; even though the total loan at that point was $39,916.24, in excess of 90% of the face value of the $40,000 C.D.
The general rules regarding enforcement of loans made in excess of statutory limitations are found in 10 Am. Jur. 2d, Banks § 684:
“The fact, however, that a bank, in making a loan, violates a statutory provision does not, as a general rule, prevent it from recovering the money loaned or afford the borrower any defense to recovery, unless the statute so declares. This is true where the bank violates a statutory or charter provision by making a loan to a person, usually an officer of the bank, who is forbidden to borrow from the bank or to whom the bank is forbidden to loan money, as well as where it violates such provisions by making a loan or loans in excess of the limit which it may legally make to any one person. Such provisions are intended, as a rule, for the government of the bank. Permitting a borrower who has secured an excessive loan to avoid payment of the money actually received by him would injure the interest of creditors, stockholders, and all who have an interest'in the safety and prosperity of the bank. It is accordingly well settled that the borrower cannot set up in defense of an action to recover the money so loaned, or any part thereof, the fact that the loan was in excess of the amount authorized. . . . Again, where a bank discounts a note, its knowledge that the money is to be used for an unlawful purpose does not render the transaction illegal so as to prevent a recovery by it upon the note. A loan by a bank, for which the security has been omitted in violation of the requirement of a statute in that regard, is not unenforceable by the bank. Moreover, although the security obtained by a bank in making a loan is not authorized by statute, or is not included in the list of securities upon which the bank may loan, the loan and the security are nevertheless valid and enforceable.”
Speaking to the statutory loan limits imposed by the National Bank Act, 12 U.S.C. § 84 (1982), the court in First Am. Nat. Bank of Iuka v. Alcorn, Inc., 361 So. 2d 481, 489 (Miss. 1978), stated tbat the purpose of the loan limit statute is for the regulation of banking institutions and their officers; violation of the statute does not render the loan void as to the borrower but subjects the bank and its officers to penalties.
If violation of statutory loan limits creates no rights in the borrower, it follows that violation of the internal policies of the banking institution also create no additional rights in a borrower. Robert Haines, the president of Home Federal, testified that had Jones sought approval it would have been given because in Haines’ opinion the bank could not refuse to make a loan fully secured by the collateral. Furthermore, nothing in the trial court’s findings indicates Jones acted in bad faith in processing the loan in violation of the internal policy. The loan was lawful, and the trial court erred in basing liability on the violation of internal policy.
B. The trial court also found that the “knowledge” of Home Federal’s agent, Mary Jones, on March 5, 1979, was sufficient to impute constructive knowledge of the intended misappropriation to Home Federal and render it liable for the entire amount of the third loan.
In order to recover on the theory that a bank is liable because it assisted a fiduciary in accomplishing a misappropriation, plaintiffs must establish:
“(a) facts which show that the bank had knowledge of the trust character of the funds on deposit and that the fiduciary unlawfully withdrew and misappro priated trust funds; (b) facts sufficient to overcome the presumption in which the bank is entitled to indulge, namely that in withdrawing trust funds the fiduciary is acting lawfully and in the performance of his duties as a trustee, and that he will appropriate the money, when drawn, to a proper use; (c) facts which show, directly or by necessary inference, that the bank participated in the breach of trust in receiving or permitting the trustee to withdraw the trust funds, by receiving the deposit or permitting the withdrawal with notice of the breach of trust.” Cassel v. Mercantile Trust Company, 393 S.W.2d 433, 437 (Mo. 1965).
In Bischoff v. Yorkville Bank, 218 N.Y. 106, 112-13, 112 N.E. 759 (1916), the court stated:
“A bank does not become privy to a misappropriation by merely paying or honoring the checks of a depositor drawn upon his individual account in which there are, in the knowledge of the bank, credits created by deposits of trust funds . . . Although the depositor is drawing checks which the bank may surmise or suspect are for his personal benefit, it is bound to presume, in the absence of adequate notice to the contrary, that they are properly and lawfully drawn.”
In Newton v. Scott, 254 App. Div. 140, 142-43, 4 N.Y.S. 2d 420 (1938), the court stated:
“It is settled law that ‘a bank dealing with a fiduciary is not bound to inquire whether the fiduciary is applying the fund to the purposes of the trust, unless the bank has some notice of threatened misappropriation, and, with that notice, aids the misappropriation.’ [Citations omitted.]
“This rule does not relieve a depositary from all responsibility in connection with fraudulent acts by a trustee in dealing with trust funds. It may not ignore acts by a trustee which indicate his malfeasance. If a depositary has actual or constructive knowledge of a course of dealing with trust funds by a trustee, of such a character as would lead a person of reasonable prudence and caution to suspect that trust funds then on deposit are about to be misappropriated, a duty is laid upon the depositary to make reasonable inquiry to ascertain the true facts. If it fails to make such inquiry as a means of verifying or dispelling that suspicion, the depositary may be charged with knowledge of facts which reasonable inquiry would have revealed and it may be held responsible for loss resulting from the trustee’s infidelity. [Citations omitted.]”
Finally, in Armourdale State Bank v. Homeland Ins. Co., 134 Kan. 245, 249-50, 5 P.2d 786 (1931), the court stated:
“The rule with reference to knowledge which the law attributes to a person from the knowledge of certain facts is well stated in 20 R. C. L. 346, section 7:
“ ‘Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. This, in effect, means that notice of facts which would lead an ordinarily prudent man to make an examination which, if made, would disclose the existence of other facts is sufficient notice of such other facts. A person has no right to shut his eyes or his ears to avoid information, and then say that he had no notice; he does wrong not to heed the ‘signs and signals’ seen by him. It will not do to remain willfully ignorant of a thing readily ascertainable. It has been said that want of actual knowledge in such a case is a species of fraud. The rule has sometimes been said to be that whatever puts a person on inquiry amounts, in judgment of law, to notice, provided the inquiry becomes a duty, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. It has also been said that wherever inquiry is a duty, the person bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself.’ ”
Here teller Jones knew the loan to George Bishop was in his capacity as conservator and knew that the funds loaned were secured by conservatorship assets. However, she and Home Federal also had the right to presume that Bishop would properly apply the funds to conservatorship purposes. The only “knowledge” attributed to Jones by the trial court as of the time the third loan was made on March 5, 1979, was that Bishop was a conservator and was borrowing against the entire face value of the conservatorship C.D. The trial court further found that Jones personally received the Bishop payment of March 6,1979, which included two months of delinquencies, and apparently based its finding of a duty to inquire on this fact. However, this was the day after the third loan had been made. Home Federal may have been charged as an institution with knowledge that Bishop’s mortgage loan was two months delinquent, but at the time of the third loan Jones had no personal knowledge of that fact and no grounds to suspect Bishop intended to misappropriate the money. The trial court based Home Federal’s duty to inquire solely on the “knowledge” of Mary Jones at the time she processed the loan. The evidence does not support a finding that Jones had any knowledge at the time of the third loan which would put Home Federal on constructive notice.
Finally on this issue, it appears that under the authorities cited above Home Federal could have redeemed the C.D. and delivered the entire proceeds to Bishop regardless of any suspicions it might have had, at least in the absence of actual knowledge of an intended conversion. Even then, we would find it difficult to formulate a good legal reason for it to refuse to honor its contract. With actual knowledge it might be required to disgorge any benefit it received from the fiduciary’s defalcation, but we know of no theory under which it would be liable for the entire wrong.
Here, of course, Home Federal had no actual knowledge, and no actual suspicion until it was too late. The most we can find is constructive knowledge at the time of the third loan of circumstances whhch might have aroused suspicion. In our opinion that was too little to form a basis for liability for the $10,000.00 loaned.
III. Interest
The trial court concluded that, after Home Federal had constructive knowledge Bishop was misappropriating conservator-ship funds, it wrongfully continued to pay interest on the C.D. Interest payments were made into the conservatorship account at Citizens and ultimately applied against the conservatorship’s, not Bishop’s personal, loans. There was no evidence that Bishop misappropriated any of the funds deposited in the conservator-ship account at Citizens. Home Federal did receive the benefit of interest payments on the conservatorship loan, but this was a debt of the conservatorship, not a personal debt of Bishop — the interest on the C.D. went to reduce the debt of the conservatorship. There was no misappropriation of these funds, and no reason is given by the trial court for holding Home Federal liable for them. Under the legal principles previously discussed, the trial court erred in finding the payments were wrongfully made, and in rendering -judgment against Home Federal for the $6,500.00.
In view of the result reached, the cross-appeal is moot.
Reversed. | [
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Parks, J.:
Plaintiffs, Herbert and Ruth Karner, are the judgment creditors of defendants, Willis and Lloyd. Plaintiffs obtained an order of garnishment against defendant Lloyd’s bank account with garnishee, Kanopolis State Bank (Bank), in seeking to collect on their judgment. The Bank answered that it had no funds belonging to defendant because it had exercised its right of setoff against his account. The plaintiffs contended that the setoff was wrongful but the district court disagreed. Plaintiffs appeal from the court’s decision.
A bank has the right to set off any mature claim or obligation which it has against any depositor. This right is recognized by statute (K.S.A. 9-1206) and case law. See Iola State Bank v. Bolan, 235 Kan. 175, 187-88, 679 P.2d 720 (1984). If the loan is not mature, the bank cannot set off deposits against it unless the bank can show that the debtor is insolvent. First Nat’l Bank of Gaylord v. Autrey, 9 Kan. App. 2d 96, 99, 673 P.2d 448 (1983); Docking v. Commercial National Bank, 118 Kan. 566, 568, 235 Pac. 1044 (1925). The date on which a loan matures is determined by the agreement of the parties. Therefore, if the parties have included in their agreement a right of the creditor to accelerate the maturity of the debt under certain circumstances, a properly accelerated loan may be found “mature” and the proper subject of setoff. Olsen v. Valley Nat. Bank of Aurora, 91 Ill. App. 2d 365, 234 N.E.2d 547 (1968); 5A Michie, Banks and Banking § 156 (1983).
In this case, the defendant was indebted to the Bank on a note secured by two parcels of real estate. The note did not mature on its face until several months after the garnishment was served. However, it contained a provision permitting the Bank to accelerate the debt if it “deemed itself insecure.” Thus, the Bank contended that its exercise of setoff was proper because it had deemed itself insecure and accelerated the maturity of the note prior to setting off the funds in the account. Plaintiffs contend that regardless of the theoretical right of the Bank to declare the note mature, its setoff in this case was wrongful because it did not accelerate the note’s maturity in accordance with the law.
K.S.A. 84-1-208 states that a term providing that a party may accelerate payments or performance “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have the power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The issue of good faith is one of fact. See Iola State Bank, 235 Kan. at 186.
The bank officer who accelerated the note testified that defendant was not delinquent on any payments on the loan and that he was unaware at the time whether defendant was insolvent. He stated that his decision to exercise the right of setoff was based on his knowledge of the registration of the foreign judgment for $58,352.40, the inquiry by defendant concerning possi ble changes in the way the account was held and the service of the garnishment order on the Bank. The bank official also acknowledged that a few weeks after the Bank deemed itself insecure on the loan to defendant, it loaned him an additional $50,000 which was secured in part by the collateral pledged against the previous loan and in part by new collateral.
In its decision, the trial court stated as follows:
“The Court however believes that the controlling fact is the intent of the bank at the time that the funds were transferred and since the testimony is uncontradicted that at the time this was done by the bank they had deemed themselves insecure and the Court believes that on that basis the intent of the law would be that the bank should prevail.”
Since the trial court is presumed to have found all of the facts in issue necessary to support the judgment (Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, Syl. ¶ 2, 598 P.2d 188 [1979]), we must conclude that it found that the Bank believed in good faith that the prospect of payment was impaired. When the trial court has made findings of fact and conclusions of law, the scope of appellate review is for this court to determine whether the trial court’s findings are supported by substantial competent evidence. Woods v. Midwest Conveyor Co., 236 Kan. 734, Syl. ¶ 2, 697 P.2d 52 (1985). The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. The reviewing court must review the evidence in the light most favorable to the party prevailing below. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 254, 624 P.2d 420 (1981).
Although there was certainly evidence presented in this case to suggest that, viewed objectively, the Bank was not insecure, the test of good faith dictated by K.S.A. 84-1-208 is subjective, requiring only honesty in fact. K.S.A. 84-1-201(19); see Iola State Bank, 235 Kan. at 183; K.S.A. 84-1-201, Kansas Comment 1983 (19). In light of this test and our scope of review, we conclude that the finding of a good-faith acceleration of the debt is supported by substantial competent evidence. Therefore, the loan owed by the defendant/depositor was mature at the time the Bank exercised its setoff.
Plaintiffs also contend that even if the debt to the Bank was mature, the Bank could not properly exercise its right of setoff to satisfy a secured loan without first taking action to exhaust the collateral securing it. In support of this argument, plaintiff cites Putnam v. Hedville State Bank, 127 Kan. 534, 274 Pac. 231 (1929). In this pre-Uniform Commercial Code case, the bank had loaned the judgment debtor $700 on a note secured by growing crops which the bank believed at the time to be sufficient security. The debtor deposited the borrowed sum in the bank and the judgment creditor sought to attach the funds through garnishment. The Court held that the bank had no right to exercise setoff against the account because the original loan had been made on the belief that the debtor had security for the note, because the bank had made no attempt to actually apply the funds in the account to the debt and because it had renewed the original note instead of allowing it to mature. The Court did not hold that exhaustion of the collateral on a secured note is a prerequisite to a bank’s exercise of setoff. The Court simply concluded that under the circumstances of that case, the bank had failed to demonstrate its right to setoff. Since in this case the note held by the bank was mature as a result of the bank’s exercise of its right of acceleration and since the bank actually set off the account balance against the note, the case at bar is clearly distinguishable from Putnam.
In modern commercial practice, the majority of jurisdictions have held that a secured bank need not exhaust the collateral on its loan before it may exercise its right of setoff. See, e.g., Jensen v. State Bank of Allison, 518 F.2d 1, 6 (8th Cir. 1975); Allied Sheet Met. v. Peoples Nat’l Bk, 10 Wash. App. 530, 518 P.2d 734, rev. denied 83 Wash.2d 1013, cert. denied 419 U.S. 967 (1974); Olsen v. Valley Nat. Bank of Aurora, 91 Ill. App.2d at 371. These decisions point out that the minority view is premised on a rule or statute which permits only one form of action for the recovery of a debt which is secured by collateral. Jensen, 518 F.2d at 7, n. 9. By contrast, in Kansas as well as other states which have adopted the U.C.C., creditors are provided with multiple remedies against a debtor in default. K.S.A. 84-9-501. There is no reason for a bank which takes the precaution of requiring collateral to secure its loan to be deprived of a remedy which would be available to an unsecured creditor bank. We conclude that a bank which holds a secured loan simply has the additional option of pursuing the collateral according to the terms of the security agreement; it need not exhaust the collateral as a prerequisite to the exercise of its setoff right.
In light of this holding and our previous conclusion that the court’s finding of good faith was supported by the evidence, we conclude that the district court did not err in holding that the Bank properly set off defendant’s bank account against its loan.
Affirmed.
Rees, J., concurring: I concur in the result. | [
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Rees, J.;
Defendant Donald Stockman appeals from a judgment entered against him in the amount of $2,390.17 for property damage sustained by plaintiffs Richard and Greg Walborn when their car collided with Stockman’s cow on a public highway. We reverse.
Plaintiffs brought this action against defendant on what we deem to be three theories of negligence and one of strict liability: (1) negligence of defendant in allowing his cow to run at large in violation of the county herd law, K.S.A. 47-301 through -305, as adopted by Leavenworth County; (2) negligence of defendant, a nonresident cow owner, in failing to check on his cow more often; (3) negligence of defendant in having an inadequate fence to be proved under the doctrine of res ipsa loquitur; and (4) strict liability of defendant in allowing his cow to run at large in violation of the county herd law, K.S.A. 47-301 through -305, as adopted by Leavenworth County. The trial court, without specifying which theory of negligence it chose to rely on, found that defendant was 100% negligent in allowing his cow to be out of pasture and on a public thoroughfare. The trial court also accepted plaintiffs’ alternate theory, finding that defendant was strictly liable under the county herd law.
Defendant first argues that on any negligence theory plaintiffs failed to present sufficient competent evidence to support the trial court’s finding defendant was negligent. We agree.
First, the Walborns in their petition brought this action under what is known as the county herd law, K.S.A. 47-301 through -305. K.S.A. 47-301 grants to the boards of county commissioners of the different counties the authority “to direct by an order what animals shall not be allowed to run at large within the bounds of their county.” (Emphasis added.) In 1978, Leavenworth County, where this accident occurred, became a herd law county under K.S.A. 47-301 through -305 by declaring that “[h]orses, mules, asses, cattle, hogs, sheep or goats shall not be allowed to run at large within the bounds of Leavenworth County, Kansas.” Leavenworth County Resolution 1978-38. See Lindsay v. Cobb, 6 Kan. App. 2d 171, 627 P.2d 349, rev. denied 229 Kan. 670 (1981).
In construing the county herd law, K.S.A. 47-301 et seq., Kansas courts have consistently held that “shall not be allowed to run at large” means more than that an animal was simply unattended; it requires proof that the owner was negligent in failing to keep the. animal enclosed:
“Can it be held that this animal [simply found unattended] was allowed to run at large? It would not seem that plaintiff could be charged with any violation of this statute [Comp. Laws 1879, p. 935] when he had taken reasonable precautions to confine his animal.” Kansas Pac. Ry. Co. v. Wiggins, 24 Kan. *588, *590 (1880).
In 1929, the Kansas Legislature enacted what is for all practical purposes a statewide herd law, which simply provides “[t]hat it shall be unlawful for any neat cattle, horses, mules, asses, swine or sheep to run at large.” K.S.A. 47-122. Since the legislature in drafting the statewide herd law did not use the words “permit” or “allow” to run at large, as it had in the other herd laws (e.g., K.S.A. 47-101 to -103; K.S.A. 47-105; K.S.A. 47-112; K.S.A. 47-301 to -305; K.S.A. 47-309 to -312; K.S.A. 47-313), plaintiffs injured by trespassing livestock began to sue under this statute, asserting it imposed strict liability upon the livestock’s owners. See generally, Casad, The Kansas Law of Livestock Trespass, 10 Kan. L. Rev. 55 (1961).
Our Supreme Court, in companion cases, disagreed. Wilson v. Rule, 169 Kan. 296, 219 P.2d 690 (1950); Abbott v. Howard, 169 Kan. 305, 219 P.2d 696 (1950). Borrowing the negligence concept from county herd laws, the court held in these cases that the phrase “to run at large” meant the same in K.S.A. 47-122 as in K.S.A. 47-301; that liability under either statute could be predicated only upon negligence of the owner in confining his animal. Wilson v. Rule, 169 Kan. at 303; Abbott v. Howard, 169 Kan. at 315. The court fashioned this rule:
“[T]he plaintiff ha[s] the burden of proving in order to make a prima facie case, that the [animal] with which plaintiff collided was unattended upon the highway because its owner had failed to exercise due care in enclosing it, under all the surrounding facts and circumstances.” Wilson v. Rule, 169 Kan. at 303.
Under this rule, if the animal is an ordinary one, and the fence is that required to restrain an animal of its kind, the owner will not be guilty of permitting his animal to run at large. Wilson v. Rule, 169 Kan. at 302.
From these cases’ progeny comes the most comprehensive definition of “running at large.” Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973), and Clark v. Carson, 188 Kan. 261, 362 P.2d 71 (1961), cases brought under the statewide herd law, K.S.A. 47-122, defined “to run at large” as follows:
“ ‘As used in the Statute, “running at large” is the strolling, without restraint or confinement, as wandering, roving and rambling at will without restraint. Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but does not comprehend a case where animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them.’ ” Cooper v. Eberly, 211 Kan. at 668; Clark v. Carson, 188 Kan. at 265.
We find no reported cases under the county herd law, K.S.A. 47-301 et seq., since Miller v. Parvin, 111 Kan. 444, 207 Pac. 826 (1922). However, since Kansas courts in construing the statewide herd law borrowed the county herd law’s interpretation of “to run at large” and more clearly delineated it, we think it only appropriate to apply that more comprehensive definition to this county herd law case. Therefore, to prove that Stockman was negligent in this case for having allowed his cow to run at large in violation of K.S.A. 47-301, the Walborns needed to prove that under all the surrounding facts and circumstances the cow was unattended because Stockman failed to exercise due care in keeping it enclosed. Wilson v. Rule, 169 Kan. at 303.
Bearing those principles in mind, we have examined the record on appeal, including the trial transcript. We simply find no evidence to support a finding that Stockman was negligent within the meaning of the county herd law as adopted in Leavenworth County. The sum total of the Walborns’ evidence showed only how and where the accident occurred; what the condition of the fence next to the road was; and what damages the car sustained; Stockman, whose testimony was uncontroverted, testified that he did not own the pasture next to the road but a pasture two pastures away; that when he checked his fences by driving around the perimeter of the pasture after the accident the fences looked “pretty good . . . no strands down”; all posts were up.
The rule is well established that a factfinder cannot disregard uncontroverted and unimpeached testimony or the only evidence upon a material question in controversy and return a verdict in direct opposition. Briscoe v. Ehrlich, 9 Kan. App. 2d 191, 192, 674 P.2d 1064, rev. denied 235 Kan. 1041 (1984). Thus, in light of Stockman’s uncontroverted testimony, we must find that the Walborns failed to show a lack of due care on Stockman’s part in keeping his cow enclosed. Wilson v. Rule, 169 Kan. 303.
As for the theory that Stockman was negligent as a nonresident cow owner in failing to check on his cow more often, we are again faced with undisputed evidence that Stockman or his brother visited the pasture every “day or every other day”; that Stockman had never had a cow escape from his pasture; and that all fences enclosing the cow appeared to be adequate. In this respect the case is distinguishable from Cooper v. Eberly, 211 Kan. 657, upon which the Walborns rely. In view of the fact that defendant operated a recreational business which thousands visited each year and that trespassers were known to frequent the premises and to leave gates open so that his horses wandered out, the court in Cooper agreed that the defendant had failed to take reasonable safety precautions to prevent his horses from escaping. Unlike the Cooper defendant, there were no circumstances present here which would have made a reasonable person anticipate that his cow would escape.
In short, we see nothing in the circumstances of this case to establish that Stockman, in the exercise of due care, should have checked his pasture and on his cow more often than once each day or two, or, most importantly, that doing so would have prevented the occurrence of the accident.
The Walborns contended in their third negligence theory that there was no explanation for this accident other than that the fence was improperly constructed. We disagree. Kansas courts have consistently refused even to consider .the application of res ipsa loquitur to the livestock trespass case. An example is Wilson v. Rule, 169 Kan. 296, an analogous case in which the only evidence presented was that defendant’s two mules were loose and unattended on the highway when plaintiff s car collided with them. The Wilson court remarked:
“To [apply res ipsa loquitur] would be to hold that the fact an animal escapes from a pasture or corral or from custody while being led, ridden or driven or while hitched or tied to a hitching rack is so unusual that no other conclusion can be drawn from the occurrence itself than that the owner was negligent. Our knowledge of the ways of domestic animals forbid us doing that. We cannot assume merely because two mules were loose on the highway that the owner was negligent in the manner in which he confined them.” 169 Kan. at 304.
In sum, finding no evidence to support any theory of negligence, we must reverse the trial court.
The Walborns contend, however, that even if we reverse the judgment as to negligence, we should affirm the judgment on the ground of strict liability. We disagree.
For their argument that Stockman should be strictly liable, the Walborns rely on K.S.A. 47-311, which provides:
“The owners of animals permitted or allowed to run at large in violation of any order made in accordance with the provisions of the first section of this act shall be liable to any person who shall suffer damages from the depredations or trespasses of such animals, without regard to the condition of his or her fence . . . .” (Emphasis added.)
Their reliance is mistaken.
We observe first that K.S.A. 47-311 is part of an act (K.S.A. 47-309 to -312) separate and different from the county herd law (K.S.A. 47-301 to -305). K.S.A. 47-309 provides a means for voters to petition their county commissioners to make an order that neat cattle and other livestock be prohibited from running at large; it is the first section of the county petition act. Thus, when K.S.A. 47-311 imposes liability on owners who permit their animals to run at large “in violation of any order made in accordance with the provisions of the first section of this act,” it is referring to orders made after the commissioners have been petitioned to make such orders. K.S.A. 47-301 et seq., on the other hand, delegates to county commissioners the power to unilaterally issue an order prohibiting animals from running at large. Leavenworth is a herd law county by virtue of following K.S.A. 47-301 et seq. — not K.S.A. 47-309 et seq. Lindsay v. Cobb, 6 Kan. App. 2d at 171. Therefore, K.S.A. 47-311 as part of the county petition herd law simply has nothing to do with this case.
We observe secondly that “without regard to the condition of his or her fence” refers to the condition of the fence of the victim of the animal running at large — not the fence of the animal’s owner. At the time the herd laws were adopted, Kansas had (and still has) what is known as the fence law, K.S.A. 29-301 to 29-319. The fence law was enacted by the 1854 Territorial Legislature to effectuate an open range policy. It provides in essence that the “owner of an animal which trespasses on land of another, which is protected by a legal fence, is liable for the resulting damage without proof of fault.” Lindsay v. Cobb, 6 Kan. App. 2d 171, Syl. ¶ 1 (a fence law case arising in Leavenworth County before the herd law was adopted). The purpose of the county herd laws was thus to allow a county to opt out of the fence law by requiring owners to fence animals in rather than requiring others to fence animals out.
Therefore, the “without regard to the condition of his or her fence” language did not establish strict liability but distinguishes the herd law from the fence law; it made clear that under the herd law, one could still recover for injuries caused by animals running at large even if one did not take the precaution of fencing one’s land.
As a final matter, the Walborns urge that we reverse or distinguish the Supreme Court cases which define “to run at large” as including an element of negligence. We decline their invitation. First, Wilson v. Rule, 169 Kan. 296, and its progeny were cases decided under K.S.A. 47-122, which is not before us. Second, as previously mentioned, judicial construction of the county herd laws requires a showing of negligence because of the words “permit” or “allow” to run at large. E.g., Wilson v. Rule, 169 Kan. at 301; McAfee v. Walker, 82 Kan. 182, 107 Pac. 637 (1910). Since K.S.A. 47-122 states only “that it shall be unlawful” for animals to run at large, the Supreme Court was faced with an argument that the legislature intended to impose strict liability by leaving out the words “permit” and “allow.” The Supreme Court simply disagreed. Its construction of “to run at large” is as much a part of K.S.A. 47-122 as if written into it originally. Garden City Educators’ Ass’n v. Vance, 224 Kan. 732, 736, 585 P.2d 1057 (1978).
Finding no ground upon which the trial court’s decision can be based, we must reverse its judgment.
Reversed. | [
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Meyer, J.:
Defendant-appellant, First National Bank of King-man, Kansas, (Bank) appeals from a decision by the trial court in favor of plaintiffs-appellees Bud Palmer and Carl McCoy (Palmer and McCoy). The decision required the Bank to reimburse Palmer and McCoy for personal property taxes paid by them after they purchased the inventory of a bankrupt furniture business, Kingman Furniture Inc., (KFI) from the Bank.
KFI filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Reform Act on October Í7, 1980. The First National Bank of Kingman, in concert with the Small Business Administration (SBA), was a secured creditor of KFI. The Bank asserted their security interest in a petition for relief from the automatic stay provision in 11 U.S.C. § 362 (1982). On January 12, 1981, the bankruptcy court found that the SBA had a valid security interest in the inventory of KFI. The Bank, through assignment, obtained the SBA’s interest in the inventory and in the financing transaction in general. The bankruptcy court’s holding served to place the Bank in immediate possession of the personal property and gave it the right to sell the property and liquidate KFI’s indebtedness to the Bank and the SBA. The Bank subsequently sold the inventory to Palmer and McCoy, retailers of distressed goods, on May 5, 1981.
On April 1, 1981, the Kingman County Treasurer issued tax warrants relating to the 1980 personal property taxes of KFI. On May 7, 1981, a warrant was issued for the 1981 taxes.
On May 28, 1981, a warrant for delinquent taxes was served on the Bank. On June 3, 1981, a similar warrant was served on Palmer and McCoy. On June 4, 1981, Palmer and McCoy paid the sum of $6,133.28 in delinquent property taxes.
Property taxes are not a lien upon the property against which they are assessed unless there is specific statutory authority so providing. Robbins-Leavenworth Floor Covering, Inc. v. Leavenworth Nat’l Bank & Trust Co., 229 Kan. 511, 512, 625 P.2d 494 (1981). The only statutory authority in Kansas creating liens against an owner’s personal property for nonpayment of taxes is found in K.S.A. 79-2109 and K.S.A. 79-2110.
The Bank argues on appeal that neither K.S.A. 79-2109, 79-2110, nor 79-2111 entitle Palmer and McCoy to reimbursement of the delinquent property taxes paid for 1980 and 1981. The trial court did not rule on the applicability of K.S.A. 79-2109 and 79-2110, but instead found that under K.S.A. 79-2111, the payment of the delinquent property taxes was the obligation of the Bank. This court is not bound by the trial court’s interpretation of these statutes and may construe and determine their legal effect regardless of the construction placed upon them by the trial court.
K.S.A. 79-2109 has been discussed in only one recent case. In Robbins, 229 Kan. 511, the court stated: “The statute clearly provides if the owner sells all of a class of property, after assessment but before payment, to any one person, the taxes are immediately due and become a lien on the property and are collectable from the purchaser, who has a claim against the owner. The statute further provides if the property is seized and sold for taxes the purchaser has a claim against the owner for the taxes. The statute does not establish a tax lien in this case because under the statute, the sale must be made by one who is the owner of the property at the time of assessment.” Robbins, 229 Kan. at 514.
Although K.S.A. 79-2110 is not couched in terms such that the “owner” must also be the “seller,” this statute nevertheless provides that the person whose property is assessed must be the seller. This is only a semantically different wording for stating the owner must be the seller in order for the statute to create a lien on the personal property. Thus, the first question before the court is, who “owned” the inventory at the time the property taxes for 1980 and 1981 were assessed?
Personal property taxes are assessed January 1 of each year pursuant to K.S.A. 79-301. On January 1 of 1980, KFI was the owner of all its inventory. No bankruptcy petition had yet been filed, and KFI was not in default on its loan from the Bank. Although on January 1, 1980, the Bank did have a security interest in the inventory, merely being a secured creditor does not render one an “owner” of the property. As the Bank sold the inventory on May 5, 1981, K.S.A. 79-2109 and 79-2110 are rendered inapplicable here because the owner at the time of assessment was not the seller of the property.
On January 1, 1981, KFI was in bankruptcy, having filed a voluntary petition for bankruptcy on October 17, 1980. Thus, the determination of who was the actual “owner” of the property for purposes of the 1981 taxes becomes more complex. Palmer and McCoy assert that the Bank was the owner of the inventory, and the Bank asserts that the trustee in bankruptcy was the owner of the property for purposes of the 1981 taxes. The trial court found the Bank was owner of the KFI inventory. We submit none of these propositions is correct.
On January 1, 1981, KFI was in bankruptcy, but the Bank was still only a creditor, not an owner. Palmer and McCoy urge the court to consider the Bank an “equitable owner.” The factual situation as it existed on January 1, 1981, precludes such a consideration. The commencement of a bankruptcy case creates an estate. 11 U.S.C. § 541(a)(1)(1982). Under paragraph 1 of subsection (a), the estate is comprised of all legal or equitable interests of the debtor in property, wherever located, as of the commencement of the case. Creditors have no right to the property until their status is determined and their claim is allowed (11 U.S.C. §§ 502, 506 [1982]), and then, despite their secured status, will only recover property according to statutory priority lists. 11 U.S.C. § 726 (1982). Thus, on January 1, 1981, KFI was bankrupt and the property belonged to the estate — not to the Bank. Not until January 12, 1981, when the bankruptcy court determined the Bank to have a priority right to the inventory, did the Bank become an equitable owner. It was only at this time that the Bank had the right to take the property and sell it to cover the debt owed it by KFI. Thus, for purposes of the 1981 taxes, then, the “owner” of the property was not the “seller,” and K.S.A. 79-2109 and 79-2110 are rendered inapplicable.
K.S.A. 79-2109 and 79-2110, therefore, do not govern the sale of personal property in this case.
The Bank next contends it was error for the trial court to find that K.S.A. 79-2111 required the Bank to reimburse Palmer and McCoy for delinquent property taxes paid by them. We conclude K.S.A. 79-2111 is controlling because of corresponding law in bankruptcy.
It is important in this case that KFI filed a Chapter 7 voluntary petition for bankruptcy. The county herein did not file a proof of claim against the bankrupt estate. Although 11 U.S.C. § 501 (1982) states only that a creditor may file a claim against the estate, the general rule as to an individual filing under Chapter 7 is that 11 U.S.C. § 726 (1982) calls for distribution only to creditors who have in fact filed such a claim. Those creditors who have not filed do not participate in the distribution of the estate’s assets.
Where taxes are owed, however, 11 U.S.C. § 507(a)(6) provides a priority status for unsecured property tax claims of governmental units. Further, 11 U.S.C. § 523(a)(1)(A) provides that these priority tax claims are not affected by a discharge in bankruptcy provided under §§ 727, 944, 1141, or 1328 of Title 11. More specifically, 11 U.S.C. § 727(a)(1) provides that a corporation may not receive a discharge from any claims against it, tax or otherwise. Corporate debts are thus “excepted” from discharge. This is a legislative change in policy designed to avoid trafficking in corporate shells.
The adjudication in bankruptcy of a corporation filing a voluntary petition does not operate as a dissolution of the corporation or termination of its existence. Monroe v. Scofield, 135 F.2d 725 (10th Cir. 1943); Carpenter Co. v. Noble, 140 Col. 486, 345 P.2d 731 (1959). The failure of a creditor to file a claim as to a debt which is excepted from bankruptcy discharge does not bar the creditor from proceeding against the debtor or the debtor’s property. In this case then, the county’s failure to file a claim against KFI has no effect other than to mean it' will not participate in the distribution of KFI’s assets and will have to proceed outside the bankruptcy process. Because Chapter 7 does not discharge a corporation’s debts, the county’s failure to file a claim against the estate does not foreclose other avenues of recovery.
We are thus presented with the unique prospect of applying K.S.A. 79-2111 to the facts of the instant case. This statute provides for a charge against the proceeds of personal property of a tax debtor sold after seizure upon any legal process. The question becomes: Did the Bank acquire possession of the KFI inventory as a result of seizure by legal process? Robbins, 229 Kan. 511, is instructive.
In Robbins, the Supreme Court expounded on the term “legal process,” describing it in its ordinary and commonly accepted meaning as “proceedings begun by a writ, warrant, summons, order or mandate; proceedings which invoke the aid of judicial process or decree.” Robbins, 229 Kan. at 515. Applying Robbins to the case before us, we conclude the Bank herein received, and subsequently sold, the KFI inventory as a result of seizure by legal process. The voluntary petition for bankruptcy, the corresponding assumption of ownership of KFI’s inventory by the estate under § 541, and the authorization by the bankruptcy court giving the SBA (and by assignment the Bank) “immediate possession of [KFI inventory] with the right to sell said personal property in the manner prescribed by law thereby reducing the debtor’s indebtedness to the [SBA],” all are one process — bankruptcy — which meets the description of the term “legal process” espoused by the Supreme Court in Robbins. This being so, when the Bank sold the property to Palmer and McCoy, the requisites of K.S.A. 79-2111 were met, and the statute, by its wording, entitled the county to receive payment for delinquent property taxes owed out of the proceeds of that sale. The obligation to ensure Kingman County received payment out of the proceeds of the sale was thus on the Bank.
We must now consider what effect the payment by Palmer and McCoy of the debt owed Kingman County had on the Bank’s obligation. The Bank urges the court to view Palmer and McCoy’s payment of the delinquent taxes as voluntary — and thus an act which does not entitle them to reimbursement.
The trial court determined Palmer and McCoy were entitled to a reimbursement of sums paid by them, relying on the principle that, where one is compelled to pay money which another is bound by law to pay, the law implies a promise by the latter to reimburse the person so paying. We agree with the trial court’s determination.
One who pays a tax voluntarily, that is, without compulsion or duress, has no valid claim for its repayment. State, ex rel., v. Board of County Comm’rs, 172 Kan. 601, 242 P.2d 527 (1952); Washington Township v. Hart, 168 Kan. 650, 215 P.2d 180 (1950). This is what is known as the “volunteer rule,” which provides that a party who, without mistake, fraud, or duress, voluntarily pays money on a demand which is not enforceable against him, cannot recover the amounts paid. In re Fees of State Bd. of Dentistry, 84 N.J. 582, 588, 423 A.2d 640 (1980). This is because every man is supposed to know the law, and if he voluntarily makes a payment which is not compelled to be made by him under the law, he cannot afterward assign ignorance of the law as a reason why he should be furnished with legal remedies to recover it. Johnson Controls v. Carrollton-Farmers, Etc., 605 S.W.2d 688, 689 (Tex. Civ. App. 1980); In re Fees of State Bd. of Dentistry, 84 N.J. 582. In contrast, where one makes a payment under duress, a valid claim for repayment does exist. Bush v. City of Beloit, 105 Kan. 79, 181 Pac. 615 (1919); Jackson County v. Kaul, 77 Kan. 715, 96 Pac. 45 (1908); Johnson Controls v. Carrollton-Farmers, Etc., 605 S.W.2d 688; Nat’l Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687 (1940); Austin Nat’l Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 243 (1934).
We must, therefore, determine whether Palmer and McCoy’s payment was made freely and voluntarily, or was the result of compulsion and duress and, thus, was involuntarily made.
If duress or compulsion exists in this case, it is present because of the tax warrant issued by the Kingman County Sheriff s Department, a copy of which was served on Palmer and McCoy. K.S.A. 79-2111 provided that after the Bank sold the KFI inventory, all taxes on the personal property immediately came due. Under K.S.A. 79-2101 et seq., after a tax warrant is issued, if the delinquent taxes are not paid, statutory provisions allow seizure and sale of the delinquent taxpayer’s property.
This situation is closely analogous to that before the court in Bank of Holyrood v. Kottmann, 132 Kan. 593, 296 Pac. 357 (1931). In Kottmann, a Bank paid an amount of intangibles tax in excess of what was owed. The Bank thereafter sued to recover the excess paid; however, such was objected to by Ellsworth County, the county claiming the excess paid was a voluntary payment which could not be refunded. The Kansas Supreme Court held otherwise, and concluded that, under R.S. 1923, 79-2101 (1931 Supp.) (now K.S.A. 79-2101 et seq.), had the Bank delayed payment of the full amount allegedly owed, “the processes of law to enforce collection of those illegal taxes and penalties and costs would have been set in motion against it.” The court thus found the threat of seizure and sale created by the statute made the Bank’s payment of the excessive taxes involuntary. This position was articulated again in First National Bank v. Sheridan County Comm’rs, 134 Kan. 781, 783, 8 P.2d 312 (1932), wherein the court held the payment of tax pursuant to threat of a tax warrant constituted an involuntary payment.
We adopt the rationale used by the court in Kottmann, and conclude that Palmer and McCoy’s payment in the instant case was involuntary. Consequently, the panoply of the rules discussed regarding payment of the obligation of another comes into play. We conclude, therefore, that the trial court was correct in its determination that Palmer and McCoy are entitled to reimbursement from the Bank for the delinquent property taxes paid by them.
The Bank urges us to follow the recent case of In re American Properties, Inc., 30 Bankr. 239 (Bankr. D. Kan. 1983). In Ameri can Properties, Saline County, Kansas, had notice of the debtor’s bankruptcy but failed to file proof of any claims relating to real estate taxes due from the bankrupt corporation. The county argued that it had received insufficient notice of the bankruptcy but the bankruptcy court found as a fact that the county had actual knowledge of the bankruptcy and had failed to file a claim in spite of that knowledge. That failure barred it from payment of its claim through the debtor’s plan of reorganization. American Properties, 30 Bankr. at 246. The court stated:
“The Board is barred by the doctrine of res judicata from raising any arguments concerning the propriety of the debtor’s strategy to dispute all claims under 11 U.S.C. § 1111(a), and is barred under the confirmed plan from enforcing its pre-confirmation tax lien.” American Properties, 30 Bankr. at 247.
American Properties is not dispositive of the case now before us. American Properties involved a corporation’s reorganization under Chapter 11 of the Bankruptcy Reform Act. Under Chapter 11, a corporate debtor is discharged from all debts arising before confirmation, whether or not a proof of claim is filed. 11 U.S.C. § 1141(d) (1982). The debts being discharged, Saline County had no right to pursue remedies against the bankrupt corporation outside the bankruptcy process. In the instant case, KFI filed a Chapter 7 voluntary petition for bankruptcy. As discussed earlier, such does not discharge the corporation’s debts. 11 U.S.C. § 727(a). As such, Kingman County was entitled to pursue avenues of recovery outside bankruptcy and thus was entitled to use the remedies available in K.S.A. 79-2111.
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Briscoe, J.:
The City of Olathe, the city planner and the city building inspector appeal a judgment of the district court upholding a decision of the Olathe Board of Zoning Appeals to grant a variance to C & C, Inc.
C & C operated a Vickers truck stop and filling station in Olathe, Kansas. The truck stop is adjacent to an elevated portion of Interstate 35. For some time, C & C has displayed its business name on two free-standing pole signs, 20 and 37 feet high.
In January, 1981, the City adopted a sign ordinance as part of its zoning regulations. The ordinance prohibited pole signs, but permitted businesses to maintain preexisting nonconforming signs. The ordinance provided that “any change in the business or tenant such as, but not limited to, name, logo, or updating of corporate symbols, shall be deemed a new sign and shall require a permit and shall conform to the provisions of this Chapter.”
In March, 1981, C & C applied to the Board of Zoning Appeals for a variance that would permit the company to change its signs from “Vickers” to “Apeo” without complying with the sign ordinance. The name change was not C & C’s choice. Total Petroleum had acquired both Vickers and Apeo, and required all Vickers dealers to operate under the Apeo name or lose their franchise. The Board held public hearings on C & C’s request and granted the variance on November 5, 1981.
The City, the city planner and the building inspector appealed to the district court. The court held that the City had no standing under K.S.A. 12-715 to challenge the variance. In addition, the court held that the Board’s decision to grant the variance was not unreasonable.
We first address whether the City of Olathe, the city planner and the city building inspector have standing to appeal from Board decisions.
K.S.A. 12-715 governs appeals to and from the Board:
“Appeals to the board may be taken by any person aggrieved, or by any officer of the city or any governmental agency or body affected by any decision of the officer administering the provisions of the zoning ordinance. . . . Any person, official or governmental agency dissatisfied with any order or determination of said board may bring an action in the district court of the county in which such city is located to determine the reasonableness of any such order or determination.”
The Board contends that a city is not a governmental agency and that a city may appeal only to a board, and then only through an officer.
In Carroll v. Kittle, 203 Kan. 841, 847, 457 P.2d 21 (1969), the court held that municipalities are “agencies of the state for governmental purposes.” Under this definition, a city is a governmental agency, and has standing to appeal, both to and from a board.
City officials also have standing to appeal from the Board. K.S.A. 12-715 provides that any “official . . . dissatisfied with any order” of a board may appeal. The planner and inspector are city officials charged with enforcement of the zoning ordinance. Under the plain language of the statute, they have standing to appeal a Board decision.
The Board argues that city officers cannot appeal from a Board decision because, under the statute, “any officer of the city” may appeal to the Board, but “any official” may appeal from a Board decision. We conclude that city officers are officials entitled to appeal from a Board decision. An official is an officer. Black’s Law Dictionary 978 (5th ed. 1979). The term “any official” is broader than “any officer of the city.”
The Board argues that as an agency of the city, it cannot sue or be sued as a separate entity. The Board relies on Murphy v. City of Topeka, 6 Kan. App. 2d 488, 491, 630 P.2d 186 (1981), in which the court held:
“Absent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or to be sued as a separate entity; the city is a necessary and indispensable party to any action filed either by or against the agency.” (Emphasis added.)
The Board ignores the emphasized language. K.S.A. 12-715 expressly provides that parties dissatisfied with a Board decision “may bring an action in the district court of the county in which such city is located to determine the reasonableness of any such order or determination.” The only logical defendant in an action to determine the reasonableness of a Board decision is the Board. K.S.A. 12-715 expressly authorizes actions against a Board of Zoning Appeals.
The City contends the Board exceeded its authority by permitting a use (new pole signs) not permitted by the zoning ordinance. We conclude the Board acted within its authority.
K.S.A. 12-715 authorizes boards of zoning appeals to grant variances from zoning ordinances under certain conditions. The statute provides, however, that: “Such variance shall not permit any use not permitted by the zoning ordinance in such district.” Emphasis added.
The very purpose of a variance is to permit a landowner “ ‘to establish or maintain a use which is prohibited by the zoning regulations.’ ” Weeks v. City of Bonner Springs, 213 Kan. 622, 631, 518 P.2d 427 (1974); Koch v. Board of County Commissioners, 185 Kan. 259, Syl. ¶ 2, 342 P.2d 163 (1959). Yet the statute authorizing variances (K.S.A. 12-715) expressly provides that a variance “shall not permit any use not permitted by the zoning ordinance . . . .” Interpreted literally, that language would prohibit all variances.
As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982). If possible, the courts should adopt a construction that will give effect to the entire statute by reconciling different provisions to make them consistent, harmonious and sensible. State ex rel. Stephan v. U.S.D. 428, 231 Kan. 579, 584, 647 P.2d 329 (1982).
Many states distinguish “use variances” from “area variances.” The terms are defined in 6 Rohan, Zoning and Land Use Controls § 43.01 (2) (1984):
“Most zoning ordinances authorize two types of variances: use variances and area variances. A use variance allows a landowner to use existing property in a manner not permitted by the ordinance and inconsistent with uses in the surrounding area. An example of a use variance is a commercial establishment, such as a nursery or garage, in a residential zone.
“An area variance (also known as a bulk, dimensional, construction or non-use variance) authorizes deviations from restrictions upon the construction and placement of buildings and other structures. Specifically, this device allows modification of area, yard, height, floor space, frontage, density, setback and similar restrictions. An example of an area variance is where a building is constructed with floor area in excess of the limit prescribed in the ordinance.”
In most states it is harder to obtain a use variance than an area variance. 6 Rohan, § 43.01 (2); 3 Anderson, American Law of Zoning §§ 18.06-18.07 (2d ed.1977). K.S.A. 12-715 forbids use variances altogether, but permits area variances.
Given the definition of an area variance, C & C sought an area variance in this case. The company applied for permission to maintain pole signs that did not conform to height, set-back and other requirements. The use of the property would remain the same. K.S.A. 12-715 permits this kind of variance.
The City also contends there was insufficient evidence to support the Board’s decision to grant a variance to C & C.
K.S.A. 12-715 establishes standards for the granting of variances, and five conditions which must be satisfied:
“A request for a variance may be granted in such case, upon a finding by the board that all of the following conditions have been met: (1) That the variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or the applicant; (2) that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents; (3) that the strict application of the provisions of the zoning ordinance of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application; (4) that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare; and (5) that granting the variance desired will not be opposed to the general spirit and intent of the zoning ordinance.” (Emphasis added.)
The scope of review of a zoning variance, as stated in Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 749, 534 P.2d 1267 (1975), is
“ ‘restricted to considering whether, as a matter of law: (a) the tribunal acted fraudulently, arbitrarily or capriciously; (b) the administrative order is substantially supported by evidence; and (c) the tribunal’s action was within the scope of its authority.’ (Neeley v. Board of Trustees, Policemen's & Firemen’s Retirement System, 212 Kan. 137, 510 P.2d 160, Syl. ¶ 2, following Lauber v. Firemen’s Relief Association, 202 Kan. 564, 451 P.2d 488.)”
Our scope of review of the granting of the variance is the same as the trial court’s. We examine whether the order was “ ‘substantially supported by evidence’ ” and whether the action of the board of zoning appeals “ ‘was within the scope of its author ity.’ ” Stice, 216 Kan. at 749. Stice indicates that'thesé two factors flow together, for in determining whether the order was within the Board’s authority we determine whether there is substantial evidence to support the findings required to grant the variance. We address in turn the five conditions enumerated in K.S.A. 12-715.
(1) A Condition Unique to the Property
There was evidence that C & C needed the pole signs because of a unique situation. C & C’s truck stop is adjacent to an elevated portion of Interstate 35. Without pole signs, C & C’s advertising cannot be seen from the highway. This condition affects C & C’s business which depends on customers from the highway. C & C’s situation is unique to only those businesses that depend on customers from the highway and are located adjacent to an elevated section.
(2) Adverse Effect on Neighbors
Although the city planning staff asserted that the variance would harm adjacent owners and residents “because the sign will distract from the appearance of the shopping center and as other store owners comply with the law, the applicant’s sign will become increasingly detractive,” we do not see the harm. There was no evidence that permitting a name change on a preexisting sign would have significant adverse effect on neighbors. A pole sign with “Apeo” lettering is no more offensive than a pole sign with “Vickers” lettering.
(3) Unnecessary Hardship
In Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, Syl. ¶ 5, the court defined “unnecessary hardship”:
“To constitute an unnecessary hardship justifying a variance, the use restriction, viewing the property in the setting of its environment, must be so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property; or there must be convincing proof that it is impossible to use the property for a conforming purpose; or there must be factors sufficient to constitute a hardship that would in effect deprive the owner of his property without compensation.”
C & C owns an operating truck stop and filling station. The owner of C & C testified before the Board that, without signs which are visible from the highway, he would go out of business. Further, the name change on the sign was not instigated by C & C, but was forced upon C & C as a result of a change in a national company’s identification.
In Stice, the court reversed the county board of zoning appeals because there was no hardship shown by the owner who sought the variance. Stice is distinguishable from this case. There, the landowner had purchased undeveloped land, intending to construct an automobile sales, and service facility. The claimed hardship was the loss of potential profitable use. Here, C & C will suffer the loss of an ongoing business unless the sign variance is granted. C & C’s loss is real and immediate and not of its own making.
(4) Effect on Public Health, Safety & General Welfare
The planning staff asserted that the variance would be contrary to public health, safety and welfare “because the variance will undermine the Zoning Ordinance regulations concerning signs.” This argument is not compelling. Any variance necessarily “undermines” the governing zoning ordinance to some extent. It is difficult to perceive how an “Apeo” pole sign is any more harmful to the public than a “Vickers” pole sign.
(5) Conformity with the General Spirit and Intent of the Zoning Ordinance
All variances are contrary to the letter of the governing zoning ordinances. The issue is whether the variance is contrary to the general spirit and intent of the ordinance.
A board of zoning appeals cannot grant a variance that “would amount to a substantial departure from the established zoning.” Stice, 216 Kan. 744, Syl. ¶ 8; emphasis added. The variance in Stice was substantial. It permitted an auto sales and service business in the middle of a residential district. Here, the variance is not substantial. The “Vickers” pole signs were permitted as a preexisting nonconforming use. The variance simply permitted C & C to change the name on the signs.
There was substantial evidence to support the Board’s decision to grant the variance.
Given our resolution of the case on the merits, we need not address whether the trial court improperly raised the issue of the City’s acquiescence in a prior variance case, and whether acquiescence bars review of this variance.
Affirmed. | [
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Briscoe, J.:
Defendant, Dan R. Ohlerking, appeals the district court’s dismissal of his appeal from a municipal court conviction for driving while under the influence (DUI).
Defendant was arrested for DUI in violation of Wichita City Ordinance 11.38.150(a). As this was defendant’s first DUI arrest, he was allowed to enter into a diversion agreement. Under the terms of the agreement, prosecution would be reinstated in the event of a subsequent DUI violation. After defendant’s two subsequent arrests for DUI, his diversion was terminated and prosecution reinstated. He was first convicted in the diversion case and then in the two subsequent cases. All three convictions were appealed to Sedgwick County District Court. The district court dismissed the appeal of the diversion case for lack of jurisdiction, holding that “[b]y entering into a Pre-Trial Diversion Agreement, a person gives up all of his rights to a further trial other than a trial on stipulation of facts in Municipal Court.” Ohlerking appeals the district court’s dismissal of his appeal.
While it is true defendant waived certain rights by entering into a diversion agreement, his right to appeal a municipal court conviction was not foreclosed either by the terms of this specific agreement, or the statute governing diversion agreements. In fact, the statute regulating the use of diversion agreements in alcohol-related offenses provides the method for appealing a conviction from a municipal court to the district court.
“(b) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging an alcohol related offense, the diversion agreement shall include a stipulation, agreed to by the defendant and the city attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.” K.S.A. 12-4416.
The trial court erred in dismissing this case for lack of jurisdiction. •
Reversed and remanded to the district court for further proceedings. Given our decision on defendant’s first issue, the two remaining issues which challenge the constitutionality of the sentencing ordinance are not ripe for decision in this case. These issues were addressed on this date in the unpublished consolidated cases No. 57,555 and No. 57,556. | [
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Meyer, J.;
After a trial to the court, Everett McLaughlin (defendant) was convicted of driving a truck in excess of the allowed rear axle weight and in excess of the allowed extreme axle weight, both violations of Overland Park Municipal Ordinance TC-1190 § 12.04.196.1. Defendant appeals, challenging the constitutionality of the ordinance and charging the ordinance as violative of K.S.A. 12-3009 et seq.
On May 20,1983, at approximately noon, two City of Overland Park police officers had a cement truck stopped to investigate the weight of its load. While talking to the driver of the stopped cement truck, the officers overheard an unidentified person’s voice come over the truck’s radio. The person stated he knew his truck was overweight, knew the police were stopping trucks for weight checks, and thus was going to drive down 119th Street to avoid being stopped. The two officers immediately proceeded to 119th Street to wait for the driver they had heard on the radio. The officers flagged down the first cement truck to pass by. The driver of that truck stated the cement truck coming right behind him was overweight. The two officers stopped this next truck. It was a cement truck driven by Everett McLaughlin, defendant.
Once the defendant’s truck was stopped, the officers asked for defendant’s load sheet. This sheet stated defendant was carrying ten yards of concrete. Portable scales were called for and defendant’s truck was weighed. Complaint No. 22356 was issued, charging that defendant’s vehicle was 16,000 pounds in excess of the allowed rear axle weight; and Complaint No. 22709 was issued, charging that defendant was 17,000 pounds in excess of the allowed “bridge weight.”
On July 26,1983, the case was tried on the record in municipal court. The defendant was found guilty on both charges and fined a total of $3,200. He appealed his conviction to the Johnson County District Court.
On November 18,1983, defendant’s case came on for trial. The plaintiff moved to amend Complaint No. 22709 pursuant to K.S.A. 12-4505 and K.S.A. 22-3610 to read “in excess of allowed weight, distance between extreme axles.” The court allowed the amendment. The plaintiff was allowed to present its case in chief at the conclusion of which the case was continued until February 3, 1984, at defendant’s request.
On February 3, 1984, the court found the defendant guilty on both counts. This appeal follows.
Defendant first contends that Overland Park Municipal Ordinance TC-1190 § 12.04.196.1 violates his due process and equal protection rights because it excludes defendant’s cement truck from a category of vehicles not subject to the ordinance.
Overland Park Municipal Ordinance TC-1190 § 12.04.196.1 incorporates by reference, as if set out in full, the provisions of K.S.A. 8-1909. It is actually, therefore, K.S.A. 8-1909 to which defendant bases his constitutional challenges. This statute, in subsection (a)(2), provides certain weight limitations on vehicles. These weight limits are based upon distance in feet between the first and last axles of vehicles. It is these weight limits which defendant was found guilty of violating. In subsection (a)(3) of K.S.A. 8-1909, it is stated that the table of weight limits in subsection (2) is not applicable “to truck tractor and dump semitrailer or truck trailer combination^]. . . .” Defendant raises his constitutional challenges based upon the omission of cement trucks from the list of vehicles not subject to the weight restrictions. Defendant argues this omission is a denial of due process and equal protection under the law.
The equal protection clause of our Constitution goes no further than to prohibit invidious discrimination. Zerr v. Tilton, 224 Kan. 394, 397, 581 P.2d 364 (1978). Defendant does not quarrel with the power of a state to make classifications for legislative purposes. Indeed, the United States Supreme Court has held that states and municipalities may create statutory classifications in order to regulate local affairs as long as the classifications are reasonably drawn and are rationally related to legitimate state interests. See New Orleans v. Dukes, 427 U.S. 297, 303, 49 L.Ed.2d 511, 96 S.Ct. 2513 (1976). See also Iowa National Mut. Ins. Co. v. City of Osawatomie, Kansas, 458 F.2d 1124 (10th Cir. 1972); Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983); Aubertin v. Board of Cty. Com’rs of Woodson Cty., 588 F.2d 781 (10th Cir. 1978).
In the instant case, the defendant denies there is any rational basis for distinguishing between cement trucks and those other classes of trucks not required to meet the weight limitations of K.S.A. 8-1909. Defendant divides his arguments into three parts.
First, defendant argues there is no difference between concrete trucks and truck tractors, dump semitrailers or truck-trailer combinations. Defendant states that his truck, like the others, is used in the transportation of construction materials and thus should be treated like the others.
Defendant’s second contention is that by excluding truck tractors, dump semitrailers and truck-trailer combinations, the state is giving a commercial advantage to the asphalt industry. Defendant states that the weight limitations imposed by the statute force him to make more trips to do the same job as trucks carrying asphalt, which can carry heavier loads. Defendant claims his cost is thus increased and the asphalt industry has a competitive edge.
Finally defendant argues that the legislative purpose of K.S.A. 8-1909 is to promote construction. Defendant contends the concrete industry is as interested in construction as the asphalt and other industries. He contends that if the legislature intended to promote construction, cement trucks should be freed from any weight restrictions just as are other trucks hauling construction materials.
The City of Overland Park, in contrast, asserts that the legitimate state interest present in the statute is “safety.” The plaintiff presented rebuttal evidence in this case through testimony of Mr. Eugene Pugh, safety specialist with the Kansas Department of Transportation. Mr. Pugh testified that he had been with the department for 34 years and that he was working for the department in 1973 when the exemption in question was placed in K.S.A. 8-1909. He testified that from a safety standpoint, if the exemption were not contained in the statute, the trucks so exempted would be in danger of tipping over when they divested themselves of their loads. For safety purposes, it is necessary that those trucks be allowed to carry heavier loads.
Mr. Pugh testified that all the trucks that are exempted in K.S.A. 8-1909(3) dump their loads by rising to dump them. He testified that the defendant’s cement truck was not exempted because it does not rise to dump and thus there is no danger of tipping due to a light load. The cargo area on a cement truck does not change position to divest itself of its load, as do the exempted trucks.
Defendant denies that there is a legitimate state interest of safety present in K.S.A. 8-1909. Defendant states that the length of a dump bed in truck tractors, semitrailer trucks and tractor-trailer combinations is not a safety concern, thus safety could not have been the purpose behind the statute. Defendant also argues that K.S.A. 8-1909(b)(l) and (2) contain certain safety requirements for every vehicle. He argues subsection (b)(1) and (2) are the safety provisions of K.S.A. 8-1909; thus subsection (a)(3) could not have been written for safety purposes also.
The district court found as follows: “The Court finds that O.P.M.C. 12.04.196.1 is constitutional and not discriminatory, due to its purpose of promoting public safety.”
In State v. Shouse, 8 Kan. App. 2d 483, 660 P.2d 970 (1983), the defendant was convicted of driving an overweight truck in violation of K.S.A. 8-1909. Following his conviction, he appealed challenging the constitutionality of the statute on the basis that 8-1909 denied him equal protection of the law because it exempted trucks carrying certain cargos but not his cargo of logs. Under the statute, a truck was exempt from the weight require ments where it was used exclusively for the transportation of sand, salt, and other materials, when such vehicles were used for transportation to a construction site, highway maintenance, or storage facility. The defendant Shouse argued that the statute impermissibly distinguished among motor carriers on the basis of the content of the load, and thus violated the guarantee of equal protection. This court rejected the defendant’s contention, holding that equal protection of the laws was not violated merely because trucks carrying cargos different from that carried by defendant were exempt.
There are cases in other jurisdictions where the issue raised in this case was presented for determination. The general rule to be applied in determining the constitutionality of an exemption to statutory limitations on the weight, size, and load of motor carriers and trucks is stated as follows in 7A Am. Jur. 2d, Automobiles and Highway Traffic § 196:
“It has been held or recognized in numerous cases, either expressly or by implication, that the state has the power to enact and enforce reasonable and nondiscriminatory regulations limiting the weight of vehicles or their loads with respect to their use of the highways. The basis for this exercise of the police power is the protection of the highways, for the construction and maintenance of which the state is responsible.
“To be valid, state regulations of the weight of a motor vehicle or the load thereon to be transported must not be unreasonable, arbitrary, or discriminatory in their provisions or operation. But the reasonableness of various types and degrees of statewide weight limitations imposed by states has been usually upheld, the general view being that the states have wide legislative discretion in the matter. In numerous cases upholding weight limitations, the courts have rejected contentions of illegal discrimination with respect to classifications differentiating between different types of vehicles, vehicles used in different types of business, freight motor carriers and railroads, trucks and passenger buses, private vehicles and those licensed as common carriers', private vehicles and government vehicles . . . and the like.” (Emphasis added.)
An annotation in 75 A.L.R.2d 376 discusses the power of a state or municipality to limit the weight of a vehicle or its load with respect to the use of streets or highways. The annotation cites many cases which recognize that although, constitutionally speaking, the power of government to impose weight limitations upon vehicles using the highways is limited to the nondiscriminatory exercise thereof, contentions that many different kinds of classifications employed constituted invalid discrimination have been almost universally rejected. The cases which involve discrimination as to weight restrictions between vehicles carry ing different cargos hold that such a classification is valid and does not violate equal protection of the laws. In the following cases, a state statute restricting the size and weight of trucks was held not to be invalid because different forms of vehicles were allowed to carry different cargos: Morris v. Duby, 274 U.S. 135, 71 L.Ed. 966, 47 S.Ct. 548 (1927); Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1167, 52 S.Ct. 581 (1932); Ex Parte Sterling et al., 122 Tex. 108, 53 S.W.2d 294 (1932); Phares v. Bilbo Transp. Co., 53 S.W.2d 512 (Tex. Civ. App. 1932).
The test of whether a classification offends the equal protection clause involves the consideration of whether the asserted state objective is furthered by the classification. To determine whether the state objective is furthered, a “reasonable basis” test is used, under which the statute in question is clothed with a presumption of constitutionality and the burden of proof to show the invalidity of the statute is placed upon the one attacking its validity. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. at 519. Moreover, Kansas courts have determined that the reasonable basis test is violated only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982).
Thus, as the statute possesses a presumption of constitutionality, as the burden of showing invalidity is on defendant, and as it cannot be said the classifications used are “wholly irrelevant” to the furtherance of safety, it appears a legitimate state interest exists. As such, it cannot be said the statute is unconstitutional on equal protection grounds. Therefore, if K.S.A. 8-1909 is not unconstitutional, the Overland Park Municipal Ordinance incorporating the statute likewise does not violate equal protection of the law.
The defendant’s second contention on appeal concerns the precise meaning of K.S.A. 12-3009 and K.S.A. 12-3010. These two statutes govern the incorporation of state statutes into local ordinances.
K.S.A. 12-3009 delineates the subjects which may be incorporated into local ordinances by reference as follows:
“Any city is hereby authorized and empowered to incorporate in an ordinance by reference, in the manner hereinafter provided, any standard or model code or ordinance, [or] regulation having the effect of law of a state officer, board or other agency, or statute, or portions thereof on any subject on which a city may legislate . . .
The specific requirements for incorporation by reference are then provided in K.S.A. 12-3010 as follows:
“The provisions of any . . . statute or portions thereof incorporated in an ordinance by reference shall be as much a part of the ordinance as if the same had been set out in full therein when the ordinance shall have been passed by the governing body of the city and published in the manner provided by law, . . . Provided further, . . . statutes or portions thereof shall be identified by appropriate reference to Session Laws, General Statutes or Supplements thereto ... .”
Defendant contends the ordinance is void because it does not specify the year of the statute incorporated and because it does not refer to the Session Laws, from which the statute so incorporated was taken.
Overland Park Municipal Ordinance TC-1190 was adopted on October 18, 1982.
Section 21 of TC-1190 reads as follows:
“SECTION 21. Overland Park Municipal Code Section 12.04.196.1 is hereby added and shall read as follows:
“12.04.196.1. VEHICLE HEIGHT, WEIGHT LENGTH, AND WIDTH.
“(c) The gross weight of vehicles as to wheel and axle loads shall not exceed the limitations prescribed by K.S.A. 8-1908 or any amendments thereto, which are incorporated by reference as if set out in full herein.
“(e) The gross weight of any vehicle or combination of vehicles shall not exceed the limitation prescribed by K.S.A. 8-1909 or any amendments thereto, which are incorporated by reference as if set out in full herein.”
At the time this ordinance was adopted, K.S.A. 8-1908 and K.S.A. 8-1909 existed in the general statutes, and had been amended by the state legislature in 1981. Thus, as of October 18, 1982, both statutes appeared in the 1981 Supplement to the General Statutes of Kansas. As statutory supplements are considered part of the general statutes themselves, the amended versions of K.S.A. 8-1908 and K.S.A. 8-1909 were, theoretically, present in the general statutes.
K.S.A. 12-3010 provides that in order for a city ordinance incorporating a statute to be valid, “statutes or portions thereof shall be identified by appropriate reference to Session Laws, General Statutes or Supplements.” The trial court found that the city ordinance correctly identified the statute book containing the most recent version of the law. On appeal a statute may be construed and its legal effect determined by the appellate court.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs. See Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984). Although we found no Kansas cases to guide us in our interpretation of the statute, the language chosen by the legislature leads us to conclude that it is sufficient if a municipal ordinance incorporates a statute by reference to the general statutes and amendments which may, from the time the ordinance is adopted, occur. All that K.S.A. 12-3010 requires is that statutes incorporated into municipal ordinances be appropriately identified. K.S.A. 12-3010 provides that it is appropriate if a local ordinance identifies a statute by reference to the general statutes. This the Overland Park ordinance, by referring to K.S.A. 8-1908, K.S.A. 8-1909, and any amendments thereafter, specifically did. The district court did not err in finding that the city ordinance met the statutory requirements of K.S.A. 12-3010.
The defendant also contends, however, that the Overland Park ordinance is invalid because the City does not have three official copies of K.S.A. 8-1908 and K.S.A. 8-1909 attached to it. K.S.A. 12-3010, however, does not require that official copies of state statutes be kept on file. With regard to the requirement that official copies be kept of record, K.S.A. 12-3010 mandates this only for “standards,” “model codes,” “ordinances,” or “state regulations.” K.S.A. 12-3010 does not refer to “statutes” in its listing of those documents of which copies must be kept. A state statute is not a standard, a model code, or an ordinance. Likewise the term “state regulation” is not synonymous with “statute” because the two are used separately and distinctly elsewhere in the body of K.S.A. 12-3010. When “statute” is meant to be included in various parts of K.S.A. 12-3010, the legislature included it. However, the last two provisions of the statute specifically omit the term. Thus, the legisture has not required that three official copies of any statute incorporated into a municipal ordinance be kept on file.
The defendant’s final contention is that the Overland Park Municipal Ordinance is void because, although it incorporates K.S.A. 8-1908 and K.S.A. 8-1909, it does not specify which version of these statutes, the version present in the 1981 amendment or the pre-amendment version, is being incorporated. Defendant uses as illustration the fact that 8-1909, before its July 1,1981, amendment by the legislature, had weight restrictions based upon “bridge weight” which were later omit-' ted by the amendment to the statute. Defendant contends the Overland Park ordinance is unconstitutionally vague because it is unclear whether “bridge weight” remains a statutory weight restriction. As support for his argument, defendant states that he was originally charged with a violation of “bridge weight” and that this charge had to be later amended because no such weight restriction was present in K.S.A. 8-1909.
The City of Overland Park, in contrast, contends that K.S.A. 8-1908 and K.S.A. 8-1909 are clear and specific and that “O.P.M.C. § 12.04.196.1 incorporates the state statute by reference in a way that could not be clearer.” The City contends defendant had no confusion regarding the violations of the statutes.
Due process requires that a law provide sufficient guides for police and other persons. Kansas Retail Trade Co-op v. Stephan, 522 F. Supp. 632 (D. Kan. 1981). A statute or ordinance must give fair warning to those potentially subject to it. An ordinance which forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. Cardarella v. City of Overland Park, 228 Kan. 698, 703, 620 P.2d 1122 (1980). The district court determined that the Overland Park Municipal Ordinance met all required constitutional standards. Where the district court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984).
The evidence in this case supporting the trial court’s conclusion that the municipal ordinance was constitutional is the fact that the police officers overheard defendant state he knew his truck was overweight. Specifically, one officer testified he overheard someone (who later turned out to be the defendant) say “he would go down to 119th Street instead of coming across College Boulevard, and miss us, as he knew he was overweight.” Since the test for vagueness is whether a man of ordinary intelligence could readily discern a statute’s meaning, this evidence weighs heavily against defendant. It shows that defendant knew there were weight limits and that these limits were codified in statutes or ordinances making it a violation of the law to be overweight. We therefore conclude that the district court did not err in finding that the municipal ordinance, especially as applied to the defendant in this particular case, was not unconstitutionally vague.
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Per Curiam:
In this matrimonial action the trial court sustained the wife’s motion for relief from judgment, filed under K.S.A. 60-260(b), set aside its original maintenance order to the wife of $200.00 per month, and replaced it with an order of $400.00 per month for three years, subject to review and possible continuation. The husband appeals, claiming primarily that the court had no authority to enter the order, or alternatively abused its discretion in doing so.
The procedural history and the trial court’s rationale are set forth in a comprehensive opinion which we adopt. In addition to the facts set out by the trial court we note that the parties had been married 30 years when the proceedings were instituted, that the husband was 53 years old, and that the wife was 65 and unemployed. The trial court said:
“MEMORANDUM DECISION AND ORDER
“This case comes before the Court on Petitioner’s Motion for Relief from Judgment pursuant to K.S.A. 60-260(b). The matter was heard by the Court and taken under advisement. Each party has submitted Memoranda discussing their respective positions. After due consideration the case comes now for decision.
“FINDINGS OF FACT
“1. The parties herein separated in December of 1981 and divorce proceedings were instituted shortly thereafter.
“2. At the time of separation the Respondent, Cecil L. Hunt (hereafter Mr. Hunt), was employed by the National Guard at an approximate annual salary of $33,000.00. The Petitioner, Josephine T. Hunt (hereafter Mrs. Hunt), was unemployed.
“3. Mr. Hunt resigned his position with the National Guard on January 22, 1982. Testimony indicates the resignation resulted from Mrs. Hunt’s harassment and repetitive telephone calls to Mr. Hunt at work. Mr. Hunt’s supervisors pressured him about the situation and he resigned.
“4. Subsequent to Mr. Hunt’s resignation, he moved to Tulsa, Oklahoma. While in Tulsa, Mr. Hunt cohabited with his current wife Jean Lee (now Jean Hunt).
“5. This matter was ultimately tried to the Court on November 17, 1982 and taken under advisement. The Court’s decision was rendered by Letter Decision on January 19, 1983. Thereafter Motions to Alter or Amend the Judgment and/or a Motion for Reconsideration were heard on March 31, 1983. Eventually a Journal Entry reflecting the Court’s decisions to date was prepared, circulated and filed and the divorce became effective April 11, 1983.
“6. Subsequent to the divorce decree the Motions which are the subject of the instant controversy were filed. Mrs. Hunt has moved the Court to Alter or Amend the Judgment pursuant to K.S.A. 60-260(b) or to Increase Maintenance Payment pursuant to K.S.A. 60-1610(b)(2). These Motions were filed as a result of Mr. Hunt’s reemployment with the National Guard in Topeka.
“7. Mr. Hunt testified at the November 17, 1982 hearing that his income was limited to occasional odd jobs and retirement pay from the Air Force of approximately $800.00 per month. Based on this fact and other considerations, the Court awarded Mrs. Hunt $200.00 per month maintenance.
“8. Mr. Hunt, however, resumed his job at the National Guard on January 10, 1983. He again makes in excess of $33,000.00 per year.
“9. The fact that Mr. Hunt had regained his job with the National Guard was not brought to the attention of the Court at any time before the Letter Decision of January 19, 1983. Likewise, these facts were not brought out during the March 31, 1983 hearing to Amend the Judgment. However, no questions were asked which would have required this information to be divulged.
“DISCUSSION AND DETERMINATION OF ISSUES
“Initially, Mrs. Hunt asserted she was entitled to increased maintenance payments pursuant to K.S.A. 60-1610(b). Subsequently, her theory changed to requesting an Order granting relief from the divorce decree pursuant to K.S.A. 60-260(b). The latter provision states in pertinent part:
‘On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, Surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) doe1> not affect the finality of a judgment or suspend its operation.’
Mrs. Hunt argues that a divorce decree may be set aside and the issues redetermined in accord with this statute.
“Alternatively, Mr. Hunt argues that the only proper means of modifying an alimony award is via K.S.A. 60-1610(b)(2). That provision states in pertinent part:
‘Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.’
Mr. Hunt argues that the specific domestic relations statute should have control over the more general civil procedure statute K.S.A. 60-260(b). Accordingly, Mr. Hunt concludes that maintenance payments may never be accelerated without consent.
“As a beginning point, this Court believes these two provisions serve separate functions and they are not merely specific and general statutes of the same character as Mr. Hunt asserts. K.S.A. 60-260(b) operates, where applicable, to relieve a party from a judgment. ‘The rule attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done.’ [11 Wright & Miller, Federal Practice and Procedure: Civil § 2851, p. 140 (1973).] On the other hand, K.S.A. 60-1610(b)(2) merely serves as a limitation upon modification of a maintenance award. This Court does not consider the distinction between ‘modification’ and ‘relief merely one of semantics. The Kansas Court of Appeals has specifically stated ‘[a] motion to terminate alimony under [K.S.A.] 60-1610 is distinct from a motion to set aside a judgment under K.S.A. 60-260 and the two are not interchangeable.’ [Martin v. Martin, 5 Kan. App. 2d 670, 677, 623 P.2d 527, rev. denied 229 Kan. 670 (1981).]
“This Court also finds the case of [Richardson v. Richardson, 3 Kan. App. 2d 610, 599 P.2d 320, rev. denied 226 Kan. 792 (1979)] instructive with regard to this issue. Richardson involved a divorce decree which incorporated a property settlement agreement. One of the terms of the agreement left to the husband all of the couple’s property which was not specifically assigned to the wife. Four months after the divorce was entered, the husband initiated a partition proceeding to sever his claimed interest from interests owned by the wife’s relatives. The property involved had been inherited by the wife before marriage and had been omitted from the property settlement. The omission was known by the husband before he signed the agreement, while the wife believed the land did not need to be included since it was acquired as her separate property prior to the marriage. The trial court granted the wife’s motion for a nunc pro tunc order and awarded the property interest to the wife. The Kansas Court of Appeals noted that a nunc pro tunc order was improper, but refused to allow form to control over substance and, therefore, affirmed the trial court’s decision by construing the order as one granted under K.S.A. 60-260(b). By suggesting the use of K.S.A. 60-260(b), the court impliedly allowed it to supersede the mandate of K.S.A. 60-1610(e) [now (b)(3)] which expressly disallows modification of a separation agreement after it is incorporated into a divorce decree. Thus, this case indicates that given the proper factual setting, a K.S.A. 60-260(b) order can have the effect of modifying an order which K.S.A. 60-1610 would not allow to be modified. This Court believes this ‘effect’ stems from the difference between modification and relief from an order.
“The case of Blair v. Blair, 210 Kan. 156, 499 P.2d 546 (1972), does not dictate a contrary conclusion. Blair involved a trial court’s modification of alimony payments which had already become due. Likewise, the reason given by the trial court for its decision to allow a K.S.A. 60-260(b) order was found by the Kansas Supreme Court not to be a proper ground. In sum, the dicta contained in that per curiam opinion should not be given controlling weight under the circumstances of this case and in light of subsequent pronouncements of the Kansas Appellate Courts. Cases which have allowed K.S.A. 60-260(b) orders which post-date Blair include Baker v. Baker, 217 Kan. 319, 537 P.2d 171 (1975); Martin v. Martin, supra; Richardson v. Richardson, supra; Besse v. Besse, 1 Kan. App. 2d 217, 563 P.2d 518, rev. denied 225 Kan. 843 (1977).
“Therefore, this Court concludes that K.S.A. 60-260(b) is available to divorce proceedings to allow relief from an order. The next issue thus becomes: Should such an order issue in this case?
“This Court after due consideration and reflection upon the record in this case has come to the conclusion that relief from the decree issued should be allowed. K.S.A. 60-260(b), which was quoted above, provides several means of granting such relief. While it is true that ‘this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made,’ Neagle v. Brooks, 203 Kan. 323, 328, 454 P.2d 544 (1969) (quot ing 3 Barron and Holtzoff, Federal Practice and Procedure § 1329 [Wright rev. 1958]), (see also Besse v. Besse, supra at 218-19), in the instant case Mrs. Hunt was unaware that Mr. Hunt had resumed his job with the National Guard until after the Decree was filed. Thus, Mrs. Hunt’s motion could arguably be sustained on the grounds of ‘mistake, inadvertence, surprise or excusable neglect,’ K.S.A. 60-260(b)(l). See Mid Kansas Fed’l Savings & Loan Assn. v. Burke, 8 Kan. App. 2d 443, 449, 660 P.2d 569 (1983) (Foth, C.J., dissenting), reversed 233 Kan. 796, 666 P.2d 203 (1983).
“While the above-mentioned subsection could be invoked in this case, the Court also has the discretion under K.S.A. 60-260(b)(6) to set aside the decree for ‘any other reason justifying relief.’ Id. A motion under this subsection is addressed to the sound discretion of the trial court. Baker v. Baker, supra at 320; Neagle v. Brooks, supra; [11 Wright & Miller, Federal Practice and Procedure: Civil § 2864, p. 213]. The facts of this case warrant such relief. Although not technically fraudulent, Mr. Hunt’s continued silence during the March 31, 1983 hearing in light of the purposes of that hearing, which included a determination of the adequacy of the maintenance award, entitles Mrs. Hunt to the relief requested.”
We note that Besse v. Besse, 1 Kan. App. 2d 217, relied on by the trial court, was disapproved in part in Brady v. Brady, 225 Kan. 485, Syl. ¶ 2, 592 P.2d 865 (1979). Those cases, however, dealt with unpaid child support. As to such matters arising after the divorce decree, the Brady court held that the modification provisions in K.S.A. 1978 Supp. 60-1610(a) provide the proper remedy, rather than the provisions for vacating the judgment under K.S.A. 60-260(b). Brady simply recognizes the distinction between the two remedies recognized in Martin v. Martin, 5 Kan. App. 2d 670. Proceedings to modify a divorce decree based on matters occurring after the decree are to be brought under K.S.A. 60-1610 and are subject to its limitations. However, where relief is sought because of facts existing at the time of the decree which, if known to the court, would have brought about a different result, relief is available under K.S.A. 60-260(b).
On appeal the husband does raise one additional issue: he argues that a motion under K.S.A. 60-260(b) must specify which one of the six subsections is being invoked.
The statute makes no such requirement; it merely requires a “motion.” Under general principles of notice pleading it is enough if the adverse party has notice of what the claim is. Here, the motion set forth the facts of the husband’s real income, which, unknown to the court, existed at the time of the initial ruling and continued through the hearing on post-trial motions and the ultimate entry of the decree. No more specificity was required by the statute.
Judicial construction of K.S.A. 60-260(b) likewise offers no support for the husband’s argument. “Under K.S.A. 60-260(b), the first five grounds, which are specific, and the sixth, which is a general catch-all, are mutually exclusive.” Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, Syl. ¶ 1, 626 P.2d 1240 (1981). Fed. R. Civ. Proc. 60(b), which is identical to 60-260(b), has been interpreted similarly. E.g., Klapprott v. United States, 335 U.S. 601, 613-15, 93 L.Ed. 266, 69 S.Ct. 384, modified 336 U.S. 942 (1949). This does not, however, require a 60-260(b) movant to seek relief under only one of the six subsections. Rather, this construction is aimed at preventing parties from using the general catch-all provision, 60-260(b)(6), to escape the time limits for vacating a judgment imposed under the first three subsections of 60-260(b). Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140; see Klapprott v. United States, 335 U.S. at 613-15. Thus, if the basis for setting aside a judgment is, for example, fraud by an adverse party, a 60-260(b) movant can obtain relief, only if he files his motion not more than one year after judgment was entered; the party cannot escape this time limit by seeking relief under 60-260(b)(6). See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2864 (1973). Assuming a party files a 60-260(b) motion within a year of the entry of judgment, as the wife did here, the district court is authorized to grant relief for any of the reasons set forth in the statute. See In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984).
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Abbott, J.:
This is an appeal by the Kansas Workers’ Compensation Fund from that part of a judgment holding that the Fund is solely liable for the award of compensation to the claimant, John Ramirez.
Claimant was first injured on August 1, 1980, when a valve weighing approximately 600-700 pounds fell against his left knee, fracturing his patella. His leg was placed in a cast. He was on crutches and worked at light work for six weeks. Claimant continued to complain to his supervisors of pain in his injured knee. On February 10, 1981, an orthopedic surgeon gave the employer a written report rating claimant as having a 5 percent permanent partial disability of the left lower extremity as a result of the injury. The physician noted claimant still had aching and pain in the knee.
On February 18, 1981, eight days after the orthopedic report, claimant received the injury that is the subject of this appeal. While claimant was shoveling metal scrap away from his work area, his knee gave way and he incurred a back injury.
The examiner found that the claimant had a 66% percent disability to the body as a whole as a result of the February 18, 1981, injury; that the injury would not have occurred but for the preexisting knee impairment, but that the employer was liable for the award because it failed to prove that it had knowledge of claimant’s preexisting impairment.
On director’s review, the director modified the award by finding that the employer had knowledge of claimant’s preexisting knee impairment, and therefore the Fund was solely liable for the award. The trial court agreed with the director.
The Fund, in essence, contends that the trial court’s findings are not supported by the record and are contrary to the evidence. It appears that the Fund appeals two findings of fact: (1) that the claimant is a handicapped employee within the definition of K.S.A. 44-566(b), and (2) that Rockwell International (Rockwell) knowingly retained a handicapped employee and was thereby relieved of liability for compensation awarded under K.S.A. 44-567(a).
The questions of whether a particular impairment constitutes a handicap and whether an employer has knowledge of the handicap are factual ones. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, 33, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979); Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, 616-17, 609 P.2d 687, rev. denied 228 Kan. 807 (1980). Accordingly, the function of this court on appeal is to determine whether the trial court’s findings are supported by substantial competent evidence. Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984). In making this determination, the record is viewed in the light most favorable to the prevailing party. Makalous v. Kansas State Highway Commission, 222 Kan. 477, Syl. ¶ 9, 565 P.2d 254 (1977). Moreover, evidence that may support contrary findings is disregarded. Ippolito v. Katz Drug Co., 199 Kan. 309, 310, 429 P.2d 101 (1967).
With these rules in mind, there is substantial competent evidence to support the trial court’s finding that claimant is a handicapped employee pursuant to K.S.A. 44-566(b)(15) or (17). Immediately after the accident to claimant’s knee, he was taken off his normal work as an arc air operator and assigned to the tool crib so that he could sit down. The claimant was placed in a cast, and he attended physical therapy, which the employer was aware of. Finally, a medical report dated February 10, 1981, indicated that Dr. Grisolia rated claimant’s left knee a 5 percent disability. The finding that the knee injury or impairment constitutes a handicap is supported by the record. The claimant’s failure to exhibit a continuing disability or his eventual return to his prior occupation is immaterial to the determination. Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 339, 594 P.2d 684 (1979).
In Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, a construction worker who incurred a back injury at work was found to have a sufficient impairment to constitute a handicap. Upon his return to work, the employee was instructed by his supervisor to do only such light work as he could and not to bend, stoop or lift heavy objects. This court stated at page 617:
“It is unrealistic to say that a worker who does heavy construction work and complains of these symptoms does not have a physical impairment that constitutes a handicap in obtaining or in retaining employment. If he were to tell a prospective employer in the heavy construction business about his symptoms, he would not be hired.”
Here, the safety supervisor at Rockwell assigned the claimant to light duty (the tool crib) so that he could sit down in compliance with the doctor’s instructions. Moreover, upon returning to his duties as an arc air operator, the claimant complained of his knee giving out on him. The trial court did not err in finding that the claimant was a handicapped employee due to his knee injury of August 1, 1980.
K.S.A. 44-567 shifts liability for compensation awarded from the employer to the Fund if the employer knowingly retains a handicapped employee. The Fund contends on appeal that Rockwell did not “knowingly retain” a handicapped employee and should therefore be liable. The district court found that Rockwell had knowledge of claimant’s handicap.
The determination of whether an employer had knowledge of a handicap is made on a case-by-case basis. Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d at 339. Moreover, knowledge of a particular accident or injury is not necessarily knowledge of an impairment that constitutes a handicap. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d at 33. The employer has the burden of proving that it knowingly hired or retained a handicapped employee. K.S.A. 44-567(b). An impairment need not be demonstrably disabling as long as it gives rise to a reservation in the mind of an employer in deciding to hire or retain the employee. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 606, 621 P.2d 448 (1980).
Here, the Fund argues no one knew the fractured patella had not healed and thus the employer had no knowledge of the impairment. The trial court found, and the record supports, that the employer knew the defendant had a knee injury and that he still complained of pain in his knee; that only eight days before the accident a qualified orthopedic surgeon had found tenderness in the knee and noted discomfort and pain from enumerated activities, had found crepitation in the joint, atrophy of the left thigh and a permanent partial disability of the knee. Thus, the employer had actual knowledge that claimant had an impairment of the left knee and was handicapped. We agree with the trial court that claimant had an impairment that constitutes a handicap in obtaining or retaining employment. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d at 606; K.S.A. 44-566(b).
We have read and considered the recent case of Hines v. Taco Tico, 9 Kan. App. 2d 633, 683 P.2d 1295 (1984), and believe it to be distinguishable from the facts of this case. Any employer who has knowledge that an employee or an applicant for employment has had a spinal fusion has knowledge that the person is handicapped, and common sense tells us that the employer will have serious reservations about employing or retaining that person. The idea behind the Fund is to make such a person employable. To us, the Hines case tells an employer it is unsafe to hire a handicapped person because the employer will be responsible for any “hidden defects” in the area of the body that is handicapped. Nearly every victim of a spinal fusion is going to have back problems. The number of times problems arise and the severity of them will depend on the type of work performed.
In any event, the facts here are distinguishable from Hines, because the claimant was still complaining of pain and discomfort and had concern about his ability to do his regular job, and a physician had found pain and a permanent disability. That no one knew the fracture was unhealed is immaterial. The employer knew the claimant was having problems with his knee, and the obvious conclusion should be that a reasonable person would know the work activities claimant had to perform would aggravate the condition and that an accident like the one that hap pened was a distinct possibility. The record supports the trial court’s decision.
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Per Curiam:
Defendant, Joe W. Perrigo, appeals his jury conviction of aggravated incest. K.S.A. 21-3603.
Defendant contends that the trial court erred in admitting the testimony of S. concerning his previous sexual relationship with defendant under K.S.A. 60-455. Defendant contends that this rule applies to the admission of evidence of a “prior crime” and that his sexual conduct with S. was consensual and not a crime at all. However, K.S.A. 60-455 states an exception to the general rule that all relevant evidence is admissible. K.S.A. 60-407(1). If proffered evidence does not suggest the commission of a prior crime or civil wrong, then K.S.A. 60-455 does not apply and the evidence is presumed to be admissible so long as it is relevant and not excludable on some other basis. Since defendant suggests no reason outside of the policy behind the prior crime rule for the evidence to be excluded, this argument reveals no error by the court.
Defendant’s argument is further without merit because the sexual conduct described by S. is still illegal in this state when it is performed by people of tibe same sex regardless of consent. K.S.A. 21-3505 and K.S.A. 1984 Supp. 21-3505. Therefore, the trial court correctly considered whether this evidence could be admitted under the exception stated in K.S.A. 60-455.
Upon the prosecution’s request, the jury was instructed that the evidence suggesting the commission of a prior crime by defendant could only be considered for the purpose of proving defendant’s preparation or plan. Defendant argues that the evidence should not have been admitted to prove these elements since neither plan nor preparation are relevant to the crime of incest. Defendant contends that his prior relationship with S. does not suggest either steps taken as necessary preparation for the crime of incest or a causal link suggestive of a plan or scheme. See State v. Marquez, 222 Kan. 441, 446-47, 565 P.2d 245 (1977).
There may be merit to defendant’s argument but it is a question we need not resolve. Since incest, as committed by engaging in lewd and lascivious behavior, requires proof of specific intent, the prior crimes evidence could have been submitted to the jury for the purpose of considering intent rather than plan or preparation. The evidence of defendant’s eailier liaisons with S. does suggest that defendant’s late-night appearance in his son’s room in the nude and the touching of R.’s penis was a sexual and not a parental act. We are mindful that the erroneous admission of evidence of a crime under one exception in K.S.A. 60-455 is not made harmless merely by the fact it would have been admissible under another exception not instructed on. State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978). However, our examination of the whole record leads us to conclude that the admission of this evidence erroneously would not have affected defendant’s substantial rights. Marquez, 222 Kan. at 449.
Next, defendant contends that the trial court abused its discretion in making the decision to use two interpreters in eliciting R.’s testimony at the trial.
The determination and propriety of appointing a person as an interpreter lies within the discretion of the trial court. K.S.A. 60-243(e); State v. Pham, 234 Kan. 649, 662, 675 P.2d 848 (1984). Such a determination will be reversed on appeal only in the most extreme circumstances. Furthermore, it is not error for a court to appoint different interpreters on behalf of different parties to the case. Pham, 234 Kan. at 662.
Defendant does not quarrel with the court’s selection of interpreters but claims that the use of two interpreters was unreasonable. However, the court made its decision to use a deaf interpreter as well as a hearing interpreter after consulting with authorities from the School for the Deaf concerning R.’s ability to communicate. The court concluded that a deaf interpreter who, like R., is totally dependent on sign and gesture for communication, would best be able to understand and make himself understood to R. The hearing interpreter would then be needed to report the deaf interpreter’s understanding of R.’s responses. We find this decision to be eminently reasonable and well within the bounds of the court’s discretion. See People v. Vandiver, 127 Ill. App. 3d 63, 468 N.E.2d 454 (1984).
Defendant’s complaint concerning the court’s consultation with Dr. Kapp, who subsequently testified for the prosecution, is also without merit. Dr. Kapp’s testimony was elicited to establish the competency of the victim to testify and was largely concerned with explaining the extent of R.’s handicaps. Defendant suggests no way in which he was prejudiced by the court’s consultation with Dr. Kapp and we find no prejudice to have resulted.
Finally, defendant complains that if two interpreters were necessary, the preliminary hearing was defective because only one was used. This argument assumes that the court’s conclusion that two interpreters would be best necessarily implies that one interpreter was insufficient. However, defendant made no objection to use of a single interpreter during the preliminary hearing and, thus, must not have believed anything was inherently wrong with the manner in which the hearing was conducted. We conclude that the trial court’s discretion concerning the means of interpreting R.’s testimony could include the use of either one or two interpreters. Therefore, no error has been shown.
Defendant next points to three instances of conduct by the prosecutor which he contends were so inflammatory and preju dicial that a new trial should have been granted. Specifically, defendant complains of a remark made by the prosecutor during opening argument, the manner in which cross-examination of the defendant was carried out and an improper statement made during closing argument.
While the prosecutor’s opening remarks mischaracterized the substance of the letter referred to in S.’s testimony, his behavior does not rise to the level of misconduct. The prosecutor had cautioned the jury that his remarks were not evidence and the content of his actual statement is so absurd, it could only be viewed by a rational juror as a misstatement.
The second allegation of misconduct is similarly without merit. The substance of the information implied by the prosecutor was not on its face prejudicial. Counsel asked defendant if he knew a certain person or had lived at a certain address. Defense counsel did not object to the questions or ask to see the document the prosecutor was holding. Defendant has failed to demonstrate that the prosecutor was alluding to evidence he did not have or was otherwise acting improperly. See, e.g., United States v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984).
The prosecutor’s comment during closing argument prompted immediate objection by defense counsel and the court’s instruction to the jury to disregard the remark. Defendant nevertheless contends that the remark was prejudicial.
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? State v. Carpenter, 5 Kan. App. 2d 214, 218, 613 P.2d 966 (1980).
Although the comment of the prosecutor in closing argument was an improper comment and somewhat inflammatory, in view of the court’s admonition and the overwhelming evidence against the defendant, we find that the prosecutor’s comment was harmless error. K.S.A. 60-2105; State v. Folkerts, 229 Kan. 608, 615, 629 P.2d 173 (1981).
Defendant next argues that the trial court erred in failing to grant his motion for acquittal because the victim was incompe tent to testify. The burden of establishing incompetency rests on the challenger and K.S.A. 60-417 directs the issue to the discretion of the trial court. Thus, in order for a witness to be disqualified, the trial court must be convinced the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or is incapable of understanding the duty of a witness to tell the truth. State v. Thrasher, 233 Kan. 1016, 1018, 666 P.2d 722 (1983).
The trial court held a hearing prior to the commencement of trial to determine R.’s competency to testify. R.’s testimony indicated that he understood what a lie was and that the oath meant “to be honest before God. Honest. Honest.” He also stated that he would “lose in lying” and “I must be honest. I should no,t lie.” R.’s testimony is sometimes vague and certainly juvenile but it is responsive and easily understood. We conclude that there is nothing in the record to suggest that the trial court abused its discretion in permitting R. to testify.
Finally, defendant maintains that the lewd and lascivious conduct statute (K.S.A. 21-3508[l][b]) is unconstitutionally overbroad as applied to the facts in this case. Since the State relied on the crime of exposure as the unlawful sexual act underlying the incestuous conduct, defendant claims that he was found guilty simply because he likes to be nude in the privacy of his own home. However, the additional requirements of K.S.A. 21-3508 that the offender intend his exposure to arouse or gratify sexual desires of himself or his victim and that the exposure be without the consent of the victim makes the offense narrow and specific. Furthermore, the evidence in this case that defendant touched the victim’s penis indicates that specific intent was present; defendant’s nudity was not a mere circumstance of habit. In sum, it cannot be said that K.S.A. 21-3508 was so vague or overbroad that an ordinary person would have to guess at its meaning. State v. Garrett, 235 Kan. 768, 776, 684 P.2d 413 (1984).
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Miller, J.:
Plaintiff appeals from a summary judgment that defendant did not violate the Kansas Open Meetings Act.
The facts are not in dispute. On April 13, 1983, the defendant Board of County Commissioners held its regular meeting at 9:00 a.m. Proper notice of the meeting had been given to persons requesting such notice, including Charles E. Stevens, the plaintiff. Plaintiff attended the meeting and videotaped the entire proceedings. At 10:20 a.m., the Board recessed the meeting because of a lack of business until 11:00 a.m. when it had an appointment.
During the recess, the Commissioners and other persons remained in the commission chambers. Several items of county business were informally discussed by those present. Plaintiff s self-operating videotape machine continued throughout the entire recess, although plaintiff left the chambers for approximately five minutes. The regular meeting of the Board reconvened at 11:00 a.m. as had been announced.
Plaintiff, as a private citizen, filed suit claiming that the meeting'during the recess violated the Kansas Open Meetings Act (KOMA). After discovery, both parties filed motions for summary judgment. The trial court heard oral arguments on both motions and viewed the plaintiff s videotape of the meeting. It then denied plaintiff s motion and granted defendant’s motion for summary judgment on the grounds that the recess was not a “prearranged meeting” of the Board to which the KOMA would apply. Plaintiffs motion to set aside that holding under K.S.A. 60-260(b) was denied, and it is from this ruling that plaintiff has appealed.
Our scope of review in an appeal from such an order is well established:
“Appeal from an order denying a motion under K.S.A. 60-260(b) brings up for review only the order of denial itself and not the underlying judgment. Neagle v. Brooks [203 Kan. 323, 454 P.2d 544 (1969)]; see 11 Wright & Miller, Federal Practice and Procedure, Civil § 2871 (1973). A motion for relief from a final judgment under K.S.A. 60-260 (b) is addressed to the sound discretion of the district court. The scope of appellate review of the district comt’s decision is limited to whether the court abused its discretion. Neagle v. Brooks [203 Kan. 323].” Giles v. Russell, 222 Kan. 629, 632-33, 567 P.2d 845 (1977).
Although plaintiff lists eleven issues in the table of contents of his brief, only the first three of these are mentioned in the body of his brief. Those issues not briefed are deemed abandoned. Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 255, 679 P.2d 206 (1984).
K.S.A. 75-4317(a) provides:
“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.”
It is plaintiff s first contention that the gathering in the commission chambers during the recess of its regular meeting of April 13, 1983, constituted a “meeting” as defined in K.S.A. 75-4317a.
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
The word “prearranged” is not statutorily defined, but its meaning has been expressed as follows:
“The term ‘prearranged’ in the definitional section of the Act has the effect of excluding ‘chance’ encounters of members of a body subject to the Act. The gathering is prearranged if notice is given in writing, personally, via telephone, or is implicitly understood by the membership of the body.” Smoot and Clothier, Open Meetings Profile: The Prosecutor’s View, 20 Washburn L.J. 241, 259 (1981).
The Kansas Attorney General has interpreted the act to require that its provision extend to include informal caucuses at all stages of the decision-making process, including informal gatherings held prior to, during a recess of, or immediately after a regularly scheduled meeting, unless they are truly “chance” encounters. Att’y Gen. Op. 81-262. This may include informal rehashing of business over coffee and rolls after a regular meeting, or customary gatherings of the Board before and after regularly scheduled meetings. Att’y Gen. Op. 79-200. Obviously, informal gatherings held during a recess cannot be used by members subject to the act to subvert the intent and purpose of the act.
Whether or not such a gathering is “prearranged” is a question of fact to be determined from the totality of the circumstances surrounding the gathering in question. In the present case, the record indicates that the recess was declared spontaneously because of a lack of business and was not preplanned in any way. There is nothing in the record to indicate that the Commissioners expressly or implicitly understood that they would meet during the recess, or that the Commissioners customarily discussed county business during such a recess, or that as a matter of custom or habit, the Commissioners knew prior to recess that a quorum of the Board would be available to discuss county business during the recess.
Under these circumstances, we find no abuse in the trial court’s ruling that the recess gathering of the Commissioners was not “prearranged” and that the provisions of the KOMA were not applicable.
Plaintiff also contends that the gathering during the recess violated the KOMA because it was not an “open” meeting and was not properly noticed.
Assuming, arguendo, that the provisions of the KOMA were applicable in this case, it does not necessarily follow that the act was violated. In Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 10, 539 P.2d 1 (1975), the court stated:
“Where an agency conducts an all-day public hearing and then recesses for a 25 to 45 minute deliberative session before announcing a unanimous decision it is in substantial compliance with the act. Although there may be a technical violation of the letter of the act there is no violation of its spirit and the resulting administrative decision is not void.”
Similarly, in Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978), this court found that the Public Employee Relations Board technically violated the KOMA when it met informally several hours prior to its scheduled and announced meeting to gather information, but we concluded that the technical violation of the act, standing alone, did not necessarily require that the matter be returned to the Board.
These cases indicate that our courts will look to the spirit of the law, and will overlook mere technical violations where the public body has made a good faith effort to comply and is in substantial compliance with the KOMA, and where no one is prejudiced or the public right to know has not been effectively denied.
Other states use a similar approach in interpreting their open meetings act. See Copple v. City of Lincoln, 202 Neb. 152, 274 N.W.2d 520 (1979). Even our own open meetings act recognizes that substantial compliance may be sufficient to sustain a public body’s action. See K.S.A. 75-4320(a).
The record discloses that during the recess here, the Commissioners remained in their chambers where the formal meeting had been held and was to resume. No one was asked to leave or was refused entrance. Plaintiff remained in the room throughout the recess except for approximately five minutes of voluntary absence. His videotape machine operated continuously throughout the entirety of the recess. The record does not reveal whether other members of the public left during the recess.
The record fails to demonstrate that any binding action was taken during the recess or that the recess was used as a subterfuge to defeat the purposes of the KOMA. Plaintiff, who was physically present, can show no prejudice to his substantial rights by not having received prior notice of the recess gathering. Nor does plaintiff contend that anyone else was thereby prejudiced.
Under these circumstances, we conclude that the recess gathering was open to the public and that the Board was in substantial compliance with the terms of the Kansas Open Meetings Act.
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Parks, J.;
Petitioner, Jerry W. Sanders, appeals the denial of his petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. Petitioner was being detained for extradition on a governor’s warrant.
Petitioner was released from the Leavenworth Federal Penitentiary on May .16, 1983 and was immediately arrested on the same day pursuant to a fugitive warrant. Petitioner was incarcerated in the Leavenworth County jail and, since the documents before the court indicated that the alleged Alabama offenses carried a potential life sentence, no bond was set. K.S.A. 22-2716. Two extradition hearings were subsequently held on June 15 and July 18, 1983, at which the State requested 30-day continuances pending receipt of the governor’s warrant. At the June 15 hearing, petitioner requested the appointment of counsel to represent him but the court declined, holding that there was no authority for such an appointment. On August 18, 1983, petitioner was served with the governor’s warrant directing his extradition to Alabama. At that time, petitioner had been incarcerated for 95 days.
Once petitioner had finally been arrested on the governor’s warrant, he filed a pro se petition for writ of habeas corpus and requested the court appoint counsel to represent him in resisting the extradition. Counsel was appointed but petitioner subsequently hired his own attorney. By motion of petitioner’s retained counsel, the hearing on the writ was delayed several times until the requested relief was finally denied on November 16, 1983. Petitioner appeals from the denial of his petition.
Petitioner does not raise any contentions regarding the validity of the Alabama extradition documents or the governor’s warrant itself. Instead, he contends that errors committed by the court prior to his arrest on the governor’s warrant compel his belated release.
The law is well settled that a person arrested as a fugitive from justice may be held in jail or on bond for thirty days (K.S.A. 22-2715), with the possibility of extensions of the time of commitment for a total of ninety days, at the discretion of the court. K.S.A. 22-2717; Odom v. State, 215 Kan. 456, 458, 524 P.2d 217 (1974). The purpose of this period of commitment is to allow time for the arrival of extradition documents and the fugitive’s arrest on a governor’s warrant. K.S.A. 22-2715. If at the end of a 90-day wait the governor’s warrant has not been received, the court may release the accused from confinement or the restrictions of bail. K.S.A. 22-2717. However, if the accused is released and the governor’s warrant subsequently arrives after expiration of the 90-day detention period, the warrant may still be served and the accused validly arrested. In re Simpson, 2 Kan. App. 2d 713, 586 P.2d 1389 (1978). In other words, the time limitations on the restraint of the fugitive do not apply to the service of the governor’s warrant or affect its validity. Simpson, 2 Kan. App. 2d at 714.
This case presents a variation on the situation in Simpson because not only was the governor’s warrant served beyond the time limits set by K.S.A. 22-2715 and 22-2717, but the accused was held in custody for the intervening five-day period. Thus, petitioner contends that, despite the presumed validity of the governor’s warrant, his detention upon that warrant is faulty because its service was effected by what he argues was his unlawful detention beyond 90 days.
Although this precise issue has not been addressed in Kansas, a number of other states have considered similar situations. In Schumm v. Nelson, 659 P.2d 1389 (Colo. 1983), the accused was arrested as a fugitive and held for 91 days before being served with the governor’s warrant. He filed a petition for a writ of habeas corpus on the grounds that he had been detained in custody beyond the 90-day limit allowed by law. The court upheld the denial of any relief, concluding that once a valid governor’s warrant is issued, illegalities and irregularities relating to the detention of the fugitive are moot. See also Michaels v. Caldwell, 646 P.2d 899 (Colo. 1982); Simmons v. Leach, 626 P.2d 164 (Colo. 1981); Whittington, Jr. v. Bray, 200 Colo. 17, 612 P.2d 72 (1980). Several other cases which have considered the effect of a detention beyond thirty days without the request for a continuance or the service of the governor’s warrant have similarly held that the subsequent arrest on a proper governor’s warrant renders the questionable detention a moot issue. See, e.g., Com. v. Brown, 281 Pa. Super. 31, 36, 421 A.2d 1131 (1980); Lewis v. Boone, 418 So. 2d 319, 320 (Fla. Dist. App. 1982). It is important to note that none of these cases considered whether the fugitive’s confinement beyond the statutory limits was unlawful such that he could have compelled his release with a petition for a writ of habeas corpus. Instead, the decisions simply conclude that the petitioner’s request for release comes too late when it is made after the governor’s warrant has been served.
Petitioner in this case was a fugitive from Alabama throughout his confinement by authorities in this state. We agree with the case law from other jurisdictions cited above and conclude that whether petitioner’s extended detention was lawful has no bearing on the validity of his arrest on the governor’s warrant. Since he did not file his petition for a writ of habeas corpus until after his arrest on the governor’s warrant, prior irregularities in his detention on the fugitive warrant are moot.
Petitioner also contends that the district court’s refusal to appoint counsel for him before the governor’s warrant was served somehow invalidates that warrant. However, it is not entirely clear that an indigent fugitive held pending receipt of a governor’s warrant has the right to appointed counsel. In addition, even if petitioner had such a right, the court’s refusal to make an earlier appointment did not prejudice petitioner in any way.
The Uniform Criminal Extradition Act permits a person to be arrested for the purposes of imminent extradition on a governor’s warrant or on a citizen’s complaint and resulting fugitive warrant. K.S.A. 22-2708 and 22-2713. If the person is arrested on a governor’s warrant, K.S.A. 22-2710 provides that he must be taken before a judge forthwith and advised of the charge leveled against him by the demanding state and his right to resist extradition with the aid of an attorney who will be appointed if that person is indigent. However, there is no statutory requirement that such a procedure be followed when the accused is originally arrested on a fugitive warrant and held pending the arrival of the governor’s warrant.
Constitutionally, a person is entitled to the appointment of counsel at any critical stage of prosecution. See Estell v. Smith, 451 U.S. 454, 469-70, 68 L.Ed.2d 359, 101 S.Ct. 1866 (1981). However, the process of holding a fugitive prior to receipt of a governor’s warrant is “not in any sense the institution of criminal proceedings in this state against the petitioner.” Simpson, 2 Kan. App. 2d at 715. Therefore, it would not appear that the Sixth Amendment would entitle the petitioner to court-appointed counsel while he is being held on a fugitive warrant but absent the initiation of any steps toward prosecution.
Even assuming petitioner was entitled to the services of an attorney during his preliminary detention, the error in denying such assistance would not invalidate his subsequent detention on the governor’s warrant. See Woody v. State, 215 Kan. 353, 359, 524 P.2d 1150, cert. denied 419 U.S. 1003 (1974). Petitioner’s right to challenge the extradition documents and issuance of the governor’s warrant was fully protected by the appointment of an attorney after his arrest on that warrant on August 18, 1983. Prior to that time, the only right which an attorney’s assistance could possibly have helped secure was the release of petitioner after the expiration of the 90-day commitment period on the fugitive warrant. However, this release would only have permitted the petitioner to enjoy the benefit of five days of freedom before the governor’s warrant arrived and he could be rearrested. Since, even out of the custody of Kansas officials, petitioner was still a fugitive from Alabama, the “freedom” to which petitioner was entitled is tenuous, at best. In sum, all rights petitioner had after his arrest on the governor’s warrant were properly protected by the appointment of counsel and any right to counsel he may have had before that time was rendered moot once the governor’s warrant was served.
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Parks, J.:
Plaintiff, Ernest L. Veverka, is the owner of two quarter sections of land which have been unitized for gas production with a quarter section of land owned by defendant Irene Krug. Defendant Davies & Co., Inc. (Davies) is the oil and gas lessee on all three tracts included in the gas unit. Plaintiff filed this lawsuit against both Davies and Krug but Krug defaulted. Plaintiff s action challenged the amount of the royalty payment which defendant Davies indicated it would be paying plaintiff in its division order. Plaintiff prevailed in district court and defendant Davies appeals.
In December 1977, plaintiff Ernest Veverka executed oil and gas leases on two quarter sections of land to G. R. Dillard. Defendant Irene Krug and her husband also executed leases on their neighboring quarter section to James Devlin. Defendant Davies subsequently obtained the working interest in all three tracts from the lessees. The leases included the standard language of a Form 88 lease including the following authority to unitize:
“Lessee shall have the right as to all or any part of the land described herein, without lessor’s joinder, to combine thé gas leasehold estate and the lessor’s gas royalty estate created by this lease with the gas rights in any other lease or leases, located in the vicinity thereof, whether owned by lessee or some other person or corporation, so as to create by the combination of such leases one or more operating units of not more than 640 acres each. In the event such operating unit or units is/are so created by lessee, lessor agrees to accept and shall receive out of the production from such operating unit or units, such portion of the royalty as the number of acres out of this lease placed in any such operating unit or units bears to the total number of acres included in such operating unit or units. The commencement of a well, or completion of a well to production, on any portion of an operating unit shall have the same effect-under the terms of this lease as if a well were commenced, or completed, on the land embraced by this lease.”
Both the Krug lease and the leases executed by plaintiff reserved the standard Vs royalty to the lessor but the plaintiffs leases also included the following typewritten language at the bottom of the printed form lease:
“In addition to the royalty reserved Lessor is granted an additional 1/16 royalty.”
In November 1979, defendant Davies exercised its contractual right to unitize the gas leasehold estate of the Krug and Veverka quarter sections. A unit designation was properly filed and recorded and gas production was subsequently obtained on one of plaintiffs tracts of land.
A controversy then arose over the amount of the royalty due plaintiff. Defendant Davies tendered plaintiff a Gas Division Order for execution which provided that plaintiff would receive a royalty of % of 3/i6 of all gas produced from the unit. Defendant Krug would receive Vs of % of all production. Plaintiff contended that because of the provision in his leases for an additional Vi6 royalty, he was entitled to a royalty equal to % of % plus Vi6 of all production. In short, plaintiff contended that the Vie royalty interest was not subject to the proportionate reduction effected on the standard Vs royalty by the fact of unitization. Plaintiff filed this lawsuit to resolve the issue naming both Krug and Davies as defendants.
On motion for summary judgment, the district court held in favor of plaintiff. Defendant was directed to pay plaintiff a Vi6 royalty plus a % of % royalty. Defendant appeals.
The parties appear to agree that if unitization had not taken place and gas had been produced from one of plaintiff s tracts, he would have been entitled to a royalty of Vs + Vie or 3/i6 of the production obtained from his land. Thus, at issue is the effect unitization has on the calculation of royalty.
A royalty is that part of the oil or gas payable to the lessor by the lessee out of oil and gas actually produced and saved. It is the compensation to the lessor provided in the lease for the lessee’s privilege of drilling and producing oil or gas. It is personal property and does not include a perpetual interest in and to the oil and gas in place. Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 2, 642 P.2d 75 (1982). The royalty is expressed in the oil and gas lease as a fractional portion of total production obtained from property covered by that lease. Thus, to calculate the amount of oil or gas payable to the lessor as “royalty,” the total number of barrels of oil or metered cubic feet of gas is multiplied by the fraction provided for in the lease. Calculation of the actual amount of a royalty may be viewed as dependent upon two factors: the production factor and the fractional share expressed in the lease. Therefore, resolution of this case requires that we first examine the effect unitization has on these two factors and that we then decide the amount of the two factors in this case.
Unitization is a means of consolidating development of property overlying a mineral reservoir into a single production unit. The legal effects of unitization have been summarized as follows:
“(1) The life of the lease is extended as to all included tracts beyond the primary term and for as long as oil, gas or other minerals are produced from any one of the tracts included; (2) the commencement of a well on any one of the tracts operates to excuse the payment of delay rentals on all included tracts for the period stated in the respective leases; (3) production from a well on any one of the tracts relieves the obligation to pay delay rentals, during production, on all included tracts; (4) the lessee is relieved of the usual obligation of an implied covenant for reasonable development of each tract separately; (5) wells may be located without reference to property lines; and (6) the lessee is relieved of the obligation to drill off-set wells on other included tracts to prevent drainage by a well on any included tract. (See Hoffman, Voluntary Pooling and Unitization, pp. 135-36, and South Royalty Co. v. Humble Oil & Ref. Co., 151 Tex. 324, 249 S.W.2d 914.)
“The extent of participation of a particular leasehold in the income from and expense of operating the total unit is generally fixed at the time the original unitization takes place. The extent of participation of a particular tract in the income and expense of the unit is called its unit participation factor.” Klippel v. Beinar, 222 Kan. 681, 685, 567 P.2d 867 (1977).
See also Morgan v. Mobil Oil Corp., 726 F.2d 1474, 1477 (10th Cir. 1984).
Ordinarily, the production factor which goes into calculating the amount of a royalty is equal to all of the production obtained on the leasehold. Unitization alters this factor since the lessor will be entitled to receive a royalty for any production within the pooled unit even though the producing well is not on his particular tract of land. On the other hand, the amount of the royalty will be limited to a pro rata share of the unit production based on a participation formula expressed in the agreement even though the producing well is actually located on property covered by the lessor’s lease. 6 Williams & Meyers, Oil and Gas Law § 951, p. 694.10 (1984). Usually, as in this case, the participation formula is based on the ratio between the acreage covered by the particular lease to the amount of acres in the total unit. Thus, this participation figure modifies the production factor such that the lessor of a unitized tract is entitled to a royalty based on a portion of the production obtained from the entire unit, while before unitization he would receive a royalty based on all of the production from his particular leasehold.
The actual amount of a royalty to be paid a lessor is ordinarily equal to some fractional portion of the production obtained from the leased premises. Unitization spreads the production over several leases and, thus, creates a presumption that only a certain portion of the total production can be attributed to a particular piece of property in the unit. Dillon v. Holcomb, 110 F.2d 610, 611 (5th Cir. 1940). In effect, unitization alters the production factor of the formula used to determine the royalty due but it does not alter the fractional royalty figure set out in the agreement between the lessor and lessee. 1 Myers, The Law of Pooling and Unitization § 14.01, pp. 462-63 (2d ed. 1967); 3 Kuntz, Law of Oil and Gas § 42.5(f), p. 378 (1967). For example, in Dillon, the plaintiff/lessor was entitled under his lease to receive the usual Vs royalty plus an overriding royalty and an oil payment. His four-acre leasehold was unitized with a six-acre tract and production was obtained on the six-acre leasehold. The participation formula was based on proportionate acreage so that plaintiff was entitled to 4/io of unit production. The trial court held that plaintiff was entitled to a royalty based on his proportionate share of the royalty stipulated in the lease of the producing six-acre tract or 4/io of Vs. The Fifth Circuit reversed and held that plaintiff was entitled to receive a royalty in accordance with the terms of his lease and not according to the terms of the other lease in the unit even though production may have been wholly derived from that other leasehold. The court noted that the unitization created “the presumption that production from the well to be drilled would be drawn from a single pool, 4/io of which would be supplied from appellant’s land.” Dillon, 110 F.2d at 611. Thus, the court held that plaintiff was entitled to the fractional amounts specified in his lease for the usual royalty, the overriding royalty and the oil payment multiplied by 4/io. See also Waller v. Midstates Oil Corporation, 218 La. 179, 48 So. 2d 648 (1950).
To summarize, unitization alters the amount of royalty a lessor will receive out of production obtained on his leasehold by redefining the production factor of the royalty calculation. The fractional royalty share stated in the lease is not altered by unitization, it is simply multiplied by a different production factor.
Turning now to the circumstances of this case, the parties agree that the participation formula specified in the lease would result in % of the unit production being allocated to plaintiffs leaseholds. Thus, the amount of royalty to which he would be entitled would equal some fractional royalty times % of unit production. In addition, plaintiff has acknowledged that the royalty fraction stated in his lease is 3/i6. However, he contends that only Vs of that fraction should be multiplied by the reduced share of unit production while the remaining Vi6 fraction typed in at the bottom of the lease form should be multiplied by all of the production obtained from his leasehold. In other words, plaintiff contends that the unitization provision in his lease, which included the agreement to accept a royalty calculated with reference to a proportion of unit production, does not apply to the additional Vi6 royalty.
The following rules apply when determining the proper construction of an oil and gas lease:
“ ‘Rules governing the construction of oil and gas leases include these: the intent of the parties is the primary question; meaning should be ascertained by examining the documents from all four corners and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof.’ ” Rook v. James E. Russell Petroleum, Inc., 235 Kan. 6, 14, 679 P.2d 158 (1984).
The option to unitize is granted in plaintiff s lease to the lessee and could have been exercised at any future time. The unitization provision includes the lessor’s agreement to accept a pro rata royalty if the lessee decides to unitize and there is no language in the typewritten addition which would except application of this modification to the additional royalty fraction. Plaintiff does not contend that the additional Vi6 is somehow different from the standard Vs share. Indeed, it appears that the parties simply sought to assure the lessor a larger royalty interest than is customarily received. The same end could have been accomplished if the form language of the lease had been struck over and 3/i6 inserted in the place of the printed Vs provision.
In sum, the royalty fraction due plaintiff must be calculated according to his agreement while Krug is limited to recovering the royalty expressed in her lease. The unitization provision fixes the participation formula at Vs of production to Krug and % of production to plaintiff. Their respective leases then fix the fractional portion of the allocated production which the lessee is bound to pay them. The lessee agreed to pay plaintiff 3/i6 of the production to which he is entitled under the unitization or % of the lessors’ share of total production of the unit. Krug’s lease entitles her to receive Vs of the production allocated to her leasehold after the unitization or Vs of the lessors’ share of total production of the unit.
We conclude that the division order issued by defendant Davies correctly stated the amount of plaintiff s royalty as % of 3/i6 of the unit production. Therefore, we hold that the judgment of the district court which rejected the division order was erroneous.
Reversed. | [
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Parks, J.:
Plaintiff, Western Food Products Co., Inc., was the owner of an airplane insured by defendant, United States Fire Insurance Company. The plane was totally destroyed in a crash on January 5, 1981, and plaintiff filed a claim for its loss with the insurer. Defendant denied coverage for the loss and plaintiff filed this action. Both parties requested summary judgment based on stipulated facts and the trial court granted judgment to defendant insurer. Plaintiff appeals.
The parties stipulated that at the time of the crash, the airplane was being operated by Charles Newton Benscheidt, who had been issued a private pilot’s certificate on January 14, 1976, with ratings for single engine land aircraft. Mr. Benscheidt was issued a third-class medical certificate with no limitations on October 3, 1977, which expired on October 31, 1979. The records of the Federal Aviation Administration fail to indicate that any subsequent medical certificate was issued to Mr. Benscheidt.
The district court held that because defendant’s insurance policy requires the pilot to have valid medical certification as a condition of coverage, defendant was not liable for the loss of the aircraft. Plaintiff contends that this holding is erroneous because the policy provision requiring a medical certificate did not apply to the person piloting the plane when it crashed. Arguing that this clause is ambiguous, plaintiff contends that it must be construed in its favor and held inapplicable under the circumstances. The clause at issue states as follows:
“THE PILOT FLYING THE AIRCRAFT: The aircraft must be operated in flight only by a person shown below who must have a current and proper (1) medical certificate and (2) pilot’s certificate with necessary ratings, as required by the FAA for each flight. There is no coverage under the policy if the pilot does not meet these requirements.”
Immediately after the above clause was typed the following language:
“STEVE BENSCHEIDT, JAMES DRISCOLL, III; OTHERWISE, PILOTS WHO HAVE A CURRENT PRIVATE OR COMMERCIAL CERTIFICATE AND A MINIMUM OF 750 LOGGED PILOT HOURS OF WHICH AT LEAST 25 HOURS HAVE BEEN IN THE SAME MAKE AND MODEL AIRCRAFT WE COVER IN ITEM 5.”
It is undisputed that at the time the insured airplane crashed, it was being piloted by an individual who is not named in the above paragraph. In addition, plaintiff concedes that the pilot of the plane did not have a current medical certificate. Thus, plaintiff seeks to avoid the exclusionary force of the insurance provision by initially contending that it is ambiguous.
If this insurance provision can be said to be ambiguous, the insured is entitled to the benefit of various rules of construction. American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, Syl. ¶¶ 1-6, 658 P.2d 1015 (1983). However, if the language of the policy is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court’s function is to enforce the con tract according to its terms. American Media, Inc., 232 Kan. at 740.
The provision of defendant’s policy appears clear. The printed language indicates that the plane must be piloted by one of the persons enumerated in the space provided on the form and that this pilot must have both a valid medical certificate and a pilot’s certificate. The contract specifically states that there is no coverage if the pilot does not meet these requirements. The typed-in list of approved pilots includes two individuals and any others who meet specific standards of experience. Thus, three categories of approved pilots are named — the category consisting of Steve Benscheidt, that naming James Driscoll and a third category including pilots who have a certain amount of experience.
Plaintiff contends that there is ambiguity in whether the requirements for a current medical and pilot’s certificate apply to pilots falling in the third category. It argues that since these “other pilots” must meet flying-time standards more stringent than those met by either Steve Benscheidt or James Driscoll, this experience criteria supersedes the restrictions contained in the printed portion of the clause.
This argument defies the plain structure of the insurance provision. The policy provides the insured with the prerogative to choose its pilots within certain limits. Two specific individuals are listed as approved (so long as they have current medical and pilot’s certificates) but other pilots will be covered only if they have the requisite experience and certification. The structure of the paragraphs indicates that the entire typed paragraph is incorporated by reference into the printed portion of the provision. The “person shown below” could include any person falling within the three described categories. In sum, the insurer has defined the scope of its coverage in clear terms. Any pilot flying the plane at the time of an accident must have both the medical and pilot’s certificate in order for the loss to be protected. We find no ambiguity in this requirement.
Plaintiff contends that even if the provision of the policy excluding coverage of a flight piloted by a person without a medical certificate is unambiguous, it should not be enforced absent proof of a causal connection between the crash and the health of the pilot. Although such a holding would certainly depart from the ordinary rule mandating enforcement of an unambiguous provision according to its terms, the argument is not without some support in other jurisdictions. See, e.g., Bayers v. Omni Aviation Managers, Inc., 510 F. Supp. 1204, 1207 (D. Mont. 1981); Avemco Insurance Company v. Chung, 388 F. Supp. 142 (D. Hawaii 1975); and S. C. Insurance Company v. Collins, 269 S.C. 282, 237 S.E.2d 358 (1977). These opinions generally stress the social purpose of insurance and the unfairness to the insured if he loses his expected protection because of a technical breach of the policy which is unrelated to the risks insured. However, in each of these cases the court was able to say that the provision relied on by the insurer failed to include language of express exclusion. The opinions could fairly conclude that the provision relied upon to exclude coverage under the aviation policy was a forfeiture clause or condition subsequent which is not ordinarily deserving of enforcement. See, e.g., Am. States Ins. Co. v. Byerly Aviation, Inc., 456 F. Supp. 967 (S.D. Ill. 1978). Thus, in these cases the court was generally concerned with a provision viewed as attempting to eliminate extended coverage rather than one which defines the intended scope of coverage in the first instance.
In this case, the provision states unequivocally, “there is no coverage under the policy if the pilot does not meet these requirements.” It is not a question of the insured being forced to forego coverage for which he has already paid; no protection was ever extended to cover the circumstances of the loss. Thus, since the policy specifically excludes coverage, its application cannot be categorized as a forfeiture.
A second distinguishing point of the cases holding that a causal connection must be shown to exclude coverage in an aviation insurance policy is that in each of the cases relied upon by plaintiff, there is state law either strongly favoring coverage in the absence of causation or requiring liberal construction of exclusionary clauses even without a specific finding of ambiguity. For example, in S. C. Insurance Company, 269 S.C. at 288, the court relied on a line of cases involving automobile liability and life insurance. These precedents held in varying situations that the violation of a provision limiting coverage would effectively operate to exclude liability only if a causal connection were demonstrated between the risk sought to be excluded and the actual loss. See also Avemco Insurance Company, 388 F. Supp. at 147. (applying Hawaiian law, the court noted that exclusionary clauses must be liberally construed).
By contrast, Kansas decisions have considered the purpose and reasonableness of an exclusionary provision in other types of insurance policies, to determine its scope, but they have not demanded a relationship between the failure to satisfy the limitation and the actual loss sustained. For example, in Mah v. United States Fire Ins. Co., 218 Kan. 583, 588, 545 P.2d 366 (1976), the Court was concerned with whether a geographical limitation in an insurance policy covering a mobile home was unambiguous and enforceable. The insured argued that there was no relevant connection between the geographical limitation and the extended coverages and that, thus, the parties, did not intend this limitation to apply. The Court pointed- out that there was indeed good reason for the insurer to seek to geographically limit its extended coverage and held the provision doing so to be unambiguous. The Court then refused to further consider the relationship between the limitation imposed and the actual loss suffered, stating as follows:
“Further discussion of the relevance, materiality or importance of location of insured property is. not warranted here, for the issue here is not whether the geographic limitation should be applicable, but whether it is applicable under the policy terms. We hold that it is.” Mah, 218 Kan. at 588.
Thus, the Court refused to discuss an argument similar to that made here — that there must be some relevant connection between the actual loss sustained and the limiting provision sought to be enforced. The connection between the limitation and the abstract risks insured may be examined to determine the scope of the limitation but there is no need for the loss to be caused by the condition named in the exclusion in order for the exclusion to be effective.
Similarly, in Heshion Motors, Inc. v. Trinity Universal Ins. Co., 229 Kan. 412, 414, 625 P.2d 437 (1981), the Court discussed the purpose of a provision conditioning coverage for a theft by deception on the possession of legal title to the car stolen. However, the purpose of this discussion was confined to determining the intended meaning of the policy provision requiring full and valid title. The Court did not consider, once finding the provision unambiguous and applicable, whether there was a causal connection between the failure to have legal title and the theft of the car.. The limitation on coverage was to be enforced so long as the insured failed to prove it had title to the car. See also Adventure Line Mfg. Co. Inc. v. Western Casualty & Surety Co., 214 Kan. 820, 522 P.2d 359 (1974).
Plaintiff cites Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P.2d 264 (1964), in support of its argument that causation must be proven by the insurer before coverage may be excluded. The issue in Leiker was whether the particular facts of an automobile accident fell within the terms of an exclusionary clause. The clause provided that the insurance would not apply to “bodily injury sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of . . . a . . . commercial automobile.” The Court was initially concerned with whether the decedent was engaged in duties incident to the operation of a commercial auto. To determine this question, the Court had to decide whether the provision required proof of a connection between the accident and the operation of the truck. The Court’s concern with causation resulted from its need to determine the scope of the exclusionary clause. This was not a case where the court found the exclusion applied on its face but demanded proof of causation before liability could be avoided. Therefore, Leiker is not authority for the argument put forth by plaintiff. Indeed, our research discloses no Kansas insurance cases suggesting that a causal connection must be established before an insurer may take advantage of a provision which by its terms excludes coverage.
Finally, we note that despite the existence of cases in which plaintiff s causation argument has been adopted, the majority of jurisdictions have held to the contrary. See, e.g., Ochs v. Avemco Ins. Co., 54 Or. App. 768, 636 P.2d 421 (1981); Security Mut. Cas. Co. v. O’Brien, 99 N.M. 638, 662 P.2d 639 (1983); Hollywood Flying Service v. Compass Ins. Co., 597 F.2d 507 (5th Cir. 1979); Glades Flying Club v. Americas Aviation & M. Ins. Co., 235 So.2d 18 (Fla. Dist. App. 1970). The rationale behind these decisions is summarized as follows:
“We hold that a causal connection between an exclusion clause and an accident is not necessarily essential before coverage can be denied. In Glades Flying Club v. Americas Aviation & M. Ins. Co., 235 So.2d 18 (Fla. App. 1970), a Florida court, faced with a similar set of facts and an identical policy exclusion, held that no causal connection was needed. The court stated:
‘An aircraft insurance policy may validly condition liability coverage on com pliance with a governmental regulation and, while non-compliance with such a regulation continues, the insurance is suspended as if it had never been in force. There need be no causal connection between the non-compliance and the loss or injury. (Citations omitted.)’
Id. at 20. To hold otherwise would allow courts to ignore the plain language of insurance policy exclusions whenever they feel an insurer should not be allowed to avoid liability for an accident unrelated to a policy exclusion. This rationale is contrary to substantial legal precedent as well as long-standing public policy. Insurance coverage must not be afforded aircraft owners who ignore or refuse to comply with established certification requirements commonly part of policy exclusions.” Security Mut. Cas. Co. v. O’Brien, 99 N.M. at 640.
In conclusion, we remain unconvinced by plaintiff s argument that the ordinary rules of construction should be abandoned in this case. The exclusionary provision of the insurance contract is unambiguous and we refuse to alter this plain language to forestall its effect. Therefore, like the majority of jurisdictions, we must conclude that a causal connection between the accident causing the loss and the purpose of an exclusionary clause need not be proven before coverage can be denied by the aircraft insurer on the basis of the exclusion.
Plaintiff s final argument is that since the insurer should have known from the .information submitted to it that the pilot did not have a current medical certifícate, it is estopped from denying coverage. It is a general rule, acknowledged in this jurisdiction, that waiver and estoppel may be invoked to forestall the forfeiture of an insurance contract but they cannot be used to expand its coverage. Ron Henry Ford, Lincoln, Mercury, Inc. v. Nat'l Union Fire Ins. Co., 8 Kan. App. 2d 766, 769, 667 P.2d 907 (1983). We have concluded that the defendant’s policy unambiguously excludes coverage of the factual situation in this case There is no forfeiture of coverage being effected; the insured was never protected for the circumstances which took place. Therefore, the equitable relief of estoppel claimed by plaintiff is inappropriate because it would operate to expand the plain scope of the insurance policy.
Affirmed.
Abbott, J.: I concur in the result. | [
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Foth, C.J.:
Mapco Intrastate Pipeline Company, Inc. (Mapco), appeals an order of the Kansas State Corporation Commission (Commission or KCC), denying Mapco’s requested increase in intrastate common carrier pipeline tariff rates. The Commission approved a tariff increase lower than that requested.
Mapco and Mid-America Pipeline Company (Mid-America) are wholly owned subsidiaries of Mapco Transportation, Inc. They are common carrier pipeline companies transporting natural gas liquids and some refined petroleum products. According to its president, Mid-America has 7,000 miles of pipe extending from the Wyoming overthrust through the West Texas-Hobbs, New Mexico area then north through Kansas to Minnesota and Wisconsin. As an interstate carrier, Mid-America is regulated by the Oil Pipe Line Board of the Federal Energy Regulatory Commission (FERC).
Mapco is a corporation created by its parent to track intrastate movements and to meet tariff requirements for intrastate shipping. It leases pipeline capacity from Mid-America and has no physical assets or employees of its own. As an intrastate carrier, Mapco is regulated by the KCC.
On November 30, 1984, Mapco filed a proposed tariff for its Kansas customers which would result in an increase in revenues of about 7.8%, to be effective January 1, 1985. Notification to shippers occurred substantially simultaneously. At the Commission’s request, on December 17, Mapco filed a “Justification Questionnaire” giving as its reasons for the increase inflation and rising operating costs.
On December 28, 1984, the KCC entered a suspension order, deferring the effective date of the proposed tariff for two hundred forty days. In its order, the Commission indicated “an investigation into the rate increase should take place, particularly on the effects of inflation and rising operating costs on the applicant.” Mapco filed a motion for reconsideration requesting modification of the suspension order to allow tariffs to become effective subject to refund. Mapco requested a hearing on the suspension order in the event the Commission did not agree to modification. There appears in the record no order on Mapco’s motion for reconsideration. In its brief, the Commission contends the motion was denied by operation of law because rehearing was not granted or continued within ten days. We agree. K.S.A. 66-118b.
The KCC held a hearing on January 24, 1985, on the merits of the tariff increase. Four Mapco officials testified; the Commission staff presented no evidence. On March 7, 1985, the Commission entered its order denying the 7.8% increase requested for Kansas intrastate operations, granting instead a 4% increase. That was the same percentage increase being implemented on a system-wide basis for the Mid-America system.
Mapco’s application for rehearing was denied, and it filed an Application for Judicial Review in this court.
I. Jurisdiction.
We are met at the outset by a question of the jurisdiction of this court. K.S.A. 66-118a provides: “The court of appeals shall have exclusive jurisdiction of proceedings for review of an order or decision of the state corporation commission arising from a rate hearing requested by a public utility or requested by the state corporation commission when a public utility is a necessary party.” Emphasis added. The district court reviews other KCC orders or decisions. K.S.A. 66-118a.
Resolution of the jurisdictional issue depends on characterization of this tariff proceeding as “arising from a rate hearing” and determination of Mapco’s status as a “public utility.” Turning first to Mapco’s status as a public utility, we note that-it is undoubtedly a “common carrier” as defined in K.S.A. 66-105, and is generally regulated as such by the KCC. However, the jurisdictional statute, K.S.A. 66-118a, specifically provides that “[a]s used in this act, ‘public utility’ means a public utility as defined by K.S.A. 66-104 and amendments thereto.”
K.S.A. 66-104, in turn, provides in relevant part:
“The term ‘public utility,’ as used in this act, shall be construed to mean every corporation . . . that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any pait of the state, or the conveyance of oil and gas through pipelines in or through any part of the state, except pipelines less than fifteen (15) miles in length and not operated in connection with or for the general commercial supply of gas or oil . . . Emphasis added.
Thus, Mapco meets the definition of “public utility” contained in K.S.A. 66-104. Since it does, it is also a “public utility” for the purpose of determining this court’s jurisdiction under K.S.A. 66-118a. It does not matter that it is al'so a “common carrier” under K.S.A. 66-105. Cf. Edwards County Comm’rs v. Simmons, 159 Kan. 41, 51-52, 151 P.2d 960 (1944), where it was recognized, albeit in a different context, that the term “public utility corporation” in its broad and general sense includes a common carrier.
The second part of the jurisdictional test is whether this is a case “arising from a rate hearing.” The general procedure for a change of rates for both common carriers and public utilities subject to KCC supervision appears at K.S.A. 66-117. It provides for a filing with the Commission whenever a common carrier or public utility wishes to make effective “any changed rate, joint rate, toll, charge or classification or schedule of charges, or any rule or regulation or practice pertaining to the service or rates of such public utility or common carrier.” The KCC may then allow the change or, on complaint or on its own motion, hold a hearing. This statute is the primary source of the Commission’s authority to regulate rates of public utilities and common carriers under its jurisdiction. It goes on to require that proposed changes in rates be “plainly indicated” in the documents filed by “proper reference marks in amendments or supplements to existing tariffs, schedules or classifications.”
Thus all changes in rates are initiated by the filing of documents which may include new tariffs, or by the filing of new tariffs alone. By KCC regulation some such filings must be supported by elaborate documentation, and these filings may develop into the familiar “rate hearing” in which the ultimate issue is the overall revenue entitlement of the public utility or common carrier. However, any such proceeding in which the proposed new tariff will result in a rate and revenue increase is, in a generic sense, a “rate hearing.”
This court recently considered the meaning of the phrase “arising from a rate hearing.” In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, 529-31, 685 P.2d 304 (1984), rev. denied October 2, 1984. In that case, the Commission granted a general rate increase but set the tariff determination on a separate docket because of the need to resolve the rate case quickly. 9 Kan. App. 2d at 529-30. This court based appellate jurisdiction on two factors: “(1) the close relationship between this case and the prior rate case; and (2) the similarity of the involved tariff to a rate schedule.” 9 Kan. App. 2d at 529,
The court’s discussion of the second factor is relevant here:
“The similarity of this tariff to a rate schedule also weighs favorably for our assumption of jurisdiction. Tariffs have been defined as ‘those terms and conditions which govern the relationship between the utility and its customers.’ Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 377, 664 P.2d 798 (1983). A rate schedule involves ‘pricing the product to particular classes of customers to permit the utility to recover the revenue to which it is entitled.’ Midwest Gas Users Ass’n v. Kansas Corporation Commission, 5 Kan. App. 2d 653, Syl. ¶ 1, 623 P.2d 924, rev. denied 229 Kan. 670 (1981). A tariff is thus broader than a rate schedule and can include terms beyond the mere pricing of the product. See, e.g., Burdick v. Southwestern Bell Tel. Co., 9 Kan. App. 2d 182, 675 P.2d 922 (1984) (tariff provisions regulating interruption of telephone service).
“The tariff in issue is quite similar to a rate schedule, however, for if sets forth how the $5.6 million will be assessed against various classes of SWB [Southwestern Bell] customers so that SWB can recover the revenue to which it is entitled. Thus, approval of the tariff by the KCC is analogous to approval of a rate schedule. Cases involving only the validity of a rate schedule, and not the validity of the underlying rate increase, have been appealed directly to this court under K.S.A. 66-118a. Midwest Gas Users Ass’n v. Kansas Corporation Commission, 5 Kan. App. 2d 653; Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 595 P.2d 735, rev. denied 226 Kan. 792 (1979).
“The conclusion that this court has jurisdiction in this case does not mean that all cases involving tariffs are directly appealable to this court under K.S.A. 66-118a. For example, questions of tariff interpretation should be appealed to the district court. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375. If the tariff is closely related to a prior rate case or if it is similar to a rate schedule, jurisdiction will more likely be with this court than with the district court.” 9 Kan. App. 2d at 530-31.
While a tariff may deal with nonrate matters such as billing procedures or service cutoffs, in this case the amended tariff filed by Mapco dealt only with new rates designed to produce higher revenues. The Commission’s hearing on the tariff likewise dealt only with rates and revenues. We conclude that it was a “rate hearing” as that term is used in K.S.A. 66-118a. The resulting order was therefore one “arising from a rate hearing.” Mapco is a “public utility” which was a necessary party. We therefore have exclusive jurisdiction under K.S.A. 66-118a.
II. The Suspension Order.
Mapco argues at length that the Commission’s order suspending the effective date of the proposed new tariff was improper because it gave inadequate reasons for the suspension and gave no reason why the suspension was for 240 days rather than for some lesser time.
In suspending the tariffs for the maximum 240-day period, the Commission stated: “The Commission has determined that an investigation into the rate increase should take place, particularly on the effects of inflation and rising operating costs on the applicant.” This statement of reason is brief but more specific than the reason found to be inadequate in Conn. Light & Power Co. v. Federal Energy Reg. Com'n, 627 F.2d 467 (D.C. Cir. 1980), to which Mapco refers this court.
“ ‘Our review of the filing and the pleadings indicates that the proposed rates have not been shown to be just and reasonable and may be unjust, unreasonable, unduly discriminatory, preferential or otherwise unlawful.” ’ 627 F.2d at 468.
To us the clear implication of the Commission’s order here was that an investigation of Mapco’s stated reasons for the increase was necessary to determine whether they had a factual basis. If not the resulting rates might well be “unjust, unreasonable, unduly discriminatory, preferential or otherwise unlawful.” Despite its protestations, Mapco should have been well aware of the purpose of the proposed hearing.
Other reasons Mapco advances in attacking the suspension order are not well grounded. Mapco contends there was no reason to suspend because there had been no shipper protests. The nature of the notice sent to shippers did not encourage protest. Although shippers were told protests could be filed, the letter instructed them to substitute tariff schedules, implying Commission approval. Both the Hearing Examiner and the Commission, in its order, commented on the impropriety of the notice sent. Rate increases are not effective until tariffs are filed and approved by the Commission. See, e.g., Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 612, 538 P.2d 702 (1975); Sunflower Pipeline Co. v. Kansas Corporation Commission, 3 Kan. App. 2d 683, 686, 600 P.2d 794 (1979).
Mapco also contends the suspension was improper because Commission staff had recommended approval of the tariffs. The Commission has discretion to accept or reject testimony and, by implication, recommendations of its staff. Union Gas System, Inc. v. Kansas Corporation Commission, 8 Kan. App. 2d 583, 586-87, 663 P.2d 304, rev. denied 233 Kan. 1093 (1983).
Mapco also contends there was no reason for its tariffs to be suspended when tariffs were approved for another pipeline company “requesting the same tariff increase for basically the same reasons.” This court does not have before it the record in the other tariff application. Comparison of the carrier justification questionnaires attached to appellant’s brief indicates Mapco sought a $580,000 increase, whereas Continental Pipe Line Co. was seeking only a $65,900 increase. Without more evidence we cannot conclude that the Commission’s decision to devote its limited resources to the filing with the larger financial impact was unreasonable.
Finally, we observe that 240 days is the maximum suspension time authorized by K.S.A. 66-117(b). The Commission’s order took full advantage of the time allowed to it by the legislature to hear and determine Mapco’s application. In fact, the hearing on the merits was held on January 24, 1985, and the final order entered March 7, 1985, just 66 days after the suspension order became effective. The original order was clearly precautionary, designed to allow for unforeseen contingencies which might delay determination of the matter. We cannot fault the Commission for its caution; the actual handling of the matter strikes us as admirably expeditious.
In any event, any decision we might make on the suspension order would have no effect on Mapco’s revenues at this time; retroactive increases in rates are not possible. See Six Cities v. State Corporation Commission, 213 Kan. 413, 516 P.2d 596 (1973).
Further, even if there were irregularities in the suspension order we could not find them so serious as to render all subsequent proceedings void — and it is only by such a finding that Mapco could benefit from a successful attack on the-suspension order.
III. THE COMMISSION’S MARCH 7, 1985, ORDER
The appellate scope of review of orders or decisions of the KCC is limited to a determination whether such orders or decisions are lawful and reasonable. K.S.A. 66-118d. See, e.g., Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 376, 664 P.2d 798 (1983); Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). An explanation of this standard of review appears in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979), cited with approval in Kansas Electric Power Coop., Inc. v. Kansas Corporation Comm’n, 235 Kan. 661, 664, 683 P.2d 1235 (1984); In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d at 531-32; Union Gas System, Inc. v. Kansas Corporation Commission, 8 Kan. App. 2d at 586; Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 128, 130, 650 P.2d 747 (1982).
“A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-97, 565 P.2d 597 (1977). 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. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co.v. State Corporation Commission, 192 Kan. 39, 48-49, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).” 3 Kan. App. 2d at 380-81.
Mapco first contends the Commission’s order is unreasonable, claiming that there is not substantial competent evidence to support the decision allowing a 4% increase rather than a 7.8% increase.
The Commission, in its March 7, 1985, order, focused on the lack of interstate/intrastate distinction in Mapco’s supporting documentation. The Commission observed that Mapco’s calculation of fixed operating costs per barrel was based on a system-wide analysis. This court has recognized the KCC’s authority to require separation of interstate and intrastate operations “ 'to avoid jurisdictional conflicts between state and federal regulatory agencies and to avoid discriminatory rates which result in one class of ratepayers subsidizing another.’ ” Elkhart Tel. Co. v. Kansas Corporation Commission, 7 Kan. App. 2d 235, 235-36, 640 P.2d 335 (1982). Mapco had been established as a separate entity for intrastate operations, but testimony of Fred Isaacs and Robert Cronk clearly revealed there had been no separate cost allocations.
The Commission found that interstate cost calculations had not been scrutinized by any regulatory agency and there existed no intrastate cost justification. The Commission apparently found documentation regarding interstate costs unreliable and rejected testimony that intrastate costs exceeded those calculated for the system as a whole. The Commission has discretion to weigh and accept or reject testimony. Union Gas System, Inc. v. Kansas Corporation Commission, 8 Kan. App. 2d at 586-87.
Mapco contends, in particular, that the Commission was not justified in settling on a 4% increase. K.S.A. 66-110 gives the Commission authority to investigate rates and, upon a finding that rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, substitute a just and reasonable rate. See Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. at 612. Rather than wholly rejecting Mapco’s application, the Commission determined the company should be allowed to increase its rates by the FERC approved 4% system-wide increase.
The Commission’s action is supported by substantial competent evidence and, therefore, is found reasonable.
Mapco also attacks the Commission’s order as unlawful for failure to present adequate findings. K.A.R. 82-l-232(a)(3) provides: “The order shall contain a concise and specific statement of the relevant law and basic facts which persuade the commission in arriving at its decision.”
“[R]ules and regulations adopted by an administrative agency to carry out legislative policy have the force and effect of law. Further, the commission is required to conform to its rules, and failure to comply renders an order unlawful.” Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 317, 510 P.2d 1200 (1973).
In Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d at 132, this court discussed the purpose and sufficiency of findings:
“The purpose of findings of fact as mandated by K.A.R. 82-l-232(a)(3) is to facilitate judicial review and to avoid unwarranted judicial intrusion into administrative functions. The Commission must, therefore, express the basic facts upon which it relied with sufficient specificity to convey to the parties, and to the courts, an adequate statement of facts which persuaded the Commission to arrive at its decision.”
While cautioning that this court does not encourage a minimal finding standard, the court stated an established principle of law that “findings do not have to be stated with such particularity as to amount to a summation of all the evidence.” 8 Kan. App. 2d at 133.
The Commission based its decision on the inadequacy of evidence supporting the proposed intrastate rate increase. The explanation, while not extensive, is adequate to advise the parties and this court of the basis for the decision, i.e., that Mapco did not sufficiently document the costs of its intrastate operation. Being adequate for that purpose, it is deemed “lawful.”
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Parks, J.:
Defendant Jon M. Justice appeals from his conviction in Johnson County for the sale of psilocybin as that offense is defined and classified in K.S.A. 1984 Supp. 65-4105(d)(18), and K.S.A. 1984 Supp. 65-4127b(b)(3), and from his conviction in Wyandotte County for conspiracy to possess a controlled substance in violation of K.S.A. 1984 Supp. 65-4127b, K.S.A. 1984 Supp. 65-4105(d)(18), and K.S.A. 21-3302. These two cases were consolidated on appeal. In each case, the defendant attacks the constitutionality of the statutes under which he was convicted on the grounds that they provide inadequate notice and violate his right to due process.
The following stipulated facts were presented to the trial court:
“1. Beginning in late June, 1983 and continuing through mid September, 1983, Detective Joe Sweeten, working as an undercover narcotics officer for the Johnson County Sheriffs Office, investigated Jon Justice for sale of psilocybin mushrooms. During the several weeks that Detective Sweeten investigated Jon Justice, the two had several meetings and telephone conversations regarding sales of hallucinogenic mushrooms to Detective Sweeten by Jon Justice.
“2. During Detective Sweeten’s investigation of Mr. Justice, Justice stated to Detective Sweeten on numerous occasions that he was a distributor of mushrooms and that he had a retail network set up of people working for him who sold the mushrooms. Justice also on numerous occasions referred to the fact that he ‘cooked’ and produced the mushrooms in the basement of his house, referring to the various stages of production as ‘crops’. Justice never mentioned the mushrooms specifically as ‘psilocybin mushrooms’. Justice did state to Sweeten on numerous occasions that the mushrooms were ‘strong’, got you ‘high’, and made you ‘closer to God’.
“3. On numerous occasions John [sic] Justice also related to Detective Sweeten that the growing and cultivating of mushrooms required a high degree of skill and one needs proper equipment and conditions to grow them well. Justice also stated to Sweeten that the mushrooms were grown in rice cake cultures. Justice also related to Sweeten on several occasions that he could not produce enough mushrooms to keep up with the sales. The two discussed prices for various quantities of mushrooms from ounces to pounds also on numerous occasions. Justice also related to Detective Sweeten that it had taken him approximately three years to reach his current level of expertise and sophistication in growing mushrooms. Justice also cautioned Detective Sweeten that the harvested mushrooms must be kept in a refrigerated environment and that only a small amount of vegetation should be ingested each time when it’s taken as they are very powerful.
“4. On June 29, 1983 at approximately 8:55 p.m., Detective Sweeten, pursuant to previous arrangements with Justice, met Justice in the parking lot of the Vickers Service Station located at approximately 63rd Street and Nieman Road in Shawnee, Johnson County, Kansas. At the above mentioned location, Sweeten purchased a quantity of vegetative material from Justice for $375.00. During the meeting between Sweeten and Justice, Sweeten noticed an occupied car sitting in another portion of the parking lot. When Sweeten expressed hesitation due to another vehicle being in the area of the sale, Justice stated that there was no reason to leave, telling Detective Sweeten that the subject in the other car was one of ‘his (Justice’s) people’.
“5. Detective Sweeten took the vegetative material to the Northeast Johnson County Criminalistics Labortory [sic] where it was analyzed and determined to be hallucinogenic mushrooms, containing psilocybin.
“6. Further, the parties agree and stipulate that Professor Robert Lichtwardt of Kansas University would testify for the defendant at trial in the same manner as he testified at the Motion to Dismiss hearing held on January 19,1984 in Court 4 before the Honorable William G. Gray.”
Professor Lichtwardt, a botanist specializing in mycology, testified that the chemical substances psilocybin and psilocyn occur naturally in about 20 of the 5,000 or so identified species of mushrooms. He also testified that the two hallucinogenic substances are closely related and may be chemically synthesized. The professor stated that the psychoactive effect produced by ingesting mushrooms containing psilocybin may also be produced by consuming mushrooms containing other naturally occurring hallucinogenic substances such as ibotenic acid and muscimol compounds. He testified that there are about eight to ten species of mushrooms which have been identified as containing ibotenic acid.
Defendant contends that the following statutory provisions should be held to be unconstitutionally vague because they fail to give adequate notice that the possession and sale of psilocybin mushrooms is forbidden:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under such person’s control, prescribe, administer, deliver, distribute, dispense or compound:
(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, and any amendments thereto; or
“(b) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with the intent to sell:
“(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, and any amendments thereto.” K.S.A. 1984 Supp. 65-4127b(b)(3).
K.S.A. 1984 Supp. 65-4105(d) states as follows:
“(d) any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted ....
“(18) Psilocybin.”
The following principles control consideration of a constitutional attack on a statute on the grounds of vagueness:
“This court has adopted certain principles to consider when a statute is challenged as unconstitutional. In State v. Lackey, 232 Kan. 478, 479, 657 P.2d 40 (1982), we recognized that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See also State v. Carpenter, 231 Kan. 235, 237, 642 P.2d 998 (1982); Cardarella v. City of Overland Park, 228 Kan. at 700. A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a common sense determination of fundamental fairness. State v. Lackey, 232 Kan. at 479-80; State v. Carpenter, 231 Kan. at 237; Cardarella v. City of Overland Park, 228 Kan. at 703. See also Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972). In determining whether an ordinance is void for vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.” State v. Dunn, 233 Kan. 411, 417-18, 662 P.2d 1286 (1983).
Defendant argues that the statutes in question do not convey a sufficiently definite warning concerning the conduct proscribed when measured by common understanding and practice because they do not proscribe the possession of mushrooms containing psilocybin listed by genus and species. In support of this argument, defendant points to the contrast between the statutory treatment of psilocybin and that of other controlled hallucinogenic substances occurring naturally. For example, K.S.A. 1984 Supp. 65-4105(d) lists both “tetrahydrocannabinols,” the psychoactive ingredient in marihuana, and the “marihuana” plant itself among the substances whose possession and sale is proscribed. K.S.A. 1984 Supp. 65-4105(d)(13) and (20). K.S.A. 65-4101(o) further defines marihuana to include “all parts of all varieties of the plant Cannabis . . . .” Similarly, the statute lists both “mescaline” and its natural source, “peyote.” K.S.A. 1984 Supp. 65-4105(d)(14) and (15). Indeed, defendant points out that in the 1982 amendment to that statute, the legislature sought to more clearly define the substances controlled as “peyote” by including the botanical designation of the prohibited plant. Other schedules in the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., also specifically refer to the prohibited substance and its natural source. For example, K.S.A. 1984 Supp. 65-4107(b)(3) and (4) list the natural sources of the narcotic drugs opium and cocaine, opium poppy, poppy straw and coca leaves which have not been decocainized, as controlled substances.
Defendant contends that by contrast to the other hallucinogens listed in 65-4105(d), psilocybin and psilocyn are the only ones with a major natural source, Psilocybe mushrooms, which are not clearly identified in the statute. He argues that this deficiency, in light of the specificity with which other controlled substances are described, creates doubt whether the mushroom naturally containing psilocybin was intended to be controlled. This doubt, he contends, evidences the statute’s failure to provide adequate notice that possession or sale of a mushroom containing psilocybin is prohibited.
Three states have previously considered the constitutionality of statutes seeking to control the possession and sale of psilocybin mushrooms. In the first case, Fiske v. State, 366 So. 2d 423 (Fla. 1978), the defendant was arrested when he emerged from a field with a bag of wild mushrooms later found to contain psilocybin. The Supreme Court of Florida held that the statutes making possession of psilocybin a third degree felony (Fla. Stat. Ann. §§ 893.03[l][c][15] and 893.13[l][a][2] [West 1976]) were not vague on their face but specifically controlled any material containing psilocybin. However, the court concluded that as applied to this defendant, the statute was vague and defendant’s conviction unconstitutional. The court stated in part as follows:
“The statute makes no mention of psilocybic mushrooms or, for that matter, of any other psilocybic organic form that grows wild. If the statute were to specify that psilocybin was contained in certain identifiable mushrooms and were to name those mushrooms, thereby apprising a prospective defendant that possession of those mushrooms is unlawful, it would not be unconstitutional as applied. The statute as presently framed, however, gives no information as to what plants may contain psilocybin in its natural state. More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute, therefore, may not be applied constitutionally to appellant. It does not give fair warning that possession of the mushrooms possessed by appellant is a crime. See Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); State v. Winters, 346 So. 2d 991 (Fla. 1977).”
Of controlling importance in the Florida court’s decision was the complete absence of any evidence that defendant knew that the mushrooms he possessed contained psilocybin. The court did not strike down the statute itself as unconstitutional but held that it could not be applied to a defendant who was not shown to have criminal knowledge. In other words, the court held that as to people who possess mushrooms without knowing they contain psilocybin, the statute failed to provide a sufficient warning of the criminality of their conduct.
The issue was next addressed by the Illinois Court of Appeals in People v. Dunlap, 110 Ill. App. 3d 738, 743, 442 N.E.2d 1379 (1982). The Illinois statute (Ill. Ann. Stat. ch. 56 1/2 ¶ 1204[d] [Smith-Hurd 1985 Supp.]), like our own, included in Schedule I “any material . . . which contains any quantity of . . . Psilocyn.” Initially, the court held that the statute did prohibit the possession of mushrooms which in their natural state contain psilocyn. The court found that references to other natural sources of controlled substances in other sections of the Illinois Controlled Substances Act, such as poppy straw and coca leaves, combined with the omission of Psilocybe mushrooms from the act, did not raise the implication that possession of these mushrooms was legal. Concerning this point, the court stated as follows:
“It is our opinion that the meaning of section 204(d) of the Illinois Controlled Substances Act is expressed without ambiguity. The words ‘any material *** which contains any quantity of *** psilocyn’ mean exactly that — any such material is a Schedule I substance, and thus mushrooms which, in their natural state, contain psilocyn, are included ip Schedule I. We find it difficult to see how the General Assembly could have used any more direct language than it employed.
“Nor does the omission of mushrooms from the Illinois Controlled Substances Act mandate the construction of that statute urged by the defendants. The rule ‘expressio unius est exclusio alterius’ is of assistance only where the meaning of a statute is ambiguous, because that maxim requires the interpretation of a statute by use of an implication. (People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641; People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, 173 N.E.2d 485.) Since the Illinois Controlled Substances Act is explicit in prohibiting ‘any material’ containing psilocybin, the failure to mention mushrooms in that Act cannot negate that provision. We cannot exclude from the Illinois Controlled Substances Act by implication that which certainly falls into the broad category of any material containing a substance listed in section 204(d). To so hold would be to ignore the plain wording of that section.” 110 Ill. App. 3d at 743.
The Dunlap decision then considered whether the statute violated due process by failing to give adequate notice that possession of the hallucinogenic mushrooms was illegal. The court divided its discussion of this issue into two parts — first, considering whether the statute violates the rights of a person who possesses mushrooms he knows to contain psilocyn and, secondly, considering whether the law denies due process to the person who possesses psilocyn mushrooms without knowing they contain the prohibited substance. The court concluded that the phrase “any material” implicated the source of something else rather than a finished product. Thus, it concluded that a person who knew a mushroom contained psilocyn was reasonably apprised that its possession was outlawed by the prohibition against possessing any material containing the drug. The court also rejected the conclusion of the Fiske case regarding the person who unknowingly possesses psilocyn mushrooms, stating as follows:
“Even if we concede that the defendants may raise this issue, though, it does not present any doubts of the constitutionality of the Illinois Controlled Substances Act. An individual who cultivated or otherwise possessed Psilocybe mushrooms without knowing them to contain psilocyn would not be prosecuted successfully under that statute, because in a prosecution for the possession or sale of controlled substances, the State must prove that a defendant had knowledge of the nature of the substance possessed or sold. (People v. Bussie (1968), 41 Ill. 2d 323, 243 N.E.2d 196, cert. den. 396 U.S. 819, 24 L.Ed.2d 70, 90 S.Ct. 56; People v. Castro (1973), 10 Ill. App. 3d 1078, 295 N.E.2d 538). This knowledge requirement meets the objection that the Illinois Controlled Substances Act punishes without warning an offense of which the accused was unaware. (Screws v. United States (1945), 325 U.S. 91, 89 L.Ed. 1495, 65 S.Ct. 1031; Colautti v. Franklin (1979), 439 U.S. 379, 58 L.Ed.2d 596, 99 S.Ct. 675). We conclude therefore that the Illinois Controlled Substances Act’s prohibition of the possession of mushrooms containing psilocyn does not violate the due process rights of either those who possess the mushrooms knowing them to contain psilocyn, or those who possess them unaware of their characteristics.” Dunlap, 110 Ill. App. 3d at 746-47.
The divergence between the Fiske and Dunlap decisions is not really so great. In the first place, both courts held that a statute, which prohibited possession of any material containing the closely related substances of psilocybin and psilocyn was not vague on its face. Both cases also support the conclusion that a statute, such as the one we are considering, is not unconstitutionally vague when evidence is presented that defendant knowingly possessed the controlled substance named in the statute. Finally, while taking different approaches, both Fiske and Dunlap reach the ultimate conclusion that a defendant who does not know the mushrooms he possesses contain a controlled substance cannot be convicted of a crime.
It may well be that the disagreement between the two cases is the result of a difference in state law. Dunlap rejected the argument that the statute might be used to punish an innocent possessor who did not know his mushrooms contained psilocyn by pointing out the requirement of Illinois law that possession of a controlled substance be knowing possession. By contrast, it appears that the law in Florida at the time Fiske was decided may not have required proof that the defendant knew the contents of the substance he possessed or sold. State v. Medlin, 273 So. 2d 394 (Fla. 1973). But cf. Muwwakil v. State, 435 So. 2d 304 (Fla. Dist. App. 1983), rev. denied 444 So. 2d 417 (Fla. 1984) (holding that the State must prove defendant had dominion and control over contraband and knowledge that illicit drugs were within his presence). Thus, the Fiske court held that the statute would be unconstitutional if applied in such a manner as to subject to prosecution the innocent possessor of a substance he could not have known was outlawed by reading the statute. Since knowledge is part of the definition of possession in Illinois, the Dunlap court found it unnecessary to conclude that the statute lacked the requisite statutory specificity to be applied when the defendant lacks knowledge. Such a defendant could not, in any event, be convicted of possession of a controlled substance.
The most recent case to consider the constitutionality of a statute controlling the possession of psilocybin is State v. Patterson, 37 Wash. App. 275, 679 P.2d 416, rev. denied 103 Wash. 2d 1005 (1984). The Washington opinion, using much the same, reasoning as Dunlap, initially held that the prohibition against possession of any material containing psilocybin encompassed possession of psilocybin mushrooms. The court then held summarily that the prohibition was not unconstitutionally vague.
In light of this discussion, we reject defendant’s contention that our statute is unconstitutionally vague. We agree with the Florida, Illinois and Washington courts that the use of the phrase “any material . . . which contains” psilocybin, provides ample notice that mushrooms containing psilocybin are controlled. Moreover, in light of the use of the catch-all language “any material,” it cannot be said that uncertainty is created by the listing of other controlled substances by both the name of the substance and its natural source. Perhaps the legislature could have drafted a statute listing the score of mushroom species known to contain psilocybin, but the failure to use more precise language to accomplish an identical goal does not render the existing law unconstitutionally vague. United States v. Powell, 423 U.S. 87, 94, 46 L.Ed.2d 228, 96 S.Ct. 316 (1975).
Furthermore, our drug laws, like those of Illinois, provide that a defendant cannot be convicted of possession or sale of a controlled substance absent proof that he knew of the presence of the controlled substance. State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 (1983). Therefore, in contrast to the concern of the Florida court in Fiske, there is no danger that a defendant might be convicted of a crime for innocently possessing mushrooms he did not know contained a controlled substance. As was stated in Screws v. United States, 325 U.S. 91, 102, 89 L.Ed. 1495, 65 S.Ct. 1031 (1945), “where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” Thus, the statute coupled with the requirement of knowledge does not violate the due process rights of either those who possess mushrooms knowing them to contain a controlled substance or those possessing them without such knowledge.
In sum, the plain language of the statute provides notice to the potential defendant that possession and sale of psilocybin in any form is unlawful, while the requirement that possession be with knowledge of the controlled substance would serve to prevent arbitrary enforcement of the statute. We conclude that the statutes describing the crimes of possession and sale of any material containing psilocybin, K.S.A. 1984 Supp. 65-4127b and 65-4105(d)(18), are not unconstitutionally vague.
Affirmed. | [
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Miller, J.:
The plaintiff, Desma Miller, has appealed from a judgment of the trial court denying her recovery on her claim for wrongful garnishment. At issue is the propriety of a garnishment of joint bank accounts in which the garnished debtor, although named as a cotenant, owned no actual interest in the accounts.
The facts giving rise to the lawsuit are not disputed. Desma Miller is a seventy-five-year-old widow who resided in Arizona most of the year for reasons of health. Her son John Miller and his wife Henrietta lived in Parkville, Missouri. Their names were added to the signature card of plaintiff s accounts at Industrial State Bank (Industrial), located in Wyandotte County, as joint tenants for Desma’s convenience in order to enable them to perform banking transactions in her behalf. John and Henrietta made no contributions to the accounts.
On July 21, 1980, Clayco State Bank (Clayco) filed suit in the District Court of Johnson County, Kansas, against John and Henrietta as guarantors on a note. Desma was not a party to this suit. At the request of Clayco, a number of prejudgment garnishment orders (plaintiff alleges “some sixty”) were directed to various financial institutions in Johnson, Wyandotte and Sedgwick Counties, seeking to attach funds of John and Henrietta Miller.
In response to one of the orders, Industrial answered on July 31, 1980, that it held several joint accounts in the names of Desma, John and Henrietta, and that it would hold pro rata parts of each of the accounts.
John and Henrietta promptly filed an answer stating that Desma was the true owner of the accounts and that all funds were her sole property. They also filed a motion to have the accounts released.
A hearing on this motion was held December 3,1980, and John and Henrietta, in support of their motion, presented evidence that the accounts were owned solely by Desma Miller. Clayco argued that John and Henrietta had no standing to request the release and since Desma, the real party in interest, was not before the court, the presumption of joint ownership had not been rebutted. It requested a continuance to permit it to obtain Industrial’s records of the accounts.
Clayco’s motion for a continuance was denied, and the court ruled that John and Henrietta had met the burden of proof upon them to rebut the presumption of equal ownership of the accounts. It declined, however, to release the accounts at that time pending the submission of briefs on the issue of the standing of John and Henrietta to request the release.
Clayco filed its memorandum brief together with a motion for rehearing and reconsideration on December 15, 1980. On the following day, it then filed a new action in the Circuit Court of Platte County, Missouri, based on the same issues as in the pending Johnson County case. This new case resulted in a judgment against the Millers in May, 1981, which was thereafter filed in Johnson County pursuant to K.S.A. 60-3003.
There is no record that John and Henrietta ever responded to Clayco’s memorandum or motion filed in the Johnson County case, or that the court ever ruled on the motion.
Subsequently, on July 31, 1981, the Bankruptcy Court of the Western District of Missouri gave notice that John and Henrietta had filed a petition in bankruptcy and ordered the release of the various accounts being held by Industrial.
The Johnson County action was finally dismissed on September 1, 1981, pursuant to a motion filed by defendants on the ground that the identical issues had been adjudicated in the Platte County case.
Desma Miller filed the present action in Wyandotte County against Clayco on December 11, 1981, claiming that Clayco’s action in garnishing plaintiff s accounts was wrongful and that she had suffered damages as a result. She also claimed Clayco’s actions were willful, malicious and wanton, and asked for punitive damages. Clayco then filed a third-party petition alleging that any damages suffered by plaintiff were caused by Industrial.
The case was tried to the court on November 17,1983, and was taken under advisement. In a memorandum opinion filed on February 17, 1984, the court ruled that the garnishment by Clayco of the accounts involved was not wrongful in the first instance and did not become wrongful thereafter, and it ruled in favor of both banks. It is from these rulings that plaintiff has appealed.
Plaintiff contends on appeal that, in view of the ruling by the Johnson County District Court at the December 3, 1980, hearing that John and Henrietta had rebutted the presumption that they owned any interest in the accounts, the garnishment of such accounts by Clayco was wrongful from the time of its inception.
In this state, the rule was early established that a party is entitled to attachment only when the debtor actually owns a beneficial interest in the property attached, and that such interest must exist as a matter of fact or the attachment is wrongful.
In the early case of McLaughlin v. Davis, 14 Kan. 168, 169 (1875), the court stated:
“A party is entitled to an attachment only when certain facts exist, not when there is probable cause to believe that they exist .... If they do not exist, the attachment is wrongfully issued, and the party causing it to issue is liable for all the damages actually sustained.”
The same rule was applicable in an action to recover damages for a wrongful garnishment. Jacobs v. Greening, 109 Kan. 674, 202 Pac. 72 (1921). See also 38 C.J.S., Garnishment § 310.
In Lukens v. First National Bank, 151 Kan. 937, 101 P.2d 914 (1940), a similar question was involved. The defendant bank sought to attach wheat stored in two elevators to satisfy a judgment against G. W. Lukens. The companies answered that they had no wheat owned by G. W. Lukens. The bank then issued a garnishment order to the two companies. Again, they answered that they had no properties or credits belonging to G. W. Lukens, but only held property belonging to Jim Lukens, his son. The bank disputed the answers, but subsequently dismissed the garnishment without trial. Jim Lukens then sued the bank for damages.
The bank’s defense was that it had reason to believe Jim and his father were operating the farm together and that the wheat was at least in part the property of the father. The court instructed the jury that the plaintiff could not recover any damages if the jury believed the bank had probable cause and reasonable grounds for so believing. The Kansas Supreme Court found the instruction clearly erroneous and stated:
“If the garnishment was wrongful in character and the wheat and credits actually belonged to Jim Lukens and not G. W. Lukens, it is no defense to the claim for actual damages resulting therefrom that the bank had reasonable grounds to think that the wheat belonged to G. W. Lukens. It could only be a defense to a claim for exemplary or punitive damages .... ‘[P]robable cause’must existas a fact and not merely in the mind of the attaching creditor. [Citation omitted.]” Lukens, 151 Kan. at 942-43.
Various theories have been advanced as to the extent to which a joint bank account was subject to garnishment for the debt of one of the cotenants (see Walnut Valley State Bank v. Stovall, 1 Kan. App. 2d 421, 566 P.2d 33 [1977], rev'd 223 Kan. 459, 574 P.2d 1382 [1978]), and eventually the Kansas Supreme Court was called upon to decide the question. In Walnut Valley State Bank v. Stovall, 223 Kan. at 464, the court held:
“We hold that a garnishment upon a joint tenancy bank account severs the joint tenancy, creating a tenancy in common. A rebuttable presumption of equal ownership between the cotenants remains intact. The burden of proof on a claim the account is owned other than equally between the cotenants lies with the party asserting such claim.”
See also Purma v. Stark, 224 Kan. 642, 585 P.2d 991 (1978); Dailey v. Walden, 7 Kan. App. 2d 712, 648 P.2d 258 (1982).
Clayco argues that the earlier garnishment cases in Kansas are distinguishable and are not consistent with the court’s decision in Walnut Valley, 223 Kan. 459. It maintains that the severance of a joint tenancy account and presumption of equal ownership supplies the fact of ownership required by Lukens, 151 Kan. 937. To hold otherwise, it contends, would in effect virtually nullify the garnishment statute because creditors would be unable to rely upon the answer of the garnishee regarding ownership of a joint account and would be stymied from pursuing available assets of their debtors because of the threat of civil damages if the presumed pro rata ownership interest was later overcome.
There have been no appellate decisions construing the earlier Kansas cases on wrongful garnishment since Walnut Valley; however, the principles of garnishment law as stated in Lukens, Jacobs and McLaughlin were reiterated in Braun v. Pepper, 224 Kan. 56, 578 P.2d 695 (1978), decided two and one-half months after Walnut Valley.
Garnishment is a provisional remedy created by statute to enable a creditor to satisfy a debt out of property, money or credits belonging to the debtor which are in the possession or under the control of another. K.S.A. 607714 et seq.
The law of garnishment has not been a static concept, however. It is being continuously refined by legislative enactments and appellate courts at both the state and federal levels, and much of this activity has been directed toward providing due process and balancing the interests of the parties involved in garnishment proceedings.
Shortly after Hillhouse v. City of Kansas City, 221 Kan. 369, 559 P.2d 1148 (1977), the 1977 session of the Kansas Legislature amended the attachment statute to bring it into conformity with the due process standards defined by the United States Supreme Court, and in 1979 the related area of garnishments was likewise addressed by the legislature.
Clearly, in the garnishment of a joint bank account, only the interest actually owned by the garnishment debtor is subject to seizure. Any interested person, including a cotenant, may seek to have the garnishment dissolved. K.S.A. 60-712(a). Under the rationale of Walnut Valley, when the ownership of the garnished account is disputed, an expeditious hearing of the issue is contemplated, and there is imposed upon the party seeking to rebut the presumption of equal ownership the burden of proving otherwise.
When the presumption has been rebutted, however, a corresponding duty is then imposed upon the garnishment creditor to see that the garnishment is released within a reasonably prompt period of time, and the failure to do so makes the continued retention of the garnished funds beyond such time wrongful. In other words, a garnishment that was not wrongful in the first instance at that point becomes wrongful and there inures then to the rightful owner of the funds a cause of action against the garnishment creditor for all actual damages thereafter sustained by the owner, without proof of malice or want of probable cause.
In this case, Clayco, in effect, simply abandoned further prosecution of the Johnson County lawsuit under circumstances that left the plaintiff with two-thirds of her accounts wrongfully impounded. The trial court, therefore, erred in holding that plaintiff had no cause of action against Clayco for any resulting damages.
It is undisputed that Desma Miller’s accounts were not released until ordered by the Bankruptcy Court on July 31, 1981, eight months after the Johnson County District Court found that the Millers had rebutted the presumption of equal ownership in the accounts. Plaintiff contends that Clayco’s actions in continuing the garnishment for this period of time were willful, wanton and malicious, entitling plaintiff to punitive damages.
At the time Clayco filed its memorandum brief in the Johnson County case, it also filed a motion for rehearing and reconsideration on the basis that Industrial’s records, which it had subpoenaed for that hearing, had not been provided, and stated: “If the Bank’s records disclose that the subject accounts are the sole property of [Desma Miller] [Clayco] will voluntarily release these garnishments.”
The trial court, in denying plaintiff s claim for punitive damages, held that the fact that Clayco’s motion was never ruled on by the Johnson County District Court nor a final opinion ever issued on the matter under advisement did not make Clayco legally liable for the delay in releasing the accounts. It also noted that neither John and Henrietta, nor Desma, nor the court, ever responded to Clayco’s memorandum and motion..
There was no duty on the part of Desma to appear in the action to seek a release. John and Henrietta simply filed for bankruptcy, and Clayco did not pursue the lawsuit further.
Under the circumstances here, however, we find no authority for plaintiff s claim that Clayco’s failure to release the garnishment pending a ruling on its motion and memorandum constituted wanton and malicious conduct. The trial court did not err in denying plaintiffs claim for punitive damages.
Clayco, in its third-party petition, asserts that if plaintiff suffered any harm it was caused by Industrial. The trial court ruled that Industrial was not responsible for the initial garnishment and had no responsibility to release it.
The garnishment order issued to Industrial followed the statutory procedure. Industrial answered and severed the joint accounts in accordance with Walnut Valley State Bank v. Stovall, 223 Kan. 459. It then merely followed the court’s order in holding the funds until receiving an appropriate order releasing the funds. The trial court was correct in concluding that Industrial was not liable either to plaintiff or to Clayco.
In summary, the trial court’s judgment is affirmed in part and reversed in part as hereinabove concluded, and this cause is remanded to that court with instructions to determine what damages, if any, Desma Miller suffered by reason of the continued retention of her funds for the period commencing a reasonable time after the court had determined she was the sole owner of the accounts so impounded. | [
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Harman, C.J. Retired:
Carl Pendelton appeals his conviction of aggravated indecent solicitation of a child. K.S.A. 21-3511. The big issues are whether K.S.A. 60-460(dd) permits unreliable hearsay evidence in violation of appellant’s confrontation rights under the Sixth Amendment to the federal Constitution and whether the trial court properly applied that statute.
On the afternoon of October 24, 1982, two boys whom we shall designate as A, aged 7, and L, aged 11, went to the Rollaway Auction House at 2305 East 10th Street in Topeka, hoping to sell some car parts. Pendelton, who was part owner and operated a booth at the auction house, declined buying the parts, but according to the testimony of L, told the boys to return later.
The boys came back to the auction house near closing time, between 4:30 and 5:00 p.m. and asked if they could help Pendelton cover his tables. He agreed to let them help and, while waiting, the boys sat on the floor of his booth playing with Star Wars cards. L testified that Pendelton came over to where the boys were sitting, went down on his knees, unzipped his pants, pulled out his penis, and offered the boys money to “jack him off.” The boys said, “No.”
L also testified that Pendelton showed them pictures of naked women in “Playboy” magazines. Appellant then told A to go away and took L to a closet at the back of his booth where he asked L to strip down so he could take pictures of him. L refused to do so. The door to the closet remained open and L at no time tried to run away from the defendant. A told his mother, who testified at trial as to his statements, that he kept peeking to see what was happening to L after appellant told him to go away.
The boys helped Pendelton cover his tables and carry some items to his car, received a few items in payment for their help, and returned home about 5:30 p.m.
Finding his mother had company, A went to L’s house but returned home shortly thereafter. His mother testified that he hung around her “looking at her acting weird.” He told his mother that “this man had shown him some dirty pictures and exposed himself’ to them. He said the man showed them his “ding-a-ling” and offered them money to touch it.
Appellant testified that the boys helped him close down his booth and received some items in payment, but that he did not perform the acts in question. He testified he caught the boys looking through, magazines displaying nudity and told them they shouldn’t be reading them.
After A told his mother of the events, she called L’s mother, and they decided to call the police. After brief questioning, the boys identified the defendant in a photo lineup.
During the trial, but outside the presence of the jury, a hearing was held pursuant to K.S.A. 60-460(dd) to determine whether A was qualified to testify. The court found, “the witness is disqualified for the reason that it appears that on inquiry he cannot relate in a logical progression the sequence of events, or, for that matter, the factual situation that gives rise to the issues in this particular lawsuit.”
A’s mother was allowed to testify as to his statements at trial under the new hearsay exception at K.S.A. 60-460(dd). The jury found the defendant guilty of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511 (Count I) and sexual exploitation of a child in violation of K.S.A. 21-3516 (Count II). A motion to set aside the verdict on Count II was granted. The court suspended imposition of sentence on Count I and placed appellant on two years supervised probation. This appeal ensued.
K.S.A. 60-460(dd) establishes a new exception to the general rule of evidence excluding hearsay:
“(dd) In a criminal proceeding or in a proceeding to determine if a child is a deprived child under the Kansas juvenile code or a child in need of care under the Kansas code for care of children, a statement made by a child, to prove the crime or that the child is a deprived child or a child in need of care, if:
(1) The child is alleged to be a victim of the crime, a deprived child or a child in need of care; and
(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or pfomises.
If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor.”
Appellant contends that K.S.A. 60-460(dd) unconstitutionally permits unreliable hearsay at trial in violation of a defendant’s right under the confrontation clause of the Sixth Amendment. He further contends that even if the statute is constitutional on its face, the trial court improperly applied the statute to the facts of this case.
The right to confront one’s accusers under the Sixth Amendment is not absolute. In general, the courts have determined that the confrontation clause restricts the range of admissible hearsay by requiring showings of necessity and reliability. The use of hearsay against an accused does not violate the confrontation clause when a declarant is unavailable and his statements bear an adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 62-66, 65 L.Ed.2d 597, 100 S.Ct. 2531 (1980); State v. Myers, 229 Kan. 168, 171-72, 625 P.2d 1111 (1981); State v. Rodriquez, 8 Kan. App. 2d 353, 356-57, 657 P.2d 79, rev. denied 233 Kan. 1093 (1983).
K.S.A. 60-460(dd)(2) allows for admission of a child victim’s statements only if the trial judge “finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, [and] the statement is apparently reliable . . . .” The stat ute itself requires the trial judge to make the two determinations required by case law to satisfy the mandate of the Sixth Amendment in the admission of hearsay. Given these restrictions in the statute, we cannot find that the statute violates the Constitution on its face.
We next look to the facts to determine if the statute as applied violated the appellant’s right to confrontation under the Constitution.
Initially the trial court found, after a hearing, that A w!as unavailable as a witness because he could not relate in logical progression the sequence of events or factual situation that gives rise to the issues in the lawsuit. Neither side disputes this finding. It next concluded that the statement was apparently reliable since the child, at his first opportunity, initiated the conversation, relating the facts to his mother in a situation completely removed from threats or promises. Appellant contends that this finding, without more, does not provide adequate indicia of reliability or a particularized guarantee of trustworthiness to satisfy the requirements of the Sixth Amendment.
Initially appellant suggests that since the child victim’s statements are not made under oath or subject to cross-examination, flaws in perception or memory cannot be tested.
Addressing the issue of cross-examination of a child victim in United States v. Nick, 604 F.2d 1199, 1202 (9th Cir. 1979), the court noted:
“If the sole method by which the confrontation clause could be satisfied was the opportunity to cross-examine the declarant in court either at the time the statement was made or at the time the statement was offered, the infant’s statement could never be received in evidence.”
The court went on to say:
“[The] Supreme Court in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), made plain that the availability of cross-examination was not the sole criterion by which to test the admissibility of hearsay over confrontation clause objection. In this context, the essential confrontation clause issue is whether the admissible hearsay, under all of the circumstances, has a very high degree of reliability and trustworthiness and there is a demonstrated need for the evidence. The availability of cross-examination is simply one of the means by which the quality of reliability is tested.
“Both the confrontation clause and the hearsay rule are based, among other things, upon a belief that some kinds of relevant evidence should not be admitted unless the probative value of the evidence and its trustworthiness under all of the circumstances substantially outweigh the risks of unreliability that are assumed to flow from the inability to test the declarant’s credibility, memory, perception, and ability to communicate in the courtroom in which the testimony is received. The exceptions to the hearsay rule found in the Evidence Code, largely, but not entirely adopting common law exceptions, are designed to facilitate the admission of probative evidence and, at the same time, to minimize the risks of unreliability.” 604 F.2d at 1202-03.
“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. at 66. Although many statements admissible under K.S.A. 60-460(dd) would fall within well-established exceptions, (dd) is broader, and is not a firmly rooted exception. Pierron, The New Kansas Law Regarding Admissibility of Child-Victim Hearsay Statements, 52 J.K.B.A. 88, 90-91 (1983); McNeil, The Admissibility of Child Victim Hearsay in Kansas: A Defense Perspective, 23 Washburn L.J. 265 (1984). See State v. Rodriquez, 8 Kan. App. 2d 353.
Arguably the statement of A, in addition to being admissible under K.S.A. 60-460(dd), could have been admitted under the exceptions of K.S.A. 60-460(d)(2) or (3) as well. Those sections provide for the admission of the following statements:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at the time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
In Rodriquez a four-year-old victim of sexual abuse told her mother the defendant had molested her. The statement was made spontaneously, at the first opportunity when the child was reunited with her mother four to six hours after the event. The victim was disqualified as a witness, but the trial court admitted the hearsay statement of the child victim under K.S.A. 60-460(d)(2) and (3). The court found sufficient evidence supported the finding of the trial court and the admission of the statement at trial:
“ ‘This court has concluded the statements were properly admitted under K.S.A. 60-460(d)(2) or (3). Specifically, the court believes the statements made by [the child] approximately four hours after leaving Defendant’s custody and immedi ately upon being reunited with her mother were made under the stress of nervous excitement caused by perception of the event when the matter had been recently perceived and while [the child’s] recollection was clear, made in good faith with no incentive to falsify or to distort. It is pertinent that the statements were not solicited by the mother or elicited in an interrogational manner; rather the statements were spontaneous, directed against the Defendant with whom she had had an affectionate paternal relationship, and immediately made when she was returned to the one person she could trust and confide in, her mother. There is nothing in the evidentiary record to indicate the child’s statements were made except in good faith with no incentive to falsify or distort. This court finds v^ry persuasive the fact that the child told her mother what happened at her first opportunity. It cannot be considered unusual or extraordinary that a four year child would be unwilling or psychologically unable to disclose such a personal assault to strangers and nonrelatives. (State v. Noble, 322 So. 2d 170; State v. Jones, 204 K. 719; Heflin v. State, supra, and 89 ALR 3rd 102).’ ” (Emphasis in original.) 8 Kan. App. 2d at 355-56.
Many other jurisdictions have also admitted the statements of child victims of crime as spontaneous declarations when the child was disqualified as a witness. See Annot., 15 A.L.R.4th 1043, § 3; Annot., 89 A.L.R.3d 102. In State v. Wilson, 20 Or. App. 553, 532 P.2d 825 (1975), the court looked to a number of factors in determining whether the statement of the victim was sufficiently impulsive or unreflective in nature to be admitted as a spontaneous declaration. These factors included; (1) the time element between the occurrence of the crime and the statements; (2) the condition of the victim at the time the statement was given; (3) whether the statement was made in response to an inquiry; (4) whether the declaration was made at the first opportunity subsequent to the alleged occurrence; and (5) the age or mentality of the victim. Similar factors are presented in K.S.A. 60-460(dd) where they are required to be part of the instructions to a jury when a statement is admitted under that section.
Applying these criteria, it appears that the seven-year-old’s statement probably could have been admitted under K.S.A. 60-460(d)(2), a firmly rooted exception from which reliability could be inferred. The statement was made to his mother within two hours after the occurrence of the crime, at a time when A was still showing signs of being upset by the occurrence. A initiated the conversation with his mother as soon as her company left, at his first opportunity to talk with her alone.
Only one Kansas case, Rodriquez, has addressed the issue of reliability under a relatively new hearsay exception, the exception under K.S.A. 60-460(d)(3). In finding that the admission of the statement in Rodriquez did not deny the defendant’s right to confrontation, the court held:
“On this point, the trial court relied heavily upon the testimony of a child psychologist who testified outside the presence of the jury in the portion of the trial dedicated to determining whether the child was qualified to testify. The psychologist was of the opinion that the child was capable of understanding the moral duty of telling the truth. She was able to tell the doctor what had happened by using drawings and simplified anatomical charts. He spent approximately two hours testing her and concluded she was of normal intelligence, somewhat behind her age group as to receptive vocabulary skills, and had not been programmed by her mother. The trial court concluded that the evidence clearly indicated that the child made the statements to her mother in good faith and with no incentive to falsely accuse defendant. Under the totality of the circumstances, we conclude that defendant was not denied his constitutional right of confrontation.” 8 Kan. App. 2d at 357.
Additionally, in Rodriquez the court looked at medical evidence which corroborated the occurrence of the crime.
In this case the defendant’s motion for a psychological examination of the witness was denied. However, unlike the child victim in Rodriquez, A was subjected to questioning for several minutes in the hearing to determine his unavailability as a witness. The court had the benefit of this testimony, and at no time did he find A to be incapable of knowing what the truth was or of telling the truth. While the testimony of a psychologist might have been helpful to the trial court, under the circumstances of this case we cannot find that a psychological examination was required to insure the reliability of the statement.
The same is true of the medical evidence. In a case of solicitation, medical evidence will never be available. However, the testimony of L serves to corroborate A’s statement, and indicates its reliability.
Where a statement is made by a child victim to his parent shortly after the occurrence of the crime, when the victim is still exhibiting signs of being upset by the occurrence, at the first opportunity for such communication; the statement is corroborated by other testimony at trial; and the trial judge has an opportunity to evaluate the trustworthiness of the child victim in a hearing to determine his unavailability as a witness, we cannot find that the admission of the statement violates any of appellant’s constitutional rights.
Finally, appellant challenges the sufficiency of the evidence to convict him. On appeal the issue is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appellant was convicted of violating K.S.A. 21-3511, which provides:
“Aggravated indecent solicitation of a child. Aggravated indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of twelve (12) years to commit or to submit to an unlawful sexual act.”
The victims here, A and L, were both under the age of twelve. The testimony of L, corroborated by that of A’s mother as to A’s statements, amply showed that appellant solicited the two boys to commit the unlawful sexual act of lewd and lascivious behavior, defined in K.S.A. 1983 Supp. 21-3508(b) as:
“the exposure of a sex organ in a public place, or in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.”
The evidence amply supports the conviction. Judgment affirmed. | [
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Abbott, J.:
This is a direct appeal by the defendant, Paul Mogenson, from his convictions of aggravated battery (K.S.A. 21-3414), aggravated burglary (K.S.A. 21-3716), and terroristic threat (K.S.A. 1984 Supp. 21-3419[a]). The victim of these crimes was Mogenson’s estranged wife, Jeanne.
The defendant asserts two errors were committed by the trial court: (1) admitting evidence of prior incidents between the defendant and his estranged wife; and (2) the response given to the jury’s question regarding the aggravated burglary instruction.
I. Evidence of Other Crimes or Civil Wrongs.
The trial judge overruled defendant’s motion in limine and permitted the defendant’s wife to testify about numerous incidents which occurred during the couple’s stormy marital relationship and impending divorce. The trial judge admitted the evidence pursuant to K.S.A. 60-455 for the purpose of proving the defendant’s intent and motive. A corresponding limiting jury instruction was given in compliance with PIK Crim. 2d 52.06.
K.S.A. 60-455 is an evidentiary rule providing for limited admissibility. As set forth in the statute, evidence of other crimes or civil wrongs is admissible only for certain purposes.
The evidence must satisfy three criteria as determined by the trial court to be admissible. The other crimes must be relevant to proving a material fact; the material fact must be a substantial issue in the case; and, under a balancing test, the probative value of the evidence must outweigh its prejudicial effect. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974).
The defendant concedes that his intent is a substantial issue in the case. He has insisted throughout the proceedings that his presence in the house on the day in question was to retrieve his hairbrush which was in his son’s possession and not to inflict injury upon his wife. The defendant’s contentions on appeal go to the first and third prongs of the test discussed in Bly. He contends the other crimes evidence is not relevant to prove intent because of dissimilarities between the admitted evidence and the present charges. The defendant’s chief complaint, however, is that the prejudicial effect of the evidence outweighs its probative value.
Defendant’s relevancy argument is without merit. The previous incidents need only provide a basis for an inference of intent to injure. Prior incidents, which included choking the victim, holding her at gunpoint, and threatening her with death if the divorce proceeded, are probative to show defendant’s intent. The. remoteness in time of some of the incidents' affects the weight, and not the admissibility, of the evidence. State v. Carter, 220 Kan. 16, 20, 551 P.2d 821 (1976). As we view the evidentiary record, the previous occurrences between defendant and his wife were relevant on the critical issue in this case — defendant’s intent. State v. Rupe, 226 Kan. 474, 601 P.2d 675 (1979); State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977).
With regard to defendant’s contention of undue prejudice, we conclude that the probative value of the evidence outweighs any prejudicial effect. The dangers noted in State v. Davis, 213 Kan. 54, 515 P.2d 802 (1973) — confusion of the issues, misleading of the jury, undue delay, and needless presentation of cumulative evidence — are not present here. The continuing course of conduct established by the prior incidents clearly aided the jury in ascertaining the defendant’s intent on this occasion. Thus, no error has been demonstrated in admitting the evidence pursuant to 60-455.
In any event, the evidence of prior incidents is admissible independent of 60-455. Kansas courts have allowed evidence of prior acts of a similar nature between the defendant and the victim independent of 60-455 so long as the evidence is not offered for the purpose of proving distinct offenses. The evidence is admissible to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. State v. Reeves, 234 Kan. 250, 255, 671 P.2d 553 (1983).
II. Aggravated Burglary Instruction.
The aggravated burglary instruction, as originally submitted to the jury, was not objected to by the defendant. It is modeled after PIK Crim.2d 59.18 and states:
“The defendant is charged with the crime of aggravated burglary. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant knowingly entered or remained in the house at 409 North McKinley;
2. That the defendant did so without authority;
3. That the defendant had the intent to commit aggravated battery, a felony, therein;
4. That at the time there was a human being in the house; and
5. That this occurred on or about the 2nd day of December, 1983, in McPherson County, Kansas.”
During deliberations, the jury asked the following question:
“In reference to Instruction 9, Item 3: Does the intent have to be only, at the time he entered the house, or at the time he remained in the house in the course of the argument, or could intent include ongoing intent which had been there previously.”
The defendant objected on the basis that Kansas law requires the requisite intent to be present at the time of the entering. The trial court responded:
“The intent must exist at the time the defendant entered the house or at the time he remained in the house in the course of the argument.”
The defendant contends that the trial court’s response in the alternative was not a correct statement of the law in Kansas. He maintains that in Kansas, the requisite intent must be present upon entry or at the time the express or implied authority to enter is withdrawn.
Our aggravated burglary statute, K.S.A. 21-3716, states:
“Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.”
This court has previously recognized that the crime of aggravated burglary may be committed by two alternative methods, as “entering into” and “remaining within” indicate two distinct factual situations. State, v. Brown, 6 Kan. App. 2d 556, Syl. ¶ 4, 630 P.2d 731 (1981). The use of the disjunctive “or” in the statute requires a construction that aggravated burglary consist of:
“(1) knowingly and without authority entering into a building in which there is some human being, with intent to commit a felony or theft therein, or
“(2) knowingly and without authority remaining within a building in which there is some human being, with intent to commit a felony or theft therein.” State v. Reed, 8 Kan. App. 2d 615, 622, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983).
Ordinarily, the aggravated burglary instruction should employ only the phrase which is descriptive of the factual situation when the evidence is clear. If the evidence is not clear as to which proscription the defendant’s conduct falls under, an instruction in the alternative is proper. See PIK Crim. 2d. 59.18, Notes on Use.
In the case before us, the trial court properly instructed in the alternative in the original aggravated burglary instruction. Either form of aggravated burglary, “entering into” or “remaining within,” is supported by the evidence adduced at trial. A material factual dispute was presented by the evidence regarding defendant’s authority to initially enter the home. The victim testified that she did not authorize the defendant to come into the home. However, the defendant’s son indicated he unlocked the door for the defendant. It is undisputed that the victim, upon discovering the defendant’s entry, demanded that he leave the house.
The question remains whether the formation of intent must occur at the time of entry, or at the time the express or implied consent to enter is withdrawn, or whether it can be formed in a “remaining within” form of aggravated burglary after consent is withdrawn. We reach the conclusion that to constitute the crime of aggravated burglary by “remaining within,” there must be a concurrence of the criminal act and criminal intent. In this form of aggravated burglary, the accused remains after authority has terminated. People v. Vallero, 61 Ill. App. 3d 413, 378 N.E.2d 549 (1978).
Kansas’ aggravated burglary statute is modeled after Illinois law which contains similar statutory language. 111. Ann. Stat. ch. 38, § 19-1 (Smith-Hurd 1985 Supp.). Illinois case law interpreting their burglary statute is therefore persuasive. The Illinois court examined burglary-by-remaining in Vallero. In a specially concurring opinion, Justice Stengel commented on the majority’s inference that in all burglary cases the defendant must possess the requisite intent at the time of entry. Such construction of the burglary statute would render the “remains within” form of burglary superfluous. He noted:
“In the present case defendant had authority to enter the dairy and he did not intend to commit a theft or felony when he entered. Thus, he clearly cannot be guilty of burglary under alternative (1). Nor can defendant be guilty of burglary under alternative (2). Although defendant formed the requisite intent to steal after entering the dairy, he did not do the required unlawful act. That is, defendant did not ‘without authority remain within’ the dairy. (Ill. Rev. Stat. 1975, ch. 38, par. 19-l(a).) Defendant had authority to enter the dairy and that authority never terminated. His presence on the premises was at all times lawful. It is not the fact that defendant’s criminal intent arose subsequent to entry which precludes his conviction of burglary in this case. Rather, it is the fact that defendant had authority to be in the dairy which requires us to reverse the instant burglary conviction.
“I believe that an intent to commit a theft or felony formed subsequent to a lawful entry may be a proper basis for a burglary conviction if it is proven that the defendant also committed the unlawful act of remaining in the building without authority. For example, if the defendant in this case had secreted himself in the dairy beyond the time it was open to the public with the intent to steal the checks after everyone else was gone he could properly be convicted of burglary. The fact his intent to steal was formed after he had lawfully entered the building would be inconsequential because his presence in the building beyond authorized hours would satisfy the ‘without authority’ element of the burglary statute and there would be a proper combination of unlawful act and criminal intent.” 61 Ill. App. 3d at 416-17.
Other jurisdictions which proscribe two alternative acts, entering or remaining, for the crime of burglary also indicate that the necessary intent to commit a theft or felony may be formed after entry upon the premises. Gratton v. State, 456 So.2d 865 (Ala. App. 1984); State v. Embree, 130 Ariz. 64, 633 P.2d 1057 (1981); State v. Papineau, 53 Or. App. 33, 630 P.2d 904 (1981); State v. Reams, 47 Or. App. 907, 616 P.2d 498 (1980).
The “remaining within” form of burglary is not without prob lems, howev.er. New York is one such state that defines burglary in the two alternatives “entering” or “remaining.” As noted in the comments to the Model Penal Code, one could be prosecuted for burglary-by-remaining in the following example. A visitor to one’s home becomes involved in an argument with the host, threatens to punch the host in the nose and is asked by the host to leave. If the visitor does not leave, but continues the threat, he or she could be found guilty of burglary. Model Penal Code 8 221.1, p. 71 (Official Draft and Revised Comments) (1980). The obvious danger in such a situation is that the victim’s actions in terminating the offender’s authority to remain in the home (or in one’s place of business, etc.) elevate the charges against the offender to burglary.
That is the precise problem presented by the facts before us. Assuming defendant was initially authorized to enter the house when his son unlocked the door, that authority was terminated when the defendant’s wife demanded that he leave the house. By remaining in the house and committing aggravated battery on his wife, defendant was subject to being convicted of aggravated burglary. The unlawful act, remaining without*authority, concurs with the criminal intent to commit aggravated battery and so satisfies the statute’s elements.
Having concluded that the necessary intent may be formed at the time of lawful entry or after consent to an otherwise lawful entry has been withdrawn, we now examine the propriety of the trial court’s response to the jury’s question. The trial judge’s further instruction to the jury on the formation of intent was as follows: “The intent must exist at the time the defendant entered the house or at the time he remained in the house in the course of the argument.”
Requests for additional information or instructions after a jury has commenced deliberation are addressed to the trial court’s discretion. State v. Sully, 219 Kan. 222, 228, 547 P.2d 344 (1976); State v. Thomas, 6 Kan. App. 2d 925, 932, 636 P.2d 807 (1981). The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried. State v. Bandt, 219 Kan. 816, 824, 549 P.2d 936 (1976).
The intent of the defendant is an element of aggravated burglary and was a hotly contested issue at trial. The formation of intent to commit aggravated battery must have existed at the time his authority to be in the house was terminated or after he remained in the house without authorization. Whether “in the course of the argument” coincides with the termination of defendant’s lawful entry would seem to be a factual determination for the jury. In any event, the evidentiary record conclusively establishes that the argument ensued after defendant was ordered out of the house. In light of the record before us, we conclude that the requisite intent was present during the course of argument, a time when defendant’s authority had terminated. Considering the above and the defendant’s objection to the supplemental instruction, we conclude the trial court’s response was not error. Under our standard of review it cannot be declared that an abuse of discretion has occurred.
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Foth, C.J.;
The plaintiff Timothy Sears was injured when the vehicle in which he was a passenger struck a tree. The driver of the vehicle, Kevin Wilson, was uninsured. Plaintiff s father, with whom he lived at the time of the accident, had unlimited use of a car owned by the father’s employer, Economics Laboratory, Inc. Defendant Continental Casualty Company had issued a liability policy on that car to the corporate employer containing an uninsured motorist clause. After receiving judgment against the tortfeasor Wilson, plaintiff sought to recover from Continental Casualty Company under the uninsured motorist provisions of the policy on his father’s company car. The insurer moved for summary judgment, which the trial court granted after ruling that plaintiff was not provided coverage under the policy. Plaintiff appeals.
The question is whether the plaintiff was covered by the uninsured motorist clause of Continental’s policy when riding in a vehicle other than the ones insured by the policy. The parties have stipulated to the facts. The question thus becomes a question of law for this court to decide. Merritt v. Farmers Ins. Co., 7 Kan. App. 2d 705, Syl. ¶ 1, 647 P.2d 1355 (1982). In deciding this question, this court must look to the provisions of the policy; if the terms of the policy are not ambiguous, the language used must be given its natural and ordinary meaning. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, Syl. ¶ 1, 681 P.2d 15 (1984); Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, Syl. ¶ 2, 471 P.2d 352 (1970).
The policy issued by Continental lists only one named insured: Economics Laboratory, Inc. In the Words and Phrases section of the policy, which is a definitional section applicable to the entire, policy, the following two definitions are provided: (1) “ ‘You’ and ‘your’ mean the person or organization shown as the named insured . . . .” (2) “ ‘Insured’ means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance. . . .’”
The “WHO IS INSURED” section of the uninsured motorist endorsement provides that the following individuals are insured:
“1. You or any family member.
“2. Anyone else occupying a covered auto . . . .”
The uninsured motorist endorsement also defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.”
The policy thus provides two groups with uninsured motorist coverage. The “named insured” and “his” family are covered wherever they may be; all others are only covered while occupying a vehicle insured under the policy. The plaintiff was not injured while occupying an insured vehicle — had he been in his father’s company car, an insured vehicle, he would have been covered. Furthermore, he is neither the “named insured” (the corporation), nor a member of the named insured’s “family.”
Because the named insured, a corporation, cannot have family, a household, or a spouse, the plaintiff argues that language in the uninsured motorist endorsement defining “insured” to include family of the named insured mandates a finding that certain employees of Economics Laboratory, Inc. also are “named in sureds” under the policy. Several jurisdictions have faced claims similar to the one asserted by the plaintiff here. They have uniformly rejected such claims.
In General Ins. v. Icelandic Builders, 24 Wash. App. 656, 604 P.2d 966 (1979), a closely held corporation operated by the Kristjanson family insured a vehicle. Timothy Kristjanson, whose father owned all of the Icelandic stock, was injured in an accident with an uninsured motorist. Timothy was driving his personal automobile when the accident occurred. He sought recovery under the corporation’s insurance policy, contending that the corporation had no existence independent of the Kristjanson family. The Washington court rejected this argument, ruling that the corporation alone was the “named insured.”
In Pearcy v. Travelers Indem. Co., 429 So. 2d 1298 (Fla. Dist. App.), rev. denied 438 So. 2d 833 (Fla. 1983), a corporate vice-president sought uninsured motorist benefits under the corporation’s policy for fatal injuries suffered by his son. The son, a corporate employee listed on the policy as an operator of the insured corporate vehicles, was killed while operating a non-covered vehicle. In rejecting the father’s claim, the court held “that where an uninsured motorist policy issued to a corporation, in standard form language, includes as an insured any ‘family member, related to [named insured] by blood, marriage or adoption who is a resident in [named insured’s] household,’ the language is a nullity, as the corporation can have no such relative.” 429 So. 2d 1298.
In Dixon v. Gunter, 636 S.W.2d 437 (Tenn. App. 1982), a corporation, of which the decedent was the president and sole stockholder, insured its company vehicles. The decedent died when the noncovered vehicle he was riding in was struck by an uninsured motorist. The policy issued to the corporation provided uninsured motorist coverage to “your [sic] or any family member.” The plaintiff argued that because a corporation may not be injured or have family, the court should look beyond the corporate structure and find the term “you” was intended to mean the decedent, the owner of all of the corporate stock. The court rejected this argument, ruled that the “family language” was a patent ambiguity, and discarded the language as surplus-age.
Similar results were reached in Testone v. Allstate Ins. Co., 165 Conn. 126, 328 A.2d 686 (1973); Hogan v. Mayor & c. of Savannah, 171 Ga. App. 671, 320 S.E.2d 555 (1984); Polzin v. Phoenix of Hartford Ins. Co., 5 Ill. App. 3d 84, 283 N.E.2d 324 (1972); Kaysen v. Federal Ins. Co., 268 N.W.2d 920 (Minn. 1978); Eveready Ins. Co. v. Schwartz, 54 App. Div. 2d 750, 387 N.Y.S.2d 713 (1976); Insurance Company v. Perry, Adm’r, 204 Va. 833, 134 S.E.2d 418 (1964). Cf. also Hartford Accident and Indemnity Co. v. Huddleston, 514 S.W.2d 676 (Ky. 1974) (finding insurance coverage for the son of a partner where the insured entity was the partnership); O’Hanlon v. Hartford Acc. & Indem. Co., 639 F.2d 1019 (3d Cir. 1981) (finding insurance coverage for the son under a policy issued in the father’s trade name; the court suggested the result might well be different if the insured entity had been a corporation).
The language the plaintiff relies on is standard insurance contract “boilerplate.” There is no indication the corporate employer or its insurer intended this language to have any effect as applied to Economics Laboratory, Inc. We conclude, with the Florida court in Pearcy, that where an uninsured motorist policy issued to a corporation, in standard form language, includes as an insured any family member, related to the named insured by blood, marriage or adoption who is a resident in 'the named insured’s household, the language is a nullity.
We further conclude that, in the absence of a clause expressly granting coverage to family members of an employee of a corporate named insured, such a family member is only covered by the corporation’s uninsured motorist policy when occupying a vehicle covered by the policy.
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Parks, J.:
Plaintiff Wayne Lewis d/b/a Lewis Excavation, a subcontractor, brought suit to foreclose his mechanic’s lien against the property of defendant landowner, Wanamaker Baptist Church. The trial court held that the mechanic’s lien was void because it lacked proper verification and denied relief. Plaintiff appeals.
In the Spring of 1982, defendant landowner contracted with George Hollyhead, as general contractor, to construct a new sewer line hookup with the city sewer. Plaintiff was selected to do the excavating and he performed the tasks included in his bid as well as others requested by the general contractor. Hollyhead did not pay plaintiff the money due him, so plaintiff filed a mechanic’s lien against the church property on April 9, 1982. The trial court found the mechanic’s lien fatally defective because the verification statement signed by plaintiff was qualified as being according “to the best of his knowledge and belief.” The pertinent part of the verification states as follows;
“That he is the claimant in the above and foregoing Mechanics Lien; that he has read the above and foregoing lien and swears that the statements and allegations contained therein along with the attached Exhibit ‘A’ are true and correct to the best of his knowledge and belief.”
A lien statement must be filed in order for the lien to be valid and enforceable and it must satisfy the following provisions of K.S.A. 60-1102:
“Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located ... a verified statement showing:
(1) The name of the owner,
(2) the name of the claimant,
(3) a description of the real property,
(4) a reasonably-itemized statement and the amount of the claim, . . .”
Although the mechanic’s lien provisions are liberally construed once the lien has been shown to have attached, the requirements for the lien to come into existence must be strictly met. Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704-05, 549 P.2d 1376 (1976). K.S.A. 60-1102 states that the lien statement should be verified and this verification has been held to mean an affidavit attached to the statement swearing to the truth of the matters set forth. Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983). An acknowledgment merely showing that the document was duly executed will not substitute for a verification. D.J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 369, 430 P.2d 222 (1967). However, the information necessary to establish the sufficiency of the verification may be supplied in the text of the lien statement as well as the verification affidavit itself. Trane, 234 Kan. at 352. Nevertheless, the verification requirement must be strictly met before the lien can be adjudged valid.
The only Kansas case dealing squarely with the efficacy of a less than absolute verification in a mechanic’s lien context held that an affidavit made by an agent to the best of his knowledge and belief without a showing that he had any knowledge on the subject was insufficient. Dorman v. Crozier, 14 Kan. 224 (1875). Other cases involving the sufficiency of affidavits required as verification in various proceedings have similarly rejected the effectiveness of a qualified statement. See, e.g., Harrison v. Beard, 30 Kan. 532, 2 Pac. 632 (1883); City of Atchison et al. v. Bartholow et al., 4 Kan. *124, 140 (1866).
The apparent strictness of this requirement is not without purpose. The mechanic’s lien, once it attaches, clouds the interest of the landowner and takes priority over all subsequent encumbrances. K.S.A. 60-1101. The requirement that the person verifying the lien statement swear absolutely to the truth of the facts stated conveys to the signer both the significance of the ramifications of the lien and the duty to avoid perjury. K.S.A. 1983 Supp. 21-3805. A qualified verification statement would permit the verifier to affirm facts as accurate upon hearsay or mere belief without actual knowledge of the truth. Such limited knowledge should not be permitted to justify the encumbrance of another’s realty. See Climate Control Co. Inc. v. Bergsieker Refrig., 196 Mont. 405, 408-09, 640 P.2d 442 (1982).
Plaintiff contends that the qualification in the verification attached to his lien statement stating that it was true to the “best of his knowledge and belief,” should not be fatal to the lien’s enforcement because he was both the lien claimant and executor of the verification. He contends that since he is the claimant who performed the work and had actual knowledge of the truth of the statements made in the lien document, the verification to the best of his knowledge and belief should be adequate. Unlike the agent in Dorman who may or may not have had the actual knowledge necessary to swear to the truth of the statements being verified, plaintiff argues that the truth to the best of principal/claimant’s knowledge is equivalent to the truth.
Despite the probable accuracy of plaintiff s claim of actual knowledge, neither the lien statement nor the verification indicates that plaintiff personally carried out the described work or had knowledge of the propriety of the charges. Thus, the only thing about plaintiff revealed in the lien statement which distinguishes his position from that of the affiant in Dorman is his status as sole proprietor rather than agent of the business claiming the lien. If this distinction is sufficient to permit a qualified verification by plaintiff while an agent/affiant must swear to the truth absolutely, then it would have to be assumed that any person who operates a business as a sole proprietor has knowledge of the truth of the statements which would be made in a lien statement. The organizational basis of the lien claimant as a sole proprietorship rather than a partnership or corporation would determine the nature of the verification required to create a valid lien. In other words, the sole proprietor who filed a lien statement with a qualified verification would still have a valid lien even though the same verification when used by a partner or corporate officer would have to be found insufficient. The meaning of the word “verified” in K.S.A. 60-1102 would then vary depending upon the status of the claimant filing the lien.
On the other hand, if plaintiff s verification was acceptable not simply because of some presumed degree of knowledge but because of the actual knowledge demonstrated in subsequent deposition testimony, the door would be opened for curing a faulty verification by later testimony. Such a result would contradict those opinions which have concluded that an invalid lien statement may not be amended to make it valid. See, e.g., Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 651, 347 P.2d 438 (1959). It is the actual information contained within the verification or body of the lien statement which must indicate that a person with authority to do so swears to the truth of the statement itself.
In sum, had plaintiffs statement included information evidencing his personal knowledge of the accuracy of the claims made, a qualified verification might have been acceptable. See Trane, 234 Kan. at 352. Absent any indication that plaintiff s best knowledge and belief was the same as the truth, the ancient precedent dictates that a less than absolute verification is insufficient. This requirement is a prerequisite to an effective lien’s creation and such conditions on the mechanic lien’s validity must be strictly construed. Holiday Development, 219 Kan. at 704-05.
We adhere to the holding in Dorman and reaffirm that a verification stating that the lien statements and attached exhibits are true and correct to the best of the affiant’s knowledge and belief, without a showing that he had any knowledge of the subject, is insufficient. Thus, we agree with the trial court that the verification in this case was qualified and not the absolute verification required to satisfy K.S.A. 60-1102.
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Abbott, J.:
This is an appeal by Steven Leland Olson from the trial court’s judgment denying his writ of habeas corpus.
Olson stands convicted of a class A felony, K.S.A. 21-3421, aggravated kidnapping. Prisoners serving a sentence for a class A felony are eligible for parole after serving 15 years of confinement, without deduction of any good time credits. K.S.A. 1984 Supp. 22-3717(b). Olson contends the statutory prohibition against the deduction of good time credits in determining the parole eligibility of an inmate denies him equal protection of the law in violation of Sections 1 and 2 of the Kansas Constitution Bill of Rights and the 14th Amendment to the United States Constitution.
During Olson’s stay at the Kansas State Penitentiary, he has received no disciplinary reports and has received positive staff evaluations. According to Olson’s calculations, if he were eligible to receive good time credit he would have accumulated 990 days against his sentence as of the date he filed his petition.
In Henry v. Bander, 213 Kan. 751, Syl. ¶¶ 1, 2, 518 P.2d 362 (1974), the Kansas Supreme Court set forth the test of rational relationship as the appropriate standard for evaluating equal protection claims:
“Under federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation.
“The constitutional principle of equal protection does not preclude the state from drawing distinctions between different groups of individuals, but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”
That test was applied in State v. Sherk, 217 Kan. 726, 729-32, 538 P.2d 1399 (1975), to uphold the classification of juvenile offenders into two distinct categories, and in State v. Freeman, 223 Kan. 362, 368-70, 574 P.2d 950 (1978), to uphold the mandatory sentencing provisions applicable to individuals who used firearms in the commission of their offenses. The rational relationship test has also been applied by the United States Supreme Court in McGinnis v. Royster, 410 U.S. 263, 35 L.Ed.2d 282, 93 S.Ct. 1055 (1973), to uphold a New York statute which provided good time credits for state penitentiary inmates following the imposition of their sentences, but denied such credits for time spent in presentence incarceration in a county jail. Thus, the question before us is whether the denial of good time credits to one convicted of a class A felony is rationally related to a valid legislative goal.
While this issue has not been directly addressed by the Kansas courts, a similar equal protection argument was rejected in State v. Freeman, 223 Kan. 362. Freeman involved a challenge to statutes (K.S.A. 1977 Supp. 21-4618 and 1977 Supp. 22-3717[8]) which precluded a grant of probation to a defendant who used a firearm in the commission of his offense and required the defendant to serve the entire minimum sentence before becoming eligible for parole. The Supreme Court found the statutes in question to be rationally related to the legitimate legislative goal of deterring the use of firearms in the commission of crimes against persons, pp. 368-70.
A claim virtually identical to the one raised herein was ad dressed by the Indiana Supreme Court in Jones v. Jenkins, 267 Ind. 619, 372 N.E.2d 1163 (1978). The Indiana statute in question denied good time credits to inmates serving life sentences. In rejecting an equal protection attack upon that statute, the corirt found the statute rationally related to a legislative determination that “the dangerousness of those persons sentenced to life imprisonment necessitates a different type of release program than that used with non-lifers. . . . ” p. 624.
In People v. Burton, 100 Ill. App. 3d 1021, 427 N.E.2d 625 (1981), the court rejected an equal protection challenge to a statutory scheme which gave inmates convicted of felonies an opportunity to earn more good time credits than could be earned by inmates convicted of misdemeanors. The court found a rational basis in a legislative determination that felons need greater incentives to conform to prison rules than do misdemeanants, pp. 1024-25. Disparities in the availability of good time credits, based upon the nature of an inmate’s offense, were also found to withstand equal protection attacks in Sutton v. Garmon, 245 Ga. 685, 266 S.E.2d 497 (1980); Amado v. Supt. Massachusetts Correctional Inst. at Walpole, 366 Mass. 45, 314 N.E.2d 432 (1974); and Parker v. Percy, 105 Wis. 2d 486, 314 N.W.2d 166 (1981). See generally Warden v. Marrero, 417 U.S. 653, 41 L.Ed.2d 383, 94 S.Ct. 2532 (1974) (complete denial of parole eligibility for individuals convicted of certain narcotics offenses constitutional); McGinnis v. Royster, 410 U.S. 263; Annot., 100 A.L.R.3d 431; Annot., 95 A.L.R.2d 1265.
Petitioner argues that the legislative goal of imposing severe punishments for serious offenses is met through the statutory classification of offenses into various degrees of felonies found in K.S.A. 1984 Supp. 21-4501. He claims the additional punitive sanctions of K.S.A. 1984 Supp. 22-3717 are not rationally related to this legislative goal, since that goal is already implemented. Yet given the serious and generally violent nature of those offenses classified as class A felonies, the additional sanction resulting from the unavailability of good time credits is rationally related to the legislative goal of protecting the public from the most dangerous felons. See Jones v. Jenkins, 267 Ind. 619.
Finally, appellant argues that K.S.A. 75-5201 sets forth rehabilitation as the primary purpose of the Department of Corrections, but that goal is defeated when good time credits are unavailable to class A felons. While K.S.A. 75-5201 does place a great emphasis on rehabilitation, it does so only to the extent that rehabilitation is “consistent with the interests and safety of the public.” The legislative decision to withhold good time credits from class A felons is an expression of legislative determination that the protection of the public requires an inmate convicted of a class A felony to serve at least 15 years before his or her rehabilitation will justify consideration for parole. Further, to the extent there is a conflict between K.S.A. 75-5201 and K.S.A. 1984 Supp. 22-3717(b), the latter statute, as the more specific, is controlling. See generally Szoboszlay v. Glessner, 233 Kan. 475, 479, 664 P.2d 1327 (1983).
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Meyer, J.:
This is an appeal by a defendant from a decision of the Johnson County District Court refusing to reinstate defendant’s appeal from a speeding conviction.
On May 10, 1984, Norman L. Barnett, defendant, was stopped by a City of Overland Park police officer for speeding 40 mph through a 25 mph school zone. On July 11, 1984, a trial was held in the Municipal Court of Overland Park, Kansas, on the charge against defendant. The court heard the evidence and found defendant guilty. Defendant was thereafter ordered to pay a fine of $45.00.
From the decision of the municipal court, the defendant appealed to the District Court of Johnson County. At the docket call before the court on July 25, 1984, the court asked defense counsel whether this case would be tried to the court or a jury. Counsel responded that he wanted the court to hear the matter, but added that he reserved the right to request a jury trial. The court thereafter set the matter for trial to the court on August 2, 1984, at 10:30 a.m.
Defense counsel mailed a Demand for Jury Trial on July 31, 1984, which was filed in the Johnson County District Court Clerk’s office on August 1, 1984, at 11:13 a.m., less than twenty-four hours before the scheduled trial on the matter.
On August 2, 1984, the city prosecutor appeared at the scheduled trial and, when both the defendant and his counsel failed to appear, requested the court dismiss the appeal. The court stated, “The record does reflect a demand for jury trial was filed August 1, 1984, at 11:13 a.m., which is not 48 hours prior to trial. The plaintiff is ready for trial. And accordingly, the Court must sustain the motion. The case will be dismissed and remanded to the Municipal Court.”
Defendant filed a motion to reinstate his appeal on August 8, 1984. On August 24, 1984, a hearing on this motion was held. The court ruled that it was questionable whether a Demand for Jury Trial mailed before the 48-hour deadline but not received until after the deadline was timely, but it ruled that the failure of both defendant and defendant’s counsel to appear at the August 2, 1984, hearing was grounds for dismissal under K.S.A. 22-3405(2). On August 28, 1984, the district court overruled defendant’s motion and remanded the case to the municipal court for “execution on the sentence originally imposed.” From this decision, the defendant appeals.
Defendant first raises the issue of whether or not the district court had discretion to dismiss his appeal because of his failure to appear at the scheduled trial to the court. The trial court determined that K.S.A. 1984 Supp. 22-3609(4) requires a Demand for Jury Trial he filed with the court no later than 48 hours prior to trial, and that, as a result, defendant was late in filing his demand and the August 2 hearing was for trial and not merely to reschedule a time for jury trial. Accordingly, the court ruled, the defendant or his counsel was required to be present under K.S.A. 22-3405(2). Regardless of the construction of a statute made by a trial court, on appeal the statute may be construed and its legal effect determined by the appellate court.
K.S.A. 22-3405(2) provides as follows:
“(2) The defendant must be present, either personally or by counsel at every stage of the trial of a misdemeanor case.”
This statute is concerned specifically with the presence of defendant at the trial of misdemeanor cases. Its language and meaning is clear: defendant or counsel must appear at every stage of the trial. We must determine whether this statute mandates the presence of defendant or counsel and without their appearance the case against defendant may be dismissed or, whether, without the appearance of defendant or counsel, no further proceedings therein may occur.
City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849 (1954), involved facts closely parallel to those of the instant case. In Catino, a defendant appealed his convictions from the police court of the City of Wichita to the district court. At the scheduled appeal date the defendant made no appearance either in person or by attorney and the city appeared and announced it was ready for trial. The district court dismissed the appeal for lack of prosecution on its own motion. On appeal, our Supreme Court ruled that a district court’s dismissal of a case for failure of a defendant to prosecute his appeal is a matter within the trial court’s discretion. The absence of defendant or counsel did not prohibit any further proceedings regarding the appeal. Although Catino was decided upon the court’s inherent power to dismiss an appeal and predated the current statute, K.S.A. 22-3405(2), adopted in 1970, we note that our Supreme Court has not deviated from this position. See Coutts v. Crider, 219 Kan. 692, 698, 549 P.2d 1019 (1976). Therefore, as the right to appeal is not a constitutional right but is entirely statutory, see City of Overland Park v. Barron, 234 Kan. 522, 672 P.2d 1100 (1983); City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56 (1972), and because in the present case, neither defendant nor defense counsel appeared at the appointed time, we find no abuse of discretion by the trial court.
Defendant claims, however, that defense counsel’s filing of a request for jury trial and counsel’s phone calls to the city prosecutor and the court administrator’s office to advise them of such made the trial on August 2, 1984, unnecessary, and so negated any need for compliance with K.S.A. 22-3405(2).
Although defense counsel phoned the city prosecutor on July 30, 1984, only a message that counsel had called was left in her office. Defense counsel made no other attempts to reach the prosecutor, nor did he leave a sufficient message regarding the purpose of his call. Regarding a phone call to the court advising it of defendant’s intention to have a jury trial, the district court judge himself never received a phone call. Although a check of the matter after the fact revealed a phone call was made, the record reveals it was not made until July 31, 1984, and then was made to the court administrator’s office and not the judge’s office. Thus, on August 2, 1984, neither the city prosecutor nor the district court judge knew of any reason why defendant and his counsel were absent. No request for a continuance was ever made by defendant. And although both judge and prosecutor were eventually apprised of defendant’s filing of a Demand for Jury Trial, at that time both thought the request was filed too late since neither had been told counsel believed he had mailed the request within the statutory time limit and thus was operating under the belief his request was timely.
Defendant’s attempt to circumvent the language of K.S.A. 22-3405(2) by claiming that, due to his Demand for Jury Trial, the August 2 appearance would have been only for the purpose of setting the matter for trial to a jury at a future date is without merit. Defendant analogizes this case to certain stages of felony cases where courts have stated a defendant’s presence is not statutorily required under K.S.A. 22-3405(1). See Deschenes v. United States, 224 F.2d 688 (10th Cir. 1955); State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980).
The cases cited by defendant, however, are all felony cases concerning a defendant’s absence when his counsel is present at in-chambers conferences. The instant case is inapposite. First, counsel has not shown that the inroads by the courts into a defendant’s required appearance at stages of felony trials have been made in misdemeanor cases. In this regard it should be noted that in K.S.A. 22-3405(1) the wording of the statute is such that it plainly states there are exceptions to the necessity of a defendant’s presence. In K.S.A. 22-3405(2), however, there is no such wording indicating the legislature intended any exceptions. Second, the cases cited by defendant all concern in-chambers conferences. The trial scheduled for August 2 was not in any way an “in-chambers” conference regarding issues of law. Third, even assuming defendant’s request for jury trial was timely filed, this still does not explain why defendant’s counsel did not appear at the appointed time. In all the cases cited by defendant, counsel was always present even though the particular defendant may have been absent. Thus, attempts by defendant to analogize the precise issue present in this case to in-chambers conferences in felony cases is inappropriate.
Thus, if the defendant’s Demand for Jury Trial was not timely filed, the August 2, 1984, trial would have clearly been a “stage of the trial” such that defendant’s presence would have been statutorily required. Even if the demand was timely, however, the case was not automatically continued to the court’s next docket call. Cases are only continued upon request by a party to an action and by the sound discretion of the court. See K.S.A. 22-3401. Moreover, had defendant’s demand been timely, a jury could have been summoned and proceedings could have begun on August 2. As K.S.A. 22-3405(2) states, defendant or counsel must appear at every stage of the trial. There are no listed exceptions, thus, defendant’s failure to appear was a proper ground for dismissal of the action.
The second issue raised by defendant is whether a Demand for Jury Trial under K.S.A. 1984 Supp. 22-3609(4) must be filed with the court not later than 48 hours prior to the trial, or whether it is sufficient that the demand is mailed earlier than 48 hours before trial even though it is not received by and filed with the court until some time within the 48-hour period.
K.S.A. 1984 Supp. 22-3609(4) provides as follows:
“Hearing on the appeal shall be to the court unless a jury trial is requested in wiiting by the defendant not later than 48 hours prior to the trial. A jury in an appeal from a municipal court judgment shall consist of six members.”
This is an issue previously unaddressed by our courts. The trial court interpreted the statute and determined that K.S.A. 1984 Supp. 22-3609(4) requires a request for jury trial be filed with the court not later than 48 hours before scheduled trial. Regarding the sending of the request by mail, the court stated, “I believe that you are required to give that notice . . . three days more than 48 hours.”
Once again, this court is not bound by a trial court’s interpretation of a statute and may interpret it as this court desires. When interpreting a statute, a fundamental rule is that the purpose and intent of the legislature governs. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984). In determining legislative intent, courts are not limited to mere consideration of statutory language but may look to the purpose to be accomplished by the statute and may consider the effect the statute may have under various constructions suggested. State ex rel. Ludwick v. Board of Johnson County Comm’rs, 233 Kan. 79, 661 P.2d 377 (1983); Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 648 P.2d 1143 (1982).
Applying these rules to the statute at hand, the only plausible interpretation of K.S.A. 1984 Supp. 22-3609(4) would be that it requires a request for jury trial be filed with the court not later than 48 hours prior to trial. K.S.A. 1984 Supp. 22-3609 is only applicable in city court appeals. The purpose of the statute is to preserve the right to a jury trial while providing adequate notice to the court of the intent to exercise this right so that potential jurors can be requested. Obviously if a jury trial is to be conducted, some notice must be given the court so that its docket can be set. The adoption of this statute was an attempt to streamline scheduling and avoid wasted time. In addition, the rule allows both sides to come to the scheduled hearing prepared and avoids any surprises that might arise in the absence of the rule. If a, party were allowed, as defendant urges herein, to simply place a request for jury trial in the mail one or two hours before the 48-hour deadline arrives, this would defeat the purpose of the rule as it would not allow the court time to reschedule, summon a jury, or notify all parties of the request in a manner which would allow them any interval of preparation. In addition, merely being allowed to state to the court that a request had been placed in the mail would make it difficult for a party to show that such a request was made 48 hours prior to trial. The possibility for abuse of the rule becomes readily apparent.
In sum, the court specifically asked defendant’s counsel at the July 25, 1984, hearing whether he intended to request a jury or not. Counsel replied that he wanted the trial to be to the court and added that if his client wanted a jury, counsel would file a request. Counsel was thus apprised of the court’s concern over scheduling. This case illustrates very clearly the need for notice to the court if a jury jrial is requested. As in the instant case, if a request for a jury trial were allowed to be “in the mail” 48 hours prior to trial yet was not required to be filed with the court prior to that time, the purpose of the statute in giving notice to the court is rendered of little or no value.
We therefore hold that to satisfy K.S.A. 1984 Supp. 22-3609(4), a demand for jury trial, either oral or written, must be made of record to the court not later than 48 hours prior to trial. Our holding herein is not to be interpreted as requiring a separate document styled “Demand for Jury Trial” be filed with the court. Rather it is sufficient that no later than 48 hours before trial some document be on file which contains a written request directed to the court’s attention, or that a timely oral request be made and shown of record.
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Abbott, J.;
The First National Bank of Kingman, Kansas, (Bank) appeals from a judgment entered against it and in favor of Dick Hatfield Chevrolet, Inc., (Hatfield) in the amount of $8,005.90 plus interest and costs. The Bank contends it had perfected a security interest in a pickup truck which had been sold by Hatfield to the Bank’s customer, Bob Watson Motors, Inc. (Watson Motors). The check given for the purchase price ($8,005.90) was dishonored by the Bank when it was presented for payment.
Two issues are presented on appeal. The trial court followed Trapani v. Universal Credit Co., 151 Kan. 715, 100 P.2d 735 (1940), wherein it was held that transposed digits in the motor number did not impart constructive notice, and held in the instant case that a typographical error by which an extra digit was added to a 17-character identification number rendered an otherwise valid security agreement invalid. Thus, the first issue is whether or not Trapani is applicable to this case in light of the enactment of the Kansas Uniform Commercial Code by the legislature in 1965.
The second issue is not viable unless the Bank was a secured party. If it was, then we reach the question whether, as such, the Bank had priority over an unpaid cash seller (Hatfield) to the unit the Bank held as security.
Some background is helpful in understanding the legal issues. For reasons not germane to this appeal, the Bank was required by federal authorities to monitor problem loans. Watson Motors’ transactions with the Bank were subject to those requirements. For that reason, and because it deemed itself insecure, the Bank had been monitoring Watson Motors’ account on a daily basis for several months.
The Bank had floor planned Watson Motors’ inventory and held a security interest on two pickups which were a part of the inventory. On August 13, 1981, a “dealer trade” was consummated between Hatfield and Watson Motors. A dealer trade is actually the sale of a vehicle by each dealer to the other with a check being exchanged for the full purchase price of each vehicle. The pickup sold by Watson Motors to Hatfield was one of the two pickups on which the Bank held a specific security agreement. The Bank knew the details of the trade in advance, approved the trade and released its security interest in the pickup transferred to Hatfield. The pickup purchased from Hatfield was substituted on the security agreement, at which time a digit (8) was inadvertently added to the identification number so that it became 1GCDC14H2BJ1583863.
At that moment, Hatfield had a 1981 pickup and Watson Motors’ check for $8,005.90; Watson Motors had a 1981 pickup and Hatfield’s check for $7,849.55. A dealer trade is not unusual. It is a common occurrence in the automobile business, and at that point each party was in basically the same position it was in before the trade. What followed is not what usually follows a dealer trade.
Watson Motors deposited the check it received from Hatfield, and the Bank used the proceeds to pay off a note Watson Motors owed the Bank. The following day, the check Watson Motors had given to Hatfield for $8,005.90 arrived at the Bank for payment, but by then there were insufficient funds in Watson Motors’ account to pay it and it was returned to Hatfield. Three or 4 days later, Watson Motors ceased doing business and turned its business assets over to the Bank. Hatfield sued Watson Motors and the Bank to recover actual and punitive damages. The day after suit was filed and service made on the Bank, the Bank sold the pickup Watson Motors had received from Hatfield and applied the proceeds in the amount of $8,185.27 to Watson Motors’ indebtedness to it.
The trial court held that the Bank did not acquire a valid security interest in the pickup Watson Motors received from Hatfield because of the error made in recording the identification number, that the Bank was not a good-faith purchaser for value, and that defendants were liable for the amount of the insufficient fund check ($8,005.90) plus interest and costs. This appeal followed.
Counsel for Hatfield recognizes that the trial court is to be affirmed if Trapani v. Universal Credit Co., 151 Kan. 715, applies. Absent certain exceptions, this court is duty-bound to follow Kansas Supreme Court decisions. One exception is when we are convinced for various reasons that the Supreme Court itself would not follow existing case law if it were faced with the set of facts before us. One reason is if the legislature has changed or has adopted statutory law that necessitates a different result. Kansas has adopted a Uniform Commercial Code since Trapani that substantially changed existing statutory and case law.
Under the Uniform Commercial Code, one of the requirements for a security interest to attach with respect to collateral is that the debtor sign a security agreement that contains a description of the collateral. K.S.A. 84-9-203(l)(a). The standard applied in determining the sufficiency of the description is addressed in the UCC at K.S.A. 84-9-110, which provides in pertinent part:
“For purposes of this article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.” (Emphasis added.)
The Official UCC Comment to 84-9-110 indicates that the purpose for easing the description requirement is that: “Under this rule courts should refuse to follow the holdings, often found in the older chattel mortgage cases, that descriptions are insufficient unless they are of the most exact and detailed nature, the so-called ‘serial number’ test.” Similarly, the Kansas Comment 1983 notes that pre-UCC Kansas case law was changed by 84-9-110 and specifically gives Trapani v. Universal Credit Co., 151 Kan. 715, as an example. Based upon these Comments, we conclude that the trial court’s reliance on Trapani was unwarranted.
This result is supported by decisions from other jurisdictions. In the following cited cases, the various courts held that the vehicle identification numbers were unnecessary for a sufficient description, that a misdescription by an error in the number did not render the security interest invalid, or that such errors were not “seriously misleading.” Associates Capital Corp. v. Bank of Huntsville, 49 Ala. App. 523, 274 So.2d 80 (1973); Thomas Ford & c., Inc. v. North Ga. & c. Assn., 153 Ga. App. 820, 266 S.E.2d 571 (1980); Still Associates, Inc. v. Murphy, 358 Mass. 760, 267 N.E.2d 217 (1971); City Bank and Trust Co. v. Warthen Serv. Co., 91 Nev. 293, 535 P.2d 162 (1975); WyHy Federal Credit Union v. Burchett, 643 P.2d 471 (Wyo. 1982).
In addition, the test for determining adequacy of description also applies to the collateral description required in financing statements under K.S.A. 84-9-402. The 1978 amendments to 84-9-402 permit generic descriptions of collateral consistent with the types or classifications of collateral defined in 84-9-109. This also complies with the test of 84-9-110. Donald v. Madison Industries, Inc., 483 F.2d 837 (10th Cir. 1973); In re Grey, 29 Bankr. 286 (Bankr. D. Kan. 1983). Moreover, K.S.A. 84-9-402(8) excuses minor errors in the financing statement requisites so long as such errors are not seriously misleading to a third party searching the files. The legislature intended to be liberal in its requirements concerning the adequacy of collateral descriptions. Most recently, our Supreme Court has even gone so far as to hold that a collateral description was sufficient despite a misclassification of the collateral from the categories listed in K.S.A. 84-9-109. John Deere Co. v. Butler County Implement, Inc., 232 Kan. 273, 655 P.2d 124 (1982). In that case, it was not fatal to the bank claiming a security interest in the collateral that the farm equipment held by an implement dealer for selling at retail was described as “equipment” rather than “inventory.”
Although not necessary to our decision here, it does appear from the record that a security agreement was executed September 4, 1980, and that a corresponding financing statement was filed with the Kansas Secretary of State on September 8, 1980. These describe the collateral as inventory, including substitutions and after-acquired vehicles. Moreover, the security agreement reaches future advances. It would seem the dealer trade which took place and the subject vehicles of the trade would be covered under the earlier financing statement. Thus, it appears the later security agreement containing the error in the vehicle number is encompassed by the original financing statement. Allis-Chalmers Cred. Corp. v. Cheney Investment, Inc., 227 Kan. 4, 605 P.2d 525 (1980).
We base our decision on the Bank’s having satisfied the collateral description requirement. The trial court thus erred in finding that the additional digit of the vehicle identification number was fatal to the Bank’s claimed security interest.
Hatfield argues on appeal that Watson Motors had no rights in the vehicle received by Hatfield that could be subjected to a security interest, because the check drawn by Watson Motors to purchase the vehicle was dishonored. Hatfield relies on K.S.A. 84-2-511(3), which makes payment by check conditional and defeats payment if the check is dishonored. Under Hatfield’s theory, Watson Motors’ rights in the vehicle were terminated upon dishonor of its check, and therefore the Bank’s security interest could not attach.
The Comments to 84-2-511(3) demonstrate the limiting effect of this section. The conditional payment under 84-2-511(3) affects the rights of the parties to the sales transaction — that is, the rights of Hatfield, the seller, and Watson Motors, the buyer. It has no effect on the rights of third parties taking from the defaulting buyer.
A defaulting buyer, such as Watson Motors, has the power to transfer greater title than it can claim under the Code, although such a transfer is admittedly wrongful as against the seller. K.S.A. 84-2-403(l)(b) provides:
“A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though . . . the delivery was in exchange for a check which is later dishonored.’
Pursuant to this code provision, the defaulting buyer or debtor (Watson Motors) has voidable title or at least sufficient rights in the collateral for the Bank’s security interest in after-acquired inventory to attach. Iola State Bank v. Bolan, 235 Kan. 175, 180, 679 P.2d 720 (1984); Matter of Samuels & Co., Inc., 526 F.2d 1238 (5th Cir.), cert. denied 429 U.S. 834 (1976); Martin Buick v. Color. Spgs. Bk., 184 Colo. 166, 519 P.2d 354 (1974); Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299 (Iowa 1975). Thus, the debtor, Watson Motors, had rights in the collateral and the Bank’s security interest could attach, despite the dishonor of Watson Motors’ check.
As Watson Motors’ inventory financier, the Bank gave value each time it advanced funds to enable the purchase of vehicles. A $15,131.75 advance was used to purchase two pickups, including one of the pickups involved in the dealer trade. Contrary to Hatfield’s position, the law does not require that the loan proceeds be used by Watson Motors when it made payment by check for the Hatfield pickup.
In addition, the definition of “value” under the code encompasses preexisting indebtedness. K.S.A. 84-1-201(44). Therefore, so long as Watson Motors had an existing indebtedness to the Bank, value has been given. Holiday Rambler Corp. v. First Nat. Bank and Trust, 723 F.2d 1449 (10th Cir. 1983); Matter of Samuels & Co., Inc., 526 F.2d 1238.
In summary, all three events necessary for the Bank’s security interest to attach have been satisfied. The trial court erred in holding otherwise.
As discussed previously, the Bank’s security interest could attach under this section despite the dishonor of Watson Motors’ check. However, K.S.A. 84-2-403 only protects the good-faith purchaser for value. Thus, the ultimate question is whether the Bank acted in good faith in acquiring its security interest in the subject pickup.
Based upon the broad code definitions of purchaser and purchase, a party who takes by gift, voluntary mortgage, pledge or lien qualifies as a purchaser. K.S.A. 84-1-201(32), (33); Matter of Samuels & Co., Inc., 526 F.2d at 1242; Iola State Bank v. Bolan, 235 Kan. at 182; Martin Buick v. Colo. Spgs. Bk., 184 Colo. 166.
Hatfield contends the following conduct, by the Bank is not indicative of good faith and therefore the Bank does not qualify as a good-faith purchaser under K.S.A. 84-2-403. The Bank authorized the dealer trade between Watson Motors and Hatfield, knowing the parties would be exchanging checks. The Bank made the determination the check would be dishonored. The Bank did not notify Watson Motors of the overdraft. Finally, the Bank monitored Watson Motors’ account very closely and was aware of Watson’s financial difficulties.
The trial court concluded the Bank was not a good-faith purchaser. The court particularly mentioned the Bank’s act of selling the collateral one day after Hatfield filed suit against the Bank and Watson Motors for return of the collateral or the amount of the check that had been dishonored.
Under the code, good faith means “honesty in fact in the conduct or transaction concerned.” K.S.A. 84-1-201(19). This court has interpreted this to require no actual knowledge or participation in any material infirmity in the transaction. Cairo Cooperative Exchange v. First Nat’l Bank of Cunningham, 4 Kan. App. 2d 458, 464, 608 P.2d 1370, aff'd in part and rev’d in part 228 Kan. 613, 620 P.2d 805 (1980).
Under this court’s standard of review, its function is to determine whether the trial court’s findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Iola State Bank v. Bolan, 235 Kan. at 187.
The Bank’s awareness of Watson Motors’ financial difficulties and the daily monitoring of its account balance, standing alone, are not sufficient actions to constitute bad faith. Hatfield alleges that the Bank knew of Watson Motors’ insolvency at the time it approved the dealer trade. The record does not support this contention. Rather, the Bank knew Watson Motors was struggling financially. Moreover, the Bank did not regularly participate in dealer trades. The Bank’s authorization, however, was needed by Watson Motors because the Bank had to release its security interest in the traded vehicle and release the vehicle title to the acquiring dealer. In short, the Bank’s activity does not rise to the level of participation in Watson Motors’ business to have sufficient knowledge to constitute bad faith such as was found in Monsanto Co. v. Walter E. Heller & Co., 114 Ill. App. 3d 1078, 449 N.E.2d 993 (1983).
Likewise, the Bank’s conduct in dishonoring Watson Motors’ check and having knowledge that Hatfield was unpaid when it sold the collateral does not constitute bad faith. The Bank was not obligated to cover Watson Motors’ overdrafts, even though this practice may have occurred in the past. The law does not require the Bank to extend more credit to Watson Motors to save Hatfield a loss. Matter of Samuels & Co., Inc., 526 F.2d 1238; Berga v. Amit Intern. Trade, Ltd., 511 F. Supp. 432 (E.D. Pa. 1981). The decision to dishonor Watson’s check was entirely reasonable and the record does not support a conclusion of bad faith by the Bank in its determination of which checks to pay. The Bank did not guarantee Hatfield that Watson Motors’ check would be paid. Burk v. Emmick, 637 F.2d 1172 (8th Cir. 1980).
Plaintiffs exhibit No. 7 establishes that from July 31, 1981, until the day Watson Motors’ check was returned, there were only two days that Watson Motors had insufficient funds in its bank account to pay a check in the amount of $8,005.90.
The Bank’s disposal of the Hatfield pickup after Hatfield filed suit, which was particularly cited by the trial judge, is not bad-faith conduct. Knowledge by a secured party that a seller has not been paid for products purchased by its debtor does not mean that the secured party lacks good faith. Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208 (5th Cir. 1983). Lack of knowledge of third-party claims is not required to achieve a good-faith purchaser status. In addition, as pointed out by the Bank, the subsequent sale of the inventory by the Bank is wholly irrelevant to the Ba.nk’s ability to acquire good-faith purchaser status. Good faith is pertinent to acquiring purchaser status. Here the pickup was sold for more than the amount of the insufficient fund check. If the Bank had retained possession of the pickup it would not be worth that much today. Its disposal of the pickup was reasonable.
Thus, the Bank qualified as a good-faith purchaser and was entitled to the protection of 84-2-403. The Bank, as an inventory financier, has a perfected security interest in the Hatfield pickup.
In the trial court, the Bank and Watson Motors were found jointly and .severally liable to Hatfield for the amount of the dishonored check ($8,005.90) drawn by Watson Motors. Judgment against the Bank is contrary to the legal authority regarding priority.
A party in the Bank’s position, an inventory financier or floating lienor, occupies a favorable and privileged position in determining priority to collateral. B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code, § 10.6 (1980). The Bank’s priority extends over unpaid cash sellers such as Hatfield. The leading case recognizing an inventory financier’s priority to collateral is Matter of Samuels & Co. Inc., 526 F.2d 1238. The Samuels decision is consistent with many jurisdictions presented with the same issue. Holiday Rambler Corp. v. First Nat. Bank and Trust, 723 F.2d 1449; United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974); General Elec. Credit Corp. v. Tidwell Industries, 115 Ariz. 362, 565 P.2d 868 (1977); Martin Buick v. Colo. Spgs. Bk., 184 Colo. 166; Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299.
Kansas is in accord in subordinating the unpaid cash seller’s rights in the collateral to those of a bank that is financing the defaulting buyer and is a secured creditor. Iola State Bank v. Bolan, 235 Kan. 175. We conclude that the priority rules enunciated in Bolán control the instant case and that the trial court erred in entering judgment against the Bank.
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Meyer, J.:
This is an action by appellee Leonard Drach (Drach) to quiet title to the “NW 1/4 ofSection 13, Township 22, Range 13, in Stafford County, Kansas” (hereinafter NW 1/4-13). Defendants Alice Hartnett, Gerald Hartnett, and Nadine Berube (appellants) claim an interest in and to the oil, gas and minerals under this tract. Drach’s Motion for Summary Judgment was granted, hence this appeal.
Martha Siefkes (Siefkes), who had inherited the NW 1/4-13 from her father, Fritz Mettscher, conveyed it to Drach by warranty deed. This deed, however, contained the following language below the legal description of the property:
“This being subject to Mineral Royalty deeds now of record and subject also to the terms of the Last Will and Testament of Fritz Mettscher, deceased.
“. . . subject only to Mineral Royalty deeds of record and Will stipulations as stated above
At issue herein is what interest in NW 1/4-13 was conveyed by Siefkes to Drach; specifically, whether or not Drach obtained the mineral interests by this conveyance.
Fritz Mettscher died September 20, 1938. His last will and testament was probated, and the order of final settlement was entered on November 13, 1939. Although the Kansas probate code of 1939 applies to this estate, and therefore the order of final settlement controls the flow of title from decedent (K.S.A. 59-2602; and Bindley v. Mitchell, 170 Kan. 653, 657, 228 P.2d 689 [1951]), that order merely decrees that decedent’s real property will pass to those persons and in such proportions as designated in paragraph 3 of the will. Paragraph 3, in turn, decrees that the devises therein are “subject to the reservation made in paragraph two.” We thus must interpret decedent’s will to determine what interest in the property Siefkes took and in what manner she took it. Thereafter we will consider what interest was conveyed by her deed to Drach.
Paragraph 2 of the Mettscher will provides as follows:
“I give, devise and bequeath die oil, gas and other minerals in and under and that may be produced from the hereinafter described farm lands which I now own, to my six children, in the proportions as hereinafter set forth, to-wit:
To my son, F. H. Mettscher, a one-sixth interest;
To my daughter, Marie Strobel, a one-sixth interest;
To my son, Henry Mettscher, a one-sixth interest;
To my daughter, Wilhelmina Kues, a one-sixth interest;
To my daughter, Martha Siefkes, a one-sixth interest;
To my daughter, Ida Cadman, a one-sixth interest;
“It is my will and intention that the mineral rights herein devised shall be and include only the oil, gas or other minerals which may be produced from said premises, and shall not, in any manner, be interpreted or construed as including any of the oil, gas or mineral lease rentals, delay rentals or bonuses which may be payable under any leases upon said real estate; it being my will and desire that all of the rentals, delay rentals and bonuses payable under any leases upon said real estate shall be payable to the person to whom the specific real estate upon which such rentals are paid is hereinafter given and devised.” (Emphasis added.)
Paragraph 3 of the will states in pertinent part;
“3. ... I give, devise and bequeath, subject to the reservation made in paragraph two of this my Last Will and Testament, my farm lands to my children, as here immediately set forth, to-wit:
“To my daughter, Martha Siefkes, I give the NW 1/4 of Section 13, Township 22, Range 13, in Stafford County, Kansas, and if my- said daughter pre-decease me, then I give the said quarter section of land to her children;”
As paragraph 3 of .the will is subject to paragraph 2, it is paragraph 2 which controls whether royalty or mineral interest was obtained by Siefkes under the will.
The trial court determined that Siefkes, in the italicized part of paragraph 2 of the will, obtained only a royalty interest and that this interest violated the rule against perpetuities. The trial court further determined that the subsequent conveyance to Drach gave him a fee simple title to the NW 1/4-13, including the mineral interest in, on, and under the same. We agree.
We italicized part of paragraph 2 of decedent’s will in order to clearly set it apart from the final part of that paragraph. The first part, we conclude, refers to a royalty interest, while that part of the paragraph which follows the italicized part refers to a mineral interest. We will expound on the reasons for this conclusion.
Language associated with the granting of a mineral interest includes reference to oil, gas and other minerals “in and under” the land, to the rights of ingress and egress over the land, to enter the surface land to operate or develop, to lease production rights, and to participate in bonuses and delay rentals. See Cosgrove v. Young, 230 Kan. 705, 712-13, 642 P.2d 75 (1982), and numerous cases detailed therein. See also Palmer v. Brandenburg, 8 Kan. App. 2d 154, 159, 651 P.2d 961 (1982), rev. denied 233 Kan. 1092 (1983).
The true distinction between a royalty and a mineral interest is that the owner of a royalty interest owns only those minerals which are brought to the surface of the land, that is, “what is produced,” while the mineral interest owner possesses the minerals in place. This is why the mineral interest owner has the right of ingress and egress; that is, the right to explore for minerals, and, when found, to develop and remove them. The mineral interest owner also has the leasing power by the use of which he can negotiate for a bonus, and he can grant delays in drilling requirements in exchange for the receipt of delay rentals. All three of these indicia — ingress and egress, delay rentals, and bonuses — are thus clearly compatible with mineral interest ownership, but have nothing to do with the ownership of royalty. In the final analysis, once oil and gas reach the surface, they become subject to royalty ownership. On the other hand, just as clearly, the owner of the mineral interest in and to the oil and gas owns the same wherever located. The owner of the mineral interest also may own the royalty interest, and in fact does own it unless it has been sold to someone else, and can receive title thereto by use of the term “mineral interest.” The converse is not true; that is, the owner of a royalty interest — expressed only as such without qualifying expletives — does not by use of that term acquire any interest whatever in and to minerals “in place.”
The foregoing distinction between royalty and mineral interests requires that each case be determined on a case by case method. As was said in Cosgrove, 230 Kan. at 706:
“In determining the type of interest conveyed, we are not governed by the title affixed to the conveying document, but will look instead to the language of the contract contained in its four corners and from there find the intention of the parties. [Citation omitted.]”
The devise in the instant case makes reference to mineral rights “in and under” the land, but otherwise is devoid of references to other of the above-mentioned language generally associated with the transfer of a mineral interest. The testator, in fact, by expressly naming them, states that the indicia of mineral interests does not go with the interest he thereby grants.
It seems clear to us that the testator intended that Siefkes and her five siblings should each receive an undivided l/6th royalty interest only in all of the real property of which he died seized. It is equally clear he intended that the mineral interest under each tract would go to the respective devisee thereof. One must ask what possible reason he would otherwise have had to use the starkly different language in the italicized part of the last paragraph of paragraph 2 of his will, than he used in the remainder of that paragraph.
While the phrase “in and under” is indicative of a mineral interest, the phrase “may be produced from” is more compatible with a royalty interest. Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 575, 331 P.2d 577 (1958); Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 91-92, 69 P.2d4 (1937). When both such terms are used in the same grant, however, resort must be had to other language in the grant to determine what was, in fact, transferred.
The Kansas Supreme Court has, on numerous occasions, reiterated the distinction between minerals in place and a royalty interest. For instance, in Lathrop v. Eyestone, 170 Kan. 419, Syl. ¶¶ 1 and 2, 227 P.2d 136 (1951), it was held:
“A mineral deed is one which makes a severance, from the fee, of a present title to minerals in place. It is actually a realty conveyance.”
“ ‘Royalty’ in its ordinary meaning is that part of oil and gas payable to the lessor by the lessee out of oil and gas actually produced and saved. It is the compensation to the lessor provided in the lease for the lessee’s privilege of drilling and producing oil or gas and does not include a perpetual interest in and to oil and gas in place. It is not uncommon to find ‘royalty’ shortly defined as ‘a share’ in production ‘paid.’ ”
In the instant case, the testator stated that what he was granting (in the italicized part of paragraph 2) would “include only the oil, gas or other minerals which may be produced from said premises.” By such language he clearly limits the interest transferred to a royalty. Moreover, the testator then, specifically, states that lease rentals, delay rentals, and bonuses — those things normally associated with mineral interests — were not transferred. By specific omission of these mineral interest indicia, he most certainly intended, up to that point in his will, to grant a royalty interest only. Furthermore, the testator thereupon (in the last — the unitalicized — part of paragraph 2) grants to each of his children what we conclude he intended was a mineral interest in and to each of the various tracts. This is particularly apparent when read in conjunction with his devise of the specific tracts of land in paragraph 3 of his will. Clearly he intended that each of his children receive a royalty interest in and to all of the land of which he died seized, but wanted each to own the mineral interest in and to the land he specifically deviséd to each. Any other interpretation defies reason.
In sum, the testator (in the italicized part of the last paragraph of paragraph 2 of his will) made no provision for ingress or egress; removed any claim the devisees may have had to delay rentals, lease rentals, and bonuses; and stated the devisees were to receive only the minerals “produced from” the premises. The result is that all elements normally serving as indicia of mineral interests are gone, with the exception of the phrase “in and under” used in the first paragraph of paragraph 2 of the will. Thus, in the concluding part of paragraph 2, together with paragraph 3, he devised the fee simple title to Siefkes. So far as the attempted grant of a royalty interest to Siefkes is concerned, it is for all practical purposes, mere surplusage.
Thus, when Siefkes conveyed the NW 1/4-13 to Drach by warranty deed, she conveyed to him all her rights to the property except what she deemed she had been separately given under her father’s will, namely a royalty interest. But what royalty interest did Siefkes have? We submit that she had no such separate interest (apart from her full fee simple ownership), since the italicized part of paragraph 2 of decedent’s will violates the rule against perpetuities. This violation of the rule occurs because it cannot be said that the royalty interest will vest within a life or lives in being plus 21 years. As was explained in Cosgrove, 230 Kan. at 714-15:
“One of the essential elements of the rule against perpetuities is that at the time the future interest is created, it must appear that the condition precedent to vesting must necessarily happen, if it happens at all, within the period prescribed by the rule. ... A possibility, or even a probability, that the interest or estate may vest within that time is not enough, for, it is said, the question of probabilities does not enter into the equation. If by any conceivable combination of circumstances it is possible that the event upon which the estate or interest is limited may not occur within the period of the rule, or if there is left any room for uncertainty or doubt on the point, the limitation is void.” ’
“. . . Naturally, if no future oil and gas leases are made and executed, there would never be a vesting of title to any royalty interest. If it is not certain the vesting will occur within the time stated in the rule, then the rule has been violated and the conveyance is void.”
And even though we do not deal With an oil and gas lease per se in the instant case, the strength with which the rule is applied is demonstrated by the language of the Cosgrove court which immediately follows the above quote from that court:
“Even if an oil and gas lease were required to be executed within the time prescribed by law, there would still be no vesting of title until royalty becomes due and payable to the grantor or his successor. The execution and delivery of an oil and gas lease does not insure that there will ever be any production attributable to the lease.” Cosgrove, 230 Kan. at 715.
If Siefkes did not possess any separate royalty interest, there was nothing to be excepted from the granting clause of the deed.
Moreover, although the deed to Drach uses the words “subject to Mineral Royalty deeds now of record,” this does not reserve anything to Siefkes or her heirs since it has not been alleged there are any such deeds of record.
In the final analysis, however, it matters not what Siefkes intended to convey to Drach; what she did was to convey fee simple title to him. This is so because of the foregoing analysis coupled with the fact that the warranty deed to Drach, though less than artfully drawn, is not ambiguous.
It follows, therefore, that Siefkes reserved nothing in her deed to Drach, and that the trial court was correct in its judgment that Drach took fee simple title to the NW 1/4-13 by his deed from Siefkes, and in quieting title thereto in Drach.
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Briscoe, J.:
United Cooperatives, the plaintiff, appeals a judgment which held its claim to defendant Libel Oil’s accounts receivable to be subordinate to the security interest of Valley State Bank, the intervenor.
Libel Oil borrowed $115,000 from Valley State Bank in June, 1980. The parties signed a security agreement giving the Bank a security interest in “All Accounts Receivable now owned or hereafter acquired.”
The Bank filed a financing statement with the Atchison County Register of Deeds on June 18, 1980. The financing statement described the collateral as “Accounts receivable (as per attached).” Attached to the financing statement was a list of Libel Oil’s accounts receivable as of May 30, 1980, which included the name of each account followed by an amount. The loan and security agreement were renewed on July 30, 1982.
Meanwhile, United Cooperatives had sued Libel Oil to collect a $115,909.91 debt. The trial court entered judgment for the plaintiff on August 30, 1982. When the Co-op sought garnishment of Libel’s accounts owed by the debtors named in the financing statement attachment, the Bank intervened, claiming a prior perfected security interest in the accounts.
The trial court found that the Bank’s security interest covered both present and future accounts receivable and held the Co-op’s claim subordinate to the Bank’s security interest.
The issue raised by the Co-op is whether the collateral description in the financing statement was sufficient to perfect a security interest in Libel Oil’s after-acquired accounts receivable.
K.S.A. 84-9-402(1) requires that a financing statement:
“shall contain a statement indicating the types, or describing the items, of collateral. A statement of collateral in a financing statement is adequate if it generally identifies goods by one or more of the classifications listed in K.S.A. 84-9-109, or generally identifies other collateral by one or more of the following classifications: fixtures, documents, instruments, general intangibles, chattel paper or accounts. A statement of collateral in a financing statement shall not be deemed inadequate solely because it is broader than, or otherwise differs from, that found in the security agreement.”
K.S.A. 84-9-402 should be read together with K.S.A. 84-9-110, which provides that “any description of personal property ... is sufficient whether or not it is specific if it reasonably identifies what is described.” The 1983 Kansas Comment to K.S.A. 84-9-110 states: “[T]he test of sufficiency is whether it makes possible the identification of the thing described for the benefit of third parties searching the files. . . . Even though the filing lacks details, if it gives clues sufficient that third persons by reasonable care and diligence may ascertain the property covered, the courts should uphold the description.” (Emphasis added.)
In Allis-Chalmers Cred. Corp. v. Cheney Investment, Inc., 227 Kan. 4, 8, 605 P.2d 525 (1980), the court explained the purpose of a financing statement:
“The notice itself indicates merely that the secured party may have a security interest in the collateral described. The burden is placed upon other persons to make further inquiry from the parties concerned in order to obtain a disclosure of the complete state of affairs. The code philosophy is that a simple, filed notice that the secured party and debtor may be financing with respect to collateral described in the financing statement should be a ‘red flag’ warning to third parties not to proceed with any financing on the same collateral of the debtor until investigation is made to see that the road ahead has been cleared.”
See Official UCC Comment to K.S.A. 84-9-402.
United Co-op contends that the collateral description in the financing statement was not sufficient to cover accounts receivable generated after May 30, 1980.
As the accounts in dispute were all from customers on the list attached to the financing statement, and were for amounts less than were due on May 30, 1980, it is possible that the disputed accounts receivable were not after-acquired property. 'The trial court, however, took no evidence to resolve the factual question of when the accounts receivable were generated. Instead, the court decided the legal issue of whether the financing statement was sufficient to perfect the Bank’s security interest in the accounts, assuming that they were after-acquired property.
The Co-op argues that because the financing statement did not mention after-acquired accounts, and listed specific accounts due on a specific date, it could not give third parties notice that after-acquired accounts were subject to a security interest.
The parties agree that the security agreement signed by Libel Oil and the Bank included after-acquired accounts receivable. After-acquired property is not only proper collateral to secure an obligation (K.S.A. 84-9-204), but also its inclusion in a security agreement can be accomplished by a mere general or blanket reference, such as “after-acquired accounts receivable.” Grain Merchants of Ind. v. Union Bank & S. Co., Bellevue, Ohio, 408 F.2d 209, 212-16 (7th Cir.), cert. denied 396 U.S. 827 (1969).
The omission of an after-acquired property clause from the financing statement was not fatal here. Where it is the nature of the type of property described to change from day to day, a financing statement that accurately describes the type of property but omits any reference to after-acquired property is sufficient to give third parties notice that after-acquired property of the type described may be subject to a security interest under K.S.A. 84-9-204. Official UCC Comment to K.S.A. 84-9-402; Annot., 100 A.L.R.3d 10, § 23(c). See e.g., National Cash Register Co. v. Firestone & Co. Inc., 346 Mass. 255, 191 N.E.2d 471 (1963); James Talcott, Inc. v. Franklin National Bank, 292 Minn. 277, 194 N.W.2d 775 (1972); American Nat. B. & T. Co. v. National Cash Register Co., 473 P.2d 234, 237-39 (Okla. 1970).
Accounts receivable by their very nature change from day to day. A description of collateral which includes “accounts receivable” is a sufficient “red flag” warning to third parties to perfect a security interest in after-acquired accounts receivable. It would be unreasonable for the Co-op to conclude that the Bank would collateralize its loan with a security interest in accounts due only on a specific date. Collection of the accounts by the debtor in the normal course of business would reduce the collateral to nothing unless the creditor also had a security interest in after-acquired accounts and inventory.
In In re Platt, 257 F. Supp. 478 (E.D. Pa. 1966), the security agreement covered present and future accounts and inventory, but the financing statement described the collateral only as “inventory and accounts receivable.” The court held the financing statement sufficient to perfect the security interest in after-acquired accounts and inventory, stating:
“A detailed description of the collateral in the case of accounts and inventory would require the filing of daily statements. The addition of the word ‘future’ to ‘accounts receivable and inventory’ would not seem to help an interested party in determining the status of the debtor. It should be clear that the creditor is concerned with tying up whatever is the current inventory and accounts receivable of the debtor. No reasonable searcher of the records would conclude that the secured party had a lien on only the past accounts and inventory of the debtor, especially where the debtor is in an active retailing business.” 257 F. Supp. at 481.
See Annot., 100 A.L.R.3d 10, § 23(c); contra In re Middle Atlantic Stud Welding Co., 503 F.2d 1133 (3d Cir. 1974). The same reasoning applies here despite the attachment to the financing statement of the list of accounts receivable due on a specific date.
Had the Co-op garnished accounts receivable from unlisted customers, its argument that the accounts were not subject to the Bank’s security interest might be more compelling. See Interstate Steel Co. v. Ramm Mfg., 108 Ill. App. 3d 404, 64 Ill. Dec. 62, 438 N.E.2d 1381 (1982); Georgia-Pacific Corp. v. Lumber Products Co., 590 P.2d 661 (Okla. 1979). But see Thorp Com. Corp. v. Northgate Indus., Inc., 654 F.2d 1245 (8th Cir. 1981). But because it is in the nature of accounts receivable to turn over constantly, a third party would have reason to think that any accounts receivable from a listed creditor might be subject to a security interest.
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Green, J.:
Justin Lee Newberry appeals the denial of his petition for writs of habeas corpus and quo warranto. On appeal, New-berry argues that the trial court erred in denying his petition because the lay district magistrate judge who issued his arrest warrant is not a qualified judge. We disagree and affirm.
On May 26, 2000, the Harper County Attorney filed a criminal complaint charging Newberry with involuntary manslaughter while driving under the influence of alcohol or other drugs, driving under the influence of alcohol, and other offenses. The county attorney presented the criminal complaint to District Magistrate Judge Richard Dean Befort who issued the arrest warrant. Judge Befort is certified by the Kansas Supreme Court as qualified to hold the office of district magistrate judge in accordance with K.S.A. 20-337. Judge Befort is not a licensed attorney.
Newberry filed a written objection to Judge Befort conducting any proceedings in his criminal case, alleging that Befort was not qualified to be a judge of the district court under Article 3, § 7 of the Kansas Constitution because Befort is not a lawyer.
In addition to his objection in his criminal case, Newberry filed a petition for writs of habeas corpus and quo warranto, and for declaratory judgment. District Court Judge Larry T. Solomon granted summary judgment to Judge Befort in the civil case and overruled Newberry’s objection in his criminal case, finding that the statutory provisions granting district magistrate judges authority to handle initial proceedings in criminal cases are not prohibited by the Kansas Constitution. Specifically, Judge Solomon found that the legislature had the constitutional authority to create the office of district magistrate judge and to assign qualifications for that office. Judge Solomon ordered Newberry to appear before Judge Befort for his first appearance and authorized Judge Befort to proceed with the preliminary hearing in the criminal case.
Newberry appeals the trial court’s denial of his petition for writs of habeas corpus and quo warranto. His criminal case is pending before the district court.
It is first necessary to determine whether this court has jurisdiction. Judge Befort argues that jurisdiction is lacking because the appeal is interlocutory, the case is moot, and Newberry lacks standing. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
Judge Befort argues that Newberry’s appeal is premature as an improper interlocutory appeal from his pending criminal case. This argument fails to recognize the distinction between an attempt to appeal in a criminal action and the independent civil actions at issue here, although we are sympathetic that these actions do have the practical effect of an end run.
K.S.A. 60-2102(a)(2) vests jurisdiction in the Court of Appeals to hear appeals from “an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus.” Under the statute, this court has jurisdiction to hear Newberry’s appeal from the district court’s summary judgment in favor of Judge Befort in the habeas corpus and quo warranto action.
Judge Befort further contends that Newberry’s challenge to the arrest warrant and initial appearance is moot. Judge Befort suggests that Newberry’s objection to his arrest warrant and initial appearance will become moot after the" prehminary hearing. To support his argument, Judge Befort cites Karstetter v. Love, 9 Kan. App. 2d 194, 674 P.2d 1066 (1984). Karstetter held that when a petition for writ of habeas corpus is considered after probable cause has been shown at the prehminary hearing, the detention is no longer illegal. 9 Kan. App. 2d at 196.
Karstetter, however, is distinguishable from the instant case because the habeas corpus petition in that case alleged a lack of showing of probable cause. Here, Newberry’s habeas corpus petition alleges improper confinement due to Judge Befort’s lack of authority to issue his arrest warrant. The instant case is further distinguishable from Karstetter because Newberry also petitioned for a writ of quo warranto, alleging that Judge Befort lacked authority to issue his arrest warrant because Befort is not an attorney. As a result, a prehminary hearing will not cause to be moot the irregularities complained of by Newberry.
Judge Befort suggests in passing that Newberry lacks standing to challenge his authority to issue an arrest warrant. However, we refuse to address this issue because it has not been adequately briefed by appellee. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999) (holding that an issue which is not briefed is deemed abandoned).
As a result, this court has jurisdiction to consider the merits of Newberiy’s appeal.
Newberiy challenges Judge Befort’s authority to issue his arrest warrant on the ground that K.S.A. 20-334(b), the statute listing the qualifications of district magistrate judges, conflicts with Article 3, § 7 of the Kansas Constitution. This court’s standard of review is as follows:
“ ‘ “The constitutionality of a statute is presumed, all doubts must be resolved in favor if its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
.....In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]
“ ‘ “Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]” ’ ” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
In addition, “where the constitutionality of a state statute is involved, the question presented is not whether the act is expressly or impliedly authorized by the constitution, but whether it is expressly or impliedly prohibited by the constitution. [Citation omitted.]” Leek v. Theis, 217 Kan. 784, 803, 539 P.2d 304 (1975).
Article 3, § 1 of the Kansas Constitution provides that “[t]he judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law.” The constitution further states the qualifications of justices and judges:
“Justices of the supreme court and judges of the district courts shall be at least thirty years of age and shall be duly authorized by the supreme court of Kansas to practice law in the courts of this state and shall possess such other qualifications as may be prescribed by law.” Kan. Const, art. 3, § 7.
The Kansas Legislature created “two classes of judges of the district courts . . . : District judges and district magistrate judges.” K.S.A. 20-301a. By statute, a district judge must be “regularly admitted to practice law in the state of Kansas.” K.S.A. 20-334(a)(1). However, a district magistrate judge does not have to be an attorney. Instead, the qualifications for a district magistrate judge include:
“(1) [Graduation from] a high school or secondary school or the equivalent thereof;
“(2) [residence in] tire county for which elected or appointed to serve; and
“(3) if not regularly admitted to practice law in Kansas, [certification] by the supreme court, in the manner prescribed by K.S.A. 20-337 and amendments thereto, as qualified to serve as a district magistrate judge.” K.S.A. 20-334(b).
K.S.A. 20-337 provides for the certification of a district magistrate judge who is not regularly admitted to practice law in Kansas. Under the statute, a lay district magistrate judge must pass an examination given by the Supreme Court to ensure that he or she “possesses the minimum skills and knowledge necessary to carry out the duties of such office.”
The issue raised by Newberry on appeal is whether K.S.A. 20-334(b) conflicts with Article 3, § 7 of the Kansas Constitution because the statute allows for lay district magistrate judges despite the constitutional provision that district court judges be attorneys. Although this is an issue of first impression, similar issues have been addressed by our Supreme Court and by courts in other jurisdictions.
Sinclair v. Schroeder, 225 Kan. 3, 586 P.2d 683 (1978), determined whether a district magistrate judge holding office by virtue of the temporary certificate provided for in K.S.A. 20-337 has a vested right in such office. Sinclair held that in the event that such an incumbent fails to successfully complete the examination within the required period, forfeiture is automatic and the office becomes vacant. In so holding, the Sinclair court noted that “[f]or a proper resolution of this case it is unnecessary to determine whether the district magistrate judges are judges of the district courts’ within the meaning of Article 3, § 7, and who must therefore be admitted to practice law in this state.” Instead, the court noted “[i]t is clear that the constitution reserves to the legislature the power to prescribe qualifications for all judges of the unified judicial system and it is no usurpation of judicial power for the legislature to exercise that legislative prerogative to prescribe such qualifications.” 225 Kan. at 11.
The United States Supreme Court has addressed analogous issues. For example, Mathews v. Weber, 423 U.S. 261, 46 L. Ed. 2d 483, 96 S. Ct. 549 (1976), considered whether preliminary review, argument, and preparation of recommended decisions in Social Security benefits cases were among the “additional duties” that a magistrate could perform under the Federal Magistrates Act. The Federal Magistrates Act permits the federal district courts to assign magistrates certain described powers and duties, as well as “such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3) (1994). The Mathews Court determined that limited advisory review, subject to the district judge’s ongoing supervision and final decision, fell among the range of duties that Congress intended magistrates to perform. 423 U.S. at 271-72.
However, in Gomez v. United States, 490 U.S. 858, 104 L. Ed. 2d 923, 109 S. Ct. 2237 (1989), the Court held that presiding at the selection of a jury in a felony trial is not one of the “additional duties” that a magistrate may be assigned under the Federal Magistrates Act. The Court rationalized that it was unlikely that Congress intended to allow a magistrate to conduct jury selection as an “additional duty” not subject to the procedural guidance or judicial review applicable to pretrial matters. 490 U.S. at 875-76. See U.S. v. Paden, 558 F. Supp. 636 (D. D.C. 1983) (holding that a magistrate who had been delegated authority to initiate and conduct probation violation hearings did not have statutory or implied authority to issue a bench warrant for probationer’s arrest).
The Supreme Court considered another similar issue in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982). The Marathon Court held that the Bankruptcy Act of 1978 was unconstitutional because it conferred Article III power to non-Article III bankruptcy courts. 458 U.S. at 87. The constitutionality of the Bankruptcy Act was restored by an interim rule and later a Congressional act which eliminated the attributes of Article III judicial power of bankruptcy judges. 28 U.S.C. § 157 (1994); see 1 Steinberg, Bankruptcy Litigation §§ 1.4-1.6 (1989).
The instant case is distinguishable from the facts addressed in Marathon. Article III power is comparable to the general jurisdiction exercised by our district courts. However, unlike the Bankruptcy Act’s furnishing of Article III power to the bankruptcy courts, our statutes do not confer general jurisdiction to district magistrate judges.
We read Article 3, § 1 as creating district courts of general jurisdiction. Further, we interpret Article 3, § 7 as requiring those district court judges who exercise general jurisdiction to be au thorized to practice law. However, district magistrate judges do not have general jurisdiction. Instead, district magistrate judges have only a limited role in the operation of our judicial system. The jurisdiction of district magistrate judges is restricted and their decisions are subject to de novo review by the district courts. K.S.A. 2000 Supp. 20-302b. Because district magistrate judges merely assist and lighten the workload of district judges, the position of district magistrate judge does not rise to that of a district judge.
The legislature was authorized to create a separate class of judges of the district court because the Kansas Constitution does not expressly or impliedly prohibit such legislative action. While Article 3 is not completely silent as to the types of judges within our court system, it does not proscribe the creation of a separate,- subordinate class of judges within the district courts. Moreover, “[w]hen an office is created by an act of the legislature, that body has authority to name the terms of eligibility, and modify them at will.” Jansky v. Baldwin, 120 Kan. 332, 333, 243 Pac. 302 (1926). As a result, the legislature had the authority to create the position of district magistrate judge and to assign the qualifications for those judges, including the criterion that district magistrate judges do not necessarily have to be licensed to practice law.
It is important to note that although K.S.A. 20-301a refers to district magistrate judges as “judge[s] of the district courtfs],” this terminology does not mean that district magistrate judges are, in fact, district court judges within the meaning of Article 3, § 7 of the Kansas Constitution. Illustrative of this is a story told of Abraham Lincoln during his trial lawyer days. Lincoln is said to have cross-examined a witness as follows:
“ ‘How many legs does a horse have?’
“ ‘Four,’ said the witness.
“ ‘Right,’ said Abe.
“ ‘Now, if you call the tail a leg, how many legs does a horse have?’
“ ‘Five,’ answered the witness.
“ ‘Nope,’ said Abe, ‘callin’ a tail a leg don’t make it a leg.’ ”
Lamon v. McDonnell Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J., dissenting) (citing 55 A.B.A.J. 818 [1969]).
Lincoln’s reasoning is applicable in the instant case. Merely calling a district magistrate judge a judge of the district court, without conferring general jurisdiction upon that subordinate class of judge, does not make the district magistrate judge a judge of the district court as contemplated by Article 3, § 7.
We find that district magistrate judges are not required under Article 3, § 7 to be licensed to practice law and, as a result, K.S.A. 20-334(b) is not unconstitutional. The trial court did not err in denying Newberry’s petition for writs of habeas corpus and quo warranto because Judge Befort was authorized to issue a warrant for Newberry’s arrest.
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GREEN, J.:
Clifford D. Price appeals the summary denial of his K.S.A. 60-1507 motion for retroactive sentence conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Price claims he is eligible for conversion of his aggravated burglary sentence because he had completed his sentence for rape. We disagree and affirm.
In 1973, Price was convicted of aggravated burglary and rape. He was sentenced, under the statutes in effect at the time, to 5 to 20 years for each conviction, to be served consecutively. The Department of Corrections (DOC) aggregated his sentences to a term of 10 to 40 years. Price began serving his sentence on January 27, 1973.
Price was conditionally released from prison on January 27, 1993, after serving 20 years of his sentence. On August 4, 1994, Price was returned to prison for technical violations of his conditional release.
Under K.S.A. 21-4724, the DOC reviewed Price’s records and notified him that the severity level of his rape conviction made him ineligible for retroactive application of the sentencing guidelines for conversion of his aggravated burglary sentence.
Price moved under K.S.A. 60-1507 for conversion of his sentence, claiming he had served the maximum 20-year sentence for his rape conviction and, therefore, the rape conviction should not be counted against him in determining his eligibility for conversion of the sentence for aggravated burglary. Price’s claim was summarily denied by the trial court without appointment of counsel or a hearing.
The sole issue on appeal is whether the trial court erred in refusing to grant a hearing on Price’s 60-1507 motion based on the determination that he is ineligible for conversion under the KSGA. Our standard of review is whether the trial court abused its discretion in denying the hearing. Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977). An evidentiary hearing on a K.S.A. 60-1507 motion is not required if the motion and the files and records of the case conclusively show that the movant is not entitled to relief. K.S.A. 60-1507(b). The burden is on the movant to allege facts sufficient to warrant a hearing on the motion. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). If no substantial issues of fact are presented by the motion, the district court is not required to appoint counsel or hold a hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973).
It is undisputed that Price served 20 years of his sentence by the time the DOC considered whether he was eligible for conversion under the KSGA. However, the DOC treated Price’s convictions as aggregated and, because Price had not exhausted the aggregated time, the DOC determined he was still serving time on the rape charge. This determination made Price ineligible for conversion.
K.S.A. 21-4724 allows for limited retroactive application of the KSGA to individuals who committed crimes prior to July 1, 1993. Section (b)(2) of the statute provides in part as follows: “[Offenders on . . . conditional release . . . for crimes classified in subsection (b)(1) committed prior to July 1,1993, who have such . . . conditional release . . . revoked shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.” The offenses eligible for conversion are those “classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the non-drug grid or in grid blocks 3-H or 3-1 of the drug grid.” K.S.A. 21-4724(b)(1).
Retroactive application of the KSGA was summarized in State v. Lunsford, 257 Kan. 508, Syl. ¶ 3, 894 P.2d 200 (1995), as follows: “A prisoner’s eligibility for retroactive sentence conversion based on the severity level of the crime is determined as of July 1, 1993, and if a prisoner is not eligible for sentence conversion on that date, subsequent events other than a reversal or new sentence imposed as a result of an appeal will not make the prisoner eligible for sentence conversion.”
On July 1, 1993, rape was classified as a severity level 2 person felony and aggravated burglary was a severity level 5 person felony. K.S.A. 1993 Supp. 21-3502(c); K.S.A. 1993 Supp. 21-3716. Price asserts that he was on conditional release for his aggravated burglary conviction on July 1, 1993, and because aggravated burglary was a severity level 5 offense, he is eligible for conversion. Even though aggravated burglary was a severity level 5 offense, Price’s criminal history score must be an H or I for him to be eligible for conversion of the aggravated burglary conviction. See K.S.A. 21-4724(b)(1).
An examination of the record from Price’s underlying criminal case indicates that he was previously convicted of possession of stolen mail, forgery and uttering a U.S. Treasury check, and assault on a federal prison guard. The record does not contain certified journal entries for these convictions. Instead, the convictions were merely alleged in a motion to impose the Habitual Criminal Act. Nevertheless, if this information is accurate, then Price’s criminal history score would be higher than H, making him ineligible for conversion of his aggravated burglary sentence. However, it is unnecessary to remand the case for a determination of Price’s criminal history score because even if Price’s criminal history score is an H or I, he is ineligible for conversion.
Price contends that his first 20 years of imprisonment were for his rape conviction. To support this argument, Price cites the parole board’s rationale for denying him conditional release. During the first 20 years of his sentence, the parole board denied Price conditional release based on the serious and violent nature of the crime. Price relies on this language as evidence the DOC considered him to be serving the sentence for rape during the first 20 years of his sentence. Thus, according to Price, he is eligible for conversion because he completed his rape sentence prior to July 1, 1993.
The State, on the other hand, suggests that because the DOC aggregated Price’s consecutive sentences, both sentences are served simultaneously and, as a result, he was on conditional release for both the aggravated burglaiy and rape convictions on July 1, 1993. To support this argument, the State cites K.S.A. 21-4608(f)(3), which provides that “[w]hen indeterminate terms imposed on the same date are to be served consecutively, the minimum terms are added to arrive at an aggregate minimum to be served equal to the sum of all minimum terms and the maximum terms are added to arrive at an aggregate maximum equal to the sum of all maximum terms.” The State further relies on K.A.R. 44-6-141(e), which states that “the maximum term of each active sentence . . . [is] added to each of the sentence begins date” to determine the maximum release date. The State asserts that because Price’s maximum release date is January 27, 2013, he was serving his rape conviction on July 1, 1993 and, as a result, he is ineligible for conversion.
Both Price’s and the State’s arguments are flawed. The State’s contention that the aggregation rules stated in K.S.A. 21-4608(f) are applicable in determining whether Price is eligible for conver sion is incorrect. Blomeyer v. State, 22 Kan. App. 2d 382, Syl. ¶ 3, 915 P.2d 790 (1996), however, held that “K.S.A. 21-4608(f) provides rules for determining the time to be served on multiple sentences, the sentence begin date, and parole eligibility and conditional release dates. There is no indication that the aggregation rules were intended to be applied to any other areas.” Accordingly, although K.S.A. 21-4608(f) is used to determine the maximum release date, that date is not relevant in determining whether an inmate is eligible for conversion.
Moreover, the State’s suggestion that Price is simultaneously serving his sentences for aggravated burglary and rape is erroneous. “Consecutive sentences may not be treated collectively as one for the aggregate term of all, and the identity of the punishment for each must be preserved.” 24 C.J.S., Criminal Law § 1582. In other words, a consecutive sentence “is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced. A prisoner serving the first of several consecutive sentences is not serving the other sentences . . . the prisoner serves only one sentence at a time.” 24 C.J.S., Criminal Law § 1582. See State v. Bell, 6 Kan. App. 2d 573, 574, 631 P.2d 254 (1981) (defining “consecutive sentences” as sentences “following in a train, succeeding one another in a regular order”). As a result, on July 1, 1993, Price was either on conditional release for aggravated burglary or for rape, but not for both offenses.
To determine which sentence Price served first, it is necessary to determine whether a statute specifies the order in which consecutive sentences are to be served. See 24 C.J.S., Criminal Law § 1588. At the time Price was sentenced, however, Kansas did not have a statute specifying the sequence of consecutive sentences. See generally K.S.A. 21-4720. When a statute does not provide for the order of sentences, then the order of the terms is that designated by the trial court, and if not specified, then the order is that in which the convictions were rendered. 24 C.J.S., Criminal Law § 1588.
Here, the trial court did not specify which sentence Price was to serve first. Accordingly, we look to the order in which the convictions were rendered. Count 1 charged Price with aggravated burglary and count 2 charged rape. The jury first returned a guilty verdict on the aggravated burglary count and then on the charge of rape. Moreover, the journal entry first specified that Price was guilty of aggravated burglary and then stated that he was guilty of rape. Based on these facts, we determine that the conviction of aggravated burglary was the first conviction rendered in this case.
Because aggravated burglary was Price’s first conviction, the first 20 years of his imprisonment were served for that offense. Accordingly, on July 1, 1993, Price had completed his sentence for aggravated burglary and was on conditional release for the rape. Because Price has served his sentence for aggravated burglary, that sentence cannot be converted. Moreover, his rape sentence is ineligible for conversion based on the severity level of that offense. As a result, even if Price’s criminal history is an H or I, he is ineligible for conversion, and the trial court did not err in denying his motion for relief under K.S.A. 60-1507.
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Lewis, J.:
Defendant Michael A. Calhoun was convicted of possession of cocaine. He was granted probation but was required to spend 21 days in jail as a condition of that probation. Among other financial requirements imposed, he was ordered to “reimburse the Sedgwick County taxpayers $250 for [defendant’s] jail time.” This is a direct appeal from his conviction and sentence.
Defendant was initially caught in a radar trap for exceeding the speed limit. During the course of the ensuing traffic stop, his actions got him into a lot more trouble.
The arresting officer testified that during the course of the stop, defendant was “messing with his right hand, reaching toward the center of the vehicle.” In addition, defendant had no driver’s license or other identification. He gave the police officer several false names, which the officer could not verify, nor could the officers verify the ownership of the vehicle.
Finally, unable to determine defendant’s identity or the ownership of the vehicle, the police officer ordered defendant and his passenger out of the car. He then initiated a weapons pat-down. During the process of this pat-down, a bag of cocaine fell from defendant’s right pant leg.
Defendant argues the trial court erred in denying his motion to quash arrest, statement, and search. We disagree.
The trial court found the stop was valid and the search was valid because the officer “legitimately was concerned with two things, search for potential identity and search for weapons.” In State v. Kimberlin, 267 Kan. 659, 661-62, 984 P.2d 141 (1999), the Supreme Court said:
“If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court will not substitute its view of the evidence for that of the trial court. When reviewing a trial court’s suppression of evidence, the appellate court normally gives great deference to the factual findings of tlie trial court. However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.”
We have reviewed the record and hold that substantial competent evidence supports the trial court’s findings that the stop was valid and that the search of defendant was done out of a legitimate concern for officer safety and in connection with an effort to ascertain defendant’s identity.
The trial court did not err in denying defendant’s motion. The search was legal, and the evidence was admissible.
In addition, the trial court found the evidence would have inevitably been discovered. When defendant’s true identity was discovered, a warrant for his arrest was also discovered. Defendant’s conduct had guaranteed he was going to be arrested, either because he had failed to disclose his identity to the officer or because the disclosure of his proper identity would have shown that he was wanted on an outstanding warrant. If he had been arrested, the booking process inevitably would have revealed the presence of cocaine. We agree with the trial court that the inevitable discovery rule would also apply in support of this search. See State v. Brown, 245 Kan. 604, 611, 783 P.2d 1278 (1989).
Defendant also argues the trial court erred in ordering him to reimburse the Sedgwick County taxpayers $250 for his jail time.
We disagree.
“K.S.A. 21-4610 authorizes the trial court to set conditions of probation and sets out a nonexclusive list of conditions the court may include. The trial court has broad powers to impose probation conditions designed to serve the accused and the community. State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986). Setting die conditions of probation lies within the sound discretion of the trial court. State v. Hargis, 5 Kan. App. 2d 608, 611, 620 P.2d 1181 (1980), rev. denied 229 Kan. 671 (1981).
“There are, however, limitations on probation conditions that infringe on constitutionally protected rights." (Emphasis added.) State v. Mosburg, 13 Kan. App. 2d 257, 258, 768 P.2d 313 (1989).
We conclude that requiring defendant to reimburse the Sedgwick County taxpayers $250 was well within the trial court’s discretion. The discretion of a trial court is abused only when no reasonable person would take the view adopted by the trial court. State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998). We cannot say that no reasonable person would have taken the view adopted by the trial court in this case.
We point out that in this case, defendant argues neither an abuse of discretion on the part of the trial court nor an infringement on a constitutionally protected right.
Defendant apparently rests his argument on the fact that the trial court lacked the authority to make the payment of $250 a condition of probation. We disagree.
We hold the trial court’s imposition of this cost was not an abuse of discretion and that it was within the authority of the trial court as granted by K.S.A. 1999 Supp. 21-4610. We point out, however, that prior to revoking defendant’s probation for failure to pay the $250 assessment, “the court must consider whether defendant has the means to pay.” State v. Dean, 12 Kan. App. 2d 321, 327, 743 P.2d 98, rev. denied 242 Kan. 904 (1987).
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Lewis, J.:
Defendant Michael Lair was convicted in 1982 of one count of indecent liberties with a child and was placed on parole. A few years later, he entered into a diversion agreement on a misdemeanor charge of lewd fondling of a child, his parole was revoked, and he was committed to the custody of the Secretary of Corrections. He was paroled in 1989 for approximately 2>Vi years. His parole was revoked in 1992 as a result of his failure to report to the parole officer and his being charged with new crimes.
When defendant was about to be released from the Department of Corrections, the State filed a petition pursuant to the Kansas Sexually Violent Predators Act (Act), K.S.A. 59-29a01 et seq., alleging that he was a sexually violent predator. This action was tried to a jury, which found defendant was a sexually violent predator. As a result of the verdict, the trial court ordered defendant into the custody of the Department of Social and Rehabilitation Services (SRS) for control and treatment. Defendant appeals from his designation as a sexually violent predator and from his placement in the custody of SRS as a result of that designation.
We affirm.
This appeal stems from defendant’s desire to be evaluated by a specific psychologist and to have that psychologist, Gail Roberson, testify as to whether defendant would be accepted into her sexual offender treatment program. The State filed a motion in limine seeking to exclude Roberson’s evaluation of defendant and her testimony at trial. The trial court denied defendant’s motion for evaluation and granted the State’s motion in fimine. This appeal followed.
The Act requires long-term care and treatment of sexually violent predators who are determined to pose a high risk of repeating sexually violent acts. K.S.A. 1999 Supp. 59-29a01.
Defendant argues he should have been able to seek an evaluation from Roberson for the purpose of evaluating whether he would be accepted into her program for rehabilitating sexual offenders. He argues that her evidence would show that he does not need to be confined as a sexually violent predator.
The State responds, arguing that the Act requires a jury only to find that a defendant has been charged with a sexually violent offense, that he suffers from a mental abnormality or personality disorder, and that this disorder makes him likely to engage in pred atory acts of sexual violence. The State suggests that issues concerning the care and treatment of a sexually violent predator are questions outside the province of the jury. The State argues that Roberson would testify concerning recidivism rates of offenders who had completed her program and that this would be prejudicial since her treatment program was not geared specifically for violent sexual predators. It submits that her testimony would not only be prejudicial but also that it is irrelevant.
The issue on appeal is whether the testimony of Roberson was relevant and should have been admitted at trial. Our standard of review on a question of this nature is whether the trial court abused its discretion. State v. Gardner, 264 Kan. 95, 103-04, 955 P.2d 1199 (1998). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the view of the trial court.
The controlling statute in this case appears to be K.S.A. 1999 Supp. 59-29a07. That statute states in relevant part:
“(a) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. ... If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the secretary ofsocial and rehabilitation services for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large. Such control, care and treatment shall be provided at a facility operated by the department of social and rehabilitation services.” (Emphasis added.)
The statute provides that a jury is only to determine whether the individual is a sexually violent predator. The jury is not concerned with and does not determine the course of treatment for a sexually violent predator. The question is one of the relevancy of the testimony in question. Relevant evidence is evidence having any tendency in reason to prove any material fact. Simon v. Simon, 260 Kan. 731, 741, 924 P.2d 1255 (1996). The treatment of a sexually violent predator is not a material fact before the jury.
The Act provides that a sexually violent predator shall be placed under the care, custody, and control of the SRS. At trial, the State presented two witnesses who stated that in their opinions, defendant was likely to repeat sexually violent offenses. The witness prof fered by defendant had never met him and would only have testified about general theories. There is no indication in the record that Roberson would have testified to anything other than her opinions to the proper care, custody, and control of defendant. This testimony would not have been relevant to any issue before the jury. We hold that evidence which deals only with the course of treatment for an individual is not relevant in a trial to determine whether a defendant is a sexually violent predator under K.S.A. 1999 Supp. 59-29a07. The trial court did not abuse its discretion in granting the State’s motion in limine.
Defendant next argues that the evidence was not sufficient to prove him to be a sexually violent predator beyond a reasonable doubt. Although this is a civil action, the burden of proof placed upon the plaintiff is to prove that defendant is a sexually violent predator beyond a reasonable doubt. K.S.A. 1999 Supp. 59-29a01, 59-29a07. When the sufficiency of the evidence is challenged, our standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the State, an appellate court is convinced that a rational factfinder could have found defendant to be a sexually violent predator beyond a reasonable doubt. In re Care & Treatment of Hay, 263 Kan. 822, 842, 953 P.2d 666 (1998).
We have reviewed the evidence and hold that the evidence was sufficient to allow the jury in this case to have found defendant to be a sexually violent predator beyond a reasonable doubt. Defendant’s particular problem appears to have been with children. The State called two expert witnesses, both of whom testified that defendant is a pedophiliac and suffers from an anti-social personality disorder. Defendant’s own witness, Dr. William Logan, agreed that defendant was a pedophiliac.
The question at trial was whether defendant was likely to repeat his sexually violent acts. Under our reading of the evidence, defendant was certainly likely to repeat those actions. One of the State’s witnesses testified that defendant had told him that he had been fooling around with pre-teenage boys since he was 18 years of age.
There was also evidence presented concerning his 1982 conviction and the diversion in 1985, along with an accusation made by an ex-wife’s daughter that defendant had molested her. In addition, defendant admitted that he had a sexual fantasy regarding children after being incarcerated.
The witnesses for the State and the expert witness for defendant agreed that pedophiliacs such as defendant who are attracted mainly to boys are twice as likely to reoffend as those who are attracted to adult males and females.
We have no doubt that there was sufficient evidence upon which the jury could reach a conclusion that this defendant was a sexually violent predator beyond a reasonable doubt.
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Knudson, J.:
In this consolidated appeal, the Citizens’ Utility Ratepayers Board (CURB) and UtiliCorp United, Inc., (UC) appeal from orders of the Kansas Coiporation Commission (Commission) granting UC a rate increase. Appellate jurisdiction is conferred upon this court in K.S.A. 1999 Supp. 66-118a(b).
CURB contends the Commission’s final orders are not supported by adequate findings of fact and were entered without appropriate consideration or investigation of UC’s flexible rate practices. UC contends the Commission erroneously determined UC’s cost of debt to finance its Kansas natural gas public utility divisions.
We affirm the Commission’s final orders.
UC is a natural gas public utility engaged in the purchase, transmission, sale, and distribution of natural gas. In October 1999, UC filed a request for a rate increase on behalf of its two Kansas natural gas public utility divisions, Peoples Natural Gas Company (PNG) and Kansas Public Service (KPS). UC requested an increase of $5,884,389 based on a test year ending December 31, 1998. It subsequently revised its request to $6,025,413 because of various inadvertent omissions in the original request.
In addition to CURB, several other parties were allowed to intervene in the proceedings before the Commission, including Mountain Energy Corporation, the Department of Student Housing at the University of Kansas (KU), Kansas Gas Service Company, and the City of Garden City. CURB is a statutorily authorized volunteer consumer advocacy group which represents the interests of Kansas residential and small commercial ratepayers. See K.S.A. 66-1222. None of the intervenors other than CURB is a party in these appeals.
The Commission staff (Staff) position was that based upon its review of the test year, UC should be allowed a revenue increase of $1,316,701. CURB argued that the Commission should reduce UC’s revenue by $3,002,508.
All parties supplied the Commission with direct and rebuttal testimony prior to the rate hearing. At the beginning of the technical hearing, UC and Staff presented a nonunanimous stipulation and settlement agreement (S&A), agreeing to settle most of the issues except for those relating to imputation of revenue relative to UC’s discount contracts, cost of UC’s debt issues, rate design, as well as aggregations and pooling issues. CURB did not agree to the S&A.
Not until all of the evidence was presented did the Commission decide to adopt the S&A. It also rejected Staff s and CURB’S recommendations for revenue imputation as a result of discount contracts, rejected UC’s position on the cost of debt, rejected UC’s request to increase the charges associated with aggregation pooling charges, and ruled on a number of other issues not before us. UC, CURB, and KU filed timely motions to reconsider. The Commission made modifications in its original order and approved a revenue increase for UC of $4,779,351. Both CURB and UC appeal.
Our general standard of review is stated in K.S.A. 77-621. A party challenging the legality of the Commission’s orders bears the burden of proof pursuant to K.S.A. 77-621(a)(l). See Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 175, 943 P.2d 470, rev. denied 263 Kan. 855 (1997).
“If KCC action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial competent evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudices the parties.” Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 475, 749 P.2d 21 (1988).
CURB’S APPEAL
Commission Adoption of the SC A
CURB contends the Commission did not make sufficient findings of fact in adopting the nonunanimous S&A. Unquestionably, the Commission may accept a nonunanimous settlement agreement provided an independent finding is made, supported by substantial evidence in the record as a whole, that the settlement will establish just and reasonable rates. Farmland Industries, 24 Kan. App. 2d at 186-87.
K.A.R. 82-1-232 provides rules of form and content for orders of the Commission. K.A.R. 82-l-232(a)(3) states that each order of the Commission shall contain “[a] concise and specific statement of the relevant law and basic facts which persuade the commission in arriving at its decision.”
“The purpose of findings of fact as mandated by K.A.R. 82-l-232(a)(3) is to facilitate judicial review and to avoid unwarranted judicial intrusion into administrative functions. The Commission must, therefore, express the basic facts upon which it relied with sufficient specificity to convey to the parties, and to the courts, an adequate statement of facts which persuaded the Commission to arrive at its decision. [Citations omitted.]” Ash Grove Cement Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 128, 132, 650 P.2d 747 (1982).
The Kansas Supreme Court has construed the Commission’s procedural requirements to mean findings need not be rendered in minute detail. However, findings must be specific enough to allow judicial review of the reasonableness of the order. To guard against arbitrary action, conclusions of law must be supported by findings of fact which are in turn supported by evidence in the record. Zinke & Trumbo, 242 Kan. at 475.
To examine whether the Commission’s action is supported by substantial competent evidence, K.S.A. 77-621(c)(7), the record must contain evidence “which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved.” Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 44, 46, 602 P.2d 131 (1979), rev. denied 227 Kan. 927 (1980).
Where the trial court’s (or the Commission’s) findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the court’s findings, meaningful appellate review is precluded. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993).
In its original order, Order No. 8, the Commission made the following findings regarding the S&A:
“6. UtiliCorp and Staff presented witnesses in support of the S&A. [Citation omitted.] The only party opposing the S&A was CURB. [Citations omitted.]
“7. There is a strong policy in the law that settlements are to be encouraged. Bright v. LSI Corp., 254 Kan. 853, 858, 869 P.2d 686 (1994). The Commission has the power to consider non-unanimous settlement agreements and can accept such settlements if it finds the proposed settlement to be reasonable. Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 186-88, 943 P.2d 470 (1997).
“8. The Commission notes that CURB’S statutory obligation is to represent residential and small commercial customers, while the Commission’s responsibility is to take a broader view that also considers the interests of any intervenors in tire case, all classes of ratepayers, and the stockholders of the utility. [Citation omitted.]
“9. The Commission finds that, on balance, the S&A represents a reasonable settlement of the issues it addresses. The rate options in the S&A are within the litigation positions of Staff and UtiliCorp. [Citations omitted.] Staff indicates that it had considered the possibility that some of its requested adjustments may not have been accepted by die Commission. [Citation omitted.] Parties face uncertainty when litigating issues, and a settlement agreement will reflect acknowledgement of that risk and of the hazards of litigation. See 24 Kan. App. 2d at 194-95. It is evident that the terms of the settlement were zealously negotiated. The fact that the parties could not resolve all issues indicates to the Commission that they were not seeking an agreement at any cost, but were carefully decidingwhere compromise was possible and where dieir positions could not be altered. UtiliCorp emphasizes the reasonableness and fairness of the rates agreed to in the S&A when compared to current rates for other natural gas local distribution companies. [Citation omitted.] Based on its familiarity with the industry and the evidence in the record as a whole, the Commission finds that the settlement will establish just and reasonable rates. The Commission also finds that the settlement provides for depreciation and corporate overhead allocation studies which will assist the Commission in monitoring the utility and will benefit future ratepayers. Having considered the terms of the S&A, the Commission concludes that it is reasonable and in die public interest. The May 16, 2000 S&A is accepted and approved.”
Upon CURB’S petition to reconsider, the Commission in Order No. 9 stated:
“10. CURB argues that the Commission did not make sufficient findings to support its approval of the S&A. The Commission met the applicable standard for approving the S&A by finding that the S&A reasonably resolved the issues it addressed and that the resulting rates would be within a range of reasonableness. As noted in ¶8 of Order No. 8, the Commission’s obligation to balance the interests of all affected parties is broader than CURB’S responsibility in representing residential and small commercial ratepayers. The Commission’s oral ruling on the S&A, made at the conclusion of the hearing, did recognize CURB’S evidence, but found that on the whole, given the Commission’s responsibility to all parties, the S&A was reasonable and in the public interest.”
As noted by CURB, Kansas law does require more than a mere pronouncement a settlement is reasonable. In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 46-47, 386 P.2d 515 (1963), the Supreme Court stated:
“In a seriously contested rate investigation there must be a determination of (1) a rate base, (2) a fair rate of return, and (3) reasonable operating expense. In determining these factors, there are numerous elements pertaining to each which must be fairly and reasonably determined if a fair return is to result.”
While the better practice would have been for the Commission to provide more detailed findings of fact, we believe CURB’S contention is without legal merit because the Commission did not accept the S&A until after a full evidentiary hearing on the merits of UC’s application for a rate increase. This is not a situation where the stipulation impermissibly shifted the burden of proof or prevented CURB from presenting evidence in opposition to the S&A. The Commission weighed the evidence pro and con that had been presented and only then decided to adopt the S&A as reasonable. We also observe tiie S&A is limited in scope. It addressed issues of depreciation, corporate overhead allocation, capitalization ratios, sales-based pressures, consolidation of small customer classes, miscellaneous service fees, as well as customer deposits and interest charges. According to the testimony, it also included issues relating to weather normalization calculations and various accounting methodologies. As previously noted, it did not include agreements on revenue imputation, cost of debt, aggregation and pooling is sues, or daily imbalance penalties. Finally, our review of Staff Schedule C-l, adopted by implication by the Commission, together with the S&A, demonstrates the Commission did fully consider the essential determinants of (1) a rate base, (2) a fair rate of return, and (3) reasonable operating expense. Thus, after a thorough review of the record,, the Commission’s findings of fact, including the specifics within the adopted S&A, are supported by substantial competent evidence.
UC’s Discounting Practices
CURB contends the Commission erred in refusing to impute income to offset lost revenues resulting from UC’s practice of providing large customers with discount contracts, a practice countenanced by the Commission in a previously approved tariff. This approved tariff authorizes UC to negotiate and provide flexible rates to large customers who might otherwise leave the system. According to Staff, the difference between the revenues UC would have collected during the test year if these discount customers had been charged the full fixed tariff rate is approximately $6 million; coincidentally, this is the amount now sought by UC in its application for a rate increase.
At the underlying rate hearing, CURB argued for a 100% imputation of revenues “lost” as a result of flexible rates; Staff argued for a 50% imputation. Clearly, both CURB and Staff were concerned that residential and small commercial customers should not be burdened with higher rates as a result of UC granting discounts to large customers.
In response, UC argued the Commission had previously approved the flexible .tariff and that without discount rates large customers would leave the system. The result would be adverse to the interests of residential and small business customers. Larry Headley, UC’s Director of Regulatory Services, testified that Staff s recommendation of a 50-50 split was unreasonable because UC shareholders had shouldered the loss of revenue in the period between the time the discounts were granted and the effective date of the next (this) rate case. Headley explained that as an investor-owned utility, UC was already motivated to maximize its return on in vestment with discounts given only when load retention was genuinely threatened. Headley also responded to CURB’S alternative argument regarding the absence of proof as to whether UC’s best efforts had been utilized to minimize the financial impact of discounts. Headley contended that because the discount contracts were pursuant to a previously approved flexible tariff there is a presumption that they are reasonable. Therefore, according to Headley, the burden should be on CURB, not UC, to present evidence that the discounts given were not prudent.
In its initial order the Commission rejected Staff s and CURB’S recommendations for revenue imputation. The Commission found imputation arguments must be based on prudence and particular facts of each individual discount service contract. In its order on reconsideration, the Commission stated that at the time UC entered into the discount agreements, they were either approved as special contracts or were in compliance with approved tariffs. It went on to say that the time to challenge the flexible rate tariffs and special contracts was when they were initially filed for review. The Commission noted that the rates charged under these agreements are prima facia reasonable and, pursuant to K.S.A. 66-115, the party challenging the prudence of such agreements bears the burden of overcoming the presumption of reasonableness. The Commission went on to note that CURB had not provided sufficient evidence that any of the agreements were imprudent.
K.S.A. 66-115 provides:
“Except as otherwise provided in K.S.A. 66-117 and amendments thereto, all orders, regulations, practices, services, rates, fares, charges, classifications, tolls, and joint rates fixed by the commission shall be in force and effect 30 days after service, and shall be prima facie reasonable unless, or until, changed or modified by die commission or in pursuance of proceedings instituted in court as provided in this act.”
It is a well-established principle that all rates fixed by the Commission are prima facie reasonable unless or until changed or modified by the Commission or by court order. Southwestern Bell Tel Co., 4 Kan. App. 2d at 47. However, the presumption of validity which attaches is measured by the conditions then existing. This would not preclude the Commission from considering changed conditions under an application for a rate increase. Midwest Gas Users Ass'n v. Kansas Corporation Commission, 5 Kan. App. 2d 653, 661, 623 P.2d 924, rev. denied 229 Kan. 670 (1981).
CURB contends UC failed to provide documents and corporate records to support CURB’S claim of imprudence. The Commission noted CURB had made its discovery request less than 2 weeks prior to the hearing. The Commission ruled CURB should have filed a motion to compel production if it was dissatisfied with UC’s initial response.
When a utility seeks an increase in its rates, it bears the burden to show such a change is necessary. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 615, 538 P.2d 702 (1975). However, once a tariff is established, it carries the presumption that it is just and reasonable. K.S.A. 1999 Supp. 66-117. It would appear CURB should have the burden to show that the discount agreements were not reasonable to justify any imputation of income to UC.
CURB was apparently acting under the assumption that UC would have to provide such data with its rate request. When it determined that such data was not provided and that the Commission was not requiring the data be provided in the application, CURB made a request of UC for the data. UC filed its request for rate increase in October 1999. However, CURB did not ask for any documentation supporting the prudence of the discount contracts until May 4, 2000, or approximately 12 days before the start of the public hearings. CURB apparently did not ask for additional information after UC responded to CURB’S request.
David Springe, an economist, testifying on behalf of CURB, stated he did submit a lengthy data request for analysis on the discount contracts but the responses were not adequate. On cross-examination, he testified that CURB’S position was the captive ratepayers should not pay for any of UC foregone revenue. Further, since CURB’S position was that UC should have to prove the contracts were prudent, Springe believed UC’s inadequate response to the data request strengthened CURB’S case that UC had not done any analysis prior to granting the discounts.
The Commission found that the flexible tariffs were presumptively reasonable and CURB had not carried its burden to come forward with evidence to show they were not. This is a negative finding. “ ‘[A] negative finding that a party did not carry 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.’ ” Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 52, 941 P.2d 390, rev. denied 262 Kan. 961 (1997) (quoting Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 275, 864 P.2d 1148 [1993]).
CURB erroneously assumed that UC would be required to present the data ultimately requested as part of its application for a rate increase. When CURB did request the data and determined UC’s production was inadequate, CURB’S remedy was to file a motion to compel. Although the Commission could have ordered UC to provide the data regarding the discount contracts upon the untimely and unorthodox request of CURB, it was certainly not required to do so. The Commission correctly placed the burden of proof upon CURB and did not abuse its discretion in denying CURB’S untimely request for further production of documents.
CURB also claims the Commission failed its regulatory oversight responsibilities by not reviewing the discount contracts entered into by UC with certain customers under the previously approved flexible rate tariff.
CURB cites Colorado-Ute Elec. v. Public Utilities, 760 P.2d 627 (Colo. 1988), for the position that the Commission had an affirmative duty to investigate UC’s contracts. In that case, the Colorado Supreme Court held that the Public Utilities Commission (PUC) had the authority to investigate and hold hearings concerning utility rates. 760 P.2d at 636. In construing the Colorado statutes, the court held that “under certain circumstances the Commission is required to investigate a tariff change.” 760 P.2d at 638. The language CURB wishes this court to adopt comes from that portion of the decision dealing with allocation of $24 million of electric generation fixed costs (demand costs) to the energy component of the demand-energy rate. 760 P.2d at 645. The Colorado Supreme Court affirmed the district court’s ruling that there was insufficient evidence to support such a shift. 760 P.2d at 647. The court then stated:
“We have held that where an order of the Commission is issued solely as a matter of administrative convenience, or in the absence of sufficient investigation into pertinent considerations, the order is arbitrary, capricious, and invalid. City of Montrose v. Public Utilities Comm’n, 197 Colo. 119, 123, 590 P.2d 502, 505-06 (1979) (commission’s order arbitrary and capricious, where no study commissioned regarding cost-of-service breakdown, although study was feasible, and no discussion in commission’s order of disparate service cost; therefore, order issued solely as a matter of administrative convenience). Further, orders of die Commission which are arbitrary and capricious must be set aside. Peoples Natural Gas Div. v. Public Utilities Comm’n, 698 P.2d 255, 265 (Colo. 1985). . . .
“The same factors which cause us to conclude diat the Commission’s conclusions are not supported by substantial evidence, also lead us to find this portion of the Commission’s decision arbitrary and capricious. The proposed shift to demand costs represents little more dian an ad hoc and unsupported analytical shortcut invented and adopted simply because the necessary rate design studies had not been performed by the Commission staff. The evidence clearly shows that such a study was entirely feasible, had the staff collected the necessary data. The district court, therefore, was fully justified in holding that this portion of the Commission’s order was arbitrary and capricious.” 760 P.2d 648.
A close reading of the facts of Colorado-Ute Elec, convinces us the Colorado PUC adopted a method of classifying certain demand costs that was contrary to its own cost-of-service study. The only testimony in the record indicated the rate eventually adopted could not be supported, either in outside literature or by Staffs own studies. In fact, the witness testified he was unaware of any other case where the Commission had proposed such an approach.
In the instant case, the Commission did consider whether revenue should be imputed to make up for revenue lost as a result of discounting in prior rate cases. Thus, unlike the case in Colorado-Ute Elec., this was not a new or unstudied procedure. Also, this case is different in that UC’s discounts were granted pursuant to an existing Commission-approved tariff. There was no such prior approval in the Colorado case.
“The KCC is the state regulatory agency with the power and authority to supervise and control intrastate natural gas public utilities doing business in Kansas. See K.S.A. 66-101 et seq.” Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 22 Kan. App. 2d 410, 412, 916 P.2d 76, rev. denied 260 Kan. 994 (1996). K.S.A. 1999 Supp. 66-129 gives the Commission the authority to examine, audit, and inspect any and all books, accounts, papers, records, property, and memoranda kept by public utilities and common carriers. Although not cited by either party, K.S.A. 1999 Supp. 66-1,204 provides:
“The commission, upon its own initiative, may investigate all schedules of rates and rules and regulations of natural gas public utilities. If after investigation and hearing the commission finds that such rates or rules and regulations are unjust, unreasonable, unjustly discriminatory or unduly preferential, the commission shall have the power to establish and order substituted therefor such rates and such rules and regulations as are just and reasonable.
“If after investigation and hearing it is found that any regulation, measurement, practice, act or service complained of is unjust, unreasonable, unreasonably inefficient or insufficient, unduly preferential, unjustly discriminatory, or otherwise in violation of this act or of the orders of the commission, or if it is found that any service is inadequate or that any reasonable service cannot be obtained, the commission may substitute therefor such other regulations, measurements, practices, service or acts, and make such order respecting any such changes in such regulations, measurements, practices, service or acts as are just and reasonable. When, in the judgment of the commission, public necessity and convenience require, the commission may establish just and reasonable concentration or other special rates, charges or privileges, but all such rates, charges and privileges shall be open to all users of a like kind of service under similar circumstances and conditions. Hearings shall be conducted in accordance with the provisions of the Kansas administrative procedure act, unless, in tire case of a general investigation, for good cause, the commission orders otherwise.”
See also K.S.A 66-1,201 (Commission is empowered to do all things necessary and convenient to supervise and control the natural gas public utilities).
Authorities have observed that a public service commission, like the Kansas Corporation Commission, “has no inherent power; all its power and jurisdiction, and the nature and extent of the same, must be found within the statutory or constitutional provisions creating it.” 64 Am. Jur. 2d, Public Utilities 232, p. 739. However, these provisions should not be construed so narrowly as to defeat their main purpose, but should be liberally construed to include every power fairly to be implied by the language used or necessary to enable the Commission to exercise the powers expressly granted. Street Lighting Co. v. Utilities Commission, 101 Kan. 774, 777, 169 Pac. 205 (1917). In Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 79, 402 P.2d 762 (1965), the court, interpreting K.S.A. 66-101, which at the time applied to common carriers as well as public utilities, stated that the Commission had full power and authority to regulate common carriers (and presumably utilities) and could do all things necessary and convenient in the exercise of its power. See Grindsted Products, Inc. v. Kansas City Power & Light Co., 21 Kan. App. 2d 435, 443, 901 P.2d 20 (1995). Kansas courts have also recognized that matters concerning public utilities are highly complex, and the Commission is recognized to have vast expertise and discretion in regulating utilities. Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 495, 720 P.2d 1063 (1986).
Thus, the Commission does have the authority to examine the discount contracts established under the prior tariff and issue such orders as necessary. The question remains, does the Commission have a duty to investigate the discount agreements?
This is a question of statutory interpretation and, therefore, a question of law. Our standard of review is unlimited. Hamilton v. State Farm Fire & Cas. Co. 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The long-standing rule in this jurisdiction is that 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. See Ussery v. Kansas Dept. of SRS, 258 Kan. 187, Syl. ¶ 6, 899 P.2d 461 (1995). The plain language of the statute provides that the Commission may investigate. Thus, there is no statutory duty, nor do the cases cite any common law duty, that would require the Commission to examine UC discount contracts, absent evidence indicating those contracts were in some way violative of the provisions of K.S.A. 66-101 et seq. The only argument left for CURB, under K.S.A. 77-621, is that the Commission's failure to investigate was unreasonable, arbitrary, or capricious.
CURB contends that UC is shifting revenue responsibility to its captive customers at the same time it resupplies the discount customers from its unregulated affiliate. This allows the captive customers to pick up more of the regulated costs of the local distribution company’s (LDC) system. CURB does no more than to assert this is part of UC’s marketing strategy as an energy merchant, without citation to any portion of the record to support its claim or even explain how this process works.
The record does show that one of UC’s corporate goals is to become a leading energy merchant. Aquila Energy Corporation is UC’s wholesale merchant within the UC corporation. It also owns Energy One Ventures. Jon Empson, UC’s senior vice president for regulatory, legislative, and environmental services, testified that UC’s goal as an energy merchant is to be involved in wholesale transactions where it would provide services to LDC’s and large industrial customers and help them manage their energy needs.
We are not insensitive to the argument made by CURB. It is of concern to this court that the Commission has not investigated the economic viability of the flexible rate structure it previously approved. However, based upon our limited standard of review, we cannot say the Commission has acted arbitrarily or capriciously for failure to investigate. CURB has failed to provide any authority that the Commission had a mandatory duty to audit discount contracts on an ongoing basis for fairness and reasonableness. Additionally, CURB’S assertions, without citation to the record, that UC is shifting the cost of the LDC to the captive ratepayers in order to benefit its nonregulated affiliates must fail.
CURB next contends the Commission failed to adhere to its ruling in the so-called 420 docket. At or around the same time the instant case was being heard, the Commission issued its order in In the Matter of the Application of Kansas Gas Service Company, a Division of ONEOK, Inc., for Commission Determination of the Rate Treatment of Discounted Service Agreements Entered Into to Meet Competitive Alternatives, Docket No. 00-KGSG-420-RTS. Oral arguments were held on the 420 docket on April 12, 2000, and the initial order was issued April 19, 2000.
The purpose of the 420 docket was specifically to examine how the Commission would treat special discounts granted to certain customers when they threatened to leave the system. Two issues were presented. First, how could the Commission ensure that discounts given under the flexible tariffs were fair and reasonable? Second, should the Commission impute any revenue to the utility in subsequent rate hearings to offset the revenue lost as a result of discounting?
In its order in the 420 docket, the Commission ruled that it would not automatically impute any percentage of income to a utility as a result of special contracts or discount contracts that were ' entered into to meet competitive demands. The Commission stated that in future rate cases those utilities entering into discounts under flexible tariffs must have available all documentation and information relating to the offering of the discount and the level of any discount. Such data would be promptly provided pursuant to any discovery request. The order stated that it would not rule out that if a significant portion of the utility’s load was subject to a discount rate, even with prudent action by the utility, the utility’s revenue requirement could be affected. It would be the utility’s burden to make a prima facia showing that the discount service agreements were reasonable. Thus, the Commission inferentially found discounting agreements would be viewed on a case-by-case basis.
CURB contends the Commission’s decision, finding the order in the 420 docket had no application in this case, was inconsistent with its finding that “consistent” with the 420 docket, automatic revenue imputation would not be considered. According to CURB, the Commission placed the burden on CURB to make a showing that UC’s discount agreements were not reasonable, when under the 420 order, the utility seeking the rate increase had the initial burden. The Commission accomplished this by finding the 420 docket had no application in this case. CURB’S argument is that the Commission found the 420 order not to be applicable when it benefitted CURB’S position, but applicable when it was of benefit to UC.
The parties do not provide us with a standard of review upon this issue. Whether the Commission could, in the 420 docket, find that its order only applied to rate cases filed after the date of that order, we believe to be a question of abuse of discretion. Neither party has provided citations of authority or persuasive argument that the Commission is precluded from giving its order prospective effect only.
In its Order No. 8 in this case, the Commission noted that the timing of the 420 docket made it difficult to formulate the positions of the parties in this case. However, consistent with the decision in the 420 docket, the Commission would not consider imputation of revenue to automatically be applied on a percentage basis to any discount contracts. It found that imputation arguments must be based on prudence and must be based on the particular facts of each discount agreement. In Order No. 9, it went on to rule that when UC’s discounts were entered into they were either special contracts or in compliance with Commission approved tariffs. By statute, the rates charged under these agreements were prima facie reasonable. The time to challenge any special contracts was when they were reviewed by the Commission and, thus, CURB’S challenge was untimely. As to the discount contracts, the Commission found it would be inconsistent with legal principles to force UC to comply with the 420 orders at this time. Under the applicable tariff s, UC was not obligated to defend each agreement, and, thus, it was CURB’S burden to overcome the presumption of reasonableness. It went on to note that the manner of reviewing discount agreements as provided in the 420 docket was a change from prior practice, and it could not apply those standards retroactively.
K.S.A. 66-1,207, which states that all grants of power and authority and jurisdiction herein made to the Commission shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of the Natural Gas Public Utilities Act, K.S.A. 66-1,200 et seq., are specifically conferred upon the Commission, appears to authorize the Commission to make its 420 order prospective only. We conclude the Commission’s ruling was not arbitrary or capricious and was within its statutory authority.
UTILICORP’S APPEAL
UC contends the Commission erred in rejecting its proposed cost of debt. It argues that the Commission’s final orders were not based upon substantial competent evidence, were an arbitrary departure from precedent, and arbitrarily and capriciously included certain foreign debt costs which had no relationship to Kansas.
John Dunn, an economist who testified on behalf of UC, testified that UC supplied long-term debt to divisions based on need and request and that debt is assigned to the division for the life of the issue. Once the assignment is made, that long-term debt becomes part of the division’s permanent capital and is not reallocated or used in financing other divisions unless and until the division no longer needs the debt. It is undisputed PNG and KPS receive all of their capital from UC.
Dunn testified this method was more accurate than the consolidated approach because the consolidated approach bears no substantial relationship to any of the particular individual divisions of the utility. He also stated that the individual division capitalization concept is the generally accepted practice in financial markets, banking, and academia and that using the consolidated approach would call into question the management and operating abilities of the company.
According to Dunn, in order for the consolidated capital structure to have practical merit, all the dollars reflected in the consolidated capital structure would have to flow into UC’s treasury and be available to finance any of UC’s activities. Dunn testified that, in reality, not all the dollars reflected in the consolidated capital structure flow into UC’s coffers. For example, he described how Aquila was not wholly owned by UC and, by Securities and Exchange Commission rules, the capital of Aquila cannot be used by UC as it sees fit. Also, UC is carrying capital on its books which reflects debt that was used to finance activities in New Zealand, Australia, and Canada, and, by the terms of the debt instruments or by statutes, the proceeds could not be used anywhere else. According to Dunn, the result is that this capital is not available to finance any operations in Kansas or anywhere else in the United States. Therefore, he asserted that the foreign debt, the debt issued by other entities that UC guaranteed, and debt issued by entities which UC did not guarantee, should not be included in UC’s cost of debt for this case. In his opinion, the use of foreign debt in UC’s Kansas cost of capital could subject Kansas ratepayers to adverse fluctuations in foreign debt markets. The total long-term debt on UC’s books as of December 31,1998, was $1,624,600,000. Of that amount, $596,400,000 was tied up in international issues.
Finally, according to Dunn, the use of division allocation provides management and regulators a historical tool for judging performance. He stated such an allocation holds the cost of debt and equity for each division to a level that is related to that division’s activities and not related to the overall activities of UC, thus, giving UC’s divisions the lowest possible cost of capital. At the technical hearing, Dunn testified that UC had used this debt allocation method since 1986 when UC bought PNG. However, on cross-examination, Dunn conceded debt allocated to PNG is not legally restricted to finance Kansas operations. He also testified PNG’s cost of long-term debt at the end of the test year was 8.63%.
Andrea Crane, vice president of The Columbia Group, Inc., testified on behalf of CURB. Columbia is a consulting firm specializing in utility regulation. She testified that all of the capital used in the company’s gas operations is received from UC. UC obtains the debt on the open market and allocates it among the subsidiaries and divisions. In allocating the capital, UC first determines the targeted capital structure for each business entity and then allocates the available capital accordingly. According to Crane, this methodology results in a somewhat arbitrary assignment of certain debt issuances to each business unit. Therefore, using this methodology, the cost of debt for the regulated utility is affected by the manner in which UC assigns the debt. In her opinion, this procedure did not result in a cost of debt that was reflective of the underlying utility operations, the industry, or the underlying capital costs of the public utility. Since UC was the source of all the debt, she recommended using the overall UC embedded (consolidated) cost of debt.
Adam Gatewood, a senior financial analyst with the Commission, testified there was no evidence that the cashflow from PNG operations is dedicated solely to the specific debt issues allocated to PNG by UC. Rather, as a division, cashflow from PNG returns to UC to cover UC’s obligations. He recommended allowing UC a cost of debt of 7.83%.
Gatewood, when questioned about payments from UC’s foreign debt not flowing back to the UC coffers in the United States, pointed out that similarly, no UC funds would need to be supplied from United States operations to service that debt. Thus, the debt was a benefit to the total UC operation, both foreign and domestic. The combined interest rate for the foreign debt was 7.28%. According to Gatewood, given that UC is continually retiring and reissuing debt, without any formal ties to Kansas operations, it is very subjective of UC to assign any specific debt obligations to Kansas.
UC has the burden to prove the invalidity of the Commission’s determination. See K.S.A. 77-621(a)(l). Rates fixed by the Commission are prima facie reasonable until changed or modified by the Commission or by court order, and the utility has the burden of proving the reasonableness of any proposed change in arriving at an increased rate. Southwestern Bell Tel. Co., 4 Kan. App. 2d 44, Syl. ¶ 4.
The Commission rejected UC’s division allocation methodology finding that PNG does not issue its own debt, but that PNG receives all its debt via UC. It also found the manner in which UC allocates debt to PNG is somewhat arbitrary and, therefore, rejected UC’s methodology in favor of Staff s proposal to use UC’s total cost of embedded cost of debt. Similar to its finding that CURB did not prove any discount agreements unreasonable, the Commission essentially found that UC did not sustain its burden to prove that its position was sound. This was a negative finding. Absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice, this court will not disturb the Commission’s order. Kansas Pipeline Partnership, 24 Kan. App. 2d at 52.
The Commission heard testimony from witnesses from UC, CURB, and Staff. No one disputed UC’s evidence concerning the various classes or groups of debt carried on UC’s books. UC admitted the debt allocated under its methodology was not legally restricted to Kansas operations and, other than UC’s decision, bore no relationship to Kansas operations. All debt utilized by PNG and KPS was obtained through UC, which procured the debt on the open market without reference to Kansas activities. In the final analysis, there were two or three valid methods for determining UC’s cost of debt in this hearing, and the Commission, after hearing all the evidence and opinion testimony, chose the method it believed most appropriate.
UC also argues the Commission’s action was arbitrary and capricious because the agency ignored its own established policy. According to UC, the Commission has consistently, in prior rate cases, held that the Kansas cost of debt as computed by UC was relevant for determining the appropriate rate of return for providing gas to Kansas customers. This argument was not presented in UC’s motion to reconsider and is, therefore, not subject to consideration upon appeal. “Any ground not set forth in the application for rehearing cannot be relied upon in judicial review proceedings.” Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, 526, 644 P.2d 999, rev. denied 231 Kan. 801 (1982).
Even if we were to consider UC’s claim, there is nothing in the record on appeal to substantiate the claim. John Dunn did testify that UC’s divisional methodology had been reviewed in prior rate cases before various state commissions including Kansas. He went on to say that it had been adopted in most of the states. This falls far short of evidence that the Commission had specifically approved of the divisional appropriation method in prior Kansas cases.
Finally, UC claims that the Commission erred in ruling the cost of debt in Kansas was irrelevant. The record does not support this claim. Further, UC presented no evidence on what the cost of debt was in Kansas. It only presented evidence of what the cost of debt was considering those debt issues UC allocated to Kansas. There was no evidence presented concerning what a similarly situated Kansas utility could obtain in the debt market. Thus, this issue fails.
The sum total of UC’s claims are that the Commission disregarded undisputed evidence and that its decision was arbitrary and capricious. A review of the record does not support this assertion. The Commission considered all of the evidence presented and found UC’s proposed allocation wanting for purposes of establishing fair and reasonable rates within Kansas. We conclude the Commission’s decision was based upon substantial competent evidence and was not arbitrary or capricious.
CONCLUSION
For all of the above stated reasons, we conclude the relief sought by CURB and UC should be denied. The final orders of the Commission are affirmed.
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Knudson, J.:
The State brings this interlocutory appeal challenging the district court’s pretrial ruling that under State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), other instances of sexual misconduct between the defendant Richard Bliss and the complaining witness, G.W., would not be admissible at trial. The district court reasoned that Crossman permits only evidence of prior acts and, alternatively, the prior acts were not sufficiently similar in nature to the underlying acts in the pending criminal complaint. We reverse and remand because Crossman does not preclude admission of the proffered evidence.
Bliss is charged with two counts of aggravated indecent liberties with G.W., contrary to K.S.A. 21-3504. The acts are alleged to have occurred in Count I between July 1,1998, and September 1,1998, and in Count II between November 1, 1998, and May 1, 1999. G.W. was 14 years old at the time of the offenses. Prior to trial, the State presented a motion to admit evidence under K.S.A. 60-455, or as res gestae, or under Crossman. The district court denied the State’s motion. The State has only appealed the court’s adverse ruling regarding admissibility under Crossman.
Crossman was a direct appeal by the defendant with one issue being whether the district court had erred in allowing evidence of other instances of sexual misconduct to be introduced at trial. The Supreme Court, in upholding the decision of the district court, concluded:
“[I]n oases of crimes involving illicit sexual relations or acts between an adult and a child, evidence of prior acts of similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.” (Emphasis added.) 229 Kan. at 387.
With the above reasoning from Crossman clearly fixed in our minds, we turn next to the State’s proffer in this case.
Beginning in the summer of 1998, Bliss befriended G.W. Bliss and G.W. began spending more time together. Bliss began taking G.W. on trips and bought him a membership to a local athletic club where they would play racquetball together. Bliss also belonged to a hunting club in Linn County, Kansas, where he would periodically take G.W. to spend the night and go hunting. G.W. advised investigators that as his relationship with Bliss progressed, it became sexual.
During late spring and fall of 1998, Bliss would give G.W. pornographic magazines and would watch pornographic movies with G.W. at Bliss’ residence. During the movies, Bliss would remove his clothing and masturbate, encouraging G.W. to do the same. G.W. and Bliss then masturbated while they watched movies. This type of conduct continued until, on at least two but probably more occasions, Bliss would masturbate G.W. and G.W. would masturbate Bliss.
In the spring of 1999, Bliss arranged for G.W. to have sex with a prostitute in Kansas City, Kansas. G.W. told investigators that Bliss took him to the Days Inn Motel across from the KU Medical Center and bought a room. A short time later, a prostitute arrived and proceeded to have sex with both G.W. and Bliss. This incident has been confirmed by the Kansas City, Kansas Police Department. Records at the Days Inn show Bliss had checked into the motel on March 11 and March 12, 1999. A motel worker recognized Bliss and stated that he sometimes stayed at the Days Inn twice a week. Another employee of the Days Inn stated Bliss has been coming to the motel for years, always accompanied by young boys described as being 15-16 years old. Officers confirmed Bliss had visited the motel on 36 occasions from March 1998 through June 1999. Bliss was charged in Wyandotte County, Kansas, based upon the above-stated information. At a preliminary hearing, the district court found probable cause and bound the case over for trial.
In addition to incidents at Bliss’ residence and at the Days Inn, G.W. would testify about incidents that occurred at the hunting and fishing club in Linn County, Kansas. In the spring of 1999, Bliss took G.W. and a friend to the hunting and fishing club. Once at the club, Bliss put a pornographic movie in the VCR and began to play it on television. Bliss told the boys they were going to play a card game where the loser had to remove an article of clothing. When they were all completely nude, Bliss told both of the boys to masturbate with him, which they did. Bliss then told the boys that masturbation was something he had done with his sons and his father had done with him.
Based upon the above proffer by the State, the district court denied admission of the evidence under K.S.A. 60-455, or res gestae, or Crossman. The court limited its ruling to admissibility of the evidence proffered. The court also stated if Bliss’ theory of defense was to substantially change or should an independent basis for admitting the other crimes evidence arise at trial, the court would reconsider admissibility. The State has filed a timely appeal, contending the district court misinterpreted and misapplied Cross-man in its ruling.
However, Bliss contends we should not exercise appellate jurisdiction because the district court’s ruling does not substantially impair the State’s prosecution.
The right to an appeal by the State is authorized by statute. If there is no statutory authority for an appeal, then it must be dismissed. State v. Nuessen, 23 Kan. App. 2d 456, 458, 933 P.2d 155 (1997). Appellate review of district court rulings on pretrial motions which may be determinative of the case is permitted by K. S .A. 22-3603. State v. Newman, 235 Kan. 29, 35, 680 P.2d 257 (1984). “Such interlocutory appeals are permitted ‘only where the pretrial order suppressing or excluding evidence places the State in a position where its ability to prosecute the case is substantially impaired,’ and the State should be prepared to make such a showing where jurisdiction is challenged by the appellee.” Nuessen, 23 Kan. App. 2d at 459. “In State v. Huninghake, 238 Kan. 155, 157, 708 P.2d 529 (1985), the court elaborated on the definition of ‘substantially impairs’ and held that ‘[suppression rulings which seriously impede, although they do not technically foreclose, prosecution can be appealed under K.S.A. 22-3603.’ ” State v. Berberich, 267 Kan. 215, 219, 978 P.2d 902 (1999).
In its ruling, the district court noted the importance of the evidence to the State: “There is no doubt that the proffered evidence would substantially aid the State in estabhshing a relationship between the parties, a continuing course of conduct, or in corroborating the testimony of the complaining witness.”
We agree. The proffered evidence is of substantial importance to the State’s case in chief. G.W.’s credibility will be at issue because there were no eyewitnesses to the events alleged to have occurred at Bliss’ house. The evidence would bolster G.W.’s credibility. There also would be corroborative testimony that Bliss took G.W. to a motel in Kansas City for the purpose of having illicit sexual relations. There would also be corroborative testimony of Bliss making sexual advances toward G.W. at the hunting lodge in Linn County. Further, this evidence could aid in estabhshing a course of conduct between the parties. We conclude suppression of the proffered evidence substantially impairs the State’s ability to prosecute its case in chief. Consequently, appellate review of the district court’s order is appropriate.
The district court ruled the proffered evidence was inadmissible under Crossman because whether the proffered acts occurred prior to the acts charged is uncertain. The court found the cases which have followed Crossman have also used the term “prior” and stated it was bound by that language. Evidentiary rulings are normally within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). To resolve this particular issue, however, this court is required to interpret the law as stated in Crossman. Questions of law are subject to unlimited. review. State v. Rome, 269 Kan. 47, 50, 5 P.3d 515 (2000).
The discussion in Crossman did not focus on the specific testimony of the victim about prior sexual encounters with defendant. It focused on whether the testimony was offered for the purpose of establishing the relationship between the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness. 229 Kan. at 385-87. In fact, the victim in Crossman testified about other sexual acts between herself and defendant in general terms as opposed to specific accounts of dates, times, and places. Further, the Cross-man court felt it important to include in its discussion a reference to 22A C.J.S., Criminal Law § 691 (31), p. 880 (1961), which states in part: “ ‘[Ejvidence of other similar acts with the same child is admissible, whether such other acts occurred before or after the act charged ... to show the relationship and familiarity of the parties, accused’s intent, and to corroborate the testimony of the prosecuting witness as to the act charged.’ ” (Emphasis added.) 229 Kan. at 386-87.
K.S.A. 60-455, much like the Corpus Juris Secundum annotation previously cited, also does not distinguish between prior and subsequent acts. To do so would lead to illogical results. In a case such as this, where acts are alleged to have occurred in different counties, one county would be able to use evidence of other acts in its prosecution, assuming the evidence is otherwise admissible, while the other county would not, solely based upon when each act took place. This position is also bolstered by the fact that children often forget exact times and dates certain instances may have occurred.
Clearly, there is no logical basis to treat acts which happened subsequent to the complained-of act differently than those which happened prior to the complained-of act for Crossman-type purposes. The district court erred on this limited issue in ruling the proffered evidence inadmissible due solely to the uncertainty with regard to the date different events allegedly occurred.
The district court also found the proffered evidence inadmissible under Crossman because the acts were not sufficiently similar in nature to the criminal acts now charged against Bliss. The State contends this was also an erroneous reason to exclude the evidence. Upon this subissue, we must consider whether the district court abused its sound judicial discretion. See State v. Sexton, 256 Kan. 344, Syl. ¶ 2, 886 P.2d 811 (1994).
In State v. Green, 232 Kan. 116, 121, 652 P.2d 697 (1982), the Supreme Court held evidence of a discordant marital relationship was admissible in the defendant’s trial for murder of his wife independent of K.S.A. 60-455 and without a limiting instruction. The evidence was admitted to show the relationship of the parties, not that the prior acts were of a similar nature.
In State v. Moore, 242 Kan. 1, 8-9, 748 P.2d 833 (1987), the Supreme Court further explained its holdings in Green and Cross-man, stating:
“Green was based upon the high degree of relevance that the evidence had to corroborate the testimony of a witness as to the act charged, to establish the relationship of the parties, or to establish the existence of a continuing course of conduct between the parties. [Citation omitted.] As in Crossman, a key part of the defense in the present case was an attack upon the credibility of the victim’s testimony. The Crossman court based its ruling, not upon the failure of the defendant to request a limiting instruction, but upon its finding that ‘[t]he entire complex family relationship, including prior sexual encounters between Lori and defendant, is highly relevant in this case’ to the credibility of the victim’s testimony. [Citation omitted.]”
In this case, we believe the district court erred, unduly emphasizing the lack of similarity of the prior acts with the underlying acts of the crime charged while overlooking the relevancy of the evidence under Crossman. The evidence tends to establish Bliss’ continuing wrongful sexual relationship with a minor and corroborates the child’s testimony as to the acts charged. Thus, unlike K.S.A. 60-455 evidence to establish identity, the general nature of the Wyandotte and Linn County incidents was similar for the purpose of admission under Crossman.
Accordingly, we reverse the district court and remand for further proceedings consistent with our opinion. | [
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Green, J.:
Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from a judgment recovered by its insured, Daryl Bugner, under the uninsured motorist provision of his truck insurance policy. Erin Lathen, an uninsured motorist, sued Daryl for personal injuries she suffered when she drove her car into his cow and later into his truck. Daryl, who also was injured in the collision with Erin’s car, later sued Farm Bureau in a separate action. In Erin’s suit against Daryl, the jury determined that Daryl was 65% at fault, that his brother, Darran Bugner, was 25% at fault, and that Erin was 10% at fault in causing the accident. Nevertheless, the jury in Daryl’s suit against Farm Bureau determined that Erin was 100% at fault in causing the accident. On appeal, we must determine whether Daryl is bound by the jury’s determination of the comparative fault of the parties in Erin’s suit. We reverse.
When the Sedgwick County sheriff s department received a call that a cow was on the highway, the department sent a deputy to remove the cow from the highway. Darran and the deputy guided the cow into a field. After the deputy left, the cow returned to the highway.
Daiyl arrived to help his brother. Daryl and Darran used their trucks to drive the cow alongside the highway. The trucks had their emergency flashers on. The cow was in the middle of the highway when Daryl saw Erins car approaching at a high rate of speed. He attempted to warn her of the cow by flashing his headlights on and off.
Darran was parked on the east shoulder of the northbound lanes of the highway trying to drive the cow off the roadway. He too flashed his lights, but Erin did not slow down. Erin struck the cow, veered off the road, and hit Daryl’s truck, injuring Daryl. There was no indication Erin attempted to stop or to avoid either the cow or the truck. An expert testified that Erin was travelling between 51 and 53 miles per hour when she struck the cow. Erin testified she was looking at Darran’s truck on the side of the road when she struck the cow. Although she stated she took her foot off the gas, she failed to apply her brakes until just before striking the cow.
Erin was injured in the collisions. Erin sued Daryl, and Daiyl later sued his insurance company, Farm Bureau, under the uninsured motorist provision of his truck insurance policy. The cases were consolidated for discovery.
When Farm Bureau moved to consolidate the cases for trial, all the other parties objected to the consolidation. A lengthy hearing was held on the motion to consolidate. The trial court denied the motion to consolidate and ordered the Lathen v. Bugner case be tried before the Bugner v. Farm Bureau case.
At the pretrial conference, Daiyl offered to withdraw his counterclaim against Erin if the parties would agree that the finding of fault in the Lathen v. Bugner case would not be binding in the Bugner v. Farm Bureau case. All parties except Farm Bureau agreed. Farm Bureau objected, claiming that the trial court previously determined that the liability determinations of the first trial would be binding on the second trial.
Nevertheless, the court determined that Farm Bureau did not have standing to make the objection because it was not a party in the Lathan v. Bugner case. As a result, the final pretrial order stated: “The findings in this case are binding only on the parties in this case for the issues in this case and these findings do not bind any parties herein in any other action.” Daryl later dismissed his counterclaim without prejudice. In the Lathan v. Bugner case, the jury found Erin 10% at fault, Darran Bugner 25% at fault, and Daryl Bugner 65% at fault.
Arguing the rule that “all issues in a lawsuit should be tried in one trial,” Farm Bureau moved for judgment on the pleadings in the Bugner v. Farm Bureau case. In denying the motion, the trial court stated:
“I agree with Judge Malone. But, that’s not for me to decide. If Judge Malone’s order was wrong and it should have been consolidated, that’s a problem for the Court of Appeals. If Judge Anderson’s order was wrong, that’s a problem for the Court of Appeals. And I’m not gonna substitute my judgment for theirs.
“So the motion for judgment on the pleadings will be denied.”
The jury later determined that Erin was 100% at fault and awarded Daryl damages of $91,152.25.
Farm Bureau argues that once a jury had returned a verdict indicating the comparative fault of the parties, any new proceedings are impermissible under Kansas law. This is a question of law involving statutory interpretation and our review is unlimited. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998). 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. KPERS v Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
The issue presented to us is whether the trial court’s failure to consolidate the previously mentioned cases or its failure to hold that the comparative fault determination in the Lathen v. Bugner case would be binding in the Bugner v. Farm Bureau case is violative of the one-trial rule.
Our Supreme Court pointed out in Guillan v. Watts, 249 Kan. 606, 610, 822 P.2d 582 (1991), that the legislature in adopting comparative negligence intended the parties to
“fully and finally litigate in a single action all causes of actions and claims for damages arising out of any act of negligence, but it was never the legislature’s intent or tire intent of the courts to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault.”
Guillan reiterated Kansas public policy that all issues in a lawsuit should be tried in one trial.
Nevertheless, Daryl argues that his separate suit against Farm Bureau is permitted under Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973). In considering what is now K.S.A. 40-284(a) and in determining that an insured with an uninsured motorist claim has three choices, the Winner court stated:
“He may file an action directly against his uninsured motorist liability carrier without joining the uninsured motorist as a party defendant; he may file an action joining both the insurer and the uninsured motorist as party defendants; or, he may file an action against the uninsured motorist alone without joining the insurer as a party defendant. In each of these options he may litigate all of the issues of liability and damages [citation omitted].” 211 Kan. at 65.
We read the “or” in the above three choices as exclusive (either A, B, or C, but not all three or a combination thereof). We base this conclusion on the court’s last sentence of the quotation: “In each of these options he may litigate all of the issues of liability and damages.” (Emphasis added.) This sentence indicates that the three options are alternative, not cumulative.
Although Daryl did not initiate the suit against the tortfeasor, Erin, he was obligated under K.S.A. 60-213(a) to file a counterclaim against Erin once he was sued by Erin. Because Daryl’s claim against Erin arose out of the same accident that resulted in Erin’s claim against Daryl, this made Daryl’s counterclaim compulsory. Although Daryl initially filed a counterclaim against Erin, he later dismissed it. Nevertheless, Daryl was required to maintain his counterclaim against Erin or be barred from later bringing an independent action on this claim. See Stock v. Nordhus, 216 Kan. 779, 781, 533 P.2d 1324 (1975).
In effect, Erin, the tortfeasor, selected the option that Daryl could have used to pursue his uninsured motorist cláim. Under Winner, this would have been the third option described by the court.
The Winner court stated that “[m]ultiple litigation is never desirable.” 211 Kan. at 65. Moreover, our Supreme Court in Haas v. Freeman, 236 Kan. 677, 682, 693 P.2d 1199 (1985), stated that “all issues in a lawsuit should be tried in one trial.” See Scott, Unin sured/Underinsured Motorist Insurance: A Sleeping Giant, 63 J.K.B.A. 28, 36-37 (May 1994); see also Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127 (1981); Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978) (discussing the need to bring all causes of action in one lawsuit).
Because all of the issues of liability and damages concerning Daryl's uninsured motorist claim could have been litigated in the Lathen v. Bugner suit, Daryl is precluded from having a second opportunity to litigate percentages of causal negligence. As a result, we determine that Daryl is bound by the percentages of comparative fault determined in the Lathen v. Bugner suit.
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Rulon, J.:
Plaintiffs J.T. Hines, Inc., and John T. Hines, Jr., d/ b/a J.T. Hines Home Improvement, challenge the district court’s refusal to quash the subpoena issued by the defendant, the State of Kansas ex rel. Richard E. Beyer, Secretary of Human Resources. We reverse and remand for further proceedings.
On August 24, 1999, defendant issued subpoenas to officers and the owner of J.T. Hines Home Improvement, a duly incorporated general contractor specializing in residential and commercial roofing. The subpoenas requested business records and tax returns for the corporation to assist the defendant in determining whether certain individuals engaged in working with the corporation were independent subcontractors as opposed to employees.
The challenged subpoena reads as follows:
“You are hereby commanded to appear and testify before Marvin Tangney, State Auditor, at the UI Tax Office, 518 N. Washington, Hutchinson, Kansas on September 8,1999 at 8:30 a.m. You are also commanded to bring with you and produce for inspection and/or copying the following documents and records: Original entry documents to include sales commission work sheets, all instate and out-of-state office logs, all pay sheets, all W-9’s, all 1099’s, all W-2’s for 1998, all telephone bills for all locations in state or out of state, all canceled checks from all corporate accounts in all states, all corporate tax work to date, all contracts from homeowners paid in cash or by check, copies of all invoices for company printing and samples of printed material, liability and workman’s compensation insurance binders for all sub-contractors used in all states, all contracts for hire between company and all independent contractors, all non-compete contracts for third quarter ending September 30, 1998, fourth quarter ending December 31, 1998, first quarter ending March 31, 1999 and second quarter ending June 30, 1999 to determine employer/employee relationships.”
The plaintiffs filed a motion to quash the challenged subpoena with the district court of Reno County. After a hearing, the court refused to quash or amend the subpoena. Later, the plaintiffs moved the court for a temporary injunction pending appeal. Ultimately, the court held a hearing and granted the temporary injunction during the pendency of the appeal. The plaintiffs filed a timely notice of appeal of the court’s refusal to grant the motion to quash the subpoena.
Defendant contends the district court has no jurisdiction to quash an administrative subpoena until the plaintiffs have exhausted any administrative remedies available. Jurisdiction is a matter of law over which this court has unlimited review. See State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999).
K.S.A. 44-714(g) provides that the Secretary of Human Resources or a duly authorized representative may issue subpoenas to compel the production of witnesses or documents needed to settle a disputed claim or to administer employment security law. However, K.S.A. 44-714(i) clearly does not extend the power of enforcing an administrative subpoena to the Department of Human Resources, but reserves the enforcement of the subpoena exclusively to the state judiciary.
Although this action involves a motion to quash rather than a motion to compel discovery, the plaintiffs seek judicial determination of the enforceability of the agency-issued subpoena. Because only the courts may enforce a subpoena, no administrative remedy is available to the plaintiffs. This action was properly filed in district court.
The plaintiffs seek to quash or to modify the subpoena to limit its scope to documents relating only to business transacted in Kansas. During arguments on the motion, the plaintiffs questioned the relevancy of out-of-state documentation for determining whether they were complying with Kansas employment security law.
Kansas does not require the stringent level of relevancy of a civil or criminal subpoena in the administrative setting. Rather, where there is a possibility the subpoena may produce relevant documents, the courts should liberally construe K.S.A. 44-714 to permit the agency to adequately perform its investigatory duties. See State ex rel. Wolast v. Schurle, 11 Kan. App. 2d 390, 394, 722 P.2d 585 (1986). However, even an administrative subpoena must satisfy three requirements: (1) The inquiry must be one that the agency is authorized to make, (2) the demand must not be too indefinite, and (3) the information sought must be reasonably relevant to the purpose of the inquiry. Schurle, 11 Kan. App. 2d at 394. If the requirements are to have any meaning, the agency, at a minimum, must be required to explain how an inquiry might be relevant when such an inquiry is challenged. Here, the defendant made no assertion on the record that the out-of-state information was indeed relevant in some manner.
Briefly said, the district court erred in refusing to quash or order modification of the challenged subpoena without requiring the defendant to explain the relevance of the out-of-state documents challenged by the plaintiffs.
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Beier, J.:
This appeal by the respondent-appellant school district and its insurance carrier seeks reversal of a workers compensation award to claimant-appellee Kenneth Hanson for permanent impairment of the function of his right knee. We affirm.
Hanson, who coached track for respondent Logan U.S.D. 326, claimed he injured his knee on May 19, 1995, while unloading supplies at a track meet. Hanson said that his knee popped when he stepped down from a school bus, that he immediately had trouble walking, and that he had swelling and other problems thereafter.
Hanson did not seek treatment for his knee until July 19, 1995. Dr. Gary Harbin, who had performed arthroscopic surgery on the knee in 1989, performed another surgery in August 1995. He removed a bone spur and observed moderately advanced arthritis and bone-on-bone contact consistent with his 1989 observations. Harbin testified that Hanson would have ultimately needed a knee replacement but that the work-related injury could have accelerated the need. Hanson experienced less pain and improved mobility after the bone spur surgery.
Hanson returned to work in the fall of 1995 and continued to coach. He saw Dr. Gregory Woods in February 1996, complaining of stiffness and difficulty straightening his knee and an achy, nonspecific pain. X-rays showed severe degenerative arthritis with bone rubbing on bone. Woods considered the complaints consistent with the degenerative condition, possibly exacerbated by the May 19, 1995, injury. He said Hanson would have had “a fair degree of impairment” before the work-related injury, but he could not judge how much because he had not seen him at that time. Woods recommended a knee replacement to reheve Hanson’s pain. Hanson underwent knee replacement surgery in June 1996.
The administrative law judge (ALJ) ordered an independent medical examination by Dr. Kenneth Jansson. In Jansson’s opinion, Hanson’s waxing and waning of symptoms after the work-related injury were more consistent with a chronic condition than with an acute injury. Jansson assigned an impairment rating of 10 percent because of Hanson’s pain. He attributed 95 percent of the impairment to the preexisting condition.
Based upon an examination of Hanson, his medical history, and his records, Dr. Daniel Zimmerman testified that, in his opinion, the May 1995 incident permanently aggravated the preexisting degenerative change in Hanson’s knee. He rated Hanson’s impairment of function at 41 percent after Hanson underwent a knee replacement. He believed Hanson would have had some impairment of function prior to the work-related injury but could not quantify it.
The ALJ found that Hanson suffered a personal injury by accident arising out of and in the course of his employment that accelerated his need for knee replacement surgery. The ALJ also found that Hanson suffered a 33.67 percent permanent partial disability of the right lower extremity. The Board modified the award to a 41 percent loss of use.
We review a workers compensation award in the light most favorable to the prevailing party to determine whether the Board’s findings are supported by substantial competent evidence. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 513, 949 P.2d 1149 (1997). Substantial competent evidence possesses something of substance and relevant consequence or furnishes a substantial basis in fact from which issues can reasonably be resolved. Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 26, 947 P.2d 1 (1997). We will not reweigh evidence or evaluate the credibility of witnesses. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 871, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996).
The parties do not dispute that, before his alleged work-related injury, Hanson had had several knee surgeries and suffered from a degenerative condition that would ultimately necessitate a total knee replacement. Respondent questions whether Hanson actually experienced injury on the date and under the circumstances alleged, and whether the amount of impairment attributed to the injury’s aggravation of his preexisting disability is correct.
The finding that Hanson suffered an accidental injury in the course of his employment on May 19, 1995, is supported by substantial competent evidence. Hanson testified that he felt his knee pop and that he had immediate pain and swelling. A claimant’s testimony alone is sufficient evidence of his own physical condition. See Graff v. Trans World Airlines, 267 Kan. 854, 863-64, 983 P.2d 258 (1999). Although respondent makes a compelling argument regarding Hanson’s delay in seeking medical treatment, Dr. Harbin’s testimony supports his patient’s position. Harbin testified that Hanson’s history subsequent to the alleged injury was consistent with an aggravation of his condition. We are not free to substitute our judgment of the credibility of the witnesses.
With regard to the amount of impairment attributed to the work-related injury’s aggravation of Hanson’s preexisting disability, we turn first to Woodward. In that case, the employee experienced aggravation of preexisting severe degenerative changes in his right knee as a result of an on-the-job injury to his left knee. Considering evidence that the knee would degenerate regardless of subsequent injury and that the injury could only hasten the process, the Board found that the aggravation of the right knee was compensable as a direct and natural result of the work-related injury to the left knee. 24 Kan. App. 2d at 512-13. This court affirmed the Board’s functional disability award for a bilateral injury, noting that the test is not whether the job-related activity or injury caused the condition but whether the job-related activity or injury aggravated or accelerated the condition. 24 Kan. App. 2d at 514.
When a work-related event causes aggravation of a preexisting condition, the employee is entitled to compensation for an increase in the amount of functional impairment. The controlling statute provides:
“The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to tire extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” K.S.A. 1999 Supp. 44-501(c).
The statute clearly distinguishes between a preexisting condition and a preexisting disability. There is no evidence of the amount of Hanson’s preexisting disability, and there is some evidence that Hanson had no impairment prior to the May 19,1995, injury. Hanson had not sought treatment for his knee from Dr. Harbin since the 1989 surgery, and Hanson testified his activities were not restricted because of his knee until after the May 1995 injury. There was no amount of impairment for the Board to deduct from the total impairment to ensure that respondent was excused from covering the preexisting portion.
We agree with Hanson that the burden of proving his preexisting impairment as a deduction from total impairment belonged to respondent once Hanson had come forward with evidence of aggravation. We think this type of burden shifting pattern is implicit in Woodward’s holding that, where a work-related injury causes aggravation or acceleration of a preexisting condition, compensation is allowed for the entire disability without apportionment of causation. 24 Kan. App. 2d at 514. Hence, the claimant need only show aggravation or acceleration of the condition and a causal relationship between the work-related injury and the disability. Once the claimant shows increased disability, compensation is for the full amount of disability less any amount of preexisting impairment established by the respondent. This is also pragmatic. Only the respondent has an interest in establishing the amount of preexisting impairment, and the respondent would be as foolish to rely on the claimant to prove it as the claimant would be to do so.
Because the record lacked any evidence of the amount of preexisting disability or impairment, the Board had no choice but to deduct zero from the total.
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Rulon, J.:
Defendant Larry O. Daniels appeals from his jury convictions of possession of cocaine, felony possession of drug paraphernalia, and misdemeanor possession of drug paraphernalia and from the sentence imposed for those convictions. We affirm defendant’s convictions but remand for resentencing.
In March 1998, Atchison police officers executed a search warrant on a private residence. The residence belonged to Everline Hanmont and her mother. The search warrant contained the names of five individuals the police anticipated being at the residence. The defendant was one of the listed individuals.
Officer Cary Stone and other members of the police response team arrived at the residence and proceeded to the back door. Defendant opened the door, saw the police, and then shut the door, remaining inside the residence. The police then entered the residence by force.
Once inside, Stone spoke to defendant. Defendant denied being involved in drugs and told Stone the officers would not find any illegal substances in the house. Stone told defendant that if anything was found, the officers would have to assume such items belonged to Hanmont. Officers located a spoon with a burnt bottom in the kitchen sink, a bag containing a knife with cocaine res idue and a baby food jar fashioned into a crack pipe, and a box of baking soda. Defendant admitted to smoking crack cocaine shortly before the officers arrived.
Motion to Suppress
Defendant filed a pretrial motion to suppress his incriminating admissions, asserting such statements were not made voluntarily. Defendant further argued the search warrant was legally invalid. The district court found defendant did not have standing to contest the search and that defendant’s statements were made voluntarily.
During defendant’s trial defendant did not object to Stone’s testimony regarding statements defendant made or regarding the physical evidence until the State rested its case. Important to our consideration is the fact that defendant only raised an objection at the same time defendant made a motion to dismiss for lack of evidence.
‘When a pretrial motion to suppress has been denied, the moving party must object to introduction of the evidence at trial in order to preserve the issue for appeal.” State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999). Jones held that only an objection raised at the time the evidence is offered satisfies the contemporaneous objection requirement. 267 Kan. at 637-38. An objection lodged at the close of the State’s case is not contemporaneous. Based upon this record we conclude defendant did not properly preserve either of these issues for appeal. Even so, we have considered defendant’s claims and conclude they have no legal merit.
Unanimous Verdict
Next, the defendant claims the district court erred by failing to instruct the jury its verdict must be unanimous as to the facts which constituted possession of cocaine and drug paraphernalia.
Defendant claims this case is a multiple acts case.
“‘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 jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of diem must agree that the same underlying criminal act has been proved beyond a reasonable doubt.’ ” State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
Defendant contends the State charged him with possession of drug paraphernalia and cocaine but introduced evidence of numerous items the State claimed represented paraphernalia and at least two instances of cocaine residue. Defendant asserts the jury should have been instructed it had to unanimously find which items constituted drug paraphernalia.
Defendant was charged with one count of possession of cocaine and two counts of possession of drug paraphernalia. The paraphernalia charges were for violations of K.S.A. 1999 Supp. 65-4152(a)(2) and (3). K.S.A. 1999 Supp. 65-4l52(a)(2) prohibits possessing with the intent to use “any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act.” K.S.A. 1999 Supp. 65-4152(a)(3) prohibits possessing with the intent to use “any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell, or distribute a controlled substance in violation of the uniform controlled substances act.”
Stone testified defendant admitted to “rocking up” cocaine before the officers arrived. According to Stone, “rocldng up” is the process of converting powder cocaine into crack cocaine, and such procedure involves a baking soda-cocaine-water mixture. Stone testified the baking soda, knife, and spoon would be used in the production of crack cocaine. Stone further testified regarding the modification and use of the baby food jar as a crack pipe. According to Stone, the jar would be used to ingest or inhale the cocaine.
The trial court instructed the jury separately on the evidence of possession of paraphernalia to produce crack cocaine and paraphernalia to use crack cocaine. Instruction No. 9 instructed the jury must find defendant possessed with the intent to use any drug paraphernalia and “[a]s used in this Instruction, ‘drug paraphernalia’ means an item used to compound, convert, produce, process, prepare, pack, repack, sell, or distribute a controlled sub stance. . . .” Instruction No. 10 provided the jury must find defendant possessed with the intent to use drug paraphernalia and “[a]s used in this Instruction, ‘drug paraphernalia’ means an item used to contain, ingest, inhale, or introduce a controlled substance into the human body in violation of the Uniform Controlled Substances Act.”
The State introduced evidence of a group of items used to produce crack cocaine and charged defendant accordingly. The jury was instructed on this charge. The State further introduced evidence of a pipe used to ingest crack cocaine and had charged defendant accordingly. The jury was instructed on this charge. There is no multiple acts controversy.
Defendant further argues there is no assurance of jury unanimity on the charge of possession of cocaine because the State introduced two items which contained cocaine residue. Defendant testified the knife contained cocaine residue. Kamala Hinnergardt, a KBI forensic scientist, testified both the knife and the baby food jar contained cocaine residue.
After an appellate court establishes the juiy was presented with evidence of multiple acts, the first step is to determine whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presented different defenses to separate sets of facts or when the court’s instruction are ambiguous and tend to shift the legal theory from a single incident to separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a subsequent criminal act is motivated by fresh impulse. If no jury confusion is shown, we can then apply a harmless error analysis to determine if the error was harmless beyond a reasonable doubt with respect to all acts.
Here, the knife and baby food jar were found in the same bag at the same time. Defendant’s defense was that none of the items belonged to him. The trial court’s instructions did not specify a particular act which was required to constitute possession, but the record does not indicate the possession of the knife and baby food jar were legally separate acts.
Similarly, the individual acts of possessing the knife and jar did not occur at different times and did not appear to be motivated by a “fresh impulse.” One item was used to produce crack cocaine and the other was used to consume crack cocaine. Stone testified defendant admitted to doing both acts just prior to the officers’ arrival at the scene. Consequently, we conclude defendant’s actions were not factually separate.
Applying the harmless error analysis to this case, it is unlikely the jury would have concluded defendant possessed one of the items without simultaneously possessing the other. There is no reasonable likelihood of jury confusion and no multiple acts issue arises.
Prior Bad Act
Next, the defendant contends the district court erred when instructing the jury regarding testimony concerning defendant’s prior bad act.
When reviewing challenges to juxy instructions, a reviewing court is required to consider all the instructions, read together as a whole. State v. Sims, 264 Kan. 506, 514, 956 P.2d 1337 (1998). “If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” 264 Kan. at 514.
The district court allowed officer Stone to testify the only other time Stone had encountered someone using a baby food jar as a crack pipe was several years earlier in another case involving this defendant. At the conclusion of Stone’s testimony, the trial court gave the following instruction to the jury:
“The Court has permitted the State to introduce evidence with regards to the baby food jar and tire prior incident concerning the baby food jar with [defendant].
“This evidence that has been admitted would tend to prove that the defendant committed a crime other than the present crime charged.
“This evidence may be considered solely for the purpose of proving tire defendant’s intent or knowledge with respect to the second possession with intent to use drug paraphernalia charge.
“That is the charge where drug paraphernalia is defined as an item used to contain, ingest, inhale, or introduce a controlled substance into the human body.
“This evidence should not be considered by you for any other purpose.”
The instruction given at the close of the trial regarding defendant’s prior bad act was more general and was as follows: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant’s intent or knowledge.” Defendant now argues this later instruction allowed the jury to believe it was entitled to use the evidence of the prior incident with regard to any of the present charges against defendant.
Strictly speaking, defendant failed to preserve this issue for appeal. The record shows the parties and the district court engaged in a lengthy discussion regarding the jury instruction in question, but defendant never objected to the instruction on the ground defendant now raises. A party may not assign as error the giving of an instruction unless the party objects to the instruction, “stating distinctly the matter to which the party objects and the grounds of the objection.” K.S.A. 1999 Supp. 22-3414(3). An objection is not required if the giving of the instruction is clearly erroneous. K.S.A. 1999 Supp. 22-3414(3).
Even considering this issue on its merits, the giving of the challenged instruction does not constitute reversible error. In light of the proper limiting instruction given when the testimony was elicited and reviewing the instructions as a whole, the instruction given at the end of the trial cannot be said to amount to reversible error.
Drug Paraphernalia
Next, defendant argues the district court erred in not giving an instruction under K.S.A. 65-4151, stating the factors the jury was to use in determining whether an object is drug paraphernalia. Defendant did not object to the omission of the instruction and such omission is not reversible error unless 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).
Defendant asserts the items confiscated by police officers were items a person might possess innocently at any time. Defendant claims that without the proper jiiry instruction, the jury may not know how to determine whether such objects were drug paraphernalia.
This record clearly demonstrates the items seized were drug paraphernalia. The knife contained cocaine residue and the baby food jar was modified to be used as a crack pipe. In addition, the two items were found in the same bag at the same time. There is no real likelihood the juiy was confused regarding the nature of the items and no real possibility a different verdict would have been returned had the instruction been given.
This issue has no legal merit.
The Enhanced Sentence
Finally, defendant claims the sentencing court erred in using his prior drug conviction to enhance his sentence for the present conviction. This issue involves interpretation of a statute and our scope of review is unlimited. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
Here, defendant was convicted of possession of cocaine in violation of K.S.A. 1999 Supp. 65-4160(a). This statute classifies the offense as a drug severity level 4 felony. K.S.A. 1999 Supp. 65-4160(b) states that if “any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony.” (Emphasis added.)
In this case, the sentencing journal entry listed defendant as having a previous conviction for possession of cocaine and classified his present offense as a drug severity level 2 felony. The only evidence of defendant’s previous conviction is an entry on defendant’s Kansas Criminal History Worksheet showing a conviction in 1996 for possession of cocaine contrary to K.S.A. 65-4161a. This entry presumably was referring to K.S.A. 1995 Supp. 65-4161(a), which addressed unlawful acts relating to the sale or distribution of drugs.
According to defendant, his prior conviction under a separate statute does not constitute a prior conviction under K.S.A. 1999 Supp. 65-4160 for the purpose of enhancement. Criminal statutes are to be construed in the accused’s favor and any reasonable doubt about the meaning of a statute is to be decided in the accused’s favor. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). “The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” 264 Kan. at 14.
The State argues possession of cocaine with intent to sell and possession of cocaine are similar offenses and the legislature meant to enhance the penalties for individuals convicted of both.
We find there are no Kansas cases addressing enhancement under K.S.A. 1999 Supp. 65-4160(b). We are convinced a strict reading of K.S.A. 1999 Supp. 65-4160(b) indicates a prior conviction for enhancement purposes would have to be for a violation of K.S.A. 1999 Supp. 65-4160(a). Otherwise, the legislature could have used language such as “under this chapter” or “under this article.” As such, we conclude the sentencing court erred when enhancing defendant’s sentence under K.S.A. 1999 Supp. 65-4160(b).
Defendant’s convictions are affirmed, his sentence is vacated, and the cause is remanded for resentencing consistent with this opinion. | [
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Pierron, J.:
Sean and Jodi Anne Porrini, the adoptive parents of J.J.M., appeal the district court’s order requiring them to reimburse Medicaid payments for prenatal care, delivery, and birth ofJ.J.M.
The facts are largely undisputed. The birth mother lived in Springfield, Missouri, where she attended college and became involved with drugs. She had periodic stays in jail and then participated in treatment programs. J.J.M. was conceived in March 1999 in Springfield. After the birth mother completed her treatment program, she moved to Johnson County, Kansas, to five with her sister.
On August 26, 1999, the birth mother moved to Topeka. In an affidavit, she stated that while in Topeka she registered with a temporary employment service, found an apartment, and applied for student aid at Washburn University. She indicated her goal in coming to Topeka was more than just to give birth; she wanted to remove herself from past detrimental associations.
On September 8, 1999, the birth mother applied for Medicaid. She made full disclosure of her adoption plan. Her application was approved and Medicaid paid for the prenatal care and delivery of JJM.
J.J.M. was bom on December 28, 1999,. and the petition for adoption was filed the next day. Contemporaneous with the petition, the consent of the birth mother and an accounting of consideration and disbursement were filed. The accounting detailed the Porrinis’ payment of attorney fees, legal expenses, living expenses for the birth mother, and also part of J.J.M.’s medical expenses. However, the accounting stated the birth mother’s medical expenses and the other part of J.J.M.’s medical expenses would be paid by Medicaid. The district court entered an order of temporary custody and the Porrinis returned to Pennsylvania with J.J.M.
On February 18, 2000, the district court conducted the final hearing on the decree of adoption and termination of the natural father’s parental rights. The court approved the decree of adoption. However, the court, sua sponte, entered the following order:
“Included in that is approval of their accounting, except that I see no reason why some part of this should be paid by taxpayer dollars, whether they come from Washington or Topeka, or however you want to look at it, whatever expenses involved that was paid by Medicaid should be reimbursed by these petitioners. And that will be included in the order.”
The Porrinis appeal only the district court’s order requiring them to reimburse Medicaid.
The Porrinis argue the district court lacked statutory authority to order reimbursement of Medicaid payments. They contend there is nothing in the Kansas Adoption and Relinquishment Act, K.S.A. 59-211 el seq., suggesting that the district court has the authority to alter the terms of an adoption contract to include payments not contemplated by the parties simply because the court could “see no reason why some part of this should be paid by taxpayer dollars.” We agree.
In Kansas, the terms and conditions of any consideration given to a birth mother in connection with an adoption are strictly controlled by statute. K.S.A. 59-2121 states as follows:
“(a) Except as otherwise authorized by law, no person shall request, receive, give or offer to give any consideration in connection with an adoption, or a placement for adoption, other than:
(1) Reasonable fees for legal and other professional services rendered in connection with the placement or adoption not to exceed customary fees for similar services by professionals of equivalent experience and reputation where the services are performed, except that fees for legal and other professional services as provided in this section performed outside the state shall not exceed customary fees for similar services when performed in the state of Kansas;
(2) reasonable fees in the state of Kansas of a licensed child-placing agency;
(3) actual and necessary expenses, based on expenses in the state of Kansas, incident to placement or to the adoption proceeding;
(4) actual medical expenses of the mother attributable to pregnancy and birth;
(5) actual medical expenses of the child; and
(6) reasonable living expenses of the mother which are incurred during or as a result of the pregnancy.
“(b) In an action for adoption, a detailed accounting of all consideration given, or to be given, and all disbursements made, or to be made, in connection with the adoption and the placement for adoption shall accompany the petition for adoption. Upon review of the accounting, the court shall disapprove any such consideration which the court determines to be unreasonable or in violation of this section and, to the extent necessary to comply with the provisions of this section, shall order reimbursement of any consideration already given in violation of this section.
“(c) Knowingly and intentionally receiving or accepting clearly excessive fees or expenses in violation of subsection (a) shall be a severity level 9, nonperson felony. Knowingly failing to list all consideration or disbursements as required by subsection (b) shall be a class B nonperson misdemeanor.”
The predecessor statute to K.S.A. 59-2121 (K.S.A. 1985 Supp. 59-2278c [repealed L. 1990, ch. 145, § 38]) was enacted in 1985 and is similar to the present statute in that it prohibited any consideration in an adoption proceeding except for the six exemptions quoted above. Both the 1985 statute and the present statute were aimed at controlling exorbitant adoption fees and expanding the district court’s role in insuring that adoptive parents do not pay more consideration to the birth mother than is permitted by the statute, ie. to prevent babies from being treated as a commodity. In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1994). The current statute criminalizes the receipt of any consideration not meeting one of the six exceptions and, even if one of the exceptions applies, receipt of such consideration is prohibited if the amount is unreasonable. State v. Clark, 16 Kan. App. 2d 552, 826 P.2d 925, rev. denied 250 Kan. 806 (1992).
There is no statutory authority or legal authority requiring adoptive parents to pay a birth mother’s medical expenses. However, pursuant tó K.S.A. 59-2121, the adoptive parents can agree to pay a birth mother’s medical expenses and the district court can allow payment of actual medical expenses of the birth mother attributable to pregnancy and birth.
Additionally, there is no reimbursement requirement in the federal Medicaid statutes and regulations which would demand the adoptive parents pay a birth mother’s expenses. Medicaid was originally enacted in 1965 as Title XIX of die Social Security Act, 42 U.S.C. 1396 et seq. (1994). The Second Circuit has described Medicaid as a “cooperative federal/state cost-sharing program designed to enable participating states to furnish medical assistance to persons whose income and resources are insufficient to meet the costs of necessary medical care and services.” DeJesus v. Perales, 770 F.2d 316, 318 (2d Cir. 1985), cert. denied 478 U.S. 1007 (1986). States that choose to participate in the Medicaid program are subject to the requirements of the applicable federal statutes and to the regulations promulgated by the Secretary of the Department of Health and Human Services pursuant thereto. See 42 U.S.C. 1396a (1994); 42 C.F.R. § 435.116 (2000).
The Secretary of the Department of Health and Human Services has set forth qualifications for pregnant women to receive, assistance with medical expenses and prenatal expenses associated with a pregnancy. 42 C.F.R. § 435.116 (2000) provides in part:
“(a) The agency must provide Medicaid to a pregnant woman whose pregnancy has been medically verified and who—
(1) Would be eligible for an AFDC cash payment (or would be eligible for an AFDC cash payment if coverage under the State’s AFDC plan included an AFDC-unemployed parents program) if her child had been bom and was living with her in the month of payment;
(2) Is a member of a family that would be eligible for an AFDC cash payment if the State’s AFDC plan included an AFDC-unemployed parents program; or
(3) Meets the income and resource requirements of the State’s approved AFDC plan. In determining whether the woman meets the AFDC income and resource requirements, the unborn child or children are considered members of the household, and the woman s family is treated as though deprivation exists.”
The birth mother in the present case made full disclosure of the adoption plan when she applied for the medical card. Medical coverage was subsequently approved, and full payment of the prenatal and delivery expenses occurred. The Porrinis contend that irrespective of the beliefs of the district court, the situation in the present case is the most common method throughout this country of paying these expenses.
The Kansas Department of Social and Rehabilitation Services (SRS) was well aware of the pending adoption and the payment of the medical expenses. SRS is well versed in instituting actions to recover public assistance benefits when inappropriately dispersed. See, e.g. State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 822 P.2d 1033 (1991) (SRS claimed a trust fund providing support for Jackson was an available resource to her and SRS sought reimbursement from Jackson, pursuant to K.S.A. 39-719b, for public assistance benefits paid to her in an amount in excess of $35,000.). Yet, there is apparently no effort on the part of SRS or the federal government to seek reimbursement of the medical expenses paid by Medicaid in this case.
The Porrinis cite Birth Hope Adopt. v. Az. Health Care Cost Contain., 218 F.3d 1040 (9th Cir. 2000) (Birth Hope), for authority that the district court cannot expand the scope of the Kansas Adoption and Relinquishment Act beyond the express limits set forth by the legislature. In Birth Hope, an adoption agency sought a declaration that Ariz. Rev. Stat. § 8-548.07.A (2000) violated the Commerce Clause since it required out-of-state persons who adopt children from Arizona to reimburse the State of Arizona for the full cost of prenatal care and delivery of the adopted child when those costs were paid by the Arizona Health Care Cost Containment System (AHCCCS). The State argued it sought reimbursement of the same costs from in-state adoptive parents under provisions of Arizona law that allowed insurance policies that covered an adoptive mother to cover the expenses of the birth mother and also general statutory provisions requiring a person to provide rea sonable support to one’s natural and adoptive children, Ariz. Rev. Stat. § § 25-501, 36-2903. G (2000). 218 F. 3d at 1044-45.
The Birth Hope court found Ariz. Rev. Stat. § 8-548.07.A was discriminatory on its face because it required only out-of-state adoptive parents to reimburse AHCCCS. 218 F.3d at 1044. The court also found Ariz. Rev. Stat. § 8-548.07.A was not a valid compensatoiy tax since the State could not identify an intrastate tax burden for which the State was attempting to compensate. 218 F.3d at 1044, citing Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93, 103, 128 L. Ed 2d 13, 114 S. Ct. 1345 (1994). In examining the relevant statutes, the Birth Hope court stated that the scope of an agency’s action is measured by its statutory authority and that Ariz. Rev. Stat. § 8-548.07.A violated the Commerce Clause. 218 F.3d at 1045.
It appears the district court is attempting a cost containment policy concerning financial assistance to pregnant mothers where the baby will be given up for adoption. We agree there is a decreasing availability of public assistance funds, but we cannot, through judicial fiat, control those costs in cases like this.
We find the district court erred in requiring the Porrinis to reimburse SRS for the medical expenses paid by Medicaid where there is no statute, regulation, or contractual agreement requiring the adoptive parents to pay those expenses.
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Marquardt, J.:
The City of Liberal (City) appeals the district court’s ruling that Juan Vargas did not commit, the crime of identity theft. We affirm.
In February 2000, Officer Rogers was on duty and noticed a car being driven without a tag light. Officer Rogers stopped the vehicle and asked the driver for his driver’s license and proof of insurance. The driver produced Missouri and National Beef Packing Company (National Beef) identification cards bearing the name of Guillermo Hernandez. Officer Rogers ran the name through a regional system. The system produced five identical matches in other states.
The driver admitted that his name was Juan Vargas. He later confessed that he was not authorized to work in the United States and that he had bought papers identifying himself as Guillermo Hernandez so that he could obtain employment at National Beef. Vargas pled guilty in municipal court to one count of identity theft, one count of no seat belt, one count of no tag light, and one count of no driver’s license. Vargas appealed the municipal court’s decision to the district court.
The district court convicted Vargas of one count of no tag fight, one count of no seat belt, and one count of no driver’s license. Vargas was acquitted on the count of identity theft. The district court held that the City failed to meet its burden to show fraud in the use of the false identity card. The City appeals.
We note at the outset a jurisdictional peculiarity. Vargas pled guilty in the municipal court, yet he appealed the merits of his case to the district court. However, the prohibition against appeals provided for in K.S.A. 22-3602(a) does not apply to pleas accepted by a judge of a Kansas municipal court. See City of Dodge City v. Frey, 26 Kan. App. 2d 559, 560, 990 P.2d 1240 (1999). Therefore, this court does have jurisdiction to consider this issue.
The City asks this court to determine whether Vargas’ use of a false identification to secure employment and receive the economic benefit of a salary is tantamount to defrauding another person.
Interpretation of a statute is a question of law, and this court’s review is unlimited. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
“Identity theft is knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor.” K.S.A. 2000 Supp. 21-4018(a).
“ Intent to defraud’ means an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” K.S.A. 21-3110(9).
It is a fundamental rule of statutory construction that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Without state or federal cases to guide our inquiry, we turn to the legislative history of K.S.A. 2000 Supp. 21-4018.
The crime of identity theft was created by the 1998 Kansas Legislature. See L. 1998, ch. 179, § 1. Representative Bonnie Sharp, a proponent of the legislation, believed it was necessary to criminalize identity theft. She cited the example of a person’s social security number being used by another to obtain an illegal checking account and/or a credit card. Representative Sharp stated that the citizens of Kansas should be protected from “this potentially devastating crime.” Minutes of the House Committee on Federal and State Affairs, February 12, 1998, p. 1.
Kyle Smith, an assistant attorney general for the Kansas Bureau of Investigation, testified on behalf of the bill. Smith was concerned that the “surreptitious acquisition of information done with the intent to defraud” was not illegal at the time the bill was proposed. Smith cited the examples of a motel clerk selling a credit card number or a “trasher” obtaining a social security number, which would allow an individual to access other information, leading to theft. Minutes of the House Committee on Federal and State Affairs, February 12, 1998, p. 1.
The committee also heard testimony from Dave Schroeder, a special agent from the Kansas Bureau of Investigation. Agent Schroeder defined identity theft as “[acquiring someone’s personal identifying information in an effort to impersonate them or commit various criminal acts in that person’s name.” Agent Schroeder went on to state that individuals who are armed with a stolen identity can commit numerous forms of fraud. Agent Schroeder was specifically concerned about the theft of personal information such as social security numbers; birth certificates; passports; driver’s licenses; dates of birth; addresses; telephone numbers; family history information; credit or bank card numbers; and personal identification numbers. Minutes of the House Committee on Federal and State Affairs, February 12, 1998, Attachment Three, p. 2.
K.S.A. 2000 Supp. 21-4018 requires that a defendant obtain, possess, transfer, use, or attempt to obtain the identification documents or personal identification numbers of another. This would occur, for example, when a defendant “took” another person’s social security number and used that number when applying for a credit card or bank account.
In the case currently before the court, Vargas admitted that he bought the identification. The record on appeal reflects that Vargas obtained a Missouri identification card as well as a social security card. However, there is no evidence that Guillermo Hernandez is a real person who had his identity “stolen.”
It appears from the committee minutes that the legislature passed K.S.A. 2000 Supp. 21-4018 in order to protect individuals who have their identity stolen. The testimony is replete with references to individuals who have been defrauded by perpetrators who misappropriate personal information such as a social security or bank account number. There was no mention of any intent by the legislature to protect a third party from identity theft.
We do not believe that the legislature intended to criminalize the act of which Vargas is now accused. Vargas lied to his employer and obtained employment through false means. There are other appropriate remedies for a situation such as this. Vargas was terminated from his employment. There may also be federal immigration laws which apply. However, we do not believe that K.S.A. 2000 Supp. 21-4018 is applicable to the situation currently before the court.
However, even if K.S.A. 2000 Supp. 21-4018 did apply to the facts of this case, we do not believe that Vargas could be found guilty. The statute requires an “intent to defraud.” Vargas admitted that he intended to use a false identity only to work at National Beef. There is no evidence in the record on appeal that Vargas intended to defraud National Beef by stealing money or by being compensated for services not actually rendered.
In addition, we fail to see how Vargas received the economic benefit mentioned in K.S.A. 2000 Supp. 21-4018. Vargas was paid for the time he worked. Vargas’ work product was rated as satisfactory. In fact, the record on appeal indicates that National Beef would rehire Vargas in the future.
The City’s main argument is that National Beef relied upon Vargas’ statement that he was Guillermo Hernandez when it hired him. Essentially, the City claims that National Beef would not have hired Vargas had it known of his status as an illegal alien. This fact is not borne out in the record on appeal. The personnel director for National Beef testified that he had a “responsibility” to refrain from hiring undocumented workers. However, there is nothing in the record on appeal which would indicate that National Beef was in any way defrauded by Vargas’ actions.
Vargas did not steal Guillermo Hernandez’s identity in order to commit a theft. He bought identification under a false name so that he could work in this state. There is no evidence that Vargas intentionally defrauded anyone in order to receive a monetary benefit. In addition, Vargas was appropriately paid for services rendered. The district court correctly interpreted K.S.A. 2000 Supp. 21-4018 when it reversed Vargas’ conviction of identity theft.
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Green, J.:
James A. Gragg appeals from the trial court’s order dismissing his claim under 42 U.S.C. § 1983 (Supp. 1998). On appeal, Gragg argues that his § 1983 claim (1) was not barred by an adequate state remedy and (2) was brought within the statute of limitations. We agree and reverse and remand for trial.
Gragg was incarcerated at the Lansing Correctional Facility in Leavenworth County, Kansas, by the Kansas Department of Corrections (KDOC) for aggravated incest, which was committed before July 1, 1993. Under applicable sentencing laws, rules, and regulations in effect when Gragg was convicted, his conditional release date was April 28,1996. During Gragg’s incarceration, David R. McKune, John Cooling, and William L. Cummings were employed by the KDOC and were allegedly responsible for the determination of Gragg’s date of release from incarceration.
After Gragg’s conviction, K.A.R. 44-6-124(g)(6) was amended to alter the calculation of good time credits for persons convicted of crimes committed before July 1, 1993. This administrative regulation resulted in the taking of good time credits from Gragg. Gragg notified McKune, Cooling, Cummings, and the KDOC (collectively referred to as the defendants) that his release date was still to be April 28, 1996.
On November 20,1995, Gragg moved for a writ of habeas corpus seeking recalculation of his release date based on his good time credits. Gragg asserted that as applied to him, K.A.R. 44-6-124(g)(6) was an ex post facto law. The trial court agreed, holding that as applied to Gragg, K.A.R. 44-6-124(g) was an ex post facto law and ordered the Secretary of Corrections to recalculate Gragg’s release date. In a separate case, our Kansas Supreme Court also determined that K.A.R. 44-6-124(g), as applied to inmates with convictions for crimes committed before its enactment, was an ex post facto violation. Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 cert. denied 525 U.S. 1060 (1998).
Despite the trial court’s order on Gragg’s habeas corpus petition, Gragg continued to be incarcerated and no recalculation of his release date was completed. On July 23,1996, Gragg filed a motion to require the defendants to explain why they should not be held in contempt for failing to recalculate his release date. Gragg was released, without explanation, on July 27, 1996. Gragg was incarcerated 90 days beyond his scheduled release date of April 28, 1996, and 47 days beyond the date the trial court ordered a recalculation of his release date.
On April 28,1998, Gragg filed a petition seeking damages under § 1983 and for negligence attributable to the defendants. The trial court granted a motion to dismiss filed by the defendants. The trial court determined that Gragg’s cause of action under § 1983 was barred because an adequate state remedy for false imprisonment was available to Gragg. The trial court further ruled that a false imprisonment claim should have been brought within the 1-year statute of limitations. In addition, the trial court dismissed the negligence claim because it was an attempt to circumvent the 1-year statute of limitations for false imprisonment.
Gragg’s first argument on appeal is that his § 1983 claim is not barred even if an adequate state remedy may have been available. The issue of whether Gragg’s § 1983 claim is barred by an adequate state remedy is a question of law subject to unlimited review by this court. See Swinehart v. City of Ottawa, 24 Kan. App. 2d 272, 275, 943 P.2d 942 (1997).
42 U.S.C. § 1983 (Supp. 1998) provides, in part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
42 U.S.C. § 1983 (Supp. 1998) is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989).
The United States Supreme Court first addressed whether a § 1983 claim is barred by an adequate state law remedy in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In Parratt, an inmate ordered hobby materials that were lost by prison employees. The inmate brought an action under § 1983 against prison officials for the deprivation of his property without due process of law. The Parratt Court held that since the deprivation was the result of a random and unauthorized act, there was no way for the state to protect against these violations in advance and the available state remedy was adequate under these specific facts., 451 U.S. at 541-44.
The Parratt rule was followed by the Kansas Supreme Court in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985). In Alvarado, the court addressed a § 1983 claim against an off-duty police officer for his actions as a store security guard in apprehending the plaintiff as a suspected shoplifter. The Alvarado court recognized that where a deprivation of fife, liberty, or property is “caused by a random and unauthorized state act for which prior process is impracticable or impossible,” a postdeprivation remedy is the avenue for redress and a § 1983 claim does not he. 238 Kan. at 54. Alvarado held that under the facts of that case, “the Kansas tort actions for false imprisonment, battery, and defamation provide an adequate postdeprivation remedy sufficient to satisfy the requirements of due process under the Fourteenth Amendment.” 238 Kan. at 55.
Parratt and Alvarado were distinguished from the facts presented in Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 271, 737 P.2d 6 (1987). Allison involved an unconstitutional taking of property by a special assessment to pay for wastewater treatment. The Allison court held that neither Parratt nor Alvarado was applicable in that case because the unconstitutional taking of the plaintiffs’ property resulted from an administrative procedure that did not contain proper postdeprivation procedural due process safeguards. 241 Kan. at 271. Allison held that the plaintiffs’ § 1983 claim was proper and the adequacy of state remedies was irrelevant because the arbitrary decision to take the plaintiffs’ property could not be “validated by a procedurally correct review process that produces an equally arbitrary ruling.” 241 Kan. at 270-71.
In Zinermon v. Burch, 494 U.S. 113, 124-25, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990), the United States Supreme Court clarified when it is relevant to inquire into the adequacy of state law remedies. The Zinermon Court noted:
“[0]verlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983. A plaintiff, for example, may bring a § 1983 action for an unlawful search and seizure despite the fact that the search and seizure violated the State’s Constitution or statutes, and despite the fact that there are common-law remedies for trespass and conversion. . . .
“This general rule applies in a straightforward way to two of the three kinds of § 1983 claims that may be brought against the State under tire Due Process Clause of the F ourteenth Amendment. First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of tire procedures used to implement them.’ Daniels v. Williams, 474 U.S. at 331. As to these two types of claims, the constitutional violation actionable under § 1983 is complete when the wrongful action is taken. [Citations omitted.] A plaintiff, under Monroe v. Pape, may invoke § 1983 regardless of any state-tort remedy that might be available to compensate him for the deprivation of these rights.
“The Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. [Citations omitted.] The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; is it not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” 494 U.S. at 124-26.
Here, Gragg claims that his confinement violated his Fourth Amendment right to be free from unlawful seizure and his Eighth Amendment right against cruel and unusual punishment. Accordingly, Gragg’s § 1983 claim falls within the first category of § 1983 claims, as outlined in Zinermon, based on violations of specific protections defined in the Bill of Rights. Gragg’s complaint also includes a substantive due process claim in that he alleges that his imprisonment was the result of arbitrary, wrongful actions by the defendants. See Daniels, 474 U.S. at 331; see Romero v. Fay, 45 F.3d 1472, 1480 (10th Cir. 1995) (“[A] plaintiff states a claim for false imprisonment in violation of § 1983 by specifically alleging facts that show a government official acted with deliberate or reckless intent to falsely imprison the plaintiff.”). Because Gragg’s § 1983 claim encompasses both the first and second categories of § 1983 claims, it is irrelevant whether any state tort remedies may have been available to compensate him for the alleged deprivation of his rights. As a result, the trial court erred in dismissing Gragg’s § 1983 claim on that basis.
The next issue is whether Gragg’s § 1983 claim is barred by the statute of limitations. When Congress created the cause of action codified in 42 U.S.C. § 1983 (1988), it did not provide a statute of limitations. Miller v. City of Overland Park, 231 Kan. 557, 559, 646 P.2d 1114 (1982). However, to avoid confusion, each state has a single statute of limitations for § 1983 claims. The appropriate statute is the residual personal injury statute of limitations. Owens v. Okure, 488 U.S. 235, 249-50, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989). In Kansas, the residual personal injury statute of limitations is found at K.S.A. 1999 Supp. 60-513(a)(4), which provides a 2-year statute of limitations. As a result, the appropriate statute of limitations for § 1983 suits in Kansas is 2 years. See McAllister and Robinson, The Potential Civil Liability of Law Enforcement Officers and Agencies, 67 J.K.B.A. 14, 29 (Sept. 1998). Because Gragg brought his § 1983 claim within 2 years after the cause of action arose, his suit is not barred by the statute of limitations.
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Marquardt, J.:
Madie Redditt, widow of Raymond Redditt, appeals a decision of the Workers Compensation Board (Board) denying her Raymond’s death benefits.
Raymond was murdered on November 16, 1995, when he was making a bank deposit for McDonald’s, his employer. It is undisputed that Raymond met with an accidental death arising out of and in the course of his employment.
Madie applied for Raymond’s death benefits. She listed herself as his surviving spouse. Madie and Raymond were married in April 1969. The couple began living apart in March 1973. Madie had no contact with Raymond since 1986.
Madie claimed that she is entitled to Raymond’s death benefits. McDonald’s claimed that K.S.A. 1999 Supp. 44-508(c)(2) precluded such a payment to Madie. The administrative law judge (ALJ) disagreed, finding that Madie did not willfully or voluntarily abandon Raymond and their marriage had never been legally dissolved. The ALJ awarded Madie $200,000.
McDonald’s appealed to the Board. The Board affirmed the ALJ’s award. The Board held that proof of dependency is not required of a surviving spouse of a deceased employee for eligibility of death benefits. The Board found that Raymond left Madie to live with another woman.
McDonald’s appealed the Board’s order to this court. This court noted that the Board did not reach the question of whether there had been a mutual abandonment of the marriage since it found that Raymond was the first abandoning party. Redditt v. McDonald’s Restaurant, 26 Kan. App. 2d 547, 549, 990 P.2d 759 (1999). The case was remanded to the Board to determine whether there had been a mutual abandonment of the marriage. 26 Kan. App. 2d at 556.
On remand, the Board found that there had been a mutual abandonment of the marital relationship. The Board concluded that not only did Madie accept her separation from Raymond, she actually seemed to prefer being single. The Board believed that Raymond and Madie expressed a desire to end their marital relationship in fact, if not in law, and denied Madie the right to Raymond’s death benefits. Madie appeals.
Madie contends that the Board could not enter a new finding of fact since no new evidence was presented upon remand. Madie believes the Board’s finding that there was a mutual abandonment is “exactly opposite” of the Board’s first ruling. Madie also argues that K.S.A. 1999 Supp. 44-508(c)(2) does not encompass the doctrine of mutual abandonment. Madie claims that she did not abandon Raymond within the meaning of the statute.
This case involves interpretation of K.S.A. 1999 Supp. 44-508(c)(2). An appellate court’s standard of review for decisions from the Board is statutory and set forth in K.S.A. 77-601 et seq. However, interpretations of statutory provisions are questions of law over which appellate courts have unlimited review. While an appellate court gives deference to the Board’s interpretation of the law, if such interpretation is interpreted or applied erroneously, the court may grant relief. Burton v. Rockwell International, 266 Kan. 1, 5, 967 P.2d 290 (1998).
The Board’s finding that Madie is not entitled to benefits is a negative finding. A negative finding of fact will not be disturbed absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).
In its first award, the Board found that it was not necessary to reach the issue of whether there was a mutual abandonment. The Board based its order in reliance on Tatum v. Tatum, 736 P.2d 506 (Okla. 1982), and its belief that Raymond was the abandoning spouse. With a specific order on remand, the Board had no choice but to address tire issue of mutual abandonment since it did not decide the issue initially.
This court remanded the case to the Board with instructions to make a finding on the issue of mutual abandonment. Redditt, 26 Kan. App. 2d at 556. The Board has the duty and the authority to decide an issue when a case is remanded to it for a finding on an issue that it had not decided in its first order.
Next, Madie argues that K.S.A. 1999 Supp. 44-508(c)(2) does not cover the issue of mutual abandonment.
“Where death results from injury, compensation shall be paid as provided in K.S.A. 44-510 and amendments thereto, and as follows:
“(a) . . .
(1) If the employee leaves a surviving legal spouse or a wholly dependent child or children, or both, who are eligible for benefits under this section, then all death benefits shall be paid to such surviving spouse or children, or both, and no benefits shall be paid to any other wholly or partially dependent persons.” K.S.A. 1999 Supp. 44-510b(a)(l).
“In the meaning of this section [definition of “members of a family”], a surviving spouse shall not be regarded as a dependent of a deceased employee or as a member of the family, if the surviving spouse shall have for more than six months willfully or voluntarily deserted or abandoned the employee prior to the date of tlie employee’s death.” K.S.A. 1999 Supp. 44-508(c)(2).
We must first address the question of whether Kansas law recognizes the doctrine of mutual abandonment.
The case law on mutual abandonment was well summarized in the first Redditt case. Other jurisdictions have found that mutual abandonment deprives a surviving spouse of his or her right to death benefits. 26 Kan. App. 2d at 553. The Redditt court cites Estate of Garcia v. Industrial Com’n, 156 Ariz. 39, 749 P.2d 948 (1988), for the proposition that the decedent’s wife was not entitled to death benefits because (1) the couple had been separated for approximately 7 years before decedent’s death; (2) the decedent had a relationship with another woman and fathered a child; (3) the wife had lived with two separate men on two separate occasions; and (4) the decedent provided no monetary or other sustenance to the wife after the separation. The Garcia court noted that “ ‘[t]o find her eligible for death benefits in this type of situation would be to provide support for her where none had been sought or received before.’ ” 26 Kan. App. 2d at 554.
The plain language of K.S.A. 1999 Supp. 44-508(c)(2) suggests that the Kansas Legislature did not mean to preclude application of the doctrine of mutual abandonment. The statute merely states that a surviving spouse is not eligible for death benefits if he or she abandoned the employee spouse for more than 6 months prior to the employee’s death. Under the plain language of the statute, a surviving spouse could later abandon the marriage even after he or she had previously been abandoned by the employee. It is a fundamental rule of statutory construction that the intent of the legislature governs if that intent can be ascertained. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
The concept of mutual abandonment fits squarely within K.S.A. 1999 Supp. 44-508(c)(2). We see nothing in the plain language of the statute which would convince us that the legislature did not envision a situation where both spouses abandoned their marriage. However, the facts of the instant case will determine whether mutual abandonment took place.
Madie and Raymond were married in April 1969, when their son was 1 month old. Raymond left the marital home in March 1973 and moved in with another woman. Madie filed for divorce in March 1973; however, no divorce was ever granted. Madie and Raymond never lived together after March 1973.
Madie lived in Kansas City from 1973 to 1979. While Madie was in Kansas City, Raymond remained in Memphis. Raymond did not pay child support for the 6 years Madie was in Kansas City. Madie continued to have sexual relations with Raymond when she returned to Memphis for summers and holidays. However, the couple did not reconcile.
While Madie was in Kansas City, she engaged in sexual relations with two different men. Madie had another child; however, she was unable to say who fathered the child.
Madie returned to Memphis in 1979. She had sporadic contact and sexual relations with Raymond until 1983. Raymond moved to Missouri in 1985. The last time Madie had any contact with Raymond was in 1986.
Raymond paid no child support after 1984. Madie fisted herself as “head of household” on her tax returns. Madie and Raymond did not file joint tax returns. Madie fisted herself as a single parent on her son’s school forms and as a single person on credit card applications. Madie was not involved in planning Raymond’s funeral.
We agree with the Board that the Redditts’ marriage was mutually abandoned. Clearly, Raymond was the first spouse to leave the marriage. However, Madie did not conduct herself like a married woman. She had relationships with other men, one of whom possibly fathered her second child. More telling, however, is Ma-die’s reference to herself as a single person. Madie conducted and referred to herself as a single person for the better part of 30 years. She had no contact with Raymond after 1986.
We believe that Madie meets the definition of an abandoning spouse under K.S.A. 1999 Supp. 44-508(c)(2). Accordingly, the Board did not err by refusing to award her Raymond’s death benefits.
Affirmed. | [
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Rulon, C. J.:
Appealing a question reserved, the City of Liberal challenges the district court’s refusal to permit testimony about the defendant’s statements made during the municipal court trial, when the defendant invoked her Fifth Amendment privilege against self-incrimination during the de novo trial on appeal to the district court. We reverse.
On appeal to the district court, the court would not consider certain testimony from a police officer regarding the defendant’s sworn testimony in municipal court as it related to defendant’s admission to distributing allegedly defamatory information to a third person. As a result of the exclusion of the police officer’s testimony, the district court found the City had failed to present a prima facie case against the defendant, and on the defendant’s motion, the court dismissed the complaint after the close of the City’s case.
As a preliminary matter, the defendant contends the question is not properly before this court as the prosecution did not properly reserve the question at the district court. This contention possesses little legal merit.
The prosecution’s ability to appeal a district court’s ruling is substantially limited when compared to the defendant’s right of appeal. The prosecution is limited to appeals from (1) an order dismissing a complaint, information, or indictment; (2) an order arresting judgment; (3) a question reserved; or (4) an order granting a new trial in any case involving a class A or B felony or involving an off-grid crime committed on or after July 1, 1993. See K.S.A. 2000 Supp. 22-3602(b).
In order to preserve a question reserved for appeal, the prosecution must enter a timely and specific objection at the time of the district court’s ruling. See State v. Schulze, 267 Kan. 749, 751, 985 P.2d 1169 (1999). In this case, when the defendant objected to the prosecution’s attempt to admit evidence of the defendant’s statements during the municipal court trial and the court sustained the objection, the City noted an exception to the court’s ruling for the record, proffering the anticipated evidence that was suppressed.
An appeal of a question reserved is proper only when the legal ruling adverse to the prosecution is of statewide importance to the correct and uniform administration of the criminal law. See Schulze, 267 Kan. at 751. We deem the question of whether the prosecution can admit the statements of a defendant made in a municipal court trial without record as admissions in the subsequent district court trial on appeal is a question of statewide importance.
In addressing the merits of the appeal, the prosecution urges this court to rule that a defendant’s statements made at a municipal court, of no record, waives the defendant’s Fifth Amendment protection in a subsequent trial to the district court on appeal. The defendant vehemently disagrees, claiming the testimony of an observer of the municipal court trial as to what he or she perceived a criminal defendant’s testimony to entail is inherently unreliable and extremely prejudicial to the defendant. Neither brief cites any Kansas case related to this issue.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. See State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Here, however, the district court gave no reason for suppressing the prosecution’s evidence except a statement that an appeal from a municipal court of no record is a de novo proceeding. As such, the question before this court is whether the law permits the prosecution to admit statements made by the defendant at a municipal court trial without record in a subsequent de novo trial on appeal to the district court. This is a question of law over which this court has unlimited review. See Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The City argues the district court made its ruling based upon the privilege against self-incrimination. An individual’s protection against self-incrimination articulated in K.S.A. 60-425 is to be interpreted identically to the protection extended by the Fifth Amendment to the United States Constitution. See State v. Green, 254 Kan. 669, 676, 867 P.2d 366 (1994) (explaining that K.S.A. 60-425 is merely the codification of the privilege granted by the Fifth Amendment).
The Fifth Amendment to the United States Constitution protects an individual from testifying under government compulsion. This protection is waived when an individual voluntarily testifies on his or her own behalf. See State v. Simmons, 78 Kan. 852, 853, 98 Pac. 277 (1908).
In Simmons, the defendant testified at his trial and was convicted. After an appeal, our Supreme Court granted Simmons a new trial, in which he invoked his Fifth Amendment privilege. As a result, the State introduced the defendant’s statements from the first trial, and the defendant was again convicted. The defendant objected, claiming that reading the transcript of his testimony was tantamount to compelling the defendant to testify against himself in the second trial. 78 Kan. at 853. Rejecting the defendant’s argument, our Supreme Court held, “ If the accused waives his privilege and takes the witness-stand in his own behalf, at any stage of the prosecution, he waives it for every subsequent stage.’ ” 78 Kan. at 853 (quoting 1 Thompson on Trials, § 647 [date unknown]).
The case presently before us concerns facts similar to those presented before the Simmons court. In both cases, the defendant voluntarily testified at the initial stage of the criminal proceedings. When the defendant was given a new trial, in each case the defendant chose to invoke the protection afforded a criminal defendant under the Fifth Amendment and K.S.A. 60-425. The only distinguishing element of the cases is that defendant’s initial conviction occurred in a municipal court without record, whereas Simmons’ initial conviction occurred in a district court which provided a transcript of the proceedings.
The defendant in this case makes much of this distinction, but the two factual situations involve little material difference for purposes of the right to self-incrimination. Although a transcript of a proceeding provides a more rehable record of the events of a trial than does the perception of a witness, where no transcript was made and a witness testifies to the events, this affects the weight of the evidence and presents a question of credibility for the fact-finder. It does not cause the evidence to become inadmissible. See Price v. Grimes, 234 Kan. 898, 902, 677 P.2d 969 (1984) (finding no abuse of discretion when the district court submitted evidence to the jury of statements made by the decedent who had allegedly been mentally incapacitated by a stroke); State v. Estill, 13 Kan. App. 2d 111, 116, 764 P.2d 455 (1988), rev. denied 244 Kan. 739 (1989) (finding that the accuracy and trustworthiness of a phone trap affected the weight of the evidence, not its admissibility).
K.S.A. 60-419 establishes two requirements of a witness before the witness’ testimony is admitted: (1) the testimony must be relevant to a material matter in the case, and (2) the testimony must be based upon the personal knowledge of the witness. In the present case, both of these requirements are satisfied. Officer Johnson listened to the testimony of the defendant during the municipal court trial; therefore, he had personal knowledge of the defendant’s statements at trial. Furthermore, the prosecution proffered evidence concerning what Officer Johnson was expected to relate.
Additionally, the statements from Officer Johnson concerning the defendant’s earlier testimony would be subject to exclusion as hearsay, except that K.S.A. 2000 Supp. 60-460(c)(2)(A) specifically exempts such testimony from the definition of hearsay, as a statement against interest given as a witness in a “former trial in the same action.” In order to qualify for this exemption, the prosecution must demonstrate that the witness is unavailable in the second trial. See K.S.A. 2000 Supp. 60-460(c)(2). However, it is clear that a witness who invokes the protection of the Fifth Amendment and refuses to testify is unavailable within the meaning of the statute. See Green, 254 Kan. at 680 (holding that a witness who invoked his Fifth Amendment rights was not available to testify and his prior testimony was admissible).
Another consideration concerning evidence is that, although the evidence is relevant and not subject to exclusion under a specific rule, the district court may exclude evidence in which the probative value is outweighed by the possibility of undue prejudice to the defendant. See K.S.A. 60-445. A witness who waives his or her protection from self-incrimination in a municipal court trial is not unfairly prejudiced when those statements are again raised at a subsequent de novo trial. There is no conceivable reason to permit an officer to introduce testimony concerning an admission made by a criminal defendant during interrogation at the police station while refusing to allow an officer to testify as to statements made by a defendant in open court while under oath.
We conclude no reasonable person would properly exclude Officer Johnson’s testimony concerning defendant’s statements during the municipal court trial. The district court erred when disallowing the officer’s testimony.
We reverse the district court’s ruling concerning the officer’s testimony about the defendant’s prior statements. Because the charges against the defendant were dismissed due to the City’s failure to establish a prima facie case, we can not remand the case for further proceedings because to do so would violate the Double Jeopardy Clause of the United States Constitution. | [
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Beier, J.:
Respondent-appellant Rowana K. Riggs appeals from her contempt citation, the sentence imposed, and an additional condition added later to her probation by the district judge. We reverse.
Riggs was a prospective juror in an underlying criminal case. The district judge asked the panel of prospective jurors to stand, raise their right hands, and' be affirmed or take the oath to serve as jurors. Riggs did not stand; there is a dispute about whether she took the oath while sitting down. This exchange followed:
“THE COURT: Ms. Riggs, did you stand up and be affirmed or take the oath? I couldn’t see.
“[RIGGS]: No, because I’m sitting here hurting in pain and, this here, I have carpal tunnel syndrome.
“THE COURT: Okay.
“[RIGGS]: This air in here is aggravating my condition.
“THE COURT: Ma’am, if you’ll come over here and have a chair, we’ll talk to you a little bit later about that. Thank you very much.
“[RIGGS]: Uh-huh. Plus your court reporter — I have a daughter — excuse me — a daughter that has a real major medical problem and I have way — all the way ticked because your court clerk downstairs told me that this here court procedure was more important than my child’s health, so I’m really not in the best of mood.
“THE COURT: Yeah. Well, I’m gonna have you just have a chair, and we’ll get to you when we get through with the voir dire.”
The judge’s exchange with Riggs after the conclusion of voir dire was somewhat ambiguous. The judge told Riggs he found her to be in contempt of court for failing to take the oath as she was instructed. He then set a sentencing date and asked her repeatedly if she wanted an attorney. Riggs began to explain that she did not feel like standing because she was not feeling good and needed to take her medicine. The judge then set the date for the hearing 15 days later and suggested she bring medical records to corroborate what she was trying to say.
At the later hearing, the court began by stating that the proceeding followed a finding that Riggs was in contempt of court and asked if Riggs’ attorney had anything to say on her behalf before sentence was imposed. Defense counsel argued that Riggs was not feeling well the day of the voir dire and pointed out that Riggs had stated on her jury card that she had carpal tunnel syndrome and had not taken her pain medication. Defense counsel also stated she had a doctor’s letter and prescriptions in support of Riggs’ statements. Counsel argued Riggs did not know she was acting in a disrespectful manner toward the court, and she explained that Riggs had been worried because she was a single parent supporting two children, was employed by Boeing, and was involved in an ongoing worker’s compensation case. The court was also informed that one of Riggs’ daughters had recently suffered a -miscarriage and the other daughter had been diagnosed with lumps in her breast.
The court also allowed Riggs to speak on her own behalf:
“No more than that I was in pain, severe pain at that time. And, other than that, I didn’t mean no disrespect to you or the court. I didn’t know that it would lead into this type of confrontation or this type of occurrence, however you would put it in that sense, by me not standing. It wasn’t in no disrespect to you or the court.
“I was just in pain and hurting, and I had informed Miss Marvin that I had left my medicine down in my car which was parked a few blocks away and I needed to take it. I didn’t mean no disrespect in her saying that I was trying to give her a hard time down there or what. But, if I don’t take that medicine, the pain is very severe.
“And, other than that, that’s about all I can say, your Honor. I didn’t mean no disrespect to you or the court, and I didn’t know that it would lead to this type of procedure.”
The court responded:
“Well, your behavior was very contemptuous, and it was evident to the other panelists and to the jurors because, after the trial was over, when I was talking with tlie jury, tiiey commented upon how rude you’d been and how disrespectful you’d been to die court.”
The judge then sentenced Riggs to 30 days in jail and fined her $200; he placed her on nonreporting probation. The journal entry memorializing the hearing stated Riggs was in contempt for failure to stand and take oath as a prospective juror and stated her sentence. It did not state the defenses or extenuating circumstances raised by Riggs and her counsel at the hearing.
Approximately 2 months later, the judge ordered Riggs to appear for a formal review of the terms and conditions of her probation. The judge stated that the hearing was ordered because there seemed to be some problems with Riggs’ understanding of the terms and conditions of her probation, “[s]o I think we better start clarifying things a little more, delineate things a little bit more clearly for her.”
The court inquired three times if the court services officer had any modification suggestions, and the officer said no three times. Finally, the officer said there had been a problem with the procedure for obtaining a travel permit. She suggested that requiring Riggs to report to the office in person might enhance her understanding of the terms and conditions of her probation.
Riggs’ counsel argued, and the court agreed, that Riggs was not alleged to have violated her probation. When Riggs was told that she needed to prepare an itinerary in order to travel, she simply chose not to travel at all. Nevertheless, the court modified the conditions of probation to require Riggs to meet with her court services officer at least once a month.
Riggs appealed both the original contempt finding and sentence and the enhancement of the conditions of her probation. The appeals were consolidated.
Regarding the finding of contempt, Riggs makes two persuasive arguments. First, she says that her conduct, even assuming she remained sitting and failed to take the oath, was not contemptuous. Second, she says that the journal entry did not follow the requirements of K.S.A. 20-1203, which renders the finding of contempt void.
Our review of these two issues is de novo. See State v. Pondexter, 225 Kan. 425, 429, 590 P.2d 1074 (1979) (on appeal from direct contempt conviction, court examines language, actions of person convicted and determines anew if conduct sufficient to constitute contempt); State v. Patterson, 25 Kan App. 2d 245, 247, 963 P.2d 436, rev. denied, 265 Kan. 888 (1998).
We agree that Riggs’ conduct was not subject to summary sanction as a direct contempt. Direct contempt is defined as contempt committed in the presence of a judge during a sitting of the court or in chambers. See K.S.A. 20-1202. It may be punished summarily “without written accusation against the person arraigned.” K.S.A. 20-1203.
Here, the district judge stated on the record at the time of the conduct that he did not observe it. Riggs caused no significant disruption in the trial; voir dire was able to proceed to completion as soon as the judge told her to take a different seat. When the judge spoke to Riggs at the conclusion of voir dire, he at first indicated that he had already found Riggs in contempt. He then told her to bring evidence supporting her explanation to the hearing approximately two weeks later. At the hearing, Riggs and her counsel explained to the judge that Riggs meant no disrespect. Further, the judge’s remarks at the sentencing hearing indicated that he relied in part on his after-the-fact conversations with other jurors to determine that Riggs’ behavior was contemptuous.
Riggs’ argument regarding the deficiency of the journal entiy also has merit. K.S.A. 20-1203 states:
“[I]f the court or judge in chambers shall adjudge [the accused] guilty [of direct contempt] a judgment shall be entered of record, in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or extenuation the accused offered thereto, and the sentence of the court thereon.” (Emphasis added.)
Riggs points out that the journal entry in her case does not state the defenses she relied upon, and the State concedes this fact. Nevertheless, the State argues that the purpose of the requirement of K.S.A. 20-1203 for a more detailed journal entry is to ensure a proper record for appellate review and that the hearing transcript’s recording of Riggs’ statement in her defense ehminates the need for such a journal entry in this case. At oral argument, the State offered support for this policy analysis by emphasizing the “in chambers” passage of K.S.A. 20-1203, asserting that, because this finding of contempt and the sentencing hearing were not “in chambers,” the requirement of a more detailed journal entry did not appiy.
Although we admire the State attorney’s creativity, the State’s argument ultimately fails to account adequately for cases from the Kansas Supreme Court and our court, which have addressed contempt convictions that do not comply with K.S.A. 20-1203.
In State v. Jenkins, 263 Kan. 351, 950 P.2d 1338 (1997), for example, an attorney was sanctioned for failing to appear at a preliminary hearing, failing to give notice of his absence to the court and other counsel, and being tardy to the rescheduled hearing. On appeal, the Kansas Supreme Court found his actions constituted direct contempt, and it discussed the necessary statutory procedure:
“K.S.A. 20-1203 provides for summaiy punishment, but requires that a written judgment be entered, specifying the contemptuous conduct, defense or extenuating circumstances, and the sentence imposed. Failure to comply with 20-1203 is jurisdictional. See In re Gambrell, 160 Kan. 620, 623, 164 P.2d 122 (1945), reh. denied 161 Kan. 4, 165 P.2d 760 (1946). . . .
“Direct contempt orders have been held void for either failure to specify die conduct constituting the contempt or to state any defense or extenuation offered by the accused.” 263 Kan. at 357.
The Jenkins court cited State v. Flanagan, 19 Kan. App. 2d 528, 873 P.2d 195 (1994). In Flanagan, the trial court held defendant in direct contempt after defendant continued to insist on appointed counsel despite having been told that he did not qualify. 19 Kan. App. 2d at 533. On appeal, we stated:
“K.S.A. 20-1203 was not complied with. The entire transcript of the conversation which led to die contempt citation is set forth above. The trial judge, at the time he declared defendant in contempt, did not specify the conduct constituting such contempt. There is no statement of ‘whatever defense or extenuation die accused offered thereto.’ The journal entry filed to codify the conviction is perfunctory and it does not specify the grounds or set forth any defense offered. . . .
“Our Supreme Court has held that a conviction for contempt which does not comply with K.S.A. 20-1203 is not merely reversible, it is void. In re Gambrell, 160 Kan. 620, 164 P.2d 122 (1945); Wallace v. Weber, 134 Kan. 201, Syl. ¶ 1, 5 P.2d 855 (1931). In Gambrell, the court said:
‘The order of die court on the contempt proceedings contains no statement of the conduct constituting the contempt, neidier does it contain a statement of whatever defense or extenuation die accused offered thereto. These matters are jurisdictional and the absence of them renders die order void. (See Wallace v. Weber, 134 Kan. 201, 5 P.2d 855, and cases cited therein.)’ 160 Kan. at 623.” 19 Kan. App. 2d at 532-33.
Under Jenkins and Flanagan, it is clear that the district court’s finding of contempt is void. The fact that we have access to a transcript of Riggs’ sentencing hearing does not excuse the district court’s obligations under K.S.A. 20-1203.
Our decision on the merits of the contempt finding makes Riggs’ additional arguments contesting the enhancement of her punishment moot.
Reversed and remanded with directions to vacate the sentence imposed on the contempt citation. | [
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Knudson, J.:
Dale E. McCormick appeals the district court’s dismissal of his petition for failure to state a claim upon which relief may be granted. McCormick sued multiple defendants requesting damages and injunctive relief for a perceived violation of his constitutional right to be free from an unreasonable seizure and detention. In addition to his claim under 42 U.S.C. § 1983 (1994), McCormick presents numerous tort claims under State law against the defendants. The defendants are the Board of County Commissioners of Shawnee County (Commissioners), the Shawnee County District Attorney’s office, Joan Hamilton, and Cynthia Long. At the time the petition was filed, Hamilton was Shawnee County District Attorney and Long was one of her deputy prosecutors.
As a preliminary matter, McCormick in his written brief abandoned his claim for injunctive relief. His decision effectively removes the Shawnee County District Attorney’s office from this litigation; remaining is his damage claim against the other named defendants.
We affirm in part, reverse in part, and remand for further proceedings.
The underlying factual circumstances are: On September 8, 1999, Assistant District Attorney Cynthia Long signed a probable cause affidavit and filed a complaint charging McCormick with stalking, a severity level 10 person felony. K.S.A. 21-3438. The State, however, voluntarily dismissed the complaint on September 28, 1999. On September 29, 1999, officers of the University of Kansas Public Safety Office, apparently believing there was an active arrest warrant for McCormick, took him into custody and detained him for approximately 1 hour. We are left to speculate why there was an apparent breakdown in communication between the criminal justice agencies as to the dismissal of the criminal complaint against McCormick. As a result of his arrest and detention, McCormick filed this litigation, asserting various tort claims and a § 1983 claim. McCormick’s petition included the following factual allegations:
“10. On or about the 8th day of September, 1999, while in connivance with other private persons and governmental entities, Cynthia J. Long, acting as an agent of Shawnee County and the [Shawnee County District Attorney’s office], swore her name to a ‘felony stalking’ ‘complaint’ against plaintiff in Shawnee County District Court. This utterly fraudulent ‘complaint’ caused a charge of ‘felony stalking’ to lie against plaintiff, subsequently causing a ‘felony warrant’ to issue for the arrest of plaintiff. The case number of this malicious prosecution was 99-CR-3636.
“As a ‘specific’ averment of ‘fraud,’ said ‘complaint’ alleged that plaintiff had been feloniously ‘stalking’ [Y.H.] since 12-31-98. In reality, plaintiff and [Y.H.] had a strange but intimate relationship through June of 1999, several weeks prior to [Y.H.] making her first fraudulent ’police report’ against plaintiff on 6-27-99. Ms. Long was possessing [sic] of information that established these facts, but she deliberately excluded this information from the false and fraudulent ‘felony stalking complaint’ and ‘affidavit’ she ‘swore’ against plaintiff. Ms. Long intentionally, or with utterly malicious negligence, caused a magistrate to be deceived into allowing this fraudulent ‘stalking’ charge to lie against plaintiff, subsequently causing said magistrate to issue ‘felony warrants’ for the arrest of plaintiff.
“12. The ‘felony stalking’ ‘complaint’ and ‘affidavit’ that Ms. Long swore against plaintiff on or about 9-8-99, were perjured, and could scarcely have been more contradictory, false, deceptive, deceitful, or misrepresentative of the facts and circumstances surrounding plaintiff s relationship with [Y.H.]. The utter falsity of these instruments ‘sworn by Ms. Long clearly attaches liability to each of the defendants for damages suffered by plaintiff as a result of the ensuing malicious prosecution.”
The defendants’ motions for dismissal for failure of the petition to state a claim were granted by the district court. The court reasoned Long had absolute immunity as a prosecutor and was not subject to a § 1983 claim and that Long also was immune from McCormick’s tort claims under the discretionary function exception of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
Standard of Review
Our standard of review of a dismissal of an action for failure to state a claim for relief under K.S.A. 60-212(b) is stated in Ripley v. Tolbert, 260 Kan. 491, ¶¶ 1, 2, 921 P.2d 1210 (1996):
“Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.”
“In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.”
In addition, “it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.” Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
The Claims Against Long
§ 1983 Claim
The district court determined that Long has absolute prosecutorial immunity from McCormick’s § 1983 claim. The court found that Long merely followed the well-established procedures in connection with preparing and filing an information against a suspect and applying for an arrest warrant. Thus, the court reasoned, Long’s activities were within the scope of her duties as a prosecutor and she has absolute immunity from McCormick’s claims.
In determining questions of immunity, the court must accept the allegations in the petition as true. See Buckley v. Fitzsimmons, 509 U.S. 259, 261, 125 L. Ed. 2d 209, 113 S. Ct. 2606 (1993). Long filed a criminal complaint against McCormick and signed an affidavit, which resulted in the issuance of an arrest warrant. That complaint was dismissed by the State 1 day before McCormick was detained. In his petition, McCormick claims that Long swore to facts she knew were false and failed to include exculpatory facts in her affidavit. McCormick contends that when Long signed the affidavit, she stepped outside of her role as a prosecutor and into that of a complaining witness. As a result, McCormick argues Long is not entitled to absolute immunity, only qualified immunity.
McCormick’s argument is based upon Kalina v. Fletcher, 522 U.S. 118, 120, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997). In Kalina, the Court addressed the question of whether 42 U.S.C. § 1983 creates a remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant, or whether such conduct is protected by the doctrine of absolute prosecutorial immunity. In determining immunity, the court must examine the nature of the function performed, not the identity of the actor who performed it. See Forrester v. White, 484 U.S. 219, 229, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988).
Long’s filing of the complaint in this case was well within her duties as a prosecutor. K.S.A. 2000 Supp. 22-3201. Prosecutors have absolute immunity for activities intimately associated with the judicial phase of the criminal process, that is, for performing the traditional functions of an advocate. Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). However, McCormick alleges that Long also swore to and filed an affidavit which resulted in a determination of probable cause. This is not a function that a prosecutor is required to perform. K.S.A. 22-2302. In fact, it is a law enforcement officer who typically attests to facts in an affidavit. Kalina, 522 U.S. at 130 n.16. The Kalina Court unanimously held that when a prosecutor personally attests to the truth of statements in an affidavit, he or she becomes a complaining witness. 522 U.S. at 130-31. The district court failed to recognize this important distinction in its reading of Kalina. A prosecutor acting as a complaining witness, and not as a lawyer, is only entitled to qualified immunity. 522 U.S. at 122.
Nevertheless, Long maintains she never stepped outside of her role as a prosecutor but followed the generally recognized practices in the Shawnee County District Attorney’s office. This is precisely the defense the Supreme Court rejected in Kalina. 522 U.S. at 130-31. The Court took great pains to point out that the practice of prosecutors personally swearing to affidavits is not routine and, moreover, that ethical concerns should counsel against participating as both a witness and an advocate in the same proceeding. 522 U.S. at 130.
We turn next to the question of whether, under the allegations, Long is entitled to qualified immunity for her actions. Qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Governmental officials performing discretionary functions are generally 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. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In other words, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). A necessaiy concomitant to the determination of whether the constitutional right asserted by the plaintiff is “clearly established” is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789, reh. denied 501 U.S. 1265 (1991).
McCormick alleges that Long swore to and filed a false affidavit in connection with his criminal prosecution. As a result, a warrant for his arrest was issued. McCormick was seized and detained for approximately 1 hour on the campus of the University of Kansas by officers relying on that arrest warrant. When the officers realized the charges against McCormick had been dismissed, he was released. There is no doubt that swearing to a false affidavit is against the law. See K.S.A. 54-105; K.S.A. 2000 Supp. 21-3805.
The district court found that McCormick could not show that Long’s alleged actions resulted in his detention. As a result, the court determined that McCormick could not state a cause of action against Long. These findings by the court go beyond the four corners of McCormick’s petition. We believe whether the officers relied on the arrest warrant in detaining McCormick is a factual question which must be resolved in favor of McCormick in ruling upon a motion to dismiss. See Smith v. State, 264 Kan. 348, 353, 955 P.2d 1293 (1998).
It is a violation of the Fourth Amendment for a probable cause affiant to knowingly, or with reckless disregard for the truth, include false statements in the affidavit. Similarly, it is a Fourth Amendment violation to knowingly or recklessly omit from the affidavit information which, if included, would have vitiated probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). To show he suffered a cognizable violation of his constitutional rights, McCormick must satisfy a two-part test: First, he must show that Long knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; second, he must show that such statements or omissions are material, or necessary, to the determination of probable cause. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3rd Cir. 1997).
Parenthetically, we note Franks and Sherwood were search warrant cases, but the analysis in both cases has application to an arrest warrant. See Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996).
McCormick’s petition does allege that Long made false statements and omitted exculpatory information in her affidavit. Me Cormick further alleges Long’s affidavit was instrumental in the determination of probable cause. We conclude McCormick has alleged a violation of his Fourth Amendment rights.
The remaining question to resolve is whether the law proscribing the swearing to and filing of a false affidavit to procure an arrest warrant was clearly established at the time it allegedly occurred. The holding in Kalina leaves no doubt it was clearly established. Thereafter, a prosecutor is to be charged with knowledge that such an act was unreasonable. Long, therefore, is not entitled to qualified immunity. See Anderson, 483 U.S. at 639. Our decision recognizes the limited scope of judicial review of pleadings under K.S.A. 60-212(b)(6). We express no opinion as to whether Long may be entitled to qualified immunity after appropriate development of the record. See Hunter v. Bryant, 502 U.S. 224, 233-34, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991) (Stevens, J., dissenting).
State Tort Claims
McCormick argues the district court improperly dismissed his state tort claims. McCormick set forth a laundry list of torts he allegedly suffered at the hands of Assistant District Attorney Long. The district court did not analyze the claims of each tort in determining McCormick’s petition failed to state a course of action. Instead, the district court held Long owed McCormick no legal duty and, in any event, was immune from liability, pursuant to the discretionary function exception to the KTCA. K.S.A. 2000 Supp. 75-6104(e).
We agree with the district court that in performing her legal duties as a prosecutor, there could be no liability to McCormick. Under the public duty doctrine, a law enforcement officer owes a legal duty to the public at large and not to any individual. Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 100, 981 P.2d 266 (1999). However, when Long stepped outside her role as a prosecutor and became a complaining witness, the public duty doctrine no longer applied. This conclusion requires that we next consider whether the discretionary function exception under K.S.A. 2000 Supp. 75-6104(e) is applicable.
Under that exception, a governmental employee acting within the scope of employment is not hable for any claim based on his or her exercise of a discretionary function, even if that function is abused. As we have already stated, Long’s preparing and filing of the criminal complaint falls well within the discretionary function exception. However, liability is not precluded for any tortious conduct arising out of Long’s execution of the probable cause affidavit. In executing the affidavit, Long acted outside her duties as a prosecutor and is not afforded immunity under the KTCA. See Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322-23, 757 P.2d 272 (1988).
The Claims Against the Commissioners and Hamilton
The Commissioners
Courts have consistently refused to hold municipalities liable in § 1983 proceedings under a theory of respondeat superior. Instead, a plaintiff seeking to impose liability on a municipality under § 1983 must identify an official policy or custom that caused his or her injury. Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382, reh. denied 520 U.S. 1283 (1997). McCormick has failed to allege any such official policy or custom promulgated by the Board of Shawnee County Commissioners. This reason alone is sufficient to support the district court’s dismissal of McCormick’s claim against the Board.
However, there is an alternative reason McCormick’s petition is fatally deficient. In Kansas, district attorneys are officers of the State. See Oltremari v. Kansas Social & Rehabilitative Service, 871 F. Supp. 1331, 1347 (D. Kan. 1994) (citing State v. Baker, 249 Kan. 431, 444, 819 P.2d 1173 [1991]). District attorneys are elected officials and are the executive officers of the judicial district they represent. In no event are district attorneys to be deemed an officer of any county. K.S.A. 22a-101(a). A district attorney appoints assistant district attorneys and other office staff and determines their rate of compensation. K.S.A. 22a-106(a). In addition, district attorneys and their agents are considered State employees for purposes of the KTCA. Att’y Gen. Op. No. 87-13. Consequently, the Commissioners could not be held hable for the actions of an employee of the district attorney’s office.
Hamilton
Similarly, the district court properly granted Hamilton’s motion to dismiss. Courts have been virtually unanimous in holding that a prosecutor enjoys absolute immunity from § 1983 suits for damages when he or she acts within the scope of his or her prosecutorial duties. Imbler, 424 U.S. at 420. There is no suggestion in McCormick’s petition that Hamilton was not acting within the scope of her duties. Finally, there are no allegations in the petition under which Hamilton could be held liable for any tort committed by Long.
Conclusion
McCormick’s petition fails to state a claim upon which relief can be granted as to the Board of County Commissioners of Shawnee County and District Attorney Joan Hamilton. McCormick’s petition does state cognizable claims against Cynthia J. Long.
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BEIER, J.:
Defendant-appellant Vincent E. Scott challenges his robbery and obstruction of official duty convictions. He argues that he was entitled to a lesser included instruction on criminal deprivation of property, that the trial court’s instruction regarding obstruction was erroneous, and that one of the prosecutor’s cross-examination questions was an unconstitutional comment on his post-Miranda silence. We affirm.
The noteworthy events leading to Scott’s convictions are these:
Victim Julie Dickinson was sitting in the driver’s seat of her car, preparing to leave a convenience store parking lot, when a man later identified as Scott invited himself into the passenger side of the front seat. Scott testified at trial that he merely wanted to ask for a ride home. Dickinson, understandably, did not interpret his intentions as benign.
Dickinson began to scream as Scott grabbed her arm and attempted to prevent her from leaving the car. When Dickinson broke free and managed to jump out, Scott, in what he described as a panic brought on by Dickinson’s hysterics, slid over into the driver’s seat and drove away. This maneuver knocked Dickinson to the ground, because she had been holding onto the handle of the driver’s door and attempting to summon help from those who remained in and around the store.
Scott was apprehended a short while later, but not before leading the police and a canine assistant on a foot chase from the place where he stopped Dickinson’s car. During the chase, the police momentarily lost sight of Scott, but they followed his footprints into a vacant apartment. After the police issued several commands for Scott to surrender, the dog eventually found Scott hiding in a closet.
During cross-examination of Scott during trial, the prosecutor asked whether Scott had mentioned his version of how he ended up taking Dickinson’s car to police on the night of his arrest. Before Scott answered, his counsel immediately objected and asked to approach the bench. At the ensuing bench conference, Scott’s counsel stated in part, “[W]e are treading very close to whether my client asserted any rights to remain silent.” Although the prosecutor initially argued that Scott opened the door, he then proposed to withdraw the question. The judge replied, “I think it would be better,” and the matter was never brought up again.
At Scott’s request, the trial court instructed the jury to consider the lesser included offense of theft, but Scott did not seek a further lesser included instruction on criminal deprivation of property.
Scott also did not object to the wording of the instruction on the elements of obstruction of official duty. The instruction read in pertinent part:
“To establish [obstruction of official duty], each of the following claims must be proved:
“1. That [the police who apprehended Scott] were authorized by law to investigate reported felony crimes;
“2. That the defendant knowingly and willfully obstructed, or resisted or opposed uniformed law enforcement officers, ... in the investigation of felony crimes which was the official duty of [the officers];
“3. That die act of the defendant substantially hindered or increased the burden of die officer(s) in the performance of the officer(s)’s official duty;
“4. That at the time the defendant knew or should have known that [the officers] were law enforcement officers.”
The jury found Scott guilty of the lesser included offense of robbery and of obstruction of official duty.
Lesser Included Instruction
Scott asserts that criminal deprivation of property occupies the lowest rung in the offense hierarchy that descends from his original charge of aggravated robbery. In his view, criminal deprivation is a lesser included offense of theft, which in turn is a lesser included offense of robbery, which in turn is a lesser included offense of aggravated robbery. He argues for the first time on appeal that the trial court’s failure to give a criminal deprivation of property instruction was error and requires reversal of his robbery conviction.
The determination of whether a crime is a lesser included offense is a question of law over which an appellate court exercises unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000). Under K.S.A. 21-3107(2)(d), as it existed at the time of Scott’s alleged offense, a defendant could be convicted of a lesser included offense as an alternative to the crime charged in the complaint when the lesser offense necessarily would be proved by proving the crime charged. State v. Williams, 268 Kan. 1, 17, 988 P.2d 722 (1999). Williams recited the following two-prong test from State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), for determining whether a lesser included crime existed under that version of K.S.A. 21-3107(2)(d):
“Under the first prong, the statutory elements of the crime charged and the alleged lesser included crime are examined. If all of the statutory elements of the alleged lesser crime will automatically be proved if the State establishes the elements of the charged crime, the alleged lesser crime is an included crime of the greater. If no included crime is found under the first prong, there may still be an included crime under the second prong of the test. Under the second prong, the charging document is examined to determine whether the evidence that must be adduced at trial to prove the crime charged would also necessarily prove another crime. If another crime is necessarily proved by proving the charged crime, the former is an included crime. [Citation omitted.]” 268 Kan. at 17.
The elements of the crime of aggravated robbery are set forth in K.S.A. 21-3427: a robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” See State v. Holt, 260 Kan. 33, 38, 917 P.2d 1332 (1996). “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. See Holt, 260 Kan. at 38. Robbery is a lesser included offense of aggravated robbery. State v. Davis, 256 Kan. 1, 23, 883 P.2d 735 (1994).
The definition of the crime of theft is found in K.S.A. 21-3701. The subsection of this statute relevant to Scott’s appeal is (a), which defines theft in substance as the obtaining or exerting unauthorized control over property with the intent to permanently deprive the owner of the possession, use, or benefit of the property. State v. Long, 234 Kan. 580, 588, 675 P.2d 832 (1984). Theft, under K.S.A. 21-3701(a) is a lesser included offense of robbery under K.S.A. 21-3426. State v. Blockman, 255 Kan. 953, 881 P.2d 561 (1994). The Blockman court stated its rationale as follows:
“As we concluded in Long, larceny is a crime against property. Robbery, however, is not only a crime against property but is also a crime against tire person. The gravamen of both offenses is the unlawful taking of the property. There may be larceny without robbery, but there can be no robbery without larceny.” 255 Kan. at 956.
Criminal deprivation of property under K.S.A. 21-3705(a) is obtaining or exerting unauthorized control over property, with intent to deprive the owner of its temporary use. See State v. Keeler, 238 Kan. 356, 364, 710 P.2d 1279 (1985). Although criminal deprivation of property and theft involve different degrees of intent to deprive, Keeler held that their essential elements were the same and that criminal deprivation of property was a lesser included offense of theft. 238 Kan. at 365.
We conclude that the first prong of the Fike test is met. Both aggravated robbery under K.S.A. 21-3427 and criminal deprivation of property under K.S.A. 21-3705(a) require a taking of property. When the first prong of the Fike test, the statutory elements test, is met, an analysis under the second prong is unnecessary. See State v. Wickliffe, 16 Kan. App. 2d 424, 426, 826 P.2d 522 (1992).
The next question is whether the evidence in Scott’s case would have supported a criminal deprivation of property instruction. If not, no duty to instruct arose. See State v. Lee, 263 Kan. 97, 99, 948 P.2d 641 (1997). The parties debate the appropriate standard of review for this issue.
The State argues, pursuant to K.S.A. 1999 Supp. 22-3414(3), that the clearly erroneous standard applies in reviewing jury instructions given without objection. K.S.A. 1999 Supp. 22-3414(3) provides:
“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 objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.)
Scott, for his part, contends K.S.A. 1999 Supp. 22-3414(3) does not apply to his case because he went to trial almost 3 months before it was enacted. If he is right, a more lenient standard of review would govern on appeal. See State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995) (trial court required to instruct on all lesser included crimes supported by evidence even if instructions not requested).
Generally, criminal statutes in effect at the time of a criminal offense are controlling. State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998). “ ‘[A] statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.’ [Citation omitted.]” State v. Reason, 263 Kan. 405, 416, 951 P.2d 538 (1997) (quoting State v. Sutherland 248 Kan. 96, Syl. ¶ 4, 804 P.2d 970 [1991]). An exception has been recognized, however, for statutory changes that are only procedural or remedial in nature. State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997).
In State v. Brooker, 27 Kan. App. 2d 396, 400, 4 P.3d 1180, rev. denied 269 Kan. 935 (2000), we determined that the 1998 amendment to K.S.A. 22-3414(3) was procedural only, affecting, as it did, the appellate standard of review. A standard of review does not define criminal conduct or assign it a punishment. It merely governs one phase of the process of responding to criminal conduct. Although Brooker was tried after the effective date of the amendment and Scott was tried before, we do not think the timing difference alters the outcome of the procedural/substantive analysis conducted in Brooker. Thus given Scott’s failure to request an instruction on criminal deprivation of property, he must demonstrate on appeal that the trial court’s failure to give such an instruction was clearly erroneous under K.S.A. 1999 Supp. 22-3414(3).
The giving or failure to give an instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the error had not occurred. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Scott cites Wickliffe as authority for the instruction here. In Wickliffe, applying the old standard of review, we held that an instruction on unlawful deprivation of property should have been given when there was little or no evidence tending to prove the temporary or permanent nature of the deprivation intended. 16 Kan. App. 2d 424, Syl. ¶ 1. In Wickliffe, the defendant was pursued by police for driving without headlights. When the police deter mined the car belonged to someone else and contacted the true owner, they learned the car had last been seen approximately 3Vz hours before. This short period of time and the absence of any evidence on the circumstances surrounding the taking persuaded the panel that a jury could have concluded the defendant’s intent was to deprive the owner of the car either permanently (theft) or temporarily (criminal deprivation). Because either outcome was plausible, the lesser included instruction was required. 16 Kan. App. 2d at 425-27.
We believe Wicklijfe is both factually and legally distinguishable. On the facts of this case, there is adequate testimony regarding the circumstances surrounding the taking for a jury to draw conclusions about Scott’s intent. Legally, not only must the criminal deprivation instruction be evaluated under a more harsh standard of review, but it must be compared to the charged offense of aggravated robbery rather than theft. This comparison does Scott no favors.
In this case, the trial court accepted Scott’s proposed theft instruction without objection from the State, but we have concluded that the giving of even this lesser included instruction was unwarranted by the evidence. As stated above, robbery is a person and property felony, whereas theft is only a property felony. Blockman, 255 Kan. at 956. When a taking is accomplished by violence to a victim, more than a mere theft or criminal deprivation has occurred. The offense is at least a robbery and possibly an aggravated robbery. Compare State v. Bateson, 266 Kan. 238, 246, 970 P.2d 1000 (1998) (taking complete before force occurs is theft, not robbery), with State v. Miller, 53 Kan. 324, 325-28, 36 Pac. 751 (1894) (theft instruction inappropriate when violence used to obtain complete possession of money).
Although Scott testified that he intended only to obtain a ride home and took Dickinson’s car in a panic, the evidence was clear that he obtained complete, independent, and absolute control of the car only after he forced Dickinson to let go of it by pulling out of the convenience store parking lot. Force was used to accomplish the taking, and more than a mere theft or criminal deprivation had necessarily occurred.
An instruction on a lesser included offense is not proper if, from the evidence, a jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997). No reasonable jury could convict Scott of criminal deprivation of property because of the forceful nature of the crime. The trial court’s failure to instruct on criminal deprivation cannot be described as erroneous at all, much less clearly erroneous under K.S.A. 1999 Supp. 22-3414(3).
Instruction on Obstruction of Official Duty
Scott also takes issue for the first time on appeal with the wording of the trial court’s instruction on obstruction of official duty. Again, because of the absence of an objection before the trial court, Scott must demonstrate the instruction was clearly erroneous to obtain a reversal. K.S.A. 1999 Supp. 22-3414(3).
Scott first argues the instruction should have directed the jury to consider the police officers’ subjective knowledge and intent regarding whether they were investigating a felony or misdemeanor. Scott cites State v. Hudson, 261 Kan. 535, 538-39, 931 P.2d 679 (1997), which held a misdemeanor or felony charge for obstruction of official duty under K.S.A. 21-3808 depends on the officer’s belief when he or she is carrying out an official duty.
In Hudson, the Kansas Supreme Court determined a felony conviction for obstruction of official duty could not be upheld when the officer believed at the time he was pursuing a suspect who had committed a misdemeanor. The charge was reduced to a misdemeanor count of obstruction because the officer’s knowledge and intent at the time he approached the defendant dictated the severity of the crime. 261 Kan. at 538-39.
We do not read Hudson to require the jury’s consideration of an additional element in this case. The misdemeanor or felony nature of the crime was not contested. Both of the officers who testified said they were investigating a car theft whose particulars were broadcast over the police radio, when they attempted to apprehend Scott. We see no possibility the jury would have returned a different verdict if the instruction on obstruction of official duty were altered in the way Scott now suggests.
Scott next argues this instruction was clearly erroneous because it failed to specify which felony the officers were investigating.
The trial court used the obstruction of official duty instruction found in PIK Crim. 3d 60.09. Use of PIK Crim. 3d 60.09 is favored when the State charges obstruction of an officer in the discharge of his duty. State v. Timley, 25 Kan. App. 2d 779, 785-86, 975 P.2d 264 (1998), rev. denied 266 Kan. 1115 (1999). The use of PIK instructions is strongly recommended and should be followed absent a need for modification. State v. Dias, 263 Kan. 331, 335, 949 P.2d 1093 (1997). The elements of the underlying felony are not mentioned in PIK Crim 3d. 60.09 or its accompanying notes on use.
Moreover, Scott admitted in his own testimony to taking Dickinson’s car, running from the police, and hiding in the closet of the vacant apartment. An instruction on the elements of the underlying felony is unwarranted when all of the instructions coupled with the evidence at trial clearly specify the crime charged. See State v. Noriega, 261 Kan. 440, 451, 932 P.2d 940 (1997). Here, the obstruction of official duty instruction was not clearly erroneous due to lack of specificity on the underlying crime.
Post-Miranda Silence
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 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’s sole argument on this point is that Scott did not properly preserve this issue for appeal. A question or comment challenged under Doyle requires a timely and specific objection to preserve the issue for appeal. State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995). We consider Scott’s counsel’s immediate ob jection and statement that the prosecutor was “treading very close to whether [Scott] asserted any rights to remain silent” sufficient to preserve the Doyle issue for appeal.
The principles of Doyle were first adopted by the Kansas Supreme Court in State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976) . Its prohibition on using post-Miranda silence to impeach a defendant is rooted in the Miranda warnings’ implicit promise that silence during custodial interrogation will carry no penalty. State v. Miller, 259 Kan. 478, 482-83, 912 P.2d 722 (1996).
The prosecutor’s question of Scott is of the same type as that found improper in State v. Heath, 222 Kan. 50, 53, 563 P.2d 418 (1977) . In Heath, the prosecutor asked the defendant his purpose for waiting until trial to divulge his alibi. Like the prosecutor in Heath, the prosecutor in this case stepped over the line.
We must therefore consider whether the prosecutor’s misconduct was so prejudicial as to require a new trial. Edwards, 264 Kan. at 196. The appropriate standard of review for this issue is stated in State v. Gadelkarim, 256 Kan. 671, 887 P.2d 88 (1994):
“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.” 256 Kan. at 685.
At Scott’s trial, an abundance of testimony supported the guilty verdicts. His convictions rested heavily on his own testimony. He admitted to taking Dickinson’s car, running from the police, and resisting arrest. In addition, the victim testified that he first tried to keep her in the car and then drove off as she held the driver’s door handle from the outside, knocking her off balance.
In contrast, the prosecutor’s remark was brief and superficial. It was immediately objected to, and the subject was dropped. When comments that violate a defendant’s rights as enunciated in Doyle are as brief as they were here and a defense objection prevents any follow-up, their prejudicial effect is minimal, if any. Edwards, 264 Kan. at 196. We hold the error harmless when weighed against the evidence of guilt.
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Marquardt, J.:
Rodrock Enterprises, L.P. (Rodrock) appeals the trial court’s grant of summary judgment in favor of the City of Olathe (City) and the Olathe City Planning Commission. We affirm.
By ordinance dated July 21, 1998, the City incorporated the Woodland Road Corridor Plan (WRCP) into its comprehensive plan and adopted the Residential Neighborhood Design Manual (design manual) as a policy guideline. In February 1999, Rodrock purchased a tract of land, approximately 35.56 acres, located within the WRCP area. Rodrock submitted a preliminary plat for 140 lots or 3.94 dwelling units per acre. Although the plat did not conform to the WRCP or the design manual, the City’s planning staff opined that the density was within the Unified Development Ordinance (UDO) limitations and recommended approval of the plat with conditions. On April 12, 1999, the planning commission voted 4-1 to deny approval of the plat because it did not conform to the WRCP or the goals of the design manual.
Rodrock filed a petition for a permanent order of mandamus and appealed the planning commission’s decision to the trial court. The trial court denied Rodrock’s motion for summary judgment and granted summary judgment to the City and the planning commission. Rodrock appeals both rulings.
Mandamus
Rodrock argues that approval of a plat which conforms to a city’s subdivision regulations is a ministerial act which may be compelled by an order of mandamus. Its argument is based on case law that predates the current statutory law. The law now requires that the planning commission consider various factors in evaluating a plat. Consideration of the factors requires the exercise of judgment and discretion.
Mandamus is a proceeding to compel performance of a specified duty. K.S.A. 60-801. Mandamus is an appropriate proceeding for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law, that does not involve the exercise of discretion. Legislative Coordinating Council v. Stanley, 264 Kan. 690, 697, 957 P.2d 379 (1998). Mandamus will not He to control the exercise of discretion by a public official. Hill v. City of Lawrence, 2 Kan. App. 2d 457, 458, 582 P.2d 1155, rev. denied 225 Kan. 844 (1978). An action in mandamus is inconsistent with the statutory provision for challenging the “reasonableness” of a decision. See K.S.A. 12-760(a); Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 872-73, 518 P.2d 410 (1974).
Rodrock relies primarily on Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982). The Moore court said: “The planning commission is given no discretionary authority under this procedure.” 232 Kan. at 361. At the time Moore was decided, K.S.A. 12-705b (Weeks) provided: “If the plat conforms to the requirements of [the subdivision] regulations, there shall be endorsed thereon the fact that it has been submitted to and approved by the city planning commission or joint committee.” The current statute, K.S.A. 2000 Supp. 12-752(b), contains substantially the same language. However, the statute defining the scope of the subdivision regulations has been significantly modified. The current law contains a nonexclusive list of factors which provide for efficient and orderly location of streets, reduction of vehicular congestion, and “any other services, facilities and improvements deemed appropriate.” K.S.A. 2000 Supp. 12-749(b). (Emphasis added.)
Under the current statutes, the planning commission has the power to adopt a comprehensive plan. It also has the power to amend the plan by resolution to add its recommendations. The former statute allowed an appeal to question the reasonableness of the ordinance or regulation. See K.S.A. 12-712 (Weeks). The current statute allows an appeal to the trial court to determine the reasonableness of the planning commission’s decision. K.S.A. 12-760(a).
Clearly, the scope of the subdivision regulations and the authority of the planning commission to adopt and alter a compre hensive plan under the current law require the planning commission to exercise considerable discretion. Under the current law, approval of a plat is not a ministerial act and may not be compelled though mandamus.
Reasonableness of the Planning Commission’s Action
Reasonableness is the standard by which the trial court reviews the planning commission’s decision. See K.S.A. 12-760(a). Reasonableness is a question of law to be determined on the facts. On appeal, we apply the same standard as the trial court. See Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 676, 952 P.2d 1302 (1998). There is a presumption that the planning commission acted reasonably, and the court may not substitute its judgment for that of the administrative body. 263 Kan. at 683.
The cases that deal with zoning and special use permits are instructive here because we are dealing with the extent to which local governments may limit a landowner’s freedom to use and develop privately owned property. In the context of zoning,
“[a]ction is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.” Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 184, 871 P.2d 1256 (1994).
Rodrock argues that the planning commission’s reasons for denying approval of the plat were so vague and ambiguous as to be unreasonable, arbitrary, and capricious. The planning commission’s concerns in the minutes of the April 12,1999, meeting include the plat’s failure to conform to the WRCP and design manual, and inadequacy of the transition from an existing large-lot development to the plat’s smaller lots.
Rodrock further contends that the planning commission lacked the discretion to deny approval of the plat if it complied with applicable subdivision and zoning regulations.
Assuming that the planning commission has discretion in applying the regulations, its discretion must be exercised within the limits of the regulations and its statutory authority. Approval of a plat is improperly denied where the plat conforms to all zoning and subdivision regulations and planning commission standards. Denial must be based on violation of regulations and standards which are within the authority conferred by the enabling legislation. See 83 Am. Jur. 2d, Zoning and Planning § 556, p. 445-46. However, the Kansas statutes provide that a city may adopt regulations which control the aesthetics of the development. See Blockbuster Video, Inc., v. City of Overland Park, 24 Kan. App. 2d 358, 361, 948 P.2d 179 (1997). The city may then choose to enforce them or not when a development plan is proposed. 24 Kan. App. 2d at 360-61.
The issue before this court is whether the WRCP and design manual constitute legally adopted subdivision regulations of the City and, if so, whether the plat conforms to those regulations.
The City’s staff expressed the opinion that the plat conformed to the UDO and recommended approval with conditions. Rodrock argues that the planning commission acted unreasonably in disregarding the opinion of the City’s planner and legal counsel that the plat conformed to zoning requirements and subdivision regulations.
Even though this court is not bound by the legal conclusions of the City’s staff or its attorney, their opinions may be a factor to consider in determining whether the planning commission acted reasonably. Nevertheless, the planning commission’s decision was not contrary to the recommendations of the City’s staff. Approval with conditions implies rejection of the plat as submitted. The planning commission has discretion to approve a plat with conditions or deny approval outright. See, e.g., Herr v. Lancaster County Planning Com’n, 155 Pa. Commw. 379, 394-95, 625 A.2d 164 (1993).
The planning commission reasoned that the plat did not comply with the WRCP and design manual, and that the plat would result in a disappointing development of a promising parcel of land. The planning commission also expressed the opinion that rejection of the plat was not inequitable because the developer bought the land after the WRCP was adopted and should have been aware of the inclusion of the WRCP in the UDO. The parties agree that the plat does not conform with the population density limits of the WRCP.
The final question, then, is whether the comprehensive plan and UDO were properly amended to include the WRCP and the design manual. The UDO directs that the planning commission approve a preliminary plat if the following criteria are satisfied:
“1. The proposed preliminary plat conforms to the requirements of Chapter 18.68, Subdivision and Lot Splits, the applicable zoning district regulations and any other applicable provisions of the code, subject only to acceptable rule exceptions.
“2. The subdivision represents an overall development pattern that is consistent with the Comprehensive Plan, Official Street Map and City studies.
“3. The plat contains a sound, well-conceived parcel and land subdivision layout which is consistent with good land planning and site engineering design principles.
“6. For residential developments the plat is in conformance with the Residential Neighborhood Design Manual, or the Traditional Neighborhood Design Manual.” Olathe City Code § 18.12.260A.
The WRCP was adopted into the Comprehensive Plan as a city policy guideline by Ordinance No. 98-54 on July 21, 1998. Thus, the WRCP and the design manual are included in the criteria the planning commission may consider in accepting or denying a preliminary plat.
Rodroek argues that adoption of the WRCP and the design manual constitutes an impermissible procedure for rezoning the affected property. This argument is without merit. Zoning controls the use of an area, while planning implements that use. See 83 Am. Jur. 2d, Zoning and Planning § 3, p. 36. Nothing in the WRCP or the design manual alters the zoning for single family residential use.
The planning commission acted within its statutory authority and its decision is affirmed.
Proper Party
The trial court questioned sua sponte whether the planning commission was a proper party to the action but made no decision on the issue. Consequently, we have no ruling by the trial court to review on appeal and should not address this issue. However, lack of capacity of a party may be waived by failure to raise the defense. See Van Brunt, Executrix v. Jackson, 212 Kan. 621, 624, 512 P.2d 517 (1973). By failing to assert the defense, the planning commission has consented to be sued. Whether it should have been named as a party is now a moot question.
Summary Judgment Issues
Rodrock seeks specific rulings on the issues raised in its motion for summary judgment. As those issues are essentially the issues argued on appeal, and are the inverse of the City’s arguments made to the trial court and on appeal, such rulings would be, if not technically moot, redundant.
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Rulon, C.J.:
Intervenor Linda S. Parks, Trustee for the liquidation of Primeline Securities Corporation (PSC) appeals the district court’s refusal to set aside a consent judgment entered into between plaintiff Commerce Bank, N.A., Wichita, Kansas (Commerce Bank), and defendants Liebau-Woodall & Associates, L.P. (Liebau-Woodall); Fred F. Liebau, Jr., individually and as trustee of the Fred F. Liebau, Jr. Revocable Trust; and James G. Woodall. The intervenor contends that as the trustee in an involuntary bankruptcy, she was an indispensable party to the consent judgment and the consent judgment entered without her participation was void. We reverse and remand for further proceedings.
In 1992 Liebau-Woodall entered into an indenture agreement for the sale of debentures to investors to raise $250,000. The investors’ interests were originally managed by Union National Bank in Wichita. Eventually, Commerce Bank succeeded to the management of the trust.
The indenture agreement did not formally provide for security, but Commerce Bank claims the parties to the agreement understood that the money would be used to finance the renovation of office building space for lease, which would provide the security for the investment. In addition, Fred F. Liebau and James G. Woodall personally guaranteed the indenture agreement. The guaranty agreement provided that “the Issuer will use the proceeds from the sale of the Debentures, in part, to finance the reconstruction and refurbishing of real property located within the City of Wichita, Kansas, for use as an office building and other Partnership purposes as provided by law.”
In September 1993, the indenture agreement was amended to authorize the sale of debentures to a total of $750,000. Liebau-Woodall redeemed $25,000 of the debentures before eventually defaulting.
On January 8, 1998, Commerce Bank filed suit against Liebau-Woodall for judgment in the amount of the outstanding $725,000 debt plus interest and costs, further requesting an equitable mortgage on the office building purchased and maintained with the capital obtained through the sale of the debentures. On March 18, 1998, Commerce Bank and Liebau-Woodall arrived at a settlement which was memorialized in a consent judgment. The judgment ordered Liebau-Woodall to pay $725,000 plus interest and costs and imposed an equitable mortgage against the office building at 154 North Topeka, Wichita, Kansas.
In the meantime, the Securities Investor Protection Corporation (SIPC) forced PSC into an involuntary liquidation bankruptcy, under 15 U.S.C. § 78eee(b)(3) (1994). As of January 9, 1998, an automatic stay was imposed upon all judicial or nonjudicial procedures designed to attach assets of PSC. Todd M. Connell, the trustee appointed to oversee the liquidation, began an investigation of PSC’s assets. (Connell was later replaced in the liquidation procedure by Linda S. Parks as Trustee. The term “Trustee” will be used throughout our discussion to generally describe the trustee of the liquidation procedure).
The Trustee’s investigation revealed that Liebau and Woodall each owned a 50% general partnership interest in Liebau-Woodall. In turn, either the partnership or the combined individual shares of Liebau and Woodall allegedly comprised the entire stock of several related corporations, such as Primeline Financial Group, Inc. (PFG), Primeline Insurance, Inc. (PI), Primeline Advisory, Inc. (PA), and First Street Leasing, L.L.C. (FSL). PFG in turn is alleged to be the owner of 100% of the outstanding stock of 'PSC.
Consequently, viewing the office building owned by Liebau-Woodall as a potential asset of PSC’s liquidation, the Trustee filed a motion to intervene in Commerce Bank’s suit against Liebau-Woodall. The district court heard arguments on the motion to intervene. The court subsequently found the Trustee had presented a prima facie showing of a material interest in the office building property that might be substantially impaired or impeded if the Trustee was prevented from intervening in the suit between Liebau-Woodall and Commerce Bank.
Eventually, the Trustee filed a motion to set aside the journal entry of judgment filed on March 18, 1998, which approved the settlement reached between Liebau-Woodall and Commerce Bank. Arguments on the motion to set aside the consent judgment were made to the district court but not to the same judge who entered the judgment.
In denying the motion to set aside the consent judgment, the district judge held:
“Now, I’m not getting — a little more specific working backwards, I’ll find that there is an insufficient showing with respect to collusion. I will find that with respect to the issues raised by the petition of Commerce Bank and settled in the journal entry of judgment filed and entered March 18 I do not find that Mr. Connell as trustee or the creditors who are represented by him are indispensable or indispensably necessary parties under the statutes that you have cited.
“I’ll also find that based upon my understanding of the law that you have an opportunity to assert the trustee’s claims in a foreclosure action. By not setting aside the March 18 judgment it seems to me that tire only prejudice to Mr. Connell as trustee is the establishment of the date of the equitable mortgage.
“Well, if we’re proceeding under bankruptcy rules, I suppose that there is potential prejudice from the standpoint of no — rattling around in the back of my mind is the special position that a trustee in bankruptcy has in relation to all other creditors, and I forget the terminology. It’s been a long time since I’ve been called upon to think of it and use it but it’s that extra special quality that a trustee in bankruptcy has. . . .
“Yes, yes. And I can see some potential prejudice there, but there is a basis for that date of July 1, 1992 and I’m satisfied that the judgment should remain and not be voided and for that reason I will deny Mr. Connell’s motion as trustee.”
Dissatisfied with the district court’s ruling, the Trustee removed the case to the United States Bankruptcy Court for the District of Kansas and filed a motion to reconsider. The bankruptcy court remanded the case to state court, concluding that the present matter is not a “pending claim or cause of action” within the meaning of the applicable removal statute. The bankruptcy court further emphasized that sound judicial policy prevents a federal court from reconsidering a decision by a state court, including federal-state court comity and prevention of forum shopping.
Eventually, the Trustee refiled the motion to reconsider in the district court, which heard arguments on November 23, 1999. The court reaffirmed its denial of the motion to set aside the consent judgment, and the Trustee perfected this appeal.
The Consent judgment
The primary focus of the Trustee’s appeal has been the claim the district court erred in overruling a previous finding the Trustee is an indispensable party in Commerce Bank’s suit against Liebau-Woodall.
K.S.A. 60-219 establishes the parameters of compulsory joinder of parties. Following the guidance set by the Federal Rules of Civil Procedure, the Kansas rules abrogated the distinction between necessary and indispensable parties, opting for the term “contingently necessary.” See Froelich v. Werbin, 212 Kan. 119, 121, 509 P.2d 1118 (1973).
A contingently necessary party is one without whom the parties already named to the action cannot obtain complete relief or one who claims an interest in the subject matter of the suit which is so interrelated that failure to include the nonparty will impair or impede the nonparty’s ability to protect that interest or will subject an existing party to double or multiple liability or inconsistent obligations related to that interest. See K.S.A. 60-219(a).
If the district court determines that a nonparty is a contingently necessary party but cannot join the nonparty because the court lacks personal jurisdiction or proper venue or because joining the party would destroy the court’s jurisdiction over the subject matter, the court must apply K.S.A. 60-219(b) to determine whether the original suit must be dismissed. See Greenwood v. McDonough Power Equipment, Inc., 437 F. Supp. 707, 709-10 (D. Kan. 1977); 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1607 (1986).
The factors a court must consider in determining whether a suit must be dismissed under K.S.A. 60-219(b) include: (1) the extent to which a judgment rendered in the nonparty’s absence might prejudice the right of the nonparty or the existing parties; (2) the extent to which such prejudice may be lessened or avoided by shaping the judgment or relief granted; (3) the adequacy of any judgment rendered without the nonparty; and (4) whether dismissal of the suit would leave the present plaintiff without an effective remedy. See K.S.A. 60-219(b).
In the present action, the subject matter of dispute relates to the office building located at 154 North Topeka, Wichita, Kansas. The parties stipulate that the building is wholly owned by Liebau- Woodall. Additionally, this record shows the Trustee is responsible solely for the liquidation of PSC. As such, the Trustee has an interest in the Commerce Bank suit against Liebau-Woodall only to the extent that Liebau-WoodalTs property is interrelated with PSC’s.
The Trustee argues that Liebau-Woodall and PSC are related through the bankruptcy theory of “substantive consolidation.” In In re Circle Land and Cattle Corp., 213 Bankr. 870 (Bankr. D. Kan. 1997), the bankruptcy court considered the application of a substantive consolidation claim to pull the assets of an alleged corporate alter ego into the bankruptcy estate. The Circle Land court recognized the substantive consolidation doctrine but declined to apply such doctrine under the circumstances presented there.
The Circle Land decision suggests that substantive consolidation is rarely proper unless the party seeking the consolidation can demonstrate that no creditor will be harmed by the consolidation. 213 Bankr. at 875-76.
Whether the Trustee has alleged sufficient equitable claims to support the imposition of substantive consolidation in a bankruptcy proceeding, however, is not for this court to decide. Substantive consolidation is clearly an equitable remedy applied by bankruptcy courts in reaching distributive fairness to all creditors concerned. See Circle Land, 213 Bankr. at 874-75. The sole issue presently pending before this court concerns the right of the Trustee to challenge a state court judgment as void for lack of a contingently necessary party. This is a question of law, requiring the application of legal principles.
To that end, Kansas courts have recognized that legally separate business organizations may be merely alter egos for a common entity. See Dean Operations, Inc. v. One Seventy Assocs., 257 Kan. 676, 680, 896 P.2d 1012 (1995). The determination of an organization’s legal status under the alter ego doctrine is a question of fact. 257 Kan. at 682. To guide the factfinder in this determination, Kansas law provides 10 factors to assess the unity of interest of separate legal entities:
“(1) whether the parent [organization] owns all or a majority of the capital stock of the subsidiary; (2) whether the [organization] have common directors or offi cers; (3) whether the parent [organization] finances the subsidiary; (4) whether the parent [organization] subscribed to all of the capital stock of the subsidiary or otherwise causes its incorporation; (5) whether the subsidiary has grossly inadequate capital; (6) whether the parent [organization] pays the salaries or expenses or losses of the subsidiary; (7) whether the subsidiary has substantially no business except with the parent [organization], or no assets except those conveyed to it by the parent [organization]; (8) whether in the papers of the parent [organization], and in the statements of its officers, the subsidiary is referred to as such or as a department or division; (9) whether the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent [organization]; and (10) whether tire formal legal requirements of tire subsidiary as a separate and independent [organization] are not observed.” 257 Kan. at 683 (citing Schmid v. Roehm GmbH, 544 F. Supp. 272, 275 [D. Kan. 1982]).
Although the Trastee alleged many of the above factors in the motion to set aside the March 18, 1998, journal entry, the record arguably contains no evidence supporting any of these claims. Unquestionably, however, the district court’s finding the Trustee was not an indispensable party within the meaning of K.S.A. 60-219 left no opportunity for the Trustee to present evidence in support of the alter ego theory. As such, we conclude the district court’s denial of the motion to set aside the consent judgment does not support a presumption the district court found the facts necessary to support the judgment, and the case must be remanded for additional factual findings. See In re Estate of Cline, 258 Kan. 196, 205-06, 898 P.2d 643 (1995).
In response to the veil-piercing or substantive consolidation arguments posed by the Trustee, Commerce Bank argues that the alter ego theory is not available to a corporation to pierce its own corporate veil. Commerce Bank’s position misstates the status of Kansas veil-piercing law. Under Kansas law, a corporate entity cannot apply the alter ego doctrine as a sword to vindicate its own interests. The veil-piercing concept is to be used solely to avoid potential injury to third parties by perpetuating fraud, illegality, or injustice worked through the legal fiction of a corporate identity. See Pemco, Inc. v. Kansas Dept. of Revenue, 258 Kan. 717, 723, 907 P.2d 863 (1995). If, indeed, the alter ego theory is to be applied in this case to reach the assets of Liebau-Woodall, it is applied to protect the interest of third-party creditors, not the interests of the debtor corporation.
Assuming, without deciding, the alter ego theory is applicable in this case, the office building clearly becomes an asset of the liquidation estate. Under the Securities Investor Protection Act of1970, 15 U.S.C. § 78fff-l(a) (1994), the Trustee in a liquidation proceeding under the Act is vested with the powers of a trustee in bankruptcy. Furthermore, a liquidation proceeding is to be conducted in the same manner as a bankruptcy proceeding. 15 U.S.C. § 78fff. As such, an equitable mortgage placed on the property would prejudice the other creditors of the estate to the extent that it places the debenture security holders in a position of priority. See Bankruptcy Code, 11 U.S.C. § 506(a) (1994).
Consequently, as to the Commerce Bank action against Liebau-Woodall, the Trustee might be a nonparty whose interests in the subject matter of the suit will be impaired if not permitted to join the action. In other words, the Trustee is possibly a contingently necessary party to Commerce Bank’s suit against Liebau-Woodall, depending upon the determination of the alter ego status Liebau-Woodall bears with respect to PSC.
Moreover, on remand if the district court finds the office building is an asset of the liquidation estate because of the application of the alter ego doctrine, the original consent judgment may be avoided under the automatic stay provisions of the Securities Investor Protection Act. Section 78eee(b)(2)(B)(i) imposes a stay upon “any pending bankruptcy, mortgage foreclosure, equity receivership, or other proceeding to reorganize, conserve, or liquidate the debtor or its property and any other suit against any receiver, conservator, or trustee of the debtor or its property, and shall continue such stay upon appointment of a trustee pursuant to paragraph (3).” The stay becomes effective upon the filing of the application for the protective decree. See 15 U.S.C. § 78eee(b)(2)(B).
Furthermore, the liquidation estate for the purposes of the Securities Investor Protection Act encompasses all of the debtor’s assets as of the date of the application. 15 U.S.C. § 78fff(b) (1994); 11 U.S.C. § 541(a)(1) (1994). As a result, the office building is conceivably an asset within the liquidation estate as of the date of the filing of the liquidation proceedings, i.e., Januaiy 9, 1998. Because the consent judgment was not entered until March 18, 1998, in violation of the automatic stay, the Trustee may avoid the judgment under the powers awarded a liquidation proceeding under the Securities Investor Protection Act. 15 U.S.C. § 78fff(b); 11 U.S.C. § 549(a) (1994).
Consequently, we remand this cause to the district court to determine if PSC is a mere alter ego of Liebau-Woodall and the effect that finding has upon the consent judgment, consistent with the opinion of this court.
Equitable Mortgage
The Trustee argues the district court improperly imposed an equitable mortgage favoring Commerce Bank upon the office building. In light of the foregoing analysis, this issue is moot.
If, upon remand, the district court determines that Liebau-Woodall is a mere alter ego of PSC (or'vice versa), the consent judgment granting the equitable mortgage is either void or voidable at the will of the Trustee.
If, on the other hand, the district court finds no facts supporting the Trustee’s veil-piercing theory, PSC and Liebau-Woodall are separate legal entities and the Trustee has no standing to challenge the district court’s determination with respect to Liebau-Woodall’s assets.
This court refuses to address a question of law which would amount to an advisory opinion. See Shanks v. Nelson, 258 Kan. 688, 692, 907 P.2d 882 (1995) (citing Hannon v. Maynard, 3 Kan. App. 2d 522, 597 P.2d 1125 [1979]). Accordingly, we need not consider whether the district court properly imposed an equitable mortgage on the office building located at 154 North Topeka, Wichita, Kansas.
Reversed and remanded for further proceedings. | [
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Wahl, J.-.
Respondent Larned State Hospital (Lamed) and the State Self-Insurance Fund (Fund) appeal from an order of the Workers Compensation Board (Board) awarding claimant Vona R. Pruter whole body permanent partial disability benefits instead of calculating Prater’s benefits based on two scheduled injuries.
Following a hearing, the administrative law judge determined Pruter suffered a 6 percent impairment to her right upper extremity and a 7 percent impairment of the right lower extremity. The administrative law judge then determined that although Prater’s injuries constituted scheduled injuries under K.S.A. 1999 Supp. 44-5 lOd, because Pruter simultaneously sustained two scheduled injuries, her compensation should be calculated based on an unscheduled whole body disability. The administrative law judge then awarded Pruter benefits based on a 7 percent impairment to the body as a whole.
Both the respondent and Prater timely appealed from the administrative law judge’s decision. The only issue before the Board was the nature and extent of Prater’s injury. After evaluating the impairment ratings given by two physicians, the Board agreed with the administrative law judge that Prater suffered a 6 percent impairment of her right arm and a 7 percent impairment of her right leg. The Board further agreed that although these injuries were scheduled injuries individually, the fact that two scheduled injuries occurred simultaneously required the injuries to be converted info a whole body injury. The Board relied primarily on Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931), and several prior Board decisions on this issue. The Board awarded benefits based on a 7 percent functional impairment to the body as a whole. Respondent and its insurer appealed to this court.
The sole issue on appeal requires this court to interpret and apply the scheduled injury statute of the Kansas Workers Compensation Act (Act), K.S.A. 1999 Supp. 44-510d, and various cases interpreting and applying that provision. Interpretation of a statute is a question of law which this court must review de novo. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. Auten v. Kansas Corp. Comm’n., 27 Kan. App. 2d 252, 254, 3 P.3d 86, rev. denied 269 Kan. 931 (2000). When the agency is one of special competence and experience, its interpretation of a statute may be entitled to controlling significance. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996). Ultimately, however, the court must exercise de novo review. If an administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999).
The key dispute is whether Pruter’s simultaneous injuries to two limbs within the statutory schedule transfers compensation issues from the scheduled injuries calculations in K.S.A. 1999 Supp. 44-510d to the nonscheduled injury statute, K.S.A. 1999 Supp. 44-510e. The statute applicable to scheduled injuries provides:
“(a) Where disability, partial in character but permanent in quality, results from the injury, the injured employee shall be entitled to compensation provided in K.S.A. 44-510 and amendments thereto, but shall not be entitled to any other or further compensation for or during the first week . . . .Thereafter compensation shall be paid for temporary total loss of use and as provided in the following schedule. . . .
“(21) Permanent loss of the use of a . . . hand, shoulder, arm, forearm . . . leg or lower leg . . . shall be equivalent to the loss thereof.
“(b) Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in K.S.A. 44-510 and amendments thereto, and no additional compensation shall be allowable or payable for any temporary or permanent, partial or total disability.” K.S.A. 1999 Supp. 44-510d.
Thus, a scheduled injury includes compensation for the complete loss of the scheduled member and the permanent partial loss of use of the member. K.S.A. 1999 Supp. 44-510d(a)(21). With sched uled injuries, compensation is based on the schedule rather than based on the individual’s loss in earning power. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 771, 830 P.2d 41 (1992).
Temporary or permanent partial disabilities due to unscheduled injuries are calculated under K.S.A. 1999 Supp. 44-510e. This section defines a “[p]ermanent partial general disability” as one where the employee “is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto.” K.S.A. 1999 Supp. 44-510e(a). If an injury is determined to be an unscheduled injury, it typically leads to a larger award. Kansas Workers Compensation Handbook § 11.01, p. 11-1 (rev. ed. 1990).
The parties in this case do not dispute that Prater’s injuries to her right wrist and right ankle would constitute scheduled injuries under K.S.A. 1999 Supp. 44-5l0d if they had occurred separately. The question is whether these injuries are to be treated differently because they happened simultaneously. The problem of determining compensation for two simultaneous scheduled injuries was first discussed in Honn v. Elliott, 132 Kan. 454.
In Honn, the employee injured both of his feet after a work-related fall. The bones in both feet were crashed, and the employee’s impairment was estimated at 45 percent loss in one foot and 40 percent loss in the other. As a result of these injuries, the employee was unable to return to working on oil rigs or any work requiring him to be on his feet for long periods. The employer argued the workers compensation benefits should have been calculated based on two scheduled injuries rather than a general body disability.
In discussing the statute, the Supreme Court emphasized that the statutory schedule of injuries referred generally to single injuries — the only exception was the section covering the loss of hearing in both ears. Honn, 132 Kan. at 458; see K.S.A. 1999 Supp. 44-510d(a)(19). The court also noted that “[a]t no place in the schedule does it attempt to provide compensation for both members when they are in pairs, as ‘both hands,’ ‘both feet,’ ‘both eyes.’ ” 132 Kan. at 458. The court, when construing the entirety of R.S. 1923 44-510 (1930 Supp.), determined that when an em ployee injures both feet, the compensation should be determined under the permanent total disability statute and the unscheduled permanent partial disability provision. 132 Kan. at 458.
The Honn decision turned specifically on statutory language found in the total disability benefits section. In that section, the statute specifically stated that “[l]oss of both eyes, both hands, both arms, both feet or both legs, shall, in the absence of proof to the contrary, constitute a total permanent disability.” R.S. 1923 44-510(3)(a) (1930 Supp.).
The Honn decision is confusing. The trial court apparently calculated the employee’s benefits as unscheduled permanent partial disability based on the actual difference between his earnings before and after the accident. The Supreme Court affirmed this award. 132 Kan. at 459. While the court specifically noted the award should have been computed based on the presumption of a total permanent disability, it then indicated benefits should be determined pursuant to section (22). That section provided: “Should the employer and employee be unable to agree upon the amount of compensation to be paid in any case of injury not covered by the schedule, the amount of compensation shall be settled according to the provisions of this act as in other cases of disagreement.” R.S. 1923 44-510(3)(c)(22) (1930 Supp.). That section then continues by describing the method for calculating unscheduled permanent partial disability benefits.
The cases arising after Honn did little to clarify the court’s ruling. In Rogers v. Board of Public Utilities, 158 Kan. 693, 149 P.2d 632 (1944), the employee suffered an injury causing two separate and distinct hernias. On appeal from the agency, the trial court concluded the employee’s two hernias created a temporary total disability and was, therefore, not covered by the schedule. The trial court also found the schedule would apply only if there was one hernia, not two.
In addressing the coverage afforded to the worker in Rogers, the Honn case was never mentioned. The Supreme Court, even applying the old standard of liberally interpreting the statute in favor of the worker, concluded the language of G.S. 1935 44-510(3)(c) limited the recovery of compensation for scheduled injuries to the schedule itself and no additional compensation was proper. 158 Kan. at 696-97. The Supreme Court specifically rejected the employee’s argument that the statutory reference to “a” hernia in the schedule did not apply when a single accident caused two hernias. The court cited to G.S. 1935, 77-201(3), which indicated a singular word may be extended to several persons or things. 158 Kan. at 698. Consequently, the court found the employee was entitled to recover compensation for both hernias based on the scheduled benefits. Rogers, 158 Kan. at 702.
Rogers can be distinguished from Honn in the sense that two hernias are not listed in the provision stating the “[l]oss of both eyes, both hands, both arms,” etc., creates a presumption of permanent total disability. R.S. 1923 44-510(3)(a) (1930 Supp.). However, Rogers does implicate the Court’s view, contrary to statements in Honn, that the references to singular injuries in the schedule provision are not legally significant.
Simultaneous dual injuries were also considered in Wammack v. Root Manufacturing Co., 184 Kan. 367, 336 P.2d 441 (1959). In Wammack, the employee permanently injured the thumbs of both hands in the same accident. The trial court awarded benefits based on two scheduled injuries, and the employee appealed. The Supreme Court discussed the 1955 version of the Act and compared Rogers and Honn. In Wammack, the court emphasized that Honn turned on R.S. 1923 44-5l0(3)(a) (1930 Supp.), which made compensation for dual injuries to the listed feet compensable “on the basis of total disability.” 184 Kan. at 372. The court noted, however, this statute did not discuss the loss of two thumbs. Wammack, 184 Kan. at 372.
In Wammack, the Supreme Court concluded that even with dual injuries sustained in one accident, the schedule applied and the trial court’s ruling was affirmed. 184 Kan. at 373. The court went on to acknowledge that there might be circumstances where payment of compensation for dual scheduled injuries might seem unjust. The court held, however, the employee’s remedy was to appeal to the legislature, not the courts. 184 Kan. at 373.
The next significant case was Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976). In Hardman, the employee injured both hands in an accident involving electricity. The trial court held the employee suffered a permanent total disability and awarded benefits accordingly. On appeal, the Supreme Court held there was substantial evidence to support the finding the employee lost significant enough use of portions of both hands and these impairments made the employee incapable of obtaining employment on the open job market. 219 Kan. at 842, 846. For these reasons, they upheld the application of the presumption relied upon in Honn and affirmed the award for permanent total disability. 219 Kan. at 845-46; see also Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972) (two scheduled injuries coupled with an unscheduled injuiy and a finding the employee was totally disabled permitted an award of temporary total disability benefits rather than scheduled benefits).
None of the Board’s prior orders dealing with multiple scheduled injury claims even mention Rogers or Wammack or their impact in these types of cases. Perhaps they were not called to the Board’s attention. While respondents cited to these cases in their briefs to the Board, the Board did not respond to the citations.
Prater failed to specifically address the impact of Rogers and Wammack and indicates the cases were found unpersuasive by the Board and the administrative law judge. Prater also argues Rogers and Wammack “discussed injuries to scheduled members of the body not contained in the permanent total disability statute.” This begs the question since Prater is not seeking permanent total disability benefits. The amicus curiae brief contends that Rogers is irrelevant because it involves hernias (even though these are scheduled injuries) and that Wammack should be disregarded as an aberration.
The Supreme Court has recognized that when an employee sustains injuries in two different accidents — the first of which caused substantial impairment to one arm and the second caused substantial impairment to another arm — the second injury was still compensable as a scheduled injury unless the two injuries combined to result in a total permanent disability to the workman. Crouse v. Wallace Manufacturing Co., 207 Kan. 826, 831, 486 P.2d 1335 (1971) (recognizing Honn dealt with simultaneous injuries); see also Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992) (injuries to knee and forearm which occurred 6 months apart not compensable as a nonscheduled whole body injury).
Up to 1984, the status of the law on this issue remained uncertain, although it appeared the Supreme Court was backing away from its ruling in Honn. The cases thereafter seemed to award benefits based only on scheduled injuries or permanent total disability. No meaningful effort was made to reconcile Honn with Rogers and Wammack.
However, two more recent cases seem to have revived the Honn ruling. The first was Downes v. IBP, Inc., 10 Kan. App. 2d 39, 691 P.2d 42 (1984), rev. denied 236 Kan. 875 (1985). In Downes, this court upheld the award of permanent partial disability benefits based on K.S.A. 44-510e to a worker who had sustained repetitive trauma injuries to both hands and arms. 10 Kan. App. 2d at 42. The court held that Honn applied the presumption in what is now K.S.A. 44-510c to a case involving partial disability in parallel extremities. 10 Kan. App. 2d at 40. Downes extended the Honn rule — that simultaneous injuries to parallel members allowed for an award of permanent partial disability benefits — to repetitive injury cases. 10 Kan. App. 2d at 40-41.
The Downes rationale Was adopted by the Supreme Court in Murphy v. IBP, Inc., 240 Kan. 141, 727 P.2d 468 (1986). As in Downes, the employee in Murphy sustained carpal tunnel injuries in both hands and forearms. The Director of Workers Compensation awarded the claimant a 75 percent whole body disability award. The Supreme Court, relying on Honn, rejected the employer’s arguments that the injuries should be compensated under the scheduled injury statute. 240 Kan. at 143. However, the court’s ruling focused on the simultaneous injury of both of the employee’s hands and arms. 240 Kan. at 145; see also Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 27, 947 P.2d 1 (1997) (following Murphy); Stephenson, 250 Kan. at 772 (applying Honn rule to repetitive injuries to both upper extremities and holding statutory provision cutting back on Honn in such cases to be unconstitutional).
Whatever the status of Honn prior to 1984, its holding was revived in Downes and Murphy, at least when both arms or both hands are involved.
The reasoning in Honn allowing for an award of permanent partial disability benefits is perplexing. There is no apparent reason to transplant the section pertaining to permanent total disabilities to cases involving only permanent partial disabilities. Moreover, in Rogers it was held the singular terms in the schedule statute also included the plural of those terms. However, since the statute has been interpreted in this fashion for some time and the legislature has-not seen fit to change it, the legislature is presumed to agree with the court’s interpretation. Clanton v. Estivo, 26 Kan. App. 2d 340, 343, 988 P.2d 254 (1999).
The key language in Honn is still found in K.S.A. 44-510c(a)(2), with additional language. The Act still presumes the employee has sustained a total permanent disability if the employee loses both eyes, both feet, etc., or “any combination thereof” absent proof to the contraiy. Pruter argues the addition of the “any combination thereof’ language reflects legislative intent to make all multiple injury cases outside of the scheduled injury compensation scheme.
The Board’s interpretation and Prater’s arguments make two assumptions in interpreting K.S.A. 44-510c. First, they assume that the “loss of’ two limbs in this section equates to the “loss of use of’ the two limbs. While both Honn and Hardman involved the loss of use of limbs, the amount of impairment in those cases was substantially greater than is present in this case. The employees in Honn and Hardman suffered sufficient impairment in the use of the members to equate more to the loss of the entire limbs. Moreover, the more recent cases of Downes and Murphy reflect substantial whole body awards due to the loss of both hands and arms.
In addition, the Board assumes the language of K.S.A. 44-510c that “any combination” of the losses specified equates to the combination of one leg and one arm rather than the “combination of’ both feet and both arms.
All the cases applying the Honn rule have been limited to the loss of use of parallel limbs which resulted in significant impairment on the employee’s ability to work. Prater is not claiming she was totally and permanently disabled. She is seeking permanent partial benefits outside the schedule. The evidence established that Prater’s injuries did not create or even come close to a permanent total disability. That disability requires an injury which renders the employee “completely and permanently incapable of engaging in any type of substantial and gainful employment.” K.S.A. 44-5l0c(a)(2). Under the Board’s interpretation, Pruter suffered only a 7 percent body as a whole impairment. When an employee loses the use of parallel limbs, the impact on the employee’s ability to work is much more significant than if the employee loses partial use of nonparallel limbs.
Prater and the brief of the amicus curiae also argue that the schedules in K.S.A. 1999 Supp. 44-510d are exceptions to the “general rule” in the Act to compensate employees for the economic loss due to work-related injuries. As the exception to the “general rale,” they argue, K.S.A. 1999 Supp. 44-510d should be narrowly construed.
We find this argument to be without merit. K.S.A. 1999 Supp. 44-510d states the general rale for injuries to scheduled members and the Honn rale is the exception. In addition, compensation under K.S.A. 1999 Supp. 44-510e applies only if the disability “is not covered by the schedule in K.S.A. 44-510d.” K.S.A. 1999 Supp. 44-510e(a). We hold the schedule section to be the general rale, not the exception. If any rale is to be narrowly construed, it must be the exception created in Honn.
Moreover, it makes little sense to apply the Honn rule in every case with simultaneous scheduled injuries. We discern no logical reason to compensate an employee who sustains a comparatively minor dual injury different from an employee who sustains the two injuries at different times. Under the Board’s view, an employee who broke her ankle on day one and returned to work several days later, only to fall and break her wrist on day four, would be compensated differently from the employee sustaining both injuries in the same fall. The impact of the two injuries in both contexts are not significantly different.
The state of the law in this area is less than clear. Honn continues to be followed by the Supreme Court, at least in cases involving injuries to parallel limbs. We are duty bound to follow Supreme Court precedent absent some indication tire court is departing from the precedent. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998).
The Honn rule has been applied only to simultaneous injuries to parallel limbs which caused substantial impairments. The Honn rule being an exception to the statute, it should be narrowly construed. Since Prater’s injuries were not sustained to parallel limbs and did not create as serious impairments as in the cases applying Honn, we find Honn does not apply in this case.
We reverse the decision of the Board and remand this case for calculation of benefits based on two scheduled injuries. | [
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Pierron, J.:
This case arises out of a child custody case in Johnson County, Kansas District Court from a parentage action and the resulting custody agreement involving the parties in the Santa Fe, New Mexico District Court.
Corrine Louise Stephenson-Johnson was born on November 30, 1989, from a liaison between Bradford Johnson and Sherry Stephenson while both were living in France. In January 1990, Johnson filed a petition in the French courts to establish paternity. Three years later, the French court declared Johnson to be the father of Corrine. On December 31,1992, Johnson, now a resident of Atlanta, Georgia, filed a petition for paternity and custody in the Santa Fe, New Mexico District Court where Corrine and Stephenson had lived since June 1992.
On March 31, 1993, the New Mexico District Court entered a final judgment, based on an agreement between the parties, that included a finding of parentage in favor of Johnson and setting forth a detailed parenting plan regarding custody and residency for the then 3-year-old Corrine. In the next few years, the New Mexico District Court entered numerous orders detailing various changes in the parenting time and conditions, and it was not unusual for the case manager to have daily contact with the parents over the parenting arrangements.
In July 1995, the parties stipulated to a second custody order in which it was agreed that Corrine would live primarily in Santa Fe, New Mexico with Johnson and approximately 40% of her time with Stephenson, wherever she resided. The stipulation also provided that the parties anticipated further negotiations concerning residential custody after July 1996 and the case manager was to make a recommendation no later than June 1996.
As the case continued, the parties had extensive discovery that included psychological and other examinations. Among the evidence obtained from the mental health professionals was that Stephenson allegedly had a mixed narcissistic and borderline personality disorder and engaged in actions to alienate Corrine from her father.
Shortly before the July 1996 deadline set by the New Mexico court for the parties to arrive at a parenting plan, the parties agreed on a custody agreement entitled “Amended Parenting Plan.” As a preface, the agreement states:
“This Parenting Plan is a product of negotiations between the parties and is intended to put to rest years of hostility and legal action between the parties and to reach a comprehensive solution believed by both parties to be in the best interests of their daughter, Corrine Louise Stephenson-Johnson (“Corrine”). Both parties commit themselves to making this agreement work and to cooperating in good faith toward raising of Corrine.”
The crux of the custody agreement gave the parents joint custody of Corrine and implemented an unusual 3-year rotating residential custody arrangement. Johnson began with residential custody of Corrine from August 1996 through June 1999, and then Corrine would live with Stephenson for the next 3 years. The New Mexico District Court entered an order adopting the custody agreement.
In the course of negotiations on the custody agreement, Johnson told Stephenson that he was moving to Kansas with his family and Corrine. Johnson moved with Corrine to Johnson County, Kansas, in August 1996. After 6 months, Johnson filed a petition to establish a foreign judgment in Kansas and to make Kansas the home state for Corrine for all custody matters. In May 1997, the petition was granted.
Over the next year, the parties continued the litigation of the custody and visitation issues arising in the case. Among other things, the court established a visitation schedule and ordered var ious psychological evaluations. The catalyst for this appeal came on August 4, 1998, when Johnson filed a motion for sole custody of Corrine and to permit only supervised contact between Stephenson and Corrine. Over the next year, the court completed a custody evaluation of the parties, including various psychological evaluations and numerous motions and hearings.
The matter was tried to the court on June 28 and 29, 1999, and on August 3 and 4, 1999, during which the court heard testimony from numerous laypersons and experts. The trial court ultimately denied Johnson’s motion. The court stated that K.S.A. 60-1610(a)(2) allows a court to change or modify any prior order of custody when a material change of circumstances is shown. The court then stated that K.S.A. 60-1610(a)(3) requires the court to determine custody or residency of a child in accordance with the best interests of the child. The court also recognized that K.S.A. 60-1610(a)(3)(A) states that if the parties have a written agreement concerning custody or residency, it is presumed to be in the best interests of the child but that the presumption may be overcome if the court makes specific findings as to why the agreement is not in the best interests of the child.
The court concluded it first needed to decide whether there had been a material change in circumstances. The court discussed at length several portions of the testimony and held the evidence indicated there had not been a material change in the circumstances that would allow the court to modify the custody agreement entered by the parties in New Mexico in 1996.
Johnson first argues the trial court erred in requiring a showing of a material change in circumstances before the court would alter the existing written custody agreement. Johnson states the custody agreement entered below was akin to a default proceeding, and, thus, no showing of a material change in circumstances was necessary. Johnson requests this court to reverse and remand to the trial court to consider the statutory factors listed in K.S.A. 1999 Supp. 60-1610(a)(3)(B) and make a finding of what is in the best interests of the child. Johnson states the trial court reviewed the entire body of evidence to determine if there existed a material change in circumstances regarding the written custody agreement when it should have reviewed the evidence to determine what was in the child’s best interests.
Child custody is one of the most difficult areas faced by a trial court. The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. See Simmons v. Simmons, 223 Kan. 639, 642, 576 P.2d 589 (1978).
Kansas law on a court’s determination of child custody is clear. K.S.A. 1999 Supp. 60-1610(a)(3) requires a court to determine custody or residency of a child in accordance with the best interests of the child. However, the legislature has enacted specific legislation for a written custody agreement entered into by the parents. K.S.A. 1999 Supp. 60-1610(a)(3)(A) provides: “If the parties have a written agreement concerning the custody or residency of their minor child, it is presumed that the agreement is in the best interests of the child.” Additionally, if the court does not accept the written agreement, the court is required to make “specific findings of fact stating why the agreement is not in the best interests of the child.” K.S.A. 1999 Supp. 60-1610(a)(3)(A).
The language of K.S.A. 60-1610(a)(3)(A) concerning the presumption of a written custody agreement was added by the Kansas Legislature in 1983. See L. 1983, ch. 199, ¶ 1. The statute has remained virtually unchanged since its enactment. Yet, K.S.A. 60-1610(a)(3)(A) has been cited by only one Kansas decision, In re Marriage of Bradley, 258 Kan. 39, 899 P.2d 471 (1995), and that case did not substantively discuss the statute. In Bradley, the court stated it was unclear whether the parties resolved their disputes concerning custody and visitation prior to the entry of the divorce decree. The court found that even if the parties had executed an agreement, the presumption under K.S.A. 60-1610(a)(3)(A) would not apply because the agreement as reflected in the divorce decree contained no contingencies for one party moving out of state. As such, the court indicated there was no evidence at the time that either party was contemplating an out-of-state move. The court concluded there was no agreement on whether the best interests of the children would be served by moving with their mother out of state or by staying with their father. 258 Kan. at 42-43.
Equally clear in Kansas is the fact that any change of custody or residency is controlled by K.S.A. 1999 Supp. 60-1610(a)(2), which provides that “the court may change or modify any prior order of custody when a material change of circumstances is shown.” What constitutes a material change in circumstances has been said to elude precise and concise definition. Rather, it involves an alteration and passage from one condition to another and requires consideration of a variety of factors or circumstances. See In re Marriage of Thurmond, 265 Kan. 715, 721, 962 P.2d 1064 (1998). A material change in circumstances has been defined as a change that “ ‘must be of a substantial and continuing nature as to make the terms of the initial decree unreasonable.’ ” 1 Elrod, Kansas Family Law Handbook § 13.043 (rev. ed. 1990); see In re Marriage of Whipp, 265 Kan. 500, 962 P.2d 1058 (1998).
In other words, we know it when we see it.
The material change in circumstances rule in K.S.A. 1999 Supp. 60-1610(a)(2) should be applied with due regard for the policies it was designed to further. Two principal policies are served by it. First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in his or her relationships to important people and to his or her environment. Second, the courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions. See Niedert and Niedert, 28 Or. App. 309, 313, 559 P.2d 515, rev. denied 277 Or. 237 (1977).
The main thrust of the current argument is whether the court must make a finding that a material change of circumstances has occurred under K.S.A. 1999 Supp. 60-1610(a)(2) in order to modify the existing written custody agreement or whether the trial court can modify the agreement based simply on a finding that the modification is in the best interests of the children under K.S.A. 1999 Supp. 60-1610(a)(3). The first element in this statutory requirement is K.S.A. 1999 Supp. 60-1610(a)(3)(A) — a written custody or residency agreement is presumed to be in the best interests of the child. Kansas case law on the subject turns on the resolution of whether the prior custody proceedings were substantially developed and presented to the court or whether custody was arranged by a written agreement and merely uncritically adopted by the court.
In Hill v. Hill, 228 Kan. 680, 685, 620 P.2d 1114 (1980), the court held:
“[Wjhere 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.” 228 Kan. at 685.
See Rosenburg v. Rosenburg, 6 Kan. App. 2d 882, Syl. ¶ 3, 636 P.2d 200 (1981).
Stephenson argues Hill is factually distinguishable from the instant case. In comparison to the present case, Stephenson argues in Hill there was no mention of prior evidentiary hearings, no court-ordered home studies or evaluations, and no appointment of a case manager; further the mother in Hill had already moved from the area at the time the agreement was approved by the court. Stephenson argues the trial court in Hill was “truly in the dark as to the circumstances existing at the time of the presentation of the settlement agreement for approval.”
When the Supreme Court decided Hill in 1980, K.S.A. 60-1610 was substantially different than it is today. The legislature reworked K.S.A. 60-1610 in 1982. K.S.A. 1980 Supp. 60-1610 did not include the material change in circumstances rule which was added in 1982 in L. 1982, ch. 152 § 9 and did not include the presumption concerning written custody arguments added by the legislature in 1983 in L. 1983, ch. 199 § 1. Stephenson argues that if Johnson’s arguments are followed, then the legislature created meaningless legislation by enacting K.S.A. 60-1610(a)(2) and (a)(3)(A). Johnson’s argument appears to be that a parent can ignore a court-approved custody agreement, begin relitigating custody, and not be subject to any shifting of the burden of proof or be bound to produce evidence sufficient to overcome a statutory mandate for a material change in circumstances.
Another case decided by the Kansas courts prior to the 1982 and 1983 amendments to K.S.A. 60-1610 was Anhalt v. Fesler, 6 Kan. App. 2d 921, 636 P.2d 224 (1981). There, the Court of Appeals extended the Hill doctrine to custody decrees entered upon written stipulation of the parties. The Anhalt court stated the custody decree was not a true judicial determination and was more akin to the award of custody in a default proceeding. 6 Kan. App. 2d at 924. The court stated:
“Where a custody decree is entered on written stipulation, 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 die initial hearing whether a change of circumstances has since occurred or not.” 6 Kan. App. 2d 921, Syl. ¶ 4.
Several other cases have interpreted Hill. We extended the Hill doctrine to child support in Stovall v. Stovall, 10 Kan. App. 2d 521, 522, 707 P.2d 1082 (1985). There, the court found a change in circumstances is not necessary, under Hill, when the issue being litigated has not previously been litigated.
In In re Marriage of Kiister, 245 Kan. 199, 202, 777 P.2d 272 (1989), the court again extended Hill to situations where the facts concerning visitation were not substantially developed and presented to the court. The court held that a district court retained the discretion to later consider those facts in modifying visitation rights. The parties in Kiister initially contested the custody and visitation determinations, but the evidence indicated the parties settled the matter and the proceedings moved through the court as an uncontested matter. The Kiister court stated that the overriding policy in Kansas is that child custody matters and visitation rights are to be determined in accordance with the best interests of the child. 245 Kan. at 203; see Lamberson v. Lamberson, 164 Kan. 38, 42, 187 P.2d 366 (1947). The Kiister court held the trial court erred in excluding evidence of the parties’ actions prior to the divorce. 245 Kan. at 202-03.
Kiister dealt primarily with visitation rights. K.S.A. 1999 Supp. 60-1616(c) gives the court the ability to “modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.” Clearly, we are not dealing with the same type of hurdle present in custody modifications. The statutory implication is that custody orders that are controlled by the material change in circumstances rule are intended to be more permanent than those concerning visitation.
In In re Marriage of Perry, 25 Kan. App. 2d 447, 962 P.2d 1140 (1998), the parties divorced in 1993, having one child born of the marriage. As far as evidence being presented to the court, the court stated: “As divorces go, this one was amicable, with the parties entering into a written stipulation that was approved by the California divorce court as to B.P.’s custody and the visitation rights of the parties.” 25 Kan. App. 2d at 448. The 1993 agreement provided for a rotating 6-month residential custody schedule until the child was of school age, then she would live with the father during school and the mother during the summers. The parties executed a subsequent custody agreement in 1995 (because the father was contemplating joining the Marines) wherein it left undisturbed, joint legal and physical custody, but provided the mother with primary residential custody in Alaska. After the father failed to join the Marines as conditioned in the 1995 agreement, the father, who was then a Kansas resident, sought enforcement of the 1993 agreement in Kansas.
After a full evidentiary hearing, the trial court in Perry found the condition had not come to pass, that the 1993 custody agreement should be followed, and that it was in the child’s best interests that the father be the primary residential custodian. On appeal, the mother argued the trial court erred in finding that a material change in circumstances had occurred that warranted a change of the child’s residential custody. The Kansas Court of Appeals found the mother’s phrasing of the issue was flawed since the trial court never mentioned a material change of circumstances standard. The court stated:
“Lynette’s argument presumes the district court must find a material change of circumstance before custody could be modified. She is incorrect. As previously noted, there were no full blown evidentiary proceedings in either 1993 or 1995 concerning B.P.’s custody. Consequently, the district court may consider, based upon die totality of the circumstances, what custody order would be in the best interests of B.P. See Hill v. Hill, 228 Kan. 680, Syl. ¶ 2.” 25 Kan. App. 2d at 451.
Courts in other jurisdictions have resolved the tension between the material change in circumstances rule and the best interests of the child in two ways. Each approach has its problems. Some states have abolished the “substantial change” rule entirely. In those states, the only issue in a modification action is whether the change in custody would be in the best interests of the child. See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 (1982). That approach is consistent with the primaiy focus on the best interests of the child but does not address the fact that the threat of litigation itself may undermine the stability of custodial relationships. See Wexler, “Rethinking the Modification of Child Custody Decrees,” 94 Yale L.J. 757 (1985).
Kansas and other states have concluded that the material change in circumstances rule should not apply to decrees resulting from default or stipulation. See Hill, 228 Kan. at 685; Anhalt, 6 Kan. App. 2d 921, Syl. ¶ 4. The Washington Supreme Court, for example, has held that the rule should not apply to unlitigated decrees because of the continuing paramount concern for the best interests of the child:
“A couple should not be able to foreclose judicial inquiry into facts which may assist in making the critical determination of how a child’s interests would best be served, by agreeing as to who should receive original custody. 0 * * ‘[T]he primaiy concern of the courts is always the welfare of the child. It would be unrealistic to assume that this concern can be served as well by a court which does not hear evidence and does not have an opportunity to observe both parents as it can by one in which the right of one parent to custody is contested by the other.’ ” In re Marriage of Timmons, 94 Wash. 2d 594, 598-99, 617 P.2d 1032 (1980), quoting In re Rankin, 76 Wash.2d 533, 537, 458 P.2d 176 (1969).
Custody decrees are not always adjudicated, and when they are not, the res judicata policy underlying the material change in circumstances rule in K.S.A. 1999 Supp. 60-1610(a)(2) is not very persuasive. See Hill, 228 Kan. 680, Syl. ¶ 1 (the doctrine of res judicata is not to be applied with the same strictness in child custody matters as it is applied in other civil litigation). Even more importantly, an unadjudicated custody decree is not based on an objective, impartial determination of the best interests of the child. When a child’s custody is determined by stipulation or default, the custody determination may in fact be at odds with the best interests of the child.
The involvement of parents in the resolution of domestic matters is of great importance. It is well settled that divorcing spouses have more flexibility in crafting their own property settlement agreements than do courts. See Mundon v. Mundon, 703 N.E.2d 1130, 1134 (Ind. App. 1999). Parents’ active participation in authoring their own justice should promote a spirit of cooperation that is best for everyone involved. Unfortunately, as is clearly evident in the present case, cooperation is not always the result. Negotiation of a divorce and custody settlement can be as contentious and bitter as any litigated proceeding.
When based on a stipulation or default, a custody decree may reflect such inappropriate factors as improper influence exercised by one parent over the other or a temporary loss of resolve by one parent caused by stress, guilt, or financial distress or the unwillingness of the parent to subject his or her child to a custody battle that causes that parent to give in to the demands of the other. In such a circumstance, the best interests of a child may be overcome by other issues. Whether the best interests of the child are in fact served by a custody arrangement determined by stipulation or default, therefore, is sometimes only fortuitous. By contrast, a judicial determination of custody based on the child’s best interests is hopefully based on an objective and impartial comparison of the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.
The primary focus of the court in custody litigation must be on the best interests of the child. Hill and its progeny hold it is inconsistent with the court’s primary responsibility to protect the best interests of the child to allow the parties, by initial agreement as to custody, to evade judicial inquiry into facts relevant to a custody decision. However, if the facts in a custody determination are substantially developed and presented to the court, and the court approves of the written custody agreement, then the protective provisions of K.S.A. 1999 Supp. 60-1610(a)(3)(B) are activated. Consequently, such a custody agreement is presumed to be in the best interests of the child and, as such, the provisions of K.S.A. 1999 Supp. 60-1610(a)(2) would prohibit alteration or modification of the custody agreement unless the petitioning party could prove that a material change in circumstances has occurred.
The facts in the case at bar are not comparable to Hill or any of its progeny. The custody litigation in the New Mexico District Court was extensive and bitter for several years before the court entered the custody agreement allowing for the 3-year rotating residence schedule. It is unrealistic to argue the New Mexico District Court was not substantially aware of the important facts of this case prior to its approval of the 1996 custody agreement.
We note this was not the first custody agreement entered into by the parties but was in fact the third. Prior custody agreements had been entered by the court in 1993 and 1995. Also, the record is replete with psychological interviews and evaluations, doctors’ affidavits, findings of fact and conclusions of law by the district court, and court-ordered mediation which all occurred prior to the adoption of the 1996 custody agreement. Finally, pursuant to the parties’ first custody agreement in 1993, the court appointed a court monitor — the equivalent of a case manager in Kansas. The court monitor was specifically ordered to monitor Corrine’s welfare.
We find the trial court did not err in analyzing this case under the material change of circumstances rule in K.S.A. 1999 Supp. 60-1610(a)(2). The purpose behind the material change in circumstances rule is, ultimately, to promote the best interests of the child. When a trial court is substantially aware of the facts prior to approval of a written custody agreement and approves the same, the approved agreement is presumed to be in the child’s best interests. We emphasize that trial courts in those circumstances are obliged to consider material changes in circumstances when deciding whether a change of custody is appropriate. Many things can constitute such changes. This approach should provide the necessary flexibility to safeguard the true best interests of the child.
We do not find the 3-year rotating residency schedule to be facially invalid. Considering the midwest and the east coast locations of the parents, a 3-year rotating residency schedule is understandable. The custody agreement creates some semblance of stability for major periods of Corrine’s youth. The custody agreement provides that the first 3-year period for Corrine’s first three primary school years would be with Johnson, the second 3-year period for Corrine’s second three primary school years would be with Stephenson. The next 3-year period with Johnson corresponds to Corrine’s middle school years, and her last 3-year period with Stephenson corresponds to her high school years.
Johnson also argues the trial court abused its discretion by enforcing the agreement where there was overwhelming evidence that the change would be adverse to Corrine’s best interests.
Johnson states that throughout the trial court’s decision, the court noted serious concerns about Stephenson’s psychological state, her ability to deal with and observe interpersonal sexual and parental boundaries between herself and Corrine, continuing and considerable inappropriate expressions of hostility towards Johnson, and her “priming” Corrine and her son Matthew to sway the experts and the court in Stephenson’s favor. Johnson also states the court accepted the opinion of the court-appointed psychologist that it was in Corrine’s best interests to remain with Johnson, but indicated that such a finding was not a sufficient change in circumstances to overcome the presumption favoring enforcement of the previously entered custody agreement. The court indicated that Johnson’s parenting skills were good and had improved greatly, but the hostility and anger exhibited by Stephenson had consistently increased since the custody agreement.
Stephenson cites testimony from Dr. John Spiridigliozzi, a psychologist, who testified on her behalf. Dr. Spiridigliozzi testified that Stephenson did not suffer from any personality disorders, that she experienced typical situational anger from the custody dispute, and that she had good child rearing skills, understood her daughter’s needs, and provided Corrine with multiple growth-producing opportunities.
Dr. Spiridigliozzi also testified concerning Corrine. He said that she is an intelligent, mature, high-functioning girl who is very close to her mother, and that she was not obsessed with either removing herself from her father or protruding herself into her mother’s life for the next 3 years.
Whether a child custody order will be changed or modified rests in the sound judicial discretion of the trial court. Richardson v. Richardson, 211 Kan. 172, 172-73, 505 P.2d 690 (1973). As in all child custody cases, a district court’s decision should not be disturbed unless it has abused its discretion. Dickison v. Dickison, 19 Kan. App. 2d 633, 638, 874 P.2d 695 (1994). Discretion is abused when no reasonable person would take the view adopted by the trial court. Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).
Actions relating to the custody of children are predominantly factual, and decisions are wisely left to the sound discretion of the trial court. See In re Marriage of Talkington, 13 Kan. App. 2d 89, 93, 762 P.2d 843 (1988). In Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978), the Kansas Supreme Court stated:
“The trial court is in the most advantageous position to judge how the interests of the children may best be served. [Citations omitted.] While an appellate court has only the printed page to consider, die trial court has the advantage of seeing the witnesses and parties, observing their demeanor, and assessing the character of the parties and quality of their affection and feeling for the children. [Citation omitted.]”
Our standard of review is to determine whether the trial court abused its discretion in finding that a material change of circumstances had not occurred since the New Mexico District Court entered the custody agreement in 1996. The trial court gave much credence to the fact that the parties knew the entire situation when they executed the 1996 custody agreement and, as discussed above, the New Mexico District Court was equally aware. After a complete review of the record, we find no such abuse of discretion by the trial court. There was substantial competent evidence that there had not been changed circumstances of such a nature to rebut the appropriateness of the current child custody order.
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Beier, J.:
Defendant-appellant Damon DeWayne Steen seeks reversal of his conviction for felony possession of marijuana, arguing the trial court erred in refusing to suppress marijuana seized unlawfully and his subsequent statements to police. This case requires us to revisit and further refine the potential components of the “reasonable and articulable suspicion” necessary for law enforcement agents to stop a car. Because we enunciate standards applicable to computer databases employed by law enforcement for the first time, and the evidentiary record is insufficient to determine whether configuration and/or use of the database at issue here met these standards, we reverse Steen’s conviction and remand for a further hearing on Steen’s motion to suppress and subsequent proceedings as necessary.
The essential facts are these: While on routine patrol, Officer Fred Farris observed a black male driving and a black female riding in a car. The officer ran a check of the car’s license plate in a computerized database available for that purpose. The results of the check indicated that a black male by the name of Damon DeWayne Steen was “associated with” the car. The officer also learned that a person by that name had an outstanding arrest warrant.
Farris stopped the car and checked the driver’s identification, which confirmed that the driver was indeed Steen. Farris arrested Steen on the outstanding warrant, searched him, and discovered a small quantity of marijuana in his pocket. Farris also searched the car and found “a little bit more” marijuana under the front seat. Steen ultimately was charged with and convicted of felony possession after denial of his motion to suppress the marijuana seized and his subsequent statements to police.
None of the known facts recited above is in dispute. More important, the limits of the officer’s, the district court’s, and this court’s knowledge also are not in dispute.
Neither the record on appeal, the parties’ briefs, nor counsels’ statements at oral argument supply us with the information nec essary to determine how the database is compiled, by whom it is compiled, or any other indicia of its contours or reliability, including its breadth or depth. Efforts to obtain this information from Farris at the district court hearing were largely unsuccessful. And, at oral argument, counsel for the State was unable to reassure us that a person’s name cannot end up recorded in the database as “associated with” a given car because of a brief and entirely innocent encounter, including situations in which the person never set foot in the vehicle.
This means, for example, that we do not know whether Steen’s name was retrieved from the database because he happened to be a witness from outside the car when it was involved in a collision on some previous occasion or because he had driven it or been a passenger in it on some previous occasion. If Steen became “associated with” the car through the first type of encounter, his name in the database would not have been a meaningful predictor of Steen’s presence in the car on the day in question. If Steen’s “association with” the car arose out of his previous occupancy of the car, his name in the database would have been such a predictor.
When the facts material to a motion to suppress evidence are not in dispute, the issue of whether to suppress is one of law subject to unlimited appellate review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
A vehicle stop is a seizure within the meaning of the Fourth Amendment, analogous to an investigative detention. State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998) (citing United States v. Botero-Ospina, 71 F.3d 783, 786 [10th Cir. 1995]). It passes muster under the Fourth Amendment when there is an articulable and reasonable suspicion that either the vehicle or an occupant is otherwise subject to seizure for a violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). The lawfulness of such a stop does not hinge on a reasonable suspicion of current or ongoing criminal activity, but may be based on a reasonable suspicion of past criminal activity. United States v. Hensley, 469 U.S. 221, 229, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985). Furthermore, reasonable suspicion need not be based on a law enforcement officer’s own observations or knowl edge, but may be based on the collective knowledge of other officers. See 469 U.S. at 232-33.
The reasonable suspicion standard is a less demanding standard than probable cause. State v. Finley, 17 Kan. App. 2d 246, 250, 838 P. 2d 904, rev. denied 251 Kan. 940 (1992) (quoting Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S. Ct. 2412 [1990]). For reasonable suspicion to stop a car, a police officer must be able “to point to specific articulable facts which reasonably create a suspicion that the occupant of the vehicle . . . committed a crime.” 17 Kan. App. 2d at 250. While an inchoate and unparticularized suspicion or hunch is insufficient, the “ level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” 17 Kan. App. 2d at 250 (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]). All that is required is “ “ ‘some minimal level of objective justification” for making the stop.’ ” 17 Kan. App. 2d at 250 (quoting Sokolow, 490 U.S. at 7).
The information apparently available to Farris at the time of the stop was (a) a black male with the defendant’s name was associated in some unknown manner with the car; (b) a black male with the defendant’s name was wanted on a felony arrest warrant; and (c) a black male was driving the car. Without more information about how the black male became “associated with” the car, Farris would have known nothing that would support “a reasonable and articulable suspicion” that the black male he was looking at was the same black male the warrant prompted him to look for. On the limited evidentiary record before us, “associated with” was not necessarily equal or even equivalent to “formerly inside of’ or “likely at some future point to be driving or riding in.”
Simply put, if the database, because of its simultaneous breadth and shallowness, could not place Steen in the car at some other time, it could not supply the logical link necessary to protect his Fourth Amendment rights or those of any other black male who may have happened to be driving or riding in the car the day Farris observed it and ran a check on its plates. As Farris confirmed, he would have stopped any black male he saw in the car that day. This admission, without further information about the configuration and/or use of the technology in which Farris placed his trust, betrays the absence of some minimal level of objective justification for the stop.
We find that, as a matter of law, the State has, as yet, failed to meet its burden to show that the stop and resulting search were constitutional. See K.S.A. 22-3216. Although it appears Farris acted in good faith, we cannot bless this stop and search without further information. Because a database that is constructed to be a tool of law enforcement is not the analytical equivalent of a search warrant signed by a presumably neutral and detached magistrate, good faith alone cannot support admission of the marijuana and statements.
On remand, the State must present evidence that (a) the database includes only those “associated with” cars because they occupied them previously as a driver or a passenger, or (b) while the persons in the database are not limited to those who have driven or been riders in cars, the individual officer who runs a check, including Farris in this case, receives specific information from the database or elsewhere to establish such a link before a stop is made. If the State cannot present such evidence, the fruits of this stop and the following events must be suppressed. Further, the State’s lawyers and law enforcement personnel will need to reconfigure the database and/or the retrieval system so that technology serves justice, rather than the reverse.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Marquardt, J.:
Fire Baptized Holiness Church (Church) appeals the decision of the Board of Tax Appeals of the State of Kansas (BOTA) denying its application for exemption from ad valorem taxation.
The Church, a nonprofit entity, owns Independence Bible School (School), which is funded through student tuition and charitable contributions. The dormitory that is located on the School’s property had been tax-exempt until 1997 or 1998. The dormitory does not operate for profit.
In 1998, the Church submitted a new application for ad valorem tax exemption for the new grade school, dormitories, shop building, high school, residence, and storage building based on K.S.A. 79-201a Second. The Montgomery County Appraiser recommended that BOTA grant the exemption and noted that the school building was added to property that was already exempt. Neither party requested a hearing.
The dormitory building housed high school students, “dorm parents,” and a cafeteria for elementary and high school students. BOTA found that the dormitory was not used exclusively for religious purposes and denied the exemption. The Church filed a petition for reconsideration, which BOTA granted.
The County Treasurer and County Appraiser did not attend the hearing on the Church’s petition for reconsideration. The School’s superintendent testified that in addition to housing students and dorm parents, the dormitory’s cafeteria also served as an indoor gymnasium for physical education classes in inclement weather and an auditorium for the School’s Christmas program. The dormitory was not used for any purpose unrelated to the School.
BOTA again denied the exemption and found that the use of the property did not satisfy the requirements of K.S.A. 79-201 Second because the property’s predominant use was as a dormitory, a “non-educational use.” The Church timely appeals.
Under the Kansas Constitution and Kansas statutes, taxation is the rule, and exemption is the exception. One claiming exemption from taxation has the burden of showing that the use of the property comes clearly within the exemption claimed. Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 44, 254 P.2d 830 (1953). Tax exemption statutes are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. Presbyterian Manors, Inc. v. Douglas County, 268 Kan. 488, 492, 998 P.2d 88 (2000).
According to K.S.A. 77-621(c)(4) and 77-621(c)(8), this court shall grant relief from a BOTA order only if it determines that BOTA erroneously interpreted or applied the law or BOTA’s action is “otherwise unreasonable, arbitrary or capricious.”
BOTA is a specialized agency that exists to decide taxation issues. Accordingly, decisions made within its area of expertise should be given great weight and deference. However, if this court finds that BOTA’s interpretation is erroneous as a matter of law, we will take corrective steps. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999). Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
On appeal, the Church argues that the dormitory building is used exclusively for religious and educational purposes and should be exempt from taxation. K.S.A. 1999 Supp. 79-201 Second provides for an ad valorem tax exemption, in pertinent part, for “[a]ll real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes.”
The Church maintains that BOTA placed an unreasonably strict construction on the statute and the term “exclusively.” Under constitutional and statutory provisions, property must be “used exclusively” for exempt purposes. The phrase “used exclusively” in .the constitution and statute means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated and without participation in any other use. Womans Club of Topeka v. Shawnee County, 253 Kan. 175, 186, 853 P.2d 1157 (1993).
Kansas courts have endorsed a broad definition of “education”:
“ ‘It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement.’ ” National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 400, 690 P.2d 1366 (1984).
The breadth of this definition is evident from its application in a variety of cases. For instance, in National Collegiate Realty Corp., the court concluded that the national headquarters of the NCAA, where activities occur such as rule-making, publication and dissemination of information, and investigation and discipline for recruiting violations, was property used exclusively for educational purposes and granted the exemption under K.S.A. 1983 Supp. 79-201 Second. 236 Kan. at 404-05; see Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 859, 473 P.2d 1 (1970).
The Church argues that dormitories could be viewed as automatically exempt because they are an essential component of education. In Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 685, 508 P.2d 911 (1973), the student dormitories were tax exempt based on their exclusive use for educational purposes. The residential properties occupied by teachers, staff, and their families were not tax exempt. 211 Kan. at 694.
The dormitory building in the present case provides a sharp contrast to the teachers’ residences in Seventh Day Adventist. The dormitory houses only students who attend the school and dorm parents whose duty it is to monitor the students. Students use the building every day for lunch, and although classes are not regularly scheduled there, the building is used for physical education and music classes when needed.
The occupancy of a residence does not, by itself, constitute an educational or religious use. Seventh Day Adventist, 211 Kan. at 694. Rather, an examination of the underlying purposes for such occupancy is necessary. In Sigma Alpha Epsilon Fraternal Ass’n v. Board of County Comm’rs, 207 Kan. 514, 519, 485 P.2d 1297 (1971), the court held that a college fraternity was not used exclusively for educational purposes because the property was used for many fraternal purposes, which included initiations, parties, and other social activities.
In Kansas Wesleyan Univ. v. Saline County Comm’rs, 120 Kan. 496, 497, 243 Pac. 1055 (1926), the court granted an exemption for a university president’s residence because official meetings and school gatherings held at the president’s residence were part of the machinery by which the affairs of the institution are administered.
Given the uses of the dormitory building, it is clear that this property is used exclusively for educational purposes in light of our courts’ adherence to a broad definition of “education.”
Reversed and remanded with directions to grant the exemption. | [
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Russell, J.:
In September 1997, Victor DiPietro traveled from his home in Washington to Wichita, Kansas to pick up a business jet he had purchased from Cessna Aircraft Company (Cessna). While at the Cessna Service Center, he met with a flight instructor to obtain a special certificate so he could fly his new plane back to Seattle. DiPietro and the flight instructor were conducting a preflight inspection of the aircraft when DiPietro tripped over a curb and fell backwards into a concrete drainage ditch, fracturing his lower right arm and wrist.
The aircraft was parked on a ramp area adjacent to the drainage ditch at the time that DiPietro fell. He sued Cessna, claiming Cessna was negligent for failing to provide adequate protective measures, such as a barrier, which would prevent customers from falling into the drainage ditch. He further alleged the drainage ditch posed a dangerous condition of which Cessna failed to provide adequate warning. Cessna defended by contending the ditch was an open and obvious hazard, of which DiPietro was fully aware.
After DiPietro’s fall, Cessna erected a fence surrounding the area of the drainage ditch to prevent anyone else from falling into it.
The trial court ruled at the pretrial stage and again during trial that the subsequent erection of the fence was inadmissible pursuant to K.S.A. 60-451. The case was submitted to a jury, and the jury returned a defendant’s verdict, finding Cessna 20 percent at fault and DiPietro 80 percent at fault. DiPietro challenges the propriety of the trial court’s rulings on the inadmissibility of Cessna’s subsequent remedial conduct in this appeal.
The admissibility of subsequent remedial conduct is governed by K.S.A. 60-451:
“When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.”
DiPietro argues that the trial court’s rulings on the admissibility of this particular evidence should be reviewed de novo by this court. In support of his argument, he cites Glassman v. Costello, 267 Kan. 509, 517, 986 P.2d 1050 (1999), for its holding that statutory interpretation is a question of law, and an appellate court’s review of questions of law is unlimited.
DiPietro misapprehends the scope of the holding of Glassman. Glassman does not deal with the admissibility of evidence. Rather, it concerns the qualifications of an expert witness under K.S.A. 60-3412, which is a purely statutory enactment. While it is true that the common-law rules of evidence have been adopted by the legislature in Article 4 of Chapter 60 of the Kansas Statutes Annotated, the statutory enactment did not convert questions of admissibility of evidence to questions of law subject to a de novo review.
“The standard of review applied to questions involving tire admissibility of evidence at trial is one of abuse of discretion. [Citation omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).
DiPietro filed a pretrial motion seeking to introduce evidence of the fence to rebut Cessna’s allegation of his comparative fault. The trial court made a prehminary ruling that subsequent remedial conduct was inadmissible and directed plaintiff s counsel to make a motion outside the jury’s presence regarding the evidence if he believed developments at trial made the evidence admissible for other purposes.
DiPietro attempted to bring in the evidence of the fence under two different theories during trial. First, he argued Cessna’s cross-examination of him opened the door to rebut evidence of his comparative fault. Second, during DiPietro’s direct examination of a Cessna employee, testimony was introduced as to how high a fence might be erected without hindering aircraft operations. DiPietro argued this testimony placed feasibility at issue, and that feasibility creates an exception to the statute barring evidence on subsequent remedial conduct.
When DiPietro argued during trial that evidence of the fence fell within the exceptions to K.S.A. 60-451, the trial court stated:
“To me it’s subsequent remedial conduct which is prohibited by the statute, unless there’s agreement among the parties. . . . [The sjtatute says not admissible. I believe the only way I would allow it is if the parties agree it is. Is there an agreement?”
The essence of the trial court’s holding seems to be that evidence of subsequent remedial conduct is never admissible, except by agreement of the parties. The trial court spoke too broadly, as there are indeed exceptions to the general rule that prohibits the admis sibility of evidence of subsequent remedial conduct. Those exceptions that are pertinent to this case are discussed below.
Even though the trial court misstated the criteria for admissibility of the evidence, we find it was harmless error. Evidence properly ruled inadmissible at trial is not grounds for reversal, even if the trial court relied upon incorrect reasoning in making its ruling, and evidence wrongfully excluded will not be overturned unless it affirmatively appears from the record the error prejudicially affected the substantial rights of the parties. Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 122, 883 P.2d 1120 (1994).
We first examine DiPietro’s contention that the evidence should have been admitted to prove the feasibility of erecting a barrier or fence. He correctly argues that K.S.A. 60-451 excludes evidence of subsequent remedial or precautionary measures taken by the defendant after an accident for the purpose of proving the defendant’s negligence but permits the admission of such evidence when relevant to prove other matters at issue in the case. In support of this position, he cites several Kansas cases: Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982) (control); Siruta v. Hesston Corp., 232 Kan. 654, 666-68, 659 P.2d 799 (1983) (feasibility of alternate design in products liability case); and Huxol v. Nickell, 205 Kan. 718, 722-24, 473 P.2d 90 (1970) (responsibility for erecting barricade).
He primarily relies upon Siruta, arguing that Cessna placed at issue the feasibility of erecting a fence at that location. In that case, Justice Prager wrote: ‘We hold that where evidence of remedial or precautionary measures is not offered to prove negligence or culpable conduct, it is admissible when offered for other relevant purposes such as the feasibility of a design change in a products liability case.” 232 Kan. at 668.
Siruta was a products liability case. The case at hand is a premises liability case. DiPietro admits that Kansas has never extended the feasibility concept to a premises liability case, but cites a fine of cases from other jurisdictions which do so: Lundquist v. Nickels, 238 Ill. App. 3d 410, 605 N.E.2d 1373 (1992); Pyle v. Prairie Farms Dairy Inc., 777 S.W.2d 286 (Mo. App. 1989); Cech v. Montana, 604 P.2d 97 (Mont. 1979); Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979); and Jones v. Robert E. Bayley Constr. Co., Inc., 36 Wash. App. 357, 674 P.2d 679 (1984).
We note that feasibility is a concept that developed out of products liability cases. We decline to decide whether it should be extended to premises liability cases, as DiPietro urges, because we find that the evidence upon which plaintiff relies to argue that feasibility had been put in issue simply does not meet the Siruta prerequisites for admissibility. The Siruta opinion meticulously analyzes the circumstances in which subsequent remedial conduct should be admitted to show feasibility of a design change.
In Siruta, defendant’s motion in limine was granted, precluding plaintiff from submitting evidence of subsequent design changes in his case in chief. It was not until after defendant presented testimony of its own expert that a design change proposed by plaintiff was not feasible that the court allowed the plaintiff to cross-examine defendant’s witnesses about subsequent design changes. The Supreme Court approved this method of determining when subsequent remedial conduct should be admitted, holding:
“In other words, in die field of products liability the rule excluding evidence of subsequent modifications has not been applied where such evidence is offered to show the technological or economic feasibility of alternative designs which would have prevented die injuiy. That is exactly the situation which we have in the case presently before us. The trial court refused to allow the plaintiff to admit evidence of subsequent design changes until the testimony of defendant manufacturers expert had raised the issue as to the technological or economic feasibility of the design change suggested by plaintiffs expert.” (Emphasis added.) 232 Kan. at 667-68.
When we examine the context of plaintiff s attempt to offer evidence of the subsequent erection of the fence, we find marked differences. First, the defendant did not present expert testimony that erection of a fence or barricade was not feasible. The only testimony that could possibly be construed as testimony that a fence was not feasible came from a Cessna employee called by the plaintiff in his case in chief. The employee testified that the proximity of the drainage ditch to a ramp on which aircraft were taxied around meant that a fence of more than a “couple feet” would hinder aircraft operations because the wing tips of certain planes might collide with the fence during landing or parking. He never asserted that installation of a fence or any other protective barrier was not feasible.
Plaintiff argues that the fence that was actually installed was 31 inches in height, 7 inches more than 2 feet. Even if the testimony had not come in during plaintiff s case in chief, we do not find that the minor discrepancy between the employee’s testimony that a fence a “couple feet” in height was feasible and the height of the fence actually erected to be significant enough to trigger the need for the admission of evidence of subsequent remedial action.
The trial court properly excluded the evidence of subsequent remedial measures because the record shows the defendant never placed feasibility in dispute.
DiPietro next argues that evidence of Cessna’s subsequent remedial conduct should have been admitted to rebut Cessna’s assertions of his comparative fault for his injuries. Cessna affirmatively argued at trial the ditch was open and obvious and DiPietro could have avoided the accident had he exercised due care. DiPietro argues that evidence of the fence is highly probative to negate Cessna’s claim and impeach the evidence brought forth at trial, such as pictures of the scene prior to the installation of the fence and witnesses supporting the theory that DiPietro knew or should have known of the danger.
Appellate courts in Kansas have not previously addressed this issue.
K.S.A. 60-451 prohibits evidence of subsequent remedial conduct by the defendant only as used to prove negligence or culpable conduct. Huxol, 205 Kan. 718, Syl. ¶ 2. DiPietro maintains his purpose in introducing Cessna’s subsequent remedial conduct was to demonstrate that he was not negligent in failing to see the ditch prior to the installation of the fence. He contends that evidence of the fence will clarify the dispute as to whether the ditch was an open and obvious danger, but will not show which party was negligent.
In premises liability cases, the duty of ordinaiy care is imposed upon business proprietors to maintain the premises used by their customers in a reasonably safe condition. Jones v. Hansen, 254 Kan. 499, 510, 867 P.2d 303 (1994). However, the duty is not absolute and the degree of reasonable care exercised by a landowner has limits. See 254 Kan. at 510. A defendant’s liability is reduced by the plaintiffs failure to exercise reasonable care in avoiding an open and obvious danger pursuant to K.S.A. 60-258a, the comparative fault statute. See Miller v. Zep Mfg. Co., 249 Kan. 34, 43-44, 815 P.2d 506 (1991). Under the comparative fault statute, the trier of fact considers each party’s negligence when assigning the percentage of fault. Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 905, 955 P.2d 141, rev. denied 264 Kan. 821 (1998).
Evidence of the construction of the fence tends to prove that the landowner, Cessna, was more culpable than DiPietro, its customer. The process of determining comparative fault, when only two parties are involved, is a “zero sum game.” When negligence is moved out of the plaintiff s column, it must move into the defendant’s column. Evidence that tends to exculpate plaintiff in a comparative fault case places fault upon the defendant, and evidence of subsequent remedial conduct to prove negligence is prohibited by K.S.A. 60-451.
The policy reasons behind the prohibition against the admission of subsequent remedial conduct are strong and sound. Evidence of safety upgrades and post-accident precautions is very poor proof of negligence or defectiveness. Subsequent remedial measures do not constitute admissions of culpability, and evidence of such conduct is inherently unreliable. Exceptions to the rule should be allowed with great caution so the policy will remain intact. In re Air Crash Disaster, 86 F.3d 498, 529 (6th Cir. 1996). The policy behind barring evidence of subsequent remedial conduct is to encourage potential defendants to remedy hazardous conditions without fear that their actions will be used against them. TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir. 1994).
We find no reason to override the sound policy considerations behind K.S.A. 60-451 to create an exception to permit the introduction of evidence to rebut defendant’s allegations of comparative fault on the part of a plaintiff. Evidence of subsequent remedial conduct to disprove a plaintiffs comparative fault is inadmissible.
The decision of the trial court is affirmed. | [
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Vieux, D.J.:
Jimmy Hill, Jr., appeals his conviction for rape, K.S.A. 21-3502, aggravated indecent liberties with a child, K.S.A. 21-3504(a)(2)(A), and aggravated indecent solicitation of a child, K.S.A. 21-3511(a). We affirm the trial court.
The State charged Hill with rape, aggravated indecent liberties with a child, and aggravated indecent solicitation of a child based on the events of May 18,1998. The facts of the case will be revealed only as is necessary for the discussion of the issues of the case.
At trial, B.M. (d.o.b. 9-21-84) testified that she returned home after a friend’s graduation, watched television, and prepared for bed. Hill, who was a friend of B.M.’s father, called the house and was informed B.M.’s father was not at home. Hill entered the home, found B.M. in the bathroom, and said, “Hey, I’m here.” He kissed her on the mouth with his tongue. Hill lifted up her sports bra and put his hands down inside her pants and underwear from behind. One finger penetrated B.M.’s vagina. This was repeated from the front. B.M. repeatedly told Hill to stop and go home because her father would be home soon. B.M. was able to push Hill back into the bathtub.
Hill got up, went behind B.M., and kissed her again. He lifted up her sports bra and kissed her chest. B.M. reiterated that her father would be home soon and walked out of the bathroom. Hill followed B.M. into the kitchen and asked her “where are we going to get it on” and started kissing and touching her breasts and inserted his finger into her vagina again. B.M. went to the living room, where Hill tried to push her on the couch. She repeated her father was going to be home soon. He kissed her and sat down on the couch. B.M. walked to the bathroom, and Hill agreed he had to leave and left the house.
B.M.’s cross-examination revealed inconsistencies between her testimony regarding what may have taken place in the kitchen and her prior statements to the police. Her statements did not mention any penetration had taken place in the kitchen.
The jury found Hill guilty of all charges.
Hill claims the charges of rape and aggravated indecent liberties with a child are multiplicitous because the elements are the same and the charged offenses arose out of a single continuous act. Whether charges are multiplicitous is a question of law over which this court has unlimited review. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).
K.S.A. 21-3107 allows charging a defendant with multiple violations arising from a single transaction when the same conduct may establish the commission of more than one crime.
“The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. [Citation omitted.] Multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other. [Citation omitted.]” 266 Kan. at 256.
Rape, as charged herein, is sexual intercourse with a child who is under 14 years of age. K.S.A. 21-3502(a)(2). Based on the evidence, the jury was required to find that at the time of the offense, the child was under 14 years of age, and sexual intercourse took place on May 18, 1998, in Osage County, Kansas. Sexual intercourse is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” K.S.A. 21-3501(1).
In contrast, aggravated indecent liberties with a child is engaging with a child who is under 14 years of age in any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both. K.S.A. 21-3504(a)(3)(A). Based on the evidence, the jury was required to find (1) the defendant lewdly fondled or touched a person; (2) the person touched was a child; (3) the defendant touched with the intent of arousing or satisfying the sexual desires of the child, himself, or both; (4) the child was at the time of the offense, under 14 years of age; and (5) the offenses occurred on May 18, 1998, in Osage County, Kansas.
The elements of aggravated indecent liberties are not necessarily proved if the elements of rape are proved. State v. Belcher, 269 Kan. 2, 4 P.3d 1137 (2000). Moreover, charges are not multiplicitous when the offenses occur at different times and in different places. State v. Long, 26 Kan. App. 2d 644, 645, 993 P.2d 1237 (1999), rev. denied 268 Kan. 892 (2000). According to Long, since the offenses in the present case took place in the bathroom and in the kitchen, they are not multiplicitous. As a result, Hill’s argument fails.
Next, Hill contends that the trial court erred in failing to instruct the jury that its verdict must be unanimous as to which of the two acts of digital penetration constituted the crime of rape.
Jurisdictions fall into two camps regarding juror unanimity in multiple acts cases. In one camp, failing to give the specific unanimity question results in structural error mandating the appellate court to reverse and remand the case. See State v. Arceo, 84 Hawaii 1, 32-33, 928 P.2d 843 (1996) (defendant’s constitutional right to a unanimous verdict violated unless the prosecutor elects the specific act it is relying on to establish the crime, or a specific unanimity instruction is given); Commonwealth v. Conefrey, 420 Mass. 508, 516, 650 N.E.2d 1268 (1995) (harmless error analysis inapplicable); and State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988) (requiring election to avoid possible juror splits).
Structural errors "are so intrinsically harmful as to require automatic reversal {i.e., ‘affect substantial rights’) without regard to their effect on the outcome.” Neder v. United States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). The United States Supreme Court has found errors to be structural and require automatic reversal in very limited cases. See, e.g., Johnson v. United States, 520 U.S. 461, 468 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S. Ct. 792 (1963) (complete denial of counsel); Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) (defective reasonable doubt instruction); Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986) (racial discrimination in selection of grand jury).
Other jurisdictions apply a version of harmless error analysis whereby reversal is not automatic. In those jurisdictions, there is a common theme concerning potential juror confusion and resolving the issue of whether the acts were legally and factually separate incidents.
Several federal courts of appeal, for example, have held that a general unanimity instruction will not suffice where there exists a genuine possibility of juror confusion. United States v. Sayan, 968 F.2d 55, 65 (D.C. Cir. 1992) (specific unanimity instruction required “when there is a genuine risk of juror confusion or of conviction resulting from different jurors concluding the defendant committed different acts”); United States v. Schiff, 801 F.2d 108, 114-115 (2d Cir. 1986), cert. denied 480 U.S. 945 (1987) (general unanimity instruction sufficient to ensure unanimous verdict unless “complexity of the evidence or other factors create a genuine danger of jury confusion”); United States v. Jackson, 879 F.2d 85, 89 (3d Cir. 1989) (specific unanimity instruction not necessary where evidence not complex); United States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990) (specific unanimity instruction not necessary where danger of jury confusion minimal and evidence not complex); United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992) (specific unanimity instruction not necessary unless a count is extremely complex, there is variance between the indictment and the proof at trial, or there is a tangible risk of jury confusion); United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir.); United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir. 1988) (specific unanimity instruction required where case involved sufficiently complex set of facts); United States v. Hager, 969 F.2d 883, 891 (10th Cir.), cert. denied 506 U.S. 904 (1992) (general unanimity instruction sufficient where evidence “not so complex that there was a genuine possibility of juror confusion”).
The District of Columbia Court of Appeals provides useful definitions to legally separate and factually separate incidents. Incidents are legally separate when “the appellant presents different defenses to separate sets of facts, or when the court’s instructions are ambiguous, but tend to shift the legal theory from a single incident to two separate incidents.” Simms v. U.S., 634 A.2d 442, 445 (D.C. 1993) (citing Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988). Incidents are “factually separate when independent criminal acts have occurred at different times, or when a subsequent criminal act is motivated by ‘a fresh impulse.’ ” Simms, 634 A.2d at 445.
The District of Columbia, New Mexico, and New Hampshire hold the requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts. See Horton v. U.S., 541 A.2d 604, 611 (D.C. App. 1988); State v. Smith, 144 N.H. 1, 736 A.2d 1236 (N.H. 1999) (no genuine possibility of juror confusion as to culpable act); State v. Dobbs, 100 N.M. 60, 665 P.2d 1151 (1983) (dechning to speculate about possible nonunanimous jury verdict in absence of confusion). Moreover, for the instruction to apply in D.C., evidence must show either legally or factually separate events. Simms v. U.S., 634 A.2d at 445.
The Michigan Supreme Court held that when evidence of multiple acts are presented, the trial court is required to instruct the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree about the factual basis of the defendant’s guilt. People v. Cooks, 446 Mich. 503, 530, 521 N.W.2d 275 (1994). In Cooks, the defendant was charged with one count of first-degree criminal sexual conduct, but the victim’s testimony at trial referred to three incidents of sexual penetration. The Cooks court affirmed the conviction because the alleged acts were materially identical.
The Wisconsin Supreme Court held that where crimes are conceptually similar, a unanimity instruction is not required. State v. Lomagro, 113 Wis. 2d 582, 592-93, 335 N.W.2d 583 (1983). Lomagro was charged with one count of sexual assault but testimony of the victim indicated six acts of sexual intercourse which included penis-vagina intercourse and fellatio. The Wisconsin Supreme Court noted in its opinion that the Wisconsin Legislature had previously determined these acts to be conceptually similar. Although the court found the six acts to be one continuous event, it concluded the jury did not have to be unanimous as to which specific act the defendant committed in order to convict because the acts were conceptually similar. 113 Wis. 2d at 595.
In Washington, the Supreme Court held that where a trial court fails to instruct the jury that all jurors must agree on a single act which formed the basis of a conviction, constitutional error occurs that would not be deemed harmless unless no rational trier of fact could have had or entertained a reasonable doubt that each incident supported conviction. State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988).
In Alabama, where only generic evidence on a series of acts was introduced, the absence of a specific unanimity instruction was deemed harmless error. R.L.G., Jr. v. State, 712 So. 2d 348, 368 (Ala. Crim. App. 1997). In R.L.G., the evidence showed a continuing pattern of sexual abuse of young children without identifying any separate and distinct incidents of abuse. Recognizing the problem with strict election in cases involving child molestation, the court modified the “either/or rule” (either elect the act, or there must be jury unanimity to all acts) in cases where there is only generic evidence. In R.A.S. v. State, 718 So. 2d 117 (Ala. 1998), the Alabama Supreme court expanded the rule in R.L. G. to include cases with evidence of specific acts.
In State v. Scherzer, 301 N.J. Super. 363, 478-479, 694 A.2d 196 (1997), evidence showed four different acts of sexual penetration but only two counts were charged. Although the jury was not instructed with a specific unanimity instruction, the court found acts of sexual penetration involving a bat, broom, stick, the defendant’s fingers, and fellatio conceptually similar enough not to require a specific unanimity instruction. The court noted no evidence of jury confusion capable of producing an unjust result. 301 N.J. Super, at 480.
Although our Supreme Court has not articulated the standard of review, prior Kansas Court of Appeals decisions suggest this kind of error is subject to structural error review and requires reversal. State v. Wellborn, 27 Kan. App. 2d 393, Syl. ¶ 1, 4 P.3d 1178 (2000); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999).
The Barber holding was due in part to Sullivan v. Louisiana, 508 U.S. 275. The facts in Sullivan make it distinguishable from the facts in our present case. In Sullivan, the trial court gave a constitutionally defective jury instruction on “reasonable doubt.” A very similar instruction previously had been held to violate the defendant’s Fifth and Sixth Amendment rights to have the charged offense proved beyond a reasonable doubt in Cage v. Louisiana, 498 U.S. 39, 112 L.Ed. 2d 339, 111 S. Ct. 328 (1990). The SulUvan court concluded the error was not subject to harmless error analysis because it “vitiates all the juiy’s findings” and produces “consequences that are necessarily unquantifiable and indeterminate.” (Emphasis added.) 508 U.S. at 281-82.
We find the authority applying harmless error to be persuasive and adopt the following test that effectively balances the tension between the defendant’s right to a unanimous jury verdict and judicial economy.
After the court establishes the jury was presented with evidence of multiple acts, the first step is to determine whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the appellant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a subsequent criminal act is motivated by “a fresh impulse.” Simms v. U.S., 634 A.2d at 445-46.
When jury confusion is not shown under the first step of the above analysis, the second step is to apply a harmless error analysis to determine if the error was harmless beyond a reasonable doubt with respect to all acts.
In applying this analysis to the present case, the record contains the following evidence: Hill digitally penetrated B.M.’s vagina in the bathroom. B.M. repeatedly told him to stop and managed to push Hill into the tub. After she walked out of the bathroom and into the kitchen, Hill followed her and again inserted his finger into her vagina. At trial, Hill did not testify but generally denied penetrating B.M. According to the above definitions, these events are not legally or factually separate incidents and survive the first step in ensuring.no possibility of jury confusion.
In applying a harmless error review, since there was no extrinsic evidence to support the charges, the sole issue was the credibility of the victim’s account of the two alleged penetrations. The evidence in its entirety offered absolutely no possibility of jury disagreement regarding the appellant’s commission of any of these acts. By the jury’s rejection of the appellant’s general denial, the court could unequivocally say there was no rational basis by which the jury could have found that the defendant committed one of the incidents but did not commit the other, and, therefore, the trial court’s error was harmless beyond a reasonable doubt.
This holding should not be interpreted to give prosecutors carte blanche to rely on harmless error review, and it is strongly encouraged that prosecutors elect a specific act or the trial court issue a specific unanimity instruction. In many cases involving several acts, the requirement that an appellate court conclude beyond a reasonable doubt as to all acts will not be found harmless.
It should be acknowledged that a prior Kansas Supreme Court case leaves open the possible interpretation that in multiple acts cases a general unanimity instruction followed by polling the jury is an effective cure to the lack of a specific unanimity instruction. See State v. Smith, 268 Kan. 222, 230, 993 P.2d 1213 (1999). Polling the jury is insufficient to cure a multiple acts problem unless the jurors are polled specifically to their agreement on the same incident.
Next, Hill challenges the sufficiency of the evidence. Our standard of review is as follows:
“ ‘When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).” State v. Evans, 251 Kan. 132, 135-36, 834 P.2d 335 (1992).
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.” Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).
Considering the evidence presented at trial, giving full play to the factfinder’s duty to assess the credibility of witnesses and weigh the evidence, we determine that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Next, Hill complains of prejudicial comments made by the prosecutor during closing argument. In State v. Cravatt, 267 Kan. 314, 979 P.2d 679 (1999), our Supreme Court set out the general rules relative to claims of prosecutorial misconduct in closing arguments as follows:
“In determining drat a prosecutor’s improper remarks made in closing argument are not so gross and flagrant as to prejudice the jury against tire accused and deny him or her a fair trial, the reviewing court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing dre result of the trial. This is a harmless error analysis. The court must be able to declare beyond a reasonable doubt that the error was harmless. Each case must be scrutinized on its particular facts to determine whether prosecutorial misconduct is harmless error or plain error when viewed in the light of the trial record as a whole.” 267 Kan. at 332.
Hill maintains that the prosecution made two statements to the jury during closing arguments regarding matters that were not in evidence. The first of these complained-of statements regarded the prosecution’s assertion that a witness at the trial changed his story in order to fit the account of the defendant. This statement, apparently, was predicated upon a slight difference between an earlier statement recorded in a police report and the actual testimony of the witness. That portion of the police report was revealed to the factfinder during the course of questioning at trial. Hill complained a second statement was not supported by the facts presented. The actual statement made was “Julie Miller lives in his house.” Miller, the ex-wife of the defendant, testified that at the time of trial, she lived in the trailer the defendant used to five in.
As to the first statement, the prosecutor has the right to make fair comment on the evidence. Obviously, the prosecutor’s assess ment of the facts presented does not have to be favorable to the defendant. In the second statement, the prosecutor has a right to point out a possible bias that a witness may have for testifying. Likewise, his assessment of the situation does not need to be agreeable to the defendant. The prosecutor is entitled to considerable latitude in arguing the case to a jury.
In the instant case, the remarks made were not so far from the evidence presented as to be considered a gross and flagrant act capable of prejudicing the jury.
Hill further complains that the prosecutor improperly appealed to the personal fears and sense of community safety with a statement regarding his own children and telling the jury not to let the defendant “get away with this.”
An examination of the record reveals that the statement regarding the children of the prosecutor, as complained of by Hill, may be somewhat out of context. In any event it was not so flagrant or gross as to show prosecutorial misconduct or any prejudicial effect upon the jury. The statement regarding not letting the defendant “get away with this” is of no more prejudicial effect than to simply ask the jury to find the defendant guilty. As a result, we conclude that the evidence supports Hill’s convictions beyond a reasonable doubt and declare that the prosecutor’s improper comments, if any, were harmless error.
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Green J.:
Derrick W. Davis appeals from a trial court order denying his separate petitions for writ of habeas corpus following his convictions of disciplinary violations. This court has consolidated Davis’ two appeals for purposes of argument and decision. On appeal, Davis argues that the trial court erred in finding that the hearing officer did not violate Davis’ right to due process in refusing his request to call witnesses during the disciplinary hearing. We disagree and affirm. In addition, Davis argues that the trial court erred in finding that the suspension of his visitation privileges for a’period of 2 years did not violate K.A.R. 44-7-104. Davis’ visitation privileges are reinstated for 1 year in accordance with this opinion.
Davis is an inmate at the Lansing Correctional Facility in Lansing, Kansas. In July 1998, Davis received two disciplinary reports. The first report, numbered 0310, alleged that Davis engaged in lewd conduct with his wife in violation of the visitation rules. This disciplinary report was dismissed, however, because it was originally served on the wrong inmate. The second disciplinary report, numbered 0337, alleged the same charges and facts as the first report.
Prior to the hearing on disciplinary report 0337, Davis requested that several corrections officers be called to testify. Davis wanted these corrections officers to testify about the two disciplinary reports written on the same alleged incident in the visitation room. The hearing officer denied Davis’ request that the corrections officers be called to testify because the requested witnesses had no knowledge of the alleged violation.
The hearing officer viewed the videotape of the incident and found Davis guilty of engaging in lewd conduct during visitation. The hearing officer sentenced Davis to a 30-day privilege restriction, suspended for 6 months, and a $15 fine. In addition, the deputy warden of programs suspended Davis’ visitation privileges for 2 years.
Davis then filed two petitions for writ of habeas corpus with the trial court. The trial court consolidated the petitions because the issues raised therein were substantially the same. The trial court denied the petitions after finding that the hearing officer did not violate Davis’ constitutional rights when denying his request for witnesses and that the 2-year suspension of Davis’ visitation privileges was authorized.
Davis separately appealed the denial of each of the petitions for writ of habeas corpus.
Davis’ first argument on appeal is that the trial court erred in finding that the hearing officer did not violate Davis’ right to due process in refusing his request to call witnesses. Our standard of review is whether sufficient facts support the trial court’s conclusion that the hearing officer did not arbitrarily or capriciously deny Davis’ request to call witnesses. See Shepherd v. Davies, 14 Kan. App. 2d 333, 338, 789 P.2d 1190 (1990); Williams v. Maschner, 10 Kan. App. 2d 79, 81-82, 691 P.2d 1329 (1984).
K.A.R. 44-13-405a provides:
“(a) In determining whether to allow the inmate to call a witness from the prison population or from among prison employees, the hearing officer shall balance the inmates’ interest in avoiding loss of good time and assessment of a fine or placement in disciplinary segregation against the needs of the prison. These needs of the prison include:
(7) die need to avoid irrelevant, immaterial, or unnecessary testimony or evidence.
“(b) The hearing officer shall have broad discretion in permitting or denying die witness request. In exercising die discretion, the hearing officer shall balance die inmate’s request and wishes against die needs of the prison. The goal of the hearing officer shall be to conduct the fact-finding process in a manner leading to die discovery of the trudi.”
Here, the hearing officer denied Davis’ request for witnesses after finding that the witnesses had no knowledge of the alleged violation of the visitation rules. Davis wanted the witnesses to testify as to the duplicate disciplinary reports, which were irrelevant to whether he violated the rules. We find that the trial court correctly determined that the hearing officer gave adequate consideration to Davis’ request to call witnesses and that the hearing officer did not arbitrarily deny Davis’ request.
Davis also argues that the trial court erred in finding that the suspension of his visitation privileges for a period of 2 years did not violate the provisions of K.A.R. 44-7-104. A determination of whether the trial court correctly interpreted K.A.R. 44-7-104 requires statutory construction. Statutory construction is a question of law over which this court has unlimited appellate review. National Council on Compensation Ins. v. Todd, 258 Kan. 535, 539, 905 P.2d 114 (1995) (citing Dillon Stores v. Lovelady, 253 Kan. 274, 275, 855 P.2d 487 [1993].)
K.A.R. 44-7-104(a)(7)(B) provides: “The initial length of a suspension imposed for violation of an institutional rule shall not exceed one year and shall be reviewable on an annual basis thereafter at the request of the inmate.” Because we have difficulty under standing this language, it is necessary to resolve the regulation’s ambiguities. It is our duty to reconcile the two portions of K.A.R. 44-7-104(a)(7)(B) so as to make them consistent, harmonious, and sensible. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
Read alone, the first portion of the regulation apparently means that a suspension cannot initially exceed 1 year. However, ambiguities arise when one considers the effect of the second portion of the regulation, which provides that a suspension can be reviewed annually at the inmate’s request. The second portion of the regulation appears to be superfluous because an inmate would likely not request review of his or her suspension because review would be to the inmate’s disadvantage. If the inmate failed to request review, the suspension would naturally expire and the inmate’s privileges would be restored. On the other hand, if the inmate requested review, the suspension could be extended. Because this reading of the regulation produces an illogical result, it is necessary to reconcile the regulation’s inherent contradictions.
We interpret K.A.R. 44-7-104(a)(7)(B) as follows. First, the principal administrator of a penal institution may not initially suspend an inmate’s visiting privileges for more than 1 year. Moreover, the regulation implies that prior to the expiration of a 1-year suspension, the principal administrator may, upon his or her own initiative, review the suspension. At this review, the principal administrator has discretion to extend the suspension for any amount of time. If the suspension is extended for a period beyond 1 year, the inmate may request annual reviews of the suspension before the end of the second and subsequent years of the suspension. At the second and subsequent reviews of the suspension, the principal administrator has discretion to continue or discontinue the suspension. It is important to note that our interpretation of K.A.R. 44-7-104(a)(7)(B) applies whether the suspension is the inmate’s first or subsequent suspension.
Here, the warden suspended Davis’ visitation privileges for 2 years. We find that this suspension was not authorized by K.A.R. 44-7-104(a)(7)(B). The proper procedure for suspending Davis’ visitation privileges would have been to initially suspend his visi tation privileges for 1 year. If the warden thought that a total suspension of 2 years was appropriate, the warden could have reviewed the suspension before its expiration and continued the suspension for another year. The suspension would have naturally expired at the end of the second year because under the regulation the warden may initiate only the first review of the suspension. Later reviews of the suspension must be initiated by the inmate. It would have been unnecessary for Davis to have requested review of the suspension because it would have naturally expired at the end of the second year.
Because the warden did not follow this procedure when suspending Davis’ visitation privileges, we find that the suspension was unauthorized. As a result, we reverse the trial court’s denial of Davis’ petitions for writ of habeas corpus.
Affirmed in part, reversed in part, and remanded with directions. | [
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Marquardt, J.:
Johnson County Bank (Bank) appeals the trial court’s decision.
The parties agreed to stipulated facts. In 1989, Joseph F. Ross purchased a life insurance policy from Jackson National Life Insurance Company (Jackson). In 1990, Joseph and his wife, Bonnie J. Ross, assigned part of the life insurance policy to Capital City Bank and Trust (Capital). Jackson acknowledged receipt of the assignment and stated that it “has been filed at the home office” of Jackson.
On December 24,1996, the Rosses executed a promissory note for a $100,000 loan at the Bank. At the same time, the Rosses assigned their Jackson insurance policy to the Bank, stating that it had net cash value of at least $158,440.42. The Bank sent a copy of the Rosses’ assignment form to Jackson. The Bank asked Jackson to acknowledge the assignment by signing and returning the form to the Bank. Jackson never signed the assignment form. Jackson said that it received the assignment, but it was never “filed” with the company. After receipt of the assignment, Jackson sent a letter to Joseph Ross asking for additional information. Jackson stated that the assignment “must state for value receivd [sic] and must also state owner’s rights.” Jackson sent the Rosses a different assignment form and asked that it be completed. The Rosses never completed Jackson’s assignment form.
In March 1997, the unencumbered net cash surrender value of the Rosses’ life insurance policy was reduced to $81,331.56 because of a $400,000 payment to Capital. The Bank was not notified of the payment to Capital. In August 1997, the Rosses’ loan with the Bank was in default. The Bank attempted to collect the amount owing from the insurance cash surrender value from Jackson. Jackson refused to honor the assignment, saying that the form was “incomplete.”
In October 1997, the Bank filed suit against the Rosses for payment of the note and sued Jackson for conversion of the policy and breach of contract. The Bank and Jackson filed motions for summary judgment. The Bank’s motion for summary judgment against the Rosses was granted on June 23,1998. In January 1999, the trial court denied the Bank’s motion for summary judgment on the conversion and breach of contract issues. The trial court also denied Jackson’s motion for summary judgment. The Bank filed a motion for reconsideration, which was also denied. The Bank appeals the denial.
Insurance Contract Assignment
The Bank claims that the trial court failed to abide by the clear and unambiguous language of the insurance contract. The Bank argues that if Jackson wanted an assignment on a certain form, it should have stated that fact in the insurance contract. The Bank argues that, under the language of the contract, Jackson was merely entitled to receive notice of the assignment. The central issue on appeal is the meaning of the word “filed” as used in the contract.
Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152, 959 P.2d 894 (1998). Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. The intent of the parties is determined from the four comers of an unambiguous instrument, harmonizing the language therein if possible. Hall v. JFW, Inc., 20 Kan. App. 2d 845, 848, 893 P.2d 837, rev. denied 257 Kan. 1092 (1995).
An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. City of Manhattan v. Galbraith, 24 Kan. App. 2d 327, 332, 945 P.2d 10 (1997).
Neither K.S.A. 40-434, K.S.A. 1999 Supp. 40-435, nor any other law shall be construed as prohibiting a person whose life is insured under an individual life or accident and health policy from making an assignment of all or any part of his or her rights and privileges under such policy. K.S.A. 40-439. “A valid assignment must contain clear evidence of the intent to transfer rights, must describe the subject matter of the assignment, must be clear and unequivocal, and must be noticed to the obligor.” 6 Am. Jur. 2d, Assignments § 113, p. 218. “[I]n determining whether an assignment has occurred, the courts look to the substance, rather than the form.” 6 Am. Jur. 2d, Assignments § 114, p. 218-19. “No particular words or special form of words are necessary to effect an assignment in the absence of statutory provisions prescribing a particular mode or form.” 6 Am. Jur. 2d, Assignments § 115, p. 219; see Brewer v. Harris, 147 Kan. 197, 201, 75 P.2d 287 (1938).
The assignment clause in the Rosses’ life insurance policy reads: “No assignment of this Policy will be binding on the Company until it is filed with the Company at its Home Office. The Company will assume no responsibility for the validity or sufficiency of any assignment.”
Jackson argues that the assignment form was “incomplete.” The letter Jackson sent to Joseph Ross on January 27,1997, stated: “The collateral assignment must state for value receivd [sic] and must also state owner’s rights.” Jackson ignores the language of the Bank’s assignment form that stated:
“3. ASSIGNMENT. To secure the Obligations and in consideration of the Loan, Owner assigns and grants a security interest to Bank in and to all right, title and interest of Owner and Beneficiary in life insurance policy number 14185000 (Policy) issued by JACKSON NATIONAL LIFE INC. CO. (Company) on the life of:
JOSEPH F. ROSS (Insured)
BONNIE J. ROSS (Insured).”
It is undisputed that the Bank sent Jackson a copy of the Rosses’ assignment form in January 1997. Jackson admits that it received a copy of the Bank’s assignment at its home office; however, it argues that merely sending an assignment to the company does not mean that it has been filed.
The word “file” contemplates the deposit of a writing with the proper official. Capital Services, Inc. v. Dahlinger Pontiac-Cadillac, Inc., 232 Kan. 419, 421, 657 P.2d 36 (1983). “Filed” also means: “To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference. . . . To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.” Black’s Law Dictionary 628 (6th Ed. 1990).
The Bank complied with the language of the Rosses’ life insurance policy when it sent a copy of the assignment to Jackson. The policy merely states that the assignment must be “filed.” Thus, under the meaning of the term “filed” in Kansas, the Bank complied with the language of the policy.
There is nothing in the policy that requires a policyholder to use a specific form for assignment or that Jackson must review or approve an assignment. If Jackson intends to restrict or limit assignment of its policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. The court’s function is not to make another contract for the parties. Its function is to enforce the contract as made. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992).
The Bank complied with the clear language of the Rosses’ insurance policy when it sent a copy of the assignment to Jackson. The issues raised in Counts II and III of the Bank’s petition require factual findings; therefore, the case is reversed and remanded for additional proceedings.
Kansas Interpleader Law
In its January 1998 response to the Bank’s petition, Jackson filed a cross-petition for interpleader claiming that the Bank, the Rosses, and KBIC all had a stake in the life insurance funds. As this suit progressed, claims involving the Rosses and KBIC were resolved. Thus, the Bank was left as the only adverse party to Jackson.
The trial court found that the parties took no steps to “perfect” the interpleader action, which left the trial court without subject matter jurisdiction. The trial court believed that it lacked subject matter jurisdiction over the interpleader because no order was issued regarding the interpleader. The trial court also stated that the interpleader was unnecessary because there were only two parties to the action after KBIC was dismissed. The Bank contends that Jackson’s mere presence in the suit gave the trial court jurisdiction and obligated Jackson to preserve the interpled funds.
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. A defendant exposed to similar liability may obtain such inter-pleader by way of cross-claim or counterclaim. K.S.A. 60-222(a).
Interpleader protects the stakeholder from multiple suits and from determining the validity and priority of disputed claims; it also protects the claimants by bringing them together in one action so that a fair and equitable distribution of the fund may be made. Bryan v. Davis, 11 Kan. App. 2d 691, 693, 732 P.2d 805 (1987). The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears multiple claims directed against a single fund. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 336, 624 P.2d 971 (1981).
This factual scenario does not fit within K.S.A. 60-222. Since interpleader was not appropriate, we need not consider the rest of the Bank’s arguments on appeal. The trial court did not err by refusing to consider the interpleader.
Affirmed in part, reversed in part, and remanded. | [
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Paddock, S.J.:
Midwest Iron & Metal, Inc. (Midwest) appeals summary judgment granted Zenor Electric Company, Inc. (Zenor).
The trial court granted Zenor summary judgment on all of Midwest’s claims because Midwest failed to establish a duty and breach of the professional standard of care. The trial court determined that Midwest had to present expert testimony to establish the standard of care required of Zenor, an electrical contractor, a requirement Midwest failed to meet. Midwest appealed. We affirm.
The rule establishing when summary judgment is appropriate has so often been stated by the appellate courts it is superfluous to repeat it here. A recent pronouncement of the rule can be found in Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
During discovery, Midwest designated three expert witnesses who would be called to testify in its behalf. None of the designated experts testified as to Zenor’s duty in providing services to Midwest or to the standard of care required of electrical contractors.
Midwest claims its damages were the result of a malfunction and fire in its shredder caused by Zenor installing improperly sized fuses and allowing an excessive build-up of metallic dust in the shredder’s starter cabinet.
Midwest argues it should have escaped summaiy judgment because it established a standard of “ordinary care” or, in the alternative, the common knowledge exception would apply, which does not require expert testimony. We disagree.
“ ‘The primary purpose of expert testimony is to establish the community standards for the benefit of the trier of fact when the facts are somewhat alien in terminology and the technological complexities would preclude an ordinary trier of fact from rendering an intelligent judgment.’ ” In re Estate of Maxedon, 24 Kan. App. 2d 427, 436, 946 P.2d 104, rev. denied 263 Kan. 886 (1997) (quoting Juhnke v. Evangelical Lutheran Good Samaritan Society, 6 Kan. App. 2d 744, 748, 634 P.2d 1132 [1981]). “Expert testimony is often required to establish the standard of care in cases involving professional actions and whether the professional deviated from the standard of care.” Bi-State Dev. Co. Inc. v. Shafer, Kline & Warren Inc., 26 Kan. App. 2d 515, 518, 990 P.2d 159 (1999).
We have no hesitation in determining that the standard of care of the profession of electrical contractors is technical in nature and of such complexity as would require expert testimony. Midwest’s failure to supply independent expert evidence that establishes a duty results in a failure of its claim of professional negligence unless the common knowledge exception is applicable. See Bi-State, 26 Kan. App. 2d at 518.
Before addressing the common knowledge exception, we must consider Midwest’s argument that it was not required to designate experts because Zenor’s employees gave deposition testimony that established the applicable standard of care. This argument must fail. No suggestion was made by Midwest in pretrial discovery or under K.S.A. 1999 Supp. 60-226(b)(6)(A) that it intended to prove the standard of care or breach of the standard through Zenor’s own employees. Zenor’s attorney asked the right questions in pretrial discovery and should not have been left to speculate what testimony Midwest would rely upon to establish the applicable standard of care. In any event, Zenor’s employees did not give evidence as to the standard of care and whether that standard was breached. For these reasons, Midwest’s argument is without legal merit.
The common knowledge exception applies where a layperson’s common knowledge is sufficient to recognize a deviation from the accepted standard of care. 26 Kan. App. 2d at 518. In the instant case, a layperson would be unable to determine if Zenor failed to install proper fusing, advise Midwest on the risks of using the electrical system installed by other contractors, and clean and maintain the electrical system.
One further issue is raised by Midwest on appeal. It claims the motion for summary judgment did not address its claim of breach of an implied warranty to perform the work in a workmanlike manner. Zenor’s motion for summary judgment requested judgment on all issues. Midwest did not raise the claim of breach of an implied warranty in response to Zenor’s motion or on its own motion to reconsider the grant of summary judgment. We will not consider an issue raised for the first time on appeal. See Ripley v. Tolbert, 260 Kan. 491, 513, 921 P.2d 1210 (1996).
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Lewis, J.:
In 1986 and while they were contemplating bankruptcy, Walter F. and Marilyn Ricci deeded their family residence to themselves and to Walter Jorge (Jorge) Ricci as joint tenants with the right of survivorship and not as tenants in common. In 1998, Walter and Marilyn were divorced. In 1999, Jorge intervened in the divorce action, claiming a one-third interest in the house and asked that the real estate be partitioned. The trial court ruled in favor of Jorge, and Marilyn appeals from that decision.
This controversy is an example of actions taken in bankruptcy planning to defeat claims of creditors which come back to haunt one of those who participated in the scheme. In this case, there is a time frame of 13 years.
At the time Walter and Marilyn deeded their home to themselves and to Jorge, they were having financial problems, and their attorney advised them to transfer their interests in various assets to Jorge. Among the assets included in the transfer was the residence of the parties, which is the focal point of this appeal. The conveyance deeding an interest in the home to Jorge was duly recorded and was never changed or set aside, and the record title to the real estate remained vested in Walter, Marilyn, and Jorge at the time Jorge filed his petition to intervene.
The controversy appears to be between Jorge and Marilyn. Walter is either uninterested or he is satisfied with the decision of the trial judge. For whatever reason, he has declined to become involved in the principal issue on appeal.
It seems readily apparent that the event which motivated Jorge to intervene and seek partition was Walter’s divorce from Marilyn. Jorge is Walter’s son, but not Marilyn’s. In February 1999, the trial court, in the divorce action, ordered the home sold and the proceeds divided between Walter and Marilyn in the manner defined by the trial court. In May 1999, Jorge filed his petition to intervene and for partition.
After conducting a hearing on the allegations of Jorge’s petition, the trial court concluded that Jorge, Marilyn, and Walter each owned an undivided one-third interest in the property. In addition, the trial court granted Jorge’s petition for partition and ordered the property sold. This appeal followed.
PRESERVATION OF ISSUE ON APPEAL
Jorge argues that Marilyn’s appeal is not properly before the court because she did not object on the record or by post-trial motion to the trial court’s decision that Jorge owned a one-third interest in the property. He bases his argument on Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994), wherein the court stated that one must object to inadequate findings of fact, and in the absence of an objection, omissions in findings will not be considered on appeal.
We do not agree with Jorge that Galindo applies to the instant matter. In its findings, the trial court specifically recognized that Marilyn had filed pleadings amounting to a general denial of Jorge’s claim to the property. These pleadings contested the validity of the deed, which was the basis of the partition action. There is no question in this court’s opinion that Marilyn did contest Jorge’s request to partition the property. On appeal, she is challenging the ultimate decision of the trial court and not the adequacies of the finding.
In addition, we find the trial court did not omit the basis for its ruling. The basis for the court’s decision was the deed conveying the property to Walter, Marilyn, and Jorge. The rule set forth in Galindo only applies if the trial court fails to explain its findings and conclusions of law. In this case, there could be no confusion as to what those findings and conclusions were.
We hold there was no need to object to preserve the issues of whether the deed was sufficient to vest a one-third interest in the property in Jorge and whether the order of partition was appropriate.
RECORDED DEED
Marilyn argues that the deed conveying Jorge an interest in the property was not valid because it was never delivered. Jorge argues that the deed was recorded and that this constituted delivery. It appears that both Jorge and Marilyn rely on Giefer v. Swenton, 23 Kan. App. 2d 172, 928 P.2d 906 (1996), rev. denied 261 Kan. 1084 (1997).
As a general rule, the legal effect of a written instrument is a question of law for the court to decide. As a result, on appeal, we may construe a written instrument and determine its legal effect regardless of the construction made by the trial court. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
In Giefer, we concluded that where the facts were not controverted, the question of whether the deed was properly delivered should be determined by the court as a question of law. 23 Kan. App. 2d at 174.
In this case, everyone agrees that the deed was executed and recorded as part of pre-bankruptcy planning. We see no issue of controversy in the relevant facts and will proceed to decide the question of delivery as a question of law.
In Giefer, 23 Kan. App. 2d 172, Syl. ¶ 3, we stated the law as follows: “The recording of a deed by the grantor or at the express direction of the grantor is presumptive evidence of its delivery, but such presumption can be overcome by other competent evidence.”
Marilyn apparently does not challenge that the law is as we stated in Qiefer, but she argues that there’was evidence of the parties’ intent which overcomes the presumption of delivery. We disagree.
The deed was executed in February 1986 because Marilyn and Walter wanted Jorge to be a coowner to carry out a pre-bankruptcy plan. The deed was not only executed, it was recorded in 1986. We note that it was Marilyn who dealt primarily with the bankruptcy attorney.
The bankruptcy petition was filed in September 1988, and Walter and Marilyn received a discharge in 1989. Despite receiving the discharge in bankruptcy, Walter and Marilyn took no action to change the manner in which title to their home was held.
No one argues that the deed was not intended to be recorded. The parties all recognize that it was an integral and vital requirement of the pre-bankruptcy plan that the deed operate to convey the interest in the property to Jorge on the date of the deed. We have examined the deed and find it contains no reservations and no qualifications. An examination of the records of the Johnson County Register of Deeds clearly indicates that the title to the property was vested in Walter, Marilyn, and Jorge.
In defer, the owner of the property had executed and recorded a deed in order to avoid probate. The argument was being made that he did not intend to transfer title by recording the deed. In response to this argument, we said:
“[W]e are unable to determine how an individual can intend to avoid probate by executing and recording a deed . . . and not have that deed convey his interest to the grantees. If the deed does not convey a present interest, then it does not avoid probate. The only conceivable manner of upholding the . . . intent to avoid probate is to find that he intended to convey a fee simple interest to bis children by the deed recorded.” 23 Kan. App. 2d at 177.
We see absolutely nothing in this record to indicate that Walter and Marilyn did not intend for the recording of the deed to convey an interest in their home to Jorge. This was a requirement of their pre-bankruptcy plan. Their intent, obviously, was to place this property beyond the reach of creditors. Although in Kansas a homestead is not available to creditors, apparently Walter and Marilyn were not advised of this fact or did not understand it when they recorded the deed in question.
We hold that Walter and Marilyn intended to convey a one-third fee simple interest in the property when they executed the deed to themselves and Jorge and recorded the same in the office of the register of deeds. We affirm the trial court’s decision to that effect.
CONSTRUCTIVE TRUSTS
Marilyn asks that we impose a constructive trust on the one-third interest of the real estate owned by Jorge. We decline to do so.
A constructive trust arises “wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.” Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 364, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995).
In this case, Marilyn is in no position to be seeking an equitable remedy. She acquiesced in the transfer of the property in question with an intent to place the property beyond the reach of her creditors. We see no basis in the record to impose a constructive trust on Jorge’s interest in the property.
WAS THE DECISION EQUITABLE?
Marilyn argues that the decision of the trial court vesting a one-third interest in the real .estate in Jorge was not equitable. We disagree.
As we pointed out earlier, Marilyn is in no position to be seeking an equitable remedy under the circumstances. In addition, she did not object to the basis for the trial court’s determination that Jorge held an undivided one-third interest in the property.
We conclude that the decision of the trial court was, indeed, equitable, and we affirm the decision that Jorge is the legal owner of an undivided one-third interest in the property.
ATTORNEY FEES
As we pointed out earlier, Walter has had very little to do with this litigation. However, he did file a motion seeking payment of attorney fees from Marilyn. His argument is that he is entitled to $1,584.50 for fees and expenses incurred in responding to Marilyn’s motion to docket out of time and his motion seeldng.attomey fees. He does not argue that the appeal was frivolous and, in fact, files no brief or other writing in support of his motion. We also note that although Marilyn’s issues have not been successful, we do not consider them frivolous, nor do we feel that Walter is entitled to the award of attorney fees. See Supreme Court Rule 7.07(b) and (c) (2000 Kan. Ct. R. Annot. 52); Bair v. Bair, 242 Kan. 629, 637, 750 P.2d 994 (1988).
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Beier, J.:
Sheila Flenoiy appeals the district court’s denial of her motion to determine the total amount of an arbitration award. We reverse and remand, holding that the arbitrator exceeded his authority by providing for application of a statutory cap to Flenory’s nonpecuniary damages.
The arbitration award at issue in this appeal followed a wrongful death action brought by Flenory after the death of her son, Nerrell. Nerrell nearly drowned in a swimming pool at an apartment complex owned by Eagle’s Nest Apartments and subsequently died after life support was discontinued on June 30, 1998.
The parties submitted the claim to binding arbitration under a high-low agreement that the minimum award would be $50,000 and the maximum award $300,000. If the arbitrator’s award fell between those two extremes, they agreed that the amount of the award would be the arbitrator’s amount. The agreement was memorialized in a letter between counsel.
After hearing, the arbitrator made the following award:
“I have determined that the net award, after adjustment for fault of plaintiff and others, is as follows; for the survival action, no award: for the wrongful death action, pecuniary damages of $27,339.79 and nonpecuniary damages of either $100,000.00 or $137,500.00, depending on whether the one hundred thousand dollar cap or the two hundred fifty thousand dollar cap applies.” (Emphasis added.)
The arbitrator’s reference to two damages caps was his response to the legislature’s decision to increase the cap in K.S.A. 60-1903 for nonpecuniary damages in wrongful death actions from $100,000 to $250,000, effective July 1, 1998. See L. 1998, ch. 68, §1-
Following the award, Flenory filed a motion to have the district court interpret the award by applying no statutory cap or, in the alternative, applying the amended $250,000 cap. The district court held the unamended $100,000 cap was applicable to the nonpecuniary portion of the arbitrator’s award, and this appeal followed.
“A written agreement to submit any existing controversy to arbitration is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.” K.S.A. 2000 Supp. 5-401(a).
With these opening words of the Uniform Arbitration Act as our polestar, we find Flenory’s argument that the arbitrator exceeded his authority under the arbitration agreement dispositive. The arbitrator was not empowered to apply a cap not agreed to by the parties. Here, in this quasi-judicial proceeding, the high-low agreement was a stand-in for the statutory cap.
In our view, the arbitrator in this case can be compared to the jury in the traditional personal injury trial. Such a jury is instructed to decide liability and arrive at the amounts of various types of damages, if any. Only later does the court reduce any nonpecuniary damages award if it exceeds the applicable cap. This is what the parties or, in the event of a disagreement, the court would have done here if it had been necessary to conform the award to the high-low agreement.
K.S.A. 5-412(a)(3) provides that a court shall vacate an arbitration award, upon application of a party, if the arbitrator exceeded his or her powers. Flenory made no such application. She merely asked the district court to interpret the arbitrator’s award to eliminate consideration of the statutory cap.
Under these circumstances, we do not remand for entry of an order vacating the award. Rather, on remand, the district court shall withdraw its order .denying Flenoiy’s motion and enter a new order interpreting the award to eliminate any effect of the cap in K.S.A. 60-1903 or K.S.A. 2000 Supp. 60-1903. In the future, if parties to arbitration want a statutory cap to apply to any award, they need to include a provision to that effect in their written agreement.
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Green, J.:
Robert Reynolds, Helen Lytle, and Maty Lenherr, members of the Unified School District No. 321 (U.S.D. 321) Board of Education, appeal from the trial court’s judgment determining that recall petitions filed against them were sufficient to hold recall elections. On appeal, Reynolds, Lytle, and Lenherr (collectively referred to as appellants) challenge the sufficiency of the recall petitions in a number of respects. We affirm in part and reverse in part.
Appellants brought this action’ after separate recall petitions seeking appellants’ removal as members of the U.S.D. 321 school board were filed against them. The recall petitions stated the following grounds:
“That [he or she] has violated board policies, including recognition that authority rests with the entire board, and not in individual members nor the superintendent; that all members should be permitted to participate fully in board discussion. These violations have occurred when [he or she] has acted as directed by tire superintendent, including participation in scripted . . . board meetings where scripts have been prepared by the superintendent; and when discussion by certain members has been abruptly cut off.
“[He or she] has failed to represent the people in the district on all matters of public education by not enforcing the terms of the superintendent’s employment contract; being rude and disrespectful to board members and the public at board meetings and not permitting citizens present to be heard prior to board decisions; and refusal to answer questions at board meetings.
"The foregoing demonstrates incompetence to serve as a board member in the best interest of the constituency.”
Although the trial court determined that several of the reasons for recalling appellants were vague and indefinite, the trial court concluded that at least one reason was sufficient. Therefore, the trial court determined that Susan Figge, the county election officer for Pottawatomie County, Kansas, could proceed with the recall elections. The trial court granted appellants’ motion for a stay order, allowing for this interlocutory appeal.
Was the Recall Committee Properly Organized?
Although appellants raise 16 issues on appeal, the issues can be condensed to three general questions. The first is whether the trial court correctly determined that the recall committee was legally organized. Appellants argue that the recall committee was not legally organized because the members of the committee did not reside in the same election districts as appellants.
The right to recall public officials has been recognized in the Kansas Constitution since 1914; however, no specific grounds for recall were stated in the constitutional provisions. In 1974, the recall provisions of Article 4, Section 3, of the Kansas Constitution were amended to state: “All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected.” (Emphasis added.) See K.S.A. 25-4301.
The method of organization of a recall committee is set forth in K.S.A. 25-4320(a). Subsection (a)(3) of the statute requires that the members of a recall committee be registered electors of the “election district” of the local officer sought to be recalled. Appellants insist that the term “election district” as used in K.S.A. 25-4320(a)(3) refers to one of the three subdistricts which comprise the U.S.D. 321 school district rather than the entire school district.
U.S.D. 321 school board members are elected under voting plan-B as set forth in K.S.A. 25-2005(c), which provides for “voting by a district method in the primary and by election at large in the general election.” See K.S.A. 72-8003(b). As such, the issue is whether the term “election district” as used in K.S.A. [ ] 25-4320(a)(3) refers to a subdistrict or the entire school district. This is an issue of first impression.
Our standard of review on issues of statutory construction is as follows:
“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).
Our Supreme Court has recognized that recall is a fundamental right which the people have reserved for themselves. Statutes governing the exercise of that power are to be liberally construed in favor of the ability to exercise it and any limitations on that power must be strictly construed. Unger v. Horn, 240 Kan. 740, 741, 732 P.2d 1275 (1987) (citing 63A Am. Jur. 2d, Public Officers and Employees § 190).
Although our appellate courts have not previously considered the meaning of the term “election district” as used in K.S.A. 25-4320, the issue has been addressed in attorney general opinions. For example, the attorney general addressed the procedure for recall of a commissioner when the boundaries of the commissioner’s district had been altered after the election of the commissioner. The attorney general opined that “the election district referred to in K.S.A. [ ] 25-4320 ... is the one which currently exists and which the local official in question now represents. To hold otherwise would allow recall of an elected official by individuals who now cannot vote to fill that official’s position.” (Emphasis added.) Att’y Gen. Op. No. 90-120.
Another attorney general opinion addressed the procedure applicable to the recall of members of the U.S.D. 254 Board of Education when the member district boundaries had been changed since the previous general election at which members of the board were elected. The members of the school board were elected under voting plan-C, as described in K.S.A. 72-8003(c). Under that voting plan, six members of the board were elected to member positions numbers one through six. Electors residing in the correspondingly numbered member districts were the only electors to vote in the primary and general elections for the member position.
When electors of the school board proposed the recall of members of the board of education in positions No. 2 and No. 3, it was unclear which electors would be qualified to sign the petitions seeking recall of the board members because of the change in the member district boundaries. The boundary changes resulted in some board members no longer residing in the member district correspondingly numbered to the member position occupied by the board member.
The attorney general opined that “[a]s the term is used in K.S.A. 25-4320 . . . ‘election district’ refers to the member district as it exists after alteration of the member district boundaries and which the board of education member now represents. . . . Those electors residing in the areas now constituting member district # 2 and member district # 3 are, therefore, qualified to sign the petitions seeking recall of their respective members of the board of education.” (Emphasis added.) Att’y Gen. Op. No. 97-28.
The facts of the attorney general opinion are distinguishable from the facts of the present case. For example, U.S.D. 254 and U.S.D. 321 each used different voting plans to elect its school board members. The U.S.D. 254 school board members were elected in both the primary and general elections by electors from their subdistricts, whereas appellants were elected by election at large in the general election.
Nevertheless, considering the language of the Kansas Constitution and the attorney general opinions, we find that the term “election district” as used in K.S.A. 25-4320 refers to the political subdivision from which local officials are elected. Because appellants were elected in the general election by electors from the entire school district, and not merely one of the subdistricts, the entire U.S.D. 321 school district is the election district. Accordingly, any elector from the U.S.D. 321 school district may petition for appellants’ recall. The trial court properly determined that the recall committee was legally organized because all members of the committee were residents of the U.S.D. 321 school district.
Were the Recall Petitions in Proper Form?
The next general issue is whether the form of the. circulated petitions comply with the applicable statutes. Appellants argue that a petition for the recall of a local officer is not legally sufficient if the petition does not fully comply with the specific provisions of K.S.A. 25-4320(b) and K.S.A. 25-4321. Specifically, appellants contend that the petitions filed against them are not sufficient because each page of the petitions do not contain the required warning and, thus, are not in the proper form. Our courts have not previously considered the proper form of recall petitions.
K.S.A. 25-4320(a) lists the components of a petition for recall of a local officer. The statute requires that “[e]ach petition for recall of a local officer shall include . . . the statement of warning required in K.S.A. 25-4321, and amendments thereto.” (Emphasis added.) K.S.A. 25-4320(a)(5). Subsection (b) of the statute pro vides that “[e]ach page of a petition for recall of a local officer shall be in substantially the following form.” The subsection then provides a sample form which includes a warning statement. The warning provision to be included on a recall petition is required by K.S.A. 25-4321:
“Any person who signs a name other than that person’s own name to a petition for recall of a local officer, or who knowingly signs more than once for the same proposition at one election, or who signs the petition knowing he or she is not a registered elector is guilty of a class B misdemeanor. Each page of the petition shall include a statement of warning of this crime.”
The purpose of including the warning statement in a recall petition is to alert potential signers that it is a crime to falsely sign the petition. The first page of each petition filed against appellants were the only pages that were signed by the petitioners and each of these pages contained the warning required by K.S.A. 25-4320(a)(5). It would be nonsensical to require the recall committee to include the warning on the second and third pages of the petitions because those pages did not include signatures of petitioners. Instead, the additional pages of the petitions contained affidavits and continuations of the statements of grounds for recall.
Appellants allege that the legislature required the warning to be included on each page of a petition, regardless of whether the page contained signatures of petitioners, to prevent the circulators of the petition from altering the additional pages. This argument, however, is flawed because the warning does not pertain to the substance of the allegations contained in the petitions.
We read K.S.A. 25-4320(b) and K.S.A. 25-4321 as requiring each page of a petition containing signatures of petitioners to include the warning statement. As a result, we determine that the petitions filed against appellants comply with the statute because the required warning is included on the pages of the petitions containing the petitioners’ signatures.
Were the Grounds Stated in the Recall Petitions Sufficient to Allow Recall Elections?
The last broad issue is whether the grounds stated in the recall petitions are legally sufficient to allow the recall elections to pro ceed. Appellants maintain that the allegations in the recall petitions failed to state a ground for recall with sufficient particularity. In the alternative, the appellants maintain that the grounds are insufficient to show incompetence. Appellants further contend that since the recall petitions listed a number of grounds for holding the recall elections, some of which were found to be legally insufficient by the trial court, the entire petitions are invalid because it is impossible to determine if the individuals signing the petitions would agree with the allegations found sufficient.
A. WERE THE GROUNDS FOR RECALL STATED WITH SUFFICIENT PARTICULARITY?
Appellants initially claim that the allegations in the recall petition do not state the grounds for recall with sufficient particularity as required by K.S.A. 1999 Supp. 25-4302. The statute provides that grounds for recall of elected officers are “conviction of a felony, misconduct in office, incompetence or failure to perform duties prescribed by law.” Appellants contend that the recall petitions alleging their incompetence are so vague as to prevent them from submitting meaningful statements against recall as allowed by K.S.A. 25-4329. This statute permits a local officer subject to a recall election to submit “within ten (10) days after the date [the] county election officer gave notification that the petition was properly filed” a “statement of not more than two hundred (200) words made by the local officer sought to be recalled in justification of his or her conduct in office.” Copies of the statements for and against recall must be conspicuously posted at the polling places. K.S.A. 25-4329.
Only a handful of Kansas appellate cases have addressed the degree of specificity required by our recall statutes. In Unger v. Horn, 240 Kan. 740, 732 P.2d 1275 (1987), members of a local school board appealed the trial court’s determination that recall petitions filed against them were legally sufficient under K.S.A. 25-4302. The only question on appeal was whether the petitions sufficiently stated misconduct in office by alleging that the board members “violated the Kansas Open Meetings Laws by participating in an unannounced private meeting.” 240 Kan. at 742-43. The Unger court noted that “[t]he grounds stated in a recall petition must be specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office.” 240 Kan. at 747. In holding that the allegations in the recall petitions failed to state a ground for recall with sufficient particularity because the petitions contained no more than a general statement of the ground for recall, the Unger court declared:
“Unless a particular allegation of violation of the Open Meetings Acts is stated, Unger and Temple have no opportunity to refute the charge. The petitions for recall of Unger and Temple do not contain a clear statement of the alleged act or acts constituting the grounds for recall.” 240 Kan. at 747.
The Unger test was applied in the case of Baker v. Gibson, 22 Kan. App. 2d 36, 37, 913 P.2d 1218 (1995). This appeal involved a recall petition alleging that a sheriff was incompetent. The petition alleged in part as follows:
“ ‘In November of 1993 over half of the county Drug Task Force signed a letter asking the Sheriff to resign due to his inability to function as a leader. He refused, so they resigned. After the displays of violence and drunkedness [sic] they were uncomfortable with his decision making abilities. (INCOMPETENCE JUDGED BY HIS PEERS)’ ”
This court held that “the general allegations in the recall petition relating to the sheriff s leadership abilities in connection with the Drug Task Force do not meet the standards set by the court in Unger.” 22 Kan. App. 2d at 46.
The only previous Kansas appellate case to find that a recall petition stated sufficient grounds to hold a recall election is Cline v. Tittle, 20 Kan. App. 2d 695, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995). In Cline, a county attorney appealed the trial court decision reversing his determination that a recall petition filed against members of the local school board failed to state sufficient grounds for recall. The petition alleged in part as follows:
“ ‘At a special meeting of the Board of Education on September 13,1993, Board Member Mark Kerr voted to discontinue the wrestling program notwithstanding the commitments to coaches and other schools and the costs already incurred with his approval. The agenda for the September 13 meeting did not inform the public that discontinuance of the wrestling program would be considered by the Board.
“ ‘Mark Kerr has ignored the plainly expressed desire of his constituents concerning the wrestling program. That, combined with his wasteful, arbitrary and secretive conduct as a member of the Board, demonstrates his incompetence to continue to serve.’ ” 20 Kan. App. 2d at 696.
This court held that “the recall petitions alleged incompetence, one of the four- grounds for recall listed in K.S.A. 25-4302, and the allegations were described with sufficient particularity in not more than 200 words so as to allow the officers to respond.” 20 Kan. App. 2d at 703.
Here, although appellants filed statements against their recall, they contend that the grounds for recall are not stated with sufficient particularity for them to meaningfully respond to the allegations of incompetence. The written allegations of the recall petitions can be restated as follows:
1. Appellants have violated board policies, including their failure to recognize that authority rests with the entire board and not in individual members nor the superintendent;
2. Appellants have failed to recognize that all members should be permitted to participate fully in board discussion;
3. These violations have occurred when appellants have acted as directed by the superintendent, including participation in scripted board meetings where scripts have been prepared by the superintendent;
4. Appellants have caused discussion by certain board members to be abruptly cut off;
5. Appellants have failed to represent the people in the district on all matters of public education by not enforcing the terms of the superintendent’s employment contract;
6. Appellants have acted rude and disrespectful to board members and the public at board meetings; and
7. Appellants have failed to allow citizens to be heard before board decisions and have refused to answer questions at board meetings.
The trial court determined that some of the grounds listed in the recall petitions were inadequate to meet the requirements of specificity. For example, the trial court determined that the alie gations that board members “violated board policies” were inadequate. The trial court also determined that the allegation that the board members “failed to represent the people in the district on all matters of public education by not enforcing the terms of the superintendent’s employment contract” was inadequate. In addition, the trial court determined that the allegation “that all members should be permitted to participate fully in board discussion” was insufficient. Nevertheless, the trial court found that the allegation that appellants acted in a manner “directed by the superintendent, including participation in scripted board meetings,” was stated with sufficient particularity to allow the recall elections to proceed. The trial court, however, did not address whether any of the remaining allegations were adequate.
We agree with the trial court that the allegations contained in paragraphs 1, 2, and 5 are not stated with sufficient particularity. For example, the allegation that appellants failed to enforce the terms of the superintendent’s employment contract lacked specificity. The allegation neglected to state what parts of the contract were not enforced. Moreover, the allegations contained in paragraphs 1 and 2 seemed to assert opinions rather than facts. In addition, all three allegations were very general. Likewise, the allegations under paragraphs 4, 6, and 7 were extremely general and were not stated with sufficient particularity. Without additional facts, the allegations contained in paragraphs 1, 2, 4, 5, 6, and 7 are not specific enough to allow appellants an opportunity to prepare a statement in justification of their conduct as school board members.
Nevertheless, as stated earlier, the trial court did determine that the allegation that appellants acted in a manner “directed by the superintendent, including participation in scripted board meetings” was stated with sufficient particularity. The allegation is listed under paragraph 3. This allegation, however, is not stated with sufficient particularity either. For example, the allegation failed to state how and when the superintendent scripted those meetings or how those scripted meetings violated specific board policies. We are simply asked to assume that board policies were violated by those scripted meetings. Because the allegation fails to specify a particular scripted meeting and how it violated specific board policies, the allegation is not specific enough to give appellants an opportunity to prepare a statement in justification of their conduct in office.
Although the appellees argue that grounds alleged in the recall petitions are sufficient because the appellants responded to them, this begs the question. Establishing that appellants responded to the recall petition does not establish that the grounds stated in the recall petitions are specific enough, under the Unger standards, to allow appellants an opportunity to respond to them. The appellees are asking us to assume that the grounds stated in the recall petitions are specific enough based solely on appellants’ response to them. The appellees, however, failed to point to any independent evidence to show that the grounds contained in the recall petitions were specific enough to tell appellants what board policies they violated and how and when they violated those board policies.
Although it would be helpful in our review of these matters, we are not suggesting that a sponsor of a recall petition must always include exact dates and times when stating a ground for recall. Nevertheless, as the Unger court noted: “The petitions for recall . . . [should] contain a clear statement of the alleged act or acts constituting the grounds for recall.” 240 Kan. at 747. Because the appellees’ petitions for recall fail to clearly spell out the acts constituting the grounds for recall, we reverse the holding of the trial court.
Our decision on the sufficiency of the recall petition is determinitive of the case. However we feel obligated to comment on the other issues raised by appellants regarding the sufficiency and validity of the recall petition.
B. DID THE ALLEGATIONS SHOW INCOMPETENCE?
In the alternative, the appellants contend that even if the reasons set forth in the petitions are stated with sufficient particularity, the allegations do not amount to incompetence under K.S.A. 1999 Supp. 25-4302.
As noted previously, incompetence, under K.S.A. 1999 Supp. 25-4302, is one of the four reasons that may be used to recall a public officer. Black’s Law Dictionary 765 (6th ed. 1990) defines incompetency as “[l]ack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation. . . . [I]t can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness,” citing County Bd. of Ed. of Clarke County v. Oliver, 270 Ala. 107, 116 So. 2d 566, 567 (1959). See Unger, 240 Kan. at 743 (defining the term “misconduct in office” as used in K.S.A. 25-4302 and holding that an allegation of willful violation of the Kansas Open Meetings Act constituted a legally sufficient claim of misconduct in office).
Appellants, however, argue that the definition of incompetence provided at K.S.A. 77-201 Sixth is the proper definition to apply in this instance. The introductory sentence to K.S.A. 77-201 states that “[i]n the construction of the statutes of this state the following rules shall be observed, unless the construction would he inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” (Emphasis added.) The statute defines “incompetent person” as including a “disabled person as defined in K.S.A. 59-3002 and amendments thereto.” K.S.A. 1999 Supp. 59-3002, however, provides definitions to be used in the act when “obtaining a guardian or conservator.” Appellants’ argument that the definitions of incompetency provided in K.S.A. 77-201 and K.S.A. 59-3002 should be applied in the instant case is devoid of authority and is fatally flawed.
For example, if an allegation with sufficient particularity had been stated against the appellants that they were involved in a scheme to disrupt the orderly business functions of the school board, such an allegation would have been sufficient to show appellants’ incompetence. The allegation would show that appellants lacked fitness to discharge their duties as board members. Moreover, the allegation would show that appellants lacked moral fitness to remain in office.
As a result, we are unwilling to adopt appellants’ narrowed definition of incompetency.
Appellants further contend that the recall petitions do not sufficiently allege incompetence because none of the actions com plained of in the petitions could have been accomplished by any single appellant or by all three appellants acting jointly or collectively. This argument, however, is fatally flawed. For example, if only one of the appellants was involved in a scheme to disrupt the orderly business functions of the school board, the actions of this one appellant would be sufficient to show his or her unfitness to remain in office. As a result, appellants’ argument fails.
C. ARE THE PETITIONS INVALID BECAUSE SOME OF THE REASONS IN THE PETITIONS FOR RECALL ARE NOT LEGALLY SUFFICIENT?
Appellants next contend that if one or more of the reasons in the petitions for recall are not legally sufficient then the entire petitions are void. Appellants insist that because the petitions listed a number of reasons for recall, some of which were found to be legally insufficient, the entire petitions are invalid because it is impossible to determine if the signers of the petitions would agree with the allegations found to be sufficient.
This argument is fatally flawed. The petitions for recall state as follows: “I, the undersigned, hereby seek the recall of [appellants] . . . on the ground(s) that . . . [appellants] violated board policies. . . .” Significantly, the petitions do not state that the petitioners are seeking recall based on one or more of the following grounds.
After all the grounds are listed, the petitions state that the recall is being sought for the “foregoing” reasons. Because of how the petitions are worded, the petitioners signed the recall petitions because they agreed with all of the grounds of recall stated therein. If a potential signer disagreed with one or more of the grounds, then he or she would not have signed the petition.
Should Only Legally Sufficient Reasons Be Posted at the Polling Places?
Finally, appellants insist that when one or more reasons listed in a recall petition are found to be insufficient, then only the legally sufficient reasons should be included in the notices posted by the county election officer at the polling places. Although the trial court found, that some of the reasons listed in the petitions filed against appellants were legally insufficient, the trial court determined that the invalid reasons should be included in the statements for recall to be posted at the polling places under K.S.A. 25-4329.
The legislature intended for local officials to be subject to recall based only upon legally sufficient grounds. This is evidenced by statutes allowing for review of a recall petition by the county election officer (K.S.A. 25-4326) and by the judiciary (K.S.A. 25-4331). It would serve little purpose for an official subject to recall to obtain a determination that one or more of the grounds for recall is insufficient but yet allow those legally insufficient grounds to be posted at the polling places. As a result, we determine that the statements for recall posted at the polling places must contain only the legally sufficient grounds for recall.
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Pierron, J.:
In this appeal of a workers compensation award, the appellants Fluor Daniel Construction Corporation (Fluor), and CNA Group (CNA) contest the finding of the Workers Compensation Appeals Board (Board) that Sean Butera was acting within the scope of his employment when his injury occurred. The appellants also raise a jurisdictional challenge based on Butera’s failure to appeal a preliminary order to this court.
Butera was an iron worker and rigger for Fluor. The nature of his work required that he be willing to temporarily relocate to remote construction sites and find long-term lodging convenient to the site. His employment contract provided for a mileage reimbursement until he found appropriate lodgings. After that, Fluor was paid a daily stipend intended to cover food, lodging, and driving costs.
Fluor contracted with Wolf Creek Nuclear Operating Corporation (Wolf Creek) to provide fueling services at the power plant near Burlington. Butera was assigned to the site for a period con templated to last about 6 months. Butera’s primary residence is Cabool, Missouri, approximately 360 miles from Wolf Creek. Butera took up residence at a hotel in Garnett, a 30-minute drive from Wolf Creek. His first day of work was September 22, 1997, and he commuted daily from Garnett to Wolf Creek.
While driving to work on the evening of November 23, 1997, Butera was injured when he collided with a concrete barrier in front of an unlighted guard post on Wolf Creek property. The guard station was normally lit but a transformer failure had extinguished the lighting that night. Butera filed a workers compensation claim pursuant to the Kansas Workers Compensation Act (Act), K.S.A. 44-501 et seq. In a preliminary order, the administrative law judge (ALJ) invoked the “coming and going” rule and found Butera was not acting within the scope of his employment when he was injured, as he was commuting from his residence to the job site at the time. Butera petitioned the Board for review and it affirmed.
The ALJ subsequently held a full hearing and issued a final award, in which she reaffirmed that Butera had not been injured within the scope of his employment. On appeal, the Board reversed on this issue, concluding that travel was a necessary and integral part of Butera’s job and the arrangement was of benefit to Fluor; therefore, the resulting injury arose out and in the course of his employment. The Board ruled the injury compensable. Fluor and CNA appeal.
The appellants first argue that this court does not have jurisdiction because Butera failed to appeal the Board’s affirmance of the ALJ’s prehminary order which concluded that his injury did not occur in the course of his employment.
Instead of Butera appealing to this court, he proceeded with a final hearing in which the ALJ again determined Butera was not within the Act. The Board reversed and found Butera’s injury was compensable.
The appellants argue the parties developed all the facts relevant to jurisdiction in the prehminary hearing. Therefore, they contend, the ALJ’s prehminary finding that Butera’s injury was not within the Act was a jurisdictional finding based on all the facts. The ap pellants argue this rendered the order a “final order” on the issue of jurisdiction and that Butera’s failure to appeal the order resulted in his waiver on this issue. We disagree.
The ALJ may issue summary and prehminary findings regarding medical compensation and other issues. The goal is to temporarily secure prompt compensation while the parties proceed with a more thorough exposition of the evidence. Carpenter v. National Filter Service, 26 Kan. App. 2d 672, 673-74, 994 P.2d 641 (1999).
Regarding such prehminary orders, K.S.A. 1999 Supp. 44-534a(a)(2) provides in relevant part:
“A finding with regard to a disputed issue of whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee’s employment, whether notice is given or claim timely made, or whether certain defenses apply, shall be considered jurisdictional, and subject to review by the board. Such review by the board shall not be subject to judicial review. . . . Except as provided in this section, no such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of tire facts.”
In this case, the ALJ issued a prehminary order regarding whether the injury arose out of and in the course of the employee’s employment. The statute explicitly states such orders are appeal-able to the Board but not subject to judicial review (meaning this court). Further, the statute provides that prehminary orders are not binding and are subject to a later full presentation of the facts. K.S.A. 1999 Supp. 44-534a squarely addresses the issue the appellants raise.
The appellants rely on Rivera v. Cimerron Dairy, 267 Kan. 875, 879, 988 P.2d 235 (1999), in which the court held an order of the Board dismissing the cases for lack of jurisdiction was a final order, and the claimants were entitled to request judicial review of the order. The jurisdictional issue in Rivera was whether the defendant, as an agricultural enterprise, exempted itself from the Act when it allowed its workers compensation insurance to lapse. The question was whether the ALJ was able to issue any rulings concerning the incidents at hand. In contrast, both parties here acknowledge they are subject to the Act.
To hold that Butera has impliedly waived his rights to a full hearing under these circumstances would stretch Rivera’s holding beyond its facts and run afoul of the plain language in K.S.A. 1999 Supp. 44-534a(a)(2). The appellants’ jurisdictional challenge lacks merit.
Our next issue is whether Butera’s injury, which occurred during his commute to work, fell within the “inherent travel” exception due to the fact he had been temporarily residing in a hotel.
Whether an injury arose out of and in the course of employment is a question of fact, and we review for substantial competent evidence. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 771, 955 P.2d 1315 (1997). In general, courts construe the Workers Compensation Act liberally for the purpose of bringing employers and employees within the coverage of the Act. Chapman v. Beech Aircraft Corp., 258 Kan. 653, 655, 907 P.2d 828 (1995).
K.S.A. 1999 Supp. 44-508(f) provides in relevant part:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when die worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.”
At the time he was injured, Butera was driving from his hotel to the job site to begin his shift. The appellants argue the hotel was, in essence, Butera’s residence for the purposes of determining whether Butera was on his way to the site to assume the duties of his employment. As a result, the appellants urge that the “coming and going rule” removes Butera from the scope of the Act and renders his injury noncompensable.
Butera argues his travel to the worksite should be considered in the context of his extended stay away from home. Butera reasons he was required by the nature of his work to take up a remote residence. As a result, his entire trip, including the commute from the hotel to the job site itself, was within the scope of his employment.
Injuries incurred while going and coming from places where work-related tasks occur can be compensable where the traveling is intrinsic to the profession or required in order to complete some special work-related errand or special-purpose trip. Brobst, 24 Kan. App. 2d at 774. To be compensable, an injury “must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business.” Covert v. John Morrell & Co., 138 Kan. 592, 593-94, 27 P.2d 553 (1933); see also Angleton v. Starkan, Inc., 250 Kan. 711, 718, 828 P.2d 933 (1992) (if employment exposes the worker to an increased risk of injury of the type actually sustained, the employer is liable for compensation).
Kansas recognizes that some professions require the employee to travel as a part of the job. The clearest example is a traveling salesman, where the employment consists of traveling from account to account within an allotted area. Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 195, 285 Pac. 536 (1930). The travel itself, being part of the job and performed under the employer’s supervision, is within the Act. Similarly, Kansas considers an oil driller’s driving on roads to assemble his crew to be part of the driller’s task, and also within the Act. See, e.g., Bell v Allison Drilling Co., 175 Kan. 441, 445, 264 P.2d 1069 (1953).
A fixed-situs employee does travel to the job site in order to perform the business of the employer, but the Act excises this activity from the scope of compensation in order to keep the employer’s burden manageable. In light of the cases cited above, when determining whether a given daily commute is within the scope of the Act, an increased risk to the employee or an increased utility to the employer is a useful indicator of whether the inherent travel exception should apply.
Travel itself was not part of Butera’s job as a fitter, as it would be when one’s job is to pick up a crew or visit accounts. Butera relocated to temporary quarters for the sole purpose of shortening his commute. While he was reimbursed for the hotel, he was not specifically reimbursed for his reduced commute once he relocated to the hotel residence. His off-hours activities were not under Fluor’s supervision, and he was not expected to accomplish anything on behalf of Fluor during his off-time. Butera, at the moment he was injured, faced no greater risk than other commuters who were traveling from their permanent residence. Similarly, Fluor did not enjoy some benefit over and above what it would have received had Butera been a local resident.
The Board relied upon Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 437, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984), to support its finding that Butera’s travel was an integral part of his employment. The Messenger court relied upon the need for the claimant to drive to distant drilling sites. At the time of his accident, the claimant was driving home from such a site. Messenger’s extensive driving in the service of his employer increased the risk of a traffic accident, and it was reasonable to place the corresponding burden upon the employer. In contrast, Butera did not drive long distances as a matter of course. Rather, Butera relocated to a more convenient location for the express purpose of reducing his daily commute mileage. The nature of Butera’s employment did not increase his risk of a road accident. As a result, Messenger does not apply to the facts here.
Further, Fluor paid a mileage rate for the initial journeys to the work site in order to set up a residence. This is akin to rounding up drillers in preparation for an oil drilling job at a remote site. If Butera had been injured on one of those trips, he would have a good argument for compensation because the special purpose of those trips was to lay groundwork for the job. The parties contemplated in their contractual relationship that those trips would be specially treated. However, once Butera set up long-term residence in the local hotel, the special purpose disappeared, and he simply commuted from the hotel to die job site. At that point, he lost the explicit mileage allowance and received a general stipend.
The contractual relation of the parties indicates Butera was not considered to be on his employer’s business when he was not actually at the job site, and accidents arising when he was off work were personal in nature. See SAIF v. Reel, 303 Or. 210, 217-18, 735 P.2d 364 (1987) (where claimant was injured in remote lodg ings on his own time, there existed no continuity of employment establishing the injury arose in the course of his employment).
The cases Butera cites in support of his argument are not controlling. One line, involves accomplishing a task on behalf of the employer, as in the oil drilling cases. These cases do not apply because the travel itself is part of the job. Another line deals with employees suffering injury while attending a continuing education seminar. See, e.g., Blair v. Shaw, 171 Kan. 524, 528, 233 P.2d 731 (1951) (mechanic killed returning from auto manufacturer’s seminar). These do not apply because they deal with special-purpose trips taken on behalf of the employer, more akin to Butera’s initial trips to set up a residence.
Finally, Butera discusses Wright v. Industrial Comm., 62 Ill. 2d 65, 338 N.E.2d 379 (1975). In Wright, the claimant supervised the installation of the company’s machines in the factories of the purchasers. This process took 5 to 6 months, during which the claimant lived in a nearby hotel. During such work he received a per diem allowance. Claimant was killed in a traffic accident while he was off duty. In finding the injury compensable, the court adopted the rule that for such remote workers, any reasonable conduct which might normally be anticipated or foreseen by his employer was compensable. 62 Ill.2d at 69-71. The court also refused to distinguish between a continuously traveling employee and one traveling to a distant job location only to return when the work is completed. 62 Ill.2d at 68-69.
Wright’s facts are similar to the facts involved here, but the court’s approach appears too broad to fit with Kansas precedent. First, there appears to be a rational difference between a continuously traveling employee and one who stays in a hotel to reduce the daily commute. Second, the test in Kansas for compensable activity is not just whether the injury was “reasonably foreseeable.” The injury must also result from a rational causal connection between the work itself and the resulting injury. See Angleton, 250 Kan. at 718. Finally, in Bailey v. Industrial Comm’n., 247 Ill. App. 3d 204, 210-11, 617 N.E. 2d 305 (1993), the court distinguished Wright by stressing the claimant may have been on a work-related errand at the time of the accident.
There is nothing special about the commute itself that would make it part of Butera’s job. The fact it originated from a hotel rather than his residence is of some importance. But standing alone, that fact does not provide any reasonable basis for distinguishing Butera’s from the hotel commute from a normal commute from home. The Board erred on this issue.
On appeal, the appellants advance other arguments relating to the employer’s premises and the special hazards exception. Butera raised these exceptions to the Board, but the Board did not address them. The appellants argue Butera’s failure to cross-appeal forecloses our review. We do not believe it is necessary to address these issues because we have nothing from the Board to review and the case is resolved without considering them.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Marquardt, J.:
Samuel B. Muller, Jr., filed suit against Bank of America N.A., f/k/a NationsBank, N.A., f/k/a Bank IV, Kansas, N.A., seeking a declaratory judgment to allow him to withdraw all assets from his mother’s revocable inter vivos trust. He appeals the trial court’s grant of summary judgment in favor of NationsBank. We affirm.
The facts are not in dispute. In March 1986, Cordelia E. Muller executed a general durable power of attorney designating her son Samuel as her attorney-in-fact. In November 1993, Cordelia executed a revocable trust naming herself and Bank IV as cotrustees. Under the terms of the trust, Bank IV was to manage the trust assets and pay part or all of the income and principal to Cordelia at her direction. In the event of her disability or impairment, Bank IV was authorized to provide for Cordelia’s health and welfare, and for the health, support, maintenance, general welfare, and education of her spouse and minor children. Upon her death, the trust, with accumulated income, would pass to her estate. Cordelia reserved “the right to withdraw all or any portion of the trust estate at any time by dehvering a written request therefor to the Corporate Trustee.”
After execution of the trust, NationsBank became the successor to Bank IV. Samuel made a demand upon NationsBank to withdraw all of Cordelia’s trust assets. NationsBank refused the request. In March 1999, Samuel’s attorney sent a letter to NationsBank and demanded the withdrawal of the trust assets. Samuel claimed: (1) The trust management fees were excessive; (2) the corporate trustee had changed its identity at least three times; (3) the invested assets are of substandard performance; and (4) there was a possible conflict of interest. NationsBank refused to allow the withdrawal of the trust assets.
Samuel sued NationsBank, alleging that he had the right to demand withdrawal of the trust assets as Cordelia’s attomey-in-fact. He subsequently filed a motion for summary judgment.
At some point during the litigation, Bank of America, N.A., became the successor in interest to NationsBank. Bank of America agreed that the material facts were uncontroverted and also hied a motion for summary judgment. The trial court entered summary judgment in favor of Bank of America, finding:
“6. Neither party contends the power of attorney or trust instrument is ambiguous and the court finds no reason to declare those instruments ambiguous.
“7. Cordelia E. Mueller is a living person and neither party alleges or presents evidence by which the court could find that she is incompetent or incapacitated. Defendant merely asserts in its motion for appointment of a guardian ad litem that she ‘is an elderly person who now resides at Beverly Healthcare in Pittsburg, Kansas’ and that she does not have a legally appointed conservator. Further, neither party claims that Cordelia E. Mueller is a person needed to be joined for a full adjudication of the issues before the court as is contemplated by K.S.A. 60-219.”
The trial court ruled:
“6. The trust was established November 19, 1993, more than seven years after die power of attorney was executed on March 11, 1986. The trust reserves the power of amendment and revocation to the grantor. In reserving that power to herself, die grantor uses die terms T and ‘me.’ She does not provide that her attorney in fact is to have diat power. Likewise, the power of attorney does not mention the right to either establish or revoke trusts.
“7. The Kansas appellate courts have not had occasion to rule on the issue presented. The rule diis court finds will be adopted by the Kansas appellate courts is: When the grantor or settlor of a trust reserves to herself the right and power to amend or revoke a trust or to withdraw assets from die trust estate, diose rights and powers are not transferable in die absence of die grantor’s express direction.
“8. In this case, the trust instrument specifically reserves those powers to the grantor. The power of attorney makes no mention of trust powers and grants die attorney in fact no specific power to revoke or amend the trust or to withdraw assets from the trust.
“9. The risk of loss and harm to the grantor of a trust is simply too great to permit such trust amendment without specific direction and authority from the grantor.”
In his motion for summary judgment, Samuel argued that the language of the general power of attorney granted him the power and authority to withdraw the trust assets. In its motion for summary judgment, Bank of America argued that the withdrawal of assets had the effect of revoking the trust, and the power of attorney did not grant Samuel the power to revoke the trust. It argued that the power to revoke the trust was personal to Cordelia, and could not be exercised by her attomey-in-fact.
A power of attorney is an instrument in writing by which one person, as principal, appoints another as agent and confers upon such agent the authority to act in the place of the principal for the purposes set forth in the instrument. Peterson v. Peterson, 10 Kan. App. 2d 437, 442, 700 P.2d 585 (1985). See Kansas Uniform Durable Power of Attorney Act, K.S.A. 58-610 et seq.
In construing the language of the power of attorney and the trust, the trial court, citing Bank IV Olathe v. Capitol Fed’l Savings & Loan Assn, 250 Kan. 541, 549-550, 828 P.2d 355 (1992), stated that a power of attorney is to be strictly construed. However, the power of attorney is not to be construed so as to defeat the intention of the grantor (throughout the opinion the words “grantor” and “settlor” are used interchangeably); rather, if the language is plain, the power is not to be extended or restrained by implication. The interpretation should give effect to the purpose of the principal in conferring such power. See Grocer Co. v. Kinkaid, 86 Kan. 167, 170, 119 Pac. 537 (1911).
In the instant case, the following relevant paragraphs of the power of attorney document delegate broad and specific powers to the attorney-in-fact:
“1. To exercise or perform any act, power, duty, right, or obligation whatsoever that I now have, or may hereafter acquire the legal right, power or capacity to exercise or perform, in connection with, arising from, or personal, tangible or intangible, or matter whatsoever.
“5. To conduct, engage in, and transact any and all lawful business of whatever nature or kind for me, on my behalf, and in my name.
[Paragraph 7 delegates several specific powers relating to Cordelia’s financial accounts “now held or hereafter acquired with any bank.” The last sentence states:] “The enumeration of the aforesaid specific authorities is not intended to, nor does it limit or restrict any of the general powers granted herein.
“8. I grant to said attorney in fact full power and authority to do, take and perform all and every act and thing whatsoever requisite, proper or necessary to be done, in die exercise of any of the rights and powers herein granted, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that said attorney in fact, or his substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.
“9. This instrument is to be construed and interpreted as a general power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it, limit or restrict, and is not to be construed or interpreted as limiting or restricting, the general powers herein granted to said attorney in fact.”
The power of attorney does not forbid the attorney-in-fact from withdrawing trust assets or revoking the trust; rather, the language expresses an intent to authorize the attorney-in-fact to act in place of the principal relative to all of her assets and business. See Bank IV Olathe, 250 Kan. at 550. The question before us is whether the broad general powers granted to the attorney-in-fact include the withdrawal of all trust assets, which would in essence revoke the trust, taking into account that the trust was established years after the power of attorney was executed.
NationsBank cites numerous cases to support its position that an attorney-in-fact does not have the power to revoke a trust where the settlor personally reserved the right to revoke. However, as noted by the trial court, the cited cases are factually distinguishable from the present case. Two cases quote the principle from Bogert, The Law of Trusts and Trustees § 1000 at 322 (Rev. 2d ed. 1983) that in the absence of express direction to the contrary, the power to revoke a trust is personal to the settlor, and when reserved to the settlor, the power does not pass to the settlor’s successors in interest on the settlor’s death, nor is it transferable by the settlor. See Murphey v. Murphey, 169 Ariz. 443, 819 P.2d 1029 (Ct. App. 1991); In re Guardianship of Lee, 982 P.2d 539 (Okla. App. 1999).
In Murphey, the trust document provided: “ ‘The powers reserved by the settlors, or either of them, are personal and shall not be exercisable by any guardian or other personal representative.’ ” 169 Ariz. at 444. The surviving settlor of the trust executed a general power of attorney appointing the appellant as her attorney-in-fact. The appellant subsequently made several modifications to the trust. The appellate court affirmed the trial court’s finding that the durable power of attorney was personal and nondelegable on two grounds. First, the court stated: “The basic principles of trust law prohibit the transfer to anyone, including one with the power of attorney, when the right to amend or revoke is reserved personally by the settlors.” 169 Ariz. at 444. Second, the appellant was a “personal representative” of the surviving settlor and the trust language specifically precluded a personal representative from revoking or modifying the trust. 169 Ariz. at 445.
In the instant case, there is no trust language that either precludes or grants the attorney-in-fact the power to revoke or modify the trust.
The Restatement (Second) of Agency § 17 (1957) states: “A person privileged, or subject to a duty, to perform an act or accomplish a result can properly appoint an agent to perform the act or accomplish the result, unless public policy or the agreement with another requires personal performance; if personal performance is required, the doing of the act by another on his behalf does not constitute performance by him.”
In Matter of Mosteller, 719 A.2d 1067 (Pa. Super. 1998), the settlor executed a living trust and retained full power to revoke the trust. He named a bank as the trustee. He subsequently executed a power of attorney which granted broad general powers to the bank and the appellant, including the right to “ ‘create a trust and/ or make additions to an existing trust for my benefit’ and to ‘engage in and transact in my name all business that they or either of them may think proper.’ ” Further, he gave the attorneys-in-fact these powers, “ ‘[a]ll with the same power to all intents and purposes with the same validity as I could do if personally present.’ ” 719 A.2d at 1067. After the settlor was declared incapacitated, the bank merged with another bank and transferred the trust powers to the new bank. The appellant objected and revoked the trust. The bank refused to honor the revocation. The Pennsylvania appellate court noted that Pennsylvania courts do not always follow the rule of strict construction and concluded that an attorney-in-fact could be granted the authority to revoke a trust:
“In the present case, it is true that the power to withdraw tire income and corpus of a trust was not specifically granted in the power of attorney .... However, [the settlor] clearly granted Appellant the power to make trusts and to make additions to trusts .... Thus, he clearly intended for Appellant to have the power to deal with the trust .... Even though not specifically given the power to revoke, it is clear that under controlling case law, the power of attorney must be construed to confer that power on Appellant, given its broad general grant of power and its specific language allowing the attorneys-in-fact to deal with trusts.” 719 A.2d at 1069.
Other courts have reached similar results. In Matter of Trust of Franzen, 955 P.2d 1018 (Colo. 1998), the settlor created a trust designed to provide for him and his wife. He named a bank as the sole trustee. The settlor expressly reserved the power to revoke the trust and, upon his death, the power was to be assumed by his wife. After the settlor died, his wife appointed her brother as her attorney-in-fact. The power of attorney expressly authorized the brother to manage and “ ‘in any manner deal with’ ” the revocation of the trust. The brother attempted to revoke the trust and the bank refused. The Colorado Supreme Court, following-the rule of strict construction, stated that the language in the instrument authorized the brother to revoke the trust. It held: “the principal may confer authority to amend or revoke trusts on an agent without referring to the trusts by name in the power of attorney.” 955 P.2d at 1023.
In First Union National Bank of Virginia v. Thomas, 37 Va. Cir. 35 (1995), the court quoted the Restatement (Second) of Agency § 17 (1957) and noted that no Virginia law or public policy prohibited an agent from revoking a trust pursuant to a valid durable power of attorney which specifically authorized an agent to take such action. It concluded that an agent can be delegated the duty of revoking a trust. 37 Va. Cir. 35 at 39-40.
“It has been said that an attorney in fact is essentially an alter ego of the principal and is authorized to act with respect to any and all matters on behalf of the principal with the exception of those acts which, by their nature, by public policy, or by contract require personal performance.” (Emphasis added.) 3 Am. Jur. 2d, Agency § 23, p. 529. There are few restrictions on the acts that a principal can delegate to an agent under a durable power of attorney, and the range of acts that are nondelegable is fairly narrow. Dessin, Acting as Agent under a Financial Durable Power of Attorney: An Unscripted Role, 75 Neb. L. Rev. 574, 582-83 (1996).
No Kansas statute or public policy prohibits an agent from withdrawing funds or revoking a trust pursuant to a valid durable power of attorney which authorizes such action. Under the Bogert principle, unless the settlor expressly states otherwise in the trust document or the power of attorney, the power to revoke a trust is personal to the settlor and is nondelegable. Cordelia executed the power of attorney years before the trust was created. If she had wanted the holder of the power of attorney to have special powers as it related to the trust, it is reasonable to assume that she would have designated those powers in her trust. Additionally, she could have executed a new power of attorney and specifically granted her attorney-in-fact those powers. Cordelia did not execute a new power of attorney. It is also curious that Cordelia was not declared a necessary party to the litigation below where she could have stated her intent as to the power of attorney. Without the specific grant of authority to Samuel, we hold that he lacked the power and authority to revoke the trust.
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Green, J.:
James Douglas Roth (Jim) appeals from a judgment of the trial court in a divorce action. On appeal, Jim argues that the trial court abused its discretion in refusing to award interest on a judgment lien awarded to him. Jim further argues that because the trial court failed to award interest on the judgment lien, the trial court abused its discretion in dividing the marital property. We disagree and affirm.
On July 20, 1999, Jim and Lori Ann Roth were divorced after 15 years of marriage. The couple had three children. Jim earned approximately $100,000 in 1998 and Lori earned approximately $80 a month teaching piano lessons. Lori was enrolled in college and needed approximately 140 more hours to complete her teaching degree. \
After hearing the evidence, the trial court awarded the following to Lori: one-half of the pension ($14,250); one-half of the savings plan ($13,244.69); her vehicle (valued at $9,567.50); one-half of the equity in the marital residence (valued at $37,660.84); an IRS refund ($1,200); and the 1998 income tax refund ($316). Lori received total assets valued at $76,239.03.
Jim was awarded the following: one-half of the pension ($14,250); one-half of the savings plan ($13,244.69); his vehicle (valued at $5,357.50); the certificate of deposit ($5,000); furniture debt ($2,496); and one-half of the equity in the marital residence ($37,660.84). Jim received assets totaling $73,017.03. Jim was ordered to pay child support in the amount of $1,689 per month and spousal maintenance in the amount of $1,400 per month for a period of 48 months.
Jim’s judgment lien on the house will not be paid to him until the earliest any of the following events occur: when Lori sells the house, when Lori no longer resides in the house, or when the parties’ youngest child attains the age of 18 on January 8, 2014. The trial court did not award interest on Jim’s equity lien.
Jim moved for reconsideration, asking the trial court to reconsider its decision that his equity judgment lien bear no interest. He argued that since the lien might not be paid until the youngest child attains the age of 18, the present value of the lien was $10,900, which results in a property division that leaves him with $24,000 less than Lori. The trial court overruled the motion.
The sole issue on appeal is whether the trial court erred in refusing to award interest on Jim’s equity Hen on the house. The issue of whether a trial court must award interest on an equity judgment in a divorce proceeding is an issue of first impression in Kansas. Our standard of review is whether the trial court abused its discretion in adjusting the parties’ property rights. In re Marriage of Kirk, 24 Kan. App. 2d 31, 35, 941 P.2d 385, rev. denied 262 Kan. 961 (1997).
Jim claims that the trial court was required to award interest on the judgment Men under K.S.A. 1999 Supp. 16-204(d). The statute provides: “Any judgment rendered by a court of this state on or after July 1, 1986, shall bear interest on and after the day on which the judgment is rendered at the rate provided by subsection (e).” Although this statute appears to make an award of interest mandatory, other jurisdictions with statutes similar to K.S.A. 16-204 have held that the question of whether to award interest on property divisions is a matter within the discretion of the trial court.
For example, the Nebraska Supreme Court rejected the contention that a state statute providing for interest on judgments requires that a marital property distribution payable in installments must bear interest. Dryden v. Dryden, 205 Neb. 666, 289 N.W.2d 525 (1980). Dryden held that interest on a division of marital property award begins to accrue only on each individual installment from the date that it becomes due and payable. 205 Neb. at 668. The court later held that trial courts have discretion to award interest on deferred installments payable as part of a marital property distribution. Seemann v. Seemann, 225 Neb. 116, 402 N.W.2d 883 (1987).
The Indiana appellate courts have rejected the argument that interest was required by statute on the principal balance of an award. Van Riper v. Keim, 437 N.E.2d 130 (Ind. App. 1982), held that the trial court did not abuse its discretion in not awarding the wife interest on a lump-sum division of property payable in installments. See Annot., 10 A.L.R. 5th 221.
Other jurisdictions have adopted the view that whether to award interest in distribution of marital property is within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. See, e.g., Cotton v. Cotton, 439 So. 2d 309 (Fla. App. 1983); In re Marriage of Stone, 155 Ill. App. 3d 62, 507 N.E.2d 900 (1987); Price v. Price, 484 P.2d 532 (Okla. 1971); see Annot., 10 A.L.R. 5th 218.
We find the trial court may, in its discretion, award interest on the principal balance of an award of marital property but is not required to do so under K.S.A. 1999 Supp. 16-204. Kansas law gives broad discretion to a trial court in dividing marital property, and it follows that a trial court also has discretion to award interest on a judgment. Moreover, there is no provision for awarding interest in K.S.A. 1999 Supp. 60-1610(b)(l)(B). Instead, the statute provides that if real or personal property is awarded to one of the parties, he or she must pay the other party “a just and proper sum.” As a result, the decision of whether to award interest on a judgment lien in a divorce proceeding is a matter that is within the sound discretion of the trial court.
Although the trial court was not required to award interest on Jim’s judgment lien on the house, the issue remains whether the trial court abused its discretion in refusing to award interest on that judgment. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. In re Marriage of Wade, 20 Kan. App. 2d 159, 168, 884 P.2d 736 (1994), rev. denied 256 Kan. 995 (1995).
Jim maintains that when the present value of his judgment hen on the home is considered, the trial court’s division of the marital property resulted in an inequitable award to him. Although Jim contends that the present value of his judgment hen is approximately $10,900, that figure is based on a discount rate of 9 or 10 percent over the term of 14 years. Jim, however, asked the trial court for only 4 or 5 percent interest on the judgment hen. As such, we will base the present value of the judgment hen on a 5 percent discount rate.
It is impossible to accurately predict the present value of the judgment hen because we do not know when the hen will become due. If Lori sells or no longer resides in the home, the judgment hen would become due then, which would make the present value of the judgment hen greater than if Lori continues to own and reside in the home until the youngest child turns 18. Giving Jim the benefit of the doubt, we will assume that the hen will become due when the youngest child turns 18, which is approximately 14 years after the parties’ divorce.
Using a 5 percent discount rate and a term of 14 years, the present value of Jim’s equity hen is $19,021.28. When this amount is substituted for the future value of Jim’s judgment hen, he received total assets in the amount of $54,377.47. Lori’s total assets remain at $76,239.03. When the present value of the judgment hen is taken into consideration, Jim received approximately 42 percent of the marital property and Lori received approximately 58 percent.
When dividing property and debt in a divorce matter, the division must be just and reasonable. K.S.A. 1999 Supp. 60-1610(b)(l). However, a division of property does not have to be an equal division to be just and reasonable. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975).
In dividing the martial property, the trial court must consider the following factors:
“die age of die parties; the duration of the marriage; die property owned by die parties; dieir present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; die tax consequences of die property division upon the respective economic circumstance of the parties; and such other factors as the court considers necessary to make a just and reasonable division of property.” K.S.A. 1999 Supp. 60-1610(b)(l)(C).
The issue remains whether the division of property in this case was just and reasonable after considering the present value of the property. Lori argues that the division of assets was fair because Jim’s present and future earning capacity is much greater than her potential earning capacity. Lori also points out that Jim can make further contributions to his savings and pension plans with his earnings, but that she will not be able to contribute to these plans.
Jim, on the other hand, insists that the division of assets were unfairly skewed in Lori’s favor. He argues that the house will continue to appreciate and that Loii will have the entire benefit of that appreciation, which will be gained at his expense. Jim also points out that Lori gets the benefit and use of her equity interest in the home, while he must wait up to 15 years for the use and enjoyment of his judgment lien, with no consideration for the wait. Jim would like to use his portion of the equity in the home to purchase another residence. Additionally, Jim notes that Lori gets the tax deductible expenses associated with the home, the appreciation in equity, and 100 percent of the asset for up to 14 years.
Although Jim’s judgment hen is susceptible to the ravages of inflation and he does not have present enjoyment of the asset, we cannot say that the trial court abused its wide discretion in not awarding interest on the lien. The trial court considered the necessary factors set out in K.S.A. 1999 Supp. 60-1610(b)(l) when dividing the property and determined that an award of interest on the judgment hen was unnecessary based on the distribution of other assets, the parties’ earning potential, the needs of the children, and other factors. We cannot say that no reasonable person would take the view adopted by the trial court. As a result, we find that tire trial court did not abuse its discretion in refusing to award interest on Jim’s judgment lien.
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Pierron, J.:
Marlon D. Walker appeals his conviction by a jury for one count of discharging a firearm at an occupied dwelling and one count of criminal possession of a firearm. Walker argues there was insufficient evidence to support his convictions and the trial court erred in not giving a self-defense instruction, excluding testimony, and failing to grant a mistrial.
Elesha Toles held a birthday party at her apartment. She testified that when she heard gunshots, she told everyone to He down on the floor. She testified the gunshots were loud and sounded close by. There were bullet holes in her kitchen walls and in a table and a chair that were not there before the shooting.
Noel Mapes, an armed security guard for die apartment complex, heard the gunshots and ran to the parking lot in front of Toles’ apartment. He testified he saw a man standing in front of Toles’ apartment firing across the parking lot. When he heard return fire coming from the other side of the parking lot, he turned and recognized Walker as the shooter. Walker ran from the scene after returning approximately six shots towards Toles’ apartment.
Mapes testified that Walker later returned to tihe scene and was wearing the same clothes, a tan shirt with dark stripes and tan shorts, as when Mapes had seen him earlier. Mapes asked Walker for his gun and Walker said he'did not have it. A woman began yelling at Walker. Mapes grabbed the woman and Walker began to walk away.
Officer Lee Eisenbise testified that when he arrived at the apartments, Katrina Walker was yelling for the police. As he approached the woman, he noticed a man wearing tan pants and no shirt start walking away. Eisenbise ordered the man to stop, but the man began running and Eisenbise lost sight of him. Minutes later, Officer Erik Landon stopped a man wearing khaki pants and no shirt, and carrying a red shirt. Landon took the man back to the scene and Mapes identified him as Walker and as the shooter.
The police searched Katrina’s apartment and found a box of .357 caliber ammunition. Katrina is Walker’s sister, and he was staying at her apartment. Bullet fragments collected from Toles’ apartment and the station wagon in front of her apartment were consistent with the ammunition found in Katrina’s apartment and consistent with being fired from a .357 magnum handgun.
A jury convicted Walker of criminal discharge of a firearm at an occupied dwelling and criminal possession of a firearm.
The first issue raised in this appeal challenges the trial court’s refusal to give a self-defense instruction requested by Walker. In State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987), this court summarized the pertinent scope of appellate review:
“In a criminal action, a trial court must instruct the jury on the law applicable to tire theories of all parties where there is supporting evidence. State v. Davis, 236 Kan. 538, Syl. ¶ 4, 694 P.2d 418 (1985). . . . When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.”
In determining the availability of a self-defense or defense of another instruction under K.S.A. 21-3211, we have applied a two-pronged test. The first prong is subjective — did the defendant sincerely believe it was necessary to kill or use potentially lethal force in order to defend himself or herself or another? The second prong is objective — was the defendant’s belief reasonable? State v. Jordan, 250 Kan. 180, 185, 825 P.2d 157 (1992); State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977). The defendant, under the second prong, must “show the existence of some facts that would support such belief.” State v. Burgess, 245 Kan. 481, Syl. ¶ 5, 781 P.2d 694 (1989).
Walker now argues that while there was little evidence presented to show how the shooting began and the role each person played in the shooting, the absence of such evidence should not be used to prevent him from utilizing a self-defense instruction. He also argues that whether he was the aggressor remained a question for the jury and the trial court invaded the province of the jury by deciding that the situation was something akin to a wild west shootout. He contends the fact that his shots were wild, striking a car and an apartment, would support the contention that if he was seen shooting, he was simply returning fire. Walker did not testify. There was no other testimony concerning who had started the shooting.
In Burgess, 245 Kan. 481, Burgess was involved in a barroom brawl which began when he or someone sitting with him used a racial epithet as Jari Wills walked past them. Thinking Burgess had spoken, Wills jabbed him several times in the chest with his finger and told Burgess not to call him that again. The fight began when someone threw a punch at Wills, and it ended within a short time when Wills was stabbed. All participants were charged with aiding and abetting second-degree murder; no one was charged as a principal. Burgess denied taking any aggressive action. Nonetheless, he challenged the trial court’s refusal to give an instruction on self-defense. The Burgess court concluded there was no evidence which would justify the use of a deadly weapon against Wills. 245 Kan. at 487. Thus, the request for the self-defense instruction was properly refused.
For the trial court in the present case, the significance of Burgess was the court’s quoting the following excerpt from 40 Am. Jur. 2d, Homicide § 142:
“ ‘As a general rule, the doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into, although the mere fact that one who kills another who seems to be about to make a murderous assault upon him was willing to enter into a fight with the decedent with deadly weapons does not destroy his right to rely on self-defense as justification for the killing, if he acted solely for the protection of his own life, and not to inflict harm upon his adversary. But the view has been taken that one willingly entering into a mutual combat is not justified or excused in taking life unless he has withdrawn in good faith and done all in his power to avert the necessity of killing.’ ” 245 Kan. at 487.
The “mutual combat rule” cited by the court in Burgess is covered by the Kansas statutes on self-defense. The general theory of self-defense is provided in K.S.A. 21-3211: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.” K.S.A. 21-3214(3) sets the underpinnings of “mutual combat” by providing that using force in self-defense is not available to a person who:
“Otherwise initially provokes the use of force against himself or another, unless:
“(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
“(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.”
In State v. Meyers, 245 Kan. 471, Syl. ¶ 1, 781 P.2d 700 (1989), the court adopted the mutual combat rule:
“The doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into. The individual who willingly provoked the mutual combat is not justified or excused in taking life unless he has withdrawn in good faidi, has communicated that withdrawal to his opponent, and has done all in his power to avert the necessity of killing.”
In this case, the only evidence presented at trial of the shooting was the testimony of Mapes, the security officer on duty at the apartment complex that evening. Mapes testified he had been acquainted with Walker during the past 7 or 8 months and knew him as “Jason.” Mapes testified he heard two gunshots and ran to the parking lot where the shots were fired. He saw a man standing in front of Toles’ apartment, pointing a gun across the parking lot. The man fired two shots across the parking lot. Because the man was in an unlighted area, Mapes could not identify him. Mapes aimed his gun and told the man to halt and drop his gun.
Mapes testified that several people came out of Toles’ apartment behind the man who had fired the gun. Then Mapes heard a gunshot from behind him and the shattering of the back window of a station wagon parked in front of Toles’ apartment. Mapes turned around and saw the second shooter approximately 30 yards away. He recognized the second shooter as Walker. Walker was standing under an overhead light near a dumpster on the street corner. Mapes saw Walker fire his gun five more times toward Toles’ apartment. Mapes told Walker to halt and Walker ran from the scene.
There was no evidence that would have supported a finding that Walker acted in a reasonable belief that his own safety depended upon his use of force against another. Walker did not testify in his own behalf. He did not call any other witnesses whose testimony would have supported a finding that he reasonably believed he had fired at the first shooter only in self-defense. The act of returning gunfire in a shoot-out is not, by itself, an act of self-defense. We agree with the trial court that the only evidence showed that the confrontation between Walker and the other shooter was mutual combat. There was no evidence justifying a self-defense instruction.
Next, Walker argues the trial court abused its discretion in not allowing testimony concerning statements made by Shams Nelson.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Stallings, 262 Kan. 721, Syl. ¶ 6, 942 P.2d 11 (1997).
Outside the presence of the jury, Walker proffered the testimony of Officer Bachman as to statements made by Sharris Nelson. Officer Bachman testified that for identification purposes, he took Nelson to the police car where Walker was sitting and asked if she could identify him as the shooter. Officer Bachman testified that Nelson looked at Walker and that she said she “didn’t believe he was the shooter, but he was there.”
Walker initially argued that Nelson’s statements were not hearsay since they were not being offered for the truth of the matter. However, Walker claimed that if the trial court considered the statements to be hearsay, then they fell within the excited utterance exception to the hearsay rule. The court held that Nelson’s statements were being offered for the truth of the matter and did not fall within any hearsay exceptions. Following a brief recess, Walker indicated that he had directed the court to the wrong hearsay exception and that Nelson’s statements were admissible under the general necessity/present sense impression exception to the hearsay rule.
The trial court ruled that Nelson’s statements were hearsay and that it had no evidence before it of whether Nelson was unavailable under the general necessity exception. However, the court permitted Walker to proffer the evidence of his investigator, Sue Neeley, as to efforts made in attempting to contact Nelson. Neeley testified that she had tried to call Nelson, made three attempts to knock on doors at the apartment complex where the shooting occurred, and called all the witnesses listed on the police report in an attempt to find Nelson. On cross-examination, Neeley testified she had not attempted to contact Nelson at her home address or place of employment listed on the police reports. Walker also requested permission to call the prosecutor to testify that the State had subpoenaed Nelson, she had not appeared pursuant to the subpoena, and this fact supported a finding that Nelson was unavailable.
The trial court stated that Walker could call the prosecutor to the stand, but the court would not allow a parly to rely on the representations of another party concerning a witness’ unavailability as a substitute for the party’s own duty to search. The court held that it was incumbent upon the party who wished to bring a person before the court to do an exhaustive search, and at a minimum to go to the place of employment and the last known residence if that information is available. The court found Walker had not performed an exhaustive search and consequently there was not a sufficient showing that Nelson was unavailable. We agree.
Walker also argues Nelson’s statements were not hearsay. Without any supporting authority, he argues Nelson’s testimony does not go to the truth of the matter asserted, since it neither proves nor disproves the identity of the shooter. Walker argues that since Mapes’ identification of the shooter was questionable because of the error of the color of clothes worn by the shooter, Nelson’s statements show additional confusion as to the identity of the shooter.
The trial court did not abuse its discretion in finding Nelson’s statements were hearsay. K.S.A. 2000 Supp. 60-460 defines hearsay as evidence of a statement made by someone other than the witness testifying which is offered to prove the truth of the matter asserted. Contrary to statements of defense counsel, Nelson’s statements were being offered as an eyewitness identification that Walker was not the shooter.
Walker also argues on appeal that Nelson’s statements fall within the excited utterance exception to hearsay statements in K.S.A. 2000 Supp. 60-460(d)(2). Walker abandoned this argument before the trial court when he told the court he was mistaken about which hearsay exception applied and that he would be using the general necessity exception in K.S.A. 2000 Supp. 60-460(d)(3) for authority. We do not consider issues raised for the first time on appeal. “An issue not presented to the trial court will not be considered for the first time on appeal.” State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999).
Even considered on its merits, we find little evidence to support the contention that Nelson’s statements resulted from being startled sufficient to cause the requisite nervous excitement to qualify for the exception.
Walker additionally argues that even if the trial court correctly held that Nelson’s statements were inadmissible hearsay, the statements still should have come into evidence under rules of fundamental fairness. Walker contends it was crucial to his defense to elicit testimony that the shirt collected by the police did not match the description given by Mapes and that a second eyewitness could not identify him as the shooter. Walker’s desires do not overcome the court’s duty to keep legally unreliable evidence from coming before the jury. We also note that no evidence exists in the record that Nelson was actually an eyewitness to the shooting.
Next, Walker argues there was insufficient evidence to support 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). A conviction of even the gravest offense may be sustained by circumstantial evidence. Smith, 268 Kan. at 236.
There is sufficient evidence in this case.to support a conviction based on an eyewitness identification that Walker was involved in mutual combat with another shooter standing in front of Toles’ apartment. There was also evidence that bullet holes from the gunfight were found in Toles’ apartment that were not there before the gunfight had started. The jury was sufficiently instructed concerning Mapes’ eyewitness identification, and the jury was allowed to judge the reliability of the identification.
Walker also addresses the sufficiency argument from the standpoint that the doctrine of transferred intent does not allow the intent to harm a person to transfer to the intent to harm a dwelling. Walker cites no cases supporting his argument other than those concerning the general theory of transferred intent.
In the present case, the jury received the following instruction on the doctrine of transferred intent:
“When a criminal act is directed against one other than the intended victim, the responsibility of the actor is exactly as it would have been had the act been completed against the intended victim. In other words, the requisite criminal intent may be transferred from an intended victim to an unintended victim.”
Transferred intent is an accepted principle in the courts of this state. In State v. Moffitt, 199 Kan. 514, 535, 431 P.2d 879 (1967), overruled on other grounds State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980), the court stated:
“The fact that the homicidal act was directed against one other than the person killed does not relieve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault followed upon the intended victim instead of another. (1 Wharton’s Criminal Law and Procedure, Homicide, § 193, p. 438.)”
In State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980), the court applied the transferred intent doctrine to aggravated battery. The court held that while a specific intent to injure was a necessary element of aggravated battery, under the doctrine of transferred intent, the intent to injure could be transferred to the harm to a bystander who was unintentionally injured. The Stringfield court noted:
“ ‘Under this rule, the fact that the bystander was killed instead of the victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished. The intent is transferred to the person whose death has been caused, or as sometimes expressed, die malice or intent follows the bullet.’ ” 40 Am. Jur. 2d, Homicide §11, pp. 302-303.” 4 Kan. App. 2d at 561.
In State v. Garza, 259 Kan. 826, 916 P.2d 9 (1996), the court addressed the transferred intent doctrine in a shootout situation where another shooter’s bullet, not the defendant’s bullet, caused a bystander s death. The court held the defendant’s act caused no injury and the doctrine did not apply, but the court later discussed the defendant’s liability as an aider and abettor. 259 Kan. at 828-30. In discussing transferred intent, the court stated:
“Under the doctrine of transferred intent, the fact that a reckless act was directed against one other than the person injured does not relieve die actor of criminal responsibility. It is generally held that such an act partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the act been directed at the intended victim instead of another.” 259 Kan. at 829.
Here, the doctrine of transferred intent is applicable because Walker and the shooter standing in front of Toles’ apartment intended to injure each other by conducting a shootout with multiple shots fired by each person. The bottom fine is that Walker fired his gun at a person standing in front of Toles’ apartment. Gratefully, no one was injured in Toles’ apartment. However, Walker’s criminal intent to shoot another person was transferred into the criminal intent required for the commission of criminal discharge of a firearm into an occupied dwelling. Walker clearly must have known that his shots would hit the apartments if he missed the other gunman.
Last, Walker argues the trial court erred in not granting a mistrial based on the testimony of Officer Landon.
K.S.A. 22-3423(l)(c) permits the trial court to declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. The decision to declare a mistrial is within the trial court’s sound discretion and will not be disturbed on appeal unless there is a clear showing that such discretion was abused. Again, judicial discretion is abused when no reasonable person would adopt the view taken by the trial court. State v. Rinck, 256 Kan. 848, 853, 888 P.2d 845 (1995).
The trial court’s power to declare a mistrial is to be used with great caution, under proper circumstances, to ensure that all parties receive a fair trial. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to a jury, the trial judge should declare a mistrial. State v. Chandler, 252 Kan. 797, 801, 850 P.2d 803 (1993). The defendant has the burden of proving he or she was substantially prejudiced by a trial court’s decision. State v. Hammon, 245 Kan. 450, 456, 781 P.2d 1063 (1989).
During direct examination, the State asked Officer Landon what Mapes had said about the man in the back seat of the patrol car. Officer Landon responded, “He positively identified Robert A. Walker — well, he stated his name was Robert A. Walker, he [Walker] lied to me about his name — as being one of the individuals who was firing towards three black males.”
Walker did not contemporaneously object to Officer Landon’s statement. “ ‘A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal.’ ” State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271 (1998) (quoting State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 [1995]). Rather, Walker cross-examined Officer Landon and then raised an objection after the jury had been sent home for the evening.
Walker argued that Officer Landon’s statement that Walker had lied to the police was in and of itself a highly prejudicial remark and not warranted under the circumstances when Officer Landon could have simply stated that Mapes identified the suspect in custody. The State contended that the comment was unsolicited and came out only as a clarification of the officer’s police report. The trial court held that Officer Landon’s comments did not rise to the level sufficient to warrant a mistrial. The court also found, based on the colloquy when the statement came out, there was no bad faith on the part of the prosecution and the witness just blurted out the statement.
We find no abuse of discretion in the trial court’s decision not to grant a mistrial. First, Walker did not contemporaneously object to Officer Landon’s statement and the trial court lost the opportunity to admonish the jury to disregard it. Second, we agree with the trial court that Officer Landon’s statement was not of such a prejudicial nature to warrant a mistrial. As pointed out by the State, the jury had already heard testimony from Mapes that Walker had lied to him about his name, and it should have been no shock to the jury that Walker had lied to Officer Landon about his name also. Further, Officer Landon’s statement was not a personal opinion of Walker’s guilt, but rather a true statement that Walker lied about his name. See State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993) (police witnesses can testify from their experience as to a role the defendant played in an illegal enterprise — they cannot testify that in their opinion the defendant was guilty of the crime).
We find no cause for reversal.
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Pierron, J.:
Lewis D. Morrison appeals the trial court’s decision setting aside a release of a restitution order entered against him in a criminal case 12 years ago. Morrison argues the trial court erred in holding his regular payments were sufficient to toll the dormancy of the judgment.
On April 30, 1985, Morrison was convicted of two counts of arson. He was sentenced to concurrent terms of 5 to 10 years’ incarceration and ordered to pay $63,737 in restitution as a condition of early release or parole. On April 11, 1986, Morrison was paroled for the balance of his sentence and placed on probation for 5 years. A condition of Morrison’s probation was that he pay restitution. On February 4, 1987, the court entered a restitution order for $63,737 and also detailed how Morrison’s restitution payments would be scheduled.
On April 4, 1991, the district court entered an order extending Morrison’s probation for an additional 5-year period. In February 1996, the court entered a journal entry granting the State’s motion for citation for criminal indirect contempt. The journal entry provides that Morrison agreed to pay $100 per month until the balance of his restitution was paid in full. It also states that Morrison’s probation was terminated.
Morrison made the court-ordered payments on his restitution order until February 5, 1999, when he filed a motion entitled: “Release of Restitution Order Pursuant to K.S.A. 60-2403(d).” Morrison claimed the State had not filed a revivor of the judgment and no execution or garnishment had ever been issued. Morrison argued the restitution order became dormant on February 4,1997, and had remained dormant for the required 2-year period, and he was entitled to release of the judgment. The district court granted Morrison’s request and released the judgment.
The State filed a motion to set aside the release of the restitution order on the basis that Morrison had been making regular payments. After an evidentiary hearing, the district court agreed with the State and found the judgment against Morrison was not dormant because he had made monthly restitution payments as ordered by the court. The district court reinstated the earlier court order requiring Morrison to make monthly payments of $100.
Morrison contends the district court was correct when it initially found he was entitled to release of the judgment under K.S.A. 1999 Supp. 60-2403(d). He argues the district court erroneously revoked its order by holding that his partial payments tolled the dormancy of the judgment. Morrison indicates the State never filed a renewal affidavit or issued execution on the restitution judgment during the 10 years following issuance of the restitution order or during the 2 years following the 10-year period when the judgment was considered dormant. As a result, he argues, he is entitled to release of the judgment.
On the other hand, the State argues the payment of restitution in a criminal case is not only governed by the civil procedure stat utes in Chapter 60, but also the more specific criminal statutes in Chapter 21. The State contends the criminal statutes provide for an order of restitution in L ,.A. 1999 Supp. 21-4610(d)(l) and also provide in K.S.A. 1999 Supp. 21-4611(c)(5) for extension of a defendant’s probation period for as long as there is unpaid restitution. The State maintains Morrison’s interpretation of this case would allow a defendant to terminate his or her own probation period by filing for a civil release of judgment concurrent with stopping a regular pattern of payments.
No Kansas cases have interpreted K.S.A. 1999 Supp. 60-2403(d), which was added by the Kansas Legislature in 1995. That year, the legislature amended several statutes concerning criminal restitution. K.S.A. 21-4603d(a) was amended to provide for the mandatory payment of restitution as additional punishment:
“In addition to or in lieu of any of the above [criminal dispositions], the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless die court finds compelling circumstances which would render a plan of restitution unworkable.” (Emphasis added.)
See L. 1995, ch. 257, § 1; In a letter to the House Judiciary Committee dated February 13,1995, Carla J. Stovall, Attorney General, stated:
“Crime victims too often are without any financial resources to assist in die restoring of property, medical bills, [lost] wages, etc., that diey face after a crime. The offender should be held accountable for those losses and the court should not only order restitution but hold the offender accountable to pay the restitution. Mandatory restitution is another tool in which offenders can learn they are personally responsible and accountable for their acts.”
The impetus of the 1995 restitution amendments was to make restitution orders more meaningful, enforceable, and collectable. To assist in the collection of the now mandatory restitution orders, the legislature converted all criminal restitution orders into civil judgments. The legislature added K.S.A. 22-3424(d), which provided:
“If tire verdict or finding is guilty, upon request of the victim or the victim’s family and before imposing" sentence, die court shall hold a hearing to establish restitution. The defendant may waive die right to the hearing and accept the amount of restitution as established by the court. If the court orders restitution to be paid to the victim or the victim’s family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. 1995 Supp. 60-4301 through 60-4304.”
Another witness statement to the House Judiciary Committee indicated:
“This bill simply makes a restitution order meaningful by converting the order to a civil judgment. This allows a crime victim the same tools to collect on a restitution order as our civil courts allow to a plaintiff in a civil judgment.
“Shouldn’t we provide the same mechanism for enforcement to a victim of a crime as we do for a victim of negligence?”
In a memorandum to the House Judiciary Committee dated February 4, 1995, Charles E. Simmons, Secretary of the Department of Corrections, stated:
“Giving restitution orders enforceability as civil judgments is especially important in light of Sentencing Guidelines Act provisions which limit postrelease supervision for crimes committed after July 1,1993 to either 12 or 24 months (plus earned good time credits). If the restitution is not paid in that time period, undercurrent law the State has no way to enforce the restitution order. Making restitution enforceable as a civil judgment will allow the restitution order to survive the period of parole or postrelease supervision, thus enabling crime victims to have a longer period of time in which to obtain full satisfaction of the restitution order.”
In allowing victims to use civil collection remedies to put some teeth in the restitution orders, the legislature also clearly set the outer boundaries of collecting the restitution. The legislature amended the dormancy provisions of the Kansas statutes to specifically allow restitution orders to become dormant if certain circumstances are met. K.S.A. 1999 Supp. 60-2403(d) states:
“If a renewal affidavit is not filed or if execution is not issued, within 10 years from the date of the entry of any judgment of restitution in any court of record in this state, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.”
The intent of the legislature is clear. “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 ascer tained. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Restitution orders are subject to dormancy under K.S.A. 1999 Supp. 60-2403(d).
The law in Kansas concerning the dormancy of judgments is well established. Although no cases have interpreted K.S.A. 1999 Supp. 60-2403(d), the interpretations of the general dormancy provisions in K.S.A. 1999 Supp. 60-2403(a)(l) are equally applicable. The dormancy period for a general judgment is 5 years. K.S.A. 1999 Supp. 60-2403(a)(1). The court in Long v. Brooks, 6 Kan. App. 2d 963, 966, 636 P.2d 242 (1981), gave the following summary:
“The questions relating to the dormancy and extinguishment of Kansas judgments, presented by this appeal, were effectively determined by this court in Clark v. Glazer, 4 Kan. App. 2d 658, 609 P.2d 1177 (1980). In that case we said that, pursuant to K.S.A. 60-2403, judgments grow dormant in five years, if not enforced by execution, garnishment or proceeding in aid of execution; and, if not revived, as provided in K.S.A. 60-2404, such dormant judgments become absolutely extinguished and unenforceable two years thereafter. Glazer makes plain that nothing other than revivor under K.S.A. 60-2404 can serve to revitalize a dormant judgment and that, once the period for revivor passes, there is absolutely nothing left of that judgment to which even ‘equitable principles could be applied.’ 4 Kan. App. 2d at 661. A review of K.S.A. 60-2404 reveals that revivor of dormant judgments can only be accomplished by a combination of (1) a motion for revivor, coupled with (2) a request for the immediate issuance of an execution, garnishment or attachment. Accordingly, we are obliged to conclude, again contrary to the result reached below, that, in the case at bar, neither Richard’s affidavit in contempt (filed in the sixth year following the entry of the judgment) nor Bonnie’s failure to raise the dormancy of the judgment in the original contempt proceeding (held in the seventh year of the dormant and unrevived judgment) were sufficient to revive die judgment contained in die divorce decree.”
The court in Riney v. Riney, 205 Kan. 671, 680, 473 P.2d 77 (1970), also gave the following interpretation:
“Under K.S.A. 60-2403 and 60-2404 a party may, by die issuance of executions every five years, keep a judgment alive indefinitely. The judgment remains in force without execution for five years, and die plaintiff may revive it at any time widiin two years if it has become dormant thereafter, so that practically a plaintiff may neglect his judgment for seven years, lacking a day, and dien revive and put it in force for five years more. [Citation omitted.]”
Kansas law is also equally clear on the effect of partial payments as affecting the dormancy of a judgment. In Dallas v. Dallas, 236 Kan. 92, 93, 689 P.2d 1184 (1984), the court considered the application of 60-2403 to child support payments. For over 10 years, the father in Dallas failed to make his full child support payment. The father argued, and the Dallas court agreed, that all underpaid payments within the 5 years following each of the child support payments were dormant judgments. Policy arguments very similar to those in the case at bar were made in Dallas:
“Appellant [mother] first argues it is against public policy to apply the dormant judgment statute to underpayments of child support. She then cites cases pertaining to the statute of limitations. These cases, as well as K.S.A. 60-520 provide that partial payment by a debtor will toll the statute of limitations. The statute of limitations however, is not at issue here; rather, the dormant judgment statute, K.S.A. 60-2403, is controlling. It provides:
‘If execution, including any garnishment proceeding and any proceeding in aid of execution, shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.’ (Emphasis added.)
“We note this statute speaks of ‘all judgments’ making no exception for child support judgments. It makes no provision for partial payments tolling dormancy. Only die issuance of execution or garnishment will toll the dormancy statute. See First National Bank v. Harper, 161 Kan. 536, 169 P.2d 844 (1946). Appellant did not seek execution or garnishment until January 21,1980, thus die judgments for unpaid child support due more than five years before that date are dormant.” 236 Kan. at 94.
K.S.A. 1999 Supp. 60-2403(d) provides that “any judgment of restitution” in which a renewal affidavit is not filed or execution is not issued within 10 years is considered dormant. A restitution judgment that is dormant is not void; it may be revived and have the same force and effect as if it had not become dormant. K.S.A. 60-2404. K.S.A. 1999 Supp. 60-2403(d) makes no provision for partial payments tolling dormancy. If a restitution judgment has remained dormant for the specified period of time, 2 years, it becomes absolutely extinguished and unenforceable.
The legislature extended the time for criminal restitution judgments to be active beyond regular civil judgments but did not change the need for the filing of executions and revivors to keep a judgment alive. It made no exception for cases where payments were being made. The legislature could modify the law to do so, but has not.
We find the district court erred in setting aside its previous order releasing Morrison of the judgment of restitution.
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Lewis, J.:
Prior to 1994, appellant Johan Bolle was a dairy farmer in the state of Arizona, and Tom Dewey and Joe Schartz were operating a feedyard in Kansas under the name of Cimarron Feeders. At some point in 1994, Dewey and Schartz decided to go into the dairy business. Dewey and Schartz were not familiar with the dairy business, so they conducted a search for someone who was familiar with that type of business to join them in the venture. Bolle was the result of that search. The dairy operation ultimately established was a total failure despite the apparent best efforts of everyone involved. During the period of time the parties struggled to operate the failing dairy, Bolle executed and delivered to Dewey and Schartz a note and security agreement. After the business failed, Dewey and Schartz filed the instant action against Bolle, seeking to recover on his note and security agreement. The jury returned a verdict in favor of Dewey and Schartz, and Bolle appeals.
The story began in 1983 when Dewey and Schartz formed Cimarron Feeders to operate a catde feedyard in Gray County. Cimarron Feeders was a partnership consisting of Tim Dewey Cattle Company, Inc., a corporation owned by Tim Dewey, and Schartz Cattle, Inc., a corporation owned by Joe Schartz. The record indicates that Dewey and Schartz formed these corporations to be the partners in the feedyard operation so as to protect their other assets from liabilities incurred in the feedlot business. Among the parties to this action are several corporations. The lawsuit was in stituted by Cimarron Feeders, a partnership, and Cimarron Dairy, L.C., now the appellees. The original defendant was Bolle, and Bolle added Tim Dewey Cattle Company, Schartz Cattle, Inc., Tim Dewey, Joe Schartz, Tim Dewey Farm and Cattle Company, and Schartz Land, Inc., as additional defendants, who are also appellees. In this opinion, for the purposes of clarity, when we refer to Dewey and Schartz, we intend to include in that reference the respective corporations which are parties to this action.
As pointed out above, in 1994, a decision was made to establish a dairy business by Dewey and Schartz. Since they had no experience in the dairy business, they decided to look for someone who had experience who would enter into the venture with them and who could operate the dairy. After making a number of inquiries, Dewey and Schartz ultimately contacted Bolle, who was in the dairy business in Arizona. After several meetings of the parties, Bolle agreed to join with Dewey and Schartz in establishing a dairy operation in the state of Kansas. Ultimately, Bolle, Dewey, and Schartz formed Cimarron Dairy, L.C., a limited partnership.
During the negotiations all of the principals were represented by attorneys. Bolle was represented by his own attorney, Lupe Iniguez, who was a partner in a 30-lawyer firm in Arizona and had been in the practice for approximately 20 years. Bolle was also represented by his own accountant during the negotiations. Dewey and Schartz were represented by Kyler Knobbe, who also represented Cimarron Feeders.
Bolle testified that during the negotiations he did not know and was never advised that the Cimarron Feeders partnership was composed of two partners, both of which were corporations. He insisted he told Dewey and Schartz he would never become involved in a dairy operation in which his partners were corporations. Dewey and Schartz, on the other hand, testified they advised Bolle that the partners in Cimarron Feeders were corporations. Bolle also testified that Dewey and Schartz did not inform him that the Cimarron Feeders had a long history of operating losses.
Ultimately, Bolle entered into a written operating agreement to form Cimarron Dairy, L.C., in July 1994. The operating agreement was signed by Dewey and Schartz as if they were personally and individually the partners in Cimarron Feeders.
During the negotiations, Bolle estimated that if he sold his entire dairy herd and other assets in Arizona, he could contribute about $500,000 to the dairy operation.
The first agreement between the parties provided that profits and losses were to be distributed to each partner proportionately to their ownership shares. It was understood that Cimarron Feeders would provide at least twice the capital for the venture but that Bolle would have equal management rights. Bolle was to own one-third of Cimarron Dairy, L.C., with the option to increase his ownership interest to one-half at the end of 1998. In addition, Bolle was to be paid a salary of $40,000, and Cimarron Feeders was to receive a salary of $20,000 per year from the dairy operation.
The dairy business was beset with problems from the outset. To begin with, there was difficulty in selling and transferring Bolle’s herd from Arizona to Kansas. Many of the cattle were in poor health, and some stopped milk production. Cimarron Dairy, consequently, experienced several financial setbacks. The death and cufi rates were very high. In addition, in May 1996, a tornado struck the dairy. This shock apparently caused a number of the cattle to cease milk production, further causing more financial setbacks to the dairy operation.
As a result of financial setbacks, the dairy was required to borrow substantial amounts of money. These loans were taken out by Dewey and Schartz. Bolle made no further contributions, nor did he make any further payments of losses. Dewey and Schartz contributed additional capital by way of borrowing money in amounts exceeding $1 million beyond their original contribution under the basic agreement.
Bolle testified that although he was to have equal management authority in the dairy business, Dewey and Schartz repeatedly ignored his advice. In March 1996, Dewey and Schartz advised Bolle that Dewey would thereafter be in charge of all management matters. Bolle, despite his status as an equal partner under the original agreement, was assigned to the sick bam to manage the care and milking of sick cows.
In December 1995, Dewey and Schartz prepared a revised operating agreement and presented it to Bolle. This agreement reduced Bolle’s interest in the dairy by half. In addition, Bolle was asked to sign a promissory note to Cimarron Feeders in the amount of $236,761 and a security agreement pledging his interest in the dairy as security for the note. For unaccountable reasons, Bolle signed the second operating agreement and acceded its terms. He did so despite the advice of his wife, his attorney, and his tax attorney, all of whom advised him not to sign the revised operating agreement. In fact, it appears that Bolle told Dewey and Schartz he would not sign the agreement but that after a long meeting, he was persuaded to sign by the fact that Dewey and Schartz had covered all the losses of the dairy by borrowing money and making additional capital contributions.
Bolle’s interest in and control of the dairy business disappeared in the fall of 1996. At that time, Dewey and Schartz hired Don Logan to manage the dairy business and gave Logan complete control. We note, however, that Logan did not improve the operation of the dairy. By this time, things had reached such a state that Bolle was suffering from clinical depression and was unable to carry out simple tasks concerning the operation of the dairy. In February 1997, Logan sent Bolle a memo, advising him that he would henceforth be paid on the basis of an hourly wage of $9.50 per hour. This appears to have been the last straw because Bolle then sought the advice of counsel and advised Dewey and Schartz that the proposed change in his salary was not acceptable. In this letter, he expressed concerns about the parties violating his right to equal management and requested that they honor the agreement by giving him advance notice of the meetings and allowing him to participate in managément decisions.
The response of Cimarron Feeders to Bolle’s demands was to file the instant action against Bolle, seeking judgment on the note and foreclosure of the security interest. Bolle answered, asserting several counterclaims and cross-claims, and the matter was tried to a jury. Bolle claimed fraud in the inducement and lack of consideration. The jury returned a verdict for Cimarron Feeders, awarding judgment against Bolle and in favor of Cimarron Feeders for $301,408.10, along with interest on the note and security agreement and an additional judgment of $1,085,772, which represented Bolle’s responsibility for Cimarron Dairy, L.C., losses. Bolle was denied judgment on his claims for fraud and breach of fiduciary duty. This appeal followed.
Bolle failed to file a supersedeas bond in order to stay execution on the judgment awarded to Cimarron Feeders. Cimarron Feeders then filed a motion for an order directing sale of personal property with the district court. Bolle responded by asking the trial court to exercise its discretion to deny the motion and stay execution until this appeal had been determined. The trial court found that it had no discretion in the matter and issued a writ of special execution; the sale was had, and the trial court confirmed the sale of Bolle’s interest in the daily to Cimarron Feeders for $100,000. The judgment against Bolle was credited with the payment of $100,000, leaving an unpaid judgment at this time in the amount of $1.3 million plus interest.
Bolle raises a number of issues on appeal.
BURDEN OF PROOF OF TURY INSTRUCTIONS
The first issue Bolle raises concerns the trial court’s instructions to the jury concerning burden of proof. Our standard of review is well known on this issue:
“ ‘ “ ‘It is the duty of the trial court to properly instruct the jury upon a party’s theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and die jury could not reasonably be misled by them, the instructions will be approved on appeal.’ ” ’ [Citations omitted.]” Haskell v. Stauffer Communications, Inc., 26 Kan. App. 2d 541, 542, 990 P.2d 163 (1999).
During the trial, Bolle asserted the following claims or defenses:
(1) the defense of fraud in the inducement as to the enforceability of the promissory note and the revised operating agreement;
(2) the defense of failure of consideration regarding the enforceability of the promissory note and the revised operating agreement;
(3) the claim of fraud in the inducement as to the original operating agreement; and
(4) the claim of breach of fiduciary duties.
The trial court instructed the jury that Bolle had to prove “by clear and convincing evidence” those claims and defenses.
Bolle argues that the trial court erred in instructing the jury that his burden of proof was one of “clear and convincing evidence.” He does not argue that the trial court erred in applying the clear and convincing evidence standard to his fraud claims; however, he does argue strongly that the trial court erred in applying that standard to his claims of failure of consideration and to his claim for breach of fiduciary duties. He also argues that the trial court failed to advise the jury that the term clear and convincing evidence applies to the quality of the evidence but not to the quantity of that evidence.
We first consider the failure of consideration defense. This defense was not directed at the original operating agreement but at the revised operating agreement and the promissory note. Bolle’s attack as to those items was that they were not enforceable because they were lacking in consideration. The trial court instructed the jury that Bolle’s burden of proof was to prove this defense by clear and convincing evidence.
As a general rule, the standard of proof in a civil action is proof by a preponderance of the evidence. Ortega v. IBP, Inc., 255 Kan. 513, 518, 874 P.2d 1188 (1994). There are some actions, however, such as fraud which require proof by clear and convincing evidence. Clear and convincing evidence has been described by the United States Supreme Court as an intermediate standard of proof. Santosky v. Kramer, 455 U.S. 745, 756-57, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).
The Kansas Supreme Court has noted that “clear and convincing evidence is not a quantum of proof but, rather, a quality of proof. ... It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it.” Ortega, 255 Kan. at 528.
The standard of evidence required to attack the effect of a written document is clear and convincing evidence. Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 86, 630 P.2d 1107 (1981). In this case, however, Bolle is not attacking the meaning or words of the revised operating agreement or the promissory note. He is arguing that neither is supported by consideration.
It is axiomatic that a contract in order to be enforceable must be supported by adequate consideration. K.S.A. 16-107. In this state, “consideration is sufficient if there is a benefit to the debtor or an inconvenience or deprivation to the creditor.” State ex rel. Ludwick v. Bryant, 237 Kan. 47, 50, 697 P.2d 858 (1985). K.S.A. 16-108 provides: “The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.” There is a presumption that a written instrument is supported by consideration. To overcome that presumption, a party need only produce substantial competent evidence, and there is no requirement that “clear and convincing evidence” is needed to overcome the presumption of consideration and to mount a successful failure of consideration defense. See Ludwick, 237 Kan. at 50.
We conclude that there is nothing in the Kansas law to require substantial competent evidence of a clear and convincing nature to prove the defense of lack of consideration. The trial court’s instruction to the jury that clear and convincing evidence was required to prove this defense was erroneous.
It is possible that this error in the instruction to the jury, if it were the only error in this case, could be disregarded as harmless. However, as pointed out later in this opinion, we believe that this is one element of a succession of erroneous instructions which require that we reverse the verdict in favor of the appellees.
Bolle next argues the trial court erred in instructing the jury that he had to prove his breach of fiduciary duties claim by clear and convincing evidence. In Tenneco Oil Co. v. Joiner, 696 F. 2d 768, 777 (10th Cir. 1982), the concurring opinion stated: “When a principal sues its agent for breach of fiduciary duty, the ‘clear and convincing evidence’ standard is not applicable.”
Our research has revealed no Kansas case which indicates there is a clear and convincing standard for breach of fiduciary duties. This leads us to conclude that issue is judged, as are most issues in this state, by a preponderance of the evidence standard. Despite this fact, the trial court instructed the jury that it had to find that the partners of Cimarron Feeders violated their fiduciary duties by clear and convincing evidence. We conclude that this instruction by the trial court was erroneous and placed a heavier burden on Bolle than is required by the law.
Once again, we note that if this were the only error in this case, we very well might consider it to be harmless. It is, however, the second instance in which Bolle’s burden of proof was misstated by the trial court in its instructions to the jury.
Bolle next argues that the trial court should have clarified the clear and convincing evidence instruction by advising the jury that the standard referred to quality of evidence rather than quantity. As pointed out earlier, our Supreme Court has made it clear that “clear and convincing evidence is not a quantum of proof but, rather, a quality of proof.” Ortega, 255 Kan. at 528. We believe that under the circumstances, the trial court erred in failing to clarify the standard of proof required. We note the clarification that “clear and convincing evidence” refers to the quality of proof and not the quantity of proof is not part of the PIK instructions concerning burden of proof. However, in this case, we conclude the trial court erred in refusing to clarify its instruction in accordance with our Supreme Court’s statement in Ortega as set forth above.
Any one of these errors by the trial court concerning burden of proof standing alone would probably be considered as harmless. However, the trial court committed not one but three errors in instructing the jury concerning Bolle’s burden of proof.
We believe that parties to a legal action in this state are at the very least entitled to a proper instruction concerning the burden by which he or she must prove his or her claim. The trial court failed to meet that standard in this case, and we conclude that under the circumstances shown, this failure was prejudicial and multiple and requires that we reverse the judgment entered in favor of the appellees in this matter.
KANSAS UNIFORM PARTNERSHIP ACT
In instructing the jury, the trial court utilized the Kansas Uniform Partnership Act, K.S.A. 1999 Supp. 56a-101, et seq., and specifically K.S.A. 1999 Supp. 56a-404, in instructing the jury on the fiduciary duties which the partners in Cimarron Dairy, L.C., owed one another. Bolle argues that the trial court erred in applying the language regarding fiduciary duties in the partnership act to the relationships in a limited liability company. Bolle further argues the trial court erred in applying the partnership act retroactively since it only came into effect on January 1, 1999.
We conclude that Bolle’s argument is without merit. It appears to us the trial court did not attempt to apply K.S.A. 1999 Supp. 56a-404; rather, the trial court simply utilized some of the language in the statute for guidance on the breach of a fiduciary duty. In deciding this issue, we see no need to analyze fiduciary duties of one partner to another or to the retroactive application of the statute. We have examined the instructions and see no particular error in the law as given to the jury on the issue of breach of fiduciary duties. We have further concluded that none of Bolle’s theories were restricted in any way by the instruction given to the jury.
In addition, we conclude that Bolle did not object to the fiduciary duties jury instruction beyond the clear and convincing objection which we have previously discussed. It is clear that when an instruction is not objected to, it is not to be considered reversible error unless it is clearly erroneous. K.S.A. 60-251(b); Bright v. Cargill, Inc., 251 Kan. 387, 409, 837 P.2d 348 (1992). “ ‘Aninstruction is clearly erroneous when the reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict.’ ” Jackson v. City of Kansas City, 263 Kan. 143, 148, 947 P.2d 31 (1997). We are unable to reach that conclusion in this case; therefore, the instruction is not clearly erroneous, and Bolle’s failure to object requires that we affirm the trial court in regard to this issue on the instruction of fiduciary duties.
TESTIMONY OF ACCOUNTANT
The trial court permitted Cimarron Feeders’ accounting expert to express his opinion as to whether the revised operating agreement and promissory note were fair to Bolle. Bolle objected to this testimony. In essence, in response to a question by the attorneys for Dewey and Schartz, the accountant testified that the revised operating agreement and promissory note, which reduced Bolle’s share from one-third to one-sixth, was “probably fair” because “it cut the amount of capital contributions that [Bolle] had to make.”
A trial court has broad discretion concerning the qualification of an expert witness and the admissibility of expert testimony. Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or in interpreting technical facts or assists the jury in arriving at a reasonable factual conclusion. If the normal experience and qualifications of the jurors permit them to draw proper conclusions from the given facts and circumstances, expert conclusions or opinions on that subject are not admissible. Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996).
An expert witness may give an opinion on the ultimate issue but may only do so insofar as it aids the jury in interpreting technical facts or assists the jury in understanding the material in evidence. An expert witness has no right to pass on the weight or credibility of evidence; these are matters strictly within the province of the juiy. State v. Mullins, 267 Kan. 84, 94, 977 P.2d 931 (1999).
Bolle argues that by allowing the accountant to state his opinion as to the “fairness” of the contract, the trial court invaded the province of the jury.
We conclude that the normal experience possessed by jurors should permit them to determine whether a particular agreement is “fair” or not. A necessary corollary of that decision is that the trial court erred in permitting the accountant to give his testimony on the issue of whether the agreement was fair. We hasten to note, however, that we see no particular problem with the accountant stating that in his opinion, the revised agreement reduced Bolle’s interest but also reduced his liability. Our problem is with his statement that in his opinion, the agreement was fair. This invaded the province of the jury to the extent that the concept of “fairness” was relevant and was an error by the trial court.
SUPERSEDEAS BOND
After the judgment was entered against Bolle, he did not file a supersedeas bond; however, he did ask the court to exercise its discretion, to deny the writ seeking an order of sale, and to stay the execution of the sale while the rights of the parties were determined in a pending appeal. The trial court found it had no discretion and was required to issue the writ in the absence of a supersedeas bond.
We believe the trial court erred in determining that it had no discretion. The trial court had discretion to stay the writ of execution regardless of the posting of a supersedeas bond. However, the sale has taken place and has been confirmed, and the issue is moot. Accordingly, we do not reach this issue.
CONFIRMATION SALE
The trial court confirmed the sale of Bolle’s interest in the daily to Cimarron Feeders for $100,000. Since the judgment against Bolle was over $1 million, the $100,000 credit left Bolle still owing an outstanding judgment of $1.3 million plus interest.
On appeal, Bolle argues the trial court erred in failing to have an evidentiary hearing on the issue of whether the sale should be confirmed. We agree.
K.S.A. 60-2415 controls the confirmation of a sheriff s sale and provides:
“(a) The sheriff shall at once make a return of all sales made under this article to the court. All taxes due or delinquent shall be noted on the sheriff s return. If die court finds the proceedings regular and in conformity with law and equity, it shall confirm the same, direct the clerk to make such an entry upon die journal and order the sheriff to make to the purchaser the certificate of sale or deed provided for in this article.
“(b) The court may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the property must be bid in if die sale is to be confirmed; or the court may, upon application for the confirmation of the sale, if it has not dieretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate.”
Thus, a trial court may decline to confirm a sale where the bid is substantially inadequate. On the other hand, the statute would require an order of confirmation if the sale was adequate. Prior decisions of this court have required that the trial court’s decision to affirm a sale be supported by the record. Farm Credit Bank of Wichita v. Zerr, 22 Kan. App. 2d 247, 255, 915 P.2d 137 (1996); Olathe Bank v. Mann, 17 Kan. App. 2d 112, 116-17, 834 P.2d 1365 (1992), aff'd 252 Kan. 351, 845 P. 2d 639 (1993). In this case, there was no evidence at the confirmation hearing supporting the value of the property sold. Cimarron Feeders purchased Bolle’s interest in the property for a sum substantially less than the full amount of the judgment, taxes, interest, and costs. No hearing was held to determine whether the sale amount was adequate.
We conclude the trial court erred in not holding an evidentiary hearing to determine whether the sale price was adequate. However, in view of our decision to reverse the judgment in favor of Dewey and Schartz, this issue is moot, and we deal with it only in the event it should occur after a retrial has been had.
We reverse the trial court’s decision in favor of Dewey and Schartz. The errors by the trial court in instructing the jury and in permitting erroneous expert testimony may have been harmless in and of themselves. However, when considered collectively, we consider these errors to be so great as to require that we reverse the judgment in favor of Dewey and Schartz. In doing so, we conclude that the totality of circumstances and trial court errors substantially prejudiced Bolle and denied him a fair trial. Accordingly, remand the matter for a new trial consistent with this decision.
In taking this action, we are aware that Bolle’s interest in the daily has been sold and that sale has been confirmed. Our decision to reverse the judgment in favor of Dewey and Schartz necessarily results in a decision to set aside the execution, sale, and confirmation of that sale. We have no idea as to how to restore the status quo between these parties and leave that issue to be determined upon remand.
Affirmed in part, reversed in part, and remanded with directions. | [
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Green, J.:
Johnny J. Montes, Jr., appeals from his conviction of rape, aggravated criminal sodomy, and aggravated kidnapping. On appeal, Montes argues that the evidence was insufficient to convict him of aggravated kidnapping. Montes further contends that the trial court erred in excluding evidence of an alleged incident involving the complaining witness’ previous sexual histoiy. Montes additionally contends that the trial court abused its discretion when it directed defense counsel to refrain from commenting during closing argument on a witness’ opinion concerning the complaining witness’ reputation. Finally, Montes contends that the trial court abused its discretion when it tried him and his codefendant together. We disagree and affirm.
Montes and his cousin, Antonio R. Montes, Jr. (Tony), were charged with raping, sodomizing, and kidnapping E.J. in the course of giving her a ride home. E.J. knew Tony and Montes through her friend, Julia Lerma, and joined the three at a small gathering one fall evening. Earlier in the evening, E.J. spoke to Lerma on the telephone several times. On one occasion, E.J. spoke to Montes. During that conversation, Montes propositioned E.J. and they discussed using cocaine together. Although E.J. admitted to using cocaine in the past, she denied using any that night.
Lerma testified at trial that her intent in inviting E.J. was to “set her up” with Montes. Because E.J. did not have a car, Tony and Montes were sent to pick her up. Tony drove his employer’s truck that evening. When they arrived at the party, E.J. sat between Tony and Montes on a loveseat. Although Tony and Montes flirted with E.J. that night, she claimed she did not reciprocate that behavior. In addition, E.J. testified that earlier in the evening Tony kissed her, but she rebuffed his advance.
Later that night, Tony and Montes left the party to take E.J. home. When Tony started driving in the opposite direction of E.J.’s house, she asked where they were going. E.J. testified that Montes replied, “We ain’t done with you yet.” At that point, E.J. claimed that Tony drove into an alley and held her down while Montes tried to remove her pants. A struggle ensued, and E.J. claimed she kicked out the passenger side window of the truck. E.J. testified that Tony then decided to drive to a more secluded spot because she was “too fucking loud.”
On the way to the second location, E.J. claimed she attempted to stop the truck by grabbing the steering wheel. E.J. testified that Tony raised a beer bottle and threatened her with it. When they arrived at the second alley, E.J. said she was crying but quit fighting because she was scared. Montes then took off E.J.’s pants and raped her. Meanwhile, Tony forced her to perform oral sex on him. When he was finished, Montes told Tony, “It’s your turn.” Tony then sodomized E.J. while Montes forced her to perform oral sex on him.
After E.J. put her clothes back on, she claimed both Montes and Tony threatened her and admonished her not to tell anyone. In addition, E.J. claimed that Tony said he had a gun and was not afraid to go back to jail. Tony then drove E.J. home. Before she went inside, Tony instructed E.J. to contact him the next morning to arrange for her to pay for the broken window.
The defendants had a very different recollection of the night’s events. Both Tony and Montes claimed that E.J. was flirting with them all night. In addition, Tony and Montes admitted that they used cocaine with E.J. on three separate occasions that night. Although Tony acknowledged that the passenger side window in the truck was shattered, Montes testified that he smashed it that night with a crow bar after Tony refused to allow him to borrow the truck. Tony also admitted that he drove from one location to another. Nevertheless, he claimed the first location was to the house of a friend whose bedroom he hoped to use. When he found his friend was not home, the three drove to a quieter spot.
At trial, both Tony and Montes testified that essentially the same sequence of sexual acts occurred, but said they were part of a sex-for-drugs exchange agreed to by E.J. Moreover, the defendants claimed that E.J. both initiated and actively participated in what was characterized as a wild episode of group sex and cocaine use. Nevertheless, when Tony and Montes refused to give E.J. more cocaine after having had sex with her, they claimed she became angry.
E.J. reported the incident to the police that night. E.J. was taken to the hospital for an examination. Aside from superficial lacerations on her right knee, E.J.’s injuries consisted of discomfort in her vaginal and rectal areas. Montes was arrested the next day. Tony and Montes were each charged with rape, two counts of aggravated criminal sodomy, and aggravated kidnapping. Both defendants were tried together, and the jury convicted them on all counts.
Montes first argues that the evidence was insufficient to support his aggravated kidnapping 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, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zimmerman, 251 Kan. 54, 58, 833 P.2d 925 (1992). Kidnapping is the taking or confining of any person, accomplished by force, threat, or deception with the intent to hold such person to facilitate the commission of any crime. K.S.A. 21-3420.
Montes relies primarily on State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980), in support of his argument that the confinement of E.J. was merely incidental to committing the other crimes in this case and that his aggravated kidnapping conviction should be reversed. In applying its earlier decision in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), our Supreme Court did not find sufficient evidence to support the defendant’s conviction for kidnapping in Cabral, 228 Kan. at 744. The court in Buggs held that in a kidnapping where the victim is taken or confined to facilitate the commission of another crime, the resulting movement or confinement must not be slight, inconsequential, and merely incidental to the other crime; it must not be of the kind inherent in the nature of the other crime; and it must have some significance independent of the other crime in that it makes the other crime substantially easier to commit or substantially lessens the risk of detection. 219 Kan. 203, Syl. ¶ 10.
In Cabral, the court reasoned that when a rape occurs in an automobile, some confinement of the woman is a necessary part of the force required in the commission of the rape. Such a confinement is incidental to and of a kind inherent in the nature of the crime of rape. Accordingly, the court determined that a separate and independent crime of kidnapping was not established by the State. 228 Kan. at 744-45.
Admittedly, the facts in this case are similar to those in Cabral. Both in this case and in Cabral, the victim was with the defendant for the majority of the evening and voluntarily rode with him in a vehicle several times. In both cases, the defendant started to attack the victim, stopped, and then drove to a different location to commit the rape.
Where the facts of Cabral differ from this case is important because it is the basis on which the Cabral court reversed the defendant’s conviction. In Cabral, after the initial attack, the defendant relented and agreed to take the victim back to the dormitory. However, instead of taking the victim to the dormitory, the defendant drove her to a park and raped her. In this case, Tony and Montes allegedly took E.J. to the second location against her will. E.J. actively resisted the initial attack, even kicking out a window of the truck, but she was not released. While en route to the second location, E.J. claimed that she tried to cause an accident by grabbing the steering wheel of the truck. On the other hand, the court, in reversing Cabral’s conviction for kidnapping, relied on the victim’s willingness to remain in the car with the defendant after the initial attack. State v. Blackburn, 251 Kan. 787, 794, 840 P.2d 497 (1992). See also State v. Coberly, 233 Kan. 100, 105-06, 661 P.2d 383 (1983); State v. Lile, 237 Kan. 210, 214, 699 P.2d 456 (1985) (distinguishing Cabral and upholding separate convictions for rape and kidnapping).
The State presented sufficient evidence that E.J. was taken by force from one alley to another where she was raped and sodomized. Because the movement and confinement of E.J. in the truck was committed for the purpose of decreasing the risk of detection, the movement and confinement of E.J. was not of a kind inherent in the nature of forcible rape and sodomy and was not incidental to the comznission of the criznes of rape and sodozny. As a result, Montes’ argument fails.
Next, Montes argues that evidence of a similar sex-for-drugs exchange involving E.J. should have been admitted. Under K.S.A. 21-3525(b), defense counsel moved to admit this evidence and filed an affidavit. The court conducted an in camera hearing. During the hearing, defense counsel proffered the testimony of Montes’ brother, Jaime, who claimed that he had had sex with E.J. after he told her he could procure cocaine for her. This incident happened 1 or 2 months prior to Montes’ arrest. The court denied the motion, ruling the evidence was irrelevant.
Evidence of a rape victim’s previous sexual conduct is generally inadmissible. K.S.A. 21-3525(b). However, the rape shield statute does not preclude the admission of relevant evidence that impeaches the credibility of the witness. K.S.A. 21~3525(b). Moreover, the rape shield statute allows evidence of an alleged rape victim’s previous sexual conduct if such evidence is relevant to any fact at issue, such as the identity of the rapist, consent of the victim, and whether a defendant actually had intercourse with the victim. State v. Perez, 26 Kan. App. 2d 777, 780, 995 P.2d 372 (1999), rev. denied 269 Kan. 939 (2000).
Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). Decisions regarding the relevance of evidence rest within the sound discretion of the trial court, which should not be set aside absent a showing of abuse of discretion. State v. Lavery, 19 Kan. App. 2d 673, 680, 877 P.2d 443, rev. denied 253 Kan. 862 (1993). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable; in other words, when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Walker, 252 Kan. 279, 285-86, 845 P.2d 1 (1993).
When addressing the relevance of prior sexual conduct on the issue of consent, the inquiry must be whether the victim’s consent to sexual activity in the past, regardless of other factual situations, makes it more or less probable that the victim consented to sexual activity on this occasion. To determine whether the previous sexual conduct of a victim is relevant, the Perez court has offered several factors for consideration. Among them are whether distinctive sexual patterns so closely resembled the defendant’s version of the alleged encounter so as to tend to prove consent or to diminish the victim’s credibility on the questioned occasion. Perez, 26 Kan. App. 2d at 781. Montes maintains that because of the factual similarities between the events of the evening in question and the incident with Jaime, that is, the exchange of sexual favors for cocaine, E.J.’s previous sexual behavior is absolutely relevant.
On the other hand, the State responds that the two incidents do not resemble one another. While some of the minor factual details between the two incidents vary significantly, there is one key factual similarity: E.J.’s alleged propensity for trading sexual favors for drugs. What Montes fails to acknowledge, however, is that the incident involving Jaime was simply not a sex-for-drugs transaction. Jaime testified he never gave E.J. any cocaine in exchange for her sexual favors. Montes on the other hand alleged that he gave E.J. cocaine three times that night before the charged acts occurred.
Furthermore, the previous incident, where E.J. allegedly engaged in sexual intercourse and oral sex with Jaime, is dissimilar from the charged acts, where E.J. allegedly engaged in sexual intercourse and oral sex with Montes and Tony at the same time. The previous incident fails to show that E.J. was willing to engage in intercourse and oral sex with multiple partners simultaneously.
Finally, the Perez court stated that the proximity in time between the prior sexual conduct and the charged act of the defendant should also be considered when addressing whether the prior sexual conduct of a complaining witness is relevant. In the instant case, the proximity factor is lacking. Jaime testified that his alleged sexual encounter with E.J. occurred 1 or 2 months prior to his brother’s arrest. Montes was arrested the day after the charged acts occurred. The proximity factor is not satisfied. See State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d 835 (1999); Perez, 26 Kan. App. 2d at 781. Because of the previously mentioned reasons, the trial court properly excluded this evidence.
Montes next argues that the trial court committed reversible error when it instructed defense counsel, sua sponte, not to mention or draw any inferences from one witness’ statement about E.J.’s sexual history. Lerma, one of the State’s witnesses, testified that it was her intent to “set up” E.J. and Montes on the night of the charged events. When defense counsel asked Lerma on cross-examination why she chose E.J. for Montes, she replied, “Because she’s easy.”
Montes essentially argues that the court’s ruling deprived him of his due process rights. The opportunity to make closing arguments is basic to the right of the defendant in a criminal trial to make his or her defense. Herring v. New York, 422 U.S. 853, 858, 45 L. Ed. 2d 593, 95 S. Ct. 2550 (1975). Nevertheless, the scope of closing argument is within the trial court’s discretion, and there is no basis for reversal unless that discretion is abused. State v. Asher, 18 Kan. App. 2d 881, 889, 861 P.2d 847 (1993). 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).
Clearly, Lerma’s statement that E.J. is “easy” implies that E.J. has a reputation for promiscuity. Although the trial court overruled the State’s objection and motion to strike the statement from the record, the trial court should have sustained the State’s objection and struck the statement from the record. In discussing the application of the rape shield statute, K.S.A. 60-447a (Weeks) (now K.S.A. 21-3525[b]), this court in In re Nichols, 2 Kan. App. 2d 431, 434, 580 P.2d 1370 (1978), noted that generally “a victim’s lack of chastity has no bearing whatsoever on her truthfulness and generally has no bearing on the important issue of consent.” Because Montes failed to show that E.J.’s alleged promiscuity had a bearing on her truthfulness or her consent, the trial court properly restricted defense counsel from commenting on that statement during closing argument.
Finally, Montes argues that the trial court erred when it consolidated both defendants’ cases for trial. The State correctly points out that, despite Montes’ assertions to the contrary, the two defendants were never charged separately. In the original complaint, both Montes and Tony were named in the caption and in the body of the complaint. The amended complaint, which added the charge of aggravated kidnapping, charged Montes separately in the caption, but named both in the body of the complaint.
Two or more defendants may be charged in the same complaint if they are alleged to have participated in the same criminal acts. K.S.A. 22-3202(3). When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecutor. K.S.A. 22-3204. The implication, then, is that absent such a request, defendants who are charged together will be tried together. Neither defendant in this case requested separate trials.
Each defendant was given a separate case number. It also seems that each defendant was given different trial dates. When the State moved to consolidate these cases, the trial court granted the motion. Although the prosecutor noted that the cases were considered consolidated from the filing of the initial complaint, the prosecutor wanted to ensure the defendants would be tried together.
Even assuming arguendo that the defendants were not charged together, it was still appropriate for the trial court to consolidate both cases for trial. Two or more defendants may be later joined for trial if the defendants could have been charged in the same complaint. State v. Butler, 257 Kan. 1043, 1063, 897 P.2d 1007 (1995). The determination of whether defendants charged separately may be tried together is within the trial court’s discretion and is therefore reviewed for an abuse of discretion. State v. Smith, 268 Kan. 222, 233, 993 P.2d 1213 (1999).
Clearly, the defendants in this case could have been charged together in the same complaint because they both participated in the same series of acts constituting the crimes charged. K.S.A. 22-3202(3). The question, then, is whether Montes was actually prejudiced by the joinder. State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 (1997). Kansas courts have recognized that a defendant can demonstrate actual prejudice mandating severance by showing the defendants have antagonistic defenses. Aikins, 261 Kan. at 360.
Montes claims the consolidation of trials prohibited him from pursuing a defense inconsistent with Tony’s. Montes acknowledges that in order to prevent joinder, he must demonstrate that the defenses conflict to the point of being irreconcilable and mutually exclusive. State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995). In other words, the defendants must implicate each other. Montes has never claimed he had such a defense. While Montes takes issue with our Supreme Court precedent on this point, the law is clear and this court is duty bound to follow it. As a result, the trial court properly consolidated the cases for trial.
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