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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from the lower court’s rulings on a motion to strike and on a demurrer, both directed against plaintiff’s amended petition.
The petition contained five causes of action, each being on an oral contract to repurchase securities sold by the defendant to plaintiff on the following dates: October 10, 1925, October 11, 1927, March 5, 1928, March 30, 1928, and May 31, 1928. The first cause of action charges that on October 10, 1925, plaintiff entered into an oral contract with defendant company for the purchase from time to time of certain bonds and securities with the distinct understanding and agreement that the defendant company would repurchase such bonds and securities so sold upon demand of plaintiff and return to the plaintiff the face value thereof “with a reasonable adjustment as to accrued interest thereon,” and that plaintiff purchased eighteen certain drainage-district bonds of the total face value of $9,000, which sum plaintiff paid defendant; that thereafter and in August, 1930, plaintiff offered to return said bonds, and when said offer and tender were made and demand made that defendant return to plaintiff the $9,000 theretofore paid, defendant refused said offer and tender and refused to repurchase said bonds; that'thereafter other offers, tenders and demands were made by plaintiff and refused by defendant. The sixth paragraph of the first cause of action alleges that when the oral agreement was made the defendant did not intend to perform and entered into said oral agreement with the fraudulent intent to deny the agreement and to refuse to carry out the same if it later proved to the advantage of the defendant to so do, and that plaintiff relied on said agreement and would not have purchased except for it, and that plaintiff entered into said agreement in good faith and defendant entered into it in bad faith. The second and succeeding causes of action each incorporate all statements and allegations of the first cause of action material to the stated cause of action and allege purchases of other bonds on the dates above noted, and each contains the following allegation:
“That on said date the said parties acknowledged, admitted and renewed the oral contract theretofore entered into on the 10th day of October, 1925, and each and all of the provisions of said oral contract of October 10, 1925, were again made and entered into by and between said parties.”
The prayer is for the total face value of the bonds sold ($15,500)—
“and accrued interest thereon unpaid up to August 1, 1930, with interest on said $15,500 plus accrued interest from August 1, 1930, at six per cent per annum, and the costs of this action.”
A motion to separately state and number was directed against the amended petition. The journal entry denying the motion contains the following:
“And plaintiff’s attorneys state to the court that plaintiff seeks .to recover for a breach of each of the sundry contracts pleaded in his five several causes of action, and does not seek rescission of said contracts or any of them.”
Thereafter a motion to make definite and certain and to strike was filed, the material portion being to strike out the sixth paragraph of the first cause of action, above referred to, and all reference thereto elsewhere in the amended petition. It is clear from the amended petition, and made certain by the quoted journal entry, that plaintiff seeks to enforce the oral contract of repurchase and is not seeking relief on account of fraud, and that portion . of the amended petition included in the sixth paragraph of the first cause of action, and included by. reference in the other causes of action, setting up fraud on the part of the defendant, should have been stricken out.
While the demurrer contains eight grounds, the argument is confined to two elements: (a) that the contracts pleaded are so indefinite and uncertain as to be unenforceable, and (6) that the contracts pleaded-, if sufficiently definite, had expired by their terms before the action was brought.
With reference to the contention that the claimed repurchase agreement is too indefinite and uncertain to be enforceable, it is contended that there is uncertainty as to time of performance, and that what is to be performed is uncertain in that the agreement to repurchase the bonds and return the face value “with a reasonable adjustment as to accrued interest thereon” is too indefinite to be performed. As to uncertainty of time of performance of contracts of this type, it has been held in many instances that if the contract does not specify the time within which the right to repurchase must be exercised, it must be exercised within a reasonable time. (55 C. J. 592.) As this element is related to the contention that the contracts, if sufficiently definite, had expired by their terms before demand was made and action brought, it will not be separately discussed.
' In. so far as indefiniteness on account of the general provisions of the contract is concerned, it is urged by appellant that the contract as pleaded is not for any specific bonds, that there is a lack of subject matter on which to operate, and that the provision as to interest-adjustment is vague, indefinite and uncertain, and, further, that the contract is entire and inseparable and, assuming that the subject matter w‘as made certain by purchase of specific bonds, still, on account of the lack of certainty as to interest, the entire contract is uncertain and so indefinite that it cannot be enforced. Reliance by appellant is placed chiefly on Brown-Crummer Investment Co. v. Arkansas City, 125 Kan. 768, 266 Pac. 60; but in that case it was held that a contract uncertain in some of its terms may, by practical construction, be cured and made certain. If the original contract was uncertain, as soon as a purchase of bonds was made under it it became certain, at least so far as the subject matter is concerned.
In A. L. I., Restatement, Contracts § 32, it is said:
“An offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.”
And in section 370 it is further stated:
“Specific enforcement will not be decreed unless the terms of the contract are so expressed that the court can determine with reasonable certainty -what is the duty of each party and the conditions under which performance is due.”
In 58 C. J. 933 the rule is laid down as follows:
“A greater degree of certainty is required in a suit in equity for specific performance than in an action at law for damages; and as against assignee and representatives of the contracting parties, it is said that the requirement of certainty is more than ordinarily stringent. However, absolute certainty is not required; reasonable certainty is necessary and sufficient; where the main features of a contract are sufficiently definite and certain, uncertainty in a subsidiary part will not necessarily prevent specific performance; uncertainty in a portion of the contract which has been waived is not fatal; and if specific performance of a separable part is sought, uncertainty or indefiniteness in the part of the contract not sought to be enforced is no defense.”
And the general subject is treated in 25 R. C. L. 218 et seq. and in 23 R. C. L. 1262. The maxim “id certum est, quod cerium reddi ;potest” has been held applicable in many cases of the character of the one under consideration here. (23 R. C. L. 1262.)
In Gunton v. Carroll, 101 U. S. 426, the third headnote in 25 L. Ed. 985 reads:
“The principle is not inflexible, that the court will not specifically enforce the contract where the price is not fixed or is left to be fixed by arbitration.”
And in the opinion it was said:
“So of the case before us. Carroll has all the benefit of the agreement, in releasing property from liens, in paying his debt by his claims on others, and in a long indulgence, and now, because he had died without appointing arbitrators, his heirs say this part of the agreement must fail.” (p. 432.)
Another element to be considered is whether the contract of purchase was a single or entire contract, or whether it was separable. Could the plaintiff recover as to the principal and fail as to the interest? The general subject of whether interest is incident to or separable from the principal debt is treated in 15 R. C. L. 15, 33 C. J. 254, and in a note in Ann. Cas. 1912B 1333. The general rule seems to be that where the contract provides for the payment of interest, the payment of principal is no bar to an action to recover interest, but when interest is merely implied and allowed by way of damages, no separate action therefor will lie. In the case at bar the agreement specifically provided for interest, and, therefore, the return of the face value of the bonds and the adjustment of interest are separable. There is and can be no uncertainty as to the face value of the bonds, and, therefore, the contract to that extent is binding and enforceable, and it would be no defense to say that plaintiff could not recover because of failure to recover all he claimed, the failure being attributable to a separable item. Therefore our attention need be turned only to the provision as to interest. Suppose the contract had been to return the face of the bonds and adjust the interest, could there be much dispute about what the parties agreed to do?’ What great difference did it make that they agreed to reasonably adjust the interest? At the time the offer was made, very likely the specific rate of interest which the bonds would bear was not known, for the bonds themselves had not then been purchased. It might have been better to state the agreement as to interest in more definite and certain language, but it seems that the language as used can easily be interpreted to mean that if the :bonds were turned back on other than an interest-paying date, the original seller should repay to the original buyer the face value, plus the accrued but unpaid interest. The argument that this would permit accumulation of interest coupons long past due does not appeal to us, for this reason: It goes to the question of whether the buyer waited too long to enforce his contract of repurchase rather than to the definiteness and certainty of the contract. And viewed from the ordinary use of words, it cannot be said there was a failure to agree as to interest. It was the seller’s proposition which the buyer accepted, and the buyer is entitled to a construction favorable, rather than unfavorable, to him. A reasonable adjustment means no more than a fair adjustment, and if the seller and buyer cannot agree on what is fair, the court will make the agreement for them. (13 C. J. 269, 270.) We are of the opinion that the contract was sufficiently certain both as to return of principal and interest.
We next consider the proposition that the contracts, even if sufficiently definite, have expired; or, stated another way, that plaintiff has waited too long to bring his action. Contracts of repurchase are generally held* to be enforceable, and where no time is fixed by the contract when the option must be exercised, it is held it must be exercised within a reasonable time. The questions then arise, What is a reasonable time, and is the question one of law or of fact?
In Echternach v. Moncrief, 94 Kan. 754, 147 Pac. 860, the contract fixed the time of repurchase, but, owing to representations of the sellers, an action to enforce the contract was held to be in time, although delayed for over a year, the delay being occasioned by the solicitations of the seller that, if given time, he would perform.
In Zecha v. State Bank, 117 Kan. 287, 230 Pac. 1058, it was said that the promise of the seller to repurchase if the buyer shall so request, carries an implication that the request must be made within a reasonable time, and it is competent for the triers of the fact to determine that fifteen months is an unreasonably long time. A retrial was ordered for certain errors, and was here again in Zecha v. Citizens State Bank, 120 Kan. 139, 242 Pac. 120, and on the question of delay, a special question was submitted to the' jury as to whether plaintiff used reasonable diligence in returning his money, to which an affirmative answer was returned, and, in commenting, this court said:
“Considering all the evidence pertaining to the matter, we regard plaintiff’s diligence a fair question to submit to the jury, and its answer as controlling.” (p. 141.)
In Rice v. Kilworth, 132 Kan. 418, 295 Pac. 700, plaintiffs, as a liquidating committee, sued Kilworth on notes. Kilworth sought to offset an amount claimed to be due on a contract of plaintiffs’ predecessor to repurchase certain bonds. The evidence showed a delay of thirteen years had elapsed from the date of the repurchase agreement to the date of demand, and seven years from the date of a payment on the bonds to the date of demand, and it was held that, while lapse of time alone is not sufficient to base a defense of laches, under the circumstances of the case it was sufficient. In discussing the question of delay, it was said:
“The question of law is, Did Kilworth wait too long before exercising his option? There was no time specified in this contract within which it should be performed. There are many cases which hold that the seller of corporate stock may agree to repurchase it at a specified price at the option of the buyer, and when the agreement to repurchase is an absolute one the purchaser’s reason for wanting to return the stock is immaterial. Time is of the essence of such contracts, and the option to return the stock and receive back the price must be exercised within the time, if any, fixed by the contract, and an option to rescind at any time does not mean at any time without limit, but the right must be exercised within a reasonable time. (See 6 Fletcher Cyclopedia Corporations, §3891; see, also, Zecha v. State Bank, 117 Kan. 287, 230 Pac. 1058.)
“It is said in 6 B. C. L. on page 896:
“ ‘No such distinction is made in the later cases, which lay down the rule that a reasonable time for performance is implied in the contract, which expresses no time for performance.’
“In 35 Cyc. 154 the rule is laid down—
“ ‘Where there is an option in the contract to rescind, if the time within which the option can be exercised is prescribed such conditions must be complied with, and a failure to comply therewith terminates the option and the sale becomes absolute. In any event the option must be exercised within a reasonable-time.’ ” (p. 422.)
It was said in Paulson v. Weeks, 80 Ore. 468, 157 Pac. 590, Ann. Cas. 1918D 741, that the words “any time” in agreements analogous to the one here, are almost universally construed to mean a reasonable time, and that ordinarily the question of what is a reasonable time must be submitted to the jury, but sometimes the court is enabled to say as a matter of law that a reasonable time has expired. And see, also, Leadlbetter v. Price, 103 Ore. 222, 202 Pac. 104.
The question as to when an option must be exercised is treated in 55 C. J. 256, wherein it is said:
“Where a contract of sale containing an option to rescind prescribes the time within which it may be exercised, such condition must be complied with, and a failure to comply therewith terminates the option. According to some, but not other, authorities, a buyer who, under the contract, has an option to rescind until a specified time, may defer rescission until that time, notwithstanding he has acquired knowledge of facts entitling him to rescind at an earlier date. In any event the option must be exercised within a reasonable time. ...”
With reference to bringing of an action is the following from 1 C. J. 977, 978:
“Notice by one party to another, as a condition precedent to an action by the former against the latter, is in some cases expressly required by statute, or by agreement, and in others will be implied from the nature or provisions of the contract or obligation in question. . . . When regulated by statute notice must be given in the manner, and within the time prescribed. In the absence of express provision it should be given within a reasonable time.”
And on page 980 of the same work it is further said:
“When so regulated a demand must be made within the time prescribed by the statute, or agreement, but in the absence of express requirement, the rule is that the demand should be made within a reasonable time, according to the circumstances of the particular case.”
From the above it may be set forth as a general rule that where the contract contains a right on the part of the buyer to return the article sold and. receive back the agreed consideration, whether called a conditional sale, a sale with option to rescind, or what not, and the agreement makes no provision for time, the option or privilege must be exercised within a reasonable time, and that ordinarily the question is for the jury, although in some cases the situation is such that the court is enabled as a matter of law to say that a reasonable length of time has expired. Such a situation may arise where there is no dispute as to the facts.
As the case at bar now stands there is no dispute as to the facts, and so consideration will be given to the question of whether plaintiff’s claim is barred as a matter of law.
In West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, in dealing with a somewhat analogous situation, it was said:
“It is established law in this state that when some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will begin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.” (See cases cited.) (p. 527.)
This rule, however, must be limited in its general application to at least this extent: If defendant’s conduct has induced plaintiff’s delay, he cannot urge the delay, as it is occasioned by his own act. (Echternach v. Moncrief, 94 Kan. 754, 147 Pac. 860.) And by course of dealing between the parties, based upon sufficient consideration, the contract might be amended, amplified and changed and the time for performance extended.
Appellee argues that after the bonds mentioned in the first cause of action were purchased, subsequent purchases were made at which times the first contract was “acknowledged, admitted and renewed,” and that if appellant had suggested when the second and succeeding purchases were made it would no longer be obligated, an immediate demand for repurchase would have been made. This may all be true, but it is not alleged in the first cause of action that the contract there alleged was extended, renewed or in any wise affected by any subsequent acts of the parties, and what is said in the second, third, fourth and fifth causes of action is no part of the first cause of action.
It is urged by appellant, however, that we should take judicial notice of our economic situation; that a crisis occurred in the bond market of 1929, and for that reason the period for demand should be otherwise shortened. It is not intimated, however, that appellee knew there was to be any stock or bond market crises. We are not prepared to say in this case that, as a question of law, the time within which plaintiff should have made his demand for repurchase should be shortened on account of the financial situation. If we took notice of it at all, we should have to take notice of the market value of the specific bonds involved in this suit, a thing we cannot and will not do.
We are of the opinion that, no extraneous reasons having been alleged, a reasonable time in which to make demand for performance of the contracts alleged herein would be not in excess of that period in which an action on a contract not in writing might be brought, or three years. Gauged by this standard, it appears that as to the bonds mentioned in the first cause of action demand for repurchase was made too late; that as to the bonds mentioned in the other causes of action it was in time. What has been said above refers to making of demand and not to bringing of suit. The demand was made in August, 1930. The suit was brought in December, 1931. We cannot say, as a matter of law, there was any undue lapse of time between demand and bringing of suit. If there are any facts which should be brought to the court’s attention as bearing on the question of delay, they should be presented by answer.
The judgment of the lower court denying defendant’s motion to strike the sixth paragraph of plaintiff’s first cause of action, and similar allegations incorporated by reference in the remaining causes of action, and overruling defendant’s demurrer to plaintiff’s first cause of action, are reversed, and the cause is remanded with instructions to allow the motion and to sustain the demurrer to the first cause of action. In other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages for alienation of affections. Judgment was rendered in favor of plaintiff, and defendant appeals. The specifications of error covered and the questions argued are the correctness of the lower court’s rulings on (1) defendant’s demurrer to plaintiff’s evidence, (2) admission of testimony, (3) exclusion of testimony, (4) misconduct of the jury and (5) that the judgment is not supported by the evidence and is improper in form.
With reference to the demurrer to the plaintiff’s evidence, it is argued that there was no evidence that defendant in any manner alienated the plaintiff’s husband by giving him presents, entertaining him, or in any way doing anything which had the effect of making him think the less of plaintiff and the more of defendant, and that there is complete absence of evidence to support the allegations of the petition of “artful words and blandishments and amorous and cunning conduct,” and that the evidence shows the defendant was the pursued and not the pursuer.
For the purpose of ruling on the demurrer, the evidence favorable to plaintiff must be taken as true, and any intendments and implications therefrom must be construed favorably to her. It might be here remarked that much testimony of plaintiff with respect to communications between her and her husband was admitted in evidence, no objection thereto being made by defendant.
To determine the sufficiency of the testimony as against the demurrer, a brief review shows that plaintiff and Leroy E. Kirkpatrick were married in 1924, and had one child; that prior to May, 1929, Kirkpatrick had been employed in Salina, Manhattan and Wichita and in Minneapolis, Minn. In May, 1929, he obtained employment in Larned, where Marie Wickwire, a widow, and defendant here, kept roomers in her dwelling house. Kirkpatrick rented a room at defendant’s house June 29, 1929. Almost immediately, Kirkpatrick and defendant spent much time in each other’s company, sat on defendant’s porch together many nights until as late as two a. m., went riding together in a motor car, and on at least one occasion went swimming together; that they were seen together one evening in a hotel at Great Bend, ,at which time Kirkpatrick sought to avoid being recognized by a mutual friend of himself and plaintiff, and the next day he told the friend she could tell plaintiff about seeing him with defendant, “because I don’t give a damn.” On July 3, plaintiff went to Larned to see her husband and went to defendant’s house where her husband was rooming. When plaintiff arrived, Kirkpatrick, dressed in a bath robe, answered the door. Defendant came in later. At that time both her husband and defendant smelled of liquor; her husband went to the kitchen and got a bottle of liquor, which defendant served; that the same evening plaintiff and her husband went to a party at a neighboring house, and, missing her husband, she went to look for him and found him over on defendant’s porch holding hands with defendant; that she and her husband returned to the party and her husband again left, returning later with defendant; that they went to a hotel in Larned for the night, when plaintiff’s husband upbraided her for coming, as she had spoiled a good day for him by coming down there; that prior to July 1, 3929, he had been an affectionate husband, but thereafter he became increasingly cold and indifferent; that on October 23, 1929, her husband having been transferred to Dodge City, she went there to see him at his hotel; he was not there; she looked at the hotel register and discovered he had been there the preceding two or three days, registered as “Mr. and Mrs. Leroy Kirkpatrick”; that she telephoned him at defendant’s home and demanded he come to Dodge City; he came and they engaged in an argument concerning the hotel register; that during the argument he told her he was happier with defendant than with plaintiff, that defendant was the woman who was registered with him, and he explained the delights of staying with defendant in a manner not necessary to detail here. As has been noted, no objection was made to the competency of plaintiff to testify to communications between the plaintiff and her former husband. There was other evidence showing that ultimately support ceased and that she sued for and obtained a divorce, and there was also testimony of other witnesses tending to corroborate the above. It may here be 'noted that after plaintiff rested her case she withdrew her charge of criminal conversation between her former husband and the defendant. This did not, however, take out of consideration the matters of sexual intimacy, testimony concerning which had been received, for such testimony had a tendency to prove acts which would alienate the affections of plaintiff’s husband. And prior to the demurrer the defendant made no request that such testimony be withdrawn and the jury instructed to disregard it. Under the circumstances, as against a demurrer, plaintiff’s testimony was sufficient and the lower court’s ruling was correct. (Burch v. Goodson, 85 Kan. 86,116 Pac. 216.)
On the question of admission of incompetent testimony, the objection covers specifically two matters. Plaintiff testified that defendant was at the home in Salina on July 8,1929, and after arising, at the breakfast table her husband called her “Marie” and that she asked who Marie was. In an action for alienation of affections the plaintiff was incompetent to testify to the above, or to any other communication made by one to the other while the marriage relation existed, either while it subsisted or afterward. (See R. S. 60-2805, ¶ 3; Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597; 13 R. C. L. 1478, and see notes 2 L. R. A., n. s., 708, 39 L. R. A., n. s., 315.) The objection as to the entry on the hotel register was to the effect that it was not the best evidence. It was not, but any error on account of its admission is not shown to have been prejudicial.
In so far as rejection of evidence is concerned, appellee raises the question that such rejected evidence was not properly produced on hearing of the motion for a new trial and cannot be now considered. The proffered evidence was a certified copy of the pleadings'and judgment in the divorce suit of plaintiff from Kirkpatrick, some evidence included in a deposition and some evidence admitted and subsequently stricken out. The rule requiring evidence excluded at the trial to be produced upon hearing of a motion for a new trial (R. S. 60-3004) does not apply to depositions or to documentary evidence or to testimony received and thereafter stricken out. (See Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268; Bank v. Seaunier, 104 Kan. 7, 178 Pac. 239; Winkler v. Korzuszkiewicz, 118 Kan. 470, 235 Pac. 1054; City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963; Berb v. Citizens State Bank, 127 Kan. 354, 273 Pac. 462.) The question is properly before us.
Plaintiff produced evidence of the love and affection Kirkpatrick had for her up to the time of his meeting the defendant; that he wrote her letters, seven of which were received in evidence, two without objection and five over defendant’s objection, all.written between June 5 and October 29, 1929, and offered to show the love and affection which Kirkpatrick had for plaintiff and their child. There was testimony also tending to show the. state of mind of Kirkpatrick before and after his acquaintance with defendant. Defendant had a right to rebut this showing, and further to show that if Kirkpatrick had become alienated from the plaintiff she was not responsible. To do this she offered in evidence a certified copy of the petition, poverty affidavit and journal entry of judgment in a divorce action wherein the plaintiff here sued for and obtained a judgment for divorce against Leroy E. Kirkpatrick. The court trying the divorce suit found that the allegations of the petition were true. In the petition it was alleged that Kirkpatrick had called her vile and infamous names and had accused her of infidelity; had told her he would never live with her, and that although he was an able-bodied man he had failed and refused to support her, except partially, and that she had been compelled to rely upon the charity of friends and relatives, and that for two years last past he had neglected and refused to provide a home for her, etc.
Of course, these documents were not admissible to prove the truthfulness of the statements in them, but one of the principal elements of the case at bar was the mental state of Kirkpatrick when he left the plaintiff. Plaintiff testified fully on the trial to her then version of affairs, and no good reason appears, nor is there any, why her sworn petition made and filed after the claimed alienation, and putting forth another and different version, should not have been submitted to the jury for its consideration. Its exclusion was error. (See Barry v. Cheuvront, 135 Kan. 728, 733, 12 P. 2d 823.) Plaintiff had testified her husband told her that he and the defendant were at a hotel together. The defendant, testifying in her own behalf, denied she was at the hotel at the particular time. On objection, the denial was stricken out. Plaintiff’s evidence was incompetent, but was admitted without objection, and under the circumstances the defendant should have been permitted to deny the charge.
The claimed misconduct of the jury is based on a contention that the verdict was a “quotient” verdict. The defendant filed an affidavit signed by ten jurors, verified by only three of them, tending to show that a quotient verdict was rendered; the plaintiff countered with an affidavit signed and verified by all of the jurors and by oral testimony which put a different version on the matter. The trial court, by overruling defendant’s motion for a new trial, in effect found thé verdict was properly reached and that finding is binding here. An examination of the affidavits considered in connection with the oral proof shows that the trial court’s ruling was correct. (Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 740.)
The last complaint is based on the contention that certain attached properties should have been ordered sold separately instead of together. In view of our disposition of the appeal, the matters complained of become immaterial.
For errors in the admission and rejection of evidence, the judgment of the lower court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
The question here is whether -t-he-Action is one on a contract or in tort. Judgment was for defendant. Plaintiff appeals.
The case is here on a demurrer to the petition. The petition contained two causes of action. The first cause of action alleged the existence of defendant and that it was authorized to maintain a trust department; that on October 15, 1928, the Arkansas City Office Building Company executed its deed of trust conveying for the purposes of the trust certain lots in Arkansas City; that this deed was executed for the purpose of securing the payment of bonds in the aggregate amount of $240,000; that the deed was delivered to defendant and that the trust and obligations were accepted by defendant by joint execution of the conveyance and assuming the office and trust; that defendant became thereby legally bound to hold and preserve the property intact for the purpose of protecting the purchasers of the bonds against loss by the sale of the property and applying the proceeds thereof to the payment of the bonds, or to the legal holders of same in case of default in the payment thereof in accordance with the terms and conditions of the deed of trust and the bonds. A copy of the deed of trust was attached to the original petition.
It was further alleged that the president and vice president of defendant bank, acting under the provisions of the deed of trust, made certificate to each bond as it was placed on the market and that plaintiff became the owner of $4,000 worth of these bonds; that each and every one of these bonds was purchased previous to the discovery of the acts of negligence and fraud stated, and upon the signed certificate and verbal representations of the trustee, through its agent and officer, W. B. Harrison, Jr.; that the deed of trust was duly recorded and the rights of the bondholders duly protected, which was believed and relied upon and was an inducing cause of plaintiff’s purchase of the bonds; that the purpose of the issuance and- sale of the bonds was to procure money for the erection of an office and store building on the real estate in question; that the Arkansas City Office Building Company on November 28, 1928, contracted with the Underhill Construction Company to erect the office building for $198,600, and that the work on the building was commenced on February 1, 1929, and all payments due to October 18/1929, were duly paid as accrued, but on the 17th day of January, 1930, the Underhill Construction Company began its suit against the trustor for the sum of $52,361.75, the alleged unpaid portion of the consideration of the contract due and unpaid on December 11, 1930; that this amount represented the amount stated in a mechanic’s lien filed by the Underhill Construction Company on the 10th day of December, 1929, in Cowley county, Kansas, and this party sought foreclosure and sale of the property under its lien; that the construction company prevailed and the lien, together with costs of the action, was foreclosed, and the real estate, with the improvements thereon, was sold under execution to satisfy it, which, after paying judgment and costs, left as security for the bonds a sum approximating $2,300; that the lien of -the construction company was prior to the deed of trust, for the reason that the defendant, through gross carelessness and negligence, failed to file the deed of trust of record until the 14th day of December, 1929, and four days after the filing of the lien by the construction company, and that by reason of the gross carelessness and. negligence of the trustee in fail ing to record that instrument the whole of the property securing the bonds was forever lost to the cestuis que trustent.
The petition further contained the following allegations:
“The trustee caused the loss of said property and the loss of the face of said bonds and accrued interest by reason of its gross carelessness and negligence, in that said trustee, after it had said deed of trust in its possession as such trustee for the purposes of said trust, acting as such trustee, returned the said deed of trust to the trustor, The Arkansas City Office Building Company, on December 8, 1928, with the request that said trustor file the same of record; that said trustee was further grossly careless and negligent in that it had permitted the said trustor to retain said deed of trust and to fraudulently withhold the same from record from the 8th day of December, 1928, until the 14th day of December, 1929, and until after the filing of the said lien for material and labor by said construction company on the 11th day of December, 1929, and thus and thereby making the lien of the bondholders subsequent and inferior to that of said contractor.
“That in addition said trustee was further grossly careless and negligent and guilty of fraudulent concealment, in that previous to the sale of any of said bonds it made certificate on each of said bonds, and by the mouth of one of its officers, W. B. Harrison, Jr., informed and assured Charles M. Sharpe, of The Clyde E. Sharpe Investment Company, broker and agent, who sold all of said bonds, that said deed of trust was duly and properly recorded, well knowing that said agent and broker would so state and represent to prospective purchasers to induce a sale of said bonds; that said broker and agent relying upon the statement of the aforesaid Harrison, did so state to this plaintiff and to each and every purchaser of said bonds that said deed of trust was of record, each and all of said representations being made previous to the purchase of said bonds by the original purchasers thereof, and said signed certificate and verbal statements were inducing causes for the purchase of each and all of said bonds, said statements being believed by such purchasers to be true and relied thereon. That the certificate of the trustee and representation that said deed of trust was of record was each of them false and the said trustee knew the same to be false when made. That the defendant knew or should have known that said deed of trust was not of record, for the reason that it had placed said deed of trust in hostile hands, to wit, the trustor, and permitted same to be and remain in such hostile hands for a period of fourteen months and until after the lien of the Underhill Construction Company had been placed of record, by reason whereof the said defendant was guilty of gross carelessness and negligence.
“That defendant, as trustee under and by virtue 'of the office and trust created by said deed of trust, by its express terms and the implied constructive trust thereby created; by its acceptance and assumption of office and undertaking to record said deed of trust and carry out the acknowledged duties and responsibilities of trustee thus conferred as a matter of law; occupied a fiduciary relation to the cestuis que trustent, and said trustee was under the duty and obligation to exercise the highest degree of care to preserve the property intrusted to its care as security against loss in the purchase of said bonds by the purchaser, and for which said office and trust was created. That said trustee knew, or by the use of ordinary care could have known, that the filing of a lien for material and labor upon the part of the Underhill Construction Company was probable, and that the possession of the deed of trust by the trustor so grossly negligently permitted to be in its possession and so grossly negligently permitted to remain unrecorded for more than one year, imperiled the security of the bondholders, resulting in the loss of same.
“That furthermore said trustee was guilty of fraudulent concealment in that said trustee made a false, fraudulent statement, as aforesaid, that said deed of trust was duly recorded, when in truth and in fact said deed of trust was not so recorded, and induced thereby the cestuis que trustent, who believed said statements to be true, to invest in and purchase said bonds, when the said trustee knew said certificates and statement were false and fraudulent at the time of its so making or it could have so known by the exercise of ordinary care. That none of the cestuis que trustent discovered the falsity of said statement until after the filing of said deed of trust of record on the 14th day of December, 1929, and the foreclosure of lien for material and labor was begun. That demand for an accounting and reimbursement of loss was duly made upon the trustee and by it refused.
“That by reason as above stated said trustee was grossly careless, negligent and improvident; was guilty of fraudulent concealment; was untrue to his trust; and caused, by reason thereof, the loss of the face of said bonds and accrued interest to its cestuis que trustent, and should be made to account to plaintiff for the loss sustained as shown by the bonds herein sued upon.
“That said described real estate with said improvement was easily of value equal to the sum of the total of said bond issue, inclusive of interest thereon as specified, should same have been preserved as security therefor, or, if sold upon the market in the usual and ordinary course and other than by forced sale. That said trustor is insolvent, having no property at any time other than its equity in said real estate, now foreclosed, and has defaulted in the payment of interest since October 15, 1929. That by the terms of said bonds the whole of the principal and accrued interest is due and payable, and by reason of the negligence of defendant are uncollectible and wholly without value, to the damage of each and every purchaser of said bonds.”
The second cause of action contained the same allegations as the first, with the addition that it set out approximately $136,000 in bonds that had been purchased by various persons and had been assigned to plaintiff.
A copy of the deed of trust was attached to the petition. This deed of trust was in the form commonly used in such transactions. It conveyed the property to the trustee with the provision that the grantor should remain in possession, and provided for the issuance of bonds. The provisions of the deed of trust that are of interest to us are as follows:
“Seventh: The grantor hereby covenants, promises and agrees that it will well and truly pay, or cause to be paid to the respective holder or holders thereof, the principal of each of said bonds and the interest thereon as the same shall become respectively payable.
“Eighth: Grantor further covenants, promises and agrees to promptly pay for any and all improvements made upon said premises during the continuance of this lien, and that it will not at any time permit, or cause any lien of any kind to be placed upon or filed against same and remain of record for more than ten daj^s, except that grantor shall have the right to contest any mechanics’ lien which it deems unjust and which has first received the approval in writing of the trustee and permission given to contest the same.
“Ninth: Until default shall be made in the performance of any of the conditions or covenants hereof, or in the payment of the said bonds or the interest thereon, or any part thereof, grantor shall have and enjoy the exclusive possession, handling and control of the property hereinbefore described.
“Tenth: In case default shall be made in the performance of any covenants, promise or condition herein, or in the said bonds or coupons, then in each and every such case when such default shall continue for a period of ninety days, and after the trustee shall have given written notice to the grantor of such default, then the trustee shall have the right to declare all of the bonds and all interest accrued thereon, whether the sam,e shall by their terms have matured or not, to be immediately due and payable and may exercise any of the remedies herein given or provided by law for the enforcement of the provisions hereof and for foreclosure or the appointment of a receiver and may proceed to protect and enforce the rights of the trustee and of the bondholders hereunder by suit or suits for the enforcement of any remedy which the trustee, being advised by counsel, shall deem effectual or desirable to protect and enforce the rights aforesaid.
“Eleventh: Grantor covenants that in case default shall be made in the prompt payment of any sum of money secured hereby, to pay the trustee, upon demand, for the benefit of the holders of said bonds and coupons, the whole amount of such bonds and coupons, then outstanding, with interest from the date of such default at the rate of ten per cent per annum, and in case grantor fails to pay same upon demand, the trustee in its own name as trustee' of an express trust shall be entitled to recover judgment for the whole amount thereof, and further if such default shall continue for a period of ninety days, then trustee shall have the right to take possession of the said mortgaged property and appurtenances thereunto belonging and collect the rents thereon and apply said rents toward the payment of said bonds and interest, and the expenses of operating said premises.
“Twelfth: In case the trustee shall elect to institute foreclosure proceedings or in case it becomes the trustee’s duty to institute such proceedings, title to the choses in action evidenced by the bonds shall by such event pass to the trustee, with power in the trustee for the bondholders, to bid in the property for the benefit of the bondholders if the trustee shall so deem advisable and for itself as the various interests appear, at any judicial or execution sale or sales, and in so doing to apply the amount of said judgment upon the purchase price to such extent as may be applicable or may be deemed applicable by the trustee.
“Thirteenth: No delay or omission of the trustee, or of the holder of any bond or bonds secured hereby to exercise any right or power accruing upon any default as aforesaid, shall impair any such right or power or be construed as a waiver of any such default or acquiescence therein, and no waiver by the trustee or the bondholders of any default in the provisions hereof shall estop or prevent the trustee or bondholders from proceedings hereunder in case of subsequent defaults.
“Fourteenth: It is covenanted and agreed between the parties hereto and all holders of the bonds hereunder, that the recitals contained herein or in the bonds are made by and on the part of the grantor, and trustee assumes no responsibility with reference thereto and trustee assumes no responsibility as to the validity of this deed of trust or as to the execution hereof or as to the amount or extent of the security offered or the property covered by this deed of trust, and the trustees shall not in any way be liable for the consequences of any pledge on the part of the grantor or the covenants herein contained, or for any other act or thing hereof, except it be the negligence of the trustee.”
To this petition the defendant interposed a general demurrer. This was sustained, and plaintiff appeals.
In sustaining the demurrer the court held that the cause of action stated in the first count was barred by the statute of limitations, because the petition showed on its face that plaintiff bought her bonds on June 15, 1929, and did not commence the action until August 15, 1931. The court also held that both causes of action were barred because the right of action accrued on February 1, 1929, when work was commenced on the building, and the action was not commenced until August 15, 1931. The demurrer to the second cause of action was also sustained because the bonds upon which that cause was based were assigned to the plaintiff, and the court held that the cause of action stated was one in tort and such causes of action are not assignable.
What is the nature of the action stated? Is it in tort? Defendant says it is, and if defendant is correct the two-year statute of limitations applies and the action is barred. Is it on contract express or implied? Plaintiff says it is. If so, then the action was not barred. The answer to these questions will determine the outcome of the case, for if the suit is upon a contract the chose in action may be assigned.
An action must be based on some definite legal theory. It must • be either ex contractu or ex delicto. It should be so framed as to enable the court to ascertain what theory is relied upon. In the case of Davis v. Union State Bank, 137 Kan. 264, this question was considered. There a petition was considered which, plaintiff urged, stated a cause of action for malicious prosecution, while defendant argued that it stated a cause for slander of title. Plaintiff in that case urged that since the petition stated the facts it should be held to state a cause of action on whichever theory was most favorable to plaintiff. The court followed the rule laid down in 49 C. J. 117. There it is said:
“Every pleading must be based upon some definite consistent theory, and the nature and character of an action is determinable by the pleadings. Where it is doubtful upon what theoiy the pleading was drawn, the court will construe it according to the theory it deems most in accord with the facts alleged. The pleading should be construed so as to prevent parties from being misled. Thus it has been said that the court should consider what the opposite party had reason to understand was the issue tendered.”
In the Davis case the court proceeded to examine the petition and held that it stated a cause of action for slander of title. (See, also, Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; McDowell v. Geist, 134 Kan. 789, 8 P. 2d 401.)
"It then becomes necessary to examine the facts alleged in this petition. What was the cause of the loss that was sustained by plaintiff? When the petition is analyzed we find it was the failure of the trustee to record the trust deed. Was there a contract express or implied whereby the trust company agreed to record this trust deed? Certainly there is no such agreement in the trust deed. Nor do we find any allegation in the petition that anyone made any such promise. Are the circumstances alleged such that it may be concluded' the law implied a duty on the part of the trust company to record this deed? It has been said that a contract of this kind arises “not from consent but from the law of natural equity,” and is “allowed to be enforced by an action ex contractu.” (See Black v. City of Lawrence, 113 Kan. 518, 215 Pac. 297; also, 13 C. J. 244.)
It should be noted that the question we have is whether the allegations of the petition are such as to lead to the conclusion that the plaintiff is seeking to recover on account of an implied contract on the part of the defendant to record the trust deed. It is well established that a plaintiff cannot commence his action as one to recover for a tort and later change his theory and claim that the action was on an implied contract.
A careful examination of the petition discloses that no claim is made that there was a contractual obligation on the part of the trustee'to record this instrument. On the other hand,' the petition contains many allegations of negligence. It states that there were “acts of negligence and fraud.” Again, it speaks of “gross carelessness and negligence.” Again, it alleges that the trustees acted “grossly negligently.” Again, it is alleged that the trustee “was guilty of fraudulent concealment.” The petition again charged that .trustee “was grossly careless, negligent and improvident,” and “was guilty of fraudulent concealment.” All these expressions are those commonly used to describe an action in tort. This feature of the petition might not be sufficient by itself to stamp the action as one to recover for a tort. A careful examination, however, does not reveal any allegations even tending to set up an obligation on the part of the defendant to record this instrument.
There is an element that has been generally held to be necessary to make out a right to recovery on an implied contract. It must appear that the person sought to be charged must have enriched himsélf at the expense of the person seeking to charge him. That is the legal fiction out of which the theory of implied contracts grew. This state has recognized that rule. In Fanson v. Linsley, 20 Kan. 235, this court held:
“Where one person commits a wrong or tort against another, without any intention of benefiting his own estate, and his own estate is not thereby benefited, the law will not imply or presume a contract on the part of such wrongdoer to pay for the resulting damages; and such cause of action cannot be used as a set-off.” (Syl. ¶ 3.)
The rule was followed in Greer v. Newland, 70 Kan. 310, 77 Pac. 98.
In 3 Street on Foundations of Legal Liability the.rule is stated as follows:
“On general principle the rule is that wherever one person commits a wrong or tort against the property of another, with the result of benefiting his own estate, the law will, at the election of the party injured, impose a contractual duty on the wrongdoer to pay the party injured the full value of the property appropriated; and this duty may be enforced by the action of indebitatus in some of its forms.
“The proposition just stated indicates the point beyond which the fiction of contract cannot be indulged. No form of indebitatus will lie to recover damages for a merely destructive trespass. It is essential that there should be an unjust enrichment of the estate of the tortfeasor. This limitation will be found to be inherited from the action of debt. To create a common-law debt, the quid pro quo must accrue as a benefit to the debtor, and at the same time it must move from the creditor. So here the loss of the plaintiff must be the gain of the defendant. It is not sufficient that the plaintiff suffers a detriment. The legal duty to make reparation for damage does not by implication raise a promise to pay such damage.” (p. 199.)
See, also, Keener on Quasi Contracts, 160; Woodward on The Law of Quasi Contracts, 439; 1 C. J. 1032; Braithwaite v. Akin, 3 N. D. 365.
An examination of the petition reveals no allegations which by the most liberal construction could be held to state that the trust company was benefited by the failure to record the trust deed, or that any benefit was intended. This being true, we have reached the conclusion that the cause of action which plaintiff pleaded was one for damages for the alleged wrongful failure to put the instrument on record. This being the case, it follows that the action was one to recover for a tort; that the statute of limitations had-run, and that the chose in action described in the second cause of action could not be assigned.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in quo warranto inquiring into the authority of defendant to practice law in this state and asking for appropriate orders in relation thereto. The petition alleges briefly that defendant is and has been for more 'than twenty years a resident of Kansas City, Wyandotte county, in this state; that he has nevet been admitted to practice law in any of the courts of the state, and is lacking in the educational and professional qualifications of an attorney at law; that he claims to hold and does exercise the right to practice law in such courts, and persistently over a period of many years has filed numerous groundless actions in the courts of the state charging sundry persons, public officials, including courts and judges,' with varied misconduct ’ and derelictions;- to the detriment of the public and the due administration of justice.
Defendant’s answer questions the jurisdiction of this court to inquire into this matter and to make orders concerning it. He denies generally the allegations of the petition and alleges that in December, 1900, he took the examination for the admission of attorneys in St. Louis, Mo., and was admitted to .practice law as an attorney in all the courts of that state; that in January, 1907, he took the oath of an attorney in the district court of Wyandotte county, Kansas, for the trial of a case then pending in that court, and since then has tried many cases in that court; that he made application to this court to be permitted to practice law in this state, but because of a controversy with one of the judges of the district court, of Wyandotte county he did not take the examination; that in the past he has maintained offices in Kansas City, Mo., and has practiced law both in Missouri and in Kansas, but in this state always in connection with some attorney, and the names of several are mentioned. He professes a willingness to take an examination for admission to the bar in this state, and asks permission of the court to' do so.
This court set the matter for hearing as to what order should be made upon the pleadings filed. At the hearing, participated in by the defendant in person, the oral arguments and briefs went much more into detail as to the extent and nature of defendant’s activities in the practice of law. Defendant in his brief advises us that he' spent his boyhood in Indiana, where he attended the common schools and finished two years of high school in 1884; that thereafter he worked in different places and at various occupations until 1892, when he went to St. Louis and started a three-year course in a school of law, working in the meantime for various packing companies, and in December, 1900, took the examination before the bar examining board and was admitted to practice in all the courts of Missouri, and practiced law in St. Louis for six years, and one year at Mokano, Mo.; that he moved to Kansas City, Kan., in 1907, and began work for a packing company, became interested in some man who was in jail, went before one of the district judges and was introduced by an attorney and was told to take the oath and sign as an attorney, which he did; that for many years he worked for various packing companies and railroads, but all the time did some, work as a lawyer; that the cases which he had in Missouri he tried himself, and those he had in Kansas he had some Kansas attorney with him; that for the seven years last past he has endeavored to make a living practicing law, being for three years with one attorney and three years with another, and for the last year by himself; that while with one of these attorneys he wrote 270 petitions and all other papers necessary; that most of his clients are people of small means, and he states the amount of fees they have paid him in the last few months; that he does not solicit law business, but when clients come to him he advises them, and if court action is deemed proper he prepares the papers, has the client sign them, and gets some other attorney to assist in the trial of the case.
From the brief of the plaintiff we are advised, -and defendant has pot contradicted this, although he has had an opportunity to do so, that within the last few years there have been filed, mostly in the district court but some in the city court, approximately one hundred civil actions in which defendant’s name appeared as attorney for one of the parties, usually the plaintiff. In about half of these cases some other attorney appeared with defendant as attorney for the party, but in about half of them he was the sole attorney. In sixteen of these he was also the plaintiff. Most of these were actions for damages; several of them for libel or slander. One was a quo warranto action to oust a justice of the peace from office, another was to regulate the fares of a street-car company, and another against the mayor and city commissioners charging them with being inefficient in analyzing the ills of the city government and asking that a receiver be appointed to take over the management of the city, alleging that he was a bona fide resident and taxpayer therein. Three of these sixteen actions were tried, resulting in judgments for defendants, one was removed to the federal court, and two are pending. The others were dismissed for want of prosecution, or for want of jurisdiction of the court, or a demurrer was sustained, either to the petition or to the evidence. Collectively, and almost entirely, these actions were predicated upon ill-founded claims and unjust accusations. In a few of them plaintiff recovered small amounts. About ninety per cent of them were filed on poverty affidavits in lieu of bond or deposit for costs, although several of them in which such affidavits were filed disclosed either that the plaintiff possessed substantial property or that the action was predicated upon such possession, and in only a few of them have any costs been paid. It further appears that defendant is now conducting what he calls the “Western Credit and Adjustment Service” at an office in the business part of the city, on the letterhead of which his name appears as “Counselor and Manager.” On February 18, 1925, defendant filed in this court a petition for admission to the bar, accompanied by a fee of $25, then required. On March 2, 1925, he withdrew the application and asked for the return of the fee, which request was granted. He has made no further request for admission to the bar other than that contained in his answer filed in this action.
Passing now to' the questions to be determined. We first note defendant’s contention that since he was admitted to practice law in Missouri in 1900, and practiced law there for seven years, he should be permitted to practice law in this state on the rule of comity between states. The license or permission to practice law in one state is not extraterritorial. Defendant has been a resident of this state for more than twenty-five years. There is no rule of comity between states which requires this state to give him authority to practice law here because previously he had been admitted to the practice of law in another state. With reference to the admission of attorneys to practice law in this state who previously have been admitted to practice law in the courts of another state we have a rule which reads (R. S. 7-123, rule ix):
“All applicants who are otherwise qualified, and who have been admitted to practice in the highest court in another jurisdiction and have practiced there continuously for a period of five years or more, and continued to practice there or elsewhere up to the time of making application here, shall constitute a class and be examined separately, in such manner as the board may determine.”
Defendant’s application, made in February, 1925, was for admission under this rule, but it was withdrawn, and no other has been made. All we can say in reply to his present request that he be admitted is that he may at any time make application to the board of law examiners, and no doubt his application will be considered. It will be observed this rule does not require the admission of one simply because he had been admitted in another state. He must first show that he is “otherwise qualified,” and then he may enter a class to be examined separately from those who have not been admitted in other states, in such manner as the board of law examiners may determine. When an attorney, resident of another state and admitted to practice law there, has an action pending in one of the courts of this state, the court of this state in which such case is pending ordinarily will recognize him as an attorney for the trial of that case. Apparently that is what was done by the district court for defendant in 1907. Such permission, of course, is not a general admission to practice law in this state. Under our statute (R. S. 7-102), since 1903, the district courts of this state have not had authority to admit an applicant to the general practice of law in this state. It follows, therefore, that defendant has never been admitted as an attorney in this state with authority generally to practice law in this state.
Defendant questions the jurisdiction of this court to hear and determine this action. Our constitution (art. 3, § 3) gives this court original jurisdiction in proceedings in quo warranto, and our statute (R. S. 60-1602) authorizes such actions when any person shall usurp, intrude into, or unlawfully hold or exercise any public office or shall claim any franchise within this state. While an attorney at law is not a public officer in the sense that term is ordinarily used, he is nevertheless “an officer of the court” (In re Pryor, 18 Kan. 72; Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646; 6 C. J. 568; 2 R. C. L. 939; Ex parte Garland, 71 U. S. [4 Wall.] 333), and as such is a part of the judicial system of the state, and he obtains that position under and by virtue of the constitution and laws of the state relating to that office and to the judicial branch of our government. Also, his authority, or permit, or license to act as an attorney at law is a privilege “in the nature of a franchise from the state conferred only for merit” (Matter of Coöperative Law Co., 198 N. Y. 479, 92 N. E. 15; People v. California Protective Corp., 76 Cal. App. 354, 244 Pac. 1089), and revocable on his violation of his obligations and duties. This court, therefore, has specific constitutional and statutory authority and jurisdiction to inquire of defendant by what right he intrudes into the position and exercises the affairs of an attorney at law and attempts to use the franchise of one admitted to practice law in this state.
Then our statute (R. S. 7-102, 7-111) grants to this court authority to admit attorneys to the practice of law and to suspend or disbar them therefrom. This of necessity gives the court authority to make and enforce rules respecting the admission or exclusion of persons to the practice of law. This authority would be ineffectual if those not admitted as attorneys at law, or authorized to practice law, could nevertheless engage in that practice. On this point we approve the language of the supreme court of Illinois in The People v. Peoples Stock Yards Bank, 344 Ill. 462, 176 N. E. 901, where it was said:
“Having inherent and plenary power and original jurisdiction to decide who shall be admitted to practice as attorneys in the state, this court also has all the power and jurisdiction necessary to protect and enforce its rules and decisions in that respect. Having power to determine who shall and who shall not practice law in this state, and to license those who may act as attorneys and forbid others who do not measure up to the standards or come within the provisions of its rules, it necessarily follows that this court has the power to enforce its rules and decisions against offenders, even though they have never been licensed by this court. Of what avail is the power to license in the absence of power to prevent one not licensed from practicing as an attorney? In the absence of power to control or punish unauthorized persons who presume to practice as attorneys and officers of this court, the power to control admissions to the bar would be nugatory. And so it has been held that the court, which alone has authority to license attorneys, has as a necessary corollary ample implied power to protect this function by punishing unauthorized persons for usurping the privilege of acting as attorneys. (In re Morse, 98 Vt. 85, 126 Atl. 550, 36 A. L. R. 527.)” (p. 471.)
In harmony with the statutory provision above referred to, but more fundamental, is the inherent power of courts to admit qualified persons to the practice of law and to refuse disqualified persons authority to engage in such practice, even to the extent of disbarring those who have once been admitted. In Ex Parte Secombe, 60 U. S. (19 How.) 9, it was held:
“By the rules and practice of common-law courts, it rests exclusively with the court to determine who is qualified to become or continue one of its officers, as an attorney and counselor of the court; the power being regulated, however, by a sound and just judicial discretion — guarding the rights and independence of the bar as well as the dignity and authority of the court.”
In the recent case of In re Richards, 63 S. W. 2d 672 (Mo.), the supreme court of Missouri in banc extensively reviewed the authorities on this point and held the supreme court has inherent original jurisdiction in proceedings to disbar attorneys. This power may be regulated by statute, but cannot be frustrated or destroyed. Among the authorities there cited are Farlin v. Sook, 30 Kan. 401, 1 Pac. 123, and In re Norris, 60 Kan. 649, 57 Pac. 528. To these might have been added: In re Pryor, supra; In re Burnette, 73 Kan. 609, 85 Pac. 575; In re Smith, 73 Kan. 743, 85 Pac. 584; In re Wilson, 79 Kan. 450, 100 Pac. 75; In re Washington, 82 Kan. 829, 109 Pac. 700; Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646; In re Hanson, 99 Kan. 23, 160 Pac. 1141; In re Macy, 109 Kan. 1, 196 Pac. 1095, 14 A. L. R. 848; In re Staton, 112 Kan. 226, 210 Pac. 615; In re Gorsuch, 113 Kan. 380, 214 Pac. 794; Moore v. Wesley, 125 Kan. 22, 262 Pac. 1035; In re Casebier, 129 Kan. 853, 288 Pac. 599.
A proceeding in the nature of quo warranto in this court by the state on the relation of the attorney-general is appropriate to inquire into the authority of one who engages in the practice of law in this state. The ancient writ was a demand made by the state on some individual to show by what right he exercised some franchise or privilege appertaining to the state which, according to the laws of the land, he could not legally exercise except by virtue of some grant of authority. (22 R. C. L. 656; 51 C. J. 309; State v. Graham, 13 Kan. 136, 144.) In Redmond v. State, ex rel., 152 Miss. 54, 118 So. 360, 367, it was held to be a proper remedy where a person was practicing medicine without having obtained a license in the manner required by law. See, also, Harris v. State, 215 Ala. 56, 109 So. 291, construing a statute. But the jurisdiction of this court in quo warranto is derived from the constitution rather than from the statute. (State v. Brewing Association, 76 Kan. 184, 195, 90 Pac. 777.) The remedy is one frequently used to inquire by what authority one who attempts to do so engages in the practice of law. (Berk v. State, 225 Ala. 324, 142 So. 832.) See cases collected in the annotation, 73 A. L. R. 1327. Some of the courts have made such inquiries and issued their orders under an accusation for contempt. (People v. Castleman, 88 Col. 207 , 294 Pac. 535; People v. Association of Real Estate Taxpayers, 187 N. E. 823 [Ill.] ; In re Morse, 98 Vt. 85, 126 Atl. 550, and cases collected in annotation 36 A. L. R. 533.) Others have held injunction a proper remedy (Unger v. Landlords Management Corporation, 168 Atl. 229 [N. J.]), but that would not be appropriate here, as this court issues injunctive orders only as they are ancillary to some action or proceeding in which it has jurisdiction under the constitution, namely, quo warranto, mandamus, or habeas corpus, or in appealed cases. Inquiries of this character have been made on the complaint of duly licensed members of the bar, or of bar associations (People, ex rel. Karlin, v. Culkin, 248 N, Y. 465, 162 N. E. 487; and see cases collected in the annotations 60 A. L. R. 860). The form in which the matter is called to the court’s attention is not so important. Since the court has jurisdiction of the subject matter, any recognized procedure by which a charge or complaint is entertained, and the one charged is given proper notice, and in which there is a full hearing fairly conducted, would appear to be sufficient.
The importance to courts and litigants of well-informed, trustworthy attorneys at law is well recognized, and frequently has been judicially noticed. Recently, in In re Opinion of the Justices, 279 Mass. 607, 180 N. E. 725, it was said:
“It is indispensable to the administration of justice and the interpretation of the laws that there be members of the bar of sufficient ability, adequate learning and sound moral character. This arises from the need of enlightened assistance to the honest, and restraining authority over the knavish litigant. It is highly important, also, that the public be protected from incompetent and vicious practitioners, whose opportunity for doing mischief is wide.” (p. 609.)
In In re Cannon, 206 Wis. 374, 240 N. W. 441, it was said:
“The relation of the bar to the courts is a peculiar and intimate relationship. The bar is an attache of the courts. The quality of justice dispensed by the courts depends in no small degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and reproach to the administration of justice and bring the courts themselves into disrepute.” (p. 383.)
The opinion contains an exhaustive history of the development of the bar as an aid in the administration of justice.
In Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 165 Atl. 211, it was said:
“The practice of law is not a craft or a trade; it is a profession the main purpose of which is to aid in the doing of justice according to law between the state and individual and between man and man. The occasions upon which an attorney may be required to act touch, in many instances, the deepest and most precious concerns of men, women, and children. They may involve the liberty, the property, the happiness, the character and the life of his client. Obviously, one not possessing an adequate degree of intelligence and education cannot perform this kind of service, nor should he be permitted to attempt to do so. . . .
“The ultimate purpose of all regulations of the admission of attorneys is to assure the courts the assistance of advocates of ability, learning, and sound character and to protect the public from incompetent and dishonest practitioners.” (pp. 414, 415.)
This court can perform no greater general service to the litigants and other citizens of the state than to see to it that attorneys who practice law in this state are trustworthy and have the requisite general and legal learning to enable them to be of real service to the courts and to their clients. To accomplish'that result our rules require an applicant for admission to the bar to have completed a standard four-years high-school course and two years (after June 1, 1936, three years) of a general college course and to have been graduated from the law school of the state university, or to show an equivalent study, and in addition to show that he is possessed of high moral character. A board of law examiners is provided to make the necessary investigations and examinations. Provision also is made for hearing complaints against members of the bar, and the court does not hesitate to suspend and expel an attorney found unworthy to practice law. This is in keeping with the recommendations of the American Bar Association and similar requirements in other states. With greater reason the courts should see to it that unauthorized persons do not practice law in this state. (Bryce v. Gillespie, 168 S. E. 653 [Va.] ; In re Disbarment of George H. Otterness, 181 Minn. 254, 232 N. W. 318; The People v. Peoples Stock Yards Bank, 344 Ill. 462; Berk v. State, 225 Ala. 324; In re Eastern Idaho Loan & Trust Co., 49 Ida. 280, 288 Pac. 157; Unger v. Landlords Management Corporation, 168 Atl. 229; People v. Association of Real Estate Taxpayers, 187 N. E. 823.)
This brings us to the question of what is practicing law. The general meaning of the term is of common knowledge, although the boundaries of its definition may be indefinite. as to some transactions. We shall not bother with boundary-line distinctions here, for this is not a boundary-line case. A general definition of the term frequently quoted with approval is given in Eley v. Miller, 7 Ind. App. 529, 34 N. E. 836, as follows:
“As-the term is generally understood, the practice of the law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” (p. 535.)
In The People v. Peoples Stock Yards Bank, 344 Ill. 462, it was said:
“In litigated matters it involves not only the actual representation of the client in court, but also services rendered in advising a client as to his cause of action or defense. The practice of law also includes the giving of advice or rendering services requiring the use of legal skill or knowledge. . . . Where a will, contract or other instrument is to be shaped from facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to insure a specific result and guard against others, more than the knowledge of the layman is required, and a charge for such service brings it definitely within the term ‘practice of the law.’ ” (pp. 475, 478.)
Other definitions may be found in Savings Bank v. Ward, 100 U. S. 195; In re Duncan, 83 S. C. 186, 65 S. E. 210; State Bar of California v. Superior Court, 207 Cal. 323, 278 Pac. 432; In re Eastern Idaho Loan & Trust Co., supra; Unger v. Landlords Management Corporation, supra. One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law. See Berk v. State, supra, and authorities cited therein. And an attorney at law who conducts such an association with one unauthorized to practice law is guilty of knowingly and intentionally aiding and abetting an unlicensed person to practice law (Smallberg v. The State Bar, 212 Cal. 113, 297 Pac. 916), and subject to discipline. (In re Gorsuch, supra.) An unauthorized person has no more authority to practice law in a justice court than he has in a court of record. (In re Morse, supra; Bryce v. Gillespie, supra.) The use of the terms “lawyer,” “attorney at law,” “counselor,” on letterheads or elsewhere by one unauthorized to practice law is not justified.
Without restating the facts disclosed by the record it is clear defendant has engaged in the unauthorized practice of law in about all the ways it is possible for one to do.
Judgment is entered for plaintiff, and defendant is hereby ordered and directed to cease the practice of law in any and all of the courts of this state; to cease his practice of conferring with clients, outlining their litigation, and taking it to some other attorney to file and to appear in court; to cease the preparation of legal instruments from facts and circumstances which require a knowledge of the law where certain objects are to be accomplished and others avoided, where a fee is charged or received therefor; and to cease using the words “counselor,” “lawyer,” “attorney at law,” or similar terms, on his stationery, or otherwise holding himself out to be engaged in the practice of law.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover from the executor of the estate of Amanda A. Jenkins for services rendered and goods and supplies furnished her during her lifetime by the plaintiff.
The claim originally filed was stated as a verified account for $20,000, to which was attached a supplement. The supplement contains a statement of claimant’s being taken into the home of Mr. and Mrs. Jenkins when he was about four years of age, his staying with them until he was 21 years of age, when Jenkins gave him two horses, and a little later he went to Oklahoma. In 1899 Mr. Jenkins requested him to return and take charge of his farming operations, the compensation agreed upon being set out. In 1904, on his death bed, Mr. Jenkins asked claimant to take good care of Aunt Mandy (Mrs. Jenkins) during the rest of her life, and upon claimant’s promising to do so, said:
“I have made no provision in my will for Jim (J. D. Logston), but I want him provided for. I want him to have this 200-acre home place, for no one deserves it any more than does he. So, I want you to break my will and give him this 200 acres. I am leaving plenty for all of you if it is taken care of.”
Mrs. Jenkins moved to Arcadia in 1907. Just before moving she sold the 200 acres for $20,000 cash. Claimant set out in general terms services performed by him. The supplement concludes:
“A month or so prior to her last illness I took her to Arkansas to see her sick brother, Tom Mitchell. En route back home, she said to me: ‘Jim, you have complied with Mr. Jenkins’ request to the letter. You have certainly been faithful to me. I don’t know what I would do if it were not for you and Rosy. I have got it fixed to take care of you so you will never want for anything.’ When I thanked her, she said: ‘You need not thank me, for it is a debt I owe you.’ Wherefore, the undersigned will be willing to appear before the probate court and the executor of Mrs. Jenkins’ will and submit to questioning concerning the justice of his claim.”
A suit in specific performance would not lie, which probably explains why a claim was filed in the probate court. The claim was first presented to the probate court and disallowed. An appeal was taken to the district court, where .trial to a jury was had, which resulted in a verdict for plaintiff for $14,000, which was approved by the trial court and judgment rendered accordingly. The executor’s motion for a new trial was overruled, and he appeals. Three questions were presented and argued: The overruling of the demurrer to plaintiff’s evidence, the overruling of appellant’s motion to vacate the judgment and grant a new trial, and that the verdict was excessive and given under the influence of passion and prejudice.
While it might appear from the statement of claim filed in the probate court that the claim was based on an agreement reached in 1904 in the conversation between claimant and Mr. Jenkins, followed by the conversation between Mr. and Mrs. Jenkins, the court instructed on the theory that the services were performed and supplies were furnished under and by virtue of a verbal contract between Amanda Jenkins and the claimant, which was in substance that if claimant would take care of Amanda Jenkins during her lifetime and perform services and other work for her, that she would pay therefor, that claimant had performed such services from the date of the death of Mr. Jenkins to the date of the death of Mrs. Jenkins, and such services were worth the sum of $20,000. The sixth paragraph of the instructions is as follows:
“6. You are instructed that if you should find from a preponderance of the evidence that the services claimed for, or any part thereof, were performed by the claimant or plaintiff for the deceased, Amanda Jenkins, upon an express contract that the same should be paid for, or with the understanding and agreement of both the plaintiff and the deceased, Amanda Jenkins, that same should be paid for, then you should find for the plaintiff, and should allow him in your verdict the fair and reasonable value of such services as plaintiff so rendered at the time and place where rendered. But unless you so find, your verdict should be for the defendant.”
In two other instances in the instructions, the court made it clear that the amount of recovery was the “reasonable value of such services, not exceeding the amount claimed.”
The claimant’s evidence, to which the jury by its verdict gave credence, showed the following: When claimant was about four years old he was taken into the home of Mr. and Mrs. Jenkins, who lived on a large farm in Crawford county, there being 200 acres in the home place. When claimant reached the age of 21, which was in the spring of 1888, he left the Jenkins home and lived with a Mr. Garrett and farmed for himself until fall, when he sold his crop and went to the Indian Territory, where he remained until 1900. It is not shown why claimant returned to Crawford county. On his return he and his wife occupied a house on the 200-acre farm which was near to or joined the Jenkins house. From 1900 on to the death of Mr. Jenkins in 1904 claimant did all of the farm work. From 1904 to 1907, when it appears that the farm was sold for $20,000, claimant occupied the farm with Mrs. Jenkins. She moved to Arcadia in 1907 and claimant then moved on another farm owned by Mrs. Jenkins and continued thereon until her death in 1932. Mrs. Hood, a disinterested witness who had known Mrs. Jenkins for many years, and who acted as a companion for her, testified that Mrs. Jenkins told her that Logston paid rent and also paid taxes on the farm he occupied. At the time Mrs. Jenkins moved to Arcadia, in a conversation respecting .what provision she was going to make for claimant, she told claimant’s wife that Mr. Jenkins had requested her to give claimant the 200 acres or its equivalent and “I have sold it, but I expect to make it good.” And she told neighbors who had known her for years, with reference to the last farm occupied, that it was hers now, but it was to be Jim’s, and referring to claimant and his wife, she said, “Yes, they are all I got and I want Jim paid for everything he has done for me.” And during her last illness she was anxious that papers be fixed — that she wanted to have all that was in the Home State Bank made over to him. And there was much testimony with respect to the care and attention which claimant and his wife bestowed upon Mrs. Jenkins, as well as with respect to the farm products which they brought to her. Some of this testimony was weakened on cross-examination, but there was no controverting testimony. There was evidence of checks from Mrs. Jenkins to claimant, claimant’s wife’s statement that they borrowed from Mrs. Jenkins and paid her back; that Mrs. Jenkins purchased an automobile for them costing $737; that they took her on trips to Oklahoma, Arkansas and elsewhere, all of which tended to show that claimant and his wife and Mrs. Jenkins were closely associated for many years. Defendant offered in evidence a will made by Mrs. Jenkins in June, 1907, by the terms of which she devised a quarter section of land to claimant and his wife during their natural lifetimes and so long as they remained on the premises. This land was occupied by claimant and his wife from the time Mrs. Jenkins moved from the 200-acre farm to Arcadia. The evidence does not disclose whether the will was made before or after she sold the 200 acres, but as it disposes of no other real estate than that given claimant and his wife, we assume it was after the sale of the 200 acres. There was testimony the 160 acres was worth from $20 to $25 per acre at the time of Mrs. Jenkins’ death.
Appellant’s first contention is that the contract was not proved, and in connection therewith it is urged that members of a family cannot recover from each other for services rendered by one to the other unless there is an express contract, citing Griffith v. Robertson, 73 Kan. 666, 671, 85 Pac. 748, and other cases, and that Amanda Jenkins stood in loco parentis to the claimant. It may be remarked that the court instructed on the theory of express contract. However, it should be noted that the claimant was never adopted by either of the Jenkins, did not adopt their name, left their home when he attained his majority, and did not return for some twelve years thereafter. Ordinarily, a person cannot stand in loco parentis to an adult who is not physically or mentally incapacitated (46 C. J. 1335). Mrs. Jenkins did not stand in that relation to claimant. Further, the evidence shows that after he left, in 1888, claimant was never a part of the Jenkins household. As bearing upon this phase of the matter, see Ensey, Ex’r, v. Hines, 30 Kan. 704, 2 Pac. 861. The most that can be said favorably to the executor is that claimant’s course of conduct toward Mr. and Mrs. Jenkins indicated an appreciation of their kindnesses to him during his childhood. Had he been the child or adopted child of the Jenkins, he owed them no support under the situation here existing (In re Erickson, 104 Kan. 521, 523, 180 Pac. 263). It is then contended that owing to the fact that Mrs. Jenkins and claimant stood in the relation of in loco parentis to each other, claimant could only recover by virtue of an express contract, proved by clear, positive and direct evidence.
There have been a goodly number of cases wherein claimants have sought to recover quantum meruit for services rendered decedents, or have sought to have enforced specifically contracts either to make wills or to give specific property, the consideration of which was the performance of such services. A great many of these cases are noted in Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665, and as is said therein: “No good purpose would be served in analyzing each of these cases in detail. To cite them is deemed sufficient.” (p. 261.)
Many of the cases referred to pertain to situations much different than exist here. Some involve principles of equity which are absent here. Some arise in suits in the nature of specific performance, a few are appeals from allowance or disallowance of claims in the probate court. From all of them it may be said that although certain principles are laid down by which all claims of somewhat analogous character are to be determined, to a certain extent each must be decided in view of the facts and circumstances of the particular case.
As has been stated, the court submitted the controversy under instructions that claimant performed the services and furnished goods and supplies at the special instance and request of Mrs. Jenkins by virtue of an oral contract between the claimant and Mrs. Jenkins, which was in substance that if he would take care of her during her lifetime and perform services and other work for her, she would pay him for such services and supplies. The claimant did not object or except to such instructions nor request any other or different instruction, so we must assume he was satisfied with the court’s interpretation of his theory of the matter. The instructions laid down the law of the case, and it will be determined accordingly.
Was the contract proved? It appears that there is no evidence as to why claimant returned from Oklahoma in 1900 and commenced working at the Jenkins place, and no direct evidence as to what arrangement he had with either Mr. or Mrs. Jenkins. That the claimant performed services over a great period of years, and that he furnished Mrs. Jenkins with many supplies and did what he alleges he agreed to do, is not seriously disputed, the objection going more to the proposition that he failed to prove he did so by reason of any contract he had with Mrs. Jenkins. In examining this objection, we take note that the claimant is incompetent to testify to any communication or transaction had personally by him with Mrs. Jenkins, and that proof may therefore be difficult to adduce. However, he had that burden. Did he sustain it? The evidence showed that in 1907, when the question of provision for claimant was discussed between Mrs. Jenkins and claimant’s wife, Mrs. Jenkins stated that Mr. Jenkins had asked her to give claimant the 200-acre farm; that she had sold the farm but expected to make it good; and she stated to numerous other witnesses that she wanted claimant paid for all that he had done. It is clearly shown that Mrs. Jenkins intended that claimant should be paid. There is likewise testimony that the claimant paid rent and taxes on the real estate he occupied.
It was not necessary that the contract be proved by direct testimony — it could be established by circumstances. In discussing a contract between parent and child, it was said in Griffith v. Robertson, supra:
“It is not essential that a formal offer and acceptance, in writing or otherwise, be shown. In the absence of more direct evidence the fact may be established by circumstances. An express contract exists whenever there is a mutual meeting of the minds upon any contractual proposition. The essential contractual proposition in this case is: Were the services in question to be paid for? What was the mutual understanding of these parties upon this subject? This was a proper question for a jury, and that tribunal has answered that the parties intended that the services should be paid for.” (p. 671.)
Here there was abundant testimony with reference to the services rendered and, to a lesser extent, as to supplies furnished, such as butter, eggs, garden products in season, meat, etc., a showing that as the years elapsed such services and supplies were not paid for, the declarations of the decedent that she wanted the claimant paid, her statement during her last illness that she wanted him to have what she had in the bank, although the evidence does not disclose what it was or its value, and this, taken into consideration with her statement that she had sold the farm but expected to make it good, warranted the jury, which had an opportunity to observe the witnesses, their manner of testifying, their candor and their interest or lack of it, in concluding that it was understood and agreed between Mrs. Jenkins and the claimant that he should furnish her care, services and supplies and be paid therefor. And the court, with similar opportunities, approved the jury’s verdict. In our opinion the claimant sustained the burden of proof.
Whether the verdict was excessive presents a more difficult question. While the statement of the claim might be interpreted to mean that claimant was to have the equivalent of the 200-acre farm which was sold for $20,000, under the court’s instructions, of which claimant did not and does not now complain, the matter was submitted on the proposition that he should recover only the reasonable value of the services rendered and supplies furnished. While we recognize the fact that it is impossible to evaluate exactly the services rendered and the goods and supplies furnished, there is no evidence which warrants or justifies the amount of $14,000 returned by the jury in its verdict. We are inclined to believe that the amount was predicated on the value of the 200-acre farm sold, and in this wise: Value of 160 acres bequeathed at $25 per acre, $4,000, plus the cost of the automobile given claimant by Mrs. Jenkins, $737, plus the amount allowed, $14,000, or $18,737, which approximates the amount for which the 200 acres sold. Under .the theory on which the claim was submitted, and under the instructions, this was not correct. There being no reasonable basis on which the verdict rests, and a lack of sufficient evidence to warrant its amount, it should have been set aside.
In view of our conclusions that the contract was sufficiently proved, no good purpose would be served by granting a new trial as to this phase of the controversy. If a new trial is granted, it would pertain only to the amount of the recovery. There is no ^showing that the verdict as returned by the jury was the result of any prejudice, and we have refused to approve it only for the reason that under the evidence it is excessive. The period during which the services were performed and goods and supplies furnished covered many years and, as above indicated, we recognize the fact that it is impossible to now put any exact figure of value thereon. We have examined the record to ascertain whether an amount can be fixed which will not be subject to criticism as being excessive and have concluded to offer plaintiff the option of accepting a judgment for that amount, and in event of his refusal, to grant a new trial on the question of the amount of recovery only. (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 74, 12 Pac. 352, and Wiggins v. Missouri-K.-T. Rld. Co., 128 Kan. 32, 38, 276 Pac. 63, and cases cited therein.)
If the plaintiff will consent, a judgment of $5,000 may be entered in his favor; otherwise a new trial, limited as noted, will be granted, and the case is remanded for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Dawson, J.:
The appellant, Bill Wright, was convicted of the crime of robbery in the first degree as charged in four counts of the information.
The evidence tending to support the conviction was to this effect: One Warden operated a small confectionery and filling station on highway No. 40, in Leavenworth county, a few miles east of Tonganoxie. On the night of April 18, 1931, several persons were playing cards in Warden’s place of business. About midnight three strangers, afterwards identified as Bill Wright, Jack Boaz and one Stanley, entered the confectionery with the avowed purpose of getting warmed-. They purchased cigarettes, watched the card game in progress, stayed for an hour or more, and then left. Shortly thereafter they returned with guns in their hands. One of the three commanded those present to “stick ’em up.” One of the trio searched the pockets of the card players and ordered Warden to put his money on the table. Various sums of money were thus taken from Warden and the players; and the several counts of the information related to the specific acts of robbery committed against Warden and these other persons.
Appellant contends that he was not sufficiently identified as one of the robbers, and that the trial court’s instruction touching an alibi interposed in his behalf was inaccurate and prejudicial.
Touching the first of these points Warden, proprietor of the confectionery, narrated the facts of the robbery, and on the matter of identification his testimony reads:
“Q. Mr. Warden, you see Bill Wright here? A. Yes, sir.
“Q. Was he in your place that night? A. Yes, sir.
“Q. Was he one of the men who came in there with a gun? A. Yes, sir.
“Q. You are sure about that? A. Absolutely.
“Q. How long was it after that time that you next saw Bill Wright? A. About three weeks after that.
“Q. And who was with him at that time? A. Well, there was Mr. Boaz and Mr. Stanley.
“Q. Where did you see them? A. Well, I seen them at Woods’ comer. I went down there to see if they were the same fellows that robbed me; they asked me to come.
“Q. Were they the same men? A. Yes.”
Defendant stresses the fact that on cross-examination this witness was unable to state how defendant was clothed, whether he wore a jumper, what was the color of his shoes, and whether he wore a necktie. However, the state prints some more of this cross-examination :
“Q. What color hair did he have? A. Black.
“Q. What color eyes? A. Black eyes.
“Q. About how old? A. Oh, I judge he was around thirty or thirty-five.
“Q. Was he heavy or light? A. Oh, he was kind of a slim fellow.
“Q. Rather slender? What would he weigh? A. Oh, I judge around 140 or 150.
. . . . . . . . .
“Q. You could not tell a thing he wore, could you? A. He wore some old clothes.
. . . . . . . . .
“Q. And-that is the way you try to identify this boy, is it not? A. Oh, I know him. I watched. I seen him when he held that gun on me. I looked him in the eye. I never would forget him.”
Other witnesses for the state who were victims of the acts of robbery charged in the information were not able to identify defendant because they were compelled to face about while the robbers went through their pockets and gathered up the money on the card table. Some of them, however, did identify one or both of defendant’s companions, although they were uncertain about defendant. Thus, witness Hastings testified:
“Q. Would you say in. your judgment this boy was not one of the three boys that was there? A. I could not say that he was or I do not know as I could say that he was not.
. . . . . . .
“Q. Why? A. Well, he is better looking, a better-looking man. That gentleman fixed up — he looks like a gentleman. . . . That night I seen him out there he was a very tough-looking character.”
In such a state of the evidence any court of justice would be derelict of its duty if it should hold that the matter of defendant’s identification was not sufficiently established to take the case to the jury.
Error is predicated on the giving of this instruction:
“You are further instructed that one of the defenses made by the defendant in this case is what is known as an alibi, that is, that the defendant was in another place at the time of the commission of the crime. This is a proper defense, ij proven; and if, in view of all the evidence, the jury have a reasonable doubt as to the presence of the defendant at the time when and the place where the crime was committed, they should give the defendant the benefit of the doubt and find him not guilty. The defendant is not required to prove an alibi beyond a reasonable doubt or even by a preponderance of evidence. It is sufficient to justify an acquittal if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged, if you find that a crime was committed. You will understand, also, that the attempt of the defendant to prove an alibi does not shift the burden of proof from the prosecution, but that the prosecution is bound to prove this defense should be subjected, like all the evidence in the case, to rigid scrutiny, for the reason that witnesses, even when truthful, may be honestly mistaken of, or forgetful of times and places.”
Defendant criticises the inclusion of the words “if proven” which we have italicized in the instruction quoted. The criticism is just. Under the law of alibi, as otherwise correctly stated in this instruction, defendant was not required to prove his defense of alibi. It would quite suffice under Kansas law for defendant’s acquittance if the evidence offered in support of his defense of alibi raised a reasonable doubt of the verity of the state’s evidence that he was present at the time and place the crime was committed. In State v. Conway, 55 Kan. 323, 40 Pac. 661, it was said:
“It [an alibi] is a legitimate defense, and the instructions requested to the effect that the accused is not required to establish the defense beyond a reasonable doubt, or even by a preponderance of the testimony, to entitle him to an acquittal, correctly stated the law. . . . and if, by reason of the evidence relating to that question, the jury should doubt the guilt of the accused, he is entitled to an acquittal. . . . the defendant is not obliged to absolutely show the truth of the claim, nor are the jury required to believe that the proof establishes an alibi in order to acquit. The evidence may be such as simply to raise a reasonable doubt of guilt, and in that event the defendant may be acquitted. (State v. Child, 40 Kan. 482.)” (p. 325.)
We do not fail to note that the instruction which the trial court gave is taken from our own reports. It appears in State v. Smith, 114 Kan. 186, 217 Pac. 307, where it was tacitly approved, without discussion, on authority of State v. Price, 55 Kan. 610, 40 Pac. 1001. In the latter case the instruction reads:
“One of the defenses made by the defendant in this case is what is known as an alibi; that is, that the defendant was in another place at the time of the commission of the crime. This is a proper defense, if proven; and if, in view of all the evidence, the jury have a reasonable doubt as to the presence of the defendant at the time and place when the crime was committed, they should give the defendant the benefit of the doubt, and find him not guilty.”
But this court did not give its unqualified approval of the language “This [alibi] is a proper defense, if proven.” What we did say was this:
“It would be hypercritical to hold this instruction erroneous merely because a disconnected portion of a sentence would be erroneous standing by itself.” (p. 611.)
We still say so, but we would add that in searching our reports for suitable instructions to fit pending cases, it would be well for courts and counsel to look closely to the context to determine whether this court has deliberately approved them as precise and well-stated rules of law, or merely not so lacking in precision and comprehensiveness as to compel this court to declare them to be erroneous and prejudicial. Here, as in State v. Price, supra, we hold that while the words “if proven,” should have been omitted, the instruction as a whole was not prejudicially misleading; and as the record does not permit this court to entertain any misgiving that justice may have miscarried, the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for malicious prosecution. Judgment was for plaintiff. Defendants appeal.
Plaintiff was arrested and charged with the crime of adultery. A complaint against plaintiff was sworn to by Lewis Wagner charging the offense had been committed against his daughter, Edith Wagner. Subsequently that complaint was dismissed and another case was instituted by means of an information signed by the county attorney direct in district court. At the trial of the criminal case defendant there, plaintiff here, was found not guilty. This action brought by Kennedy for malicious prosecution against Lewis Wagner and Edith Wagner followed. The defense relied upon by defendants is that they placed all available information concerning the commission of the crime truthfully in the hands of the county attorney and in the hands of the special prosecutor retained by them.
The case was tried to a jury which returned a verdict for $571.50 against each defendant. Judgment was rendered accordingly. The jury answered special questions as follows:
“1: Was there probable cause for instituting the prosecution against the plaintiff in this case? A. No.
“2: Was the prosecution against the plaintiff instituted through malice? A. Yes.
“3: Did the defendant, Lewis Wagner, truthfully lay before the county attorney all the facts of which he had knowledge prior to the institution of the criminal prosecution? A. No..
“4: If you find that the defendant, Lewis Wagner, did not truthfully state to the county attorney all of the facts within his knowledge with reference to the commission of the alleged crime against his daughter, then state what facts he failed to communicate to the county attorney. A. His demand for two thousand dollars ($2,000) from C. E. Kennedy.
“5: Did the county attorney advise that a prosecution be instituted against the plaintiff? A. Yes.
“6: Did the defendant, Lewis Wagner, truthfully lay before private legal counsel all of the facts of which he had knowledge? A. No.
“7: Did the defendant, Lewis Wagner, fully and truthfully state all the facts within his knowledge to Attorney Leon W. Lundblade? A. No.
“8: If you find that the defendant, Lewis Wagner, did not truthfully state to Attorney Leon W. Lundblade all of the facts within his knowledge with reference to the alleged crime committed against his daughter, then state what facts were unstated or withheld from the said Leon W. Lundblade. A. The fact that Edith Wagner had missed no menstruation period.
“9: Did Attorney Leon W. Lundblade advise the bringing of the criminal action complained of? A. Yes.
“10: Did the defendant, Lewis Wagner, in swearing to the information in the criminal case in the district court, and in prosecuting the criminal case, rely upon the advice of — (a) The county attorney? Yes. (b) Attorney Leon W. Lundblade? Yes.
“11: If you find for the plaintiff and against the defendant Lewis Wagner, how much do you allow as actual damages? $571.50.
“12: If you find in favor of the plaintiff and against the defendant Lewis Wagner, how much, if any, do you allow as punitive damages? None.
“13: If you find in favor of the plaintiff and against the defendant Edith Wagner, how much do you allow, if anything, as actual damages? $571.50.
“14: If you find in favor of the plaintiff and against the defendant Edith Wagner, how much, if anything, do you allow as punitive damages? None.
“15: On and prior to the time that Lewis Wagner talked with the county attorney on the day that C. E. Kennedy was arrested had he made a reasonable effort to find all the facts in this case? No.
“16: If you answer the foregoing question in the negative, then state what facts he could have learned by a reasonable investigation. The fact that Edith Wagner was not pregnant at the time of the arrest.”
Defendants point out the answers to questions 3 and 4 and argue that these answers constitute a finding that the information that was withheld from the county attorney was a fact that was not material in the criminal case and that this finding should be considered in connection with the undisputed evidence that full disclosure of the facts with reference to the demand for $2,000 was made. In this connection the evidence was that the defendant, Lewis Wagner, called on plaintiff and demanded $2,000 from him because his daughter was pregnant.
Defendants point out the answers to questions 6, 7 and 8. It is argued that these answers are a finding that Wagner and his daughter withheld from counsel the fact that the daughter had missed no menstruation period, and that this is contrary to the evidence.
At the proper stage of the proceedings defendants filed motions to set aside the answers to special questions, for judgment and for a new trial. These motions were all denied, and defendants appeal.
The questions will require an examination of the entire record. The record discloses that Wagner and his daughter called on the county attorney and told him that Kennedy had been having sexual intercourse with the daughter. The county attorney did not testify that Wagner told him anything about his having asked Kennedy to pay him $2,000. So far, that would support the answer of the jury to questions 3 and 4. Before we conclude that the answers to these questions are sufficient to support the judgment we will examine the record as to what was said to the special prosecutor on this subject. The undisputed evidence of Wagner was that he retained a special prosecutor to assist the county attorney in the prosecution and was guided by and relied upon his judgment.
The undisputed testimony of the special counsel was that Wagner told him about the demand he had made on Kennedy for $2,000. The filing of the information upon which Kennedy was actually tried occurred subsequent to the retaining of the special prosecutor by Wagner and the conversation just referred to. Since the undisputed evidence is that at least one of the attorneys who was in charge of the prosecution was told about the demand for money we have concluded that the answers of the jury to questions 3 and 4 are not sufficient to support the judgment. We hold that a reasonable inference may be drawn from the fact that even though Wagner withheld the fact about the demand for money from the county attorney he did not do it from malicious motives since he told his special counsel about it soon after the conference with the county attorney. Our conclusion on this point is strengthened by the fact that the undisputed evidence of the county attorney and the special prosecutor is that both Mr. Wagner and his daughter made frank and truthful answers to all questions that either one of the attorneys asked them.
It is argued that the answers of the jury to questions 6, 7 and 8 are sufficient to support the judgment. These are answers wherein the jury found that Wagner did not tell the special counsel that Edith Wagner had missed no menstruation period. In fact we are not satisfied from the record that she actually had missed none. We have examined the record carefully and have found no evidence that Lewis Wagner knew that Edith had missed no menstruation period. If he did not know that she had missed no period then he was not bound to tell the special prosecutor that she had missed none. Since this is disclosed by the record, we have concluded that answers 6, 7 and 8 are not sufficient to support the judgment.
This court holds that the fact a complaining witness against whom an action has been brought for malicious prosecution truthfully laid before legal counsel all the facts of which he had knowledge and the legal counsel advised the bringing of the prosecution is a defense to the action. (See Rowe v. Glen Elder State Bank, 132 Kan. 709, 297 Pac. 703, and cases there cited.) The defendants in this case did that to the best of their knowledge. In view of the undisputed evidence the motion of defendants for judgment on the special findings notwithstanding the general verdict should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for defendants.
Dawson, J., dissenting.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an award of compensation to Joe Fernandez, an employee of .the Edgar Zinc Company, who was injured in the course of his employment while operating a push car loaded with mineral at a smelter of the zinc company. The car tipped over, pinning him between the car and a wall of the smelter, by which he was seriously injured. The compensation commission awarded him compensation at the rate of $17.75 per week for a period of 415 weeks, less the amount of compensation already paid to him by the defendant. An appeal from the award of the commission was taken by the zinc company to the district court, and that court approved and affirmed the award made by the compensation commission. From that ruling an appeal was taken to this court, but, of course, we are limited to questions of law.
Among other things, the commission made a finding which was approved by the district court, that the left leg of claimant became' two inches shorter than the right leg, and that he is compelled to walk on the toes of his left foot, being unable to place his heel on the ground. Also that:
“The shortening of the claimant’s left leg has directly brought about a tilting of the pelvis which in turn has resulted in a compensatory curvature of the lumbar spine. The claimant has continually comlplained of pain in this region. I am convinced that this curvature is a normal result or sequela of the injury to claimant’s left leg and there is ample medical evidence to substantiate this fact. Evidence was also introduced to the effect that the building up of claimant’s left shoe to accommodate the two-inch shortening of the leg could assist in preventing any further increase of the spine curvature, but at the same time it was stated that even with the shoe built up the claimant would still be incapacitated from performing manual labor.”
It was therefore found that the claimant is totally permanently disabled from performing manual labor as the result of his injuries and that compensation should be awarded to him at the rate of $17.75 per week for a period of 415 weeks. Compensation was awarded to him on this basis, with a provision that there should be deducted from it the amount already paid as compensation.
One of the defendant’s claims of error is that the compensation of the workman should have been computed upon the theory of its being a scheduled injury, namely, the loss of the leg, instead of for total permanent disability. The contention is that the injury suffered is to the leg alone and therefore should be regarded as a scheduled injury.
There is testimony to which the commissioner and the district court gave credence that other parts of Fernandez’s body were in jured by the accident and altogether constituted total permanent disability. In the hearing before the commissioner there was medical testimony to the effect that an examination disclosed that the injury was confined to the leg, but there was other evidence that the back and spine, as well as his buttocks, were injured. For instance, one witness who testified at the hearing before the commissioner, stripped the workman of clothing and examined him unclad before the commissioner, and the witness stated: That he found large scars on his thigh and other such scars on the buttock muscle up near the sacrum. That the buttock muscle near the spine and sacrum was a trunk injury rather than one to the leg. That the appellee has curvature of the spine. That the leg and trunk has atrophied and lost the power to function. That the atrophy of the buttock muscle is observed without the use of X-rays and can be seen at a distance of from three to ten feet by ordinary observation. He testified that the buttock muscle, the maximus, is part of the pelvic attachment, and that its purpose is to lift and sway-the trunk of the body. That the disability to appellee resulting from the injury is that he is unable to bend forward, and that the atrophy will continue to increase. The attachment mentioned, he says, is just as essential to the human body as the attachment to the leg. The evidence is abundant to show that the injury was not to the leg alone and that it warranted the finding of total permanent disability of sixty per cent.
The questions open to review in the appeal to this court are limited to those of law. On questions of fact determined by the district court, its findings are controlling in this court, if there is evidence to sustain them. We have seen that there is evidence from which a reasonable inference may be drawn that lends support to the findings of the trial court. When that appears it practically closes the controversy and ends our jurisdiction. As said in Shay v. Hill, 133 Kan. 157, syl. ¶ 1, 299 Pac. 263:
. . This court may not review the evidence as the district court did, . . . The function of this court is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.”
Our conclusion is that the judgment of the district court must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Al F. Williams, attorney, against M. W. Cave, to recover for his services as an attorney rendered in a prosecution against Cave, brought in the federal court of Colorado, under an employment by Cave. The plaintiff recovered a judgment for $6,000, and defendant appeals.
After the appeal was perfected M. W. Cave died, and the proceedings were revived in the name of Louise L. Cave, the duly appointed administratrix of his estate.
The main contention of the defendant is that the employment of Williams and the services rendered by him were contrary to public policy, and that by reason thereof Williams is not entitled to recover anything.
The plaintiff’s petition relates that Williams is a lawyer and has been engaged in the continuous practice of the law in this region for about thirty-four years. During that time, and in 1921, he was appointed United States district attorney for Kansas, and occupied that position for a period of about nine years, and has had a large practice in the federal courts in both civil and criminal cases. Cave, the defendant, was the president of the Bankers Mortgage Company, a corporation having resources in excess of $3,000,000, doing business in Kansas, Colorado and other states, and that he was drawing a salary of $18,000 and receiving dividends and profits approximating $30,000 per year. It is alleged that Cave and other officers of the Bankers Mortgage Company were indicted by the United States grand jury sitting in Denver, Colo. They were charged with using the United States mails in furtherance of a scheme to defraud certain named individuals. After the arrest of Cave and his fellow officers, they gave bond for their appearance for trial and employed attorneys other than the plaintiff to defend and protect them in the prosecution. Cave desired a personal attorney to represent him, separate and apart from other attorneys, and employed the plaintiff on May 29, 1930, with no agreement as to fees and charges for plaintiff’s services. Plaintiff immediately began work on the case, giving it much time and study examining pleadings, documents and acquainting himself with the facts of the case, holding conferences with his client and other attorneys until the case was finally disposed of. In that capacity he made two trips to Colorado, two to Chicago, 111., and also two trips to Washington, D. C., where conferences were held with the United States district attorney of Colorado, and his assistants, with the chief and subordinate inspectors of the post-office department. Some of the conferences were held to demonstrate to the prosecuting officers that Cave was innocent of the offense charged against him, and that a prosecution of him was not justified or could succeed. As a result of the efforts mentioned, it is alleged that the United States district attorney for Colorado and the post-office inspection department finally joined in a request to the attorney-general of the United States to authorize the dismissal of the prosecution. That authority was given several months later, and on the motion of the prosecution the United States district court dismissed the prosecution and released the bonds given by the defendant, and no further action has been taken in the matter. At the conclusion the plaintiff demanded a fee of $10,000 for his services, which is alleged to be a reasonable fee, on which Cave had paid but $1,500 and had refused to pay the balance'.
The defendant filed an answer admitting the employment of plaintiff as his personal attorney, and further that as the result of the services of plaintiff and other attorneys the case was dismissed as alleged and defendant was cleared of the charges against him. All allegations of the plaintiff, except what was expressly admitted, were denied. Then he added that he had an agreement with plaintiff that the fee for the services of plaintiff should be $2,500, of which he had paid $1,500, and further alleged that the amount due plaintiff was $1,000, which he stated he had tendered to plaintiff and stood ready to pay the same, and offered to allow judgment against him for that amount.
A trial was had with a jury and, as we have seen, a verdict was returned in favor of the plaintiff awarding him $6,000, for which judgment was rendered.
Errors are assigned for overruling motions of defendant for judgment on the opening statement of plaintiff, for overruling the demurrer to plaintiff’s evidence, for denying judgment for defendant notwithstanding the verdict, and for overruling a motion for a new trial. The motion for judgment on the opening statement is not seriously pressed and is without merit.
All the other complaints center on and revolve around the contention that the services performed by plaintiff, or a part of them, were for securing the dismissal of the prosecution, and that such service is contrary to public policy and does not warrant a recovery. Counsel for defendant states that: “We do not suggest for one minute that appellee was in any way guilty of corruption according to the ordinary definition of that term,” but they do claim that the dismissal of a prosecution on an indictment found has an evil tendency and should be declared void even if the attorney employed believed the person to be innocent or that a prosecution must necessarily fail for lack of evidence.
Defendant calls attention to many authorities to the effect that a contract to influence the action of a grand jury, to prevent indictments, to stifle the investigation of a crime committed or to prevent the orderly inquiry into the alleged commission of a public offense, are void, and that the law frowns on any attempt to suppress investigation and that a recovery should not be had on such undertakings, citing 6 R. C. L. 758, Weber v. Shay, 37 L. R. A. 230, and other similar authorities. There was no contract that plaintiff was to use his personal or political influence with the officers to prevent investigation of the offense charged, or to do anything outside of his professional duty and function as an attorney for the defense of the defendant. If an agreement had been made stipulating for secret and improper tampering with official action, as in this case, with the department of justice or any member of it, which would have a tendency to mislead or corrupt the officers, it would have come within the authorities mentioned and within the contemplation of the law, and necessarily would be declared void. There is nothing, however, in the evidence showing that the employment of plaintiff, either in terms or by implication, contemplated that plaintiff was to use personal or political influence to defeat the prosecution or prevent a full investigation of the charge by prosecuting officers. There were conferences with officers, including a final one with the United States attorney-general at Washington, where a hearing, quite public in character, was had, there being present the United States district attorney for Colorado, the post-office inspector, three assistant attorneys-general, as well as counsel representing the defendant. There the whole matter relating to whether, under the facts, a prosecution was justified, and whether or not it should be discontinued, was discussed and considered. The hearing and discussion before the attorney-general lasted, it appears, about two hours, and instead of being a secret one, it was open and was participated in by the representatives and investigators of the United States, as well as the representatives of Cave and other attorneys for the defense. It was almost as public and formal as a hearing before a court.
The employment was a general one to defend and care for the rights of the defendant in the prosecution. There was no mention made of methods, procedure or compensation. The plaintiff proceeded to inquire into the facts involved and to prepare for the defense. In his investigation he determined that the facts did not warrant the prosecution, and his views were presented to the prosecuting officer. After conference with these officers, the whole matter was brought up for the consideration of the attorney-general of the United States and his assistants, where a full inquisition and hearing was had by the representatives of the accused and the accusers in January, 1931. No decision was then reached, but it was kept open for investigation and consideration until April, 1931, when a decision was rendered by the attorney-general directing that the prosecution should be dismissed, and a judgment of dismissal was accordingly rendered.
The action of the plaintiff in presenting the matter to the attorney-general was not immoral or contrary to public policy, unless the order of dismissal directed by the attorney-general was itself beyond the power of the attorney-general and unwarranted. It cannot be and is not contended that the attorney-general was deceived by the presentation, nor that he was unduly influenced by the representatives of the plaintiff. Nor is it open to controversy that the attorney-general has power to-direct the dismissal of prosecutions which, upon investigation of the facts, convinces him that a continuance of the same is not warranted.
In regard to a dismissal or a nolle prosequi by the attorney-general, or chief prosecuting officer, it was said by Chief Justice Shaw in Commonwealth v. Tuck, 20 Pick. 356:
“There are three periods of the prosecution in which a nolle prosequi may be entered — before a jury is empanelled, while the case is before the jury, and after verdict. In the first it is perfectly clear that a nolle prosequi may be entered at the pleasure of the prosecuting officer. Such is the constant practice. It may be that the indictment is defective and he may wish to procure another. He may discover that the evidence will turn out different from what he expected, and he may wish to vary the charge to make it conform to the proof, or he may have good reasons for not wishing to prosecute at all. There may be innumerable causes for discontinuing the prosecution, of all of which he must judge upon his official responsibility. In many cases the discontinuance may operate to the prejudice of the defendant, but never to the injury of his legal rights. It is not to be presumed that this officer will violate his duty or act oppressively.” (p. 365.)
In this state it has been held that the prosecuting officer has supervisory power and control in the prosecution of criminal cases, and that control “involves the power to determine when and before what tribunal it shall be brought and maintained, and therefore whether it should be discontinued.” (Foley v. Ham, 102 Kan. 66, 169 Pac. 183.)
In State v. Finch, 128 Kan. 665, 280 Pac. 910, a controversy arose as to the control of a prosecution by the attorney-general of the state, and it was determined that as he was the head of the department he had authority to dismiss a case notwithstanding a contention to the contrary by the county attorney. Being the chief law officer of the state, he is entitled both under the common law and the statute to make any disposition of the state's litigation that he deems for its best interests and may abandon, discontinue or dismiss it.
In State v. Zier, 138 Kan. 235, 25 P. 2d 583, the Foley and Finch cases were approved and followed.
The attorney-general is the head of the department of justice and has full control of prosecutions in criminal cases. -‘There is a rule of the department pertaining to dismissing criminal cases that—
“No dismissal of any case shall be made by you until after you transmit application for authority to this department and have received from this department such authority. In cases of exigency where it is deemed necessary to dismiss immediately a prosecution or any count in an indictment, and there is not opportunity to obtain authority from the department, proper report should be made promptly to this department of the action taken and the reasons therefor.” (Instructions to United States District Attorneys, October 1, 1929, p. 194, ¶ 1137.)
In the exercise of this control and upon the evidence furnished by the investigators and others, the direction was given. It not infrequently happens that prosecutions are instituted on limited or incorrect information, and upon closer investigation of the facts it is found that the prosecution is not justified and that it cannot be successfully maintained. In such cases the attorney-general has the power and it would be his duty to discontinue the prosecution. There is nothing to impeach the good faith of the action taken by him in the present case. He having acted within his authority and in consonance with his judgment of the facts, it cannot be held that the direction was not properly made.
The plaintiff, in calling the attention of the attorney-general to the facts and in aiding to present them to the attorney-general, cannot under the evidence be held to have tampered with official action, to have stifled investigation or exerted undue influence upon the attorney-general which would defeat a recovery for compensation under the employment. In support of our views we cite: Houlton v, Nichol, 93 Wis. 393; Rogers v. Hill, 22 R. I. 496; Annotation on the subject in 46 A. L. R. 201, 214, and numerous other cases there cited.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This is an action for the value of real estate taken by a city under its power of eminent domain. Judgment was for defendant. Plaintiff appeals.
The real estate involved consists of a number of lots on the north bank of the Kansas river in Topeka. The flood of 1903 swept the buildings from this land, and after the flood it appears to have been regarded as waste land, except for occasional farming operations which will be noted. In March, 1926, the city decided to use this land as a location for a sewage-disposal plant. Accordingly condemnation proceedings were commenced. The ordinance was published, appraisers appointed, and their report was made and duly filed with the city clerk and by him certified to the city treasurer. The record is not clear as to whether the amount of the award was certified on the copy of the report by the city treasurer, and as to whether the amount of the award was deposited with the city treasurer for payment to the owners of land where the names of the owners or ownership was unknown, uncertain or disputed.
In August, 1926, the city took possession of the land and put it to the use for which it was condemned, by commencing the construction of its sewage-disposal plant. The plant has since been completed and is now in operation.
This action on behalf of plaintiff is based upon two claims of title.
First, it is alleged that shortly after the flood certain parties entered into possession of the lots in question and continued in actual, visible, exclusive, hostile and adverse possession of them for more than fifteen years by means of farming operations. Plaintiff then alleges that on July 10, 1928, this person conveyed the lots in question to plaintiff by a quitclaim deed. The allegations of the petition with reference to the possession of the grantor in these quitclaim deeds were denied by defendant. Trial was had to the court on this issue. No special findings of fact were made by the trial court, but a general finding was made for the defendant and against the plaintiff. This constitutes a finding by the court favorable to defendant on any question of fact that was properly put in issue. (Hoover v. Hoover’s Estate, 104 Kan. 635, 180 Pac. 275.) The evidence on which the judgment was based was conflicting. This court will not disturb a judgment of a trial court which has been reached by weighing conflicting evidence. This disposes of the claim of plaintiff that he has a right to the condemnation award by reason of quitclaim deeds from parties who claimed to hold by adverse possession.
The second claim of plaintiff is based on tax deeds. The petition alleged that on January 16, 1929, plaintiff acquired tax deeds to the lots in question and these tax deeds entitled plaintiff to the condemnation award. It will be noted that the tax deeds were acquired by plaintiff two years and six months after the city entered into possession of the lots. Plaintiff argues that the evidence shows the amount of award made by the appraisers was not certified on the report when it was filed by the city treasurer with the register of deeds of the county, and that the amount of the award was not set aside by the city treasurer. He argues from this that the proceedings by which the city sought to get the right to possession of the lots were incomplete, and the city has no title though it had been in actual possession of the lots for nearly three years before plaintiff acquired his tax deeds.
The argument of plaintiff might be good if he had held fee-simple title to the land at the time of the taking and was attacking the right of the city to possession of the land because of irregularity or insufficiency in the condemnation proceedings. The question here, however, is one where a stranger to the title at the time the condemnation was had and the city took possession is questioning the regularity of the proceedings and attempting to recover condemnation award by means of tax deeds acquired after the city had taken possession.
The rule is laid down in 20 C. J. 847 as follows:
“Compensation in general must be paid to the person who owned the property at the time it was taken or injured, or to one who, prior to the making of the award, has taken a valid assignment thereof from the owner.”
In 2 Nichols on Eminent Domain, 2d ed., p. 1151, § 439, the rule is stated:
“It is well settled that when there is a taking of property by eminent domain in compliance with law, it is the owner of the property at the time of the taking who is entitled to the compensation which the law provides and, consequently, if the parcel of land from which the taking is made changes hands after the taking has occurred but before the compensation has been paid, the right to receive the compensation does not run with the land, but remains a personal claim in the hands of the person who was owner at the time of the taking or of his representatives.”
This is the reasoning behind the decision of this court in the case of Piper v. U. P. Railway Co., 14 Kan. 568. There it was held that where the judgment .of a court in a condemnation proceeding was that the railway company should pay certain money and make certain improvements the obligation to make the improvements did not run with the land but was an obligation to the person who owned the land at the time it was taken.
In this case the plaintiff was not entitled to be paid anything at the time the land was taken. He was not the owner and had no interest. As far as the question we are now considering is concerned plaintiff is not claiming under a conveyance from any one who was entitled to the compensation at the time the land was taken. In that respect he does not have as much right to the amount of the award as the plaintiff in the Piper case had to the improvements.
The judgment of the trial court is therefore affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The appellant’s abstract contained a statement that within the statutory length of time notice of appeal was served. This statement was not challenged and the appeal was disposed of on the ruling of the lower court on the demurrer to the plaintiff’s evidence. Appellee’s petition for rehearing directs our attention to the fact that the notice of appeal was served more than six months after all rulings complained of, except on the motion for a new trial, and in part recites:
“This matter should have been directed to the attention of the court in our original brief, but it escaped our notice, and we now challenge the court’s attention to it, we think, properly, in this petition for a rehearing.”
With reference to the jurisdiction of this court on appeal, it was said in Tucker v. Tucker, 97 Kan. 61, 62, 154 Pac. 269:
“This jurisdiction is vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither does failure to raise the question relieve us of the duty to decline, even of our own motion, the exercise of jurisdiction which we do not possess.” (Citing cases.)
An examination of the record, as amplified by the petition for rehearing, satisfies us that the appeal was disposed of by consideration of a matter not property before us. The only question raised by the appeal was the correctness of the court’s ruling on the motion for a new trial.
The matter has been reconsidered. Two of the grounds of the motion for a new trial were: (4) Erroneous instructions of the court given to the jury, and (12) the court erred in overruling defendant’s demurrer to the evidence. It clearly appears from the instructions that the case was determined on an interpretation of the statute that the minor’s engaging in business was the test, rather than that defendant was a minor and plaintiff knew it when it dealt with him. The ruling on the demurrer was discussed in our former opinion. For reasons set out in that opinion, and which it is not necessary to repeat here, the court’s instructions were erroneous, as was its ruling on the demurrer to the evidence, and therefore the ruling on the motion for a new trial was erroneous. Ordinarily, such an error would necessitate remanding the cause for a new trial. If such a new trial were had, however, we are satisfied from the record that nothing further could be shown affecting the defendant’s liability (Manufacturing Co. v. Porter, 103 Kan. 84, 88, 172 Pac. 1018), and that justice requires that the cause be remanded with instructions that judgment be rendered in favor of the defendant (R. S. 60-3317), and it is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of partition, brought by Zula M. Zeigler against J. Shannon Nave and others, for the partition of real estate in which she and the defendants had interests. A decree of partition was entered, and the ownership of plaintiff, which was in dispute, was determined, and her title to that interest was quieted. The defendants appeal.
There was no controversy by the owners as to partition of the property, but defendants contested the plaintiff’s title and right to share in the same, contending that the conveyance to her by William Zeigler was in fraud of his creditors and claiming, too, that William Zeigler, the father of plaintiff, who conveyed property to her, was insolvent when it was conveyed, that the transfer was without substantial consideration, and that both father and daughter knew of the insolvency, and the transfer was made for the purpose of defrauding creditors of William Zeigler. Upon the testimony the court found that the transfer was free from fraud, was made in good faith and for a valuable consideration. The findings of fact and conclusions of law made by the court follow:
“Findings of Fact
“1. This action is brought by Zula M. Zeigler to partition three tracts of land located in Wichita, Kansas. Record title to tracts one and three as described in plaintiff’s petition prior to the deed to Zula M. Zeigler, which is questioned, stood as follows: An undivided one-half (½) in J. Shannon Nave, an undivided three-eighths (⅜) in William Zeigler, and an undivided one-eighth (⅛) in Charles W. Zeigler; likewise, record title to tract No. two stood; an undivided three-fourths (¾) in William Zeigler and an undivided one-fourth (¼) in Charles W. Zeigler. The undivided one-fourth in tracts Nos. one and three and an undivided one-half in tract two comes through the estate of T. Reid Zeigler.
“2. August 30, 1930, William Zeigler, a widower, deeded to his daughter, Zula M. Zeigler, for a consideration of ‘one dollar and other valuable consideration’ all his right, title and interest in the three described properties, subject to existing mortgages of record. It is this deed around which centers the principal contest of this case.
“3. A valuable consideration was paid by Zula M. Zeigler for the interest of her father in the property in question. This included considerable money which she had advanced in the past for nurse and medical bills of various kinds, living expenses and similar items; also the assumption of past and future attorney fees caused by much litigation concerning the various properties and interests; also an agreement to care for and support her father during the remainder of his life, which she has, since the execution of said deed, been doing.
“4. At the time of the conveyance to his daughter the father owned other property, including an undivided one-third (⅓) interest in 480 acres of land near Attica, Indiana, of a total value in excess of $36,000. He also had an undivided one-fifth (⅕) through the T. Reid Zeigler estate in 140 acres of land in the city limits of Indianapolis, Indiana, of the value of approximately $50,000 to $55,000 in 1930, upon which was a $9,000 mortgage. Also an interest in the remainder of the T. Reid Zeigler estate and other interests, including a one-half (½) of 1,100 acres in Dakota. At the time any obligations upon which he was liable or might become liable were provided for, and neither he nor his daughter had reason to believe that the transfer of the property would be detrimental to the claims of any person. . . .
“5. There are mortgages of record against the properties in question. Also judgment in foreclosure and sale in case 68,226. Since the deed to the plaintiff herein and since the sale in ease No. 68,226, trustees have been compelled to pay taxes, for which they should have a lien against the respective interests in the property.”
“Conclusions of Law
“1. The plaintiff, Zula M. Zeigler, is the legal owner of the undivided interests in the properties described as conveyed to her by her father in August, 1930; and the remaining undivided interests in the properties are as above set out.
“2. Title should be quieted in plaintiff, subject to the mortgage and liens, as stated.
“3. Partition of the property should be made accordingly and commissioners appointed to make the same, if the same can be done without manifest injury, and if not, then this action should proceed as provided by law.”
Around the question of fact as to validity of the transfer to plaintiff the trial of the case centered. A large number of transactions were involved, as to property and securities in which William Zeigler had a part, with relatives and others in Indiana, Kansas and other states. Among these were bonds upon which judgments had been rendered and credits made thereon; obligations secured by mortgages which were foreclosed and foreclosure sales made, the proceeds to be credited on the mortgage debt; certain obligations upon which judgment was rendered in Indiana were sued on in Kansas and credits thereon claimed. Many of the obligations involved, in fact, most of them, had been signed by Zeigler as surety and on which he had only a secondary liability. Some of these had been subsequently paid in whole or in part by principals and those primarily liable, and when the transfer was made by William Zeigler to the plaintiff he had property of considerable value. As has been stated, he had one-third interest in a tract of land near Attica, Ind., the-entire value of which being $36,000; a one-fifth interest in another tract near Indianapolis, Ind., worth $50,000; also an interest in another estate in Indiana, value not given, and a one-half interest in 1,100 acres of land in Dakota, value not shown. He appears to have been a man of business activity, had had a part in many transactions in which property and securities were transferred and obligations assumed, most of which was as surety for relatives and associates.
In an effort by defendants to show his insolvency and bad faith in the transfer made to plaintiff, all these obligations were added together by the defendants and most of them without giving credits that should be given. The record discloses the numerous separate transactions, each with details and angles of its own, including accounting and payments made, foreclosure of mortgages and mortgage sales, all set out with much detail, and too numerous to be set out at length in an opinion. No good purpose would be served by a detailed recital of the multiplicity of transactions which the record contains and upon which the court held that William Zeigler was not insolvent when the transfer in question to plaintiff was made and, further, that it was not made in bad faith. It is enough t.o say that we have examined the evidence and that; in our judgment, it is amply sufficient to warrant the finding and conclusion of the trial court.
It may be said that all the obligations as originally given by Zeigler, added up without due credits, made a formidable amount, but when proper credits were given a different situation is revealed. There were credits about which there was no dispute and some others, questioned by defendants, to which plaintiff was entitled.
As to a surety, the law is that a payment by a principal which satisfies the obligation, in whole or in part, discharges the debt to the extent of the payment and necessarily discharges the surety to the same extent. Where judgment is rendered against a principal and surety, it is required that the execution shall first go against the property of the principal, and the statute further provides that:
“In all oases, the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of. the property of the surety or bail shall be taken in execution.” (R. S. 60-3427.)
The statute further provides that a surety may maintain an action to compel the principal to discharge the debt and, independent of the statute, a right exists in equity to compel a principal to discharge a debt that is due. (Grocer Co. v. Brand, 79 Kan. 340, 99 Pac. 592.) William Zeigler, as surety, was certainly entitled to credits where payments had been made and obligations discharged by the primary obligors. He was also entitled to credits in foreclosure sales to the extent of the proceeds of such sales. The evidence, we think, sufficiently supports the finding of the court that he had means to meet his obligations, was not in fact insolvent, and that neither Zeigler “nor his daughter had reason to believe that the transfer of the property would be detrimental to the claim of anyone.”
Whether the conveyance was in fraud of creditors was a question of fact for the trial court. Fraud is not presumed, and where it is charged, the burden is on him who asserts it. (Baughman v. Penn, 33 Kan. 504, 6 Pac. 890; Hartman v. Hosmer, 65 Kan. 595, 70 Pac. 598; Knox v. Farguson, 97 Kan. 487, 155 Pac. 929.)
There was no lack of consideration for the transfer. Zeigler, it appears, was over seventy years of age, had been an invalid for some time, and his wife had died about a year before. The daughter undertook to care for him, and it appears she had advanced money to pay nurse and medical bills as well as living expenses. She had also advanced money for attorneys’ fees in the litigation which arose concerning the various properties and interests of her father and had entered into the agreement to care for and support her father during the remainder of his life, and this she has done since the execution of the deed.
Our conclusion is that a correct result was reached by the trial court and its judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs, Paul H. Ditzen and Georgia Ditzen, are the owners of lots with a large frontage on Armstrong avenue, in Kansas City, which, as dedicated, was eighty feet wide. Between the curb of the pavement on that street and the sidewalk at the property line is a park on the side of the street where a number of large shade trees had been planted and cultivated by the owners of the property. The street had been originally paved with brick to a width of thirty feet, which had become defective, and the city determined upon a plan to improve that street by placing over the old pavement an asphalt covering, and also to widen the street by cutting five feet into the park on each side of the street. In carrying out this plan of widening, the city cut into the park in front of plaintiffs’ property and destroyed several shade trees, which were found to be of the value of $390. After the plaintiffs and others had claimed compensation for destruction of the trees, and plaintiffs had filed a statement against the city, the plaintiffs and the city agreed to have the damages for the destruction fixed by three appraisers. Under the agreement three appraisers were selected and they appraised the plaintiffs’ damages for the loss at $390, but the city failed and refused to pay for the same.
The city admits that three appraisers were named who were competent to appraise the yalue of growing trees and had found the value of the trees to be as stated, but it denies that it is under any legal liability to pay for the same, and also that the plaintiffs had joined in a petition to the city to have the street improved.
When the matter came up for trial in the district court and the opening statements made, the court determined that there was only a question of law involved, and on motion for judgment on the pleadings, judgment was rendered for the $390, which, with the interest thereon, amounted to $438.75. An appeal was taken from that judgment, but no transcript was obtained or abstract made at once, and the appeal slept for some time in the supreme court. Although an appeal had been taken by the city, the judgment was treated as a finality by plaintiffs and it was filed with the city commission and the city disallowed the claim. They ask that the judgment be either paid or that bonds be issued in payment of the same under House bill No. 745, passed by the legislature in 1933. The court held that the judgment had become a finality, binding upon the city either to pay the judgment or issue bonds in pursuance of the new law.
An appeal by the city from that ruling on the merits is the same under both cases, and is confined largely to the last case, No. 31,546. Both raise the question as to the liability of the city for shade trees that have been injured or destroyed at the instance of the city, one side contending that the trees are the property of the adjoining owner and that the city is liable for the loss, the other insisting that it is a part of the highway and that "it" was within the power of the city to widen the street and anything done in pursuance of that power cannot create a liability against the city.
The appeal in the first case was taken when the city filed its notice with the clerk of the trial court of its purpose to appeal from the judgment rendered in that court-. The fact that the clerk of that court failed to transmit the same to the supreme court did not operate to nullify the appeal. Plaintiffs really had notice of the appeal and could have taken steps to prepare the case for submission or to have it dismissed. (Thisler v. Little, 86 Kan. 787, 121 Pac. 1123.) No such steps were taken for some time, and the case was still pending on appeal when the cash-basis law was .enacted. The city, as we have seen, treated the former judgment as- a finality, and the court made an order requiring the city to pay the same.: or to issue bonds and from the proceeds of the same pay the judgment. An appeal was taken by the city from that judgment and the two appeals are here and were consolidated and heard together.
The question is: Does the city, which determines to widen its pavement five feet on each side, and in doing so finds it necessary to remove shade trees in which the plaintiffs have an interest, become liable to the lot owner for the value of the trees removed by it? The full width of the street as originally dedicated was eighty feet. It was dedicated for highway purposes, and, although the title to streets is placed elsewhere, the control of the streets is vested in the governing body of the city. Because of an increase of traffic and of a petition presented by the citizens of the community, the street was widened to the extent of ten feet, five feet on each side of the present pavement. In widening the pavement it became necessary to remove the trees in question. There is no claim that the city commission acted wantonly in removing the trees. No claim that the improvement could be made without their removal, and it appears that even the plaintiffs petitioned for the improvement that was made. It is not contended that the improvement could have been made without the removal of the trees, but the only claim is that the city should pay for property of which it had full control when used for highway purposes.
The interest which a lot owner has in trees growing in front of his lots, which he may have planted, cultivated and bared for many years, is recognized. (Heller v. City of Garden City, 58 Kan. 263, 48 Pac. 841; Remington v. Walthall, 82 Kan. 234, 108 Pac. 112.) It is also provided that he may recover against parties who injure or destroy such trees, but they are to be under the reasonable supervision of the city, which has the superior right when it comes to using the streets for public purposes. (R. S. 12-1611.) For instance, there is the case of City of Paola v. Wentz, 79 Kan. 148, 98 Pac. 775, where it was alleged that the city authorities persisted in cutting down trees without reason and in the exercise of its absolute power to conclude to remove trees without having to give reason for doing so. This, it was held, would be carrying the principle of plenary control of public grounds and power too far, but in the decision it was remarked that:
“In either case the property owner has interests which cannot be disregarded, but which must yield if found to conflict with the interests of the community.” (p. 151.)
And further along in the opinion it was said that his interest is—
“Subject only to the superior claims of the public, as determined perhaps by the city authorities, but this determination must be the result of a fair and reasonable consideration — it may not be arbitrary or capricious.” (p. 153.)
See, also, Remington v. Walthall, supra.
Here there was no question as to the right of the city to remove the trees in order that the improvement might be made, an improvement for which the ground had been dedicated and which plaintiff had asked to have made. One who plants and cultivates trees on the street where it may be found necessary to widen and improve the street knows of the superior right of the city to widen the street as the traffic increases, and is not in a position to complain if the city uses that which has been dedicated for its use when it becomes necessary without paying for it. It is seen that-the city had the superior right, for the interest of the lot owner must yield where it conflicts with that of the community, and further, that it must yield as far as the rights of the public are concerned. In 5 McQuillin on Municipal Corporations (2d ed., § 2149), in treating of the subject of shade trees, it is said:
“The owner may recover damages for the unnecessary injury or destruction of shade trees along the sidewalk caused by a change of street grade or the construction of a sewer. But where the trees are within the lines of the street or sidewalk on which grading is done, the municipality is not liable to abutting owner, should their destruction become necessary in the proper execution of the work.”
In Kemp v. City of Des Moines, 125 Ia. 640, 644, the subject was before the court, and after a statement that the lot owner has a property interest in the shade trees standing in the street in front of his lot, and if they are so located as not to be an obstruction to the proper use of the roadway or sidewalk, the city may not arbitrarily destroy or remove them, it was said:
“If, however, the city duly adopts a plan for the improvement of the street by grading or otherwise, and the execution of such plan necessarily requires the destruction of the trees, their removal in the prosecution of such work affords no cause of action to the lot owner.” (p. 644.)
In Neil v. City of Glendale, 106 Cal. App. 553, 562, the same doctrine was announced:
“The right of a municipality to remove shade trees in public streets, when necessary for the improvement of said streets, and without liability to an abutting owner, is not open to question.” (Citing Vanderhurst v. Tholcke, 113 Cal. 147; 35 A. L. R. 267; 44 C. J. 923.)
The same doctrine is announced in Scott v. Marshall, 110 Mo. App. 178; Colston v. St. Joseph, 106 Mo. App. 714; Chase and another, v. The City of Oshkosh, 81 Wis. 313; Wilson v. Simmons, 89 Me. 242; Frostburg v. Wineland, 98 Md. 239; Landry v. City of Lake Charles, 125 La. 210.
The authorities, of which only a few have been cited, are well-nigh unanimous on the question that a city is not liable to a lot owner for shade trees cut down by the city in a street where it is necessary to an improvement and where it is stripped of any question as to the necessity of their removal. Plaintiffs were not entitled to judgment against Kansas City in the first appeal, and, of course, were not entitled to judgment in the second appeal. Both judgments are reversed, and the cases remanded with directions to enter judgment in each case for Kansas City.
Hutchison, J., not sitting. | [
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The opinion of the court.was delivered by
Smith, J.:
This was an action for damages sustained by plaintiff in a collision between an automobile in which plaintiff was riding and a truck alleged to have been driven by an employee of defendants. A motion to strike certain matter from the petition was sustained. From that order plaintiff appeals.
The petition of plaintiff alleged the incorporation of the defendants, and that one of them operated a coal mine in Oklahoma and the other was doing business in Kansas and Oklahoma with offices in Pittsburg, Kan. It alleged further that one Henry Land was the driver of a truck and was employed by defendants in hauling coal from the mine of defendants, and that during all the time mentioned he was subject to the orders and was under the control of defendants; that the route traveled by Land was from the mines operated by defendants to the tracks of the St. Louis-San Francisco Railway Company, and that this route intersected U. S. highway No. 66. There then followed a careful description of the location of the mine, the tracks and the roads.
The petition then alleged that on a certain day plaintiff was traveling from south to north along highway No. 66, in the rear seat of an automobile, at about thirty miles an hour; that when the automobile in which plaintiff was riding reached a point where the road upon which Land was hauling coal intersected highway No. 66 Land drove his truck in a negligent manner upon the highway and ran it, with great force and violence, into the car in which plaintiff was riding.
The petition then contained the following allegation:
“. . . and at said time was the main-traveled highway, carrying -heavy traffic between many cities stretching across the United States, among these being Joplin, Chelsea and Tulsa; said highway being commonly known and recently referred to by the supreme court of Oklahoma as ‘the main street of America.’ ”
The petition then alleged that Henry Land was a reckless driver and was not a fit person to be intrusted with a truck, and that all of this was known by defendants; that defendants failed to cause the truck to be fitted with suitable brakes, and that Henry Land failed to retard the speed of the truck before entering upon the highway. The petition then contained the following language:
“Although said defendants and each of them knew, or should have known, that under the rules of the road and of the laws of the state of Oklahoma, said Henry Land should have caused his truck to stop before entering upon said intersection and should have given the right of way to the said car in which this plaintiff was riding.”
The petition then alleged that by retarding the speed of the truck he could, by the use of ordinary care, have prevented the injuries sustained by plaintiff; and that the defendants and Land saw the approach of the automobile in which plaintiff was riding and nevertheless drove the truck negligently upon the highway and against the automobile; that the driver of the automobile gave timely notice to Land, but. Land nevertheless drove his car negligently upon the highway and against the automobile, and as a result of the negligence of Land the automobile was forced off the road and into a ditch and against a pole with the result that the automobile was demolished and plaintiff was injured. The petition then alleged that at the time of the collision Land was operating the truck for defendants and in the furtherance of their business and pursuant to the orders of-defendants. The petition then described the injuries sustained by plaintiff. After setting out the injuries of plaintiff the petition contained the following allegation:
“That said collision between said truck and automobile in which plaintiff was riding resulted in consequence of the negligence and carelessness of the said Henry Land while employed by, and working for, said defendants and each of them 'and without any fault on the part of this plaintiff.”
The petition then set out certain statutes of Oklahoma.
Defendants filed a motion to strike the allegations that have been quoted hereinbefore from the petition. That motion was sustained. From the order sustaining that motion this appeal is taken.
The argument of appellee is that the order was not an appealable one, and that the appeal should be dismissed. R. S. 60-3302 is in part as follows:
“The supreme court'may reverse, vacate or modify any of the following orders of the district court or a judge thereof, . . . First — A final order. . . . Third — An order that involves the merits of an action, or some part thereof ...”
This court considered this statute in Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039. In that case the court held:
“An order overruling a motion to strike out parts of an answer, which does not involve the merits nor determine the action, is not appealable, and can only be reviewed in this court after final judgment in the action.”
In Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400, this court held that for an order striking certain matter from a pleading to be appealable it should have the effect of a demurrer. (See, also, Fox v. Ryan, 121 Kan. 172, 246 Pac. 520.)
The matter stricken from the petition was not necessary to the stating of a cause of action. All that was necessary to state a cause of action against defendants was that Land drove the truck negligently; th|t he was driving the truck in the furtherance of the business of defendants and was in the employ of defendants and that the negligence of Land caused the collision and injury. No allegation necessary to state any of these elements was stricken.
We have therefore concluded that the order appealed from was not an appealable one, and the appeal is dismissed.
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The opinion of the^court was delivered by
Hoch, J.:
This appeal is from an order overruling defendant’s demurrer to plaintiff’s evidence in an automobile-collision case and from the judgment for plaintiff. Defendant stood upon the demurrer and offered no evidence. The only question presented is whether under the evidence, plaintiff was guilty of contributory negligence as a matter of law.
On the night of August 21, 1944, Frank Drennan, the appellee, together with his wife, was driving west on a main highway a few miles east of Dodge City. Just after passing a car approaching from the west, the driver of which did not dim the headlights of his car, the appellee ran into a “truck and semitrailer” — hereinafter referred to simply as a truck- — which was standing on the highway headed westward, and in the west-bound traffic lane. Appellee was severely injured and his car was badly damaged. At the time of the accident the truck was being operated as a common carrier under a certificate issued by the State Corporation Commission. The appellant, the Pennsylvania Casualty Company, was a liability insurance carrier for the owner of the truck, and was apparently the only defendant named in the action. No question is raised as to appellee’s right to proceed solely against the insurance carrier.
Appellant invokes and relies wholly upon the general rule frequently and variously stated by this court to the effect .that it is the duty of a driver of an automobile to correlate his speed with his ability to see and to stop; to keep his car under such control that he will be able to stop within the clear distance ahead of him.
Appellee contends that under the facts and circumstances shown, and giving the driver the benefit of inferences favorable to him, the question of whether he was guilty of contributory negligence was one for the jury.
It will suffice to summarize plaintiff’s evidence. Plaintiff was driving a two-seated car, 1941 model, and his wife was with him. He was driving west on a black-top highway, No. 50S, near Dodge City, when the collision occurred. The roadway was dry and “it wasn’t raining.” The highway at that point ran straight east and west, and an approaching car could be seen from a point about a half-mile from the scene of the accident, the lights being visible to both cars the entire distance. Being blinded by the headlights of an approaching car, the plaintiff, by dimming his own lights, “kept calling for dimmers,” but the driver of the approaching car did not put on the dimmers; plaintiff was driving on the north side of the highway and was traveling “between forty-five and fifty miles”; he didn’t know how far away the approaching car with the bright lights was, nor did he know how fast the approaching car was traveling, but he would “judge around the same forty-five or fifty miles an hour” — he didn’t know; plaintiff “started to slow down and did slow down some, I don’t know how much”; plaintiff’s car had good brakes, in good condition; as soon as he passed the other car, he immediately threw on his full lights and then, for the first time, saw the truck ahead of him. , He applied the brakes at once, and turned toward the right, but was unable to avoid a collision with the truck which was loaded with oil-well machinery. The truck was standing squarely in his lane of traffic and there had been no flares anywhere along the highway, and he saw no taillights nor red lights anywhere “on or near the back end of the truck and trailer.” The truck was about forty-five or fifty feet ahead of him when he first saw it, and “from the rear it looked like it was as high as that wall there (indicating) to me, I don’t know how big but it hád two big motors on it, just looked black, that’s the first thing I seen”; at no time had he seen the truck traveling ahead of him, nor did he see it either before or after the approaching car passed it, until he passed the approaching car and put on his full headlights; after the accident, a highway patrolman who visited the scene observed skid marks extending forty feet back from the plaintiff’s car, and testified that all four wheels of the truck were on the “oil travel portion of the highway.”
The general rule is that it is the duty of the driver of an automobile to drive his car as a prudent driver would do and whether he has done so is ordinarily a question of fact to be determined by the jury in the light of all the evidence.
Along with the duty of a driver of a car to keep his car under control and correlate his speed with the clear and unobstructed distance ahead of him are other duties imposed by law which must also be considered. One of these duties imposed by law is the duty of the driver of a truck stalled at night on a highway to place warning flares along the highway (G. S. 1945 Supp., 8-5,108). Not only were there no flares, under the evidence here, but appellee testified that he saw no lights of any sort on the truck, and that the rear end of the truck was large and black in color.
Another fact to be considered is the fact that the appellee slowed his speed to some extent, and that he repeatedly signaled the driver of the approaching car to dim his lights, which he refused or failed to do, in violation of a specific statutory requirement (G. S. 1945 Supp., 8-593). Must we say as a matter of law that a reasonably prudent driver would assume, under the situation disclosed by the evidence, that the approaching lights would not be dimmed before the cars passed each other? Or that he should be required to assume that there might be a truck standing in the highway without lights and with no flares having been placed to warn approaching cars? We do not think so. We are not here saying that appellee was not guilty of contributory negligence. We are only saying that under the circumstances disclosed, it was a question for the jury to decide whether he was driving his car as an ordinarily prudent driver would do.
There is no occasion to review the many cases cited by appellant in which fog, dust-, smoke, snow or rain have completely obliterated all or practically all view of the highway ahead of a driver. The question must be viewed realistically. Every driver of an automobile who has done night-driving knows that he frequently meets cars which fail entirely to dim their lights. Very many of them fail to do so until they are very close. Ordinarily the view ahead is only interrupted for a short period of time by the bright lights of the approaching cars. In the case of Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438, we specifically rejected the contention that it is the absolute duty of an automobile driver who is blinded by bright lights of an approaching automobile to stop (Syl. ¶1). Discussing the question of duty to stop entirely when blinded by bright lights, it was said in the opinion:
“Clearly such a rule should not be applied to a driver who, notwithstanding the blinding lights, could know to a certainty there was no obstruction immediately beyond the point of relief from the dazzling lights. If a vigilant driver, proceeding at a moderate rate of speed, should be reasonably sure he might safely go forward without stopping, he would not necessarily be negligent in doing so. Therefore the question ultimately resolves itself into one of reasonable care under all the circumstances.” (p. 755.)
Furthermore, we have recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead. For instance, if he is confronted with a sudden emergency not of his making — such as the sudden entrance of another car from a side road — it would be wholly unreasonable to say, and we have not said, that negligence is shown, as a matter of law, if he is unable to stop his car in time to avoid a collision. It is perhaps inaccurate to say that such situations constitute exceptions to the rule. It might be more accurate to say that the rule was never intended to apply except to situations which an ordinarily prudent man would or should anticipate. In this class of “exceptions,” so-called, is the case where a driver is suddenly confronted with blinding lights of an approaching car. The inapplicability of the general rule to such a situation was recognized in the recent case of Towell v. Staley, 161 Kan. 127, 166,P. 2d 699, which is closely analogous to the one before us, and in which citations of numerous cases equally pertinent here may be found. In that case there was also a collision with a truck parked on the highway, without lights. Blinded by the lights of another car, the plaintiff did 'not see the truck until he had passed the lights of the other car. Giving the plaintiff the benefit of a favorable interpretation of the evidence, we said: (p. 136.) “The inference in the present case favorable to the plaintiff is that he was only blinded as he passed the bright lights,” and refused to hold him guilty of contributory negligence as a matter of law. This is in line with the sound rule that questions of negligence are ordinarily for the trier of the facts, and that such questions should not be withdrawn from the jury except where the acts of commission or omission have been such that a court can say that it is clear that no man of ordinary prudence would have committed them.under the attendant and undisputed facts and circumstances. Few, if any, rules are more firmly established. American Jurisprudence (Vol. 38, p. 1054) states the rule this way:
“In accord with the general rule governing negligence, the courts can withdraw the question of contributory negligen'ce of the plaintiff from the jury and determine it as a matter of law when the facts are indisputable and the inference therefrom is so certain that all reasonable men in the exercise of a fair and impartial judgment must agree upon it and draw the same conclusion from them.”
In Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193, in which the facts were also analogous to those of the instant case, this court sáid:
“It need hardly be repeated that contributory negligence must be clearly established before that question of fact can properly be withdrawn from the jury. To justify that course in the present case defendant directs attention to the fact that plaintiff was driving at a rate of 30 to 35 miles an hour when he was blinded by the lights of approaching automobiles. He could not see what was ahead of him on his side of the road, so he took a chance that the road was clear. Counsel for defendant concede that if a motorist is suddenly blinded so that he has no opportunity to stop his car or slacken its speed he would not be guilty of negligence' if he collided with something in the road. But here the fact .is stressed that plaintiff was blinded first by the lights of one automobile and then another while he traveled some considerable distance, and even when he did collide with the truck he was, according to his own testimony, still traveling at the rate of 25 mile's an hour. Defendant also directs attention to the fact that the night was misty and the road damp and somewhat slippery. Defendant also cites some of our recent cases not greatly different from this one in which this court held that plaintiff’s own evidence did establish contributory negligence as a matter of law. (Haines v. Carroll, 126 Kan. 408, 267 Pac. 986; Jones v. Atchison, Topeka & Santa Fe Rly. Co., 129 Kan. 314, 282 Pac. 593; Tuer v. Wayland, 129 Kan. 458, 461, 283 Pac. 661.) A majority of this court, however, are of the opinion that under the evidence adduced by plaintiff there is a closer analogy between the present case and those of McCoy v. Pittsburg Boiler & Machine Co., 124 Kan. 414, 261 Pac. 30; Womochil v. List & Clark Construction Co., 135 Kan. 695, 11 P. 2d 731; and Witte v. Hutchins, 135 Kan. 776, 12 P. 2d 724, where it was held that plaintiff’s con- tributary negligence under quite similar circumstances was not so clearly established as to require or justify a ruling which would take the case from the jury.” (p. 862.)
It will be noted that in one respect at least, the facts in the Con-will case were stronger as against the plaintiff than in the case before us. In that case the night was “misty and the road damp and somewhat slippery.” Here the road was dry and there-were no weather conditions to give added peril.
We think that under all the evidence the question, of whether appellee was guilty of contributory negligence barring recovery was for the trier of the facts and that the demurrer was properly overruled.
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The opinion of the court was delivered by
Burch, J.:
When the petitioner, James Willey, in this habeas corpus case was a seventeen-year-old boy, he and another boy were charged with breaking into and entering, in the nighttime, a groceiy store in Pittsburg, Crawford county, Kansas, and with stealing therefrom various articles having an aggregate value of $25.25. The information, in two counts, charged the petitioner with being guilty of burglary in the second degree and of grand larceny. Such information was verified and filed on the 7th day of November, 1940, and on the same day the petitioner pleaded guilty to both crimes. On the next day the petitioner was “sentenced to confinement in the Kansas State Industrial Reformatory until discharged by the board of corrections thereof, and not to exceed the maximum term of imprisonment provided by the statutes of said crime, to wit: ten years, until discharged according to law.” The journal entry covering the proceeding at the time the petitioner entered his plea of guilty sets forth that the state was present by the county attorney and that the petitioner was present only in person. The journal entry recites also that the defendants were formally arraigned and entered a plea of guilty to the crimes and offenses and “Thereupon the defendants . . . were caused to stand before the court and asked by the court whether they had any legal or lawful cause to show why judgment and sentence of the court should not be pronounced against them upon their pleas of guilty herein, and no legal or lawful reason being alleged or shown . . . it is the judgment and sentence of this court that the defendants . . . be confined in the Kansas State Industrial Reformatory . . The journal entry does not disclose that the petitioner was asked whether he desired counsel or that any explanation was made to him as to his rights relative thereto.
The petition for a writ of habeas corpus filed in this case sets , forth that the petitioner was denied his constitutional rights to have the assistance of counsel; that the court did not grant the petitioner the right to consultation of a counselor; that the petitioner did not desire to plead guilty as charged; that he did not waive the right of counsel, either orally or in writing; that he was coerced and intimidated by authorities and was unjustly held incommunicado from the date of his arrest on the 2d of November until the date he was sentenced on the 7th day of November and further that the respondent, who is the warden of the Kansas State Penitentiary at Lansing, has no authority to detain the petitioner in custody because he was sentenced to the reformatory and not to the penitentiary.
The answer of the respondent denies all of the allegations contained in the petition. In support of the answer several affidavits have been filed. One of them is the affidavit of Ben L. Humphreys, who was the county attorney of Crawford county at the time the petitioner pleaded guilty and was sentenced. Such affidavit specifically denies the statements of the petitioner as to his being coerced and intimidated by authorities and held incommunicado and declares that such statements are untrue; that the petitioner was not abused, coerced or threatened in any way for the purpose o£ causing him to plead guilty or to influence him in his actions; that the plea of guilty was made voluntarily and that the petitioner was not induced by any threats or coercion by anyone. Such affidavit concludes by stating that the petitioner “did not at that time express any desire for counsel or intimate by any expression or action that he desired counsel to advise with him or represent him.” In addition, the respondent has filed the affidavit of August Dorchy, who was the sheriff of Crawford county at the time the petitioner was awaiting trial. His affidavit also is to the effect that the' petitioner was not threatened, coerced or influenced by the sheriff or by other officers in any way to plead guilty while the petitioner was in the custody of the sheriff. The contentions of the petitioner as to his being coerced or held incommunicado are not corroborated in any manner and consequently, we have no hesitancy in holding that he has not sustained the burden of proof required to establish that he was coerced into entering his plea or held incommunicado and that his petition cannot be allowed for such reasons. (See Hill v. Hudspeth, 161 Kan. 376,168 P. 2d 922, and cases therein cited.)
Another ground asserted in support of the allowance of the writ relative to the prisoner being confined to the penitentiary rather than in the reformatory to which he was sentenced proves to be without merit. In support of the answer filed by the respondent by the office of the attorney general of the state, the abstract discloses that the petitioner in this case was paroled from the reformatory on Sepember 11, 1943, and on July 22, 1944, was declared delinquent because he had been convicted of another felony in Missouri and sentenced to the Missouri state reformatory and later transferred to the Missouri state penitentiary. From such institution he was given a conditional release on May 22, 1946, and was thereafter delivered to the Kansas state penitentiary. The transfer to the Kansas state penitentiary was made under the authority of G. S. 1935, 76-2314. The statute provides the power under which the transfer can be made and the petitioner has made no showing whatever which would justify our interfering with the action of the State Board of Administration in directing that the petitioner be transferred from the reformatory to the penitentiary. It follows that we cannot allow the writ for the reason last herein discussed.
The foregoing brings us to consideration of the serious question involved in the case: Should this seventeen-year-old boy have been given the benefit of counsel before he was permitted to enter his plea of guilty to the felony charges filed against him? We are not con cerned with the career of crime which the petitioner may have followed since he was first sent to the reformatory by the state o.f Kansas. We are gravely concerned, however, with the perplexing problem presented as to whether a seventeen-year-old boy should be permitted to enter a plea of guilty in a felony case without being required to confer with counsel. Counsel for the respondent call our attention to the fact that at tfre time the proceedings referred to herein occurred, G. S'. 1935, 62-1304, was in effect, and as was said in Hill v. Hudspeth, supra, such statute only required that it was the duty of the court to assign counsel for an accused “at his request.” Such counsel also state that this court has held a recital in a journal entry that an accused was without counsel is not the equivalent of showing that the accused was denied counsel. (Garrison v. Amrine, 155 Kan. 509,126 P. 2d 228.) Respondent’s counsel suggest also that the instant case should be governed by the reasoning followed in Fairce v. Amrine, 154 Kan. 618, 121 P. 2d 256, and Hill v. Hudspeth, supra. In such cases affidavits of the respective judges of the district courts were filed which, in substance, disclosed that it was always the custom of the judges, when an accused was brought into court charged with a felony, to inform the defendant fully of his constitutional rights and ask him if he had a lawyer, and if he had none the defendant was advised of his right to have one and that the court would appoint one for him. An affidavit to such effect was filed in this case by the Honorable L. M. Resler, who was judge of the district court in which the proceedings occurred. The affidavit, in addition to setting forth the foregoing, also states that it was the custom of the court to explain the charge in the information so that the accused would understand it and inform him what the penalty was. The affidavit contained the following statement, “All this (referring to the above custom) was done before defendant was asked to plead and I am positive this procedure was followed in this case.” The assertion by the respondent that we have refused to issue a writ of habeas corpus under similar circumstances in the cited cases is correct. We have, but in none of the cited cases and in none which our research has disclosed, has this court approved the prac- . tice of permitting a seventeen-year-old boy to enter a plea of guilty to a felony without consulting with counsel. We do not question the information contained in the affidavit of the judge. The question still remains undecided, however, whether a court should always require that a seventeen-year-old boy consult with counsel. In justi fication of the action taken in the present case counsel for the respondent have filed a second affidavit of the Honorable L. M. Resler which, in substance, sets forth that upon reflection he recalls and remembers that when the petitioner entered his plea of guilty the father of the petitioner was present in the district courtroom at Pittsburg, Kan., and further that the father was also present when the petitioner was sentenced to the state reformatory. The affidavit continues by stating that “the affiant remembers and recalls that when the affiant left the bench, after the sentence of the said James Willey, that the said Floyd Willey (the father) talked to the affiant in the back of the courtroom about the sentence of James Willey (petitioner). That at no time during said conversation, nor at any other time, did said Floyd Willey, father of said James Willey, ever make any objection to this affiant about the plea or sentence of his son, James Willey.”
The respondent suggests further that the showing' relative to the father having been present mitigates, minimizes and negatives any possible imposition upon the petitioner’s rights which may have arisen by reason of his being only seventeen years old at the time. It is submitted, in behalf of the respondent, that since the petitioner stood before the court, with his father in the courtroom, the father could have counseled with the petitioner and advised him of his rights; that therefore, the petitioner was in effect afforded the benefit of the mental capacities of a mature man and that consequently, there was no actual imposition upon the petitioner’s rights merely because he was young and inexperienced at the time he entered his plea of guilty. There is no showing in this record, however, that the father did confer with .his son about the entering of the plea. The father has filed an affidavit to the effect that he knew nothing about the matter. His affidavit, in part, reads as follows: “Your affiant further states that he was never notified, or informed through any channel that his son, Jamefe Willey, had been arrested, convicted, or committed to the Kansas State Industrial Reformatory until some time after the entire matter had transpired.” If we assume, however, that the father was present at the time his son pleaded guilty and was sentenced, the question still remains unanswered whether the petitioner should have been, required to confer with counsel. In other words, the court is of the opinion that the absence or presence of the petitioner’s father in the courtroom should not, control determination of the proper answer to the question.
When the petitioner, as a boy only seventeen years.of age, stood before the court, under the laws of this state he could not have entered into a valid contract obligating himself; he could not have voted; he could not have married without the consent of a parent; he could not alone, without a guardian or next friend, have been heard to say anything in the courtroom in a civil action which would have been binding upon him. Should we say, in such circumstances, that about the only thing he could have done alone, with legal significance, was to have pleaded guilty to a felony in a court of law? In the case of State v. Oberst, 127 Kan. 412, 273 Pac. 490, we said:
“It is part of our fundamental law that a person on trial for a crime is entitled to the assistance of counsel for his defense (Bill of Rights, § 10). This right is intended to be adequately secure by our penal code (R. S. 62-1804), and the same doctrine is as thoroughly emphasized in our criminal jurisprudence as any one matter treated in the 125 volumes which chronicle the judicial deliberations of this court.” (p. 417.)
From the same opinion the following is quoted:
. . In the case before us the defendant was a seventeen-year-old boy . . . The one thing this youngster needed more than anything else before pleading guilty to such a horrifying accusation was consultation with and the advice of a good lawyer . . .” (p. 419.)
The opinion continues:
“ ... It is suggested that there are many prisoners incarcerated in our penal institutions on pleas of guilty given without advice of counsel. We doubt that, and would be sorry indeed if it were true, particularly, if they are 17-year-old lads who without legal advice pleaded guilty to murder in the first degree. Certainly we are not anxious to share the responsibility for such a lamentable situation. We are well assured that the common practice in the district courts of this state is not to accept a plea of guilty in any jelony case except on the well-considered advice of counsel for the prisoner; and some careful judges take other precautions to avoid miscarrage of justice which need not now be discussed.” (p. 421.) (Emphasis supplied.)
In the Oberst case, supra, the defendant was accused of having committed much more infamous crimes than those involved in the present case. But the decision did not turn upon that point alone. Burglary in the second degree and grand larceny certainly are serious offenses and this court is of the opinion that no distinction necessarily arises in considering the general question because the defendant in one case is accused of murder and in another case is accused of some other felony.
The fundamental question involved is whether the petitioner in this case can be said to have intelligently, understandingly and in a comprehending manner entered his plea of guilty. In the often-quoted and followed case of Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 Sup. Ct. 1019, 146 A. L. R. 357, the opinion reads as follows:
“ . . . ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case including the background, experience, and conduct of the accused.” (Emphasis supplied.) (p. 46.)
The opinion continues:
“The purpose of the constitutional guaranty of a right to Counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution.” (p. 465.)
The opinion in Johnson v. Zerbst also developes the significant fact that where there has been no intelligent and comprehensive waiver of constitutional rights the court is without jurisdiction to accept the plea. It reads:
“Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal court’s authority to deprive an accused of his life or liberty.” (p. 467.)
The opinion continues:
“. . . If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake, [citing Frank v. Mangum, 237 U. S. 309, 327, 59 L. Ed. 980.] If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. [Citing Re Neilsen, 131 U. S. 176, 33 L. Ed. 118.]” (p. 468.)
We realize that the sixth amendment to the federal constitution may not be binding upon the states, but by the same reasoning the same results are reached under the fourteenth amendment thereto and under the due process clause of a state constitution. (See Williams v. Kaiser, 323 U. S. 471, 89 L. Ed. 398; Tomkins v. Missouri, 323 U. S. 485, 89 L. Ed. 407; White v. Ragen, 324 U. S. 760, 89 L. Ed. 1348; Hawk v. Olson, 326 U. S. 271, and De Meerleer v. Michigan, 329 U. S. 663 (decided February 3, 1947). But see, also, Betts v. Brady, 316 U. S. 455, 86 L. Ed. 1595.)
The record in the present case is silent as to the degree of intelligence which the petitioner may have possessed when he stood before the court. We cannot gather therefrom any knowledge pertaining to his educational attainments, general mental alertness or lack thereof. We assume, therefore, that he possessed average intelligence for a boy of his age. Upon such an assumption we reach the conclusion that ordinarily a seventeen-year-old boy is not possessed of sufficient comprehension of his constitutional rights in a felony case to waive them and that he should be given the benefit of consultation with counsel. We are' of the opinion, also, that the possible presence of his father in the courtroom did not assure the petitioner of his constitutional rights. In such connection, it is interesting to note that the Supreme Court of Georgia has held that an accused is deprived of his right to be represented by counsel in violation of his constitutional right where the attorneys appointed by the court to represent him are ignorant and inexperienced. (See Wilcoxon v. Aldredge, 192 Ga. 634, 15 S. E. 2d 873, 146 A. L. R. 365 and the annotation pertaining to the general question here presented in 146 A. L. R. beginning at page 369.) Since the failure to appoint counsel for the petitioner in the present case and to require that the petitioner consult with such counsel deprived the court of jurisdiction to render judgment, it follows that the judgment entered upon the plea of guilty was void. It also follows that the failure to appoint counsel was not a mere trial error or irregularity and that the judgment can be attacked and set aside on a petition for a writ of habeas corpus.
In reaching the foregoing conclusion, this court is cognizant of the great amount of juvenile delinquency which appears to be prevalent in the country at the present time. We are not holding that in every case where the plea of a minor has been accepted without his having been compelled to consult with counsel, the judgment and sentence entered thereafter necessarily is void. As hereinbefore set forth, the question whether one accused of crime has waived his right to the assistance of counsel must depend in each case upon the particular facts and circumstances. We hold only that in the present case the petitioner is unlawfully restrained in the penitentiary.
It does not follow, however, that he is entitled to be released from the custody of the law enforcement officers of this state. As was said in Davis v. Hudspeth, 161 Kan. 354,167 P. 2d 293:
“. . . Not all the proceedings in the district court were void. Such court had general jurisdiction of the subject matter by reason of the information having been filed therein. According to the allegations of the information reasons exist for the proper detention of the prisoner and the peace and dignity of the state demand that he be dealt with according to law.” (See citations set forth therein.) (p. 356.)
The petitioner is not entitled to his absolute freedom and, therefore, the writ will be denied but it is ordered that the judgment and sentence entered on his plea of guilty be set aside; that he be discharged from his confinement under such illegal sentence and judgment; that he be placed in the custody of the sheriff of Crawford county, Kansas, in order that appropriate proceedings against him may be taken in the district court" of such county. | [
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The opinion of the court was delivered by
Miller, J.:
This is a civil action for damages based upon a claim of personal injuries sustained by the plaintiff when he was charged and struck by a cow belonging to the defendant. The jury returned a verdict for the plaintiff for $9,500. The trial court overruled motions for a new trial and for judgment notwithstanding the verdict. Defendant appeals, claiming numerous trial errors.
The defendant, Clark Borth, is an adult son of the plaintiff, Dan Borth. Clark raises Charoláis cattle. On January 26, 1971, Clark was vaccinating, castrating and dehorning cattle. He employed Larry Myers, Cecil Brookshire, Steve Kruse, Wayne Lundstrom, and the plaintiff to help him. About 50 head of cattle were placed in a large holding pen or corral. The cattle were herded singly from the corral into a long chute, at the far end of which was a “squeeze chute” where each animal was held while it was being treated. Myers, Brookshire, Kruse and plaintiff were in the pen where they kept the. cattle moving and caused them to enter the chute as needed. Wayne Lundstrom was helping on the chute. The defendant and a veterinarian, Dr. V. D. Lundstrom, were up at the squeeze chute where they worked on each animal. The activity was carried on without incident until it came to the last cow in the corral. Suddenly and without warning, the animal turned and charged toward the plaintiff. The other men in the corral climbed over the fence and escaped; the cow struck the plaintiff in the lower back and threw him over the fence, causing him to sustain serious injuries.
THE INSURANCE ISSUE
Defendant contends that the trial court should have declared a mistrial because (a) plaintiff’s counsel mentioned insurance during voir dire, and (b) an unresponsive answer of the plaintiff during cross-examination indicated to the jury that the defendant had insurance. Defendant claims that this indication of insurance coverage was not inadvertent and “poisoned” the jury. Defendant also contends that the trial court erred in failing to grant defendant’s motion for a new trial because of misconduct on the part of the jury in discussing insurance during its deliberations.
During voir dire a side-bar conference was held, in the course of which counsel for the plaintiff mentioned insurance. Defendant moved for a mistrial and contended that the jury could have heard the discussion. The trial judge denied the motion. After the verdict was returned, the trial judge asked the jurors if any of them heard the remarks of counsel during the side-bar conference. He asked any juror who had heard the remarks to raise his hand; none responded. The court concluded that the jurors had not heard the remarks of counsel.
As would be anticipated, the plaintiff was cross-examined vigorously. During recross-examination he testified that since the accident, he had been studying how cattle should be handled and he stated that he had observed that there are a lot better ways. The following exchange took place:
“Q. And that is in connection with this building and establishing this $250,000 lawsuit for which you ask this jury to give a judgment against your son over there in the sum and amount of $250,000, is that correct?
“A. I fed my son for twenty-one years and he married and he went out on his own. He has been married for ten or twelve years. He has got his own business now in British Columbia and this won’t cost him one red cent.”
Counsel for the defendant moved that the jury be instructed to disregard the comment, “this won’t cost him one red cent,” and the court promptly so instructed the jury.
At the presentation of the motion for new trial, a number of jurors were called as witnesses. Some said that during deliberations insurance was merely mentioned; some said it was discussed; one said that it was discussed at length; another said it was idle speculation and “as far as we knew, there wasn’t any insurance.”
The remarks made during the side-bar conference would appear to be similar to those in McGlothlin v. Wiles, 207 Kan. 718, 725, 487 P. 2d 533. We there held that a reference to insurance made by plaintiff’s counsel at a side-bar conference out of the hearing of the jury was not prejudicial. The trial court here found that the jury did not hear the statement made by counsel at the bench conference, and that finding is amply supported by the record.
It is the established law in this state that the deliberate injection of liability insurance coverage by the plaintiff into a negligence lawsuit is inherently prejudicial and is grounds for mistrial. State Farm Fire & Casualty Co. v. Hornback, 217 Kan. 17, 22, 535 P. 2d 441; Alcaraz v. Welch, 205 Kan. 163, 166, 468 P. 2d 185. However, where the mention of insurance during a trial is purely inadvertent and is not brought into the case by intentional misconduct, prejudicial error does not result. Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 491 P. 2d 891; Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100. We cannot say from the record before us that there was any intentional, deliberate injection of insurance into the evidence in this case. Just the opposite is shown. The remark by plaintiff, on recross-examination, was not a patent reference to insurance and appears inadvertent, not planned. The court’s prompt admonition to the jury cured any possible prejudice. The size of the verdict, $9,500, is modest compared to the actual damages of over $20,000 claimed, and the total recovery of $250,000 sought. The mention of insurance by the jurors during deliberation does not appear to have been suggested by the evidence, nor does it appear that such conduct prejudiced the defendant or deprived him of his right to a fair trial. Pike v. Roe, 213 Kan. 389, 516 P. 2d 972. Under the circumstances we conclude that no prejudice has been shown, and the trial court properly overruled the motions for a mistrial and for a new trial.
THE CLOSING ARGUMENT
Defendant contends that the trial court erred in failing to declare a mistrial or grant a new trial because of prejudicial remarks made by plaintiff’s counsel during closing argument. The gist of this claim is that it was error for the court to permit plaintiffs counsel to comment on the failure of the defendant, who was present throughout the proceedings, to testify. Counsel commented upon this in both closing arguments.
The plaintiff relies upon Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 508 P. 2d 954, where we held that a party is not obligated to call every witness he has listed, and, where a witness is equally available to both parties, no prejudicial inference arises from the failure of one party to call him. Our ruling in Skelly applies only to witnesses, not parties. We recently dealt with comment on the failure of a party to testify in Spraker v. Lankin, 218 Kan. 609, 616, 545 P. 2d 352. We held that opposing counsel may properly comment on the failure of a party litigant to testify, where the party is present throughout the trial. A party who is mentally and physically able to do so would ordinarily be expected to attend the trial of an action in which he is personally interested, and to testify on his own behalf 'as to facts in issue of which he has personal knowledge. Failure of a party to attend trial or to testify, where such party has the opportunity to do so, may properly be commented upon by opposing counsel. 88 C. J. S., Trial § 186; 75 Am. Jur. 2d, Trial § 235. We find no error in the court’s rulings upon the motions.
EXPERT TESTIMONY
Defendant contends that it was error for the trial court to permit Mike Borth, a younger son of the plaintiff, to testify as an expert witness. The witness testified without objection on direct examination as to how cattle were handled when he was living at home with his father, and he testified as to instruction he received and the practices followed in FFA work. He repeated much of this testimony on cross-examination, again without objection. On redirect examination he was again questioned as to the safety instruction he received in his FFA work, and at that point objection was made on the basis that the testimony would not establish what ordinary, prudent, experienced cattle people do in the county where the accident occurred. The witness was then permitted to testify that in FFA, he was taught to use panels for moving cattle and that the panels prevented the animals from charging or knocking you over. He later testified that he did not know whether it was possible bo use panels “in a real live situation where people are doing it as a part of their living” because he had no such experience.
Objection was also made on the basis that the witness was not an expert when, on the second redirect examination, he was asked to explain “what knowledge a person obtains in working with or owning a herd of cattle.” The objection was overruled and the witness responded that you learn the mean ones and you learn the tame ones; you see which ones are a little meaner. The evidence indicates that the witness raised livestock as FFA projects and worked with his father on the family farm. His father had milk cows and Hereford's, and had from five to thirty head.
In Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518, we said:
“. . . There is no rule requiring that the expert have a special knowledge of every aspect of this field. The test of competency of an expert witness is whether he discloses sufficient knowledge of his subject to entitle his opinion to go to the jury. (K. S. A. 60-419, 60-456.) Where an expert witness has disclosed a sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of degree of his knowledge goes more to the weight of the evidence than to admissibility. . . .” (pp. 548, 549.)
The trial court has discretion to determine the qualifications of a witness to testify as an expert and to determine the admissibility of the testimony. To reverse the trial court, an abuse of discretion must be found. State v. McClain, 216 Kan. 602, 606, 533 P. 2d 1277. Under the circumstances we conclude that the trial court did not err in admitting the testimony; the question of the weight to be accorded to the testimony was for the jury to determine.
ASSUMPTION OF RISK
Finally, the defendant contends that the trial court erred in failing to direct a verdict and in failing to enter judgment for the defendant notwithstanding the verdict on the basis that the evidence and the reasonable inferences created by it, when viewed in a light most favorable to the plaintiff, showed as a matter of law that plaintiff was guilty of assumption of risk and/or contributory negligence which was a proximate causé of his injuries.
The doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P. 2d 1062. We turn first to our recent decisions in master-servant cases involving the doctrine. Mechtley v. Price, 217 Kan. 344, 536 P. 2d 1385, was an action by a farm employee against his employers to recover for personal injuries when an unshod horse he was riding stumbled and fell. We there said:
“. . . Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee (Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765). Assumption of risk generally bars recovery by an employee who knows of the danger in a situation but nevertheless voluntarily exposes himself to that danger. In Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227, 63 A. L. R. 2d 175, we said:
“ . . [Assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to .a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.’ (p. 594.)
“It should be noted the knowledge and appreciation of the risk involved is to be judged by a subjective standard, by knowledge attributable to the individual plaintiff and his situation (Prosser, Law of Torts, 4th ed., 1971, § 68, p. 447).” (p. 348.)
However, we should note that Prosser goes on to say that:
“. . . [A] purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not differ greatly from that of the reasonable man. The plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. . . .” Prosser, Law of Torts, 4th ed., 1971, § 68, p. 448.
Uhlrig v. Shortt, 194 Kan. 68, 397 P. 2d 321, was an action by a farm hand against his employer to recover damages for the loss of an eye. The injury occurred while the parties were filling a silo. We said:
“. . . The employer is not to be held liable for an injury to an employee simply because of danger which was inherent in the employment, whether in the place of employment or the cause of the danger inherent in the tools, machinery or appliances with which the work must be performed. A master is not an insurer against injuries which his servants may incur in the discharge of their duties. . . .
There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. . . .
“. . . Generally an employer will not be held liable if he . . . conducts his business in a manner conforming to the usage of others engaged in the same business under similar circumstances. See, e. g., . . . Blackmore v. Auer, 187 Kan. 434, 442, 357 P. 2d 765.
“Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk. In 35 Am. Jur., Master and Servant, § 299, pp. 722, 723, in considering the risk assumed, the rule is stated thus:
“ ‘The injuries for which an employee is barred from recovery by virtue of the doctrine of assumption of risk include but, according to the general accepted statement, do not extend beyond those which result from the “ordinary” risks of the employment or such as are “incident” thereto. An assumption of risk merely by virtue of the contract of employment embraces such perils, hazards, and dangers as are ordinarily and normally incident to or a part of the employment in question and of which the employee has knowledge, actual or implied, or of which it may be said that he is presumed to know. Under the head of “ordinary risks” are classed all those dangers or perils ordinarily incident to the conduct of the particular business in which the employee engages — those which exist after the employer has done everything that he is bound to do for the purpose of securing the safety of his employees. The term includes not merely those dangers which are obvious and open, but also those risks which, while not visible, are nevertheless a natural incident of the employment. The employee does not, however, merely by accepting employment, assume the risks which are not usually and ordinarily incident to that employment. As thus restricted, the doctrine rests on the thought that the employee, upon entering the employment of the master, assumes .all the risks that are ordinarily and usually incident to the service upon which he enters, and if he is injured solely by reason of these perils he is not entitled to recover. . . .’
“The doctrine of assumption of risk rests for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for injuries resulting from his employment. This court has stated that to raise an implied agreement the risk assumed must be known to the employee, or it must be of such a nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. One, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, who freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. . . .” (pp. 71-73.)
In Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, where a farm laborer was injured while loading baled hay, we said:
“The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it. Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein.” (pp. 444, 445.)
Mike Borth testified that the plaintiff is not an expert in working around and handling cattle. He acknowledged, however, that his father has worked with and handled cattle most of his life. Mike said that he learned in FFA that when you are separating cattle out and you end up with most of the cattle being somewhere else and one or two animals left, the remaining ones get very nervous and excited. If an animal gets excited, it may charge you or do something else. In his opinion, everyone that knows anything about cattle should know that, and should take proper precautions to avoid getting hurt by such an animal.
Wayne Lundstroro testified that every one of the men that were there that day was an experienced cattleman. He said that in his opinion any cattleman knows that when you get down to one or two animals left in the big pen and the others have been moved through, you had better watch those animals because they are very nervous and may try anything.
Steve Kruse is another farmer and cattleman who was present. He testified that Charoláis cattle may or may not require special handling; in every breed of cattle there are jumpy ones. An experienced cattleman knows that when you begin to get down to where there are only a few cattle left in the pen, that is when they get the most excitable. When you are left with only one animal in the pen that animal might do anything at any time. It can charge a man or a horse, or go through a fence. In his opinion any man with experience working with cattle knows this can happen.
Larry Myers is a 35-year-old fanner-stockman. He testified that in his opinion any man who has worked around cattle knows that when you end up with only one or two animals in the holding pen, those cattle get nervous and may try to take you or go over the fence.
Dr. V. D. Lundstrom has been in McPherson County for twenty-four years and has worked with Dan on numerous occasions. He has worked on Dan’s cattle, performing routine procedures, castrating and dehorning; he considers Dan Borth a knowledgeable, experienced cattleman. When you are separating cattle, the last animal or few animals are going to be the most unruly of all. Everybody who works around cattle knows this. A few minutes before the accident happened, the animal that charged Dan was identified by someone as an unruly animal. He heard someone say “watch out for him.” The witness saw that the animal tended to be unruly. From that time on, an experienced cattleman should have been on guard for his own safety.
Dan Borth testified that he was 64 years of age and always had a few cattle on the farm, sometimes only four, and after he got into Herefords, perhaps thirty at the most. Clark never indicated that any of his cattle were wild or skittish or dangerous; he always boasted about his cattle being docile and like pets. Clark told Dan “to keep moving them around so they don’t get nervous and break down the fence on one side or the other.” At the time the accident occurred there was just one animal left in the pen. Dan had not heard anyone warn that the animal was dangerous. As he was watching the cows, someone hollered, “Look out, Dan, she is getting you.” He saw the cow put her head down to the ground and charge. He turned and ran toward the fence but the cow hit him in the lower back, knocking him over the fence. He knew that it was necessary to keep his eyes on the cattle because there can always be bad ones in any herd, and they might do something unexpected. Dan stated that he did not have extensive knowledge and experience in handling all kinds of cattle. Though he had worked around cattle most of his life, he had not worked in a holding pen before. He knew of the hazards of working in a cattle operation of this type. He knew that when you work with cattle in close quarters they can get dangerous and cause injuries. He knew that when you are separating animals they can act up and do unpredictable things. Clark did not have to tell him that a cow separated out from a herd can act up and do unpredictable things that may result in injury. The year before the accident he helped herd cattle into a corral or a round circle fence and then into a squeeze chute on Clark’s place. He did the same thing that was being done the day of the accident. Dan’s job the year before was similar to what was being done the day of the accident.
The record is abundantly clear that Dan Borth has had a lifetime of experience working around cattle. He has owned, handled, and cared for them. He has previously done the same type of work that he was doing at the time of injury. He knew of the risk he was taking in the cattle pen, and he knew that a particular risk arose when but one animal remained in the pen, after the others had been separated out.
He could have refused to work under the attendant conditions, or he could have secured and used a metal or wood panel for his protection. He did neither. He knew what the facilities were when he went to Clark’s place on the day of the accident, having been there perhaps three times before.
The evidence is undisputed that the facilities at Clark Borth’s farm were average for the community, and that they were fit for the purposes for which they were being used. The operation was being carried on in a way familiar to cattlemen of the area and, as one stated, it “is what the ordinary, reasonable and prudent cattleman does.” The risk of injury by the cattle is clearly one that arises out of the activity being carried on, and one that is open and apparent. While the extent of the injuries sustained by plaintiff is regrettable, and no doubt greater than is usual, it cannot be said that the type of injury is unusual. It is a type of injury ordinarily and normally incident to the employment. There was an obvious risk of harm to the men working in the corral.
Dan Borth, with his years of experience owning and handling livestock, had actual knowledge of the risk and appreciated its magnitude. He voluntarily chose to remain within the area of the risk, and thus manifested his willingness to aocept the risk. Defendant’s protestations of inexperience notwithstanding, the record compels these conclusions, particularly in light of the admissions of the plaintiff. Admissions made by a party are the strongest kind of evidence. Hallet v. Stone, 216 Kan. 568, 575, 534 P. 2d 232.
We hold that Dan Borth assumed the risk of his employment as a matter of law. The trial court therefore erred in failing to sustain defendant’s motion for a directed verdict, and for judgment notwithstanding the verdict.
The judgment is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Miller, J.:
Frank X. Becker commenced this action against Gerald McFadden, Brian McFadden and Bruce McFadden to recover the balance claimed to be due under a lease agreement, and to recover possession of the premises, consisting of 720 acres in Lyon County, Kansas. The McFaddens’ answer alleged that all rent had been paid, and that they were in possession under an oral farm lease which would not expire until March 1, 1975, as provided by K. S. A. 58-2506. They also filed a counterclaim with which we are not here concerned.
The case came on before the court for trial on April 9, 1975. Defendants, by inadvertence, failed to appear. The court heard evidence, and made these findings: that the parties entered into an oral farm lease for the entire farm “pursuant to Chapter 58 Section 2500 et seq.” in late August or early September, 1972, and that defendants went into possession about that time; that defendants agreed to pay rent as follows: $25 per head for cows and $20 per head for yearlings for the pasturing season, April 15 through October 15, plus $250 per year for the farm house and improvements, and one-third of the row crops; that in April, 1974, plaintiff notified defendants of an increase in the pasture rent; that plaintiff properly gave defendants notice of termination of tenancy 30 days prior to November 1, 1974, “in accordance with the applicable Kansas law,” and that the lease terminated November 1, 1974; and that defendants remained in possession as holdover tenants from November 1, 1974, until March 1, 1975. While the court made no specific finding, it is agreed that defendants paid all rent due, including amounts attributable to pasture, crop and improvements, except the increased pasture rate for 1974 and a few months’ house rent which plaintiff claims amounts to $62.50. The court found that defendants owed rent of $2,117.50, less a credit of $545.81, and entered judgment for the difference, $1,571.69 and costs. The counterclaim was denied. The McFaddens had moved from the farm, so possession was not an issue. Upon the overruling of their motion for a new trial, defendants appeal.
The primary question before us is whether K. S. A. 58-2506 is applicable. The pertinent part of that statute has been the law of this state since 1868. It reads as follows:
“In cases of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of March . . .”
The statute was amended July 1, 1975. The amendment, fixing a different termination date where fall-seeded grain crops are planted, is not here involved.
The evidence before the court consisted of the testimony of the plaintiff and various exhibits. Becker testified that he owned the land. He talked with the McFaddens in his office in July or August, 1972. They were down and looked over the farm and in a few days told Becker that they would rent it. The McFaddens were to pay rent computed as follows: $250 per year for the use of the house and outbuildings; one-third of the crops raised on the cultivated land; $25 for each cow and $20 for each heifer placed on pasture. The pasture was to be grazed only from April 15 to October 15. The former tenant moved out in August and thé defendants went into possession sometime in September, 1972. Becker stated that he was willing to calculate the rent from November 1.
The first grazing season, the McFaddens did not take their cattle out of the pastures until sometime after the first of November, 1973. This irritated Becker and he told the plaintiffs that he was going to raise the pasture rent for the next year. In April, 1974, Becker told the defendants orally that the pasture rent would be $50 for cows and $35 or $40 for heifers. One of the defendants said, “We can’t pay that.” Becker replied that the least he would do was $45 and $35, otherwise the McFaddens could move. They remained, occupied the house, farmed the land, and used the pastures during 1974.
Becker gave the McFaddens written notice of termination of tenancy thirty days prior to November 1, 1974, fixing that date as the date of termination. Defendants remained in possession until February, 1975, and moved while this case was pending.
K. S. A. 58-2505 provides that all tenancies from year to year may be terminated by at least thirty days’ notice in writing, given to the tenant prior to the expiration of. the year. Plaintiff claims that since the defendants entered into possession of the farm in the fall, the lease ran from November 1 to November 1 and thus thirty days’ notice prior to that date was sufficient to terminate the tenancy under section 2505.
The following section, K. S. A. 58-2506, supra, specifically deals with notices fixing the termination of farm tenancies. In Way v. Swain, 158 Kan. 238, 241, 242, 146 P. 2d 414, we discussed the applicability of the farm tenancy statute. Speaking of G. S. 1935, 67-506, now K. S. A. 58-2506, we said:
“. . . [Bjeing a statute of special application it would be controlling as against statutes of general application — under a general and well-settled rule of statutory construction. . . .
“The trial court rested its decision upon a general rule that where a tenant holds over beyond the term of the original lease, with the consent of the landlord, the law implies a continuation of the tenancy under the same terms and conditions as provided in the original lease. Assuming that to be the general rule, we still have section 67-506 [now K. S. A. 58-2506], which applies, without reservation, to tenancies of farm lands. Moreover, it is common knowledge that it is the usual practice in this state to terminate farm tenancies in accordance with that statute.”
The evidence reveals an oral lease of a farm. The tenants occupied 'and cultivated it.. Though they moved on with the assent of the landlord in the fall of 1972, they leased it and plaintiff rented it for the crop year 1973. The 1972 crop and pasture seasons were over, for all practical puiposes. This was a farm lease, 'and we hold that K. S. A. 58-2506 applied to it. Thus any notice to terminate the tenancy was required to fix March first as the termination date. No such notice was given. Defendants, holding over after March 1, 1974, were entitled to continue in possession until March 1, 1975.
The landlord gave no notice of any specific change in the amount of rent prior to the commencement of the term. According to his testimony he announced an increase during April, 1974, after the tenants had commenced their second year of occupancy.
The general rule is that when a tenant holds over his term with the consent of the landlord, express or implied, the law implies a continuation of the original tenancy upon the same terms and conditions. Martin v. Hamersky, 63 Kan. 360, 65 Pac. 637. This rule was followed in Thomas v. Dudrey, 208 Kan. 684, 690, 494 P. 2d 1039, and see Way v. Swain, supra, and 49 Am. Jur. 2d, Landlord and Tenant, § 1147, where the rule is set forth as follows:
"Rent on a holding over may be governed by a provision in the original lease . . . or by a new arrangement entered into between the landlord and the tenant. Likewise, statutes prescribing the effect of holding over may govern the question of rent. In the absence of such a statute, or a provision in the original lease, or a new arrangement, it is generally held that the terms of the original lease, as regards the amount and time of payment of the rent, apply. . . .”
The same rule is set forth in 52 C. J. S. Landlord and Tenant §471:
“A tenant who, without having made any new or different agreement as to rent, holds over and retains possession of the demised premises after the expiration of a term subjects himself to a renewal or continuance of the liability to pay rent as fixed by the terms and conditions of the prior lease.
Had the landlord announced an increase in the rent more than 30 days prior to the 'commencement of the term, a quite different picture would be presented.
“. . . It is quite generally held that if, before the tennination of the term and before rights which the law implies have arisen by reason of holding over without notice, a landlord notifies his tenant for a fixed term that in case he holds over beyond the term he must pay a specified increased rental, the tenant will become liable for such rental if he in fact holds over and either remains silent with reference to the notice or fails to express his nonassent to the terms thereof. . . .” 49 Am. Jur. 2d, Landlord and Tenant, § 1148.
The rationale of that rule, however, has no application here, where the tenants were not given notice of the increase until after the commencement of the term. We find no cases, and none have been cited, enforcing changes in a lease 'announced unilaterally by one of the parties during the term.
We conclude that under the circumstances of this case, the McFaddens as holdover farm tenants were entitled to occupy the farm during the crop year 1974 under the same terms and conditions, and at the same rental, as was fixed in the original oral contract between the parties. Defendants were not obligated to pay the increased pasture rent for the year 1974, and the entry of judgment against them for that amount was error.
The judgment is reversed, and the district court is directed to enter judgment in accordance herewith. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Louis J. Warren, appeals from a conviction by a jury of felony theft in violation of K. S. A. 21-3701. Defendant’s two contentions on appeal relate to the sufficiency of the state’s evidence.
On September 5, 1974, defendant and two other individuals were arrested in Salina and charged with possession and possession with intent to sell a quantity of unlawful drugs. The arrests stemmed from an incident which took place in a Salina drug store. Defendant was fingerprinted at approximately 10 p. m. and placed in a room in the booking area of the Salina Police Headquarters. When officers returned to this room a few minutes later, they discovered the defendant had escaped from custody.
Around 3:00 or 4:00 a. m. the following morning a man, later identified as the defendant, was seen by D. L. Karnes in WaKeeney, approximately 135 miles west of Salina. Mr. Karnes, the owner of a motel, was awakened by the defendant who asked for a room and said he wanted to use the telephone. Karnes told the defendant he had no vacancies, but that there was a pay telephone across the street at an all-night service station.
Instead of walking across the street, defendant went around to the back of the motel. Kames then walked to a window in his office at the back of the motel and saw defendant standing between a yellow flat-bed truck and an automobile owned by Karnes. Kames testified at trial that he then went to the back door of the motel and yelled at the man, at which time defendant turned and trotted back across the street to the service station.
On the next day, September 6, Officer Leon Reeves of the Wa-Keeney Police Department recovered the yellow flat-bed truck from behind the Karnes motel. Painted on the side of the truck was the name, “Larson Building Center, Inc., Salina, Kansas.” A check of the truck failed to produce any legible fingerprints. Reeves testified at defendants trial that the truck was nearly out of gas when he recovered it. It was also brought out in the trial testimony that the lumberyard, from which the truck was taken, is approximately four blocks from the Salina Police Department.
Following his brief encounter with Karnes, defendant was not seen again in WaKeeney. According to his own testimony, after defendant left the Salina police station he went to Denver, Colorado, his home, and then returned to Salina where he surrendered to police about one week later.
Upon his surrender, the defendant was charged with felony escape and theft of the lumber truck in addition to possession and possession with intent to sell pentobarbital and secobarbital. At trial the state dismissed the escape count and the jury acquitted defendant on both the possession and possession with intent to sell charges. A verdict of guilty was rendered on the one remaining count charging defendant with felony theft of the lumber truck.
On appeal the defendant specifies two points, both of which go to the sufficiency of the evidence to support his conviction. In one of these points he contends the evidence was insufficient for the jury to determine that the defendant exerted any unauthorized control of property. Clearly, there is no merit to this contention. Although there were no eyewitnesses to the taking of the truck, the contemporaneous disappearance of the truck and defendant, when coupled with evidence that he was later seen standing by the truck at the WaKeeney motel, leaves a strong inference that the defendant drove the lumber truck from Salina to WaKeeney. When confronted with the question whether the evidence is sufficient to support a factual determination of the jury, the scope of our review is limited. The rule was restated in the recent case of State v. Beard, 220 Kan. 580, 552 P. 2d 900, wherein we held:
"In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.” (Syl. 5.)
See, also, State v. Brown, 217 Kan. 595, 538 P. 2d 631, and cases cited therein. We have also said it is well-established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. (State v. Ritson, 215 Kan. 742, 529 P. 2d 90, and State v. Wilkins, 215 Kan. 145, 523 P. 2d 728.) Tested by these standards, the evidence in the instant record unquestionably supports the jury’s determination that the defendant exerted unauthorized control over the lumber truck.
In his other point on appeal the defendant argues the verdict of the jury was contrary to the evidence in that the evidence did not show that the defendant had intended to permanently deprive the owner of the use or benefit of property. In his argument on this contention, defendant goes beyond the point, as stated, to argue that it was clearly erroneous not to instruct on unlawful deprivation of property (K. S. A. 21-3705), as being a lesser included offense of the theft of the truck of which he stands convicted.
Theft for which defendant was convicted is defined in K. S. A. 21-3701 which reads in part pertinent to the charge herein:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property; or”
The phrase “to deprive permanently,” as used in the statute and as applicable to different situations, is defined in K. S. A. 21-3110 (6) (a), (b) and (c) [Amended, Laws 1976, Ch. 145, Sec. 106]. The definition pertinent to the charge herein is set out in 21-3110 (6) (a) in these words:
“ (6) To ‘deprive permanently’ means to;
“(a) Take from the owner the possession, use or benefit of his property, without an intent to restore the same; or”
In the record presented, there is no evidence of any intent of defendant to restore the truck to its owner. While defendant apparently took the stand none of his testimony is reproduced in the record. From statements made in both the defendant’s and state’s briefs we take it that defendant’s testimony was entirely exculpatory — that he did not take the truck at all. His argument before the trial court was that the evidence was insufficient to establish the taking. On appeal defendant still maintains the evidence is insufficient to prove the taking, but makes the furthér somewhat inconsistent argument that even if the evidence was sufficient to prove the taking it still fell short of showing an intention to permanently deprive. Defendant did not request an instruction on unlawful deprivation under 21-3705 at trial, nor did he include failure to so instruct in his points on appeal. On the record presented, we do not find clear error shown in this regard.
In his observations concerning “The New Kansas Theft Law,” Professor Paul E. Wilson in Vol. 20 Kansas Law Review, p. 385, comments on “Intent to Deprive” in these words;
“. . . The emphasis in the statutory definition is upon the permanency of the intended deprivation. However, it must be observed that while the definition undoubtedly includes the case where the thief has a positive purpose permanently to appropriate the property to his own benefit, it is not limited to that situation. ■ Instead, the statute speaks of taking property ‘without an intent to restore the same.’
“Any evidence of an intent to deal with the property in such a way that it is not likely to be restored intact should be sufficient to convict of theft. "...
“The intent to deprive permanently must be inferred from the overt facts and circumstances proven. Unless the facts establish an intent to ransom the property back to the owner or to sell or encumber it, the jury must decide in the individual case whether the circumstances intended by the defendant entailed the likelihood that the property would not be restored. The crucial factual inquiry will be directed to the use the defendant intended when he obtained or exercised unauthorized control.” (pp. 409-410.)
We believe the facts and circumstances proven in this case are sufficient for the drawing of an inference of intent to permanently deprive.
An accused has the right to have his theory of the case presented to the jury under appropriate instructions where there is support therefor in the evidence. (State v. Boyd, 216 Kan. 373, 532 P. 2d 1064.) This right has not been denied defendant in this case. Defendant presented no evidence bearing on intent and as best as we can ascertain from the record and briefs, defendant’s theory at trial did not bear on the issue of his intent, but was directed at establishing that he committed no offenses concerning the truck and that Mr. Karnes was mistaken in his identification of defendant in WaKeeney.
In State v. Winters, 120 Kan. 166, 241 Pac. 1083, the record disclosed that an automobile was taken from Anthony, Kansas, and recovered the next day in Depew, Oklahoma, 200 miles away. The defendant was charged and convicted of grand larceny (R. S. 21-533, a predecessor of K. S. A. 21-3701). One of defendant Winter’s contentions on appeal was that the jury should have been instructed on joy-riding under R. S. 21-544, the antecedent of K. S. A. 21-3705. In rejecting defendant’s contention this court said:
“Appellant contends that it was the duty of the trial court to give a definition of grand larceny, and calls our attention to R. S. 21-544, which makes it a misdemeanor for a person to take, carry away and use any automobile with intent to deprive the owner of the use thereof against his will, but not with the intent of stealing or converting the same permanently to his own use. The information in this case was drawn under R. S. 21-533, and specifically charges that the defendant ‘did unlawfully and feloniously steal, take and carry away one Ford touring automobile,’ etc. There is no suggestion from the record that during the trial there was any contention on behalf of the defendant that the automobile was taken with the intention of depriving the owner of its use only temporarily and not permanently. . . .” (p. 170.)
A similar contention raised in the same context, in a motorcycle theft case, was before the Supreme Court of New Hampshire in State v. O’Brien, 114 N. H. 233, 317 A. 2d 783. Justice Grimes speaking for the court held:
“. . . His entire defense was completely exculpatory. He testified he had nothing to do with the offenses, was elsewhere when they occurred, and that the two alleged accomplices were lying because of a grant of immunity from prosecution as part of a plan of a police officer to get the defendant because a previous charge of larceny of a vehicle had been reduced. No argument regarding the lesser offense was made and no request for such an instruction was made until after the charge had been given but before the jury retired. State v. Davis, 83 N. H. 435, 144 A. 124 (1928). Thus the evidence furnished no rational basis for a finding of guilt of the lessor offense. (Citing cases.) (p.236.)
On the record presented we find no error shown and the judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a bank, as shipper, against a motor vehicle carrier to recover damages for loss of two packages of checks. The essential facts of the case were determined by the district court and will be considered as undisputed for purposes of this appeal. The plaintiff-appellant is the First National Bank of Girard, Kansas. We will refer to it in this opinion as plaintiff or the bank. The defendant-appellee, Bankers Dispatch Corporation, is an Illinois corporation doing business as both a common carrier and a contract carrier in the state of Kansas. We will refer to it as the defendant, the carrier, or Bankers Dispatch. Bankers Dispatch operates as a carrier under authority granted by both the Kansas Corporation Commission and the Interstate Commerce Commission.
In 1965 Bankers Dispatch began operations under its interstate commerce authority to serve the Federal Reserve Bank of Kansas City, Missouri, in the delivery of checks, commercial papers, documents, and other written instruments to its member banks, one of which is the First National Bank of Girard. Thereafter Bankers Dispatch entered into contracts with various member banks for the transportation of similar documents from the individual banks to the Federal Reserve Bank. In 1966 an oral agreement was entered into between First National Bank of Girard and Bankers Dispatch for the transportation of the bank’s documents to the Federal Reserve Bank in Kansas City. There was no formal written contract between the parties entered into at this time. The evidence disclosed that the then executive vice president of Bankers Dispatch entered into an oral agreement with the president of the First National Bank of Girard to make overnight deliveries of its articles on the same terms and conditions as that of the contract entered into between Bankers Dispatch and the Federal Reserve Bank. The written contract between Bankers Dispatch and Federal Reserve Bank apparently provided for the transportation of documents by the carrier at the rate of eight cents per ounce regardless of mileage and apparently provided that the liability of Bankers Dispatch as carrier for damages in case of lost documents was to be limited to the necessary reconstruction costs of any documents which were lost plus $50. The carrier was not to be liable for the loss of documents which could not be reconstructed. This contract was not offered or introduced into evidence at the trial.
The plaintiff bank is a correspondent bank o£ the Commercial National Bank of Kansas City, Kansas, and uses the facilities of the Commercial National Bank for collection of its checks. When a check is ^deposited in the Girard Bank for collection it credits the depositing customer with the amount of the check. If the check is drawn upon a distant bank, the Girard Bank forwards the check to the Commercial National Bank which undertakes to process and deposit the check to the drawer’s bank account. In 1966 Bankers Dispatch and the Girard bank entered into the oral agreement mentioned above by which Bankers Dispatch agreed to deliver checks and other documents from the plaintiff bank in Girard to the Commercial National Bank in Kansas City, Kansas. These deliveries were to be subject to the oral agreement by which the liability of Bankers Dispatch in case of loss was to be limited in the manner described above.
On January 19, 1971, the plaintiff bank delivered to Bankers Dispatch two packages containing checks for transportation to the Commercial National Bank of Kansas City, Kansas. At the time of the delivery of these packages a shipping receipt was executed in the carrier’s standard form which contained the following limitations of liability printed on its face:
“Commercial Papers, Documents and Written Instruments. Unless a greater value is declared herein, the shipper agrees and declares that the value of the property described herein is released to a value not exceeding $75,000 per shipment.”
In the lower left hand corner of the shipping receipt there was printed the following statement:
“The released or declared value of the contents of this shipment is hereby specifically declared to be not in excess of $__”
The employees of the plaintiff bank did not fill in the blank space of the printed form so as to declare the value of the property to exceed $75,000. The two packages containing the checks were lost in transit by the agents of Bankers Dispatch somewhere between Girard and Kansas City. The two lost packages contained checks in the total amount of $79,384.09. Because of the loss of the checks, neither plaintiff nor the Commercial National Bank were able to forward the original checks to the various drawee banks for collection. After the loss of the checks was established, the plaintiff bank undertook to reconstruct the checks which were lost in order to obtain money on them from the various drawee banks. By means of this reconstruction process, the bank was able to recover all but $4,058.73 of the original outstanding face value of all the checks. In the course of its reconstruction efforts the bank incurred expenses in the total amount of $768.91. On May 26, 1971, the bank made demand upon Bankers Dispatch to pay its loss resulting from the failure of Bankers Dispatch to deliver its checks to Commercial National Bank in Kansas City. In this demand letter of May 26, 1971, the plaintiff bank claimed damages for the following items: Reconstruction expenses of $768.91; interest on the loss of use of the funds representing lost checks which could be reconstructed in the amount of $1,255.95; and a further item of loss for checks which could not be reconstructed in the amount of $4,058.73. In response to this letter Bankers Dispatch admitted liability in the total amount of $2,024.86 covering reconstruction expenses and interest on the checks reconstructed, but excluding loss on the non-reconstructible checks exceeding $50.00. Bankers Dispatch took the position that its liability was limited under its oral agreement with the plaintiff bank to the reconstruction expenses and loss of use of checks which were able to be reconstructed, plus $50 for the non-reconstructible checks. Since Bankers Dispatch refused to compensate the bank for its loss on the non-reconstructible checks this action was filed on June 19, 1973.
In its petition the plaintiff bank alleged in paragraph (1) that the defendant is an Illinois Corporation and at the time of the loss on January 19, 1971, was licensed to do business as a common carrier in Kansas. The defendant in its answer admitted paragraph (1) of plaintiffs petition but denied any liability. Prior to trial in response to requests for admissions Banks Dispatch admitted that there was no existing written contract between the plaintiff bank and Bankers Dispatch regarding the carriage of documents and checks other than the printed shipping receipt mentioned above. Bankers Dispatch further stated that it had authority to operate within the state of Kansas pursuant to the laws and conditions of its then applicable carriers tariffs which tariffs limit defendant’s liability to “reconstruction cost.” The case proceeded to trial. The plaintiff bank introduced into evidence the shipping receipt heretofore mentioned and a letter from Bankers Dispatch dated February 23, 1971, confirming that Bankers Dispatch picked up the two packages on January 19, 1971, and that these packages were lost during the transportation. The bank also introduced evidence as to the extent of and expense involved in the reconstruction of the lost checks and the value of checks which could not be reconstructed. Testimony was offered by Bankers Dispatch which showed the oral agreement made between representatives of Bankers Dispatch and the bank in 1966. Bankers Dispatch also introduced evidence which raised an issue of fact as to whether it had actually lost the checks.
After submission of the case the district court made findings of fact which are essentially the facts set forth above. The court also made the following conclusions of law: The lost checks were items moving in interstate commerce; under defendant’s agreement with the Federal Reserve Bank and with plaintiff, a bill of lading filled out by the bank was to accompany each shipment, and if a declared value of more than $50 was desired, the bank was to so declare by indicating the same on the bill of lading; under the oral agreement between plaintiff bank and defendant carrier, the plaintiff could obtain higher insurance coverage by obtaining a higher shipping rate, and unless a higher value than $50 was declared by the plaintiff the defendant’s liability for loss was to be limited to reconstruction costs plus $50; reconstruction costs include interest on the money during the reconstruction period; plaintiff was not entitled to damages for the non-reconstruetible items; plaintiff is entitled to recover for its reconstruction costs consisting of $768.91 reconstruction expenses and interest from the date of loss until May 26, 1971, for loss of use of the funds pertaining to reconstructible items in the amount of $1,255.95. Although in its findings of fact the trial court found that the plaintiff bank had suffered a loss of $4,058.73 in checks which were unable to be reconstructed, the trial court denied recovery to the plaintiff bank for these items except to the extent of $50 as provided in the oral agreement of the parties. The trial court also awarded the plaintiff bank attorney fees in the amount of $850 and costs.
The bank has appealed to this court because the district court limited the liability of the defendant carrier to reconstruction costs of lost documents plus $50 which was the limitation of liability contained in the oral agreement of 1966 between the bank and Bankers Dispatch. The primary issue in the case is whether Bankers Dispatch, as an interstate motor carrier, effectively limited its liability to the bank to the reconstruction costs of lost documents plus $50 as provided in the oral agreement of the parties. At the outset it should be noted that the parties agree that the lost checks were in interstate commerce when the loss occurred. The record establishes that the packages were picked up at the bank in Girard, Kansas, and were to be transported across the state line into Missouri and then back into Kansas where they were to be delivered to the Commercial National Bank in Kansas City, Kansas. Such shipments are in law considered to be interstate commerce and subject to the control of the Interstate Commerce Commission rather than intrastate shipments subject to control of the Kansas Corporation Commission. (Leibengood v. Railway Co., 83 Kan. 25,109 Pac. 988.)
In the absence of proof to the contrary the liability of a common carrier engaged in interstate commerce for loss sustained in transporting property is presumed to be its liability under the common law. At common law a carrier is liable for the full loss sustained by the shipper unless the carrier effectively limits its liability. A common carrier engaged in interstate commerce asserting a liability for loss, less than that imposed by the common law, has the burden of proof in establishing a contract for such limitation of liability in compliance with the terms of the federal statute which authorizes such limitation of liability. (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692.) By statute a common carrier transporting property in intrastate commerce is prohibited from limiting its liability by contract. (K. S. A. 66-304.)
The federal statutes governing interstate shipments permit a carrier to limit its liability provided certain statutory conditions are complied with by the carrier. The federal statute, which permits a limitation of liability for damages for loss by carriers engaged in interstate commerce, is the Carmack Amendment to the Interstate Commerce Act, 49 U. S. C. A. § 20 (11). It provides in pertinent part as follows:
“Any common carrier, ... or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State ... to a point in another State, . . . shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it . . . and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, . . . from the liability imposed; and any such common carrier, ... or transportation company . . . shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it . . . notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: . . . Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, ... to property . . . received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released; . . . and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon; . . (pp. 114, 115.)
Bankers Dispatch agrees in its brief that the Carmack Amendment 'applies to the shipment involved in this case. However, it takes the position that it has effectively limited its liability by virtue of the fact that it is a contract carrier expressly authorized by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared by the shipper and hence can effectively limit its liability to an amount not in excess of the value so declared or released. The basic issue 'to be determined is whether Bankers Dispatch has brought itself within ■this exception as granted in the Carmack Amendment. We have concluded that Bankers Dispatch under the circumstances shown in 'the record has not brought itself within the statutory exception. Limitation of liability can be effected by a motor carrier only when in compliance with an Interstate Commerce Commission order authorizing special rates dependent upon either a declared value by the shipper in loriting or a released value in writing. (Chandler v. Aero Mayflower Transit Company, 374 F. 2d 129 [4th Cir. 1967]; Thomas Electronics, Incorporated v. H. W. Taynton Company, 277 F. Supp. 639 [M. D. Pa. 1967].)
It is undisputed that the contract made in 1966 for a continuing transportation of the plaintiff bank’s commercial paper by Bankers Dispatch was an oral contract. Likewise, the agreement to limit the carrier’s liability for loss on non-reconstructible checks to $50 was not in writing. Nor was such limitation of liability included in the printed shipping receipt. Under the circumstances we must hold 'as a matter of law that the defendant carrier has failed to sustain its burden of showing that it has fully complied with the statutory requirements of the Carmack Amendment so 'as to limit its liability for lost non-reconstruotible checks to a total amount of $50.
It should be noted that Bankers Dispatch 'did effectively limit its liability for loss of commercial papers by the written limitation of liability set forth in the printed shipping receipt which was executed at the time the lost packages were delivered by the plaintiff bank to Bankers Dispatch. This limitation of liability is clear 'and unequivocal as to commercial papers, documents, and written instruments: Unless a greater value is declared in the shipping receipt, the shipper agrees and declares that 'the value of the property described in the shipping receipt is released to a value not exceeding $75,000 per shipment. Since the plaintiff bank as shipper failed to declare a greater value, the $75,000 limitation in value of the shipment is effective. However, the 'damages claimed by the bank for the loss of its packages do not exceed the limitation of $75,000. Hence the written limitation of liability contained in the shipping receipt is not applicable in this case.
If Bankers Dispatch desires to limit its liability in its contracts with the plaintiff bank and other banks it may do so, provided it complies with the statutory requirements. The only written contract between the plaintiff bank and Bankers Dispatch is the written instrument denominated a “freight bill-shipping receipt.” This document is a bill of lading, which has been defined as a document issued by a earner evidencing a receipt of and contract to carry and deliver goods. (13 C. J. S. Carriers, § 122; Teller & Co., Appellants, v. Am. Ry. Exp. Co., 78 Pa. Super. 300 [1922]; United Steel & Strip Corp. v. Monex Corporation, 310 So. 2d 339, 341 [Fla. 1975.] This court has held that a bill of lading issued by a common carrier is not only a receipt for the goods delivered to the carrier for shipment but is also a contract between the carrier 'and the consignor as to the transportation 'and delivery of the goods to the consignee or other person therein designated. (Baldwin v. Fenimore, 149 Kan. 825, 89 P. 2d 883.)
The trouble with the carrier’s position here is that it is attempting to rely on an oral contract limiting its liability when to be effective such a contract must be in writing. It must follow as a matter of law that the trial court erred in giving effect to the oral agreement between the plaintiff bank and Bankers Dispatch. Since the limitation of liability asserted by Bankers Dispatch cannot be enforced, it follows that .the plaintiff bank was entitled to recover its full damages resulting from the loss of its checks, including the value of those checks which could not be reconstructed.
Before leaving this point one other matter should be noted. The record discloses that after all the evidence had been introduced and the parties bad rested, counsel filed briefs with the court. Attached to the brief of Bankers Dispatch was a copy of a report and order of the Interstate Commerce Commission authorizing Bankers Dispatch to operate as a contract motor carrier of cash letters for banks and banking institutions upon compliance with certain provisions of the Interstate Commerce Act and the pertinent rules and regulations thereunder. We agree completely with the bank that this report and order should not have been admitted into evidence or considered by the court since it was not a proper subject for judicial notice. (Jukes v. North American Van Lines, Inc., supra.) If we assume, however, that it was properly before the court it nevertheless could not satisfy the requirements of the Carmack Amendment that a contract between a shipper and a carrier limiting the carriers liability be in writing.
We now turn to an issue raised by Bankers Dispatch on its cross-appeal. Bankers Dispatch on its cross-appeal contends that there was insufficient evidence presented at the trial to sustain the findings of the trial court that the employees of Bankers Dispatch lost the packages containing the bank’s checks and the amount of the plaintiff’s loss. We find these contentions to be without merit. As to the liability of Bankers Dispatch there was testimony showing that the Bankers Dispatch driver received the bank’s packages and that they were never delivered to the Commercial National Bank. Shortly after the loss occurred Bankers Dispatch admitted the loss of the packages and its inability to locate them. We find in the record substantial competent evidence to support the trial court’s finding that Bankers Dispatch was liable for the loss. In regard to the amount of plaintiff’s loss the testimony showed that out of $79,-384.09 worth of checks all but $4,058.73 were reconstructed. The trial court in its findings of fact set forth in detail the elements of the bank’s loss which in our judgment were supported by the evidence.
The next point concerns the allowance of interest on the damages which the plaintiff bank is entitled to recover. At the time the packages of checks were lost the amount of the bank’s loss was unliquidated. It could not be determined until the bank had an opportunity to reconstruct the lost checks and determine the expenses involved in reconstruction. The reconstruction was completed on May 26, 1971, at which time the bank made a written demand upon Bankers Dispatch for the payment of its loss. As of that date the plaintiff bank had determined its loss to consist of the following items: $768.91 reconstruction expenses; $1,255.95 for loss on the checks which could be reconstructed; and $4,058.73 for loss on the checks which were not subject to reconstruction. The total loss to the plaintiff bank resulting from the loss of the checks was determined to be $6,083.59. The bank’s damages became liquidated on May 26, 1971. A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation. Where an amount is due upon contract, either expressed or implied, and there is no uncertainty as to the amount which is due or the date on which it becomes due, the creditor is entitled to recover interest from the due date. (Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P. 2d 555; Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 520 P. 2d 1262.) The plaintiff bank is entitled to recover interest at the legal rate of six percent on the sum of $6,083.59 from May 26, 1971, to the date judgment is entered.
The district court properly determined the issue of liability in favor of the plaintiff bank. It also correctly determined all of tire elements of damages suffered by the bank including a loss of $4,058.73 on the checks which were not subject to reconstruction. This element of damage was not allowed because the trial court erroneously concluded that Bankers Dispatch had effectively limited its liability on non-reconstructible items to the sum of $50. The question then arises whether the increased award as determined on this appeal should carry interest at the rate of eight percent from the date of the original judgment or only from the date that the increased award has been allowed. Where a money award has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, the majority view is that interest on the award as modified should run from the date of the entry of the original judgment. It has been so held regardless of whether the appellate court reduced or increased the original award. (The Kia Ora, 252 F. 507 [4th Cir. 1918]; Coyle Lines v. United States, 198 F. 2d 195 [5th Cir. 1952]; Kinney v. Pollak, 225 Ala. 229, 142 So. 390 [1932]; Beeler v. American Trust Co., 28 C. 2d 435, 170 P. 2d 439 [1946]; Stockton Theatres, Inc. v. Palermo, 55 C. 2d 439, 11 Cal. Rptr. 580, 360 P. 2d 76 [1961]; Livingston County v. Dunn, 300 Ky. 367, 109 S. W. 2d 328 [1945]; Johnson v. Johnson, 250 Miim. 282, 84 N. W. 2d 249 [1957]; Gillingham v. Shiffer-Hillman Clothing Manufacturing Co., Ltd., et al., [1934] O.R. 524, 4 D. L. R. 112, [affirmed], [1934] 4 D. L. R. 801; Mascuilli v. United States, 383 F. Supp. 50 [E. D. Pa. 1974]; annotation 4 A. L. R. 3d 1221.) The A. L. R. annotation mentioned cites some cases holding to the contrary.
The only pertinent Kansas case is Lippert v. Angle, 215 Kan. 626, 527 P. 2d 1016. There the judgment of the district court was reduced and affirmed on appeal. Interest at eight percent on the judgment as modified was allowed from the date of the original judgment in district court. In Lippert we stated the rule to be that when a money judgment is merely modified and affirmed on appeal interest on the judgment as modified should be allowed from the date the original judgment was entered in the trial court. We have concluded that under the peculiar circumstances of this case the plaintiff bank is entitled to interest at eight percent from March 21, 1975, the date when judgment was entered in plaintiff’s favor in the district court. Here the district court fully determined the issue of liability and all elements of damages suffered by the plaintiff. Under these circumstances we have in effect adopted the findings of the trial court but modified the trial court’s judgment by adding an additional element of loss to be recovered by the plaintiff which although determined by the trial court was erroneously denied.
Bankers Dispatch further maintains in its cross-appeal that the trial court erred in awarding attorney fees to the bank because there was insufficient evidence of the time spent by the bank’s attorney or of the reasonable value of the services rendered. According to the brief filed on behalf of the bank prior to trial the bank’s attorneys prepared a statement based upon time slips which recorded all of the activity in the case. At the trial the court indicated that such a statement would be unnecessary and awarded attorney fees in the amount of $850. We cannot say that the award was excessive under the circumstances. However, since the judgment of the district court has been modified and increased damages awarded to the plaintiff bank by this court, the question of attorney fees must be reopened for reconsideration by the district court. The case must be remanded to the district court with directions to enter judgment in accordance with this opinion. The district court should then proceed to determine the issue of attorney fees to be allowed the bank. In making that determination the court should afford both parties an opportunity to be heard on the value of the services of the bank’s attorneys in the district court and also in this court on the appeal. A judgment should then be entered in favor of the plaintiff bank for the attorney fees as so determined together with the costs of the action.
For the reasons set forth above the judgment of the district court finding that Bankers Dispatch is liable to the First National Bank of Girard and entering judgment in favor of the bank is affirmed. Insofar, however, as the district court erred in failing to allow the bank to recover the sum of $4,058.73 for its loss on the checks which were not subject to reconstruction, the judgment is reversed and the case is remanded to the district comb with directions to enter judgment in favor of the plaintiff First National Bank of Girard in the amount of $6,083.59 with interest at six percent from May 26, 1971, to March 21, 1975, the date of the original judgment in the district court, and thereafter interest at eight percent on the sum of $6,083.59 until said judgment is paid. It is further ordered that upon remand the district court determine appropriate attorney fees to be allowed the bank in accordance with the views stated in this opinion. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Jerome A. Gross, appeals from convictions by a jury of burglary (K. S. A. 21-3715) and misdemeanor theft (K. S. A. 21-3701 [a]). The charges stemmed from the burglary of an automobile parked on a street in southeast Wichita.
The evidence at trial disclosed that on March 18, 1975, Danny Lloyd and Everett Miller (also referred to as Eddie Miller) met at defendant’s house at approximately 10 p. m., accompanied by two girls. The group went to a bar in south Wichita to drink beer. After playing pool and drinking “quite a bit of beer,” they returned to defendant’s house where they discussed the subject of stealing.
Witnesses for the state testified “Everybody wanted to go out stealing,” including the defendant. Defendant procured some screwdrivers and .the three men left the defendant’s house in Miller’s pickup truck and drove to the area of the Rainbo Rakery on South Minnesota Street where the truck was parked. Thereafter, all three began breaking into, automobiles parked in the vicinity. A police car arrived on the scene and Danny Lloyd was apprehended — Miller and defendant eluded the police. The police investigation revealed that a 1.971 Chevrolet Nova, owned by Kenneth L. Powell and parked in front of his residence, had been burglarized and two stereo speakers removed. The speakers were found by the police in the Miller pickup truck which was parked nearby. Other stolen property was also discovered in the truck.
Everett Miller, a juvenile, admitted stealing a bicycle and putting it in the truck. He was on probation for this offense at the time of defendant’s trial. Danny Lloyd, also a juvenile, admitted taking a radio out of an automobile and also stealing a bicycle and was on probation for these offenses at the time of defendant’s trial.
On March 20, 1975, defendant was arrested and taken to the police station. After being informed of his Miranda rights defendant gave a statement to Detective Moore. Moore testified that defendant admitted participating in the incident and that he had entered a small automobile and removed some stereo speakers. Defendant took the witness stand at trial, admitted being in the area when the crimes were committed, and that Lloyd and Miller attempted to get into some of the parked automobiles. He denied having a conversation about stealing or participating in any of the criminal activities. He testified that he did not recall telling Detective Moore about the taking of the stereo speakers and stated “Detective Moore could be mistaken about that.”
Defendant raises two points on appeal. He first contends the trial court erred in failing to instruct the jury on voluntary intoxication (K. S. A. 21-3208 [2]), even though no instruction was requested at trial. Defendant’s contention is without merit. The record discloses that during direct examination of Detective Moore, the prosecution, anticipating a defense of intoxication, sought to elicit evidence of other crimes committed by defendant. The state’s position was that such evidence was admissible under K. S. A. 60-455 for the limited purpose of proving the specific intent required for proof of the crimes charged against defendant. Defendant’s trial counsel lodged an objection against the evidence of other crimes in these words:
. . It’s not the Defendant’s intent to introduce that argument into it’s defense regarding intent — not being his intent due to intoxication to break into any cars. That will not form any part of Defense’s case. . . .”
The trial court sustained defendant’s objection and no evidence of prior offenses was introduced in this connection. The record further discloses that during a conference on instructions the court stated:
“The Court did have one on intoxication, number 11, which I am taking out by agreement. . . .”
The court announced that the intoxication instruction would be deleted and this ruling was not objected to. Under this state of the record, it is clear that deletion of the instruction was invited by defendant as part of his trial strategy and cannot form the basis of a valid complaint on appeal. Assuming, arguendo, failure to instruct on intoxication was error, defendant cannot now be heard to complain. This court has stated many times that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action. (State v. Carter, 220 Kan. 16, 551 P. 2d 821, and cases cited therein.)
Moreover, it appears doubtful whether an intoxication instruction was warranted under the evidence. While Miller, Lloyd and defendant all testified that considerable beer had been consumed, the defendant, nevertheless, testified:
“. . . I knew what I was doing that evening and if I had stolen somethinfg] I would remember it. I am sure that I didn’t steal anything. I’m sure that I did not break into a car.”
Everett Miller also testified:
“Jerome did not have nearly as much to drink as did Danny Lloyd. Jerome was not at all that intoxicated.”
We find no merit in defendant’s contention concerning the trial court’s refusal to submit an intoxication instruction.
For his second point defendant claims he was denied the effective assistance of counsel due to an alleged conflict of interest. Defendant’s complaint in this regard stems from the fact that his court-appointed counsel, Keith Mountain, had also represented Everett Miller in a proceeding in juvenile court. Defendant neither raised an objection nor expressed dissatisfaction with the representation afforded by Mr. Mountain at trial.
Defendant has attached to his brief on appeal an affidavit in which he states that he was never advised by Mr. Mountain of any possible conflict or that Everett Miller might take the witness stand and testify against defendant at trial. The state points out that the affidavit was not presented to the trial court or to the state, nor was it designated by defendant as a part of the record. Defendant has totally failed to comply with Supreme Court Rule No. 6 (m) (214 Kan. xxv) and under the circumstances the affidavit cannot be considered by this court on appellate review. Nevertheless, we have examined the record and considered defendant’s arguments concerning conflict of interest on the part of counsel. Defendant cites State v. Hilton, 217 Kan. 694, 538 P. 2d 977, in support of his claim of conflict of interest. The case referred to was a disciplinary proceeding in which the respondent attorney was censured on several grounds, one of which was his continued representation of two codefendants during plea bargaining negotiations, after it appeared that matters to the advantage of one client might become disadvantageous to the other, thus impairing the attorney’s independent professional judgment toward the case of one client or the other. Concerning dual representation by respondent attorney in the Hilton case this court said:
“In undertaking to represent codefendants in a criminal case counsel should always be aware of conflicts which may and frequently do arise. The most serious conflict that might arise is that which occurred in this case — i. e., one defendant takes a plea and becomes a state’s witness while the other goes on to trial on a plea of not guilty to the same charge.” (p. 698.)
Unlike the conflicting simultaneous representation of two clients which was condemned in Hilton, the record in the instant case clearly shows that Mr. Mountain did not attempt to represent the interests of Everett Miller and those of defendant at the same time or in a joint trial. In Hilton, defense counsel was representing one client.on trial when his other client, a codefendant who had pled guilty, but had not been sentenced, appeared as a state’s witness. Defense counsel was confronted with cross-examination of the codefendant witness and, thus, had to attempt to represent his client on trial and, at the same time, protect his witness client who had not been sentenced. In such a situation a conflict of interest is present. In the instant case Mountain’s representation of Miller had terminated. Miller had been sentenced and granted probation prior to trial.
We cannot approve Mr. Mountain’s conduct if, as defendant claims, he 'failed to inform defendant of his prior representation of Miller and the possibility of conflict of interest. Ethical practice requires that an attorney fully inform his client in such matters. As much as we disapprove of Mountain’s proceeding with a de fense without informing his client of facts underlying a possible conflict of interest, we cannot say, on this record, that his representation of defendant violated the constitutional requirement of effective assistance of counsel. Defendant makes no showing of prejudice, nor does he point to any specific acts of omission or commission on the part of Mountain which affected the outcome of his trial. The record is barren of prejudice; in fact it discloses that Mountain, in his cross-examination of Miller, brought out testimony which supported defendant. Mountain procured an admission from Miller that he had not seen defendant take anything at all during the evening in question and, further, that Miller had overheard defendant trying to talk Danny Lloyd out of committing the impending crimes while the three men were on the way to the scene in Miller’s pickup truck.
A mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused’s constitutional rights to effective counsel. (Miller v. State, 210 Kan. 542, 502 P. 2d 833.) To constitute denial of an accused’s constitutional rights it must clearly appear that the representation by his counsel was wholly ineffective and inadequate. (Miller v. State, supra; and Widener v. State, 210 Kan. 234, 499 P. 2d 1123.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is an original proceeding in habeas corpus by an inmate of our state penitentiary. The petition prepared by the petitioner was filed in this court on July 17, 1946. It alleged that the petitioner’s incarceration in the penitentiary was unlawful and stated a number of reasons for that conclusion. Obviously many of the reasons suggested had no merit. Notwithstanding that, the court directed that the petition be filed and fixed a time for respondent to answer. After the answer was filed the court appointed Mr. William M. Mills, Jr., a capable, reputable attorney of this court, as attorney for the petitioner. Mr. Mills examined the files, conferred personally with the petitioner and corresponded with members of his family, as a result of which the petitioner abandoned most of the points originally stated by him and rested his right to discharge upon the grounds: (1) That he had made repeated requests for counsel, which requests were denied; (2) that the district judge violated G.' S. 1945 S'upp. 62-1304, by not informing petitioner that he was entitled to counsel and by denying petitioner’s express request for counsel, and (3) that he did not competently and intelligently waive his right to counsel.
The record before us indicates that a complaint had been filed before the justice of the peace of Bourbon county charging petitioner with the larceny of a described automobile, and a warrant was issued for his arrest; that he was arrested in Kansas City, Mo., waived extradition, and was taken to the jail in Bourbon county. There he was informed that the state had four charges against him — one for the stealing of the automobile, another the stealing of automobile tires, and two complaints of obtaining money or property by fraudulent representation, each being a felony; that he waived a preliminary examination upon the charge of stealing the automobile, and an information in due form was filed in the district court charging that offense under the name of Jack Smith, alias H. H. Johnson; that on March 14, 1946, he was brought into court and duly arraigned, the information being read to him by Frank O’Brien, county attorney, when the following proceedings were had, which were taken by the court reporter and later transcribed and filed as a part of the record in'the case:
“Court: Mr. Johnson, this Information charges you with a felonious offense. That would bear a sentence to the penitentiary. Under the law you should have an attorney to represent you or else waive the right to have an attorney. Do you have any attorney?
“H. H. Johnson : No, sir.
“Court: Do you desire the Court to appoint an attorney for you?
“H. H. Johnson : Your Honor, since I am pleading guilty to this charge I don’t think I should need one. I don’t know.
“Court: You have talked with the County Attorney and know what the situation is?
“H. H. Johnson : Yes, sir.
“Court: How old are you?
“H. H. Johnson: Forty-five.
“Court: Do you have a signed waiver, Mr. County Attorney?
“Frank O’Brien: Yes, I have one here.
“Court: Well, show the waiver to him and let him sign it if he wants to.
“Frank O’Brien: What is your real name, Jack?
“H. H. Johnson : J. H. Johnson.
“Court: Let him sign it that way.
“Frank O’Brien: I will date this the 14th. Will it be all right for the Sheriff and myself to act as witnesses?
“Court: It will be all right.
“Frank O’Brien: I would like to read this Waiver with the Court’s permission.
“Court: Very well.
“Frank O’Brien: (Reading Waiver of Right to Representation by counsel)
“Waiver of Right to Representation by Counsel. I, Jack Smith, alias H. H. Johnson, Defendant in the above entitled action in which I am charged with Grand Larceny, having been advised by the Honorable Harry W. Fisher, Judge of the District Court of Bourbon County, Kansas, that I am entitled to representation by counsel in this matter, and that if I am not able and willing to employ counsel of my own choosing, the Court will appoint counsel to represent me, do hereby state that I do not want counsel to represent me and waive any right which I may have under the law to be represented by counsel.
“No duress, threats or pressure of any kind have been made to induce me to execute this waiver and it is done of my own free will and accord.
“Dated at Fort Scott, Kansas, this 14th day of March, 1946.
“(Signed) J. H. Johnson, Defendant.
“Witness of signature:
“Russell Simmons (Signed)
“Frank O’Brien (Signed)
“Court: To this information how do you plead, guilty or not guilty?
“H. H. Johnson: Guilty, Your Honor.
“Court: The law in Kansas, Mr. Johnson, provides for sentence so the' Court has no power to vary these sentences and the length of time that is served under them is largely in the discretion of the Board of Pardon 'and Parole, depending a lot upon the way you get along in the institution: The penalty for this offense is a sentence which I will prescribe. That you be confined in the Penitentiary for a period of not less than five nor more than fifteen" years and that you pay the costs of your prosecution.
“Frank O’Brien: I might state for the benefit of the Court and the Defendant in order that there will be no misunderstanding, this Defendant would have been charged in this Court under four separate informations, this one charging the theft of an automobile.
“Court: I see there is also a case filed charging larceny of tires.
“Frank O’Brien: Yes, I have asked to dismiss that. One is charging the larceny of the tires as you have indicated and two with cheating by false representations, all being a felony as the Court is aware. Since he has been in jail I have talked with him two or three times at his request. He has been cooperative and I have talked with him about what should be done in this case. He said to me possibly he would plead if I would reduce it to one count. I told him if he plead at all I would expect him to plead to the more serious of the offenses. That he has done. I will dismiss the cases pending and no prosecution will be brought on the two other cases.
■“Court: Very well, the other case is dismissed. You will be in the custody of the Sheriff. Luck to you.
“H. H. Johnson: Yes, sir.”
These proceedings conform substantially to our statute (G. S. 1945 Supp. 62-1304). They are contradicted only by the assertions of petitioner. This is insufficient. (See Kneisley v. Hudspeth, 161 Kan. 772, 775, 173 P. 2d 247.) The substance of these proceedings was embodied in the journal entry, as required by G. S. 1945 Supp. 62-1516. The sentence imposed was that provided by G. S. 1935, 21-534. There is no merit in petitioner’s contention respecting counsel. In his affidavit filed herein he states that he was induced to enter his plea of guilty by the repeated assertions of the county attorney that if he did not do so he would call the attention of the court to his previous convictions, as a result of which he would receive a life sentence. This is denied by the affidavit of the county attorney. There is nothing in the record to indicate that the county attorney or the. court at the time of his plea and sentence knew of his previous convictions. Attached to the return of respondent in this case is a list of previous convictions furnished by the FBI. These show that beginning in 1918 the petitioner had been convicted of a felony and sentenced to penal servitude seven different times prior to his arrest in this case. We think the petitioner was the one who had those matters in mind and feared the county attorney would learn of them, with the result of an increased sentence. Perhaps it is to be regretted that the county attorney did not know of them and call them to the attention of the court, for if our statute (G. S. 1945 Supp. 21-107a) on that question should apply to anyone it would seem appropriate that it should apply to the petitioner.
The writ prayed for is denied. | [
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Per Curiam.
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Ter Civriam:
This is an appeal from the order of the trial court denying William LeRoy Breier (petitioner-appellant) a hearing upon his writ of habeas corpus pursuant to K. S. A. 60-1501 and dismissing the appellants action.
When this action was filed appellant was confined in the Kansas State Penitentiary serving a sentence for robbery. He alleges he was sexually assaulted by another inmate on June 16, 1973; he was not permitted to see a doctor for ten days after the assault, and he was denied an opportunity to file criminal charges in the district court of Leavenworth County against his assailant.
The record shows appellant received medical attention. (See Coppinger v. Townsend, 398 F. 2d 392 [10th Cir. 1968]; and Paniagua v. Moseley, 451 F. 2d 228 [10th Cir. 1971].) Upon appellant’s complaint the attacker was “disciplined” by the prison authorities complying with the administrative rules of procedure. Nowhere is there a showing that the mistreatment claimed by appellant was continuing or probably would continue. Likewise there is no showing of abuse or caprice upon the part of prison officials. In fact, a damage suit in federal district court against prison officials founded on the facts in this case was dismissed because appellant failed to show obvious neglect or intentional mistreatment. (Breier v. Atkins, L-2737 [D. Kan. 1975].)
The trial court properly ruled that “the petition fails to state a claim upon which relief can be 'granted in a habeas corpus proceeding.”
Continuing, or probable continuing, mistreatment must be shown to support an action in habeas corpus. (Levier v. State, 209 Kan. 442, 497 P. 2d 265.) Furthermore, responsible prison administration is not subject to judicial review in the absence of actions constituting clear abuse or caprice upon the part of prison officials. (Levier v. State, supra.)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Gary K. Alderdice, from his conviction of aggravated robbery in violation of K. S. A. 21-3427, a class B felony. He was sentenced to be imprisoned for not less than ten years nor more than life, pursuant to K.S.A. 21-4501 (b).
He contends that the trial court erred in receiving into evidence the preliminary hearing transcript of the testimony of John Purdy; in its rulings on the admissibility of exhibits; in its jury instructions; and in denying probation without conducting a further hearing.
In the early morning hours of October 19, 1974, the defendant drove to a supermarket in Wichita. He was accompanied by Betty Jo Purdy, her sixteen-year-old daughter, Billie Jo, and her fourteen-year-old son, John. Mrs. Purdy and her daughter entered the market, leaving defendant and John in the car. Defendant showed John a hand gun, a blackjack, and a pair of handcuffs.
Shortly after Mrs. Purdy and her daughter returned to the car, Jay Van Price came out of the market with a bag of groceries and proceeded to his car, which was parked nearby. As Price drove home, Alderdice followed. When Price pulled into his driveway, the defendant drove on by, turned the comer, and parked out of Price’s sight. The defendant jumped out of the car and told John to come along. As Price was locking his car door the defendant appeared with a gun, told Price not to move, and demanded his car keys. Price handed over the keys, and Alderdice hit him over the head with a blackjack, knocking him unconscious- While Price lay on the ground, Alderdice removed his wallet. Alderdice then unlocked the trunk on Price’s car and ordered him to get in. Price, bleeding heavily from the wound on his head, climbed into the trunk. Alderdice threw Price’s bag of groceries on top of him and closed the trunk lid. Alderdice and John then returned to Alderdice’s car and drove to the Purdy residence, where Alderdice directed Rilly Jo and John to burn Price’s wallet, containing his birth certificate and his driver’s license bearing his photograph.
Meanwhile, Price escaped from the trunk by kicking his way through the back seat. He went to a hospital, where fifteen stitches were required to close his head wounds.
John Purdy and Price both testified at the preliminary hearing. Alderdice was seated in the spectator section of the courtroom, accompanied by six other men, all of whom were about the same height and all of whom wore glasses. Nevertheless, both Purdy and Price identified the defendant. Price stated that the defendant had the end of one finger missing, and he described Alderdice’s vehicle, a powder blue Ford with a white roof and a red trunk lid.
At trial, defendant was identified by Price, and by Mi’s. Purdy and her daughter. The transcript of the testimony of John Purdy at the preliminary examination was admitted upon trial, and gives rise to the principal claim of error. Defendant contends that John Purdy was not “unavailable” as a witness at the trial, and thus it was error to receive the transcript in evidence.
John was subpoenaed by the state, and appeared and testified at the preliminary examination- During the week prior to trial the state issued a subpoena for him. This was left with his mother. Mrs. Purdy testified that she did not see John between the time the subpoena was served and the time of trial. Though John was technically in her custody, he sometimes stayed with her, sometimes with his father, and sometimes with his grandparents. She talked with him by telephone on Saturday morning and advised him of the subpoena, but she did not believe that he would appear so she called the sheriff’s office and gave them this information. A detective was dispatched to find John, and he spent several hours attempting to do so on Sunday. Trial commenced on Monday morning. During trial the state carefully questioned Mrs. Purdy and her daughter as to the whereabouts of John, and dispatched several officers who were unable to locate him. The trial court heard the testimony of the various officers who participated in the unsuccessful search, and at the conclusion of that testimony admitted the transcript of John’s testimony at the preliminary examination. Defendant contends this was error.
K. S. A. 60-460 (c) states an exception to the hearsay rule as follows:
“Subject to the same limitations and objections as though the declarant were testifying in person . . . (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in . . . a preliminary hearing . . . when . . . the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection . . . shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face;”
K. S. A. 60-459 is also germane. It provides in applicable part that:
“As used in K. S. A. 60-460, its exceptions and in this section:
“(g) ‘Unavailable as a witness’ includes situations where the witness is . . . (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.
“But a witness is not unavailable (1) if the judge finds that his . . . absence is due to . . . the culpable neglect of such party . . .”
We discussed both statutes at length in State v. Steward, 219 Kan. 256, 262-265, 547 P. 2d 773. At page 264, we said:
“. . . It may be said that the controlling test of unavailability, established by our cases, is the so-called ‘reasonable diligence rule.’ . . . The rule is stated in State v. Washington, 206 Kan. 336, 479 P. 2d 833, as follows:
“ ‘Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a “good faith effort” to obtain the witness’s presence at trial (Barber v. Page, 390 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P. 2d 695; State v. Guthrie, 192 Kan. 659, 391 P. 2d 95; State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168; State v. Streeter, 173 Kan. 240, 245 P. 2d 1177. Also, see K. S. A. 60-459 [g]).’ (p. 338.)
“See, also, State v. Bey, 217 Kan. 251, 535 P. 2d 881; State v. Kirk, 211 Kan. 165, 505 P. 2d 619; and State v. Ford, 210 Kan. 491, 502 P. 2d 786.
“This court has not attempted to define the term ‘reasonable diligence’ with the preciseness demonstrated in the definition of some other legal phrases. Analysis of our cases discloses that each case turns on its own particular facts and circumstances. . . .”
In the case at hand, the state had no reason to suspect that John Purdy would not appear for trial until the Saturday before trial was to commence. The trial court was satisfied, upon a full evidentiary hearing, that the state exercised due and reasonable diligence in order to locate him, but was unable to do so. The record amply supports this finding. The trial court did not abuse its discretion in finding that John Purdy was “unavailable.”
The defendant also contends that he was denied the right of confrontation at trial by the admission of the preliminary hearing transcript of the testimony of John Purdy. Purdy was cross-examined extensively at the preliminary hearing by the same counsel who represented the defendant at trial. We have long held that preliminary hearing transcripts may be admitted upon trial under similar circumstances, and that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. State v. Terry, 202 Kan. 599, 602, 451 P. 2d 211, and cases therein cited.
Our present statute, K. S. A. 60-460 (c), merely reiterates the rule which we have followed for many years. Defendant was here granted full right of confrontation and cross-examination. We find no error.
Defendant next contends that the trial court erred in disposing of his motion for probation without granting an evidentiary hearing. An application for probation was made orally at the time of sentencing. The trial court proceeded to sentence the defendant, and indicated that it would consider the matter of probation further upon receipt of a report from the Kansas Reception and Diagnostic Center.' The court ordered that the defendant be taken to the center, not for the purpose of a pre-sentence report, but as a part of his sentence.
On September 2, upon being advised that a report from the center had been received, defendant’s counsel filed a formal written motion for probation, and requested oral argument. On tbe same date the court considered the application for probation. Its order states:
“After noting the violence involved 'in the present case, the report of the diagnostic center, and that the defendant is not a first-offender, said motion and oral argument thereon is . . . denied. . . .”
In State v. Benson, 207 Kan. 453, 485 P. 2d 1266, Justice Fromme, speaking for the court, said:
“The granting of probation is exlusively a function of the trial court and we hold a decision of the trial court denying probation is not subject to review by an appellate court.” (p. 458.)
Here the court initially heard an oral motion for probation, deferred action until a report was received from the reception and diagnostic center, then reviewed the matter and denied probation. The court was not required to hold an additional hearing. We find no abuse of discretion and no error.
We turn next to defendant’s contention that two exhibits were not shown to be in the same condition they were in at the time of the commission of the offense, and that they were therefore inadmissible. Our rule does not require such a showing. As we said in State v. Beard, 220 Kan. 580, 584, 552 P. 2d 900, quoting from State v. Tillman, 208 Kan. 954, 494 P. 2d 1178:
“ ‘ “ . . . The rule is that a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock-and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. (State v. Cook, 17 Kan. 392; State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.) The ultimate question of the sufficiency of the proof is, of course, for the jury to determine. . . .” (pp. 958-959.)’” (Emphasis supplied.)
The exhibits here were acquired by a detective two days after the robbery. He identified them by his initials and the date which he had placed thereon when he took possession of them, and he testified that they were in substantially the same condition at the time of trial as they were when he received them. Under our rule this was adequate.
Defendant testified that while he was operating a metal shear in the course of his employment on September 2, 1974, he mashed the little finger on his right hand. He was taken to the hospital and the tip of that finger was amputated. He remained under the care of his physician until October 21, two days after Van Price was robbed. Defendant said that he went to see his physician on October 10. He offered in evidence two documents which he received as a result of that office call. Exhibit 7 is a bill for $5 for the office call; exhibit 6 is a handwritten note from the physcian, dated October 10, stating that Alderdice should not return to work for two weeks because his finger was still tender and moderately swollen. The trial court refused to admit these exhibits, holding that they were not relevant. Defendant contends this was error.
In State v. Baker, 219 Kan. 854, 549 P. 2d 911, We said:
“. . . ‘[R]elevancy [is] a matter of logic and experience and not of law. . . . If an item of evidence tends to prove or disprove a proposition, it is relevant to that proposition. . . .’ Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1 (1956). The standard of relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. 1 Jones on Evidence §4:1 (6th ed. 1972).”
The definitions in K. S. A. 60-401 (a) and (b) are germane. They read:
“(a) ‘Evidence’ is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay.
“(b) ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.”
Defendant argues that the exhibits were relevant to show that he had knowledge of the condition of his finger some nine days prior to the robbery, and that such knowledge is thus relevant to his decision-making process on the date of the robbery. He reasons that his little finger was tender and swollen, and the fact that the doctor told him of its condition and told him not to return to work would have deterred him from deciding to commit an aggravated robbery. He admitted, however, that on the date of the robbery the condition of his finger did not keep him from playing pool, playing foosball, or driving his car.
The proffered evidence was, at most, tangential. It was collateral only to the fact in issue and its probative value insignificant. We conclude that the trial judge did not abuse his discretion in refusing to admit the proffered exhibits.
Lastly the defendant contends that it was error for the court to give the jury instruction No. 4, an almost verbatim rendition of PIK Criminal 68.12, relating to jury deliberation. This instruction was included and given at the time of the original charge to the jury. The instruction was discussed and approved in State v. Oswald, 197 Kan. 251, 260, 417 P. 2d 261. That opinion was cited with approval as recently as State v. James, 217 Kan. 96, 101, 535 P. 2d 991. Under the circumstances of this case we find no instructional error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original habeas corpus proceeding in which the petitioner, who is now an inmate of the state penitentiary by virtue of a judgment of the district court of Crawford county sentencing him to confinement in that institution, under the habitual criminal statute, for larceny of an automobile, seeks his release tipon the basic proposition the judgment authorizing his restraint is null and void.
The application for the writ, which was supported by a verified statement of facts and accompanied by a motion requesting the appointment of counsel, was prepared by the petitioner and mailed by him to the clerk of this court. In due time the papers were presented to us for attention and after having examined them we ordered that they be filed without a depSsit for costs and the case docketed as an original proceeding. Thereafter, we appointed Milton P. Allen, a reputable and competent attorney of Lawrence, to assist the petitioner in any and all matters relating to the preparation and presentation of his action. Mr. Allen accepted employment, consulted with the petitioner, filed a brief in his behalf and personally argued the merits of his cause when it came on for final hearing.
Petitioner’s application sets forth at length the 11 grounds bn which he relies for the granting of a writ but it will not be necessary to relate them in detail. Summarized, and in inverse order of their importance they are: (1) That while confined in jail petitioner was held incommunicado and was not allowed to consult with his friends and relatives; (2) that he did not enter a plea of guilty to the crime with which he had been charged; (3) that — and this statement covers 8 of the variously stated claims set forth in the application —he was arrested in Missouri by Kansas officers and by force and violence removed from the state of Missouri to Kansas without compliance with the laws pertaining to extradition of persons charged with crime and (4) that he was not represented by counsel at the time of entering his plea as required by law.
Briefly stated, the respondent’s answer and return denies the allegations of the application, alleges that petitioner was lawfully in custody by reason of'a valid judgment and sentence, sets forth copies of the authority for petitioner’s restraint and includes verified statements of at least five public officials dealing with factual issues raised by the application.
In our consideration of the issues, as in all other habeas corpus cases, statements of fact made by the deponents in the verified statements presented by the parties in support of their respective positions will be given the same weight to which they would be entitled had the affiants been personally present and orally testified as witnesses.
Claims 1 and 2, heretofore referred to, warrant little time or space in this opinion. So far -as No. 1 is concerned the evidence not only reveals the petitioner has failed to establish his contention that he was held incommunicado and denied the right of consulting with his friends and relatives as is required by our decisions (Downs v. Hudspeth, ante, p. 575, this day decided) but conclusively establishes that he was not denied that privilege. With respect to No. 2, in the face of a record to the contrary, the petitioner’s unsupported and uncorroborated statements to the effect he did not plead guilty are not sufficient to set aside the authenticity of a recorded judicial proceeding (Powers v. Hudspeth, 161 Kan. 777, 173 P. 2d 251; Wooner v. Amrine, 154 Kan. 211, 117 P. 2d 608) even if the evidence did not affirmatively prove — which it does — that on two different-occasions he actually entered such a plea.
It is next urged that petitioner was arrested in Missouri by Kansas officers and forcibly and violently returned to Kansas without compliance with the laws pertaining to extradition of persons charged with crime. Counsel, who construes the evidence as having affirmatively established that fact, strenuously argues the court had no jurisdiction to render judgment. At the outset it must be conceded the petitioner was apprehended in Missouri and brought to Kansas without the issuance of extradition papers. Even so, it does not follow the Kansas court in which the criminal proceeding was pending lacked jurisdiction to receive petitioner’s plea of guilty and impose sentence thereon. Long' ago in State v. Garrett, 57 Kan. 132, 45 Pac. 93, this court held:
“A person against whom a warrant has been issued by a magistrate of the state, and who is outside of the limits of the state, may waive the issuance of extradition papers, and voluntarily surrender himself to the jurisdiction of the courts of the state.” (Syl. f 1.)
Thus it appears we have for decision the factual issue of how the petitioner came to Kansas before there is any occasion to pass upon the legal question presented by his counsel. On this point we cannot overlook certain portions of the testimony which have apparently been ignored by petitioner. Let us look at the record.
On the morning of December' 26, 1946, four Kansas officers, presently named, armed with a warrant for petitioner’s arrest left for Missouri with the intention of apprehending him. After teaching the state, for some reason which is not material, they were unable to contact any Missouri officer who would accompany them. Nevertheless, after some inquiry they found petitioner at a country store. What happened thereafter is important. Petitioner contends that at the point of a gun he was forcibly seized, placed in an automobile and taken back into Kansas against his will -and supports his claim by his uncorroborated statement. Respondent, based upon statements made by Lawrence M. Walker, a respected attorney of this state and then county attorney of Crawford county, Paul A. Clark, another reputable attorney and at that time deputy county attorney of Crawford county, H. E. Kneebone, the then undersheriff' and Henry Beznigue, deputy sheriff, claims that petitioner after having been told by such officials that they had a warrant for his arrest freely and voluntarily announced his willingness to return to Kansas with them after having first been advised he did not have to do so without extradition proceedings. There is, of course, as is usually the case where four persons relate events pertaining to the same situation some discrepancies in the statements made by the various witnesses but from our examination of their testimony it clearly appears each and every one of them specifically deny any force or threats of force were used to induce petitioner to accompany them and that all expressly state, in one form or another, that he ' told them he was willing to go back to Kansas with them and voluntarily offered to do so. We do not deem it necessary to relate all the incidents upholding respondent’s contention on the point in question. Without further labor it will suffice to say that after careful consideration of the entire factual record we are convinced the respondent’s evidence, not the petitioner’s, should be given credence and hold it establishes that the petitioner voluntarily submitted himself to the jurisdiction of the court rendering the judgment now challenged by him.
The conclusion just announced eliminates any necessity for decision of the interesting legal question raised by petitioner’s counsel to the effect that the courts of this state do not have jurisdiction to render judgment in a criminal action where it appears the defendant was arrested in another state and involuntarily brought into our own. We have not been unmindful of the petitioner’s contention in that regard but simply pass it without decision for the reason heretofore stated. As we do so it might be well to point out that contrary to petitioner’s claim the question is not stare decisis in this jurisdiction notwithstanding our decision in State v. Simmons, 39 Kan. 262, 18 Pac. 177. See the opinion in State v. Wellman, 102 Kan. 503, 508, 170 Pac. 1052, where it was said, “the jurisdiction of a district court to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state.”
Finally it is contended petitioner was not represented by counsel at the time of entering his plea as required by law. We shall briefly refer to the record facts pertinent to a disposition of such claim. For some unexplainable reason the journal entry shows that petitioner pleaded guilty and was sentenced on January 3,1946, whereas it'is now conceded sentence was pronounced on January 11, 1946. The date on which his plea was entered is not admitted. It is true that on January 3, 1946, he pleaded guilty and that at such time he was represented by an attorney who had been appointed by the court to represent him. However, it is likewise true that on such date petitioner asked leave to withdraw his plea and that at such time his counsel announced in open court he was leaving to rejoin the armed forces of his country and could no longer represent his client. Whether the court permitted withdrawal of the plea as requested is not too clear from'the record but there is evidence, not denied, which requires the conclusion it did so. In addition the uncontroverted evidence of respondent's own witnesses is that thereafter and on January 11, 1946, petitioner was taken before the court and without counsel entered a plea of guilty and was sentenced on such plea. Under the conditions and circumstances just related when he appeared in court on the date last mentioned without an attorney petitioner’s legal status was that of a person who was about to be arraigned upon an information for an offense against the laws of the state and under G. S. 1945 Supp. 62-1304, it was the duty of the court to appoint counsel to represent him unless he waived counsel in' writing and the court over his objection found that appointment of counsel would not be to his advantage. This was not done. In that situation his rights are ‘determined by our decision in Davis v. Hudspeth, 161 Kan. 354, 167 P. 2d 293, where it was held:
“When, any person is about to be arraigned upon an information or indictment all of the provisions of G. S. 1943 Supp. 62-1304, are mandatory and strict compliance must be made therewith in order to give a court jurisdiction to accept a plea of guilty.” (Syl. IT 1.)
Since the court was without jurisdiction to accept it the petitioner’s plea of guilty is set aside. However, as a consequence, he is not entitled to his unrestrained liberty (Davis v. Hudspeth, supra). It is ordered that he be released from confinement in the state penitentiary under his illegal sentence and judgment and placed by the respondent in the custody of the sheriff of Crawford county, Kansas, who is directed to return him to the jail of that county to await proper proceedings in the criminal action yet pending against him in the district court of such county.
The writ is denied. | [
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The opinion of the court was delivered by
Hoch, J.:.
This is an appeal by a judgment debtor from an order denying a motion to vacate the judgment. Appellant contends that the court was without jurisdiction to enter judgment against her.
Appellant and her husband were joint makers of a promissory note. In an action by appellee to recover on the note, both defendants answered with a general denial. The case was heard and the journal entry of judgment recites that the plaintiff, the Kackley State Bank, appeared by Fred Swoyer, its attorney, and that the ■defendants appeared by N. J. Ward, their attorney; that upon a showing that the defendant, Alva Nichols, had taken bankruptcy subsequent to the filing of the action, the case was dismissed as to him upon request of the parties; that the allegations of the petition were true and that Hazel I. Nichols was indebted to the plaintiff in the sum of $1,117.63 with interest, aggregating $1,579.58, for which judgment was entered against her.
Subsequently, and during the same term of court, Hazel I. Nichok filed a motion to vacate the judgment, alleging that she had not been served with summons and had made no appearance in the case. She asked that the return of the sheriff be amended to show that he “attempted to serve the defendant, Hazel I. Nichols, by reading to the husband of the said Hazel I. Nichols said notice and summons in said suit.” The motion to vacate did not allege that there was a valid defense to the action in which judgment had been entered.
At the hearing, the judgment-creditor objected to consideration , of the motion insofar as it attempted to impeach the sheriff’s return, on the grounds that all the facts recited in the return were clearly within the personal knowledge of the sheriff and could not be impeached by oral testimony. The court reserved its ruling on' the competency of oral testimony and witnesses were called. It is unnecessary to recite much of the testimony. Mrs. Nichols denied that she had been served with summons, and the sheriff stated that he had delivered the summons personally to Mr. Nichols and left a copy with him for Mrs. Nichols and asked him to give it to Mrs. Nichols, but did not personally serve it upon her. Further testimony was heard upon the question of whether Mrs. Nichols had entered appearance by an attorney, N. J. Ward, in the original action. After having taken the matter under advisement, the court overruled the motion to vacate and filed the following memorandum:
“On consideration of the record and the legal questions involved, and pursuant to the order heretofore entered, taking this matter under advisement, the court now finds:
“1. The testimony offered in reference to the matter of service of summons upon the defendant, Hazel I. Nichols, was and is incompetent, and should be given no consideration.
“2. The Sheriff's Return is conclusive, especially after judgment, if it shows personal service on the defendant.
“3. Given liberal interpretation, as should be done after judgment, such return is reasonably susceptible of the meaning that the Sheriff made personal service of summons on said defendant.
“4. Any possible defect in or question as to the validity and effectiveness of the service on said defendant was Waived by her appearance and answer by and through an attorney, as hereafter stated.
“5. The testimony produced as to the' authority of the attorney to act for the defendant and to file an answer in her behalf and thus enter a general appearance for her in the action is not sufficient to overcome the presumption in favor of such authority which the court must indulge.
“6. The court is unable to give full credit to the testimony of the defendant and her husband as to such matter, and believes and finds to the contrary that each of them authorized said attorney to represent them in this action to the extent and in such manner as his judgment should dictate was in their best interest; and that the answer and consequent general appearance was thus filed and entered by him.
“Some significance may properly be given to the admitted fact that this defendant owned no assets at the time such appearance was made for her out of which plaintiff could realize on its claim; that since then she has acr quired assets that give rise to the possibility the same may be subjected to the payment of the judgment against her; and further that if it be held there was no valid service or authorized appearance in this action by said defendant, any right of action by the plaintiff is now barred under the statute. These facts were considered by the court in determining the weight and credit to be given to the testimony produced in behalf of the defendant.
“7. From the foregoing it will be seen that it is in truth immaterial whether there was in fact valid service of summons upon the defendant, since the conclusion as to the authority of the attorney is sufficient to and does compel denial of relief to the defendant under the pending special appearance and motion to vacate the judgment.
“The Motion should be overruled.”
The sheriff’s return reads as follows:
“Received this writ, March 10th, 1945, at 5 o’clock, P. M. Served the same by delivering a copy thereof, duly certified, with the endorsements thereon to each withiru-named defendant, personally, at the times following, towit:
“Alva Nichols, Courtland, Kansas, Personally 3/10/45..
“Hazel I. Nichols with, husband 3/10/45.
“William S. Trask, Sheriff.” (Italics supplied.)
Clearly the return was not invalid upon its face. Appellant contends that the words “with husband” appearing on the return indicate lack of personal service. The presence of those words might arouse some doubt as to personal service, but-we cannot say that they compel a conclusion that there was no personal service upon Mrs. Nichols.
' In a series of cases, we have refused to permit a sheriff’s return to be impeached as to matters clearly within his personal knowledge. In-the early case of Starkweather v. Morgan, 15 Kan. 274, the facts in regard to service of summons and the return made were very similar to those in the instant case. The wife moved to have the return of service of summons upon her set aside. The service was sustained on the grounds that the return of the officer was of the highest order of evidence as to matters within his personal knowledge therein recited. Subsequent cases have followed this rule. Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055, 54 A. S. R. 608; Ericson v. Charles, 108 Kan. 205,194 Pac. 652; Warren v. Wilner, 61 Kan. 719, 60 Pac. 745; Orchard v. Peake, 69 Kan. 510, 77 Pac. 281; Smolinsky v. Federal Reserve Life Insurance Co., 126 Kan. 506, 268 Pac. 830, 59 A. L. R. 1394.)
In Duke v. Central State Bank, 120 Kan. 99, 242 Pac. 471, the action was on a promissory note against three defendants. The sheriff’s return showed service at the residence of A, and personal service on B and C. Judgment by default was entered against all defendants. Execution was issued and levy made upon real estate belonging to defendants B and C, who subsequently brought action to enjoin sale of their property, for the reason that they were not served with summons in the action. The sheriff himself filed a motion asking to correct his return to show no service instead of personal service. He testified that he did not sign the return, and did not know the facts in regard to service other than shown by the return. His office girl testified that she had signed the .return— ■which she had authority to do — reporting the facts as she understood them from the deputy who served the summons. Nevertheless, injunction was denied, the court holding that, “The return of a sheriff upon a summons as to matters within his personal knowledge is not open to contradiction or to be disproved by extrinsic evidence after the rendition of judgment.” In the opinion the following supporting cases were cited: Ericson v. Charles, Orchard v. Peake, Goddard v. Harbour, all supra, Eastwood v. Carter, 9 Kan. App. 471, 61 Pac, 510,
We do not need, in this case, to go as far as the court went in the Duke case. But the most that could be said against the instant return is that it was voidable. Assuming that the return could be impeached by testimony of the sheriff that he did not personally serve it and that it was therefore voidable, it is to be noted that in the motion to. vacate the appellant did not allege a valid defense, ■ nor did she offer any testimony that she had a valid defense on the note. Section 60-3013, G. S. 1935, provides as follows:
“A judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action on which the judgment is rendered.”
See, also, Warren v. Wilner, supra, in which, under facts similar to those of the instant case, the court said:
“Mrs. Warren seeks to impeach the return of the sheriff and to overthrow the judgment by her own testimony that no service was made on her, and that the appearance of the attorney for her was unauthorized. She does not state that she was ignorant of the pendency of the action or of the return which the sheriff had made, and, besides, there is no showing that she had a defense to make if the judgment were set aside.” (p. 720.) (Italics supplied.)
The opinion might well end here, but we have given consideration to appellant’s second contention that'Ward had ho authority to represent her, and cannot say that under all the facts and circumstances disclosed, the trial court’s finding on this point was not supported by any substantial evidence. Such being the case, we cannot disturb it. The debts of the defendants were discussed at Ward’s office prior to filing the action in bankruptcy, and Ward testified that appellant assisted him in making out the bankruptcy schedules. This was prior to the trial of the action on the note. Ward testified:
“It is my recollection when we filled out the schedules, we were just talking about Alva and his job, and that was the purpose of it, and that was all we talked. She helped him furnish the information about those other claims, because I told them they would have to list all their creditors, to be proved . . . that he would have to. I knew there was a suit. I see I have a copy of the summons in the files. He handed that to me.
“Q. And you thought at that time, by what transpired there, you thought at that time you had authority to do such things as were necessary to be done for those people about the matter about which they were consulting you? A. That is right.
“Q. And when you filed the answer you believed that was the thing you were supposed to do to properly protect the interest of both of these people who had consulted you? A. That is right. I thought it was the thing to do under the circumstances.
“Q. You never heard anything then of any complaint after that action until three or four weeks ago, is that right? A. I think so.
“Q. (By the court.) You said awhile ago that along in April, when their, when they were discussing bankruptcy, you, between you, considered the bankruptcy of Mrs. Nichols and decided against it. Is that the situation? Do I understand you correctly? A. I am just a little bit uncertain about that, for this reason: When she was in complaining to me about' this bankruptcy she said that I told her, or led them to think, that the bankruptcy was to get her a discharge, the same as his, I said ‘Mrs. Nichols, as I recall, I could be wrong. I think we talked about it, and decided it would cost that much more than the deposit was, and that you folks couldn’t afford it at that time,’ and that is what I told her the other day. That is my recollection of it, and I'rather think that came up at the time of the schedule, although I could be mistaken.”
Alva Nichols testified, in part:-
“Q. You knew she had been sued, too, didn’t you? A. No.
“Q. You say he read the summons to you? A. Yes, sir.
“Q. The first line pf the summons reads ‘you are hereby commanded to notify Alva Nichols and Hazel I. Nichols that they have been sued.’ Did he read that to you? A. Yes.”
It is well settled that when an attorney appears in an action to represent parties, the presumption is that he has the authority to do.so. (Overlander v. Overlander, 129 Kan. 709, 284 Pac. 614; Clark v. Lilliebridge, 45 Kan. 567, 26 Pac. 43; Lamme v. Schilling, 25 Kan. 92; Kerr v. Reece, 27 Kan. 469; O’Flanagan v. Case, 41 Kan. 183, 21 Pac. 96.)
We find no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to quiet title to real estate. The plaintiff prevailed and some of the defendants have appealed.
So far as applicable to appellants, who were identified as heirs-at-law of Mr. and Mrs. W. F. McGinnis, deceased, the petition states they claim some right in the lands described therein and sets forth the nature of their claims thereto. It then alleges plaintiff is the owner in fee simple and in the actual possession of a 490-acre tract of real estate situated in Montgomery county and that it and its predecessors in title have been in the actual, open, notorious, continuous, exclusive, adverse and hostile possession of such land for more than fifteen years prior to the date of the filing of the action.
The answer contains a general denial ánd a further allegation that on all dates mentioned in the petition the appellants were co-tenants with the plaintiff and that the latter at no time denied, or took action resulting in a repudiation of their claims of title to the land as such cotenants. It further states appellants are the owners-of an undivided one-half interest in the entire tract and prays their title thereto be quieted -as against the plaintiff as well as all other defendants and that such real estate be partitioned among its respective' owners as provided by law.
• The reply specifically denies appellants have any interest in the real estate or that they were ever cotenants with plaintiff.
With the pleadings in substance as heretofore set forth plaintiff moved for a trial of the case on its merits by the court. This motion was resisted by appellants and was subsequently overruled. Thereafter, the cause was set down for trial to a jury on a day certain. When that day came the trial court on its own motion reversed its previous order and, over objection of the appellants, ruled such cause should be and it was thereafter tried by the court.
We pause here to note that both the petition and reply, the allegations of which have been merely summarized, were motioned by appellants. The abstract sets forth those motions, each overruled by the court, at length apparently upon the theory their denial was erroneous. However, assuming such action is relied on as error under specifications of error pertaining to erroneous rulings of the trial court and the overruling of the motion for new trial, the question is not here and mere mention of it to show it has not been overlooked is all that is required. Although motions, and rulings of the court thereon, are fully abstracted appellants neither brief nor argue the propriety of the trial court’s action. Under such circumstances claims of error with respect thereto are regarded' as abandoned and receive no consideration on appellate review. (Henderson v. Deckert, 160 Kan. 386, 391, 162 P. 2d 88, and cases there cited.)
Since its decision depends entirely upon the pleadings,.and if determined in accord with appellants’ contentions would require a new trial regardless of the merits, we depart also from what appears to be customary procedure with respect to the-form of our written opinions and before making any factual statement will give consideration to a question which is here and must be determined. Appellants’ first specification of error is that the trial court erred in refusing to grant them a jury trial. That a solution of the question so raised is not entirely devoid of difficulty must be conceded. Ofttimes just when a trial by jury may be demanded by either plaintiff or defendant as a matter of right in an action concerning real property is very uncertain and confusing. However, although not easily determined, we do not regard the present question as coming within that category.
In the first place it must be admitted the universal rule is that in a suit in equity a jury trial cannot be demanded by either party as a matter of right (Woodman v. Davis, 32 Kan. 344, 347, 4 Pac. 262; Robertson v. Robertson, 100 Kan. 133, 163 Pac. 655; Spena v. Goffe, 119 Kan. 831, 241 Pac. 257; Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076 and Tamsk v. Continental Oil Co., 158 Kan. 747, 750, 751,150 P. 2d 326).
Necessarily it follows that in equitable actions the right is demandable only when granted by express provision of the statute. In this state we are not without statutory authority on the subject. G. S. 1935, 60-2903, reads:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.”
By the foregoing section we are told, and our decisions so construe it (Fisher v. Rakestraw, et al., 117 Kan. 441, 232 Pac. 605, and State Bank of Downs v. Criswell, 155 Kam 314, 124 P. 2d 500), that in civil cases involving real estate the right of trial by jury only exists where recovery of its possession is the paramount purpose of the action.
Finally it must be conceded that under our decisions construing the section just quoted, notwithstanding provisions of the code (G. S. 1935, 60-201) abolishing the distinction between actions at law and suits in equity, actions to quiet title instituted under the authority of what is now G. S. 1935, 60-1801, where the plaintiff is in possession, involve matters of equitable cognizance which are triable without a jury (Corbin v. Young, 24 Kan. 198, 201; Bennett v. Wolverton, 24 Kan. 284, 288; Larkin v. Wilson, 28 Kan. 513; Butts v. Butts, 84 Kan. 475, 114 Pac. 1048; Foresman v. Foresman, 103 Kan. 698, 699, 175 Pac. 985; and Cooper v. Cooper, 147 Kan. 256, 258, 76 P. 2d 867).
For many decisions on the subject see 117 A. L. R. 17, Ila, where it is said:
“In an ordinary suit, statutory or otherwise, to quiet title, remove cloud, or determine adverse claims, brought by one in possession of land, there is, in most jurisdictions, no right to a jury trial.”
From an examination of the pleadings can it be said the present action is one for the recovery of real property? We have very little difficulty in concluding that it is not. Here not only appellee but appellants as well claim to be in possession of the land in controversy, the former by adverse possession and the latter as cotenants. Each ask that their title in and to that land be quieted. In such condition it is futile to argue the pleadings reveal the action is for the “recovery of real property” within the meaning of that term as used in the statute or that, under either statute or our decisions, the trial court erred in denying appellants a jury trial.
Appellants vigorously contend they were entitled to a jury on the question of adverse possession. In support of their position they cite Guinn v. Spillman, 52 Kan. 496, 35 Pac. 13; Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447; Atkinson v. Crowe, 80 Kan. 161,102 Pac. 50 and Kyte v. Chessmore, 106 Kan. 394,188 P. 2d 251. Resort to those decisions reveals that each deals with a situation where the action as instituted was held to be one for the recovery of real property or an interest therein. Appellants cite no case in this jurisdiction, and we find none, where the right is granted under conditions such as exist in the case at bar. The error in their position comes from a refusal to recognize the fundamental test to be applied in the determination of when -litigants are entitled to jury trials under the provisions of our statute.
Summarized, undisputed evidence produced at the trial discloses the following facts: On January 9, 1919, Mr. and Mrs. McGinnis conveyed by warranty deed the 490-acre tract in controversy to-Geo. W. Hanna at a time when the title stood in the name of Mr. McGinnis; such deed was signed by the latter for Mrs. McGinnis as attorney in fact but no power of attorney authorizing her signature appears of record; this deed was recorded in December, 1919; thereafter L. M. Stitzell acquired title to the south 330 acres of such tract and in September, 1924, conveyed it by special warranty deed to-Geo. W. Hanna and Mrs. W. F. McGinnis,- on January 12, 1929, Hanna, his wife joining, conveyed all of the entire 490 acres to the plaintiff by special warranty deed the terms of which stated the grantors were the lawful owners of the land so conveyed and seized of a good and indefeasible estate of inheritance therein; this deed was properly recorded in Montgomery county on January 14, 1929; George W. Hanna died in April, 1933, Mrs. McGinnis died in July, 1933, and Mr. McGinnis died in November, 1937; the present action was commenced on June 12, 1944.
Based on the foregoing facts and certain disputed testimony relating to adverse possession to be presently referred to, and which appellants concede presented the sole question of fact involved in the case, the trial court made findings of fact and concluded as a, matter of law that plaintiff was the owner of the 490-acre tract and entitled to a decree quieting its title therein. Judgment was rendered accordingly.
Thus we come to alleged errors assigned by appellants as grounds for a reversal of such judgment.
First it is urged the trial court erred in rulings on the admission of evidence and was guilty of abuse of discretion in the general conduct of the trial. Rulings on evidence specifically complained of relate to the bank’s records respecting receipts from and expenditures on the land from the date of its purchase from Hanna up to the time of the trial and the only point here argued and presented is that those records were not the best evidence. They were identified by an official of the bank and purported to contain entries made by agents of the bank from time to time in the course of its dealings with the property. As such they were entirely competent and it was not error to permit them to be introduced as a part of appellee’s case. With respect to abuse of discretion appellants merely direct our attention to one place in the record wherein it appears the trial court in ruling on an objection to evidence said: “In all cases where they have the tax receipts we will present them.” We are not informed as to the conditions under which the remark was made nor do appellants point out any other act on the part of the trial judge indicative of bias or prejudice. Under all the circumstances we are inclined to the view the statement was made inadvertently and without willful design. In any event, standing alone — and appellants have offered nothing more — we cannot say the statement as made warrants a conclusion the trial judge was guilty of abuse of discretion in the general conduct of the trial.
Next it is contended a demurrer to appellee’s evidence was erroneously overruled for the reason one of appellee’s own witnesses testified that Mr. McGinnis had attempted to sell him the land within four or five years prior to 1935 and within -fifteen years from the date of the filing of the action. One sound reason for rejection of this contention is, that if the only construction to be given the testimony of this witness is that placed upon it by appellants, the mere fact McGinnis was trying to sell the land does not compel a conclusion the appellee was not then in possession and claiming title notwithstanding whatever claims McGinnis might be making to it. Another is that appellants place their own construction upon the testimony. The fact is that the same witness stated he did not know when McGinnis tried to sell him the land and was so indefinite and uncertain on the point the trial court could quite properly have concluded the conversation in question took place prior to the date on which Planna deeded the property to appellee. In addition, on this point and others not so strenuously urged by appellants as grounds for the sustaining of its demurrer, it should be stated the record discloses other evidence which, if believed, sustains the claim of title as made by appellee in its petition. Therefore, with the record in that state the trial court under well-established rules pertaining to the construction to be given evidence on demurrer not only should have but was required to take the action of which appellants now complain. (Smith v. Kansas City, 158 Kan. 213, 216, 146 P. 2d 660, and decisions there listed.)
Appellants’ final claim of error relates to the trial court’s findings of fact and conclusions of law.
The findings of fact complained of and alleged to be erroneous because contrary to and not supported by the evidence read:
“(7) Thai immediately upon the execution and delivery of said deed by the said Geo. W. Hanna and wife to said plaintiff bank, mentioned in Finding (3), it, said bank, took possession of said lands, and each and every part thereof, by and through its tenants, and ever since said time it has been in the exclusive, open, continuous, hostile, adverse and notorious possession thereof, in good faith, claiming the title thereto, which possession was so held by it continuously and uninterruptedly for more than fifteen (15) years next prior to the institution of this suit.
“(8) That when plaintiff took possession of all of said real estate in the month of January, 1929, under said deed from the said Geo. W. Hanna and wife, such. possession was hostile, adverse, open and exclusive from its very inception and has so remained to this time, and it took possession thereof with the express intention of claiming it all as its own.
“(9) That at no time has the plaintiff ever recognized said defendants or anyone else as its cotenants or as having any interest whatever in said lands.
“(11) That during plaintiff’s possession of said real estate as hereinbefore found, plaintiff collected the rents from the various tenants on such lands, constructed or at least repaired a pond. or two on a portion of such lands, caused the fences to be repaired from time to time and hay and wood to be cut and divided on the shares and sold, advertised the lands for sale from time to time, leased such lands to various tenants for grazing and haying purposes, as well as for oil, paid the taxes from time to time thereon, and otherwise, in all respects, during such occupancy, exercised all the rights of an owner thereof.
“(16) That said defendants, the heirs of Ida M. McGinnis, also known as I. M. McGinnis and Mrs. W. F. McGinnis, and of W. F. McGinnis, Sr., both deceased, who are contesting jfiaintiff’s title in and to said real estate, never at any time, from the filing of record of said deed from Geo. W. Hanna and wife to plaintiff, mentioned in Finding (3) herein, to the time of the filing of this suit, made any -claim to such land or any part thereof, or in any way whatsoever exercised at any time any control or acts of ownership with reference thereto, but on the other hand had forgotten all about the land.
“(17) That at no time during the occupancy and possession of such lands by plaintiff, until the time of the filing of this suit, did anyone whomsoever challenge plaintiff’s title to such lands.
“(18) That plaintiff always supposed, until a short time before the filing of this action, when it contracted to sell a portion of such land, that it held a perfect fee simple title of record in and to all of such lands.”
While appellants state the sole question of fact is whether “appellee has had the actual open, notorious, hostile, under claim of right, continuous and exclusive possession of the real estate involved for the statutory period of fifteen years previous to the date of the filing of this action, namely, the 12th day of June, 1944,” their argument when examined reveals their actual position is not that appellee did not have the possession required to establish adverse title during the latter part of the fifteen-year period immediately preceding the filing of the petition but that it had actually acquired such possession within and not prior to that time. For that reason and the additional one that an examination of the record discloses an abundance of testimony to sustain them we hold without laboring the facts, that so far as it relates to findings of fact 9, 11, 16, 17 and 18, appellants complaint is without merit and turn to consideration of their real contention as it applies to the portion of findings 7 and 8 holding that immediately upon the execution and delivery of the deed from Hanna appellee took possession of the land with the intention of claiming it all as its own. At the trial the testimony on this point was necessarily limited. George Hanna and Mrs. McGinnis had been dead for more than twelve years and Mr. McGinnis for eight years. The appellants conceded that in making inventories of their mother’s estate they had not listed the property or any part thereof as among her assets and admitted that until the suit was filed they had forgotten all about ever having had any interest therein. The only evidence produced by appellee on the point was: A statement of the .bank official who had charge of the books pertaining to the property to the effect the bank had collected rent on it starting soon after it received its deed; an entry on such books, under date of February 4, 1929, showing receipt by the bank of rent in the sum of $100; and the special warranty deed from Hanna to appellee which, the parties stipulated, was recorded in the office of the register of deeds of Montgomery county on January 14, 1929. Under all the existing circumstances we believe the foregoing evidence was sufficient to support the particular portions of the findings under consideration. It follows, since there was an abundance of testimony evidencing the possession thus acquired continued to the date of the trial under circumstances consistent with appellee’s claim of adverse possession, that findings 7 and 8 must be sustained in their entirety. Having reached that conclusion it would serve no useful purpose to refer to evidence produced by appellants on the subject for, under our repeated decisions (In re Estate of Rinker, 158 Kan. 406, 410, 147 P. 2d 740), findings sustained by sufficient evidence are conclusive on appeal notwithstanding there is some evidence, to the contrary.
Appellants’ principal contention with respect to the trial court’s conclusion of law and the judgment is based upon the proposition that the possession of one tenant in common cannot ripen into title by adverse possession against his cotenants until they have first been given actual notice of a repudiation of their- rights. They insist the record fails to disclose notice of the kind required and that, therefore, the court’s conclusion the title should be quieted is contrary to both evidence and law. In support of theif position they cite Schwab v. Wyss, 136 Kan. 54,12 P. 2d 719. In that case the court was dealing with a situation where the parties had inherited land as tenants in common and one was claiming title by adverse possession as against the others. Even there it should be noted that after announc ing the canon of law now relied on the opinion states — “The rule further is that notice to the other cotenants may be inferred from acts or circumstances attending such adverse possession.” We have no quarrel with the rule which appellants seek to invoke. The difficulty is that it is not applicable to or determinative of the factual situation in the case at bar. Another equally well-established legal principle is decisive of the rights of the parties in a case where —as here — a grantee of a cotenant by deed purporting to convey a full title promptly records his deed, takes possession of the real estate and thereafter seeks to quiet his title as against his grantor’s cotenants. In that situation such grantee is presumed to hold all that his deed calls for and therefore to hold adversely to the other co-owners (Vonfeldt v. Schneidwind, 109 Kan. 265, 267, 198 Pac. 958; 2 C. J. S. 601, § 72m; 1 Am. Jur. 833, § 68; 1 R. C. L. 743, § 62).
In conclusion it should perhaps be mentioned there are other reasons in addition to those heretofore stated why the judgment quieting appellee’s title to the north 160 acres should be upheld. However, there is no occasion for further reference to them as appellants’ counsel with commendable' candor concede in oral argument that since Mrs. McGinnis predeceased her husband the deed executed by the latter on January 9,1919, passed title to Hanna and the judgment quieting appellee’s title in and to that tract is no longer regarded as an important issue on this appeal.
We find nothing in the record which would justify the granting of a new trial or require a reversal of the decision of the trial court. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action for damages brought in the name of the widow of a deceased workman, for his wrongful death, alleged to have been caused by the negligence of a tortfeasor.
The facts responsible for the controversy can be stated briefly: On September 29, 1942, Darryl J. Peterson, an employee of the Elliott Fruit and Grocery Company, whose workmen’s compensation insurance was carried by the New Amsterdam Casualty Company, hereinafter called the casualty company, was killed in an accident on U. S. Highway 81 south of Salina as a result of being struck by a gasoline truck owned by Coryell & Son, a partnership, insured under a policy of liability insurance issued by the defendant, Zurich General Accident and Liability Insurance Company, hereinafter referred to as the insurance company. The deceased’s widow claimed and was awarded workmen’s compensation amounting to $4,150 which is being paid by the casualty company. She failed to commence any action for the wrongful death of her husband and on September 15, 1944, the casualty company instituted such a proceeding in her name against the members of the partnership and the insurance company for the sum of $10,000. On motion to quash service all parties sued, except the insurance company, were discharged and the company is now the only party defendant against whom recovery is sought.
No useful purpose will be served by detailing'the contents of the petition. It suffices to say it alleges the widow is bringing the action for and on behalf of herself and her minor child, states a cause of action against the defendant for the wrongful death of her husband, and without mention of the fact that anyone else has an interest in the cause of action prays that she recover judgment for the full amount claimed therein.
To the petition the defendant insurance company filed answer in due course. Its first and second paragraphs contain a general denial and averments to the effect the negligence of the deceased was the cause of his death and are not involved.
The third paragraph is in question and reads:
“The above-named plaintiff is not the real party in interest, and said action is in fact prosecuted by the New Amsterdam Casualty Company. At the time of said accident Darryl J. Peterson was working in the course of his employment with the A. S. Elliott Fruit and Grocery Company, Salina, Kansas, subject to the workmen’s compensation act. The New Amsterdam Casualty Company, as insurer of A. S. Elliott Fruit and Grocery Company, assumed liability under said act, and the Workmen’s Compensation Commissioner duly entered an award in favor of the plaintiff for the benefit of her child and herself in the sum of $4,000 plus $150 for funeral expenses. Plaintiff failed to institute any action, and by the terms and limitations of 1943 Supp. G. S. 44-504 of the Workmen’s Compensation Act, such failure on the part of the plaintiff to bring, any action operated as an assignment of any cause of action to the A. S'. Elliott Fruit and Grocery Company and the New Amsterdam Casualty Company, and said companies are the real parties in interest herein and they are barred of any recovery by way of reimbursement for said money paid to the plaintiff- by reason said negligence of Darryl J. Peterson, now deceased.”
Also involved is the second clause of the prayer whicn requests that the Elliott Fruit and Grocery Company and the casualty company as the real parties in interest in the action be substituted as parties plaintiff for the widow in whose name the action had been instituted.
Shortly after the answer was filed the plaintiff filed a motion to strike the third paragraph and the sedond clause of the prayer on the ground the allegations and denials therein set forth were incompetent, irrelevant and immaterial and prejudicial to the plaintiff’s interest and did not constitute a defense to the action. On presentation of this motion the plaintiff admitted the correctness of the allegations of the challenged third paragraph. Notwithstanding the admission the court sustained in its entirety the motion to strike upon the grounds set forth therein. The appeal is fronci the ruling on such motion.
From what has been heretofore stated it is apparent the appeal presents two substantive questions. One requires us to decide if the instant action may be prosecuted in the name of the widow as plaintiff. The other compels a decision on the proposition of whether under the provisions of section 1, of chapter 50 of the Laws of 1938, as now in force and effect the allegations and averments set forth in the third paragraph of defendant’s answer are to be regarded as material to the defense of such action.
Construction of the language to be found in the legislative enactment just mentioned is involved in the consideration of both questions. Chapter 50, supra, now G. S. 1945 Supp. 44-504, reads:
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action 'in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured workman, or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Such action against the other party, if prosecuted by the workman, must be instituted within- one year from the date of the injury, and, if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen months from the date of such injury. Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a. deceased workman may have against any other party for such injury or death, and such employer may enforce samp in his own name or in the name of the workman, dependents or personal representatives by proper action in any court of competent jurisdiction.”
In support of its contention that the court erred in sustaining the portion of the motion to strike directed against the second clause of the prayer of the answer, appellant directs our attention to G. S. 1935, 60-401, and insists that in view of the record it compels a conclusion the deceased workman’s employer and the casualty company are the real parties in interest and must be substituted as parties. Conceding for present purposes such parties are the real parties in interest we do not agree. True enough the section just mentioned provides — in fact, the code of civil procedure since its enactment in 1868 has contained a similar provision — that every action must be prosecuted in the name of the real party in interest. However, the same power which lays down a general rule of statutory procedure may limit or restrict the scope of its operation. In our opinion the legislature exercised the power possessed by it and created an exception to the general rule of the code when in enacting G. S. 1945 Supp. 44-504, it provided “and such employer may enforce same in his own name or in the name of the workman, dependants or personal representatives by proper action in any court of competent jurisdiction.” (Emphasis supplied.) It follows the court did not err in sustaining the motion to strike insofar as it pertained to the allegations appearing in the second clause of the prayer of the answer.
Turning now to consideration of the second question it will not only be helpful but necessary to review the earlier enactments having to do with the subject of remedies against negligent third parties as now covered by section 44-504, supra.
As originally enacted in 1911 such section read:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages in respect thereof: (a) The workman may take proceedings against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and (£>) if the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liabl.e to pay damages as aforesaid,. and shall be subrogated to the rights of the workman to recover damages therefor.” (R. S. 44-504; Laws 1911, ch. 218, § 5.)
In 1927 the statute was amended to read;
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the injured workman or his personal representative shall within ninety (90) days of the date of receiving said injury elect whether to take compensation under this act or to pursue his remedy against such other person. Such election must be in writing and must be delivered to the employer in person or by Registered mail, and the acceptance of compensation by an injured workman shall be construed as a positive election to accept compensation under this section. Failure on the part of the injured employee or his personal representative to file a written election with the employer within ninety (90) days that he will pursue his remedy against the negligent third party shall operate as an election to accept compensation and as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death, and such employer may enforce in his own name, or in the name of the workman, the liability of such other party for their benefit as their interests may appear.” (G. S. 1935, 44-504; Laws 1927, ch. 232, § 4.)
We note, as wé examine the three foregoing quoted sections of the statute, that aside from others material but not quite so important, there is one fundamental difference between the two earlier sections and the one on which our decision must be based. The 1911 enactment and the 1927 amendment each provide for an equitable adjustment between the employee and his employer and/or between the dependents or personal representatives of a deceased workman and his employer when such parties are subject to their respective provisions, whereas G. S. 1945 Supp. 44-504, enacted in 1938, is wholly silent on the subject of equitable contribution or distribution between such parties when the employer enforces a cause of action after acquiring it by assignment in the manner therein provided.
The appellee, of course, contends the trial court properly sustained the motion to strike the third paragraph of appellant’s answer. As supporting the contention reference is made to the early case of Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, where it was held:
“Section 5 of the workmen’s compensation act (R. S. 44-504) provides for an equitable adjustment between the employer and his employee when both are governed by the provisions of the act and the injury to the employee is caused by the negligence of a third party. It is not intended for the benefit of such third party, nor to relieve him from liability.” (Syl. IT 2.)
And the later cases of Jolley v. United Power & Light Corp., 131 Kan. 102, 289 Pac. 962; Acock v. Kansas City Power & Light Co., 135 Kan. 389,10 P. 2d 877, to the same effect. Our attention is also directed to certain other decisions adhering to the rule announced in Moeser v. Shunk, supra, where the right of a defendant to plead or prove matters covered by allegations found in the third paragraph of the answer here in question was specifically involved and denied. See Riddle v. Higley Motor Company, 122 Kan. 458, 252 Pac. 231, also, Early v. Burt, 134 Kan. 445. 7 P. 2d 95, and Pattrick v. Riggs, 148 Kan. 741, 84 P. 2d 840.
We have no quarrel with the rule announced in the foregoing decisions but it must be remembered that it is predicated upon statutory provisions providing in substance that whenever an employer brought an action in damages, upon a cause of action for wrongful injuries to or death of an employee which he had acquired by subrogation or statutory assignment, the most he could recover would be the amount he had been required to expend as the result of the injury to his employee and anything over and above that amount would go to the employee if alive or if deceased to his dependents or personal representatives. With this thought in mind let us ex-, amine the provisions of the present statute for the purpose of determining whether decisions based upon the earlier enactments can be ■ said to be decisive of the cause when full force and effect is given to its provisions.
Whether deliberate or unintentional it must be conceded the legislature in enacting G. S. 1945 Supp. 44-504, failed to provide that an employer acquiring a statutory assignment under its terms, irrespective of whether he brought the action in his own name or in the name of the dependents or personal representatives of a deceased workman, should account to anyone in the event he recovered more from a third person than he has actually paid out in the form of compensation to or on behalf of his employee and we 'find nothing therein which permits us, under any rule of statutory construction, to hold that if he recovers more than that amount he is required to reimburse either the employee or the deceased employee’s dependents. Nor do we find anything in such section to justify a conclusion he cannot retain more than he has been out of pocket if he is successful in obtaining a judgment in excess of that sum., Thus it appears the statute in its present form no longer makes provision for an equitable adjustment between the employer and his employee and/or dependents or provides that the amount recovered inures to the benefit of each of them as their interests may appear. On the contrary, without judicial welding it permits the employer to speculate upon the misfortune of his employee, it allows him-to unjustly enrich himself at the expense of a third party, and in effect results in a violation of the fundamental principles of the law of subrogation, the very source from which springs the right of an employer ever to recover what he had been out of pocket because of injuries suffered by his employee at the hands of a third person. So construed, it is our opinion the decisions relied on by appellee are not applicable or decisive. True enough the present statute is not intended for the benefit of a third party or to relieve him from liability, but neither is it intended for the undue enrichment of an employee’s employer or the latter’s insurance carrier and we do not believe the legislature in enacting it contemplated any such inequitable or unjust result notwithstanding its language seems to permit the employer to recover more than he has expended for his employee in the way of compensation. Anyway, since -the employee or his dependents or personal representatives as the case may be are not entitled to an equitable adjustment or to participate in the distribution of the amount recovered by the employer the reason for the rule announced in such decisions no longer exists and neither rule nor decisions support or justify the trial court’s ruling in striking the third paragraph of appellant’s answer.
The well-settled law of this state is that in an action for wrongful death the 'amount of recovery is limited to the plaintiff’s financial ioss (Pattrick v. Riggs, 148 Kan. 741, 84 P. 2d 840, and Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794), and we add, that in. such an action, when it is instituted by an employer in the name of the dependents or personal representative of a deceased workman under authority of G. S. 1945 Supp. 44-504, in its present form, the amount of recovery is limited to the financial loss of the real party in interest.
When applied to the instant case and all others similar in char-' acter the foregoing rule simply means that unless and until the legislature amends G. S. 1945 Supp. 44-504, to permit the dependents or personal representatives of a deceased workman to share in their recovery the measure of damages in an action brought by an employer, under authority of the assignment mentioned in such section, against a third party to recover damages for the wrongful death of an employee will be limited and restricted to the actual amount such employer has been required to pay out in the form of compensation and medical aid as a result of such employee’s death.
It necessarily follows allegations of the appellant’s answer with respect to the real party in interest, the amount of compensation paid, and others of similar import, were material, and important to its defense of the action. Therefore, the trial court erred in sustaining the motion to strike the third paragraph of such answer.
As herein indicated the judgment is affirmed in part and reversed in part. | [
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The opinion of the court was delivered t>y
Parker, J.:
This was an action to recover money for the performance of an alleged oral contract. The cause was submitted to a jury which failed to agree on a verdict. Thereupon defendant gave notice-of its appeal from the decision of-the trial court in overruling its demurrer to the plaintiff’s evidence and certain other rulings which will be presently mentioned.
The sufficiency of the petition as a pleading is not involved. Its substance, omitting reference to informal and evidential statements to be found therein, can be stated thus: On the 26th day of October, 1945, the defendant (corporation), through one Johnson, who was then and there its authorized agent and acting for it in that capacity, entered into a verbal contract with plaintiff whereby it employed and authorized him to do construction work on a building located in the city of Wichita, to be used for a radio recording office, on a cost plus plan, the defendant to pay the actual cost of labor and material plus fifteen percent for plaintiff’s services; thereafter plaintiff, pursuant to the terms of such agreement and under direction of defendant’s agent, Johnson, reconstructed and remodeled the ' building at a total cost of $3,144.96, less a small credit for material not used; of such total amount $850 had been paid by check of the corporation on October 26, 1945, $750 by a similar check on November 7, 1945, and that a balance of $1,540.88 remained due, unpaid and owing to plaintiff from defendant, by virtue of the contract, on the date of the filing of the petition.
Defendant’s answer, minus its formal parts and prayer, for reasons presently to be disclosed, is quoted verbatim. It reads:
“For answer to the petition of the plaintiff, the defendant admits the residence and post office address of the plaintiff and the corporate existence of the defendant.
“The defendant specifically denies that Charles T. (Ted) Johnson was authorized to and did act for the defendant as alleged in the petition. Defendant states that said Johnson was a bookkeeper and radio program director of the defendant and had no apparent or actual authority to bind defendant or to contract for defendant as alleged in plaintiff’s petition. Defendant denies that said Johnson had any authority to enter into a contract on behalf of defendant authorizing plaintiff to make repairs and do certain construction work in the building located at 105-107 West English Street, Wichita, Kansas, said building to be used for a radio recording office. Defendant specifically denies that said Johnson made any contract for and on behalf of defendant and alleges that he had no authority to make any contract with plaintiff’ as alleged by plaintiff.
“Defendant further alleges that the checks, given plaintiff were obtained through the fraud of the said Charles T. (Ted) Johnson.
“Plaintiff alleges that Charles T. (Ted) Johnson made said contract for and on behalf of Universal Service Agency, Inc., a corporation in which said Johnson was interested.
“Further answering, defendant denies the correctness of the account marked ‘Exhibit A’ and denies that it is indebted to plaintiff on said account.”
Plaintiff’s reply to the answer contains a general denial and other allegations of no importance on appellate review.
Reference to the specification of errors reveals that it assigns error on the part of the trial court during the course of the trial in the following particulars: (1) Admission of the testimony of one Virgil Quick; (2) overruling of the demurrer to plaintiff’s evidence; (3) refusal to permit the jury to view the fourth floor of the Farmers & Bankers Life Insurance Building; (4) refusal to give instructions requested by defendant; (5) submission of certain instructions. However, appellate issues aré not as involved as a cursory glance at such specification makes them appear. Errors 1, 3, 4 and 5 as assigned are trial errors and not now subject to review. (See Ranney v. Camden Fire Ins. Ass’n, post p. 706, 179 P. 2d 190, this day decided) . Moreover, they are neither briefed nor argued and must be regarded as having been waived and abandoned (Henderson v. Deckert, 160 Kan. 386,162 P. 2d 88.) Therefore, the sole issue presented for our consideration is whether the trial court erred in overruling the demurrer to the evidence.
Appellant’s position that the demurrer should have been sustained is predicated upon three basic propositions now to be considered with full realization that as we do so, under the rule so well established by our decisions as to preclude necessity for their citation, a demurrer to the evidence can only be sustained when the court is able to say, admitting every fact proven which is favorable to plaintiff, and indulging in his favor all conclusions which can fairly and reasonably be inferred therefrom, that he nevertheless has failed to make out one or more of the material and vital elements of his case. As we proceed we are likewise cognizant of another phase of the same rule, perhaps not so well established, but nevertheless applicable, to the effect that in the determination of a ruling on a demurrer to evidence we are not to compare evidence of the same witness on direct or crosss-examination but must accept the evi-' dence favorable to the party adducing it. (Burgin v. Newman, 160 Kan. 592, 593, 164 P. 2d 119; Harris v. Exon, 161 Kan. 582, 584; 170 P. 2d 827.)
The first contention — except that by indirection it relates to the authority of Johnson which is directly involved in later contentions and will not now be discussed — actually is that appellee failed to establish the terms and conditions of the agreement upon which he relies for recovery. That agreement, it will be recalled, was that Carver was to remodel the building in question and to receive repayment of amounts expended by him for labor and materials plus' fifteen percent for his work and service. In fact, the gist of this claim is to be found in appellant’s statement that if there was an agreement the record fails to disclose one of sufficient certainty to be . legally held a contract, and in its argument that while it is true the appellee did submit a bill for the amount of work done and showed how he arrived at the amount due, he failed to prove by any of his testimony the agreement or any of its terms. We frankly concede the record presented by the abstracts, as supported by the argument of the parties in their respective briefs, on first blush seems to indicate there might be merit in appellant’s contention for no rule of law is more elementary than the one that all matters which are material or essential to a cause of action must be established by evidence. Appellee in his brief neither denies nor attempts to refute appellant’s claim by confession and avoidance, As a matter of fact he entirely ignores it. Faced with that dilemma we turned to the answer, heretofore quoted because of the very question now being considered. That pleading does not deny, either directly or by way of implication, that Johnson entered into the contract with appellee as alleged in the petition. What is more, it concedes its terms by stating “Johnson made said contract for and on behalf of Universal Service Agency, Inc.” In this jurisdiction by express provisions of the code (G. S. 1935, 60-748) every material allegation of the petition not controverted by the answer must for purposes of the action be taken as true. That the foregoing section means just about what it says is evidenced by our decisions. (See Hume v. Watt, 5 Kan. 34 and Lumber Co. v. Town Co., 51 Kan. 394, 32 Pac. 1100.) We then sent for the transcript which, since its receipt, has been carefully examined. It discloses, in our opinion, that not only the trial court but appellee, and appellant as well, tried the entire cause on-the theory terms of the contract were not in dispute or question, the issue being whether Johnson was authorized to make them as appellant’s agent. In the situation just related we have no difficulty in concluding the demurrer, insofar as it was based upon the ground the terms and conditions of-the agreement were not sufficiently established to support a cause of action, was properly overruled unless, of course, the record compels a decision there was no agency. Obviously, in that event, terms' of the contract, as' well as questions pertaining to their performance and to the correctness of the claim, which .we note in passing were likewise established by the evidence, are of no consequence.
Appellant's last two contentions each raise the question of Johnson’s authority to bind it as their agent and can be considered together. The first of the two in form as stated is that the record fails to disclose the corporation extended authority to Johnson of such a character as to bind it on the contract with appellee. The second is that appellee is barred from recovery because he failed to exercise the ordinary prudence of a reasonable man in the contracting business in dealing with a corporation in not ascertaining from the facts available to him the lack of actual authority in Johnson to execute the contract. Along with these two contentions can also be considered the one of agency mentioned as indirectly involved in the claim heretofore determined. It is that the evidence shows, the contract as executed was between appellee and Johnson as an individual, not as appellant’s employee.
In our considration of the points to which we have just referred it will be necessary to again refer to the record and briefly detail portions of the evidence there found. 'It will be related as briefly as the importance of the subject and the circumstances permit.
On or about October 26, 1945, appellee, a general contractor of three years’ experience was called by Ted Johnson, conceded by appellant to have been its employee, bookkeeper and program director on all dates in question, to come to Johnson’s office on the fifth floor of the Farmers and Bankers Life Insurance Building in Wichita. He had met Johnson once before but had never had' busi•ness relations with him. Pursuant to that call appellee went to the appellant’s office in the building mentioned and to the floor where Johnson’s office was located. There he found- a girl receptionist and told her he had an appointment with Johnson. He was then admitted, to Johnson’s private office through a door which permitted entrance from the - reception lobby, where he saw one desk, some files and a name plate on the desk with Johnson’s name on it. No one else was in the office. " "
The court refused to permit appellee to relate the conversation he had with Johnson but permitted him to tell whát happéned. We quote from his testimony as it appears in the transcript.
“Q. Well, what took place there? A. He showed me a diagram, a little pencil sketch that he had lying there on his desk—
“Q. Out in the open? A. Out in the open.
“Q. Anybody could see it? A. Anybody could see it that would walk in the room.
“Q. You say you talked to Mr. Johnson? A. That is right.
“Q. Then what happened? A. He suggested we go down to the building—
“Mr. Sargent: Just a minute. We object to that as having been ruled on as objectionable.
“Q. What did you do? A. We went down to the building that the work was to be done on.
“Q. And then what? A. And took the plan with us, the penciled sketch, and looked the building all over; what was to be done at the building to make it presentable for offices; what was to be done on the inside of the building—
“Q. Then what took place? A. So when we got through talking about this building, Mr. Johnson said, T want you to start to work as soon as possible.’
“Mr. Sargeant: We object to this.
“Q. Then what took place? A. He gave me a check—
“Q. How much was it? A.'$850.-00.
“Q. Who signed that check? A. To the best of my knowledge, it was signed by Mr. Surtees and Mr. Stewart if I remember correctly.
“Q. These two executives we just had on the stand? A. That is right.
“Q. That check was — what kind of a check was it? What was on that check if you remember? A. Well, KFBI in one corner and Farmers & Bankers Broadcasting Corporation and it was made out to me. I don’t remember whether the first check was to the B. E. Carver Construction Company or B. E. Carver, contractor.
Q. . . . Then what did you do? A. Proceeded to get the material for the job delivered on the job before I started.
“Q. What? A. Soon as I had the materials on the job I started to work.
“Q. Well, for how long did you work? A. It was approximately thirty days.
“Q. Well, when did you later see this Mr. Johnson? A. He would come down occasionally from the office.
“Q. Mr. Carver, what took place on or about the 2nd of November, 1945? A. I took some hardware up to the KFBI office on the fifth floor to have it approved.
:Q. What else took place on that day?
“A. Just as I started to leave the office with the hardware, I noticed some papers laying on Mr.'Johnson’s desk and just as I started to leave he reached over and picked up a check and said, ‘Here is another check for $750.00’ and this is the check he handed me.
“Q. For $750.00 made out to R. E. Carver, contractor? A. That is right.”
With respect to the other evidence pertaining to the two checks mentioned by the foregoing witness we are not disposed to detail the testimony. Appellee attempted by two executives of the corporation to show how they were signed and by whom and when they were paid. The least that should be said for their testimony is that they were far from helpful, if not less than frank. It will suffice to say a fair analysis of the transcript discloses each of such checks was written on the standard check form then used by appellant on which its name was printed in small letters and the initials KFBI in large letters, each was signed by James H. Stewart, Jr., the then treasurer of the corporation and countersigned by Paul D. Surtees its assistant treasurer, each was payable to appellee, and each was cashed by him and paid by the corporation in due course.
We do deem it necessary to relate one more bit of testimony in form as it appears in the transcript. J. T. Koelling, a public accountant who audited the appellant’s books during the latter part of 1945, after the corporation had learned that Johnson had not been faithful to the trust it had reposed in him, was also called by appellee as a witness. Among others the transcript shows that on direct examination he was asked questions and made answers thereto as follows:
“Q. Now Mr. Koelling, have you any record there as to a check made payable to R. E. Carver? A. Yes, sir.
“Q. What number is that check? A. Number 12544.
“Q. Now, this is your audit that you make for the Farmers & Bankers Broadcasting Company? A. That is correct.
“Q. Which owns KFBI. Now, I am pointing here to this check, read what it says with reference to that check. A. Under date of 1945, November the 2nd, Check No. 12,544; payee R. E. Carver, contractor. Explanation: payment on remodeling contract. Amount $750.00.
“Q. Now, have you one with reference to an $850.00 check? A. Yes, sir.
“Q. Will you please turn to that? Read that please. A. Date, 1945, October 1st. Check No. 12,358. Payee, R. E. Carver. Explanation: payment of remodeling contract. Amount $850.00. '
“Q. Now Mr. Koelling, from whom did you get that information that you got in your audit? A. All of the information with the exception of the explanation came from the records themselves.
“Q. From the records. The audit you made as CPA for this defendant corporation? A. Yes, sir; with the exception of the explanation.
“Q. Now, who made that explanation? A. That was our explanation on the audit.
“Q. But who explained it to you? A. The information was given to us by either the officers of KFBI or Mr. Sargent; I am not sure which.
“Q. In other words, the officers of KFBI or Mr. Sargent, had you enter there — repeat that please. A. Payment on remodeling contract.”
In passing we note it is true, as pointed out by appellant, that Mr. Koelling later qualified the statements made by him on direct examination. He was even permitted to go so far on cross-examination as to state, in explanation of the explanation placed by him on the $750 check, that officials of the corporation had stated that Johnson had told them such check had been used by him in payment on a remodeling contract which he had with Mr. Carver and that it was not any part of the business of KFBI. Nevertheless, we point out that what has been heretofore specifically quoted from the testimony of such witness on direct examination is in the transcript, it was a part of the record on the date of the overruling of the demurrer and it must, under the rule to which we have made reference, be accepted by us as true in determining whether the trial court erred.
It will, of course, be conceded there are two types of agency, one actual and the other ostensible or apparent. (1 Mechem on Agency, 2d ed., 37, § 57; 2 C. J. S. 1035, 1036, § 3; and 2 Am. Jur. 68, § 85.) Actual agency may be either express or implied. Since it is conceded there is no evidence of express authority in the instant case our problem is to determine whether the authority of Johnson in entering into the established agreement’was implied or apparent. Competent record evidence to sustain either type requires the trial court’s ruling on the demurrer be sustained. On the same premise, lack of such evidence requires that it be reversed.
We have said the test to be applied in determining whether im-, plied agency exists is the one announced in 2 C. J. S. 1045, § 23, where the following statement appears:
“The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency. On the other hand, where it does not appear that there was any express or implied intention to create the relation, it will not be held to exist, as where it appears that the agent was acting on his own behalf.
"An implied agency must be based on facts for which the principal is responsible, they must, in the absence of estoppel, be such as to imply an intention to create the agency, and the implication must arise from a natural and reasonable, and not from a forced, strained, or distorted, construction of them. They must lead to the reasonable conclusion that mutual assent exists, and be such as naturally lead another to believe in and to rely on the agency. The existence of the relation will not be assumed.
“While the relation may be implied from a single transaction, it is more readily inferrable from a series of transactions.
“An agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable and to the advantage of the supposed principal, nor from facts which show that the alleged agent was a mere instrumentality.”
And we have held that such agency is implied if from the statements of the parties, their conduct and other relevant circumstances, it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which when exercised by him would normally and naturally lead others to believe in and rely on his acts as those.of the principal (Greep v. Bruns, 160 Kan. 48,159 P. 2d 803).
For other decisions to the same effect see Wilson v. Haun, 97 Kan. 445,155 Pac. 798; Walker v. Eckhardt, 122 Kan. 453, 251 Pac. 1093; Cummins v. Standard Oil Co., 132 Kan. 600, 296 Pac. 731 and Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875.
At page 604 of the opinion in Cummins v. Standard Oil Co., supra, in dealing with the rule as applied to corporations, we said it is plain that ‘in establishing authority > with a corporation which can act only by its officers it is not necessary or practical to produce records and documents showing authority of an agent, but his authority may be implied from the character of his position or the necessities of his business, always, of course, to be apparently within the usual and ordinary line of- his business.
Likewise we have recognized the criterion of apparent authority is well stated in 2 Am. Jur. 82, § 101, where it is said:
“The liability of the principal for the acts and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from express authority, or otherwise actually conferred by implication from the acts and conduct of the principal. All such acts and contracts of the agent as are within the apparent scope of the authority confer red on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal. Apparent authority, or ostensible authority, as it is also called, is that which, though not actually granted, the principal knowingly .permits the agent to exercise, or which he holds him out as possessing. Accordingly, as defined by the American Law Institute, an apparent agent is one who, with or without authority, reasonably appears to third persons to -be authorized 'to act as the agent of another.”
Following the rule just stated we held in Greep v. Bruns, supra, that:
“An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied, has been conferred upon him.” (Syl. If 5.)
We are not disposed to delve into the labyrinth of decisions, many of which have been cited by the astute and capable counsel for appellant, dealing with the principles of law applicable to situations involving the question of when the relation of principal and agent exists. It is enough to say we have examined many of them and find they show entirely dissimilar factual situations and elements not involved in the case before us. Of a certainty no case has been cited which, so far as the facts are concerned, can be said to be decisive of the present one. Nor do we deem it necessary to review or point out particular facts disclosed by the record. They • can be found by reference to the testimony which we have set forth at considerable length on that account. It must be remembered that it is our province to determine if, under the general principles to which we have referred, the record reveals any substantial competent evidence on which a finding of agency could be.based, not to decide whether, under proper instructions relating to the law of principal and agent, it actually did exist as a matter of fact.
Without further laboring the issues raised by appellant it can be said we are convinced, in the light of all of the testimony, there is some evidence in the record to support a cause of action based on. either implied or apparent agency. In that situation we cannot hold as a matter of law that Johnson did not have authority to execute the. contract in dispute for- and on behalf of the appellant or that it was entered into between Carver and Johnson as an in- ■ dividual but must leave decision of those factual questions to the triers of fact. Nor do we find anything in the evidence to justify a legal conclusion appellee was barred from recovery on grounds asserted by appellant. Decision of that question is also one of fact. It follows the demurrer was properly overruled.
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The opinion of the court was delivered by
Smith, J.:
This was an action by the state on an appearance bond. Judgment was for plaintiff. Defendants appeal.
P. W. Montague was arrested on May 9, 1931, charged with a violation of the prohibitory laws. On May 29, 1931, he entered into a recognizance for his appearance in the district court of Johnson county on September 8, 1931. This recognizance was signed by P. W. Montague, J. A. Johnson and Ella Montague. Johnson was a nonresident of Kansas, and the sheriff refused to accept him on the recognizance until Johnson had assigned to him certain building and loan certificates.
Montague did not appear for trial on September 8. On September 9, 1931, an order was entered forfeiting the recognizance. A bench warrant was issued for Montague, and the county attorney was ordered to proceed with the collection of the bond.
On October 31, 1931, Johnson brought Montague to the courthouse in Olathe stating that he wanted to give a new bond for Montague. While they were at the courthouse Montague was arrested on the bench warrant issued on September 9. On January 23, 1932, Johnson filed a motion to set aside the forfeiture. This motion was heard by the district court and denied. No appeal was taken from that order.
This suit.to collect on the forfeited recognizance was begun on January 4, 1932, so that the motion to set aside the forfeiture was made in the criminal case while the civil suit was pending. This is not important, except that it shows that with the suit pending defendant Johnson chose to go into the criminal case and ask that the forfeiture be set aside. Johnson, the defendant, filed his answer in which he admitted the execution of the recognizance. The answer denied that the instrument was a valid and binding instrument for the reason that it was not made, executed and delivered and filed in the district court in the manner prescribed by statute.
The answer then admitted that Johnson executed and delivered to the sheriff certain building and loan stock to be held as collateral security to the appearance bond. Defendant then denied that the assignment was valid for the reason that the instrument was not a legal or valid appearance bond, and for the reason that the sheriff demanded the assignment to him of the building and loan stock as condition to accepting the recognizance, and neither the sheriff nor the court had authority to require collateral on an appearance bond and such a requirement makes the bond illegal and void.
Paragraph 4 of the answer then admitted that Montague failed to appear on the day set, but said the forfeiture should not have been made by the court for the reason that Montague was seriously ill and in need of an operation for hernia and on that date was in a hospital in Kansas City undergoing treatment, and that on account of this illness it was physically impossible for defendant Johnson to produce Montague in court on September 8, 1931.
Paragraph 5 of the answer further alleged that Montague’s attorney had an arrangement with the county attorney of Johnson county whereby the case of State v. Montague was to be continued from the September term to the January term, and on account of this arrangement Montague did not have his appearance and that Johnson, having been informed of the continuance and believing Montague too ill to be in court, did not appear.
Paragraph 6 of the answer then denied that Johnson was indebted to the state of Kansas on the recognizance, for the reason that it was illegal and void, and for the further reason that Johnson had fully complied with the provisions of R. S. 62-1221 by surrendering Montague to the proper officials after forfeiture of the recognizance and before final judgment on it, and that at the same term of court Montague had pleaded guilty and received sentence and Johnson had paid the costs in the criminal case and would pay the costs in the civil case on order of the court; that the defendant, J. A. Johnson, has presented a satisfactory excuse for the failure of Montague to comply with the conditions of the appearance bond and that, therefore, Johnson should be discharged from any liability; that the failure of P. W. Montague to appear before the court at the time stipulated in the bond was not due to any lack of good faith, fraud or collusion on the part of Johnson, and that he had at all times kept faith with the court, and the reason for Montague’s failure to appear at the time above stated was believed by Johnson to be for the reasons set out.
It should be noted here that the hearing on the motion to set aside the forfeiture was on affidavits furnished by both parties. The matter contained in the motion and the affidavits covers the same facts that are set up in paragraphs 4, 5 and 6 of the answer of Johnson.
Upon the filing of this answer the state filed a motion asking the court to determine that the matter set up in the answer of Johnson had been fully litigated in the motions to set aside the forfeiture. On the hearing of this motion the court examined the files in the criminal case and found that the matters set up in paragraphs 4, 5 and 6 of the answer of Johnson were res adjudicata and not available to defendant Johnson in this case. After this order counsel for the state moved the court for judgment on the pleadings, and it was allowed.
It is from that judgment this appeal is taken.
Defendant Johnson argues that he complied with the terms of R. S. 62-1221. That section is as follows:
“The bail, at any time before final judgment against him upon a forfeited recognizance, ma}' surrender his principal in open court or to the sheriff, and upon payment of all costs, and upon presenting a satisfactory excuse for the failure of his principal to comply with the conditions of said recognizance, may thereupon be discharged from any further liability thereon.”
He argues that action upon a motion filed pursuant to that section is not a final adjudication by the court as to liability on the recognizance, and that no final judgment is obtained until the suit has been filed in accordance with the terms of R. S. 62-1225. That section is as follows:
“The prosecuting attorney may at any time after the adjournment of the court proceed by action against the bail upon the recognizance. Said action shall be governed by the rules of civil pleading as far as applicable.”
The argument is that action under this section is necessary before there can be any binding adjudication on a recognizance. It is true that it takes an action under that section to support a judgment upon which an execution may issue. That, however, is not the question we have before us. The trial court only held that the order of the district court on the motion to set aside the forfeiture was final as to whether the excuse set out in the motion was a satisfactory one. That is the language of the statute. The surrendering of the prisoner does not give one an absolute right to have a forfeiture set aside. It is only provided that the forfeiture may be set aside if a satisfactory excuse is furnished. That means satisfactory to the court that ordered the forfeiture in the first place. Under such language the trial court has wide latitude in determining whether the excuse is satisfactory. The excuse, however, is not a matter that can be pleaded as an absolute defense in a suit on the recognizance. Defendant cites and relies on cases that hold that an execution cannot issue on an order forfeiting a recognizance, and on cases that hold that a surety on a recognizance has a right to come into court and show why he did not have his principal in court on the day set.
In the cases of State v. Williford, 104 Kan. 221,178 Pac. 612, and State v. Emerson, 135 Kan. 563, 11 P. 2d 702, the motions to set aside the forfeitures and the issues raised by the petition and answer on the recognizance were consolidated and heard as one action. That could have been done in this action, but with the suit on the recognizance pending defendant elected to file his motion to set aside the forfeiture and to cause its consideration and determination by the court as to the satisfactoriness of his excuse. To permit him to raise the question again in the suit on the recognizance would be to accord to him two opportunities to try out the same issue in the same court.
The rule is stated in 34 C. J. 883, as follows:
“Decisions made in. the course of special or ancillary proceedings, not formally to be classed as actions at law, but incidental to the progress of litigation, are conclusive upon the points or questions actually decided, provided they are made upon a contest or upon opportunity given to the parties concerned to be heard, and are not purely ex parte.”
The situation is analogous to that where a motion is made to dissolve an attachment. A hearing is had upon the merits after the notice and hearing. In such cases this court has held that the decision on the motion to dissolve the attachment was res adjudícata of the questions raised in the motion. (See Hoge v. Norton., 22 Kan. 374.) In that case suit was brought on an attachment bond. The trial court had sustained a' motion to dissolve the attachment on two grounds: First, that the allegations of the attachment affidavit were untrue; and second, that the plaintiff's petition did not justify attachment. The defendants in the action on the attachment bond argued that the mere fact that the attachment was discharged did not prove it was wrongfully obtained. In answering that argument the court said:
“All that is presented is whether, after an order of dissolution made according to the record upon the merits, the matter may be again examined as an original question in an action on the bond upon oral testimony before a jury; and this question we are constrained to answer in the negative.” (p. 376.)
See, also, Hillyer v. Biglow, 47 Kan. 473, 28 Pac. 150; Grocer Co. v. Alleman, 81 Kan. 543, 106 Pac. 460; also, Parish v. Brokerage Co., 92 Kan. 286, 140 Pac. 835. In those cases the orders of the trial court sustaining or overruling a motion to dissolve the attachment were held to be res adjudicata as to all matters properly raised in the motion and at the hearing thereon.
Defendant argues that this rule is not in point here because the order refusing to set aside the forfeiture was not appealable.
R. S. 60-3303 provides as follows:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.”
We hold that the motion to set aside the forfeiture of the bond was a special proceeding and the order refusing to set aside affected a substantial right. This court passed on a question similar to this in Randolph v. Simon, 29 Kan. 406. This was a case where a debtor had given a bond not to go beyond the limits of the county. The district court made an order permitting the imprisoned debtor to go to Illinois to visit his wife. It was contended that the order was void, and that therefore there had been a breach of the bond. This court said:
“Power is given by the statute to the court to grant a discharge on account of inability. Application was made under this statute. Notice of the application was given to the adverse party. Both parties were present, a showing was made, and the court acted. There was therefore a hearing before a competent tribunal, with jurisdiction of both parties; and the order made after such hearing cannot be adjudged void. Whether the court erred in its ruling upon the facts, whether the order was or was not erroneously made, can only be determined by proceedings in error. As long as there was enough to challenge judicial action, the order cannot be declared void in a collateral proceeding.” (p. 411.)
The decision in that case was followed in Comm’rs of Wilson Co. v. McIntosh, 30 Kan. 234, 1 Pac. 572. In that case a motion to retax costs was decided by the trial court in an action for the sale of real estate for taxes. In a subsequent action against the sheriff on his bond for the costs, this court held that the matter was res adjudicata on account of the action on the motion and that the action on the motion was a final order subject to review in this court. The same sort of question was considered in Shattuck v. Wolf, 72 Kan. 366, 83 Pac. 970. In that case this court said:
“Finally, it is urged that the court undertook to try and determine the title to personal property in a summary manner, upon a mere motion, without formal pleadings and without a jury, with the result that the plaintiff was turned out of court. The motion, however, distinctly asserted ownership of the note and mortgage and set forth clearly the facts relating to the claimant’s title, and when the matter was called up in court for disposition the plaintiffs in error, without making any request that formal pleadings be filed, without making any suggestion that the matter should be tried as if it were of the nature of an interplea, without asking that it should go over to be heard with the merits, without any demand for a jury, and without any objection whatever to the form of the proceeding, announced themselves ready for trial and proceeded to try the title to the note and mortgage in controversy. A record was made as in any other case, and the plaintiffs in error have abundantly shown that they have a complete and unhampered right to review in this court.” (p. 371.)
Decisions from other jurisdictions on this point are: Dunn v. State, 65 Okla. 233; State v. Hines, 37 Okla. 198; Hines v. State, 39 Okla. 638; Lawrence v. Mason, 65 Okla. 199; Melton v. State, 46 Okla. 487; People v. Young, 36 N. Y. Supp. 547; Day v. State, 125 Ind. 582, and State v. Sorenson, 48 Utah 663.
We have reached the conclusion that the order in this case refusing to set aside the forfeiture was appealable.
In the case at bar the sole question raised by paragraphs 4, 5 and 6 of the answer was on the matter of whether the excuse for not having Montague in court was satisfactory. That was the sole question raised and heard on the motion to set aside the forfeiture. We hold that the matter contained in paragraphs 4, 5 and 6 of the answer was res adjudicata, having been settled by the action of the trial court on the motion to set aside the forfeiture.
It will be noted that after the trial court had passed on the motion of plaintiffs and held the matter raised in the paragraphs spoken of was res adjudicata the plaintiff then filed a motion for judgment on the pleadings. The court sustained this motion. Defendant argues here that paragraphs 2 and 3 of the answer alleged a good defense to the cause of action, and that even though it should be held that the matters set out in paragraphs 4, 5 and 6 of the answer were res adjudicata still he was entitled to a trial on the issues raised in paragraphs 2 and 3 of his answer.
In paragraph 2 of the answer it alleges the recognizance is “illegal and void” for the reason that it was not “executed, delivered and filed in the district court of Johnson county in the manner prescribed by law.” Such an allegation is a conclusion of law. It does not state any fact upon which an issue may be raised. Facts are urged in the brief of defendant upon which they argue that this claim is based, but they do not appear in the record. In Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985, this court said:
“It will be observed that the last two of the above-quoted allegations of fraud were of the most general character. No specific facts and circumstances were stated in them, and therefore, no issue was presented by such parts of the petition. The decisions are full to the effect that general averments of fraud and illegality, without stating the facts upon which the charges are based, present no issue, and evidence thereunder is not admissible.” (p. 26.)
See, also, Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097.
The allegations in the second paragraph of the answer state no facts that constitute an answer to the cause of action pleaded in the petition and, standing alone, were subject to a demurrer.
The third paragraph of the answer alleges that the recognizance was not a valid or legal appearance bond because the sheriff demanded that a building and loan certificate be deposited with him before he would accept and approve the recognizance and that the sheriff had no authority to make any such requirement.
Defendant makes this argument under the authority of Roberts v. State, 34 Kan. 151, 8 Pac. 246. In that case the district court had fixed the bond at $1,200. The sheriff had required a bond of $1,250. The court held the entire bond invalid because the sheriff had no authority to require a bond in excess of the amount fixed by the court.
That is not the case we have here. In this case the person offering himself as a bondsman did not live in the state. Without some security the sheriff could not accept him on the bond at all. The requirement that he deposit the building and loan certificate did not increase his liability on the recognizance. It only made it certain that it could be collected if there was a default. We see nothing wrong about the sheriff making this requirement. There was no statement of fact in paragraph 3 of the answer that would make a defense to the cause of action alleged in the petition.
The record discloses that at the conclusion of the hearing on the motion to construe the allegations in paragraphs 4, 5 and 6 to be res adjudicata the plaintiff asked the court to construe the motion as one for judgment on the pleadings. This required an examination of paragraphs 2 and 3, which have just been discussed. The court did so, and concluded that with paragraphs 2 and 3 standing alone the answer did not state a defense to the petition. This was the correct conclusion.
Plaintiff argues that his motion for a change of venue should have been sustained. The ground for this motion was that the court had stated in the journal entry overruling the motion to set aside the forfeiture that he had seen Montague on the streets of Olathe, apparently in good health, two days before the day when he should have appeared in court. The argument is that this statement disclosed that the judge of the district court made a witness of himself, and that disqualified him from sitting'as a court.
The only ruling we have here is in the action upon the recognizance. The conclusion reached by the trial court in that case did not require the introduction of any evidence. Hence, the facts set out in the journal entry on the motion to set aside the forfeiture of the action on the recognizance could not have prejudiced the court. Moreover, even if the question had been one that required evidence, the fact that the court had seen the defendant two days before the period during which he afterwards claimed he was sick is not evidence that he would be prejudiced on the consideration of a question of whether he was sick two days later. .The court read the affidavit and found that he was not prejudiced. That ended the matter. (See Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33.)
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a note.
The facts shown by the evidence are summarized as follows: In March, 1927, plaintiff loaned Dora Wolf, wife of the defendant, the sum of $1,500, taking her note therefor. Later Mrs. Wolf desired to borrow for the use of her husband the further sum of $1,000. The plaintiff agreed to loan the defendant the $1,000 on condition a new note be made for $2,500, to be signed by Mrs. Wolf and her husband, defendant here, and this was done, the note being made about June 1, 1927. Payments were made on this note so that on January 31, 1929, there was due a balance of $1,600. Plaintiff lost her original note and, desiring evidence of the debt, set about to get another note. She met the defendant, and a new note was prepared by some third party and was executed by defendant and delivered to the plaintiff, wlm then returned it to the defendant, who was to have his wife.sign it and return it to the plaintiff. About the time the $1,600 note was prepared, a memorandum was signed by Dora Wolf that she would pay the $1,600 note at the rate of $100 per month. On the bottom of this memorandum was a statement “Note for $1,500 and note for $1,000 paid in full. Ida Abramson.” The defendant failed to return the $1,600 note to the plaintiff, although payments were made, either on it or the balance of the original note which it represented. Later Mrs. Wolf gave plaintiff another note dated May 11, 1931, for the sum of $1,548, the balance then due, the note containing an indorsement that it represented the only money owed by Dora Wolf as of its date, a note for $1,600 having been lost or destroyed. On this note a payment of $25 was made August 19,1931. Default having been made, plaintiff brought suit, her petition alleging two causes of action, the first setting up the $1,600 note on which it was claimed there was due $1,500 and interest from January 31, 1929, and that the note had been taken by defendant and not returned. The second cause of action set up the $2,500 note and that there was due on it a balance of $1,548 as of May 11, 1931, that $25 had been paid on interest, and that the note had been destroyed, misplaced or stolen.
To this petition defendant answered admitting the execution of the $1,600 note and alleging that he signed the same as an accommodation maker, denying the execution of the $2,500 note and alleging the execution of the $1,548 note by Dora Wolf and that it was in payment of the $1,600 note.
The cause was tried to a jury. After the parties had made their opening statements, plaintiff moved for judgment, at which time the court asked: “Do you claim you should recover on both causes of action?” and plaintiff’s counsel answered “No; the first cause of action we want to recover on.” The court then overruled the motion, and evidence as to the entire transaction was received. Apparently by that time the court understood the entire matter and, after consultation with counsel for both parties, instructed the jury as to the entire matter and not as to the first cause of action alone, and submitted a special question as to whether the defendant executed the $2,500 note. The jury returned a verdict for plaintiff for $1,703.90 and answered the special question in the affirmative. The defendant appeals, and argues two questions: (a) error in omitting to instruct on all defenses pleaded, and (b) where plaintiff elected to stand on one cause, it was error to instruct on the abandoned cause of action.
It is true that at the time of making opening statements plaintiff did say she stood on the first cause of action involving the $1,600 note, but when the evidence was offered the entire transaction between plaintiff and defendant was revealed, and it was then clear that although she had stated two causes of action, in fact but one was involved — that she had divided one cause of action into two component parts. Without using the expressions “first cause of action” or “second cause of action,” the court, after consultation with counsel for both parties, gave instructions...which-fairly presented the matter in controversy, and it is significant that defendant neither objected to the instructions as given, nor did he ask any other or further instructions. He filed a motion for a new trial, setting up all statutory grounds. The court’s ruling on that motion has been preserved, and it appears therefrom that the only question presented was whether there were two causes of action or only one. After reviewing the situation as it developed at the trial, the court said:
“. . . But after the testimony had been introduced and the court retired to draw its instructions, it was of the opinion that even though the petition had been drawn in such a way as to indicate that the plaintiff was suing upon more than one cause of action, in truth and in fact there was but one transaction, and the business relations of these two parties were such that there were not several causes of action, as was claimed in the petition, but there was in fact but one cause of action, even though the petition indicated there were more than one. It was upon this theory that the court submitted to the jury the case under the instructions as they were given.
“The court is still of the opinion that, regardless of the pleadings, there was but one cause of action involved in this controversy between these two parties, and it was upon that controversy the court submitted it to the jury.
“There were no other reasons urged in support of the sustaining of this motion, and the court is of the opinion that it had the authority to submit the case to the jury under the instructions as given, and that no material error was committed otherwise in the trial of the case.”
The defendant, having stood by and, if he did not agree thereto, did permit the court to frame a theory of the case and submit it to the jury thereon, cannot now raise any question as to the correctness of such theory (Nichols v. Weaver, 7 Kan. 373, syl. ¶ 3; Commission Co. v. Wolf, 74 Kan. 330, 333, 86 Pac. 128; Geppelt v. Stone Co., 90 Kan. 539, 542, 135 Pac. 573), nor can he raise any question as to instructions to which he did not object, did not ask to have amplified by further instructions, and did not complain of in presenting his motion for a new trial.
In Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419, it was said:
“Although plaintiffs complain that instructions were incomplete and should have included some additional matter, they did not request or suggest any additions or modifications of those given. Plaintiffs stood by without making objections, and not asking for modifications or additions they allowed the court and defendant to understand that they were satisfied with the charge. If a party thinks an instruction is not as full as it might be he should, in fairness to the court, point out the lack and request the additional matter, and if he fails to do this he has no right to complain.” (p. 14.)
And see Skaer v. American Nat’l Bank, 126 Kan. 583, 540, 268 Pac. 801, and cases cited therein, and Stewart v. Marland Pipe Line Co., 132 Kan. 725, syl. ¶ 4, 297 Pac. 708.
We have examined the pleadings, the evidence and the instructions, and hold that the court properly construed the petition as stating but one cause of action, and that the same was submitted to the jury under instructions which cannot now be questioned. Under such a condition the jury’s finding is conclusive.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose a mechanic’s lien, the principal contention being the priority between the mechanic’s lienholder and a defendant who advanced the purchase money for the real estate on which the improvements were made. The evidence showed and the court found that defendant Klinzman contemplated purchase of the real estate on which the improvements were made, but was unable to finance the transaction except with the help of his relative, Molzahn. On August 19, 1931, Molzahn advanced $500 on the purchase price, and the seller executed a deed in blank, which was deposited in escrow. On August 25, 1931, Molzahn paid the balance of the consideration, his name was in serted in the deed, and on August 26, 1931, it was filed of record. At the time of the final payment a contract in writing was executed between Molzahn and Klinzman whereby Molzahn agreed to convey the land to Klinzman upon payment of the $2,400 and interest, the contract providing in part:
“The parties of the first part agree that should second parties make improvements upon said land that all improvements so made shall remain the property of the second parties.”
It is here remarked that the pleadings and evidence do not show when this contract was recorded, and neither is it alleged that plaintiff had any express or implied knowledge of it. It is stated in the briefs that it was filed December 15, 1932.
The court’s original findings were modified, on motion for a new trial, and the latter part of the findings are now, in substance, as follows:
“5. That on August 20, 1931, immediately following the tentative agreement for the purchase of the premises aforesaid, Klinzman and Molzahn went together to the place of business of plaintiff in Kensington, and Molzahn advised the agent and representative of plaintiff that Klinzman had purchased the land in question and that there were no improvements thereon, and that improvements would be necessaiy and expressed the desire that he would like to see plaintiff sell the job. At this time plaintiff knew nothing of the arrangements heretofore set out concerning the purchase of the land in question, but later did furnish the material for improvements, relying upon the representations and statements of Molzahn concerning the ownership of the land in question and his express wish that he would like to see plaintiff sell the job, and plaintiff, relying thereon, did furnish materials as set out in its petition for a dwelling house and for a barn.
“A. No improvements except the dwelling house were discussed by plaintiff Klinzman and Molzahn on August 19, 1931.
“B. Plaintiff thereafter, and on or about the 25th day of August, made an estimate of the materials for said house and gave the same to Klinzman about the 27th day of August, and thereafter about the 29th day of August, Klinzman agreed to buy the lumber for said house from plaintiff, the first materials for which were furnished by plaintiff on September 22, 1931. That the cost of said material was $550.
“C. The defendant Molzahn took no part in the negotiations or dealings of Klinzman and plaintiff in reference to the materials purchased by Klinzman from plaintiff at any other time except on the 19th day of August, at which time Molzahn did not intentionally mislead or deceive plaintiff.
“D. That in the fall or winter following August, 1931, when the house in question was partly finished, further negotiations were had between Klinzman and the plaintiff for additional materials for building a barn on the premises in question, by Mr. Klinzman, which materials were furnished by plaintiff and included in their claim for a. mechanic’s lien set out in its petition.”
In the first instance the court had concluded that plaintiff was entitled to a first lien for the entire amount of his claim, but on motion for a new trial, and consistent with its findings, it found that plaintiff should have judgment against Klinzman for $1,289.15 and interest and that Molzahn have judgment against Klinzman and wife for $2,548 and interest; that plaintiff have a first lien upon the real estate, exclusive of improvements, for $566.26; that Molzahn have a second lien upon said real estate, exclusive of improvements, for $2,548, and that plaintiff for the balance of its judgment in the- sum of $722.89 have a first lien on the improvements and a third lien on the real estate, and entered judgment accordingly, and that if default in payments of the judgments be made that the lands and the improvements be sold separately and the proceeds applied conform-ably to the judgments.
Both parties appeal. The defendant Molzahn served his notice first and will be referred to as the appellant.
An examination of the record shows that the court’s findings of fact are supported by the evidence, except that it finds the amount of materials in the house was $550, while the witness Browning, who sold the materials, estimated their cost at $530. There is nothing to sustain the finding of $550. The date August 19, 1931, in the findings A and C above should be August 20,1931. There is no contention that the appellant acquired any lien on the improvements, and therefore that feature of the case need not be discussed.
Under the circumstances the only question for decision is whether the appellant’s deed, which is in legal effect a mortgage and is so referred to hereafter, is prior to the lien of appellee, and if so, to what extent.
There can be no dispute that appellant’s mortgage is to secure the purchase price. The general rule is that such a mortgage given at the time the property is acquired and as a part of the entire transaction takes precedence of prior judgments and existing and subsequent liens against the mortgagor. On the other hand, it has been held that purchase-money mortgages are subordinate to liens for improvements authorized by the mortgagee or done with his knowledge and consent, or where, by his acts and conduct, he has es-topped himself to assert priority. (See Noll v. Graham, 138 Kan. 676, 683, 27 P. 2d 277, and the cases cited therein. Also, see 40 C. J. 287, 299.)
Appellant argues that appellee had -to take notice of the record of the deed, and must be held to have dealt with Klinzman with full notice of the extent of his ownership in the land. However sound such a contention might otherwise be, it cannot avail here. On the day Klinzman arranged to purchase the farm and appellant made the initial payment of $500, and when the deed, blank as to the name of the grantee, was put in escrow, appellant, who was personally known to appellee’s manager, Browning, introduced Klinzman, who was a stranger to Browning, and stated that Klinzman had purchased the farm which had no improvements on it, that he was góing to have some improvements on it, and he would like to see Browning sell the job. Why, under the circumstances, need Browning make any further inquiry as to Klinzman’s ownership or appellant’s interest? On that day the deed had not been delivered and could ñot be recorded. On the strength of appellant’s statement appellee furnished an estimate for the lumber and materials for a house, which the court finds was all that was discussed then, and a few days later sold the job. During that interval the purchase agreement was completed, the title taken in appellant’s name, the deed delivered and recorded, and the agreement to sell, between Klinzman and appellant, completed.
In this situation appellee says appellant is estopped to deny Klinzman’s right to create the lien, while appellant argues that a lien cannot be established by estoppel. It is true- that a lien cannot be created by estoppel. The lien exists only when the statutory requirements have been met, and they were met here. However, the court found that appellee did furnish the materials, relying on appellant’s statements as to Klinzman’s ownership, and appellant is now estopped to say that Klinzman was not the unqualified owner of the real estate. Appellant was under no obligation to introduce Klinzman to Browning or to tell him anything about the farm or the improvements or that Klinzman had bought, but, having done this, it was obligatory upon him that he disclose his own interest and, failing to do so, he cannot now say that appellee dealt with Klinzman at its peril. (41 C. J. 593 et seq.)
Appellee contends that it is entitled to a first lien for the full amount of the materials furnished, not only for the house, but for a bam and other improvements subsequently made. The trial court expressly found that no improvements except a dwelling house were discussed by Klinzman, Molzahn and Browning, and that further negotiations were later had between Klinzman and the plaintiff for additional materials for a barn in the fall or winter after August 20. It must be held that the estoppel against Molzahn to assert the priority of his purchase-money mortgage is limited to the improvements discussed when he was present, and cannot be extended to cover those subsequently agreed on between the plaintiff and Klinzman.
This court is satisfied that the lower court’s conclusions of law on the facts as found are correct. The finding as to the cost of materials in the house of $550 should be reduced to $530 and a new computation made as to the amounts of the first and third liens on the real estate, and judgment should be rendered accordingly.
And, as modified, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages.
The petition alleged and the evidence, to which the jury gave credence, showed that defendant The Wyandotte Railways Company owned, and defendant Kansas City Public Service Company operated, a double track of street railway on Kansas avenue in Kansas City, Kan.; that plaintiff, a woman about 50 years of age, lived on the north side of Kansas avenue in the 300 block; that on November 10,1930, about 3:30 p. m., she started to cross Kansas avenue toward the east end of the block. She had passed between automobiles parked along the north curb line and southward until she got between the rails of the south track. She stopped to observe the traffic and saw an automobile approaching from the west and distant about 20 to 25 feet, traveling from 20 to 25 miles per hour, and about one and one-half feet south of the south rail. A street car was also approaching from the west and 60 to 100 feet away. About the time the automobile was opposite her, plaintiff started to take a step forward, her foot went into a hole in the pavement just north of the south rail and she fell forward. As she fell she felt a sharp pain in her ankle, something popped, and her head hit. She was unconscious until the next day. Her injuries consisted of a fractured right arm, right leg and right ankle, lacerations of her head and face and concussion of the brain. At the time of the trial the broken bones were healed, except that the union of the leg bones was not good and she was compelled to use a.crutch. The use of the arm had been affected, and she could not raise it above a level-position. It is not intended by the above to give the evidence fully, but only sufficiently to present matters concerning which complaint is made. Defendants’ answer was a general denial and a plea of contributory negligence. The jury returned a verdict in favor of plaintiff for $9,000 against both defendants, and answered special questions as follows:
“1. Did the plaintiff’s right foot become fastened in any hole next to the south rail of the eastbound street-car tracks? A. Yes.
“2. If you find the plaintiff’s foot became fastened in a hole next to the south rail, then state whether the plaintiff, before stepping into the hole, stopped between the rails of the eastboünd track and looked down at the place where the hole was. A. Yes.
“3. If you find the plaintiff’s foot became fastened in a hole next to the south rail, then state whether the hole in which the plaintiff’s foot became fastened was so large and easily seen that any person of ordinary prudence, looking at the place where the hole was, could have seen it. A. Yes.
“4. If you find that the plaintiff’s foot became fastened in a hole next to the south rail, then state the size of the hole, giving length, breadth and depth. A. Length, 6 inches; breadth, 5 inches; depth, 6 inches.
“5. What part of the automobile did the plaintiff collide with? A. Left rear door and left rear fender.
“6. If the plaintiff had exercised ordinary care when she crossed the street in observing the approaching automobile, and in observing the condition of the street ahead of her, could she not thereby have avoided her injuries? A. No.
“7. If you find for the plaintiff, then state specifically what negligence, if any, the defendants were guilty of. A. Guilty of negligence in not keeping paving between rail in proper repair.
“8. Did the plaintiff stop on or near the south rail of the east-bound track? A. Yes.
“9. If you find the plaintiff stopped on or near the south rail of the eastbound tracks, then state how far west of her the automobile was with which she collided and at what speed it was traveling. A. Twenty to twenty-five feet. Twenty to twenty-five miles per hour.
'TO. If you find the plaintiff stopped at or near the south rail of the eastbound tracks, then state whether she would have been injured if she had remained standing for a sufficient time to let the automobile of Mrs. Swindell get by. A. Yes.”
Defendants filed their motions for judgment on the findings of the jury, to set aside certain findings, and for a new trial, and plaintiff asked the court to set aside the answer to special question No. 2.
The court denied the motion of defendants for judgment on the findings, set aside the answer to special question 10 as not sustained by the evidence and otherwise denied the motion to set aside the findings. The motion for a new trial was allowed in part and denied in part, the journal entry reciting:
“The court holds that the amount of damages found by the jury is not sustained by the evidence and is excessive and that a new trial should be granted as to amount- of damages only, and overruled as to the residue of such motion, . . .”
And an order was made accordingly.
The defendants appeal and contend that under the facts testified to by plaintiff and on her behalf and on the answers to the special questions they are entitled to judgment in their favor as a matter of law; that the verdict was so excessive as to indicate passion and prejudice, and a new trial as to all issues should have been allowed, and that the court erred in its instructions. The plaintiff appeals, assigning as error the allowance in part of the motion for a new trial and the setting aside of the answer to special question No. 10.
The contentions will be discussed in the order assigned.
We can see no good purpose in again stating the facts to determine whether plaintiff, as a matter of law, is entitled to judgment on the showing made by plaintiff and on the findings of the jury. It is argued that plaintiff had to take notice of the approaching automobile and street car, and that when she proceeded to cross the street with them in view she was guilty of contributory negligence, and many cases in support are cited. It is not necessary to review them. Plaintiff was not injured by the street car and, under the evidence which the jury credited, would not have been by the automobile, which may have inflicted the injuries to her head and arm, had she not stepped in the hole next to the south rail of the defendants’ tracks. Neither are we impressed by the argument made that because the jury, in answer to special question 2, found that plaintiff stopped between the rails o'f the south track and looked down, and in answer to special question 3 found that the hole could be easily seen by any person looking at the place where the hole was,-that the hole was plainly visible and she must have seen it. Plaintiff left the north side of the street and started south, not to look for holes in the pavement, but to get across the street, and in doing so she was observant of the traffic. Whether she was guilty of negligence in going to the point between the rails where she stopped momentarily to permit the automobile to pass, the street car being a considerable distance away, was a question for the jury. The hole in which she stepped was found by the jury to be six inches long and five inches wide, and standing close to the south rail it is very possible that in looking down she would not see it — perhaps her own clothing prevented, perhaps she did not look down so close to where she stood. The hole might be seen very easily under some circumstances and not seen at all under other circumstances. There was no evidence that plaintiff knew of the condition of the street prior to the time of the accident; there was evidence that she was crossing a busy street, and as was said in Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877:
“Persons using a street which is in constant use, and when their attention has not been called to any obstructions or perils thereon, have a right to presume that the street is reasonably safe for ordinary travel. While they must act with reasonable care, they are not required to keep their eyes upon the pavement continuously, watching for obstructions or pitfalls.” (Syl. ¶ 6.)
And in Womochil v. List & Clark Construction Co., 135 Kan. 695, 11 P. 2d 731, it was said:
“Defendant makes a vigorous argument that plaintiff was guilty of contributory negligence as a matter of law. The fact that plaintiff admits he did not see the barricade is urged as conclusive proof that he had not been keeping a vigilant outlook ahead of him. . . . Such evidence measurably approaches proof of plaintiff’s contributory negligence; but still we think the circumstances, the contour of the road, the want of the statutory warning signs and the inconsequential character of the barricade which might not be readily discernible on that dark and drizzling night, made the question one for the jury and not determinable as a matter of law.” (Citing cases.) '(pp. 697, 698.)
If there were any inconsistencies between the general verdict and the special findings, it was the trial court’s duty and it is our duty to harmonize them if possible. (Rockwood v. Stubenhofer, 119 Kan. 307, 312, 239 Pac. 993, and Moore v. Connelly, 119 Kan. 35, 237 Pac. 900, and cases cited.)
An examination of the record shows that the jury’s general finding was supported by the evidence, and that the apparent inconsistencies in answer to special questions are reconcilable with the general verdict. The court committed no error in denying defendants’ motion for judgment.
Both parties complain because the co.urt granted the motion for a new trial, the plaintiff because any new trial was granted, the defendants because it was limited to the question of damages only.
Defendants contend that the verdict was so excessive it indicated passion and prejudice on the part of the jury, and that they were entitled to a new trial on all issues. R. S. 60-3004 permits a new trial in part only. In Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620, it was held that where several issues are presented, some of which are properly determined and some improperly determined, and they are sufficiently distinct from each other, there is no necessity of trying all issues in order to determine those which have not been properly determined. And in Bateman v. Preisser, 123 Kan. 217, 254 Pac. 1028, it was said:
“The allowance or denial of a motion, to set aside a judgment and to grant a new trial is a matter resting in the sound discretion of the trial court whose action thereon will not be reversed unless an abuse of such discretion is apparent.” (Syl. ¶ 3.)
So far as plaintiff is concerned, she complains that the court granted any new trial, and argues that the judgment was not excessive and should have been allowed to stand. The rule is that an order granting a new trial will not be reversed where the trial court is not satisfied with the verdict. (Armourdale State Bank v. Hoel, 120 Kan. 130, 242 Pac. 481.) The trial court plainly indicated that it believed the verdict excessive, and nothing approaching abuse of discretion is shown.
There was no error in the ruling with respect to a new trial.
The defendants complain that the court “erred in limiting the negligence which the plaintiff might be found guilty of to negligence ‘in the manner of crossing the street’ and refused to add negligence in failure to see the hole and negligence in stepping forward before the automobile had passed.” This claimed error has reference to the sixth instruction, which recites:
“On the other hand if you find that the defendants were not negligent in the maintenance of the space between rails and car tracks, or that there was negligence on the part of the defendants, but the plaintiff was also negligent in the manner in which she passed over said tracks and that her negligence contributed in any way to her fall and injury, then and in either case your verdict should be for the defendants.”
Had there been no other instruction bearing on the question of plaintiff’s claimed negligence, there might be merit to the claim of error, but in instructions 2, 3 and 4 the court pointed out the duties of a pedestrian in crossing a street, particularly with respect to seeing and knowing that which in the exercise of reasonable care he should see and know; that in crossing a street he is not required to keep his eyes fixed upon the street at all times or at every instant while crossing the street, and defined negligence, etc., in a manner of which no complaint is made. Taking all the instructions together, it appears that the issue was fairly presented under the instructions and that the defendants were not prejudiced in any manner by the sixth instruction.
The plaintiff also complains because the court set aside the answer to special question 10 as not sustained by the evidence. The question is ambiguous, and an answer to it either in the affirmative or negative would have been easily reconcilable with the answers to the other special questions. It is not clear from the question whether it refers to injuries from being struck by the automobile or from the fall in the street occasioned by stepping in the hole in the pavement. If it referred to injuries by being struck by the automobile, there is no support in the evidence. Evidently that is the way the trial court construed the question. In view of the trial court’s rulings on other matters here discussed, if there was any error in setting aside the answer to special question 10, it is immaterial and nonprejudicial.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This is an action for a writ of mandamus, and arises under the cash-basis law (Laws 1933, ch. 319).
Wallace county issued its bonds in the sum of $47,696.49 to take up indebtedness as contemplated by the above statute, and the only question involved is as to the sufficiency of the posting of notices required by section 4 of the act, which reads, in part, as follows:
“The governing body of any municipality having any of the items of outstanding indebtedness mentioned in section 3 hereof shall, on or before May 5, 1933, post a notice in as many and at the same places within its territory as were used for voting places at the last general election, and at the office of its treasurer and clerk and at each schoolhouse and make publication of a similar notice in a newspaper inside the county, qualified to print legal publications, for three consecutive weeks, the first publication being in the first issue for legal publications of said paper subsequent to May 1, 1933. Such notice so posted and published shall contain not only the complete financial statement herein required, with full and complete totals and additions of the several items, but shall state that on or before the third Monday in June, 1933, a resolution will be duly passed and proceedings instituted for the issuance and sale of refunding bonds of such municipality to the amount necessary to retire and discharge such indebtedness existing on April 30, 1933, with interest to July 1, 1933, where interest is payable, said bonds to be issued and sold in the same manner as now provided by law for the issue and sale of municipal bonds.”
It is conceded by all parties that notices were posted at all voting places and at the office of the treasurer and clerk; that proper newspaper publication was made, but that notices were posted only on six of the twenty-seven schoolhouses in Wallace county, said six schoolhouses having been voting places at the last election.
All proceedings for the issuance of the bonds were fully had except as above stated. After the bonds were executed they were presented to the state auditor for registration, together with a transcript of proceedings showing the above facts. Owing to the fact that notices were not posted at all schoolhouses, the auditor refused to register the bonds, and this action followed.
Both parties, by analogy, argue from decisions rendered in election cases. The notice in question was not preliminary to an election, but there is some analogy, and the same will be referred to briefly.
On behalf of the plaintiffs, it is urged that the failure to post all the required notices is a mere irregularity, while the defendant urges that the notices are jurisdictional, and failure to post the same invalidates the bonds.
In the case of State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523, this court, through Johnston, J., said:
“A well-defined distinction exists between general and special elections respecting the strictness to be observed in the manner of giving notice. In regard to general elections, the time for their occurrence and the officers to be voted for are definitely fixed by law; and as the electors are presumed to know the law, they are charged with knowledge of the time and purpose of the election, and the mere failure of the sheriff or other officer to post up or publish an additional or other notice will not invalidate the election. In such cases the provisions requiring additional notices are regarded as directory, the nonobservance of which will not generally vitiate the election. (Jones v. Gridley, 20 Kan. 587; Wood v. Bartling, 16 id. 109; Morgan v. Comm’rs of Pratt Co., 24 id. 71.) In special elections, like-the one we are considering, where the time is to be fixed by some officer or tribunal, a very different rule must necessarily be applied. While the law furnishes the authority for calling and holding a special election, it does not generally designate the time when it is to be held. In such cases the electors depend upon the notice required to be given, and not upon any knowledge derived from the law itself; and hence the right to hold such election at a specified time is the notice prescribed by the statute. It is therefore a mandatory provision, and the courts generally hold it to be essential that the prescribed manner shall be followed in order to give validity to the election.” (p. 4.)
And in Chanute v. Davis, 85 Kan. 188, 116 Pac. 367, it was said:
“It may be freely conceded that failure to give notice of an election in the strict manner prescribed by statute is often regarded as an irregularity which does not invalidate the result. This is generally true of elections occurring at times and for purposes fixed by law. The law itself brings the election to the attention of the voter and apprises him of his opportunity to express his desire at the ballot box.” (p. 190.)
And see 9 R. C. L. 990 and 20 C. J. 96, both of which state the rule to be that in general elections the time and place of holding the same being fixed by law, the notice is directory, but in case of special elections the time and place are not fixed by law but by some authority named in the statute after the happening of some condition precedent, and the giving of notice is mandatory.
While this court has usually followed the above rules, in City of Aurora v. French, 126 Kan. 393, 268 Pac. 93, it was held that a notice of special election, published before an ordinance providing for it became effective, was an irregularity which did not affect the validity of the election.
The procedure set forth in the act differs radically from a special election in this, at least, there is no choice to be made by the voters or taxpayers in any municipality. The governing body is obligated without excuse to the contrary to initiate and carry forward certain well-defined measures which shall definitely and positively result in the issuance of bonds to pay the valid -indebtedness of the municipality as defined in the act.
The purposes to be accomplished by chapter 319 of the Laws of 1933 demand a new course of business administration by municipalities, and the provisions in some respects demand a radical departure from former proceedings. The validity of the act has been determined. (State, ex rel., v. Board of Education, 137 Kan. 451, 21 P. 2d 295.) In section 9 of the act it is provided that:
“The governing body shall proceed forthwith to pay off and discharge all of the indebtedness of such municipality as shown upon its final published statement, to the end that such municipality may, after May 1, 1933, operate on a cash basis, without other indebtedness or liabilities, except that covered by bonds previously issued or issued under the provisions of this act and this act shall be liberally construed for the achievement of said objectives.”
The final published notice results from proceedings leading up to and following the adoption of the bond resolution, notice of which must be given, and the sufficiency of which notice is here involved. The meeting to consider claims and to pass the resolution is required to be held (sec. 5), and neglect or refusal of any member of the governing body of any municipality to perform any duty is penalized (sec. 20). There is no provision in the act for correction of any omission such as we have under consideration here; no opportunity to postpone any meeting or hearing to enable the governing body to remedy a defect or supply an omission. The act provides a rather speedy program which shall result in a payment of all outstanding indebtedness, other than bonded indebtedness, by funds to be raised by sale of bonds or the use of bonds issued in accordance with the provisions of the act. No new debt is created or to be created under the statute, nor is anything to be done which will have the effect of depriving any person of his property. The sole purpose of the notice is that creditors may know certainly that their claims are included in the aggregate amount for which bonds are to be issued, and to afford an.opportunity to ten or more taxpayers to appeal from any allowance they may believe improper.
We have' here no situation where a creditor claims that failure to post the notices on the various schoolhouses has deprived him of his due from the municipality, or where ten or more taxpayers say that if such notices had been posted they would have protested the allowance of any allowed demand. In any event creditors and protestors must be presumed to know the law, and it is also to be presumed that with noticés published in the newspaper and posted at every voting precinct and at the offices of the clerk and the treasurer, they had notice, and the failure to post the notice on every schoolhouse door did not prejudice them in any particular.
The statute itself demands a liberal construction that its objectives may be attained, and we are constrained to hold that, giving that portion of the statute requiring notice such construction, the provision for posting of notices on schoolhouse doors in Wallace county is directory and not mandatory, and the failure to post such notices on every such schoolhouse is an irregularity which does not affect the validity of the bonds.
The writ of mandamus will issue directing the state auditor to register the bonds. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to test the validity of the method of assessing farming lands in Brown county.
Plaintiff owns two farms, each bounded on two sides by public roads. Their legal descriptions are as follows:
1. Northwest quarter section 35, town 1 south, range 15 east, less 7.4 acres owned by the St. Joseph and Grand Island Railroad Company.
2. West half of southwest quarter of section 26, town 1 south, range 15 east.
On the west side of these farms a public road, sixty-six feet wide, runs north and south. Between the two farms another public road of similar width runs east and west. On the northwest corner of the larger farm the highway authorities appropriated 13/100’s of an acre for a rounding comer at the-intersection of these public roads.
It was conceded that the acreage of the two farms as described in terms of government survey was diminished for all practical purposes to the extent of almost seven acres (6.95 acres to be exact) by these public roads — about four acres off the larger farm and three acres off the smaller.
By consent of counsel the trial court dictated into the record another admission which reads:
“The Court: It is admitted by the defendants that it is their intention, unless restrained or enjoined, to tax the farm lands of the plaintiff, owned by the plaintiff, without allowing any deductions for the public highways or for the rounding comer . . . which it has been stated by the plaintiff has been used for road purposes and in which the county has merely an easement.”
Other agreements and admissions of counsel and evidence shown without dispute may be thus summarized:
The fee to the 80-acre farm and the 160-acre farm diminished by the railway right of way was in the plaintiff; that the deeds under which he held were in substantially the same terms as those of the original government patents; that no deeds or less important convey.anees for highways had ever been executed by the original patentees or by any one holding under them; and that when the plaintiff’s lands have been the subject matter of conveyances they have been described in terms of- government survey without mention of any diminished acreage on account of the adjacent public roads.
A page of the assessor’s field book, exhibit “A,” supplied by the state tax commission, containing pertinent entries made therein by the deputy assessor, was introduced in evidence. (See page 333.)
The deputy assessor testified that he made the entries and valuations shown in exhibit A:
“Q. Just tell the court the things you took into consideration in fixing a value on Mr. Reber’s land, highways and everything. A. Well, the law says land shall be assessed at its fixed value and of course that is pretty hard to arrive at. First, going to a place, I try to look at it without improvements, as though we had wiped all the improvements away, and then take into consideration the waste land, the road land and all that, and make my estimation according to' that.
“Q. And you did that in this case? A. Yes, sir.
. . . . . . . . . .
Cross-examination.
“Q. You didn’t deduct the road land? A. I have no right to deduct it. He has got so many acres there, but we take into consideration the waste land.
“Q. There are about' seven acres of land used for road purposes? A. In taking your estimate, you know you 'go about an acre to eighty rods, or in other words, I would consider it in the neighborhood of that.
. . . . . . . . . .
“Q. Yes, now, you did not deduct, in your valuation and assessment for the purpose of taxation made in the year 1930, that seven acres of land — you did not deduct about seven acres of land used for the purpose of public highways taken from Mr. Reber’s land? A. Not directly. Indirectly, I did, I would say.
“Q. And you valued that land, Mr. Flickinger, you valued the quarter at $105 per acre, did you not? A. Yes, sir.
. . . . . . . . . .
“By the Court: You mean you valued each acre of waste land and everything, or was that an average, or how did you arrive at it? A. I had to arrive at an average. My field book showed me so many acres, see, but I say directly, or indirectly, it wouldn’t be that because I had to take that in consideration with the waste land. . . .
“By the. Court: You looked over the land before you assessed it? A. Yes, sir.
. . . . . . . . . .
“By the Court: And took into consideration the amount of tillable land and the amount of waste land for any reason, whether used for road, or creek? A. House lot and all.
“By the Court: For everything? A. Yes, sir.
“Q. For the purposes of the assessment made by you for the year 1930 you valued seventy acres on the north side of the road at $110 an acre, did you not? A. Whatever the records show. I supposed it would be eighty acres, isn’t it, or a total of eighty, probably ten acres of pasture and seventy acres, would be eighty acres, the total.
“Q. And then you multiplied the value per acre for the quarter by the number of acres in the land, and made for the quarter your valuation of $17,223 in all, is that right? That’s on the quarter at $110. A. Yes, sir.
“Q. And you made your assessment and valuation on the eighty north of the road owned by Mr. Reber at $110 an acre, or $10,000, did you not? A. Yes, sir; that is, the improvements and all.
. . . . . . . . . .
“Direct Examination.
“Q. Mr. Flickinger, let me ask you if when you were making a survey arriving at the reasonable value for taxation of Mr. Reber’s land — I will ask you to tell the court if in doing that you took into consideration the fact that Mr. Reber owned the fee simple to the entire quarter? A. Yes, sir.
. . . . . . . . . .
“A. That is, less the railroad.”
The trial court denied the injunctive relief sought by the plaintiff and gave judgment for defendants.
Plaintiff appeals. On his behalf it is contended that exhibit A demonstrates that the assessor paid no attention to the acreage devoted to the public roads alongside these farms, but assessed them exactly as if plaintiff had the full and exclusive use of 152.6 acres in the one farm and 80 acres in 'the other. It cannot be denied that a casual examination of the assessor’s entries in the field book prepared for his use by the state tax commission would sustain that contention. The legal question is not quite so simple, however. The pertinent statutes provide:
R. S. 79-1401 authorizes the state tax commission to provide a uniform method of keeping the tax rolls and books relating to taxation, and directs it to formulate and send to each county all necessary forms for use in listing and assessment of property.
R. S. 79-408 requires the county clerk to prepare the assessment rolls, and directs that they shall contain correct and pertinent descriptions of each parcel of real estate. To effect this, the county clerk is directed to consult the transfer record in his office, and the records and plats in the office of the register of deeds and reports from United States land offices. When the assessment rolls are thus prepared, the county clerk is required to deliver them to the county assessor, unless he is ex officio county assessor. (R. S. 79-1411.) In either case there is a field book prepared for the use of the deputy assessor. Included in its preparation there should be full and complete legal descriptions of the real estate within the assessment district to which the deputy assessor has been assigned, and it should contain suitable space for reporting pertinent facts relating to the real estate and real-estate values as the tax commission may require. From day to day the deputy assessor is required to detach leaves of his field book and forward them to the county assessor where the pertinent data are transferred to the assessment rolls.
R. S. 79-403, 79-411 and 79-501 go further into details touching the deputy assessor’s duties. He is required to determine the proper valuations from whatever sources of information are available. He should view the property and consult the owner or his agent to arrive at its actual value.
In the light of the statutes just summarized, it seems to us that the deputy assessor’s testimony, quoted above, as well as the facts stipulated, shows sufficiently that plaintiff’s lands were not illegally assessed. The statute requires that easements for railway rights of way over farming lands shall be deducted from the general acreage, for the excellent reason that the railway corporations are separately assessed therefor. (R. S. 79-602.) The statute does not specifically direct that the acreage of land devoted to public roads shall be deducted from the acreage of the farming lands to which they are adjacent. The legal descriptions of farming land in terms of government survey, in which such lands appear in government patents, deeds, transfer records and the like, are the proper descriptions for use in matters of taxation. Moreover, the statute provides a method by which inaccurate real-estate descriptions may be corrected for purposes of taxation. (R. S. 79-410.)
The deputy assessor’s testimony that he did take into account the road acreage in determining the proper valuation to place on plaintiff’s farms cannot be overlooked or ignored. And as there is no contention that the assessed valuation of plaintiff’s farms is out of line with that of his neighbors in that assessment district, it seems clear to us that the trial court correctly determined that it was without authority to meddle with the assessments.
Appellant projects a constitutional question into his argument, by suggesting that the road acreage was public property and therefore exempt from taxation under article 11, § 1, of the state constitution. It may be conceded that plaintiff’s lands appropriated and used for public highways cannot be taxed as such to him; but since the record contains testimony to which the trial court gave credence and which was that the acreage used for public roads was in fact taken into consideration in determining the assessed value of plaintiff’s farms, a majority of this court holds that plaintiff is in no position to complain.
The record contains no material error, and the judgment is affirmed. | [
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The opinion' of the court was delivered by
Johnston, C. J.:
Was the farm of Mrs. J. D. Weeks, sometimes known as Mabel E. Weeks, comprising 132 acres, occupied by her as a homestead, and therefore exempt from sale upon execution to satisfy a judgment for debt to the Farmers State Bank of Belvue? The Weeks family lived in the town of Belvue, where Mr. Weeks, the husband, died in 1915. Mrs. Weeks and her five children continued to live there until 1927, when she went to Topeka, temporarily, for the alleged purpose of educating her children. She sold the Belvue property in 1929, and at that time moved some of her 'furniture and household goods to Topeka — where the children attended school — and a substantial part of the same to the farm in question. She took to the farm two beds, a table, stove and some dishes, and thus, as she said, moved back to the farm. She rented the farm to her son, Floyd, which he operated up to February, 1932, reserving two rooms in the house for herself and the family. In Febru ary, 1932, she let part of the house to Harry Steele, and in leasing it she reserved two of the seven rooms for her occupancy. She also reserved a part of the haymow and some bins for grain.
There is testimony that she ¡regarded and claimed the farm as her homestead and had only gone to Topeka temporarily, to educate her children. That she had gone to the farm on week-ends and when “school was out.” As to her occupancy of part of the house Steele, the tenant, testified that she came to the house occasionally and occupied the reserved rooms, where she prepared her own meals and stayed while the children were absent in school; and at vacation they, too, came to the farm. A married daughter testified that she visited her mother at the farm and also when her boys were there. She spoke of the equipment in the house for living purposes, saying that there were beds, mattresses for them, sheets, quilts, bedspreads and pillows; that there was a cook stove, oil stove, breakfast table, chairs, rugs and a cupboard with dishes in it. She also said that her mother was living in the house, and that the children were there at week-ends. On the testimony the trial court held that Mrs. Weeks had claimed and had occupied the farm as a homestead for herself and her children and, therefore, adjudged that the execution levied on the property be withdrawn and canceled. The facts and circumstances related tend to show that the claim and occupation of the farm as a homestead was made in good faith, and that it had not been abandoned. She was on the farm occasionally, but most of the time was in Topeka with the children, where they attended school, and all were on the farm at the time of the trial.
Mrs. Weeks owned an undivided half interest with the children in the farm and had the unquestioned right to occupy it as the homestead of the family. If there was a real occupancy under the claim of homestead right, it could not be defeated by a temporary absence from the farm, such as going to another place for the purpose of educating her children. She testified that she intended to live on the farm all the time as soon as the children had finished school, and that she had no other home to which to go, saying it was “the only home I have.” It appears that her son occupied the farm as a renter for four or five years after 1927. A wife, after the death of her husband, is entitled to the homestead, even if she be the sole occupant. (Cross v. Benson, 68 Kan. 495, 75 Pac. 558; Weaver v. Bank, 76 Kan. 540, 94 Pac. 273; Koehler v. Gray, 102 Kan. 878, 172 Pac. 25.) Here the homestead right, if it existed, was for the benefit of the widow and children; the widow, acting for the family, claimed the homestead and to have established occupancy of it. She appears to have furnished the home with facilities to make it a reasonably fit place in which to live, and she says it was the only home that she owned. Under the evidence we think that her action and statements and claims were made in good faith, and sufficient to establish a residence and home upon which to base the claim of a homestead right. The intent of the claimant enters largely into the creation and acquiring of a homestead. It is true, as appellant contends, that a mere representation of a purpose to occupy is not enough to establish a homestead right. There must be a bona fide intent and an actual occupancy. Representations may be proven to show intent, likewise the physical acts of the claimant in the matter of occupancy may be shown, to prove that the acts concur with the declared intent. The reservation of a part of the residence and the equipment of the same as a home, followed by actual occupancy when not in Topeka with the children, tends to show good faith in establishing a homestead. When land is once impressed with the homestead character, the right is not lost by a temporary absence therefrom. In Fredenhagen v. Nichols & Shepherd Co., 99 Kan. 113, 160 Pac. 997, it was held that —
“A homestead is not abandoned by its owner where he, intending to return, leaves with his family and moves to a city in another county to educate his children, though later he sells the homestead and never returns.” (Syl. ¶ 1.)
See, also, Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; McGill v. Sutton, 67 Kan. 234, 72 Pac. 853; Strackeljohn v. Campbell, 136 Kan. 145, 12 P. 2d 812.
Attention is called to the fact that Mrs. Weeks had voted at an election in Topeka. This, although proper evidence in the case, is not controlling. She may have been ill-advised as to her right to vote there and been an illegal voter. It also appears that in 1932 she voted at an election in the county in which her farm is situated. In McGill v. Sutton, supra, the homestead claimant had moved to town temporarily for medical treatment and while away from the homestead voted at a town election. He voted there because he said he believed that he must vote “where he slept and had his washing done.” It was held' that he was entitled to a homestead exemption although he voted elsewhere while temporarily absent from the homestead. (See, also, Garlinghouse v. Mulvane, 40 Kan. 428, 19 Pac. 798; Pitney v. Eldridge, 58 Kan. 215, 48 Pac. 854; Mercantile Co. v. Blanc, 79 Kan. 356, 99 Pac. 601; Schlaudt v. Hartman, 105 Kan. 112, 181 Pac. 547.)
Whether Mrs. Weeks had actually and in good faith claimed and occupied the farm as a homestead was a question of fact for the trier of the facts, and whether she later abandoned or lost the homestead right by absence or by voting in another district was likewise a question of fact, and both have been decided in her favor.
We think there is evidence to support the finding and judgment of the district court, and hence the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover from an insurance company for the damages done to buildings and household goods by a windstorm, where the application for insurance made by plaintiff had been rejected by the company nearly a month before the storm, but the local agent had not notified the'plaintiff of its rejection, and the question is, was the property, under these circumstances, insured? The case was tried to the court without a jury and the court sustained the demurrer of defendant to plaintiff’s evidence and rendered judgment for defendant for costs, from which ruling the plaintiff appeals.
The appellant claims that he had a right to assume that the policy had been issued and that his property was insured until he was notified to the contrary, and that the making of the application put the insurance in force, whether a policy was issued or not, until he had been notified to the contrary.
Appellant directs our attention to the fact that in several places in the application blank prepared by the company the present tense is used instead of the future, indicating that the application was intended to be in effect from its date and, also, that the period to be covered by the policy, as stated in the application, was to begin on the date of the application. We understand that it is quite usual with fire and windstorm insurance companies to have the policy cover the period beginning with the date of the application rather than the date of the policy, as it is with many life insurance companies to have the protection begin after the applicant passes the medical examination. But the application shows that the whole matter was subject to the approval of the company, and the note given by the applicant for the full amount of the premium left the number and date of the policy blank, implying a subsequent and different date for the issuance of the policy.
The evidence of the plaintiff as to his failure to inquire of the local agent, Mr. Guthrie, about the approval or rejection of his policy before October 12 (the day after the storm), was as follows:
“At that time I came to town once or twice a week. I came on September 6 and signed the application. I never went to Mr. Guthrie and asked. him whether my policy had arrived. I saw him on the street and at the office; I made no inquiry prior to October 12 about the policy; I was in his office once or twice before that, just stopped there, but said nothing to him about the policy a.t that time.”
Appellant strongly urges that the decisions in the following cases cited by appellee are not applicable, because in each of the cases the application contained a statement to the effect that no liability would attach until the application was actually approved by the home office, or until the application was accepted in writing or the policy issued, or the company was satisfied as to the insurability of the applicant aside from the medical examination, viz., Pickett v. Insurance Co., 39 Kan. 697, 18 Pac. 932; Lamb v. Mechanics Ins. Co., 122 Kan. 352, 252 Pac. 213; and Butterfield v. Springfield Life Ins. Co., 128 Kan. 510, 278 Pac. 733. It is true that the provision in each of the applications in the abovernamed cases is more specific than anything on that subject in the application here under consideration, but the document here involved is denominated an application. The first paragraph begins as follows: “Application of A. G. Moon to The Central States Fire Insurance Co., Wichita, Kansas, for insurance against loss or damage by fire, tornado, cyclone and high wind.” The second paragraph, by way of instruction, states, “If insurance on personal property only is applied for . . .” The first part of another paragraph in this instrument is as follows:
“The foregoing is my own agreement and statement . . . and I hereby agree that insurance shall be predicated on such statement, agreement and description, if this application is approved . . .”
Three times subsequently the instrument is referred to as “this application,” and after the plaintiff’s signature thereto is the word “applicant.” Such statements in this document make it plainly and conclusively an application, and nothing more, requiring approval even without such a specific clause as was contained in each of the three above-cited cases. It is a proposition on one side, or the first step in the creation of a contract, requiring an acceptance of some kind t'o make it a contract.
“The making of an application is, however, merely a step in the creation of a contract. As was said in Lee v. Guardian Life Insurance Company, 15 Fed. Cas. 158, the rights of the applicant are not concluded by the making out of the application. When the application is made out and forwarded to the company, it is not yet a contract of insurance. It has then only attained the position of a proposition on one side, which must be accepted on the other. That is to say, until it is accepted by some one having authority to accept the terms proposed, the application is not a contract, but merely a proposal.” (1 Cooley’s Briefs on Insurance, 2d ed., 573.)
The decisions in the three cases above cited and considered show, we think, in a general way, aside from the special clause in each of the applications for insurance in those cases, that an application is only a proposition to initiate and invite an acceptance and thereby 'effect the consummation of a contract.
“Where a written application for insurance is made out on one of the regular blanks of an insurance company, which provides that no liability shall attach until the application has been approved by the home office, and the application, together with the premium, is delivered to the insurance agent, and before the application has been approved by the home office the property insured is destroyed by fire, held, that the insurance company is not liable for loss occurring before such approval.” (Pickett v. Insurance Co., 39 Kan. 697, syl., 18 Pac. 932.)
“The plaintiff was actor. The application constituted his offer to enter into a contract of insurance. He would remain without insurance unless the company manifested its assent. He had as much interest as the company in knowing if there was to be insurance. He appointed the company’s agent his agent to receive and keep the policy for him, and he was interested in knowing if that relation came into existence. Throughout a period of nearly three months he'had frequent opportunity to ask for the information which the court held it was the duty of the company to volunteer. Had he sought information, he would have learned the facts, and could have procured a policy from the company if it approved the risk, or could have applied for insurance elsewhere; and in the absence of ground of belief induced by the company that his application had been accepted, he was not in position to charge the company with sole responsibility for the fact that his property was uninsured, or indeed, any responsibility.” (Lamb v. Mechanics Ins. Co., 122 Kan. 352, 354, 252 Pac. 213.)
“Where an application for a life insurance policy contains a statement as to the proposed policy becoming effective from the date of the medical examination, ‘provided the said company in its judgment shall be satisfied as to my insurability on the date of such medical examination, for the amount and on the plan and form applied for,’ and where the medical examination is promptly made and the applicant recommended by the medical examiner as a good risk, and such report is mailed to the company but never reaches it, and the company never knew of such medical examination and report and never had an opportunity of exercising its judgment as to the insurability of the applicant and as to the amount, plan and form of policy applied for until after the death of the applicant, the insurance company is without fault and not guilty of negligence, even if the application was not sent in promptly by the soliciting agent.” (Butterfield v. Springfield Life Ins. Co., 128 Kan. 510, syl., 278 Pac. 733.)
The decision in the case of Boyer v. Hail Insurance Co., 86 Kan. 442, 121 Pac. 329, is hardly applicable to the facts in this case, because there the delay was on the part of the agent in sending in the application, and .it was approved and policy issued as soon as received at the home office, but the loss was sustained before it was approved.
In the case of Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986, the delay in approving the application was only to await the remittance of the premium from the general agent, the application being otherwise acceptable, and the company was held liable. This too, we think, is not controlling in the case at bar.
Under the title of Eire Insurance it is said in 26 C. J., at page 54:
“Acceptance of the application in some form being essential to the validity of the contract, mere delay in acceptance of an application made, or failure to notify insured of the rejection of his application, will not, as a general rule, constitute a contract of insurance. So the fact that the agent receiving the application and the accompanying premium does not return them within a reasonable time to the insured will not in itself give rise to a contract on the part of the insurer.”
It was held in More et al. v. N. Y. B. F. Ins. Co., 130 N. Y. 537, that the mere failure of a fire insurance company to respond to an application for insurance does not raise an inference that the company had accepted it and insured the risk; that to bind the company there must be actual acceptance, and that silence operates as an assent and creates an estoppel only where it has the effect to mislead. There is no evidence here of anything that would mislead the plaintiff.
In the case of Dorman v. Connecticut Fire Ins. Co., 41 Okla. 509, it was held:
“An unaccepted application for insurance, accompanied by the premium, although retained without notice of objection for five days after its date and until the applicant has suffered the loss against which he desired the insurance, is not a contract of insurance.” (Syl. ¶ 3.)
In the case of Northwestern Mutual Life Ins. Co. v. Neafus, 145 Ky. 563, it was held:
“An application for insurance is merely a proposal, and does not become a contract between the parties until it has been accepted.” (Syl. If 4.)
A recent case is Cloyd v. Republic Mutual Fire Ins. Co., 137 Kan. 869, in which the opinion was handed down after the submission of this case, and in which the insurance company was held liable where an application was rejected only because of a new rule of the company requiring small premiums to be paid in cash instead of partly by note. The agent sent in the application, together with a- small check and note for balance of premium. The company acted promptly and returned everything to the agent, stating the only requirement was that the entire premium be paid in cash. This was on October 30, and on December 23 the property was destroyed. In the meantime the check was lost by the agent and he tried to place the insurance with another company, but the receipt given by the agent to the applicant on a blank furnished by the company provided “All to be refunded if policy is not issued.” This was the ground upon which the company was held liable. It was there held that by this receipt given by the agent the company agreed to do one of two things: either issue a policy or return the check, note and application. And as it did neither, it was held liable to the applicant.
In the case at bar we have no promise on the part of the company, except the implied one to act promptly, which it did by rejecting the application and returning it to the agent. There was nothing done or said to mislead the plaintiff to. believe the application had been accepted. He did not ask the agent, whom he met several times, as to its acceptance or rejection. There was nothing to return as there would have been if all or a part of the premium had been paid in cash.
We conclude that, under the facts and circumstances of the case, the making of the application did not put the insurance in force, to so remain in force until the applicant was notified of its rejection, nor did the applicant have a right to assume the policy had been issued because of his not being notified by the agent to the contrary. We think the evidence was insufficient to support the claim of the plaintiff, and, therefore, the demurrer to his evidence was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for malpractice. Judgment was for plaintiff. Defendant appeals.
The pertinent part of plaintiff’s petition reads as follows:
“That at all times herein mentioned defendant was and now is a practicing physician and surgeon in the city of Wichita, Kansas.
“That on or about the 22d day of June, 1931, plaintiff, by reason of a severe fall, had broken, dislocated, bruised and injured her right arm, shoulder and collar bone, and that on said date and for several days thereafter the said defendant, as such physician and surgeon, undertook faithfully, successfully and diligently to set, and endeavored to cure and heal said arm, shoulder and collar bone. That said defendant conducted himself in and about his endeavoring to set and heal said arm, shoulder and collar bone, and in and about curing the same, so unsuccessfully, negligently and unprofessionally that by reason of the improper treatment and unskillful and negligent conduct of the defendant, said arm and shoulder were not set or healed and cured for such a period of time until it became impossible to properly set and cure the same. That by reason of the premises plaintiff has permanently lost the partial use of said arm and shoulder, has paid and incurred medical bills amounting to more than $300, and suffered great bodily injury, pain and mental anguish, to her damage in the sum of $10,000.”
This petition was filed December 6, 1932. No answer was filed. On March 23, 1933, judgment by default was rendered in favor of plaintiff. Plaintiff was the sole witness in her own behalf. She testified as to the injury and that defendant treated her, and that it later developed her shoulder had been broken and defendant had not discovered this, and had not treated her for it. She testified that defendant took an X-ray picture of her wrist, but not of her shoulder, and when she complained of her shoulder defendant said, “Mother, you just imagine it. It is just a bruised muscle.” She testified that on account of the fracture of the shoulder being neglected, gristle had formed around the bone, preventing it from being properly set, and that this was the cause of her condition. She testified as to her condition at the time of the trial. Within a short time after the rendition of the judgment defendant filed a motion to vacate on the grounds: First, that it was void because the petition upon which the judgment was rendered did not state facts sufficient to constitute a cause of action; and second, that the judgment was void because plaintiff was the sole witness to testify on her behalf, and as a matter of law it is necessary in order to establish malpractice on the part of a surgeon that a physician or surgeon skilled in the same scientific methods of treatment must testify that the treatment of which complaint is made was negligent and unprofessional as measured by the general standards of practice in the particular community.
This motion was overruled. Defendant appeals from the order overruling this motion and also from the judgment.
The theory of defendant as to the first ground for his motion is that the petition did not state any act or acts which constituted negligence, but simply stated that the defendant was negligent and that plaintiff was injured. He relies upon the authorities which hold that in cases where it is sought .to recover for fraud, the facts constituting the fraud must be alleged.
In all the cases cited, however, the question of the sufficiency of the petition was brought to the attention of the court at some time before or during the course of the trial.
Here the petition contained allegations sufficient to constitute a pnma fade cause of action, and defendant stood by and failed to challenge the sufficiency of the allegations of the petition in any way until the motion to vacate the judgment was filed. Then it was too late. See Freeman on Judgments, p. 436. There it is said:
“Defects or insufficiency of pleadings must be questioned or objected to in proceedings appropriate for that purpose, and cannot be made the basis of an attack upon the judgment by motiod to vacate it after the term. A judgment will not be set aside merely on the ground that the complaint does not state a cause of action, since this alone does not render the judgment void, and any error of the court in this matter must be reviewed in proceedings appropriate for that purpose.”
The argument that there was not sufficient evidence upon which to base a judgment is also untenable. We are not called on to decide what would have been the result had this evidence been challenged by a demurrer to the evidence or by conflicting evidence. Here defendant did not see fit to challenge this evidence at the trial. A party may not stand by and permit a case to be made against him and later challenge the sufficiency of the evidence in a motion to vacate the judgment. To so hold would mean that a default judgment never would be of any standing. There must be an end to litigation some time. R. S. 60-3109 provides as follows:
“If the taking of an account, or the proof of a fact or the assessment of damages be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in -default, take the account, hear the proof, or assess the damages; or may with the like assent refer the same to a referee or master commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial.”
We hold that the trial court acted pursuant to that statute. Under these circumstances the evidence that defendant took an X-ray picture of plaintiff’s wrist and neglected to take one of her shoulder, which she insisted was paining her, and which later turned out to be broken and the cause of plaintiff’s damages, is sufficient to sustain the judgment.
Defendant argues that even should it be held that the motion to vacate was properly overruled, still the judgment was erroneous in the first instance and should be reversed. What we have said about the motion is equally applicable to this argument.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto challenging the authority of the state highway commission to execute and carry out on its part the provisions of chapter 98 of the laws of the special session of the legislature of 1933, and for a declaratory judgment as to the validity of the act. Among other things the petition alleges that, proceeding under this act, defendant is about to enter into a contract with the proper agency of the federal government for borrowing the sum of $17,000,000 to be used for the purposes expressed in the act, namely, the construction, iniprovement, reconstruction and maintenance of state highways and bridges; that in conformity with the regulations of such federal agency defendant will be entitled to receive, in addition to the sum borrowed, the further sum of $5,100,000 for such use; that to secure such loan defendant will issue and pledge to such federal agency revenue anticipation warrants, payable serially, in not less than three nor more than thirty years, and create a sinking fund for paying such warrants, with interest at a rate of not more than four per cent, and paying fiscal agency charges, which payments shall not exceed $1,000,000 per year. The petition further alleges the act is invalid, which allegations are put in issue by the answer, for a number of reasons, which are stated and argued under seven heads. We shall discuss these in the order presented:
First. Is the act a valid exercise of the police power of the state? Or, stated more specifically, has the state, through its legislature, power and jurisdiction to provide work for the unemployed, or otherwise care for poor and needy citizens of the state, in view of •article 7, section 4, of our constitution, which reads:
“The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants, who, by reason of age, infirmity, or other misfortune, may have claims upon the sympathy and aid of society.”
The provision is not self-executing. It requires legislation, and much has been enacted (see R. S. 39-301 to 39-511). There is necessarily vested in the legislature a discretion as to what may be prescribed by law. Passing that thought, in our governmental scheme these things are fundamental: All governmental power primarily is and originally was vested in the people. Some of these governmental powers were granted to the federal government by our federal constitution, the others remained with our people. In the formation of our state constitution some governmental powers were prohibited, others were limited. Except as so prohibited or limited, all governmental power not granted to the federal government remains with the people and may be exercised by them. Normally that is exercised or initiated by legislative enactment. Our constitution nowhere prohibits the state from making provision by legislative enactment for the care of the poor and needy. See Treadwell v. Beebe, 107 Kan. 31, 38, 190 Pac. 768, and authorities there cited. To the extent, therefore, that the bill in question attempts to or does furnish relief to the poor and needy it violates no constitutional provision. However, what is said in the act on that-subject is in the nature of a preamble, stating reasons or grounds for enacting the statute. The economic depression mentioned in section 1 of the act is not created by this section, and may not be entirely cured by the act. What is stated in the section is valuable, if at all, in aiding the court to understand the purposes, or some of the purposes, of the legislature in passing the act. (Block v. Hirsh, 256 U. S. 135, 65 L. Ed. 865; State v. Martin, 23 P. 2d 1 [Wash.]). The validity of the act must be tested by its provisions. The act makes no provision for the relief of poor and needy persons except as some of them may obtain employment in the construction and maintenance of highways contemplated by the provisions of the act.
Second. Is the title of the act valid in view of article 2, section 16, of our constitution, which reads in part:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, . . .”
Primarily this provision is one for the benefit of the members of the legislature to prevent them from being misled or deceived by the title of the bill, but it is one which the legislature should follow, and a clear disregard of it renders the act invalid. While the title to the act in question is more in detail than necessary — it could have been better drawn with fewer words — it cannot be said either to be misleading, or that it deals with more than one general subject.
Third. Does the act confer legislative authority upon (a) the governor, (6) the state highway commission, in violation of article 2, section 1, of the constitution, which reads:
“The legislative power of this state shall be vested in a house of representatives and senate.”
The duties conferred upon the governor and state highway commission are no more than those necessary to be exercised by any administrative officer or board in carrying out the will of the legislature with respect to business transactions, which necessarily call for the use of judgment and discretion.
Fourth. Does the act authorize the withdrawal and expenditure of money over a period of more than two years, in violation of article 2, section 24, of the constitution', which reads:
“No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.”
This act makes no appropriation for any length of time. It outlines a policy and authorizes a plan of conducting certain state business. Perhaps the statute will call for appropriations from time to time — many of our statutes do — but if so, we cannot assume they will not be made. At any rate, it is clear this act is not invalid for the reason here urged.
Fifth. Does the act, in permitting money from taxation of motor vehicles and motor fuels to be used in payment of a loan made by the government of the United States and interest and carrying charges thereon, violate article 11, section 4, of the constitution, which reads:
“No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same, to which object only such tax shall be applied.”
By article 11, section 9, of our constitution the state has power to levy special taxes for road and highway purposes on motor vehicles and on motor fuels. Under this provision the legislature levied special taxes for road and highway purposes on motor vehicles and on motor fuels. Moneys derived from these taxes constitute the state highway fund. The warrants authorized by this act would be drawn upon this fund. Interest and charges paid on any such warrants would be payable from this fund. The fact that interest is paid from a fund upon a warrant drawn on that fund has never been regarded as a diversion of the fund for purposes other than that for which it was raised.
Sixth. The question is presented whether the warrants authorized by the act would be general obligations of the state, or payable solely out of a specific fund. The warrants will not be “general obligations” of the state, if by that term is meant obligations which might be paid from funds produced by a general property tax levy, or by the sale of bonds to be paid by general taxes, for the constitution (art. 11, § 8) specifically provides that for the construction and maintenance of a state system of highways “no general-property tax shall ever be laid nor bonds issued by the state for such highways.” If by the term “general obligations” is meant obligations which might be paid out of funds the state may lawfully raise for the construction and maintenance of highways, then the question must be answered in the affirmative. By article 11, section 9, of the constitution the state is given power to levy special taxes for road and highway purposes on motor vehicles and on motor fuels, and most of the moneys used by the state through its state highway department for the. construction and maintenance of the state highways is raised from this source. Perhaps the state might provide other sources of revenue for the state highway fund, so long as it did not levy a general-property tax or issue bonds payable by such a tax for that purpose; but from whatever source moneys might be obtained for the state highway fund (other than by a general-property tax or bonds payable thereby), we see no reason why the warrants are not the general obligation of the state upon the state highway fund. By our constitutional provision (art. 11, § 8) it is the state which is authorized to construct and maintain a state system of highways. By chapter 225 of the Laws of 1929 the legislature created a highway commission to perform those state functions and provided funds for that purpose. It declared the commission “shall be a body corporate, with power to sue and be sued,” thus making it a quasi-corporate body to carry forward the work for the state of constructing and maintaining a state system of highways. (McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720; Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509.) The state has given its consent to be sued by an action against the state highway commission with respect to contracts it is authorized to make or was required to take over. It also has given its consent to be sued for damages under certain circumstances by an action against the state highway commission. (R. S. 1931 Supp. 68-419.) But the state has not given its general consent to be sued for all purposes. (Barker v. Hufty Bock Asphalt Co., 136 Kan. 834, 18 P. 2d 568.) The state highway commission is therefore acting for the state in all of its activities authorized by statute for the construction and maintenance of state highways. The funds which it uses for that purpose are state funds, and the warrants it draws on the fund are state warrants, payable, however, from the fund, and are general as they apply to this fund.
Seventh. Are the warrants which the state highway commission is authorized to issue under this act debts of the state within the meaning of article 11, sections 5 and 6, of the constitution, and hence void in excess of one million dollars unless submitted to and ratified by a vote of the people? These sections read as follows:
“Sec. 5. For the purpose of defraying extraordinary expenses and making public improvements, the state may contract public debts; but such debts shall never, in the aggregate, exceed one million dollars, except as hereinafter provided. Every such debt shall be authorized by law for some purpose specified therein, and the vote of a majority of all the members elected in each house, to be taken by the yeas and nays, shall be necessary to the passage of such law; and every such law shall provide for levying an annual tax sufficient to pay the annual interest of such debt, and the principal thereof, when it shall become due; and shall specifically.appropriate the proceeds of such taxes to the payment of such principal and interest; and such appropriation shall not be repealed nor the taxes postponed or diminished until the interest and principal of such debt shall have been wholly paid.
“Sec. 6. No debt shall be contracted by the state except as herein provided, unless the proposed law for creating such debt shall first be submitted to a direct vote of the electors of the state at some general election; and if such proposed law shall be ratified by a majority of all the votes cast at such general election, then it shall be the duty of the legislature next after such election to enact such law and create such debt, subject to all the provisions and restrictions provided in the preceding section of this article.”
Perhaps there are three answers to the question:
First. Warrants are not bonds (Commissioners of Shawnee County v. Carter, 2 Kan. 115; Schoenhoeft v. Kearny County, 76 Kan. 883, 92 Pac. 1097; Bank v. School District, 102 Kan. 98, 169 Pac. 202), and ordinarily, at least, are not debts within the meaning of article 11, section 5, supra. (State, ex rel., v. School Fund, 4 Kan. 261.)
Second. The debts referred to in article 11, sections 5 and 6, supra, are debts to be paid by a general-property tax. This is clear from the reading of the sections. What the framers of our constitution were guarding against was the.incurring of debts in excess of a million dollars payable by a general-property tax without the question having been submitted to and adopted by the people. They regarded property as the basis of taxation (Wyandotte Constitutional Convention, p. 334). They were not dealing with the question of obligations to be paid only by special tax, such as on motor vehicles or motor fuels, or from funds raised in some manner other than by general-property tax.
Third. There is another and perhaps more forceful answer to the question. Our original constitution, article 11, section 8, reads:
“The state shall never be a party in carrying on any works of internal improvement.”
It will be noted that in article 11, section 5, supra, the term “public improvements” is used. By that section, broadly speaking, there were two things for which the state may contract public debt: (a) For the purpose of defraying extraordinary expenses, and (6) mak ing public improvements. It is clear the framers of our constitution used the term “public improvements” in section 5 as meaning something entirely distinct from what was meant by “internal improvements” used in section 8, for the one was permitted, the other prohibited. Although not as full as they might be, the debates in the constitutional convention disclosed this. The term “public improvements,” used in section 5, meant public buildings which the state should need in carrying on its functions, such as the statehouse, state penal, educational and eleemosynary institutions (Wyandotte Constitutional Convention, p. 327), while the term “internal improvements,” used in section 8, applied to turnpikes, canals and the like. (Wyandotte Constitutional Convention, p. 329; State v. Kelly, 71 Kan. 811, 833, 81 Pac. 450.) Some of the members of the convention were familiar with the early history of Indiana and other states which loaded themselves down with obligations for the construction of internal improvements. This they sought to avoid; so it was provided that the state should never be a party to any works of internal improvements. By 1919 our people had reached the conclusion the state might be permitted to carry on works of internal improvements in so far as they pertained to highways, at least to a limited extent, and the legislature of that year (Laws 1919, ch. 331) submitted an amendment to article 11, section 8, of our constitution, which amendment was adopted at the'general election in November, 1920, and which reads as follows:
“Sec. 8. The state shall never be a party in carrying on any works of internal improvement except to a,id in the construction of roads and highways and the reimbursements for the cost of permanent improvements of roads and highways, constructed after March 1, 1919; but such aid and reimbursement shall not be granted in any county for more than 25 per cent of the cost of such road or highway, nor for more than ten thousand dollars per mile, nor for more than one hundred miles in any one county; except, that in counties having an assessed valuation of more than one hundred million dollars such aid and reimbursement may be granted for not more than one hundred and fifty miles of road or highway; and the restrictions and limitations of sections 5 and 6 of article XI of the constitution, relating to debts and internal improvements, shall not be construed to limit the authority retained or conferred by this amendment.”
It should be noted that it was then recognized that the state could not carry on the work of constructing and maintaining state highways, even to the limited extent then provided, if the restrictions and limitations of article 11, sections 5 and 6, of the constitution should apply to its operations, and it was specifically provided that such sections should not apply. Under the above amendment the state undertook, in a limited way, to establish, construct and maintain a state system of highways, but it was found that the limitations provided in this amendment restricted too much that which the people wished to do in the way of building and maintaining state highways, and at the special legislative session of 1928 (Laws 1928, ch. 3) a new amendment of article 11, section 8, of the constitution was submitted, and with it an additional section to the article (§ 9). These were adopted at the general election in November, 1928. They read as follows:
“Sec. 8. The state shall never be a party in carrying on any work of internal improvement except that it may adopt, construct, reconstruct and maintain a state system of highways, but no general-property tax shall ever be laid nor bonds issued by the state for such highways.
“Sec. 9. The state shall have power to levy special taxes, for road and highway purposes, on motor vehicles and on motor fuels.”
At the time of this last amendment of article 11, section 8, supra, the thought that the state could not construct and maintain an adequate state system of highways, if it had to be limited and restricted by the provisions of article 11, sections 5 and 6, of our constitution, still prevailed, and it was written into the amendment that “no general-property tax shall ever be laid nor bonds issued by the state for such highway.” Clearly the bonds referred to were bonds to be paid by general-property tax, or such bonds as would be authorized by article 11, sections 5 and 6. By this last amendment such bonds for constructing and maintaining state highways, even to the extent of one million dollars, could not be issued by the legislature. Even a general-property tax could not be laid for this purpose. In short, article 11, sections 5 and 6, from the original framing of our constitution through all its amendments, dealt with things entirely different from internal improvements, as that term was originally used and as now used in article 11, section 8, supra. With respect to internal improvements, originally our state was prohibited from being a party in carrying them on. When we concluded to permit the state to carry on internal improvements, in so far as they authorized it to construct and maintain a state system of highways, we recognized at once that the limitations of article 11, sections 5 and 6, supra, could not be applied to such work or the work could never be accomplished, and in both of the amendments to the original article 11, section 8, of our constitution, although by different wording, it is made clear that the restrictions of sections 5 and 6 shall not apply.
The provisions of the act in question do not violate article 11, sections 5 and 6, of our constitution.
Some decisions from other states have been cited. They treat the provisions of their respective constitutions, each of which differs materially from the provisions of our constitution which we are called upon to construe. It would serve no useful purpose to refer to and analyze those decisions here.
This court has nothing to do with the prudence of the legislation in question; that was for the legislature to determine. We pass upon the legal questions presented, and find the act not to be invalid for any of the reasons urged against it.
Judgment is entered for defendant.
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises out of the allowance of a claim against the receiver of a failed state bank.
In November, 1922, the appellee made a deposit in the American State Bank, at Wichita, Kan., and its balance was $1,772.44 when in July, 1923, the bank commissioner took charge of the bank and proceeded to wind up its affairs. The present receiver was appointed by the bank commissioner in July, 1926. It appears that there was correspondence between the appellee and certain persons who were employees of the state banking department with reference to the organization of a new bank and also as to purchase of the appellee’s claim, but, until the proceeding herein discussed, there was no attempt on appellee’s part to prove its claim. Certain reports filed by the receiver or his assistants, in listing the depositors of the bank, included the appellee and the amount remaining in its account. It appears from the record as abstracted that in July, 1924, the bank commissioner applied to the district court of Sedgwick county for an order to sell certain assets, and that in July, 1926, the present receiver filed an application for, and on April 20, 1927, the district court made an order, that the receiver give notice to all creditors of the bank to file claims within thirty days from first publication of a notice to be printed three weeks in a newspaper published in Sedgwick county, and that any creditor wlm failed to file his claim with the receiver within the time specified in the notice shall be forever barred, and that the receiver shall be forever discharged from any liability on account of claims of any creditor who has not filed his claim. The notice was duly published beginning April 23, 1927.
On or about January 30, 1928, the appellee filed its application in the district court alleging, among other things, the general correspondence above mentioned, and that it supposed and believed therefrom there would be no question as to its account, and that on January 11, 1928, it presented to the receiver a formal notice of its claim and that the receiver notified it the claim would not be allowed. It was further stated the receiver had paid forty per cent on claims and had on hand the sum of fifteen or seventeen thousand dollars for distribution from which a like dividend could be paid plaintiff, the application concluding:
“That claimant did not present its claim sooner to the receiver because neither it; nor its officers, knew of any order of the court nor of any notice published by the receiver of a limit within which the claims might be presented.
“Wherefore, the petitioner prays that an order be made by the receiver that out of the moneys still in his hands and undistributed in said estate a dividend be paid and distributed to this claimant of the same percentage which has been paid by the receiver upon other claims of general depositors in the bank.”
On January 30, 1928, this application was presented to the court ex parte and an order was made setting the hearing of the application and directing that until final hearing the receiver should not make payment of further dividends to creditors which would prevent payment to appellee, if its claim should be allowed, of dividends thereon equal to those already made on ordinary deposits in the bank. Shortly after its issuance a copy of the application and of the restraining order was served on Howard T. Fleeson, an attorney of Wichita, who represented the receiver. He sent it to an assistant receiver, but it appears never to have reached the receiver or the bank commissioner. There was no service of process and no notice other than as set forth.
Although the application was set for hearing February 25, 1928, owing to the death of appellee’s then attorney the matter was not heard until November 8, 1929. In the meantime the bank commissioner and the receiver, having no actual notice of the restraining order, proceeded with the payment of dividends on allowed demands and paid out all but a very small amount which was subsequently used in paying expenses. When the matter came on for hearing the receiver objected for the reason the court had no jurisdiction, and further, that the application was not filed in time. The objections were overruled, testimony was taken and the court made its order that the receiver pay the appellee the amount it would have been entitled to receive out. of the funds available for dividends on common claims, had its claim been included among the common claims. From that order the receiver appeals.
Although incidental matters are presented, the answer to the question that the court was without jurisdiction to hear the application and grant the restraining order is decisive.
Prior to February 12, 1908, whenever the bank commissioner became satisfied of a bank’s insolvency, it was his duty to report the fact to the attorney-general, who instituted proceedings in the proper court for the purpose of having a receiver appointed to wind up the affairs of the bank (G. S. 1901, § 434). By the enactment of chapter 14, of the Laws of 1908, however, a radical departure was made in that the bank commissioner appoints the receiver, who shall take charge of the bank and its assets and wind up the affairs and business thereof, and pay over all moneys received by him to the creditors of the bank as ordered by the bank commissioner. Under the statute the only recourse he must make to the district court is for authority to sell or compound all bad or doubtful debts due to the bank, or to sell real or personal property of the bank. The 1908 act was amended in 1913 and again in 1927 and now appears as R. S. 1931 Supp. 9-130. The amendments are not here important, although it may be noted that prior to the last amendment it was held that the district court had power to make an order fixing a reasonable time in which claims must be presented to the receiver or be barred. (Thompson v. Bone, 122 Kan. 195, syl. ¶ 4, 251 Pac. 178.)
In Jeffries v. Bacastow, 90 Kan. 495, 135 Pac. 582, it was contended that the act was unconstitutional in that the appointment of a receiver was a judicial act, but this court said:
“The appointment by the bank commissioner of a receiver for an insolvent state bank, under the banking act of this state, is not a judicial act which must be performed by a court and not by an executive officer.” (Syl. ¶ 1.)
“The fact of insolvency having been discovered, the statute directs the bank commissioner’s course, and the designation by him of a person to wind up the affairs of the bank is no more a judicial act than his order to the board of directors to remove a dishonest cashier. His powers are purely administrative and in no way infringe upon the ancient authority of courts to determine rights of person and property in specific controversies pending before them.” (p.498.)
The power and authority of the bank commissioner was considered in Labette County Comm’rs v. Peterson, 118 Kan. 560, 235 Pac. 848, and it was there said:
“The statutory scheme of bank supervision appears to have been constructed on the idea of plenary power in the bank commissioner to take charge of all the affairs of an insolvent bank and, unhampered by the interference of other authorities, to liquidate its assets and pay its depositors and other creditors. Discretion as to methods and agencies for reaching this end is therefore largely vested in the commissioner. The principle was recognized in Jeffries v. Bacastow, supra. . . . Also, State, ex rel., v. Norman, 86 Olka. 36; State, ex rel., v. Quigley, 93 Okla. 296, 220 Pac. 918; Koch v. Missouri-Lincoln Trust Co., 181 S. W. 44 (Mo.); Hall v. Tyler County (Tex. Civ. App.), 247 S. W. 582; Valley Bank v. Malcolm, 23 Ariz. 395-404, 204 Pac. 207. Some authorities construing the national bank act (6 Fed. Stat. Ann. p. 850, No. 5234) providing for the winding up of insolvent national banks are: In re Chetwood, 165 U. S. 443, 41 Law Ed. 782; In re Earle, 92 Fed. 22; Snohomish County v. Puget Sound Nat. Bank, 81 Fed. 518; Rankin v. Miller, 207 Fed. 602.
“The conclusion here reached takes nothing from the powers of a court of general jurisdiction to make a judicial inquiry touching the dissipation of a bank’s assets by or through a receiver, his clerks, assistants, attorneys, etc., in a proper proceeding for that purpose. No such case is presented here.” (p. 564.)
It thus appears from the statute and the decisions that the receiver was acting in an administrative and not in a judicial capacity. While in this receivership it appears that a prior receiver had obtained authority to sell the bank’s assets, that did not give the court any continuing authority or jurisdiction, and when the present receiver obtained an order to give notice to present claims or be barred, it was the last time the receiver had to invoke the court’s supervisory powers. The only further power the court had, from a strictly administrative standpoint, was to rule on the receiver’s compensation upon application of any party in interest.
When the claimant filed his application and obtained the restraining order, no notice was given the receiver, no process of any kind was served upon him, there was no suit or special proceeding pending to which the receiver was a party when the application was filed, and there was no opportunity for the claimant to intervene, and it must be held that what he did was abortive, as was the court’s restraining order. The fact that appellee’s claim was not included among those on which liquidating dividends were being paid did not constitute payments being made by the receiver under the order of the bank commissioner a dissipation of the bank’s assets. If the appellee wished to establish his claim, it should have been done in an independent action. When the receiver appeared and objected to the court’s jurisdiction, the objection should have been sustained.
Appellee argues that by appearing and resisting the matter the receiver entered a general appearance, but, even if so, that was the start of claimant’s suit and did not refer back and give life to what was a nullity. It is not necessary to decide whether the receiver, in a proper case, would be held to have notice of the restraining order because of service on his attorney.
The bank failed in July, 1923, and appellee’s claim, if based on a general deposit, would ordinarily have been barred in July, 1926, and if on a written instrument, in July, 1928. In addition, it was barred by reason of the notice given by the receiver under the court’s order above mentioned. There might be equitable reasons why claimant should be relieved from a harsh application of a rule requiring compliance with the latter notice, but no such reasons appear here. Claimant knew from the beginning of the failure of the bank, and it must be held to have known that it had to make timely proof of its claim. The fact that it was listed as a depositor with a certain balance did not dispense with proof of its claim. Many a lawsuit has developed because of discrepancy between what a bank’s books show and what the depositor claims, and it is possible the bank’s books would show a balance where nothing was actually due. The record shows that other creditors, in the same situation as appellee, failed to make proof of their claims and did not receive dividends.
Our attention is called to Almquist v. Johnson, 130 Kan. 417, 286 Pac. 200, in which claims were presented after the time fixed by the court. In that' case it appeared that at the time of filing the action, and it should be noted it was an independent action, the receivership was not closed and there were moneys on hand for final distribution. That case involved only the question of the effect of chapter 88 of the Laws of 1927, fixing the time for proof of claims within one year from the date of; the appointment of the receiver, and it wás held that it was not retroactive. In the case before us the final distribution'to creditors was made on August 27,1928, the sum of about $98 retairied for payment of expenses being all that was on hand when the matter came on for hearing in November, 1929. On this latter date .it appeared that the receivership was virtually closed, that the claimant had not pursued a proper and timely method of establishing his claim, and that judgment should have been rendered for the receiver.
Our attention is directed to cases arising under the federal statute with reference to the liquidation of failed national banks, and also to cases' arising in other states, but, in view of our statutes and our own decisions, no good purpose would be served in discussing them here. In so far as they involve administrative receiverships, they support the conclusion here reached, with the possible exception of Florida Bank & Trust Co. v. Yaffey, 102 Fla. 723, 136 So. 399, where an application was filed in a manner similar to that here, and in which the court said:
“In deciding this case on its merits we have purposely disregarded the very evident impropriety of the procedure which is followed in bringing this case to a hearing, and have adopted the view that the petition which was filed in a supposed cause entitled, ‘In re The Receivership of the First American Bank & Trust Company/ was in effect an independent suit in equity, and in that aspect we have dealt with it, notwithstanding the fact that the appellant has assigned error raising this specific point. We do so because the case has been decided on other points going to the sufficiency of the petition .which have been determined in favor of the appellant. A bank liquidator in this state, under the statutes providing for his appointment and controlling his duties, is a representative or agent of the comptroller and is not an officer of the court which has confirmed the fact of the bank’s insolvency thereby warranting his appointment. Such liquidator is not, therefore, before the courts for any purpose -except when brought before it in an appropriate proceeding or when he Voluntarily appears therein pursuant to law.” (p. 726.)
In so fan as the above cases involve judicial receiverships, they are not in point.
The judgment of the lower court allowing appellee’s claim is reversed and the cause remanded with instructions to render judgment for the appellant.
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The opinion of the court was delivered by
Dawson, J.:
This was a prosecution under the statute (R. S. 62-2301 et seq.) to compel the defendant as alleged father of the illegitimate child of the relatrix to contribute to its support.
The jury’s verdict was that defendant was the father of the child; he was adjudged to pay into court the sum of $15 every three months for its maintenance and education until he shall have paid an aggregate sum of $1,000; and he was also required to give security for such payment, and in default thereof he should be committed to jail until such security is given, but such imprisonment should not in any event exceed the period of one year.
Defendant appeals, contending first that the trial court erred in overruling his motion to set aside and strike out the complaint under which this bastardy proceeding was begun for the reason that the notary public before whom the complaint was signed and'sworn to by the relatrix was her attorney in the case.
The records shows that the complaint was filed with the justice of the peace on March 5, 1932, and a warrant was issued thereon. Defendant was arrested on April 5, 1932, and gave bond to appear on April 12, 1932. On that date defendant appeared in the justice court, and a hearing on the complaint was had pursuant to the statute. The testimony of the mother was reduced to writing and signed and sworn to by her before the justice of the peace and forwarded to the district court with the other papers in the case. Defendant gave the statutory recognizance for his appearance at the next term of the district court.
Thereafter, on October 12, 1932, defendant filed in the district court a motion for a continuance, the grounds therefor being that the cause had not been certified to the district court by the justice until October 10, 1932, in consequence of which he and his counsel were not informed that the cause would be tried at that term, and that a material witness in his behalf was a resident of Nebraska, and that neither her presence at the trial nor her deposition could be procured unless a continuance was granted.
On November 1,1932, defendant filed an answer to the complaint, denying that he was the father of the child as alleged by the prosecutrix. Not until all these matters had transpired nor until February 27, 1933, did defendant file his motion questioning the sufficiency of the complaint on account of its being sworn to before complainant’s attorney.
One of the primary rules of pleading is that all dilatory pleas must be interposed promptly, to the end that the cause be neither stayed nor delayed on account of mere procedural informalities. (Cooley’s Blackstone, 3d ed., Book III, 301-303; Phillips on Code Pleading, §59; 49 C. J. 223 et seq.) While bastardy proceedings are conducted under statutory procedure prescribed therefor (State, ex rel., v. Murphy, 120 Kan. 350, 243 Pac. 288), that procedure has some aspects of both civil and criminal actions. (State v. Baker, 65 Kan. 117, 69 Pac. 170.) In a civil case where verification of a pleading is required to raise an issue, the want of such verification is waived if the adversary pleads over without first directing the court’s attention to its technical insufficiency. (Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075.) The procedure in bastardy cases is analogous to that of the criminal code, providing, as it does, for a complaint, warrant, arrest, preliminary hearing, recognizance for appearance in the district court, and possible imprisonment to enforce defendant’s compliance with the judgment imposed on him. In an ordinary criminal case, it is immaterial that a complaint may have been defective in point of verification when a warrant has been issued thereon and defendant is arrested under its authority and when he gives bail for his appearance pursuant thereto. (State v. Miller, 87 Kan. 454, 124 Pac. 361; State v. Carter, 122 Kan. 524, 253 Pac. 551.)
From these analogous rules of both civil and criminal procedure, the court holds that defendant’s belated motion to set aside and strike out the complaint was properly denied.
The next error urged relates to the admission of testimony given by the father of the relatrix touching conversations he had with defendant relating to the pregnancy of the girl. The argument now is that defendant had a right to negotiate a settlement and that it was error to permit evidence of such negotiations to go to the jury. The abstract gives the substance of several conversations between the girl’s father and defendant touching the girl’s pregnancy. The father testified that on one occasion he told defendant—
“He should have been over to talk it over with me before . . . He suggested some arrangement could be made to have the girl taken care of. I said I would consider the matter.”
On another occasion the father testified:
“I asked him what arrangements we might make in our negotiations regarding my daughter, and he emphatically said that he didn’t care to have anything more to do with it.”
The father also testified that at a later time—
“He wanted to settle it financially, said his attorneys had suggested that he settle it out of court if possible.
“Defendant objects as incompetent and hearsay.
“Objection overruled.
“He asked me what I wanted on several occasions. I said I would like to have him take the girl and take care of her, as I thought that was the right way to adjust the matter. He said he didn’t want to be a married man. I think he made no other statement regarding marriage at that time.
“Q. Did he say anything further about a financial settlement?
“Defendant objects to any testimony about a settlement as incompetent.
“Objection overruled.
“A. Not at that time. I recall a proposition made a few days ago.
“Q. This is since the case was started? A. It is, a compromise settlement.
“Q. That was made through attorneys? A. Yes, I think it was.”
Defendant testified:
“Had two or three conversations with Mr. Johnson, I could say it was three. Occurred about the places where Mr. Johnson said. ... He [the father] came over to our place and wanted to know what I was going to do about it. I asked him what he wanted me to do and he suggested, or rather said I had to marry his daughter, and I told him I wouldn’t do that; I don’t remember for sure, I think I asked him if a small financial settlement would satisfy him, and he said that it wouldn’t. He said he would have to take it into court, and make it cost me a lot of money.
‘'Q. What was the object of offering him a small or some financial settlement? A. I offered it to him to keep down scandal, that is all. It was sometime during the latter part of February, 1932.”
It will be noted that much of the father’s testimony touching negotiations for a nonjudicial settlement was admitted without objection. It will also be observed that defendant did not confine himself to cross-examination of defendant on this testimony of challenged competency, but testified himself more broadly on the same subject. In so doing he cured whatever incompetency may have inhered in the testimony of the father of the relatrix. In State v. Furney, 41 Kan. 115, 21 Pac. 213, it was said:
“Where 'incompetent testimony is given to the jury, such error is cured where the defendants on their own behalf testify substantially to the same facts erroneously admitted in the first instance.” (Syl. ¶ 4.)
The familiar rule of law just stated makes it unnecessary to determine whether the father’s evidence touching his negotiations with defendant arising from his natural solicitude for his daughter was incompetent under the ordinary rule which excludes evidence of negotiations for nonjudicial settlement of legal controversies. It was not shown that the father was the authorized agent of the relatrix to effect a compromise or settlement with defendant. But see State, ex rel., v. Williams, 92 Kan. 527, 150 Pac. 225; Robb v. Hewitt, 39 Neb. 217; Gatzemeyer v. Peterson, 68 Neb. 832.
The next error argued raises a question as to the sufficiency of the evidence — on the particular point of the period of gestation. According to the testimony of the relatrix the child was begotten on the night of June 28, 1931, and it was born on March 8, 1932, a period of 254 days. The attending physician testified that the child at birth was of normal development, and that the period of gestation varied normally from 275 to 280 days. However, we must take cognizance of our own precedents on this point, and these have given approval to what has been said in authoritative works on medical jurisprudence which declare that there are many instances of normally developed children born as early as 240 days after insemination. (State, ex rel., v. Law, 93 Kan. 357, 144 Pac. 232.)
Error is also assigned on the overruling of defendant’s motion for a new trial based in part upon newly discovered evidence, the substance of which was that the relatrix was seen on two occasions under questionable circumstances with two other men during the month of May, 1931. The credence to be attached to that evidence, which was in the form of affidavits, was primarily addressed to the discretion of the trial court. In our view the affidavits could do no more than rouse a suspicion that the relatrix, notwithstanding her youth, had been somewhat promiscuous with her favors. The evidence to support the judgment was sufficient, and indeed it was substantially corroborated in some particulars by defendant’s own testimony.
The record contains no error, and the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a guest against her host for damages because of personal injuries sustained in an automobile casualty which are alleged to have resulted from the defendant’s gross and wanton negligence. The jury answered special questions and returned a general verdict for plaintiff, on which judgment was rendered. Defendant has appealed and, among other things, contends that upon the record, and especially upon the special findings of the jury, plaintiff is not entitled to recover.
The pertinent facts may be stated briefly as follows: Plaintiff is a widow, and she and her grown daughter and a sister make their home together at Arkansas City. She kept the house and looked after some rooms and conducted a private kindergarten class for preschool children. Defendant is a widower and lives alone except for the occasional week-end visits of one of his adult daughters. In the yard at the rear of his residence he has a rose garden in which he takes much interest. The parties met for the first time one afternoon in September, 1931, at the home of Mrs. Porter, a mutual friend, where plaintiff had gone to take some books Mrs. Porter desired to read, and defendant had gone to take Mrs. Porter a bouquet of roses. They were introduced by Mrs. Porter, and they all visited, perhaps twenty minutes, talking of books and roses. When defendant started to leave Mrs. Porter asked defendant to take plaintiff to her home, several blocks away, and he consented to do so. Plaintiff was a lover of roses, and defendant invited her to go by his rose garden, which they did. Defendant invited her to drive with him to Winfield, a distance of about fifteen miles, for dinner. They first went to plaintiff’s home and then started for Winfield a little after five o’clock. As they neared Winfield defendant suggested that they drive to Wellington, about twenty-five miles farther, to take dinner at a well-known hotel. Plaintiff consented, and they drove to Wellington, where they had dinner, leaving the hotel about eight o’clock. They then drove through the park at Wellington, then to a filling station, where they stopped a few minutes, then to the residence of defendant’s brother, where they stopped a few minutes but did not go in, and then to the main street of Wellington, where they stopped for a time in front of a drug store and were served refreshments. They differ as to the time they left Wellington. Plaintiff thought it was about eleven o’clock, and she was embarrassed by the long wait in the car at the stops, particularly on Main street. Defendant thought they left Wellington about nine o’clock. At any rate, they started back to Arkansas City, passed through Winfield about midnight, and were near the town of Hackney. They were traveling on an improved highway, which had an eighteen-foot pavement. Defendant had requested that plaintiff write on his blank check book, which he furnished her for that purpose, her telephone number, which was in the name of her sister, and her sister’s name and address. Plaintiff was complying with his request, and in doing so had leaned forward so she could see to write by the dash light. While she was doing so • the car struck the abutment of a cement culvert. Plaintiff was thrown forward. Her head struck the windshield with sufficient force to break it. Her jaw was broken, and she sustained other painful injuries about the face, neck and other portions of her body.
The parties differ as to just how the collision with the culvert came about. Plaintiff testified that in returning from Wellington defendant undertook to make love to her; that on four different occasions before the casualty defendant had attempted to put his arm about her; that she had declined to permit it, and rebuked him for attempting it; that when about a quarter or half a mile from the culvert defendant had requested her to write her telephone number and address on a slip of paper which he furnished her, and although reluctant to do so she had consented.
“When I leaned over to write the number down in the book under the dash light, he grabbed me and tried to kiss me and hug me. Then we crashed into the bridge.”
At that time she thought they were traveling at about 40 to 45 miles per hour. Perhaps her testimony in these respects was affected somewhat by that of the mechanic who repaired the car and who said, in his opinion, judging from the damage to the car, that it was traveling at about 15 miles per hour when it struck the culvert, and further by the testimony of the editor of one of the newspapers at Arkansas City to the effect that soon after this action was commenced plaintiff called at his office and stated that the other newspaper had not printed the story correctly.
“. . . she came in and told me that it was wrong in the [other newspaper] ; that they had had an accident, but it was wrong about the embracing, that Mr. Gallemore drove recklessly, but he hadn’t tried to embrace her. . . .”
Defendant’s testimony was to this effect: That plaintiff had permitted him to kiss her while they were in the rose garden at Arkansas City and several times while they were driving to Wellington; that when they started back from Wellington he laid his arm back on the seat and she permitted him to embrace her all the way except when they went through town; that they had talked of going to Wichita in a few days, where he had business, and he had asked her to accompany him and to go to a show with him in the evening, and she had consented; that since the telephone where she lived was in the name of her sister, he desired her sister’s name and address and telephone number in order that he might call, and that he handed her his blank check book on which to write; that perhaps half a mile before the car struck the culvert he had released her from his embrace so that she could give her attention to writing, and she had leaned forward to use the dash light and to look through the book for a place to write, and was writing; that while she was doing so he met two cars, the second of which had exceptionally bright lights; that just after passing that car a man stepped into the highway from the right-hand side directly in front of his car; that he turned his car to the left in order to miss him; that the man then stepped across to the left side of the pavement and had something in his hand, which he seemed to wave; that he then turned his car sharply to the right in order to avoid striking the man, when the car struck the culvert; that while he did not remember distinctly whether he had applied his brakes, when he later looked he saw that the wheels of his car had dragged as much as six to ten feet.
While the testimony of the parties differs somewhat in detail, it is clear from that of both of them that each was appreciative of the acquaintance of the other, and that they were mutually enjoying the evening ride. Directly after the collision defendant expressed sorrow at plaintiff’s injuries. He stopped a passing automobilist, who called from a farm house near by for an ambulance. Defendant accompanied plaintiff to the hospital. He had been shaken up, but not seriously injured. Plaintiff, however, had the serious injuries heretofore mentioned. She was compelled to remain at the hospital for several weeks, and had not thoroughly recovered at the time of the trial. Defendant testified that he had driven very slowly after leaving Wellingtpn and at the time his car collided with the culvert was going about fifteen miles per hour. Perhaps his testimony with reference to seeing the man in the highway and his efforts to dodge him was weakened by the fact that he first told it several hours after the casualty, and there were some discrepancies in it as it was told by him on' different occasions.
In answer to special questions the jury found that plaintiff had been riding with defendant about seven hours prior to the accident; that they had driven about 75 miles that evening; that as they approached the culvert plaintiff and defendant could have seen the culvert, if they had looked, for about 200 feet before reaching it, and that plaintiff was not looking ahead as the car approached the culvert. Then these questions were asked and answered:
“7. Was the defendant guilty of gross and wanton negligence? A. Yes.
“8. If you answer question 7 in the affirmative, then state of what this gross and wanton negligence consisted. A. Driving recklessly. Failure to have his car under proper control.”
When these answers were returned into court defendant requested the court to require the jury to return to the jury room for further answer to question No. 8 for the reason that no fact was stated, but merely a conclusion. The court deemed the answer sufficient and denied the request.
The principal question before us is whether this establishes liability under our statute (R. S. 1931 Supp. 8-122b), which reads:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
This statute is the outgrowth of a thought which had become common among our people, that it was too easy under our law relating to liability for negligence for one riding in an automobile as a guest of the driver to recover damages for injuries sustained in an automobile casualty. Similar statutes have been enacted in other states. Cases arising under such statutes are collected in the annotations in 74 A. L. R. 1198 and 86 A. L. R. 1145. We shall not take space here for a résumé of those statutes and decisions. It is sufficient to say that, such statutes have been upheld in the courts of the several states which have them and by the supreme court of the United States (Silver v. Silver, 280 U. S. 117), as being an appropriate exercise of legislative power designed to remedy a recognized evil. These statutes differ somewhat in wording, but their purposes are similar.
While the wording of our statute, above quoted, received considerable attention by the legislature which enacted it (House Journal 166, Senate Journal 239 of our 1931 legislative session), the words “gross and wanton negligence,” finally chosen, were not especially well selected. For many years in the earlier history of our state our statutes and decisions recognized three degrees of negligence — slight, ordinary and gross. (U. P. Rly. Co. v. Henry, 36 Kan. 565, 569,14 Pac. 1; C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462.) This classification of negligence into degrees lacked a firm basis for its existence, for the injuries sustained by one injured by the negligence of another were not increased or diminished by the classification into degrees of the negligence which caused the injuries. (Kennedy v. Railway Co., 104 Kan. 129, 179 Pac. 314.) This classification caused much trouble to courts and litigants in attempting to apply their respective definitions to the facts of a particular case. Finally, in harmony with sounder reasoning and with the law of most other jurisdictions, the classifica tion of negligence into degrees was taken out of the law of this state. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346.) Due care became and is the sole test, and the lack of due care is negligence. Due care in respect to specific circumstances is thought of as that care which an ordinarily careful, intelligent, prudent person should and would normally exercise under like circumstances. The failure to exercise such due care is negligence, which failure may arise from acts of commission or from omission. Negligence, properly speaking, does not include willful, intentional injury. Negligence resulting in injury gives rise to an action for damages.
Under the former classification of degrees of negligence, gross negligence meant great negligence, or much negligence; the lack of slight care (U. P. Rly. Co. v. Henry, supra) or of any care. The term is still used in our statutes (R. S. 66-275), which provide briefly that railroad companies are liable to passengers on freight trains for injuries resulting from gross negligence only, and in cases arising under the statute this former definition of the term is still used. (Jones v. Railway Co., 98 Kan. 133, 137, 157 Pac. 399.) Perhaps there are a few other instances where, by statute, the courts are required to give effect to our earlier definition of the term “gross negligence,” but, generally speaking, the term has but little significance in our law.
Of those matters which give rise to a civil action for damages, when an injury results therefrom, we recognize in our law negligence, meaning by that the lack of due care. We also have willful injury, as where one willfully strikes another, or willfully destroys property of another, or intentionally does any act with the purpose and intent of causing such injury. Among the activities of individuals are acts or omissions, which give rise to civil actions for damages where injuries result therefrom, which are subject to more severe censure than negligence and yet which are something less than willful injury. The law applies to such acts the general term of wantonness. Wantonness is defined in 40 Cyc. 294 as—
“Action without regard to the rights of others; a reckless disregard of the rights of others; reckless sport; willfully unrestrained action, running immoderately into excess; a licentious act by one man towards the person of another, without regard to his rights; a conscious failure to observe due care; 'a conscious invasion of the rights of another; an intentional doing of an unlawful act, knowing such act to have been unlawful; the conscious failure of one charged with a duty to’exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.”
Other definitions may be found in Words and Phrases, first, second, third and fourth series, and, as applied to statutes similar to the one before us, in the cases collected in the A. L. R. annotations, supra. Standing, as it were, between negligence on the one hand and willful injury on the other, wantonness is sometimes linked with each of those terms. (45 C. J. 674.) Our own decisions and many others distinguish them.
In K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, it was said:
“There is a distinction between, ordinary negligence and recklessness, or wantonness, as defined in our decisions. A party may recover for the reckless or wanton conduct of another, or as we have said, ‘for gross negligence amounting to wantonness,’ without a formal and direct intention to injure any particular person. Mr. Bishop says: ‘There is little distinction, except in degree, between positive will to do wrong, and an indifference whether wrong is done or not.’ . . .
“Judge Cooley says: ‘Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, . . . the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury. . . . ’
“Recklessness ‘is an indifference whether wrong is done or not — an indifference to the rights of others.’ Wantonness ‘is reckless sport, willfully unrestrained action, running immoderately into excess.’ ... In popular use and by our decisions ‘recklessness’ and ‘wantonness’ are stronger terms than mere or ordinary negligence.” (pp. 541, 542.)
In Railway Co. v. Walters, 78 Kan. 39, 41, 96 Pac. 346, it was said :
“Reckless disregard of security, wantonness or other equivalent of bad faith and the willful or malicious disposition to injure, all involve something eko than negligence.”
In Railway Co. v. Lacy, 78 Kan. 622, 629, 97 Pac. 1025, it was said:
“To constitute willful negligence there must be a design, purpose or intent to do wrong, or to cause the injury. True, the courts and text-writers quite generally agree that recklessness amounting to an utter disregard of consequences will be held to supply the place of specific intent (citing cases). And a reckless indifference to or disregard of the natural or probable consequences of doing or omitting to do an act which is generally termed wanton negligence, carries with it the same liability as an injury inflicted by willfulness. We deem it unnecessary to consider here the nice distinctions sometimes drawn by courts in respect to willful negligence and wanton negligence. It is sufficient in our opinion that there was in this case an absence of affirmative or other testimony-tending to show that the injury was occasioned by the wanton negligence of the engineer or that it was the result of that conscious disregard of, or reckless indifference to, the probable or natural consequences of his conduct which is usually termed wantonness.”
In Railway Go. v. Baker, 79 Kan. 183,189, 98 Pac. 804, the court quoted approvingly from Birmingham Railway & Electric Co. v. Pinchará, 124 Ala. 372, 62 So. 880, as follows:
“Wantonness, as has been defined by this court, ‘is the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury, after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril and being conscious of the inevitable or probable results of such failure.’ . . .” (p. 374.)
Our opinion then continues:
“The duty there referred to, the disregard of which amounts to wantonness, is manifestly that which arises only when the person charged with dereliction had knowledge of the danger or of the facts which impute that knowledge to him. . . . Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree. . . . For the same reason the phrase ‘reckless and wanton negligence’ has a misleading tendency. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that instead of affirmatively wishing to injure another he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.” (p. 189.)
In Senning v. Interurban Railway Co., 101 Kan. 78, 81, 165 Pac. 863, the court quotes from Railway Co. v. Baker, as we have heretofore done, and also the following:
“ ‘Nor is it enough that they know some one might be in the place of danger; the probability must be so great — its obviousness to the employees so insistent — that they must be deemed to realize the likelihood that a catastrophe is imminent and yet to omit reasonable effort to prevent it because indifferent to the consequences.’ (p. 187.)” (p. 81.)
In Fabac v. St. Louis & S. F. Rly. Co., 119 Kan. 58, 63, 237 Pac. 1019, it was said:
“If the cause of action be failure to exercise such reasonable care as would be expected of an ordinarily prudent and careful person under the circumstances, the petition must exhibit it. If the cause of action be wantonness, the petition, must exhibit wantonness. This results from the distinction between negligence and wantonness recognized in K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, and fully elucidated in the Baker case, supra, which is a leading authority on the subject. According to the Baker case, failure to exercise due care toward one discovered in a position of peril is not wantonness; it is negligence; that is, it is failure, without purpose or equivalent of purpose, to injure, to use diligence, to act quickly, to employ means which might have been employed to avert injury. To constitute wantonness toward one discovered to be in a position of peril there must be will to injure, or there must be such indifference to consequences, with realization that catastrophe is imminent, as to amount to willingness to injure.”
See, also, Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 486, 300 Pac. 1108.
Considering the above; In what sense did the legislature use the words “gross and wanton negligence” in the statute under consideration (R. S. 1931 Supp. 8-122b) ? We are forced to the conclusion the words are used in the sense of wantonness as distinct from negligence, as that distinction is made in former decisions of this court, notably Railway Co. v. Baker and allied cases, supra. With the three classes of conduct furnishing ground for liability when injury results — negligence, wantonness, willful injury — and with the purpose of the legislature to relieve operators of automobiles from some liability to guests, the statute would be ineffective to accomplish its purpose if it did not relieve from liability for negligence. The statute would be ineffective, also, if the liability from which it relieved operators of automobiles were reestablished by the use of exaggerated terms to describe negligence.
Let us now examine this record to see if the jury found wantonness of defendant to support its general verdict. The testimony contained two stories as to how defendant’s car came to collide with the culvert, and there was some evidence tending to weaken, perhaps, each of them. From all this the jury found, in answer to special question No. 7, that defendant was guilty of gross and wanton negligence. When asked, in question No. 8, to state of what this gross and wanton negligence consisted the jury answered: “Driving recklessly. Failure to have his car under proper control.” The real question arises: Is this a finding of anything more than negligence? Certainly the failure to have a car under proper control is nothing more than negligence. In support of the judgment of the trial court counsel for appellee stress the words, “driving recklessly,” and point out that recklessness frequently is an element of wantonness, and under the facts considered in some cases has been said to be synonymous with wantonness. But counsel overlook other uses of the term. In 53 C. J. 549, defining “reckless,” it is said:
“The word has a wide range of meaning, that may vary in color and content according to the circumstances and the time in which it is used. . . . In broad sense ‘reckless’ may be used as synonymous with ‘careless,’ ‘heedless,’ ‘inattentive,’ 'inattentive to duty,’ ‘indifferent,’ ‘neglectful,’ or ‘negligent,’ or as implying carelessness, heedlessness, indifference, mere inattention to duty, negligence, thoughtlessness, or want of care. . . . Some cases hold that the term implies more than carelessness, that it implies willfulness, and is equivalent to ‘willful.’ In this sense the term may be used as meaning desperate; desperately heedless, as from folly, passion, or perversity; destitute of heed or concern for consequences; foolishly heedless of danger; headlong; impetuously or rashly adventurous; indifferent to consequences; mindless; not caring or noting; not recking of consequences; rash; rashly, indifferently, or very negligent; regardless of consequences; utterly careless or heedless; wanton.”
If there is any question in which sense the jury used the words “driving recklessly” in its answer, the jury explained and limited its meaning by making as a part of its answer: “Failure to have his car under proper control.” This makes it clear that the jury used the term only in the sense of failure to use due care, which is nothing more than negligence.
Counsel for appellee argue throughout that on the return from Wellington defendant had undertaken to make love to plaintiff and had been repulsed repeatedly; that he conceived the device of having her write her telephone number and address for him, and that while she was busily occupied with doing so, and thus not in a position to ward off his attack, he took both hands from the steering wheel of the automobile, permitting it to run without guidance, and engaged in a struggle with plaintiff to embrace her. Had the jury found that to be true we would have had a different question before us. (Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629; Rog v. Eltis, 269 Mass. 466, 169 N. E. 413; Brainerd v. Stearns, 155 Wash. 364, 284 Pac. 348.) But the jury did not find it, but did return an answer which discloses that what was done amounts to nothing more than negligence.
After this answer was permitted to stand by the court, defendant moved for judgment in his favor on the answers to special questions notwithstanding the general verdict. This motion should have been sustained. In actions in which wantonness must be shown to justify recovery for plaintiff, this court has repeatedly reversed judgments, or directed judgments, when wantonness was not shown or found. (C. B. U. P. Rld. Co. v. Henigh, 23 Kan. 347; K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730; K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 671, 21 Pac. 770; Campbell v. K. C. Ft. S. & M. Rld. Co., 55 Kan. 536, 40 Pac. 997; Railway Co. v. Cooper, 57 Kan. 185, 45 Pac. 587; Railway Co. v. Lacy, 78 Kan. 622, 97 Pac. 1025; McCullough v. Railway Co., 94 Kan. 349, 146 Pac. 1005.)
The judgment of the court below is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original action in mandamus. Defendants filed a motion to quash the alternative writ. .A decision on that motion will settle the action.
The relief sought is to compel the state highway commission to construct U. S. highway No. 36 along a designated route in Washington county. Plaintiffs allege that this route is the one designated in 1926 by the county commissioners and the state highway commission as part of the state system of highways. They point out that the state highway commission is about to construct highway 36 along a somewhat different route and that the change contemplated is a substantial one and not required by the public safety.
There are two classes of plaintiffs. One class consists of residents and taxpayers of the town of Haddam, Kan. The proposed change routes the highway away from that town, and they plead a special interest in the subject matter of the action. They base this spe cial interest on the allegation that they sell gasoline, garage service, food and clothing to persons traveling highway 36, and the proposed change will divert traffic away from their town and damage them. The other class of plaintiffs are persons alleging themselves to be the owners of lands through which the proposed highway will pass. They allege that they will suffer irreparable injury by reason of the relocation of the highway. They fail to state in what manner such irreparable injury will be inflicted. The motion to quash the alternative writ is based on three grounds, as follows:
“1. Because the pleadings herein filed show that the plaintiffs are without legal capacity to maintain this action.
“2. Because the pleadings filed herein show that the route for U. S. highway No. 36 in Washington county, Kansas, which route this defendant was directed by the alternative writ of mandamus to be opened, constructed and maintained as a part of the state highway system, is not a part of the state highway system and did not become a part thereof on April 1, 1929.
“3. Because the routing proposed to be opened, constructed and improved by the state highway commission, and which opening, construction and improvement is enjoined by the alternative writ of mandamus herein, is required by public safety.”
We will consider the first ground of the motion. It will be noted that the writ sought would order the state highway commission to proceed at once to construct and maintain a certain portion of the highway. It is an action to redress an alleged wrong against the public interest.
Is there such a private right involved here as will give plaintiffs the right to bring an action to control the action of a public body? The court considered such a question in Heller v. A., T. & S. F. Rld. Co., 28 Kan. 625. In that case the plaintiff, a private citizen, sought to challenge the validity of the vacation of a part of First avenue and Crane street in the city of Topeka. She alleged that she purchased her property after the dedication of the addition and of the streets and alleys therein, and that after her purchase of the property she erected thereon valuable buildings which had been occupied for the purpose of conducting a grocery business thereon, and that at the time of the purchase and up to the commencement of .the action there was more travel on First avenue and by said lots than on any other street in that part of the city. By reason of these facts plaintiff sought to justify her action by reason of her alleged private and personal interest. The following language is found in the opinion delivered by Justice Brewer:
“The full width of the street in front and on the side is free and undisturbed, and the only real complaint is that by the vacating of the street away from her lots the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by her lots if the travelers desire it. The way to the heart of the city by her lots is a little more remote than it was before, but still free passage is open to all who wish to pass thereby. No one is compelled to stay away. Access to the lots is the same that it was before, so that the injury is only the indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated. Travel by those lots may be diminished, travel on streets south may be increased, and to that extent property on such southern streets may be benefited thereby. The same result would follow if some other avenue of approach to the city were specially improved. Public travel naturally seeks that which is the best route; but, surely, that thus the tendency of travel in front of her lots was diverted, would give her no cause of action. The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities.” (p. 629.)
To the same effect is Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996, where the court said:
“Early in the history of this state it was determined that ‘. . . for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character . . .’ (Craft v. Jackson Co., 5 Kan. 518, 521; and see Clark v. George, 118 Kan. 667, 669, 236 Pac. 543.) This principle applies not only in injunction, but in mandamus (Bobbett v. State, ex rel. Dresher, 10 Kan. 9; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556) and other forms of action, many examples of which are found in our reports.” (p. 348.)
The rule has been invoked a number of times in the type of case we have here, where private parties were seeking to control or question official acts of the highway commission. In City of Mankato v. Jewell County Comm’rs, 125 Kan. 674, 266 Pac. 96, the city of Mankato sought to do just what plaintiffs are seeking to do in this case, except that the form of the action was an injunction. This court disposed of the case upon the sole question of the right of the city to bring the action and held that it had no such right.
The question of the right of the second class of plaintiffs to bring the action may be disposed of on the authority of State, ex rel., v. State Highway Comm., 133 Kan. 357, 299 Pac. 955. There the county attorney of Shawnee county and three taxpayers of Harvey county whose land would be taken by the proposed change in the road in Harvey county sought to enjoin the highway commission from proceeding with the construction of a road. This court held that the county attorney of Shawnee county could not question an act of the highway commission which was to be performed in another county. With reference to the three taxpayers of Harvey county whose land was about to be taken, the court said:
“The petition shows that the commission has invoked the law of eminent domain to effect the change, and the only special interest these individual landowners are shown to have in the matter is the damage two of them will sustain by reason of the inconvenience and loss in value of their properties by reason of the increased distance of the improvements from the road. This may be an element of the damage which they may be entitled to recover, but it is not an interest which will entitle them to maintain an injunction,” (p. 361.)
Very little can be added to the force of what has been said on these questions. The decisions do not disclose any disposition of the court to recede from the firm position taken in the case of Heller v. A., T. & S. F. Rld. Co., supra. As the number of projects which the state and its commissions and municipalities undertake increase and the scope of public work broadens, it becomes increasingly apparent that' very little progress could be made if any private citizen who fancied himself aggrieved could go into court and question the right of the board, commission or municipality to act. We have therefore concluded that this action can be maintained only in the name of the state, on the relation of the county attorney of Washington county or of the attorney-general of the state. The parties who attempted to bring it had no authority to do so.
This conclusion might very well dispose of the case, but on account of all the circumstances the court has seen fit to treat the other matters raised in the motion to quash.
The petition alleges that in 1926 the county commissioners designated highway 36 in Washington county as follows:
“Commencing at the southeast corner of section twenty-four (24), in township two (2) south, of range five (5), east of the 6th P. M., in said county, and connecting with a prior designated state highway in Marshall county, Kansas, being the adjoining county on the east; and thence running due west in said county on section lines a distance of nineteen and one-half (19½) miles; thence one (1) mile north; thence six and one-half (6½) miles due west, thence one mile (1) south, thence running due west on section lines four (4) miles to the county line on the west side of said Washington county, Kansas, and connecting with a designated state highway in Republic county.”
The petition then alleged that this designation was approved by the state highway commission, and that from time to time the high way commission caused certain parts of the designated highway to be constructed.
It was further alleged that after the taking effect of chapter 225 of the Laws of 1929, which gave the highway commission power to designate and redesignate certain highways as a part of the state highway system, that no legal or official action was ever taken to change the location of highway 36 in Washington county.
The petition further alleged that the highway commission. had failed to open and construct certain portions of highway 36 as it had been designated, as follows:
“Commencing three and one-half (3½) miles west of the east line of said Washington county, and running thence west on section lines, a distance of six and one-half (6½) miles”; and also,
“Commencing at the southeast corner of section twenty-three (23), in township two (2) south, of range three (3), east of the 6th P. M., in said county, and running thence west on section lines a distance of seven and one-half (7½) miles.”
It is admitted that the two pieces of highway 36 described above exist only on paper, and that no steps have ever been taken since 1926 toward obtaining the right of way and causing a road to be opened on the designated location. During all the time that has elapsed since 1926, highway 36 has been marked along a route that detoured around the above contemplated parts of the highway in question. The highway commission argues that the failure of the county commissioners from 1926 to 1929 to open the designated portion of highway 36 and to take any steps to cause the location of an actual highway thereon was an abandonment of the entire designation of the highway across the county. We are impressed with this argument. Chapter 225 of the Laws of 1929 provides:
“That the state highway commission shall designate, adopt and establish and may lay out, open, relocate, alter, vacate, redesignate and reestablish highways in every county in the state . . . Provided, That the highways heretofore designated as state highways shall be a part of the state highway system and no substantial change therein shall be made except when the public safety shall require such substantial change. Highways designated under this act shall be state highways, and all other highways shall be either county roads or township roads as provided for elsewhere in the Kansas statutes.” (§3.)
It is doubtful whether the language of the proviso quoted was intended to preclude the highway commission from changing a route where approximately half of the designated highway never existed except on paper.
It will not be necessary to make a categorical answer to that question, however, on account of the conclusion we have reached as to the contention of the highway commission that the change made is required by the public safety.
We have heretofore quoted that part of chapter 225 of the Laws of 1929 upon which plaintiffs rely. It provides that the highway commission, after the taking effect of the 1929 statute, cannot make a substantial change in the state highway system as previously designated except when the public safety shall require such change. Plaintiffs argue that this change is substantial, and public safety does not require it. Defendant admits that it is substantial but urges that the change was required in the interest of public safety. The route upon which the state highway commission proposed to construct highway 36 in Washington county enters that county on the east at a point a mile south of where the present route enters. It runs west about three and a half miles on that section line, then bears south on a sweeping curve about three and a half miles long, which takes it to the section line three miles south of the present route. It runs west on this section line until it leaves the county on the west. It will be seen that this is almost a direct east-and-west road across the county. The curve spoken of is no doubt there so the road will pass through the city of Washington, the county seat of the county and its principal city. The following statistical comparison of the three routes will be of interest:
Traveled route. Route proposed never opened. Present approved proposed route.
Corners at intersections on section lines . 16 4 None
Curves of varying degrees of curvature. .12 6 2
Railroad crossings .................... 4 1 None
Miles ................................ 44¼ 32½ 30½
The road under consideration is part of a transcontinental highway. It is said to be the most direct route east and west across the continent. It is within the common knowledge of mankind that railroad crossings and right-angle corners on a highway should be avoided whenever possible. If we could make human nature over and could issue an enforceable order that each driver of an automobile should drive so that he and his passengers could see the beauties of the roadside and the neighboring hills and woods, then sharp corners and railroad crossings would not make so much difference, but we cannot do that. Since human nature is what it is, the minute a calm, level-headed man gets into an automobile he becomes possessed of a mania to be somewhere else as quickly as possible. A young lady carefully reared and trained to be thoughtful and considerate of the rights of others, when she feels her foot on the accelerator of a high-powered car becomes the feminine personification of Phaeton, the son of Apollo, who when intrusted with the reins controlling the steeds which carried the sun across the heavens, at first drove carefully, but presently, intoxicated with the control of so much power, drove recklessly, lost control of the steeds, and far from being a beneficent bearer of light and heat came so near the earth that plants shriveled and fountains and rivers dried.
Since we cannot change human nature we do the next best thing and change the physical surroundings so that people can pursue their natural bent with as little danger to themselves and others as possible. Hence, on an improved highway the fewer sharp corners and the fewer railroad crossings the less danger and the greater safety to the traveling public. The writ sought for asks us to order the highway commission to build a road which will have four corners on intersecting section lines, while the route over which the highway commission seeks to build the road has none; to build a road with six curves where the proposed route has only two; to cross railroads once where the highway commission proposes to cross them not at all; and to compel travelers to travel 32½ miles where the highway commission proposes to compel them to travel only thirty. This court has dealt with this question before. In the case of State, ex rel., v. State Highway Comm., 133 Kan. 357, 299 Pac. 955, this court said:
“Observation and experience prompt one to believe the elimination of right-angle turns is in the interest of public safety. It appears from the description given that instead of four 90-degree turns there are substituted by the proposed change two 135-degree turns, which would compel a conclusion that it is naturally in the interest of public safety. Counsel insist that to reach such a conclusion would require the exercise of judicial notice which will not apply except where the matter is universally true. We had not thought it necessary to apply judicial notice to such a straight statement of facts showing a deliberate plan and purpose of eliminating and avoiding right-angle turns and substituting half as many turns on obtuse angles. Unless it can be said that right-angle turns are as good, or preferable, for public safety, the matter is not debatable.' It is common knowledge, and that is all that is required for judicial notice (23 C. J. 59). Counsel reasons that ‘thousand-foot corners’ are just as safe as angling highways. That might be a way to make a change, but it is not before us at this time. It does show, however, that right-angle turns are things to be avoided where possible in one way or another.” (p. 362.)
We have concluded that there is more reason for holding the change in question to be in the interest of public safety than for the holding announced in State, ex rel., v. State Highway Comm., supra.
There is another reason why the writ in this case should be quashed. The route which the highway commission proposed to construct has been approved by the bureau of public roads of the United States department of agriculture. The route which plaintiffs ask us to order the commission to build has not been approved. Without their approval federal funds cannot be expended upon it. Obviously this court cannot order the federal authorities to approve the expenditure of federal funds. The road cannot be built without them.
On account of the fact that any contract for the expenditure of public funds on the highway in question must be let before December 31,1933, the order in this case will become final within ten days from the date of the filing of this opinion. This is a slight departure from the rule allowing twenty days for the filing of a petition for rehearing.
The motion to quash the alternative writ is sustained and the application for a writ is denied.
Hutchison and Thiele, JJ., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for the cancellation of a contract for the sale of real estate, in which the court found facts and rendered judgment for plaintiffs, and defendants have appealed.
On February 4, 1928, plaintiffs, who owned a certain quarter section of land, entered into a written contract to sell it to defendants, who agreed to buy it, for the sum of $10,000, of which $500 was paid in cash, and $1,500 was to be paid October 1, 1928, at which time defendants were to give plaintiffs a first mortgage on the land for $5,000, due in seven years, and a secqnd mortgage for $3,000, due in five years, both to draw interest at the rate of' 6% per cent per annum, and to pay interest at the rate of 6% per cent per annum on the deferred payment of $9,500 from the date of the contract to the date of the subsequent payment and the giving of the mortgages. Defendants were to pay future taxes on the land and to keep a stated amount of insurance on the improvements. Time and punctuality of payments were made of the essence of the contract, which further provided that should defendants make default they should forfeit their rights under the contract and plaintiffs should retain sums previously paid, as rent for the premises and as liquidated damages. At the time the contract was made there was a mortgage of $3,000 on the premises, which plaintiffs agreed to have released. The contract was made subject to an. outstanding oil and gas royalty interest. At the time the contract was made the land was leased for wheat, and it was agreed that plaintiffs should have the landlord’s share of the wheat, but the value thereof should be credited on the sum to be paid by defendants. Plaintiffs executed a deed for the premises and defendants executed the mortgages, and also had the title to the land passed upon and approved, and these instruments and the contract were placed in escrow in the bank.
In the summer of 1928 plaintiffs received $361 for the landlord’s share of the wheat on the premises, which amount was credited upon the sum defendants were to pay, but about October 1, 1928, the time for paying the balance of the $1,500, with accrued interest on the unpaid portion of the purchase price, was extended in writing until October 1, 1929. At various times in 1929 defendants made payments aggregating $523.09, and in September, 1930, paid $81.13. In August, 1929, plaintiffs granted a right of way for the telephone company across the premises, for which they received $241, and in June, 1929, executed an oil and gas lease on the premises, for which they received $540. Plaintiffs were compelled to .pay the taxes and insurance, aggregating $236.80. This action was brought in November, 1931. The court computed the sum due plaintiffs, including the taxes and insurance and the payments made by defendants, giving them credit for the sum plaintiffs had received from the telephone company and the oil and gas lease, and found a balance due plaintiffs of $10,378.08, and decreed that if defendants should execute the mortgages for $5,000 and $3,000 and pay plaintiffs $2,378.08, the difference between such mortgages and the amount due plaintiffs, by July 31, 1932, that the plaintiffs should convey the real property to them.
Defendants appeal and contend, first, that the court erred in making its computation. The court did make a finding that the reasonable rental value of the property for the time defendants had occupied it was approximately $1,200, and appellants argue as though that sum were added in to determine the amount they should pay. That is an erroneous interpretation of the court’s computation. Evidently the court made this finding in considering whether it would be fair to defendants to forfeit the contract. It should be noted that the actual sums paid by defendants on this contract were $500, $523.09 and $81.13, which aggregated $1,104.22. The other sums for which defendants were credited were received by plaintiffs, but would have been received by them had this contract not been made. Defendants, having had the use of the premises for such a length of time that the value of such use equalled or exceeded all they had actually paid out on the premises, makes it clear that it was not inequitable to decree the forfeiture of the contract. Particularly is that true in view of the fact that the court gave them time to make their deferred payments and go ahead with the purchase. There is no intimation that defendants desired to do so.
Appellants contend they were entitled to a jury trial to determine the amount due under the contract. The action was one to cancel the contract, essentially a proceeding in equity. The fact that computations had to be made to determine the nature of the decree to be entered did not change the nature of the action nor require a jury trial.
Appellants further contend that since plaintiffs had placed an oil and gas lease on the property and had given the right of way across it for a telephone line, they had encumbered the title so they could not carry out their contract, and it is argued that by reason of this plaintiffs should have been required to return to defendants all they had paid under the contract. If defendants were going ahead and completing this purchase and taking title to the land, or offering to do so if these complained of encumbrances were removed, they might have some reason to complain, but since they are not completing the contract, nor attempting to do so, it is a matter with which they, are not greatly concerned.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to enjoin defendant from engaging in business as a funeral director and embalmer in opposition to plaintiff and in violation of a contract that he would not do so. The trial court made findings of fact and conclusions of law, in which terms used in the contract were defined, and granted the injunction in accordance with such definitions.
The facts may be stated generally as follows: Plaintiff, licensed both in Missouri and in Kansas as an undertaker and embalmer, since 1926 has been and is now engaged in that business in the city of Mulberry. Defendant operated a filling station in Mulberry, but was desirous of learning the business of funeral directing and embalming, and for approximately a year prior to February, 1931, assisted plaintiff in his work and received instructions from plaintiff in funeral directing and embalming. About February 20, 1931, defendant wanted to get a certificate or affidavit from plaintiff that he had been serving as an apprentice undertaker for a year in order that he might enter an embalming school and in order that he might take the examination before the state board of embalming. Plaintiff replied that he had once signed up for a young man who later went into competition with him. Defendant replied he would not do that, and that he would enter into a written agreement to that effect. Whereupon the parties caused to be drawn and executed the following instrument:
“This agreement made and entered into this 20th day of February, a. d. 1931, by and between J. M. Berkey, of Mulberry, Crawford county, Kansas, party of the first part, and Otis Smith, of Mulberry, Crawford county, Kansas, party of the second part.
“In consideration of the party of the first part; instructing the party of the second part, in the art of funeral directing and embalming, the party of the second part, for and in that consideration, agrees with the party of the first part, not to enter into the said business of funeral directing and embalming, in competition with the said first party, within a radius of ten miles of the city of Mulberry, Crawford county, Kansas, so long as the said party of the first part remains in said business in said city of Mulberry, Crawford county, Kansas.”
Thereafter defendant continued to assist plaintiff in his business, and plaintiff continued to give defendant instruction until early in July, when defendant began attending a school for embalming at Kansas City, Mo. He finished the school in December, 1931, and thereafter took the examination before the state board of embalming and received a license. About May 1,1932, defendant’s wife, Lillian Smith, started in Mulberry “The Smith Funeral Home,” which conducts the ordinary business of an undertaker, directing funerals arid embalming. She testified the fact that plaintiff had a contract with her husband “inspired me to go in business for myself.” She was not a licensed undertaker and embalmer. Defendant was present when she bought caskets and other supplies to start the business. Defendant assisted her in some parts of the work and did the embalming on two bodies. This action was brought May 11, 1932. Among other things plaintiff, in his petition, set up the contract and alleged its violation. In the answer defendant admitted the formal allegations of the petition and the execution of the written instrument, but alleged fraud or deception which induced its execution, and further alleged that since the execution of the instrument, for a valuable consideration, the same had been canceled and terminated.
The trial court found that the parties entered into the contract; that it had not been rescinded or terminated; that the consideration on plaintiff’s part was that he would instruct defendant in the art of embalming and funeral directing when he was not in an embalming school, and would certify that defendant had served one year under him, in order that defendant might receive credit therefor upon an apprenticeship, and on defendant’s part he agreed not to enter into the business of funeral directing and embalming in competition with plaintiff within a radius of ten miles of the city of Mulberry so long as plaintiff remained in that business in Mulberry; that plaintiff instructed defendant as to practical embalming, and defendant, together with the instructions given him by plaintiff and the course taken in the embalming school, applied for and obtained a license as .an embalmer; that the Smith Undertaking Establishment at'Mulberry is owned and operated by the wife of defendant, and he has assisted her in her business by operating an ambulance and conveying dead bodies to her undertaking establishment and in the purchase and sale of caskets, and operating the hearse, and in seating people at funerals, and in conveying the caskets containing dead bodies to and from the hearse, and aside from this, defendant, since the commencement of the action, has not been engaged in the business of funeral directing and embalming. The court’s conclusions of law were to the effect that the contract in question is valid and binding; that defendant has violated its terms, and plaintiff is entitled to an injunction; “that ‘embalming,’ as used in the contract, means the actual embalming and assisting in embalming, and embraces the tasks and acts incident to embalming dead human bodies; that the term ‘funeral directing,’ as used in the contract, means the directing of affairs at the funeral, and the rites and ceremonies accompanying the solemnizing of interment of dead human bodies; that such term does not embrace any other activities in connection with the undertaking business, such as the purchase and sale of caskets, the operation of an ambulance for the purpose of conveying sick or injured persons, or conveying dead human bodies to undertaking establishments.”
Turning now to the legal questions argued. Appellant contends the contract was without consideration. The point is not well taken. The contract as written contains mutual promises, and it is fundamental that the consideration for a promise may be a return promise. (Restatement of the Law of Contracts, § 75.) In this connection appellant argues that there was a failure of consideration in that plaintiff did not give instructions in funeral directing and embalming to defendant after the date of the contract. The trial court found against appellant on that point and the finding is supported by the evidence. The trial court found that in addition to agreeing to instruct defendant in funeral directing and embalming plaintiff agreed to certify that defendant had served one year under plaintiff, in order that defendant might receive credit therefor upon an apprenticeship. Since this element was not embodied in the contract as written, perhaps the court should not have made that finding, but since plaintiff does not complain, there being no cross appeal, we shall treat the finding as having been properly made, including that element. This additional matter in the finding, however, gives rise to an argument by appellant that the contract is illegal as against public policy. It is argued that the agreement to furnish this certificate is tantamount to an agreement to furnish evidence to establish a point in the trial of an action. The point is not well taken. In this respect the agreement was no more than to certify to a fact which existed. There is no suggestion that any inaccurate or false statement was to be made in this certificate, nor is it even hinted that such a statement was made. We see nothing in the contract as written, or as enlarged by the finding of the court, which renders the contract illegal or void, as against public policy, nor as tending to show that the consideration was insufficient. (A. L. I. Restatement, Contracts, §§ 83, 84.)
Finally, appellant argues the contract is void for the reason that it imposes an unreasonable restraint. We regard the contract reasonable as coming fairly within the proposition laid down in Restatement of the Law of Contracts, § 516 (f), which recognizes as not imposing unreasonable restraint —
“A bargain by an assistant, servant, or agent not to compete with his em ployer, or principal, during the term of the employment or agency, or thereafter, within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent.”
It is true defendant was not an employee or agent of plaintiff, but he was an assistant desirous of learning plaintiff’s business, requiring special knowledge and skill. The question of the reasonableness of a contract in restraint of trade or business frequently depends upon fundamental elements of common fairness in view of the facts and circumstances of the parties. When plaintiff agreed to permit defendant to assist him, and also agreed to undertake to teach defendant his business, nothing seems more natural than that defendant should agree, if requested by plaintiff, not to go into the business in competition with plaintiff within a limited area and for such time as plaintiff was engaged in that business in that locality. Defendant thought it sufficiently fair to suggest the agreement. That he profited by it is shown by the findings of the court.
The contentions he made in his answer that the agreement was induced by misrepresentation or fraud, and also that it had been terminated for a valuable consideration, were found against him by the court, and it is not argued here that these findings were unsupported by the evidence.
There is no error in the record of which appellant can complain. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Mary E. Payne against the Kansas Gas & Electric Company to recover damages for injuries sustained by her while driving her automobile on a street of Wichita in the nighttime, when she collided with an electric-light pole, alleged to have been negligently planted and maintained in a dangerous location in a parkway, against which the plaintiff drove her car. A demurrer by the defendant to the evidence of plaintiff, on the ground that it failed to prove a cause of action in favor of plaintiff and against defendant, and further that it showed contributory negligence on the part of plaintiff as a matter of law, was sustained. From this ruling plaintiff appeals.
It was shown that on June 10, 1930, plaintiff, a resident of Newton, had driven to Wichita to attend a convention of the federation of colored women, and on the night of that day — a dark and misty one — the plaintiff and two of her friends entered her automo*bile, when the convention adjourned, and started to drive to a home in the city of Wichita, where the plaintiff was to be entertained. In going there she drove east over Central avenue, on which there is much traffic and is a paved street about forty-five feet wide with curbs on each side. At the intersection of Central avenue and Emporia avenue there is a jog in Central avenue of about thirteen feet and four inches, which shifts the regular course of the curb line at that point to that extent for a distance of about 150 feet. There is a curb around and along the jog on Central avenue. The parkway along the street extends from the pavement out to the sidewalk, and in this parkway an electric-light pole of the defendant had been planted and maintained for some time, and there were also trees growing on the parkway. The pole was about sixteen inches east from the curb of the jog, and it carried wires for the transmission of light and power for the use and benefit of the inhabitants of the city. The plaintiff drove into the jog and against the pole, suffering injuries about the extent of which there is no controversy.
Was the defendant negligent and liable for the injury sustained by plaintiff as a result of driving against the pole in the parkway? The parkway is a part of the street, generally used for sewers, light poles, telephone poles and water appliances, and was wholly outside of that part of the street paved and used for vehicular traffic. The automobile was driven in such a course that it collided with the pole in the parkway. Plaintiff says she was not acquainted with the streets of the city, did not know of the jog, and that the lights of coming cars which she was meeting at the time led her to drive closer to the curb on her side of the traveled way.
The defendant cannot be held responsible for the irregularities in the plan of the city streets, nor for the establishment of parkways along them. Such irregularities in streets are not uncommon, and it behooves drivers to keep a lookout for irregularities that frequently end in abrupt turns or a culdesac, or to be answerable for the consequences. The plaintiff does not contend that the city was negli gent in varying the direction of travel on Central avenue, nor by reason of the jog in it. Neither does she complain of the city’s establishing a parkway farther north at the Emporia avenue intersection than west of that point. Yet on the theory of plaintiff, the parkway was itself an obstruction in the street in the same sense that the pole maintained on it was an obstruction. The city had the right to make the bend or jog in the street, to establish the parkway farther north at the jog, and to permit the maintaining of light poles in the parkway. The pole was set and had been maintained in accordance with the plan of the city, and presumably with its permission, as nothing has been shown to the contrary in the evidence. It appears, therefore, that there was no departure from the approved plan of the city in placing the pole in the parkway, and as to defendant it cannot be regarded as an unlawful obstruction of the street. Under plaintiff’s own showing it cannot be said that the collision was caused by the negligence of the defendant, and there is no claim that it was due to the fault of the city. In Greenland v. Des Moines, 206 Ia. 1298, a case in which the circumstances of a street accident were quite similar to those in the present case, the plaintiff was driving his automobile along a street in which there was a jog of twenty-eight feet at an intersection of another street. The driver was not familiar with the street or the jog in it. The night was dark and misty and the motorist was driving at a speed of eighteen or twenty miles an hour, and at the jog drove over the curb and upon the parkway where a telephone pole was standing. The automobile struck the pole and caused injury to the driver. It was held that the city was not bound to keep the parking free from obstructions to travel, and that if there was a lack of visibility at the time and place of the accident it was the duty of the driver to stop, and for him to proceed without visibility was the proximate cause of the accident. As to obstructions in the parkway, it was said:
“As a matter of common knowledge and observation, it may be said that, in the practical exercise of this authority, such telephone poles are located in the parking and outside of the line of travel. Such was the location of the telephone pole in question. It may be taken as a matter of common knowledge, and observation, also, that only a part of the width of a street is devoted to motor travel or traffic. Such traffic is confined to the paved space between the curbs. Between the curb and the street line is the so-called parking. It is permissible to devote the parking to many other uses than that of public travel. Trees may be planted therein. Trees and poles must necessarily obstruct travel. They are permissible upon the parking because travel is not permissible thereon. It necessarily follows that the city authorities are not bound to keep the parking free from obstruction to travel.”
Speaking of the location of the pole, they added:
“Presumptively, it was properly located in the first instance, and nothing is shown to overcome the continuance of such presumption.” (p. 1300.)
In McQuillan on Municipal Corporations, 2d ed., § 2957, it was said:
“Between the driveway and the sidewalk are found, in many streets, various objects which are more or less obstructions, but because they interfere little, if any, with public travel it is generally held that persons injured by colliding therewith cannot ordinarily recover from the municipality. Included within the class of objects are shade trees, grass plats, proper barriers to prevent travel on grass and flower plats, hitching posts, stepping stones, hydrants, poles for electric wires, etc. ...”
In Wolff v. District of Columbia, 21 D. D. App. 464, affirmed in 196 U. S. 152, it was said:
“It is clear the provisions of the statute do not apply to many things that may, in a sense, be regarded as obstructions to the sidewalks of a city. They certainly do not apply to the shade trees growing along the sidewalks, nor to lamp posts, water hydrants, awning posts, telegraph or telephone poles, that we find everywhere in the city, along the sidewalks. All these things may be regarded, in a particular sense, as obstructions, but they are not such within the meaning of the statute. They are objects allowed and authorized, by immemorial custom and usage, as being necessary to the health, convenience, protection, and enjoyment of the homes and lives of the inhabitants of the city. Where these objects of convenience and comfort have been subject to proper regulation, as they always are and should be, they have never been regarded as nuisances, either public or private.” (p. 470.)
See, also, Clinkenbeard v. City of St. Joseph, 321 Mo. 71; Dougherty v. Village of Horseheads, 159 N. Y. 154; Townsend v. Georgia Power Co., 44 Ga. App. 132; G. & M. Coast Traction Co. v. Manuel, 123 Miss. 266.
While it is the duty of the city to keep its streets and highways safe for travel, we have held that it is not bound to keep the full width of every street safe for travel, and that ordinarily it is sufficient to keep so much of it safe for that purpose as is designed and necessary for travel. (City of Wellington v. Gregson, 31 Kan. 99, 1 Pac. 253.)
In Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416, a team of mules ran away and ran against a telephone pole, supported by guy wires, near the boundary line of a highway, causing injury for which a suit against the telephone company was brought. The pole was not on the traveled part of the highway, and on a demurrer to plaintiff’s evidence it was held that the telephone company was not negligent, and that in the situation described the pole and wires were not the proximate cause of the accident.
The cases cited by plaintiff concerning the placing of poles in that part of the street designed and used for vehicular traffic are not applicable to the case we have. As already remarked, it is not claimed that the city was liable in authorizing or permitting the defendant to place its poles in the parkway, and likewise the defendant cannot be held liable for availing itself of the permission to set the pole outside of the traveled way.
We think the evidence is insufficient to prove a cause of action against the defendant for the injury which resulted from the location of the pole against which the plaintiff’s automobile was driven, and that there was no error in sustaining the demurrer upon that ground.
Much argument is made on the question that the plaintiff was free from contributory negligence, but in view of the conclusion reached on the first ground of the demurrer it is unnecessary to consider the second ground.
It follows that the judgment for defendant must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This action was an outgrowth of the peculations of a county treasurer in Ellis county.
In 1930-1931 there was a shortage of $45,987.89 in the county treasurer’s funds. He was sent to the penitentiary; his personal estate was insolvent, and his official bond was worthless.
In 1930 school district No. 2, of Ellis county, levied taxes for its general revenue and for its interest and sinking funds. These levies were extended on the tax rolls of the county and collected by the defaulting county treasurer. When demand was made on the succeeding county treasurer for these funds they were not forthcoming. The board of county commissioners adopted the theory that each school district, township and city in the county must bear its proportionate share of the loss caused by the defaulting treasurer. A computation showed that of all public moneys which had come into his hands he had made away with 7½ per cent of them. Accordingly the county board adopted a resolution which was spread on the commissioners’ journal. It reads:
“The county treasurer is hereby ordered to charge each taxing district in Ellis county, Kansas, a sum equal to the amount that the total taxes levied by said taxing district in 1930, bears to the total amount of the deficit in the funds of P. Y. Gottsehalk, former treasurer, according to the schedule of the county clerk. (Signed) John Krueger, Chairman.”
To test the validity of this arrangement this action was begun. The facts were developed without material,dispute. The trial court held the arrangement valid. Its most material finding reads:
“4. The order of the county commissioners, directing the present county treasurer to charge back to each taxing district in Ellis county approximately 7% per cent of the amount levied by such taxing district, is a practical administrative order, which should be followed by the present county treasurer and by the officers of each taxing district of Ellis county, until some court of competent jurisdiction decides bo the contrary.”
Judgment was entered accordingly, and the school district appeals.
On a broad view of this situation it can readily be seen that the $45,987.89 shortage in the county treasurer’s funds must ultimately fall on the taxpayers of Ellis county; and to the individual taxpayer it matters little whether the county at large shall make good this deficit, or whether it must be replaced pro rata by the various subordinate taxing agencies of Ellis county vested with power to impose tax levies upon his property. In a practical way, however, it is important that the correct method of dealing with this sort of affairs should be authoritatively determined, since defalcations of public funds do occasionally happen; and whatever “administrative order” is made in Ellis county must be one suitable of uniform operation throughout the state.
While the statutes may be searched in vain for specific direction afc to how to deal with a situation of this sort, a good start to show that the problem is wholly one for the county to face, and not of direct concern to its smaller taxing units, may be discovered in the fact that the board of county commissioners did deal with it as one engaging its official concern. The board is the managerial tribunal for handling the county’s affairs. (R. S. 19-212.) It has nothing to do with the affairs of the smaller taxing units except where specific statutory authority has been conferred. The county treasurer is a county officer, chosen by the electors of the county. The unanimous veto of every voter in school district No. 2 would not impair his title to the office. The county board fixes the amount of his bond, and determines its sufficiency. On that point neither school district No. 2 nor any other subordinate taxing unit of the county has any say-so. The county board supervises and approves the county treasurer’s accounts, and employs auditors to verify them. The plaintiff school district has nothing to do with these matters. The county board selects the banks in which the funds in the county treasurer’s hands shall be deposited. (R. S. 19-530.) If the unanimous opinion of the officers and citizens of school district No. 2 was that those county depositories were financially infirm it would not affect the power and authority of the county board over these depositories. On a proper showing, the county board may suspend or remove the county treasurer for fiscal irregularities where the public interest requires it. (R. S. 19-523.) The moneys in the hands of the county treasurer are public funds. While they are subject to apportionment and segregation to the state, to the county, and to the cities, townships and school districts, and occasionally to drainage districts and the like, until that apportionment and segregation are made those moneys en masse are public funds for which the county is responsible. If they are embezzled by a derelict county officer, or lost in a bankrupt county depository, or stolen by a burglar from the vaults of the county treasury, or taken by a robber at the point of a gun during office hours, it would seem that the resultant loss must fall on the county at large. Certain it is that the loss cannot be apportioned by “administrative order" among the subordinate taxing districts of the county. If such an order should be made in the present instance, it would have to be made if the treasurer’s peculations or other losses were for $500‘ or $5. This line of argument could be greatly extended, but it is needless. This court holds that the administrative order prorating the loss caused by the defaulting county treasurer among the taxing districts of the county was neither authorized by statute nor can the statutory powers conferred on the county board be extended by implication to sanction the order relied on as a defense to the lawful demand of the plaintiff school district.
The judgment is reversed, with instructions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this action is by the defendant from a judgment rendered against him and in favor of the plaintiff for a commission on the sale of stock made by the plaintiff to one Reagan for the defendant, who was managing in Wichita the sale of stocks and securities for a Denver company, and had engaged the help of plaintiff in the enterprise as a contact man.
The action of plaintiff was for $840, or a six per cent commission on the sale of $14,000 of stock. The defendant in his answer denied any sale was made by plaintiff, denied the making of any oral agreement for the payment of six per cent commission, or agreement to have plaintiff introduce him to prospects, and denied that plaintiff was to receive any sum for any assistance in the sale of such stock.
The testimony of plaintiff only showed two items on which commission was claimed, one for $1,000 and the other for $4,000, both being sales made to Reagan. The case was tried to a jury which rendered a verdict for plaintiff for $302.80, which was six per cent commission on $'5,000, and $2.80 interest thereon.
Appellant assigns numerous errors, the .first of which is the failure of plaintiff to make demand for payment before commencing the action. We find no authority for a demand being necessary for commission, earnings or compensation, where the terms of the contract neither expressly nor impliedly require it as a condition precedent.
“No demand is necessary before bringing an action for the recovery of the price of articles sold and delivered, where the contract itself does not impose that condition. Such a debt is due when the transaction is complete.” (1 C. J. 651. See, also, 13 C. J. 660, 729.)
The terms of the contract as set out in the petition certainly do not require a demand, and the answer does not in any way modify that contract. It simply denies its existence in any manner or form. Besides it has frequently been held that where the pleadings and evidence show that a demand would have been useless, it is unnecessary.
“It is a general rule that where it is manifest that a demand would have been wholly futile, if made, it is unnecessary to go through the formality of making it.” (Altman v. Bank, 86 Kan. 930, 932, 122 Pac. 874. See, also, Bogle v. Gordon, 39 Kan. 31, 17 Pac. 857, and 13 C. J. 661.)
Appellant urges that the evidence shows a lack of performance on the part of the plaintiff, especially as to the $4,000 item, and therefore no compensation would be due. The evidence tended to show the $4,000 item involved a promise of Reagan to invest money to be realized from two different sources: a receipt which he held for $4,000, and $10,000 of stock in the Nathan Jones company. The defendant testified that “After hard work the bank gained possession of the actual C. D.” He further testified that the certificate of deposit for $4,000 was then indorsed by Mr. Reagan and mailed to the company at Denver. The evidence also showed the Denver company had the $4,000 and had never issued to Mr. Reagan any stock therefor, and that the Nathan Jones company had completely failed and nothing had been realized by plaintiff and defendant out of it toward investment for Mr. Reagan. It is true that the evidence of the defendant tends to connect these two items as if the proceeds of both would be necessary to complete and constitute the investment intended by Mr. Reagan, but there is sufficient evidence of the plaintiff to justify the jury in regarding them as separate items for investment. The continuing of the Denver company to hold the $4,000 without returning it to Mr. Reagan and his permitting it to be held, knowing the Nathan Jones investment was a failure, strengthens the position that the $4,000 item might be separable and intended for a separate investment. Nothing further is suggested in the testimony or brief of defendant that plaintiff could do to complete the $4,000 deal. When the plaintiff has done all it is possible for him to do toward performance and the remaining things to be performed are all to be done by the defendant and his company, namely, the issuance of the stock, failure or delay in completing the investment cannot be charged to the plaintiff.
Appellant insists that the contract to be enforceable should be. definite and certain, and cites good authority in support of that doctrine, but the argument is based upon the evidence of the defendant as to the contract, which differed widely from that of the plaintiff, which the jury chose to accept, and there was nothing indefinite about plaintiff’s version of the contract.
The sixth instruction is claimed by defendant to be erroneous in that it did not, as a matter of law, inform the jury that the $4,000 item was incomplete and the plaintiff was not entitled to any commission thereon. This is the same proposition as heretofore considered, and we hold there was sufficient evidence, if accepted, to permit it to be a separable item and completed, as far as it was in the power of the plaintiff to complete it. The issuance of the stock to Reagan could only be done by the company the defendant represented. The court, in that instruction, told the jury it would have to determine from the evidence what the contract was and also the amount of stock that was actually sold to Reagan and the rate of commission thereon.
Much is said in the brief of appellant about the commission claimed by the plaintiff being unreasonable and about the first sale to Reagan being made three months after his being introduced to defendant by plaintiff. These are matters to be determined from the evidence, and where there is a claim of an oral contract, and upon sufficient evidence that theory is accepted by the jury, it is not a matter that can be changed or modified upon appeal.
It is further argued that the verdict was contrary to the evidence and contrary to law, that it shows prejudice and bias on the part of the jury, and that if any liability existed in favor of the plaintiff it was against the Denver company represented by the defendant instead of the defendant personally. We have not been persuaded in favor of any of these contentions; neither do we find error in the overruling of the demurrer to the evidence of the plaintiff nor in overruling the motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the court sustaining a demurrer to the evidence offered in support of an application to have opened up' a judgment obtained by publication service only, and to be permitted to defend. There were two cases in the same situation, but since they were consolidated in the court below and here, we shall speak of them as one.
On May 27, 1929, Minnie A. York filed a petition in an action to quiet title to certain lands in Sedgwick county. Among the parties named as defendants were M. D. York, plaintiff's husband, with whom she lived in Wichita, and a stepson, Frank York, who lived near her in Wichita, and with whom she was well acquainted. On the day the petition was filed there also was filed a journal entry of judgment purporting to quiet title in plaintiff against all the defendants named in the petition, but since at that time service of summons had not been had upon anyone, we presume no one contends that the journal entry recited a valid judgment. On the same day plaintiff filed her affidavit for publication service against all defendants, including her husband and stepson. This contained the usual recitals of such an affidavit, among others that plaintiff does not know and has diligently inquired but has been unable to learn the place of residence of defendants, and is unable to procure actual service of summons on them within the state. A publication notice, regular in form, was duly published and proof thereof filed, and thereafter and on July 23,1929, judgment was rendered for plaintiff, quieting her title to the real property in question, against the defendants, including M. D. York and Frank York. On October 31, 1930, Frank York, on behalf of himself and his father, whom he alleged to be physically and mentally incompetent, filed a petition to vacate the judgment. Afterwards, and in November, 1931, an amended petition and motion to vacate and op§n the judgment was filed, which alleged, among other things, that M. D. York had died, leaving Frank York as his sole heir. This application to open judgment set up the facts of the residence of the parties and their relation to plaintiff, alleged that the only service had upon the defendants was by publication, and that the applicant had no knowledge of the pendency of the action in time to appear and defend. This was in the form of an affidavit, and verified. It also contained a verified answer to the petition, which it is not necessary to analyze here further than to say that it contains allegations which, if sustained by proof, tend to defeat plaintiff’s right to have the title to the real property in question quieted in her name. Plaintiff first demurred to the application, but her demurrer was overruled. She then filed an answer to it which controverted many of the allegations contained in the application filed by Frank York, and with reference to his knowledge of the pendency of the action it was alleged that he did have knowledge of it before judgment was taken, and that he had filed a written waiver of the issuance and service of summons as a voluntary appearance. No such instrument is shown by the record. On the hearing of the application to open the judgment, Frank York introduced the files of the case to show the nature of the action and that the only service of process filed upon him and M. D. York was by publication, and also presented his verified application, which contained the affidavit that neither he nor his father had any notice of the pendency of the action in time to appear and make a defense. The trial court sustained plaintiff’s demurrer to this evidence, and Frank York has appealed.
In this court the appellee, as a reason the ruling of the court should be affirmed, says:
“The principal point in this appeal is that the appellant sought to support his motion to open up a judgment obtained by publication by merely his affi davit when he was in the court room and knew if he took the stand he would have to admit that he had full knowledge of the facts.”
The statute (R. S. 60-2530) under which the application to open the judgment was made provides that the evidence on the question of the applicant’s knowledge of the pendency of the action in time to appear and defend be taken by affidavit, and that plaintiff may controvert the affidavit of the applicant by a counter affidavit. There was therefore no reason to refuse to open the judgment because of the fact that the evidence was in the form of affidavits.
The application was made within the time provided by statute and in the form authorized by statute. An answer was filed putting in issue the allegations of plaintiff’s petition. The evidence in support of the application was in the form authorized by statute, and was sufficient, certainly if not controverted. No counter affidavit was filed, hence it seems clear that the judgment should have been opened up and the controversy in issue between the parties should have been tried out.
The judgment of the court below is reversed, with directions to open up the judgment obtained on publication service and to try out the issues presented by the pleadings of the parties. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought in the district court of Montgomery county to compel Mel Gibson, as sheriff of the county, to receive and confine in the county jail Pearl Thompson, a female person who had been convicted on a charge of assault and battery, sentenced to pay a fine of one dollar and the costs taxed at $17, and it was alleged that she had failed to pay the fine and costs. Thereupon a commitment in due form was issued to the sheriff, who refused to execute it. An alternative writ was issued reciting a conviction, failure to pay the fine and costs, and the refusal of the sheriff to commit the female to the county jail. On a motion to quash the alternative writ, the issue was raised as to the duty of the sheriff in the premises. The motion to quash was overruled, the court holding that it was the duty of the sheriff to commit Pearl Thompson to the county jail, and this appeal followed.
On behalf of the sheriff it is contended that under the industrial farm act a female convict cannot be confined in a county jail in order to' compel payment of fine and costs. It is conceded that there is no express provision in the act forbidding such imprisonment, but it is insisted that the theory of the act is wholly contrary to the confinement of a female prisoner in the county jail. Reference is made to In re Dunkerton, 104 Kan. 481, 179 Pac. 347, in which it was said:
“The purpose of the act of 1917 is to ameliorate the condition of women who have been convicted of an offense punishable by imprisonment. Under the act women are not subjected to the debauching influence of the county jail and of the penitentiary and of the close confinement therein, but are placed in a field where labor is pleasant and restraint is limited, and where the evil influence of other persons convicted of crime is minimized. The act seeks to improve, to educate, and to build up; not to punish.” (p. 483.)
As to the purpose of the act see, also, State v. Heitman, 105 Kan. 139,181 Pac. 630.
In the industrial farm act, R. S. 76-2505, is the provision:
“Every female person, above the age of eighteen years, who shall be convicted of any offense against the criminal laws of this state, punishable by imprisonment, shall be sentenced to the state industrial farm for women, but the court imposing such sentence shall not fix the limit or duration of the sentence, . . .”
It will be noticed that the provision in the section quoted is that a female convicted of an offense punishable by imprisonment is to be sentenced to the state industrial farm. In the present case the offense of which Pearl Thompson was convicted is not one punishable by imprisonment. The penalty for that offense was a fine. If the offense had been punishable by imprisonment, the court of course under the act would have sentenced her to the farm. There is a recognized difference between punishment to be adjudged for a crime and of measures provided for the enforcement of the judgment, and it has been held that the requirement that defendant pay a fine and costs and stand committed until the fine and costs are paid, is no part of the punishment for a crime charged to have been committed and of which the prisoner has been found guilty. In the case of In re Boyd, Petitioner, 34 Kan. 570, 9 Pac. 240, Boyd was convicted of an offense and the punishment assessed was a fine and that he be committed until the fine and costs were paid. A general pardon for the offense committed was granted to Boyd by the governor, and the board of county commissioners made an order under criminal code 253 releasing Boyd from imprisonment, and he alleged that the pardon and order of the county commissioners rendered his imprisonment illegal. The court held that the pardon and release did not acquit Boyd of liability for the fine and costs: Among other things it was said:
“A judgment against a defendant in a criminal prosecution for costs, and that he be imprisoned in the county jail until such costs are paid, is not a part of the punishment inflicted upon him. (Citing cases.) Such a judgment is merely a means of enforcing the legal obligation resting upon the defendant to pay the costs which he, by his original wrongful act and his subsequent acts, has caused to be made, and which have accrued in the prosecution subsequent to the act for which he is punished; and these costs have not accrued to the public merely, but have accrued to individuals, and are given to such individuals as compensation for their services. . . .” (p. 573.)
In State v. Baxter, 41 Kan. 516, 21 Pac. 650, the defendant was found guilty of assault and battery and sentenced to pay a fine of one dollar and to stand committed until the fine and costs were paid. On the question involved here it was said:
“The order committing the defendant to the jail of the county until the fine and costs are paid is no part of the sentence, and the imprisonment is no part of the punishment inflicted for the commission of the offense. It is only a means provided for the enforcement of the penalty imposed in the sentence or judgment.” (p. 517.)
In 25 C. J. 1157 it is stated:
“A direction in a sentence imposing a fine that defendant stand committed until the fine is paid is no part of the penalty for the offense, but is merely a means of compelling obedience to the judgment of the court. If he refuses to pay, he is not sentenced to a term in prison; the duration of his imprisonment is in his own control; by payment of the fine he can at any time secure his release, . . .”
In the same volume, at page 1160, is the following:
“A constitutional provision forbidding indefinite imprisonment is not violated by a sentence imposing a fine and directing the commitment of defendant until it is paid, for the reason that the punishment is the fine, and the committing to custody is only a means of its enforcement, . . .”
See, also, Mikesell v. Wilson County, 82 Kan. 502, 108 Pac. 829.
As the industrial farm act only provides for the detention of females convicted of offenses punishable by imprisonment, it has no application to the case of Pearl Thompson, where the offense of which she was convicted was not punishable by imprisonment. That act makes no provision for the enforcement of the payment of fine and costs by detention on the industrial farm (State v. Dunkerton, 103 Kan. 748, 175 Pac. 981), nor does the act in terms repeal other provisions of the criminal code which prescribe how judgments for fine and costs shall be enforced. There is a statute which specifically prescribes what action shall be taken for enforcement in such cases. It provides:
“When the defendánt is adjudged to pay any fine and costs, the court shall order him to be committed to the jail of the county until the same are paid.” CR. S. 62-1513.)
The industrial farm act does not provide any substitute for this feature of procedure, does not repeal the one provided for nor touch upon the subject, and evidently the legislature did not intend to annul specific provisions for the enforcement of judgments for fine and costs only.
We think the court reached the correct conclusion in overruling the motion to quash the alternative writ, and its judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this action against defendants, who constitute the board of trustees of the Wichita firemen’s pension fund, to compel them to take official action to place him on the retired list of firemen and to grant him a pension on account of alleged injuries received in the line of duty which permanently incapacitated him from further service in his vocation.
To the alternative writ of mandamus issued at the instance of plaintiff, defendants filed a motion to quash on two grounds:
“First: For the reason that said alternative writ, on its face, fails to show that the plaintiff is entitled to any relief as directed in said writ.
“Second: For the reason that said alternative writ shows upon its face that the plaintiff would not be entitled to a peremptory writ upon the final hearing of this cause.”
The trial court overruled this motion and gave defendants ten days to file an answer and return to the writ. From this ruling defendants appealed, and a stay of proceedings has been granted until its propriety is determined.
Defendants’ chief contention here is that the adverse determination of the board of trustees of the firemen’s pension fund on plaintiff’s claim for a pension was conclusive and not subject to judicial correction by mandamus. The pertinent statute reads:
“In all cities coining under the provisions of this act, the mayor, the chief officer of the fire department and three delegates at large from the fire department of such city, to be elected by the members thereof on the first Monday in December of each 'year, whose terms of office shall be for one year, shall constitute and be a board to be known as the ‘board of trustees of the firemen’s pension fund.’ The board shall elect from their members a president and secretary: Provided, That in all matters relating to pensions under the provisions of this act, the determination of the board of trustees of the firemen’s pension fund as to whether the death, injury or disability of any fireman was or is such as to bring the case within the provisions of this act, and also as to the dependency of any person or persons surviving any officer or member of the fire department and claiming to be dependents entitled to the benefit of this act, shall be conclusive.” (R. S. 1931 Supp. 13-719.)
In Penquite v. Dunn, 123 Kan. 528, 256 Pac. 130, the district court issued the writ of mandamus to compel this same board of trustees to place a disabled fireman on the retired list and grant pension rights to him. As a result of that judgment, however, and in anticipation of its necessary affirmance by this court under the then existing statute, the legislature amended the statute by adding all the italicized portion of the section quoted above.
In Penquite v. Dunn, supra, this court said:
“Defendants cite the case of Board Trustees Firemen’s Pension Fund v. McCrory, 132 Ky. 89, 21 L. R. A., n. s., 583, where it was held that mandamus will not lie to control the action of a board of trustees of a firemen’s pension fund where the statute made the decision of the board final and conclusive and not subject to revision or reversal except by the board itself. That express statutory prerogative vested in the board, and which is wholly wanting in our statute, renders the Kentucky decision of no significance in the present case.” (531.)
It will be noted that the italicized matter in the amended section makes our present statute accord with that of Kentucky, and wc cannot doubt that such was the deliberate purpose of our legislature in thus amending it.
It appears to be settled by well-considered precedents that a statute which confers upon an administrative or quasi-judicial tribunal the power to grant or deny pensions to persons in the public service and which makes its determination conclusive on such matters is valid, and the courts will not interfere therewith. (Board of Trustees, etc., v. McCrory, supra; State v. Board of Trustees, 117 La. 1071, 8 A. & E. Ann. Cas. 945 and note; Carlton v. West, 174 Ga. 394, 397; People v. Board of Trustees Firemen’s Pension Fund, 95 Ill. App. 300; Benner v. City of Chicago, 176 Ill. App. 317; Decatur v. Paulding, 39 U. S. 497, 10 L. Ed. 559; 48 C. J. 791, 792.)
In State, ex rel. Criswell, v. Board of Trustees, 93 Wash. 468, where the supreme court affirmed a judgment denying a writ of mandamus to compel payment of benefits under the firemen’s pension act of that state which made the decision of the pension board final and conclusive, it was said:
“The conclusiveness of the order of the board of pensions is urged in this court. The contention we think must be sustained. It is within the power of the legislature, when enacting a statute creating a new right with its remedy, to vest in some board or person power to adjudicate all matters arising under the statute, and to make such adjudication final and conclusive. . . . But a reading of the act convinces us that all questions concerning the administration of the act were vested in the board; the power to determine who were entitled to the fixed sum, as well as to determine who were entitled to temporary relief or to pensions under the act.
“The further claim that the right to the relief demanded is a vested right and thus subject to a determination by the courts is also without foundation. Whether the right was vested is subject to inquiry, and since the legislature has vested the board of pensions with full power and authority to determine the inquiry, its conclusion on the question is as final as it is on any other matter of which it is granted complete jurisdiction.” (pp. 470-472.)
The foregoing necessarily disposes of the main question in this case.
Counsel for plaintiff invoke the time-honored principle that in the jurisprudence of this country and of this state arbitrary power is not granted and cannot be granted to any public officer or official-board. Quite so. (Photo Play Corporation v. Board of Review, 102 Kan. 356, 359, 169 Pac. 1154; Cities Service Co. v. Koeneke, 137 Kan. 7, 18, 20 P. 2d 460; 43 C. J. 847; 38 C. J. 719.) But while the words “arbitrarily,” “capriciously” and others of similar import appear in the recitals of the alternative writ, the facts of controlling significance are alleged as follows:
“. . . The said defendants met as the board of trustees of the Wichita firemen’s pension fund and rejected the plaintiff’s claim for pension, and refused to place this plaintiff’s name upon the retired list and pension roll of the Wichita firemen’s pension fund and refused to grant pension to the said plaintiff, which said action upon the part of the said defendants and each of them acting as the Wichita firemen’s pension board and as trustees for the said Wichita firemen’s pension fund, appears to be without right or foundation upon the part of the said defendants and each of them, and was wrongful, unjust, arbitrary, and without right in law, and that in so doing the said defendants and each of them did act contrary to law and arbitrarily, capriciously, and without right either in law or in equity, and did abuse their authority in such cases made and provided by statute, in that said named pension board and trustees of said pension fund refused to allow said W. W. Garrety to appear at the hearings had; that various hearings were had which were held in secret and without said W. W. Garrety being allowed to appear.”
It will thus be seen that the denunciatory adverbs are merely used to express the pleader’s conclusions. The facts as pleaded do not warrant those conclusions. That the defendants did not permit plaintiff to be present at their deliberations did not make out a case of arbitrariness or caprice.
The judgment of the district court is reversed and the cause remanded with instructions to sustain defendants’ motion to quash and to dismiss the action.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Bueci-i, J.:
The action was one by an automobile driver for damages for injury to person and property resulting from collision with a culvert post when plaintiff was crowded off the road by one of defendant’s buses. Plaintiff recovered judgment, and defendant appeals.
Defendant complains because a motion for continuance was overruled, the ground of the motion being absence of a material witness —the bus driver. The affidavit in support of the motion has been examined. The statements contained in the affidavit regarding opportunity to procure the testimony of the witness were inconsistent with each other. The affidavit did not disclose that due diligence was used to procure the testimony. The affidavit did not disclose with any definiteness the whereabouts of the witness or the probability of procuring his testimony within a reasonable time. The affidavit set out what facts affiant believed the witness would prove, but the affiant did not state he believed the facts to be true. Therefore, the affidavit was wholly insufficient. (R. S. 60-2934.)
It is contended a new trial should have been granted on the ground of newly discovered evidence.
Defendant’s bus operated between Lawrence and Chanute. The accident occurred east of Welda. Whether the bus caused the acci dent depended upon whether the bus was greatly behind time and was at the place of the accident when the accident occurred. Witnesses for plaintiff gave testimony the bus was south of Richmond at a given time. This testimony helped materially to establish plaintiff’s cause of action. At the hearing on the motion for new trial, defendant produced the affidavit of a witness, W. L. McCall, showing when the bus passed through Richmond. The affidavit tended to rebut the testimony of plaintiff’s witnesses. It is contended defendant could not know plaintiff’s witnesses would locate the bus in time and place as they did, and the testimony of McCall was newly discovered.
McCall’s affidavit stated he was bus-depot agent at Richmond. The bus driver’s time slip, introduced in evidence by defendant, showing time of leaving Lawrence and time of arrival at Chanute, showed the bus stopped at Richmond and purchased gasoline there. Affidavits on behalf of defendant, both for continuance and for new trial, stated that after the accident the bus driver, Bloom, went back over the line and checked his time with defendant’s agents' and the stations at which he stopped. The whole defense was that the bus was substantially on time at Richmond, at Garnett, at Welda, and at Chanute, and consequently could not have caused the accident. Defendant chose to call just one of its station agents, the agent at Garnett, whose testimony was contradicted, and the court was manifestly right in not granting a new trial to permit defendant to produce another station agent.
Other contentions of defendant that a new trial should have been granted are equally unsound, and it would be of no benefit to the bench and bar of the state to extend demonstration of unsoundness on the printed pages of the Kansas Reports. There was no occasion for an instruction to the jury, which defendant did not request, on the subject of positive and negative testimony. This court is not concerned with credibility of witnesses, or conflict in the evidence, or weight of evidence, and the verdict was well sustained by evidence. There is no indication the amount of the verdict was determined through passion and prejudice on the part of the jury, and the verdict was not excessive.
The judgment of the district court is affirmed. | [
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Marquardt, J.:
Carl Feril appeals his conviction for one count of driving under the influence of alcohol (DUI). We affirm.
In March 2004, Officer Steve Fritzson was on patrol when he received radio contact from a neighboring jurisdiction. Officers in that jurisdiction observed a white Ford truck with Texas plates driving without headlights in an area near Officer Fritzs on’s location. Officer Fritzson testified that he located the truck at a convenience store within a few minutes of hearing the radio call.
Officer Fritzson observed the driver climbing into the truck’s cab. Officer Fritzson approached the driver and informed him of the report about someone driving without headlights. Feril told the officer that he was not from the area and had been driving without headlights for a short distance.
During the conversation with Feril, Officer Fritzson observed lethargic movements, bloodshot eyes, and an odor of alcohol. Feril admitted that he had been drinking. Officer Fritzson administered several field sobriety tests which Feril failed to complete in a satisfactory manner. Ultimately, Feril was arrested and taken into custody. While in custody, Feril provided a sample for a breath alcohol test which registered 0.180.
Feril was charged with one count of DUI, second offense. The municipal court found him guilty, and Feril appealed to the district court. After a bench trial, the district court found that the uncontroverted evidence proved Feril was guilty as charged. Feril received a $1,000 fine and was sentenced to serve 5 days in jail, with a 1-year term of probation. Feril appeals his conviction.
Prior to trial, Feril filed a motion to suppress evidence claiming that Officer Fritzson did not have reasonable suspicion to justify a stop. The district court held an evidentiary hearing and concluded that the interaction between Feril and Officer Fritzson was voluntary. The motion to suppress was denied.
On appeal, Feril argues that he was not free to leave once he was approached by Officer Fritzson. Feril contends that since Officer Fritzson had no first-hand knowledge that he was driving, he was not justified in approaching Feril’s vehicle.
When reviewing a motion to suppress, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004).
After the district court rendered its verdict, Feril filed a motion for acquittal arguing that the City of Manhattan (City) failed to establish the corpus delicti of the crime. Feril claimed that a prima facie showing of corpus delicti must be made independent of a confession. The trial court heard arguments from counsel and ruled that the City was only required to prove elements that would show that a crime was committed. The trial court denied the motion.
On appeal, Feril renews his claim that the City’s prima facie showing of corpus delicti must be made independent of his confession. Feril claims that there was no evidence he either owned or operated the vehicle, because it was parked when he was arrested. Feril contends that he should not have been convicted without competent evidence which corroborated his admission of driving.
On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty beyond a reasonable doubt. The standard of review on a motion for a judgment of acquittal in a criminal case is sufficiency of the evidence. State v. Wiggett, 273 Kan. 438, 443, 44 P.3d 381 (2002).
Kansas law on corpus delicti is very consistent; a conviction of even the gravest offense may be sustained by circumstantial evidence. In order to establish corpus delicti, the extrajudicial confession of a criminal defendant must be corroborated by other evidence tending to show that the crime was committed. It need not be corroborated as to the person who committed the crime since identity of the perpetrator is not a part of the corpus delicti and may be established by an extrajudicial confession alone. State v. Bradford, 254 Kan. 133, 139, 864 P.2d 680 (1993).
No appellate court in this state has been called upon to evaluate corpus delicti within the framework of the crime of DUI. However, the matter has been taken up by several other jurisdictions. In City of Easley v. Portman, 327 S.C. 593, 596, 490 S.E.2d 613 (Ct. App. 1997), the South Carolina Court of Appeals ruled that to satisfy the corpus delicti of DUI, the State need only prove that “someone drove the automobile.” The court followed up that reasoning in State v. McCombs, 335 S.C. 123, 126, 515 S.E.2d 547 (Ct. App. 1999), by noting: “ ‘If there is any evidence tending to establish the corpus delicti of the offense charged against the accused, then it is the duty of the trial court to submit tire question of whether the offense occurred to the jury.’ ”
In the instant case, Officer Fritzson testified that he received radio contact from a neighboring jurisdiction that a white Ford truck with an extended cab and Texas plates was driving without headlights. That information satisfied the corpus delicti of driving. The portion of the corpus delicti involving intoxication was directly observed by Officer Fritzson, who smelled the alcohol and saw Feril’s bloodshot eyes, as well as his failure to complete the field sobriety tests.
Identity of the perpetrator is not part of the corpus delicti. Feril’s extrajudicial confession to Officer Fritzson that he was driving is enough to justify a conviction for the DUI offense. See Bradford, 254 Kan. at 139.
The Texas license plates distinguished Feril’s truck from any number of white Ford vehicles on the road. In addition, Feril presented a Texas driver’s license, and Officer Fritzson saw Feril climbing into tire driver’s side of the truck’s cab. These facts alone provide sufficient circumstantial evidence to prove that Feril was the driver spotted by officers in another county.
Officer Fritzson’s verbal exchange with Feril was not a custodial interrogation. Feril’s response to Officer Fritzson’s comment was voluntary. A custodial interrogation occurs when a person who has been taken into custody or otherwise deprived of his or her freedom is questioned. See State v. Gooden, 22 Kan. App. 2d 271, Syl. ¶ 3, 915 P. 2d 169, rev. denied 260 Kan. 998 (1996). Feril had not been taken into custody, nor was he deprived of his freedom. Officer Fritzson was justified in stopping Feril. Feril’s conviction is affirmed.
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Greene, J.:
Charles McMillan appeals the district court’s dismissal of his K.S.A. 60-1501 petition on the ground that the court lacked jurisdiction due to the untimely filing of the petition. McMillan argues that he was not provided notice of his appeal rights and that his time to file the petition should be tolled during his efforts to exhaust administrative remedies. Concluding that estoppel and the doctrine of unique circumstances renders McMillan’s filing timely, we reverse the dismissal and remand for further proceedings.
Factual and Procedural Overview
McMillan is an inmate at Lansing Correctional Facility who received a letter dated July 15, 2004, stating that he would be classified and managed as a sex offender and failing to provide any notice of rights for review or appeal. The record fails to reflect when this letter was received, but McMillan filed a “Form 9” request for review of the decision on July 27, 2004, stating, “I would like to know who is responsible for this request [to be classified a sex offender].” By response dated July'29, 2004, McMillan was advised in virtually illegible handwriting by an unknown agency employee that “[t]he KPB made the original request to have you managed as a sex offender . . . . Talk to your [counselor?] if you want to request an override.” Again the record fails to reflect when this response was received by McMillan, and again, the response failed to provide any notice of rights for review or appeal.
On August 3, 2004, McMillan submitted a handwritten request “to this committee and to any panel related thereof’ challenging tire classification on the basis that
“1) I am not a convicted sex offender by any state or federal statute and or court.
“2) I have no juvenile adjudication as a sex offender from any court.
“3) I have never been convicted of a crime that was sexually motivated.
“4) Having never been convicted of a sex offense, I proclaim that I have never engaged in any type of sexually motivated behavior prohibited by the K.D.O.C. rules while in custody.
“5) Included with this request is a journal entry from the Reno County Courthouse . . .which stipulates no [sexually motivated] convictions therein and the reasons therefore [sic]. [Indeed, the journal entry finds insufficient evidence to bind McMillan over on attempted rape and attempted aggravated criminal sodomy.]”
By letter dated September 9 and received by McMillan September 15, 2004, the request for relief was denied. On September 17, McMillan filed a formal grievance under K.A.R. 44-15-102 stating:
“I’m filing this grievance as to being classified as a sex-offender by the K.P.B. and tlie Sex Offender Override Panel. What criteria did the K. P.B. use in determining why I am now to be managed as a sex offender? Who was the person(s) who initiated the request that I be managed as a sex offender? Finally, what written request or documentation, did the sex offender override committee use in determining me as a sex offender.”
The Unit Team response dated variously 10-11-04, 10-13-04, and 10-15-04 stated that
“[t]he Kansas Parole Board passed you until April, 2007, with the recommendation for SOTP treatment. We had to request you be managed as a sex offender to offer you SOTP treatment. Please write the Parole Board regarding why they recommended SOTP treatment.”
McMillan indicated on the grievance response form that he was not satisfied with Unit Team response and selected the option to forward to the Warden’s Office for review on October 14, 2004.
By letter attached to the original grievance form and dated October 18, 2004, the Warden responded stating that “no action can be taken” because the grievance procedure is not to be “used in any way as a substitute for, or as part of, the classification decision making process.” The letter response also indicated that McMillan should comply with IMPP ll-115(C)(4)(a) (which refers to IMPP 11-106[V]) to process “any further appeal.” In contrast to the attached letter, the form response itself stated: “If dissatisfied with this response, the inmate may appeal to the Secretaiy of Corrections [within] three (3) calendar days of receipt.’.’
On November 22, 2004, McMillan completed another Form 9 request for review addressed to the Warden asking “for a sexual override as to being classified as a sex offender.” In support he stated that “there was a judicial determination that there was no probable cause to establish that my crime(s) were sexually motivated.” In a “Disposition” signed by an “executive officer” and dated December 2, 2004, McMillan’s request was apparently denied on its merits with this statement:
“First of all, LCF has supported your override, however the decision to manage you as a sex offender has been made by the MDT. Unless you have new evidence to present there is no further appeal to this decision.”
In the apparent belief that the December 2 determination was final, McMillan filed his petition under K.S.A. 60-1501 on December 22, 2004.
The district court dismissed McMillan’s petition for lack of jurisdiction, concluding that pursuant to administrative regulations, McMillan had 72 hours from the initial notification (September 9) that his override was denied to file his Form-9 appeal of the override denial, and his efforts thereafter failed to toll his 30-day deadline to file the 60-1501 petition. The court relied on IMPP 11-106, which states:
“Within 72 hours after receiving a classification decision, the inmate may appeal the decision to the warden. The inmate’s request shall be submitted through the unit team as a form 9 request for review.”
McMillan appeals.
Standard of Review
Our standard of review is whether the factual findings by the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusion of law. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
Was McMillan Entitled to Notice of His Appeal Rights P
In his well-presented pro se brief on appeal, McMillan initially argues that he was never given notice of his right to appeal the September 9, 2004, decision of the Sex Offender Review Panel that denied his request for an override of the sex offender classification. The respondents argue that “this is a moot point” because McMillan did not timely file the appropriate appeal even after he was advised of the appropriate procedure in October 2004. We disagree that McMillan’s point is “moot”; in fact, we conclude that had the September 9 letter contained a brief statement as to McMillan’s rights for review or appeal (such as: “You have 72 hours to appeal this decision to the warden through the unit team as a form 9 request for review pursuant to IMPP 11-106[V][A].”), a host of administrative effort as well as judicial time might have been saved. Moreover, at no time during the rather protracted administrative proceedings thereafter was McMillan advised that all was for naught because his appeal rights terminated September 18, 2004.
McMillan correctly notes that this court has referenced the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) in construing and applying Department of Corrections regulations. Indeed, in Holt v. Saiya, 28 Kan. App. 2d 356, 360, 17 P.3d 368 (2000), the court cited and relied on a case interpreting K.S.A. 77-613(b) in determining whether a request for reconsideration should toll the deadline for filing a 60-1501 petition. Similarly, McMillan requests that we reference and apply a key provision within the Administrative Procedure Act, K.S.A. 77-526(c). This statutory subsection reflects a mandatory notice of review and appeal rights within any initial or final administrative order:
“The order shall also include a statement of the available procedures and time limits for seeking reconsideration, administrative review or other administrative relief. . . . Any final order, for which a petition for reconsideration is not a prerequisite for seeking judicial review, and any initial order, for which further administrative review is not available, shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.”
We find no similar requirement in Department of Corrections regulations or applicable statutes. Moreover, McMillan does not mount an effective constitutional attack on the sufficiency of the notices of administrative action received during the course of his administrative proceedings. In any event, we need not address the question at this time given our resolution of McMillan’s second issue on appeal. Instead, we simply note that this court routinely sees instances of inmate confusion regarding the appropriate procedure or forms to institute a review or appeal or grievance of various disciplinary, classification, grievance, or other agency actions. We believe that the policy reflected in K.S.A. 77-526(c) is to assure notification to an aggrieved litigant of the precise steps for meaningful appellate review. This policy is most assuredly of equal importance in the context of inmate administrative proceedings but is thwarted in the absence of similar advice to an inmate on each and every action notification. We fail to understand why such action notifications do not consistently contain a brief but clear statement of instructions to inmates as to the procedure, forms, and timing to seek review.
Did McMillans Efforts to Exhaust Administrative Remedies Toll His Deadline to Appeal?
McMillan next challenges tire district court’s dismissal for lack of jurisdiction when his 60-1501 petition was filed within 30 days of the final agency action. He claims that he made extensive efforts after July 15 to exhaust administrative remedies and that he did not receive a final action notification until December 2, 2004, within the required 30 days of filing his 60-1501 petition on December 22, 2004. For the reasons explained below, we conclude that McMillan’s petition should be deemed timely, thus requiring that we reverse tire district court’s dismissal and remand for a hearing on McMillan’s petition.
The district court dismissed McMillan’s petition on the ground that the September 9 letter was not appealed within 72 hours pursuant to IMPP 11-106(V)(A). The respondents on appeal concede that McMillan attempted to exhaust administrative remedies, but did so through incorrect, untimely, and ineffective procedures. As we see it, however, the problem is that respondents did not adhere to their own regulations and misled the inmate throughout the process. McMillan articulates his position as follows:
“The warden [accepted] petitioner’s late appeal [Nov. 22 Form 9] and made a ruling [Dec. 2] with the knowledge that petitioner was filing a late appeal. As petitioner explained in the appeal, petitioner was not given notice by the Sex Offender Review Panel that an appeal was available. Petitioner did exhaust his administrative remedies. Petitioner’s exhaustion requirement should not be subjected to a hyper-technical reading and enforcement by the courts of the Secretary’s Internal Management Policies and Procedures when the administrative agency governed by the policy determined to hear the appeal.”
We agree. We deem the warden’s acceptance of McMillan’s untimely Form 9 request for review and tire subsequent December 2, 2004, ruling on its merits as a waiver of the agency’s own rules requiring such requests to be filed within 72 hours of the initial classification determination. Rules and regulations adopted by an administrative board to carry out the policy declared by the legislature in the statutes have the force and effect of laws; such regulations are issued for the benefit of both the agency, and the public and an agency must be held to the terms of its regulations. Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 100, 697 P.2d 1279 (1985). An agency may not violate its own rules, and where it fails to follow the rules that it has promulgated, its orders are unlawful. Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, Syl. ¶ 1, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973). Here, the warden’s final action on McMillan’s request for review need not be considered unlawful, but it renders ineffective the agency’s argument on appeal that McMillan’s petition was untimely. When an agency determines to disregard its own procedural rules, it is estopped on appeal from arguing that failure of a litigant to observe those same procedural mies deprives the appellate court of jurisdiction.
In addition to our conclusions of waiver and estoppel, we note that this appeal presents circumstances for application of the doctrine of unique circumstances to save the otherwise untimely appeal. This doctrine has been embraced by our Supreme Court since at least 1988 and has been articulated as follows:
“ “When employed in die context of an untimely appeal, the unique circumstances concept is based on a theory similar to estoppel. The [United States] Supreme Court seems to have concluded that a party ought not be denied an opportunity to appeal because of his failure to file a timely appeal when that failure resulted from reliance on action taken by the district court that generated a reasonable belief that an appeal could be initiated at a later date.’ ” In re Tax Appeal of Sumner County, 261 Kan. 307, 313, 930 P.2d 1385 (1997).
Our Supreme Court has specifically held that where an administrative agency misleads a litigant as to the deadline to seek reconsideration, which is a prerequisite to further appeal, the litigant should not be deprived of his or her rights if he or she acts within the erroneously stated period. Sumner County, 261 Kan. at 317. Here, McMillan was variously told in action notifications that his next step was: (i) talk to your counselor; (ii) write to the Parole Board about your SOTP; (iii) forward your Unit Team response to the warden; (iv) comply with IMPP ll-115(c)(4)(a) (even though the time for such action had long ago expired); and (v) appeal the grievance disposition to the Secretary of Corrections. He was never told that his appeal rights terminated September 18, 2004, long prior to most of tins inconsistent advice. If this was not already confusing if not misleading, at no time was McMillan advised on a timely basis what were the proper steps to institute review or appeal of his classification decision. We conclude that this is a proper case to invoke the doctrine of unique circumstances and consider McMillan’s 60-1501 petition timely. Accordingly, the district court’s dismissal of the petition is reversed, and the matter is remanded for further proceedings consistent with this opinion.
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Rulon, C.J.:
Defendant James Bieker appeals the district court’s denial of his motions to suppress, arguing that defendant’s statements to the police were taken in violation of Miranda and the police officers did not possess reasonable suspicion justifying a stop and search of the defendant. We affirm.
On December 15, 2003, police investigators Janell Zimmerman and Lane Mangels received a report from Target that a suspicious individual had purchased a 96-count box of ephedrine cold tablets. The reporting employee described the individual and reported the individual had entered a blue Chevrolet Corsica upon leaving the store. As the investigators had just been to Target on another investigation and were nearby, they returned quickly and noted a car matching the description provided by the Target employee leaving the Target parking lot.
Mangels and Zimmerman ran a vehicle tag check on the Corsica and called investigators Jeremy Watkins and Glen Lippard to assist with the investigation. Mangels and Zimmerman then followed the Corsica to a Dillons Superstore, where they were joined by Watkins and Lippard.
At the Dillons store, a man, later identified as the defendant, exited the Corsica and entered the store. Watkins and Mangels followed the defendant, watching as the defendant walked through the store before eventually entering the cold medicine aisle. As the defendant left the aisle, Watkins was able to see the defendant carried at least one box of cold medicine, which appeared to be an ephedrine or pseudoephedrine product. After the defendant left the store, Mangels obtained the register copy of the defendant’s receipt for the box of cold medicine.
As the defendant left the Dillons store, a female driving the Corsica stopped for the defendant near the front of the Dillons store. Followed by the investigators, the defendant and the female drove to Wal-Mart. Again, the defendant entered the store. This time Zimmerman and Lippard entered the store to conduct surveillance, while Watkins and Mangel remained in their vehicles to observe the female inside the Corsica. The defendant walked to the sporting goods section and selected a pair of black hunting gloves and then visited the pharmaceutical section and selected two boxes of Equate-brand ephedrine tablets.
As the defendant proceeded to check-out, the investigators, communicating by cell phone, decided to stop the defendant for questioning. As the defendant exited the store, Lippard approached him and identified himself as a police officer. Lippard asked the defendant to move over to the sidewalk. The defendant complied. Shortly thereafter, Lippard was joined by Watkins, while Zimmerman and Mangels spoke to the female, later identified as the defendant’s wife.
Lippard explained to the defendant the investigators had observed the defendant purchasing ephedrine or pseudoephedrine products at three different stores. The defendant responded his wife suffered from severe sinus problems and that stores would only allow consumers to purchase three boxes per visit. Lippard asked the defendant for identification, and the defendant produced his driver’s license. Lippard did not return the license throughout the subsequent interview.
For purposes of officer safety, Lippard asked the defendant whether he was carrying any weapons and whether the defendant would submit to a pat-down search. The defendant responded he was not carrying any weapons but had some tools and then systematically emptied his pockets, showing Lippard each item before returning it to his pockets. However, Lippard noticed a box of cigarettes in the defendant’s shirt pocket which the defendant had not shown him. Lippard inquired about the box of cigarettes. The defendant handed the box to the investigator, who looked inside it and noticed a baggie containing a brownish-colored substance which appeared to be methamphetamine.
Lippard arrested the defendant and advised him of his Miranda warnings. The defendant acknowledged that he understood, and, when Lippard asked whether the defendant would be willing to answer further questions, the defendant responded, “Not right now.” Lippard stopped questioning the defendant, until the defendant had been transported to the Salina Police Department.
Once the defendant was placed in an interrogation room, Lippard reviewed a written statement of rights with the defendant, who acknowledged his understanding of his Miranda rights and indicated he was willing to speak with the investigator. In response to Lippard’s queiy whether the purchase of ephedrine or pseudoephedrine pills was for the manufacture of methamphetamine, the defendant smiled, looked at the floor, and denied tire allegations in a veiy quiet voice. Nevertheless, the defendant admitted to using methamphetamine and marijuana. Prior to being booked into the jail, the defendant turned over a small glass vial containing a white powder residue, which tested positive for methamphetamine; four yellow pills, which proved to be codeine; and one white pill. As he turned over the vial, the defendant commented that it was frequently used to store his methamphetamine.
The State eventually charged the defendant with unlawful possession of ephedrine or pseudoephedrine, possession of methamphetamine, unlawful possession of codeine, and possession of drug paraphernalia. Prior to the preliminary hearing, the defendant filed a motion to suppress any incriminating statements he made to Lippard taken in violation of his Miranda rights. Following the presentation of the State’s evidence at the preliminary hearing, the district court denied tire motion to suppress.
Subsequently, the defendant filed another motion to suppress, this time challenging the lawfulness of the seizure and search outside Wal-Mart. Originally, the district court set a hearing for the motion, but, as soon as Lippard began to testify, the court questioned whether tire issue had not been resolved during the preliminary hearing. The district court then continued the hearing until the court had reviewed the preliminary hearing transcript.
Prior to the date of the continued hearing, the district court filed a journal entry, indicating that the second motion to suppress was denied because the issue raised by the motion had previously been resolved by tire preliminary hearing. The defendant waived a jury, and the case was tried to fhe court.
After the State had presented its case, tire defendant renewed both motions to suppress, relying upon the testimony of the State’s witnesses during the trial. This oral motion was also denied. The district court ruled tire testimony at trial was not substantially different from tire testimony at the preliminary hearing.
Ultimately, however, tbe district court found the State had produced insufficient evidence to prove beyond a reasonable doubt the defendant intended to use the ephedrine or pseudoephedrine pills to manufacture methamphetamine and ordered an acquittal on the unlawful possession of ephedrine or pseudoephedrine charge. The district court found tire defendant guilty of possession of methamphetamine, unlawful possession of codeine, and possession of drag paraphernalia, and sentenced the defendant to a controlling sentence of 11 months, suspending the sentence for 18 months of probation.
Miranda Rights
The defendant first challenges the district court’s admission of the defendant’s incriminating statements to Lippard. The defendant contends he invoked his right to remain silent during the interview outside Wal-Mart and the investigator illegally interrogated him later at the police station.
Generally, review of a motion to suppress involves a mixed question of fact and law. An appellate court reviews the district court’s factual findings for substantial competent evidence but possesses independent review of the legal determination drawn from those facts. See State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004). However, when, as here, the material facts are undisputed, the appellate court possesses unlimited review over the entire question. See State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).
Because the defendant chose not to testify at the preliminary hearing or at trial, the only testimony concerning the defendant’s alleged invocation of his right to remain silent was given by Lippard. Lippard testified that, after informing the defendant of his rights, Lippard asked whether the defendant would answer some additional questions. The defendant replied, “Not right now.”
The United States Supreme Court has held that an interrogation must cease as soon as a person in custody indicates, in any manner, a desire to remain silent. See Miranda v. Arizona, 384 U.S. 436, 474, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). However, our Supreme Court, following other United States Supreme Court precedent, has ruled the invocation of the right to remain silent cannot be ambiguous or equivocal. See State v. Holmes, 278 Kan. 603, 618-19,102 P.3d 406 (2004) (citing Smith v. Illinois, 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 [1984]).
Certainly, the defendant’s statement that he did not wish to answer the investigator’s questions “now” was unambiguous to the extent that, at the time, the defendant wished to exercise his right to remain silent. However, the statement is equivocal to the extent that it clearly leaves open the possibility that the defendant may wish to speak to the investigator at another time.
While Kansas courts have never previously had the opportunity to consider a temporal limitation upon an invocation of the right to remain silent, the Rhode Island Supreme Court has deemed that such a limitation indicates equivocation. In State v. Sabetta, 680 A.2d 927, 932 (R.I. 1996), the court held that the defendant’s statement to officers, “I don’t want to talk about it right now,” operated to limit the defendant’s invocation of his right to remain silent to the moment and was not unequivocal.
If a person has asserted a temporal limitation upon the invocation of his or her right to remain silent, an ambiguity is created as to when the investigator would be able to question the person further. When a person in custody makes an ambiguous statement which might amount to the invocation of the right to remain silent or confer with counsel, the interrogator may clarify the statement but is not constitutionally required to do so. See Holmes, 278 Kan. at 618.
Here, Lippard was not required to inform the defendant of his Miranda rights in full at the police station but could have lawfully begun his interrogation by inquiring of the defendant whether he was willing to speak to the investigator at that time. But, out of an abundance of caution here, the investigator fully explained the defendant’s rights. Had the defendant wished to extend his invocation of the right to remain silent, he could have easily indicated such desire to the investigator. Any incriminating statements of the defendant elicited during the subsequent interview with Lippard did not offend die defendant’s Miranda rights.
The district court properly denied the defendant’s initial motion to suppress on the basis of statements taken in violation of Miranda. The defendant’s constitutional rights were scrupulously observed in this case.
Second Suppression Hearing
The defendant next contends the district court erred in denying his second motion to suppress, challenging the lawfulness of the seizure and search outside Wal-Mart. The court found the issue raised within the second motion had been sufficiently raised in the preliminary hearing and the defendant’s previous motion. The defendant contends he was entitled to a separate hearing.
Although K.S.A. 22-3216(2) requires the district court to “receive evidence on any issue of fact necessaiy” to decide the basis for the motion to suppress, subsection (4) of the statute further indicates that a motion seeking to suppress illegally seized evidence should be filed prior to or during die preliminaiy hearing. Here, the defendant’s second motion was filed after the prefiminary hearing.
In Holmes, a criminal defendant challenged the district court’s refusal to grant an evidentiary hearing on a motion to suppress filed after the case had been remanded to the district court for retrial, despite additional claims not raised in the motion filed prior to the first trial. A rehearing on a motion to suppress is generally left to the sound discretion of the district court. See Holmes, 278 Kan. at 620 (citing State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 [1988]).
“ ‘Normally, . . . the motion, when made before trial, will be heard once and disposed of; however, if at trial new or additional evidence is produced bearing on the issue of substantially affecting the credibility of the evidence adduced at the pretrial hearing of the motion, . . . [K.S.A. 22-3216] authorizes reentertainment of the motion in the court’s discretion.’ ” Holmes, 278 Kan. at 622 (quoting State v. Jackson, 213 Kan. 219, 226, 515 P.2d 1108 [1973]).
Although the two situations discussed in Holmes are factually distinguishable from the present situation, we see no valid reason for not adopting an abuse of discretion standard of review of a district court’s refusal to hold an evidentiary hearing on a second motion to suppress filed after the prefiminary hearing has been held. “Discretion is abused when no reasonable person would agree with the trial court.” 278 Kan. at 620.
We understand the defendant was not relying upon additional evidence which had not previously been presented to the district court but upon the testimony offered at the prefiminary hearing. In ruling upon the second motion to suppress, the district court specifically relied upon the evidence adduced at the prefiminary hearing. The district court ruled the investigators possessed a reasonable, articulable suspicion, justifying the seizure of the defendant.
In a passing argument within his brief, the defendant suggests the failure to hold an evidentiary hearing on his second motion to suppress somehow impinged upon his due process right to a juiy. He argues the decision whether to present his case to a jury in this case was fettered with unresolved legal issues involving the admissibility of evidence. This contention possesses no legal merit. Prior to trial, the district court conclusively ruled upon the defendant’s outstanding suppression issues. Consequently, the defendant’s strategy decision to present his case to a juiy or to a judge was no different than if the district court had denied the suppression motion following a second evidentiary hearing. We fail to discern an abuse of discretion in the district court’s failure to hold a second hearing in ruling upon the defendant’s second motion to suppress under the facts of this case.
Reasonable Suspicion
In his final issue, the defendant contends the prejudice caused by the district court’s refusal to hold a second suppression hearing becomes apparent when the evidence adduced at trial is compared to the evidence presented during the preliminary hearing. We agree with the district court the evidence was substantially the same.
Nevertheless, relying upon the trial testimony, the defendant charges the initial stop of the defendant was not justified by reasonable suspicion. As previously stated, when the underlying facts are not disputed, this court possesses unlimited review of a suppression issue. See Ramirez, 278 Kan. at 404.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit the government from conducting unreasonable searches and seizures. The reasonableness of the search or seizure is defined by balancing the governmental interest against the individual’s interest to be secure from government intrusion. See Terry v. Ohio, 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 888 S. Ct. 1868 (1968).
K.S.A. 22-2402 is a codification of Terry. See State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). The statute provides:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.”
The defendant contends the investigators did not possess reasonable suspicion he had committed a crime or intended to commit a crime. In so arguing, the defendant contends the district court can consider only such evidence as Lippard possessed prior to stopping tire defendant. To the contrary, “reasonable suspicion need not be based on a law enforcement officer s own observations or knowledge, but may be based on the collective knowledge of other officers.” State v. Steen, 28 Kan. App. 2d 214, 216-17, 13 P.3d 922 (2000) (citing United States v. Hensley, 469 U.S. 221, 232-33, 83 L. Ed. 2d 604, 105 S. Ct. 675 [1985]).
Nevertheless, even if we considered only such information as might be reasonably imputed to Lippard’s actual knowledge, the evidence is much broader than suggested by the defendant. The defendant claims only the package of ephedrine or pseudoephedrine tablets purchased at Target and one box of such tablets purchased at Dillons were known to Lippard. In fact, Watkins testified he was able to see that the defendant carried at least one box of cold medicine to the check-out at Dillons, his statement in no manner limits the possibility that the defendant carried more than one box.
Furthermore, Mangels testified he obtained the register copy of the defendant’s receipt at Dillons. Therefore, presumably, Mangels knew the defendant had purchased two boxes of ephedrine or pseudoephedrine tablets at Dillons. As the evidence clearly indicates the investigators communicated with one another via cell phone, there is no reason to assume that Lippard did not know the defendant had purchased two boxes of cold medicine at Dillons.
Additionally, Lippard, himself, observed the defendant take two boxes of ephedrine- or pseudoephedrine-based cold medicine from a shelf in Wal-Mart. Shortly thereafter, Zimmerman indicated the defendant was going through the check-out line. Although Lippard did not witness the defendant purchase the boxes of ephedrine or pseudoephedrine, it is a reasonable assumption that the defendant carried the boxes taken from the shelf to the check-out.
“ ‘[W]e judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task ... is not to pigeonhole each purported fact as either consistent with innocent [conduct] or manifestly suspicious” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less tiran proof of wrongdoing by a preponderance of the evidence.” ’ ” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998) (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]; United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]).
Here, in addition to the large quantity of ephedrine or pseudo-ephedrine pills purchased the investigators knew the defendant visited three separate locations to purchase the pills, even though undisputed testimony demonstrated that Target permitted the purchase of up to three boxes, each containing 96 tablets. Moreover, the defendant drove approximately 2 miles from Target to Dillons and then drove approximately the same distance to Wal-Mart, which was located across the road from Target. Such circumstances are adequate to provide a reasonable law enforcement officer with an objective justification to stop the defendant for questioning.
The defendant further contends the search of the defendant was unjustified. The State provides no response in its brief to the defendant’s argument on this point. We acknowledge that, absent probable cause and a valid exception to the warrant requirement, a frisk of a person by law enforcement constitutes a violation of the Fourth Amendment. See State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). Furthermore, in order to justify a warrantless search on the basis of a stop and frisk, a law enforcement officer must possess a reasonable belief that his or her safety is in danger. See State v. Waddell, 14 Kan. App. 2d 129, 132, 784 P.2d 381 (1989).
Although Lippard testified he requested a pat-down search of the defendant for officer safety, this court does not need to decide whether the investigator s belief in the need for such a request was objectively reasonable here. Despite requesting a pat-down search of the defendant, such search never occurred because the defendant voluntarily emptied his pockets. Consent is a valid exception to the warrant requirement of the Fourth Amendment. See Mendez, 275 Kan. at 421.
In State v. Crowder, 20 Kan. App. 2d 117, 120, 887 P.2d 698 (1994), this court noted that whether consent to the search of a person was voluntarily given is a question of fact for the trial court. Here, the district court made no specific findings concerning the search, merely finding the search did not violate the Fourth Amendment. However, as the underlying facts of the search are relatively undisputed, this court may resolve the issue as a question of law. See Ramirez, 278 Kan. at 404.
In Crowder, the defendant voluntarily initiated contact with an officer. However, in the course of the interview, the officer stepped out of his vehicle and asked Crowder to place his hands on the vehicle so that the officer could conduct a pat-down search for weapons. Crowder “complied with [the officer s] orders to pat him down.” 20 Kan. App. 2d at 120. This court affirmed the district court’s finding the search was consensual.
Here, although the defendant was not free to leave because the investigator held his driver’s license, the defendant’s compliance with the investigator’s request for a pat-down search was not the product of coercion or duress. This record does not indicate that Lippard had drawn or even revealed his service weapon. Lippard was dressed in ordinary street clothes, even though Lippard had shown the defendant his badge when identifying himself. The record contains no inference that Lippard threatened the defendant in any manner or behaved in an intimidating manner. In short, there is no evidence the production of the items in the defendant’s pocket was other than willingness to comply with the investigator’s request. We conclude there was no violation of the Fourth Amendment.
The district court did not err in denying the defendant’s oral motion to suppress evidence obtained as a result of tire seizure of the defendant after the close of the State’s case.
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Hill, J.:
The Ronald V. Odette Family Limited Partnership (Partnership) sued AGCO Finance, L.L.C., d/b/a Agricredit Acceptance Company (Agricredit), and Sweetland-PIinson Equipment Company, Inc. (Sweetland) for conversion and negligence based on their seizure of a tractor and loader. The district court denied the Partnership’s claim by granting summary judgments to Agricredit and Sweetland, ruling that the finance company had obtained a security interest in the equipment when it was originally purchased by Ronald V. Odette. A security interest in collateral continues when it is sold to a third party unless the sale was authorized by the secured party. Since Odette later transferred ownership of the tractor and loader to the family partnership without the knowledge or consent of Agricredit, we affirm the district court’s ruling that the finance company and the equipment company that collected the machine have not converted the tractor and loader.
Case History
Ronald V. Odette purchased a Massey Ferguson tractor and loader from Jack Shields Sales and Service by signing a retail installment sales contract and security agreement. The sales contract granted the seller a security interest in both pieces of equipment. Odette indicated in the financing papers that he was engaged in an agricultural operation and that he was purchasing the equipment for his personal use in that operation. After the sale, Jack Shields Sales and Service assigned the contract to Agricredit.
The contract forms the basis of the relationship of the parties. It contained a cross-collateralization clause:
“SECURITY INTEREST Under the Uniform Commercial Code: In order to secure payment of the indebtedness contained herein and for all other amounts due or to become due hereunder and for each and every other indebtedness or obligation now or hereafter owing by the Buyer to the Seller and/or the Assignee, the undersigned Buyer hereby grants to the Seller a security interest in the above described property, including the proceeds thereof, together with all repairs, replacements and accessions now or thereafter appertaining thereto until all indebtedness is paid in full.”
Going further into the sales contract, clause 5 prohibits any transfers of ownership of the collateral without written consent by Agricredit:
“The Buyer shall keep said property free of all hens, taxes, encumbrances and seizures or levy, shall not use the same illegally, shall not damage, abuse, misuse, abandon or lose said property, shall not sell, lease or otherwise dispose of, or transfer any interest in said property or remove it out of the county or filing district in which the Buyer resides as indicated herein, without the prior written approval of tire Seller.”
Despite this prohibition in the contract, Odette transferred the tractor and loader to the Partnership. The Partnership consists of two partners: Andrew Todd Odette and the irrevocable trust of Ronald V. Odette, administered by Paul J. Odette as trustee. Ronald Odette claims now to no longer have an ownership interest in the equipment'or the Partnership.
Ultimately, Agricredit obtained a default judgment against Ronald Odette personally for $5,931.49 in 2002 in Chautauqua County District Court. Agricredit then secured a writ of special execution, which was delivered to the sheriff of Chautauqua County, directing the sheriff to seize the tractor and loader. The actual seizure of the equipment was performed by Sweetland, who was hired by Agricredit but acting at the direction of the sheriff. Neither the Partnership nor Odette moved to quash the writ of execution.
After that, the Partnership sued Agricredit and Sweetland for conversion and negligence based on the seizure of the tractor and loader. The defendants filed motions to dismiss that included affidavits and additional documentary evidence. In one affidavit, Sweetland stated that the tractor and loader were not damaged during the seizure. But the Partnership maintains there is a good faith claim that the equipment was damaged due to its being dragged onto a trailer rather than driven in reverse. Agricredit denied the Partnership’s request to pay the amount due on the tractor and loader and the amount Sweetland charged for the seizure, pending an inspection of the equipment for damage.
Treating the motions to dismiss as motions for summary judgment because matters outside the pleadings were brought up by the parties and considered by the court when ruling, the district court made the following determinations: (1) A valid security interest in the equipment was violated when Odette made the transfer; (2) the security interest continued in the equipment when it passed into the hands of the Partnership; and (3) Sweetland was acting as the sheriff s agent when it made the seizure and could not be held liable for any negligence. The district court concluded that there was no cause of action for conversion, and it granted the motions for summary judgment for both defendants.
In this appeal, the Partnership argues that the defendant’s motions were erroneously granted.
Standard of Review
We believe in this case that the district court granted summary judgment. This is disputed by the Partnership. In its letter decision, the court clearly indicated it was considering summary judgment. Treating the motions to dismiss as motions for summary judgment was correct under the circumstances. When matters outside the pleadings are presented in support of a motion to dismiss, as they were here, the district court shall treat the motion as one for summary judgment. K.S.A. 60-212(b); Dillard v. Strecker, 18 Kan. App. 2d 899, 901-02, 861 P.2d 1372 (1993), aff'd 255 Kan. 704, 877 P.2d 371 (1994).
This means we will follow the summary judgment standard of review. It 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 interferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, [an appellate court must] apply the same rules and where . . . reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
The Partnership also argues that summary judgment should not have been granted because of noncompliance with Supreme Court Rule 141 (2004 Kan. Ct. R. Annot. 199). But the Partnership fails to identify how the Supreme Court Rule was violated, except to say that further discovery should have been allowed. The technical portion of Supreme Court Rule 141 makes no such provision for further discovery but does provide:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra.)”
Agricredit’s and Sweetland’s motions to dismiss complied with the Supreme Court Rule. They contained separately numbered paragraphs that set out the uncontroverted contentions of fact with references to the depositions and other extraneous material. On the other hand, the Partnership’s responses did not comply with the Supreme Court Rule. They did not set out, in correspondingly numbered paragraphs, a statement as to whether the factual contentions were controverted. The responses to both motions were solely legal arguments.
For example, in response to Sweetland, the Partnership argued that there was liability for negligence despite Sweetland’s being an agent of the sheriff. In response to Agricredit, the Partnership argued there was liability for conversion because Odette did not have a personal interest in the secured propérty. These arguments did not challenge the factual basis for summary judgment. The only fact in dispute was the possible damage to the equipment. That fact was rendered immaterial due to the legal issues and was not a legitimate basis for further discovery.
Incomplete discovery was no reason for the district court to find a violation of Supreme Court Rule 141 and deny summary judgments. When a respondent cannot suggest any additional facts sup porting the party’s position and has only the hope that discovery will reveal favorable evidence, summary judgment is proper. In re Application for Incorporation as City, 241 Kan. 396, 406, 736 P.2d 875 (1987) (citing Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan 95, 97, 490 P.2d 615 [1971]). If there were facts that could have strengthened the Partnership’s claim, even those that needed further discovery, they should have been alleged in its responses to the motions to dismiss.
Analysis
We conclude there are no issues of material fact in conflict. There was a dispute over the original basis for the judgment in the 2002 case. The district court’s letter decision indicated that it was based on Odette’s unauthorized transfer of the tractor and loader. In the transcript of the hearing, counsel for the Partnership indicated that it was based on the sale of a hay bailer. Agricredit and Sweetland do not allege either in their motions to dismiss.
Either way, it does not matter because of the sales contract and security agreement. Neither party disputes that the 2002 case caused Odette to become indebted to Agricredit for a default judgment. The contract contained a cross-collateralization clause that created a security interest in the equipment for the purchase price and “every other indebtedness or obligation now or hereafter owing by the Buyer to the Seller and/or the Assignee.” The Partnership does not contest the validity of this clause or the assignment to Agricredit on appeal. Even if the judgment debt to Agricredit was for a hay baler, Agricredit could look to the tractor and loader as collateral to satisfy the judgment.
The remaining legal question is whether Agricredit and Sweet-land were entitled to attach the secured property after Odette transferred it to a third party. In order to establish a claim of conversion, the plaintiff must prove that the defendant’s exercise of ownership over the chattel is unauthorized. See Moore v. State Bank of Burden, 240 Kan. 382, 386, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). Agricredit and Sweetland claim they were authorized to seize the equipment by the security interest.
A security interest continues in collateral notwithstanding sale or other disposition unless the disposition was authorized by the secured party. K.S.A. 2004 Supp. 84-9-315; Farmers State Bank v. Production Cred. Ass’n of St. Cloud, 243 Kan. 87, 98, 755 P.2d 518 (1988). The effects that this rule produces are mitigated by other provisions of the Kansas Uniform Commercial Code (UCC). First, buyers in the ordinary course of business take free of prior security interests. K.S.A. 2004 Supp. 84-9-320. Second, K.S.A. 84-2-312(b)(2) protects the buyer with a warranty that goods shall be delivered free from any security interests.
The equipment was transferred by Ronald Odette to a partnership in his name, with an irrevocable trust in his name as one of tire partners. The other partner and trustee are members of the Odette family. Based on the record, it is highly likely that the Partnership did not act in good faith and was aware that the equipment was subject to Agricredit’s security interest. Even if there was good faith, Odette was in the business of farming, not selling farm equipment. Therefore, the Partnership was not a buyer in the ordinary course of business and it took the equipment subject to the security interest.
The parties may determine the standards for default in their sales agreement. K.S.A. 2004 Supp. 84-9-603. Clause 7 of the sales contract contained the following language: “If the Buyer . . . fails to comply with any terms hereof . . . the Seller shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code and may, without notice, enter any premises where said property may be and take possession thereof and remove the same[.]” Upon default, the UCC allows a secured party to enforce the security interest by any available judicial procedure. K.S.A. 2004 Supp. 84-9-601(a)(1).
By violating an express prohibition against selling the equipment, Odette was in default. Agricredit assumed the equipment still belonged to Odette when in fact it had been transferred to the Partnership. Nevertheless, the security interest continued in the tractor and loader. The writ of execution issued by a district court was a proper judicial procedure available to peacefully retrieve the collateral. As the seizure of the property was authorized by law, an essential element of the conversion claim was missing. Therefore, Agiicredit and Sweetland were entitled to summary judgments as a matter of law.
The Partnership makes two arguments against this conclusion. First, it argues that Agricredit never foreclosed on the note and security interest in the tractor and loader. Article 9 of the UCC does not require a strict foreclosure procedure but rather gives the secured party the right to pursue the claim, the collateral, or any other remedy allowed by law. K.S.A. 2004 Supp. 84-9-601. To foreclose, the secured party may even take possession of the collateral without judicial process, so long as they commit no breach of the peace. K.S.A. 2004 Supp. 84-9-609(a)(2). When Agricredit obtained its judgment against Odette and issued the writ of special execution, it followed the proper procedures allowed by the UCC, Article 9. Therefore, a failure to foreclose did not make the seizure unauthorized.
Secondly, the Partnership seems to argue the seizure became unauthorized after it made an offer to settle Odette’s debt. It asserts that Agricredit’s authorization to seize was limited to the amount of the debt and the value of equipment may have exceeded the debt. Therefore, Agricredit’s exercise of ownership became unlawful and a conversion occurred when it refused to accept payment. The Partnership cites no authority for this proposition. It is noteworthy that the offer to settle the debt came after the equipment was seized. To accept the Partnership’s argument, this court would have to conclude that the seizure was initially unauthorized — therefore a conversion — because the debtor or his assignee was later willing to settle. If this were true, every seizure of property for indebtedness could arguably be unauthorized and risk possible tort liability for the creditor.
Although the UCC grants a right of redemption of collateral to a debtor, it cannot be the basis a for a conversion claim in this case. The right of redemption may be exercised anytime before a secured party has collected, disposed, or accepted the collateral in full or partial satisfaction of the debt. K.S.A. 2004 Supp. 84-9-623. Liability for the breach of the secured party’s duties under the UCC is provided for by the UCC itself, and that breach is not actionable as a conversion. Gillenwater v. Mid-American Bank & Tr. Co., 19 Kan. App. 2d 420, 426, 870 P.2d 700 (1994). The record is unclear as to how much equity remained in the equipment and whether Agricredit accepted the equipment in full satisfaction of the debt. These might have been issues of material fact in a suit alleging a violation of rights created by tire UCC. However, the only relevant question here is whether the district court correctly dismissed the conversion claim. Even if there was a violation of the UCC and the Partnership was denied the opportunity to redeem its collateral (tire equipment), the seizure itself was authorized and the granting of summary judgments was proper.
Turning to the negligence claim, the Partnership contends the equipment here was possibly loaded in a negligent manner during the execution of the writ of execution. Negligence requires a duty owed by a defendant to a plaintiff, a breach of that duty, and the breach must be the proximate cause of the plaintiff s damages. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). The Partnership contends that the question of breach is factual, therefore presenting an issue of material fact that justifies remand. But the existence of a duty must be determined before the question of breach. Whether any duty exists at all is a legal question giving this court unlimited review. See 255 Kan. at 831.
We believe that there was no duty owed by Sweetland to the Partnership. If tire tractor and loader was damaged during loading, then the party harmed was Agricredit, not the Partnership, because Agricredif s claim to the equipment was superior to that of tire Partnership. With no duty, there can be no negligence claim. The summary judgments were proper under these circumstances.
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Greene, J.:
The Boeing Company and its insurer, Aetna Casualty & Surety Co., appeal an award of medical benefits to Anthony K. Logsdon, arguing that his non-work-related injuiy more than 10 years after his original compensable injuiy was not the natural and probable consequence of the earlier injury and the postaward medical expenses should not have been compensable. Concluding that substantial competent evidence supports the administrative law judge and Workers Compensation Board, we affirm Logsdon s award for postaward medical expenses.
Factual and Procedural Background
Logsdon suffered an injury to his left shoulder in the course of his employment with Boeing on November 1, 1993. The administrative law judge (ALJ) determined Logsdon’s injury resulted in 15% permanent partial impairment of function to the left shoulder and he was entitled to 65 weeks of temporary total disability at the rate of $313 per week followed by 24 weeks at the rate of $313 per week, totaling $27,867. The ALJ decided Logsdon was “entitled to future medical treatment only upon proper application to the Workers Compensation Director.”
After the original injury, Logsdon underwent two surgeries by Dr. Lesko and Dr. Harry Morris. He saw Dr. Morris for treatment in August 1995 for the last time; however, his shoulder was still sore but functional. Logsdon had work restrictions and his shoulder got sore after he elevated the arm, or became swollen because of the weather. Logsdon stated that his shoulder improved after the surgery but it never got back to full potential and caused him ongoing problems on a monthly basis.
Logsdon continued working for Boeing until September 2003, when he took a job at Prairie Rose, working on a cattle ranch and a supper club. Logsdon could perform all his duties at Prairie Rose, which included taking care of cattle, serving dinners, and mowing the lawn, and he did not seek any medical treatment for his shoulder problems.
On January 31, 2004, Logsdon stepped out the door of his home with a can of dog food in his right hand to feed his dogs. The ground was slick, he slipped, and he threw his arms up in the air trying to catch his balance. When he fell on the ground, landing on his right side, he flung his left arm out to maintain balance, and dislocated his left shoulder. Logsdon felt tire same pain in his left shoulder as he had felt after the original accident in 1993; the shoulder was sore and weak. The next day, on February 1, 2004, Logsdon reached out to grab the door handle of his truck to close the door and dislocated his left shoulder again. Logsdon experienced further dislocation of his shoulder, but each time it went back into place without medical treatment.
In April 2004, Logsdon filed an application for postaward medical benefits resulting from the injury. The special administrative law judge (SALJ) ordered an independent medical evaluation by Dr. Philip Mills. Dr. Pedro Murati also conducted a medical evaluation at the request of Logsdon’s attorney.
After reviewing Logsdon’s medical and personal history and performing a physical examination of Logsdon, Dr. Murati concluded Logsdon’s “current diagnoses are within all reasonable medical probability a direct result from the work-related injury that occurred on November 1, [1993] during employment with Boeing.” Dr. Mills agreed, stating:
“[T]his is a but-for situation in which if [Logsdon] would not have had an injury in’93, . . . he would not have had the injury which he sustained from a relatively trivial — although it wasn’t in the ordinary course of events — but a trivial slip and fall, threw his arms up, that in and of itself wouldn’t have caused an injury in a normal person.”
Dr. Mills stated Logsdon did not have a normal or near normal shoulder because of underlying shoulder problems caused by the original accident in 1993; Dr. Mills found it significant that he experienced soreness in his shoulder on a monthly basis between 1995 and January 2004. Dr. Mills testified he would not comment on causation as a legal issue; however, his report stated that “this is the natural and probable consequence of this prior left shoulder injury and . . . there is not a new injury in that sense of the term for causation purposes.”
The SALJ allowed Logsdon’s application of postaward medical benefits in the amount of $4,185.90. Boeing and Aetna filed an application for review by the Board. The Board found the SALJ’s award was supported by uncontroverted medical evidence and that Logsdon’s injuries were a direct and natural result of the original compensable injury. Boeing and Aetna appeal.
Standard of Review
The interpretation of statutory provisions in the Workers Compensation Act is a question of law. Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board’s inter pretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004). The question of whether an injury is compensable is one of law, and an appellate court’s review is de novo. Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 356, 995 P.2d 855 (2000).
Whether an injury is a natural and probable result of previous injuries is generally a fact question. Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 195, 820 P.2d 719, rev. denied 250 Kan. 808 (1991). Where the Board’s finding of compensable injury is based in part on a finding of fact, we review to determine whether any such finding is supported by substantial competent evidence. In doing so, it is necessary to determine whether tire record contains any evidence which tends to support the judgment rendered, viewing all testimony in the light most favorable to the party prevailing below. See Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001).
Did the Board Err in Its Award of Postaward Medical Treatment to LogsdonP
Boeing and Aetna contend that the Board misapplied the legal standard for compensability of postaward medical benefits. Both parties concede that this case is controlled by the rule first established by our Supreme Court in Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (1972), sometimes called the “direct and natural consequence rule” or the “direct and natural result rule.” As fully stated by the court in Jackson,
“[w]hen a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” 208 Kan. 637, Syl. ¶ 1.
The rule has proven easier in its statement than in its application. The tension in our appellate decisions is best demonstrated by contrasting Jackson with Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973), where only 1 year after Jackson, Justice Owsley (who also wrote the court’s opinion in Jackson), stated that the rule in Jackson was to be “limited.”
“The rule in Jackson is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in instant case. The rule in Jackson would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” 211 Kan. at 263.
Since Jackson and Stockman, our courts have struggled to understand and consistently apply the rule. The more straightforward situations are those where a primary injury itself causes subsequent further injury to the same or other body parts; in these cases there is usually no “intervening” trauma or accident and the subsequent claim is allowed. See, e.g., Nance v. Harvey County, 263 Kan. 542, 952 P.2d 411 (1997); Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977); Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 548 P.2d 746 (1976). These cases should not be confused with the tougher cases, where some intervening accident or trauma has aggravated a prior injury; as noted by the Board here, these cases make it “difficult to discern . . . consistent criteria.”
Although not intended to be exhaustive, the following reported cases have allowed compensability for a subsequent injuiy that is a “direct and natural consequence” of a primary injuiy, despite an intervening accident or trauma: Frazier v. Mid-West Painting, Inc., 268 Kan. 353 (claimant’s subsequent injury was aggravation of an old preexisting back injury while participating in medical treatment programs for a compensable injury to his right forearm and shoulder); Roberts v. Krupka, 246 Kan. 433, 790 P.2d 422 (1990) (where court “expanded” the rule holding that any additional injury arising from medical malpractice in the treatment of the primary injury is compensable); Gillig v. Cities Service Gas Co., 222 Kan. 369, 564 P.2d 548 (1977) (2 years after initial injury to knee, claimant stepped from tractor and knee locked up).
In contrast, the following reported cases have denied compensability for a subsequent injury on the ground that it resulted from a new and separate accident: Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188 (where original injuiy was broken knee, and knee “gave way” while lifting heavy crate 30 days after return to work; denied despite evidence knee tended to “give way” and treating physician had warned could “give way” in the future); Graber v. Crossroads Cooperative Ass’n, 7 Kan. App. 2d 726, Syl., 648 P.2d 265, rev. denied 231 Kan. 800 (1982) (after original back injuiy had healed and been fused, claimant slipped and broke part of the fusion during his fall; court said “a distinct trauma-inducing event out of the ordinary pattern of life and not a mere aggravation of a weakened back”).
Although it would be ideal if we could reconcile these authorities, we are unable to do so; we share the Board’s frustration in discerning consistent criteria for the application of the rule. Nevertheless, our examination of the cases has assisted us in discerning two reasons to affirm the Board’s award to Logsdon: (i) because the ultimate question is one of fact, our standard of review requires that we defer to tire Board where its determination of compensability or noncompensability is supported by substantial competent evidence (see Stockman, 211 Kan. at 263); and (ii) where the initial or primary injury has not yet healed, the precipitating cause of reinjury is irrelevant (see discussion of Gillig in Graber, 7 Kan. App. 2d at 728).
Boeing and Aetna cite both Stockman and Graber in support of their argument that the Board here attempted to create a “trivial” accident exception to the rule of these cases. We disagree. No medical testimony supported Boeing and Aetna’s view of the “new” injury. Although one of the testifying physicians may have characterized the subsequent trauma as “trivial,” it is clear from the following statements that the Board applied the correct legal standard and that the evidence fully supported the award.
“Two physicians have evaluated claimant and both have testified that ‘but for’ the underlying accident, claimant would not have sustained this shoulder dislocation. Dr. Mills testified that the slip-and-fall was a ‘trivial’ new event, and that he believed the claimant’s shoulder dislocation was a ’natural and probable’ result of the 1993 accident. Likewise, Dr. Murati viewed the 2004 left shoulder dislocation as an event that would not have occurred had he not sustained the underlying shoulder injury in 1993. He further testified that claimant’s ongoing symptoms reveal that claimant had not completely healed from the 1993 accident.
“Eveiy natural consequence of a compensable injury is also compensable, even a new and distinct injury, if it is a direct and natural result of die original compensable injuiy.”
In summary, there was substantial competent evidence supporting the Board’s conclusion that Logsdon’s subsequent injury was the natural and probable consequence of his prior injury. That same evidence is unequivocal in suggesting that there was no new injury. Because Logsdon’s prior injuiy had never fully healed, his aggravation of that same injuiy by a subsequent non-work-related accident was the natural consequence of his original injury and his postaward injury was compensable. See Gittig v. Cities Service, 222 Kan. at 372.
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Malone, j,:
Aramark Corporation (Aramark) and Bankers Standard Insurance (Bankers) appeal the decision of the Workers Compensation Board (Board) to remand Evangelina Grajeda’s lump sum settlement award to the administrative law judge (ALJ) for further consideration. Aramark and Bankers claim the Board lacked jurisdiction to review Grajeda’s settlement award. They further claim that even if the Board had jurisdiction to consider Grajeda’s appeal, the settlement hearing complied with the provisions of tire Workers Compensation Act and the Board should have approved the settlement.
When this appeal was filed, this court issued an order directing the parties to show cause why this appeal should not be dismissed for lack of appellate jurisdiction because the agency proceedings were not final. All parties responded to the show cause order and requested this court to retain jurisdiction of the appeal in light of the fact that the Board’s jurisdiction to review tire settlement award was being challenged. On May 12, 2005, this court entered an order to retain the appeal “for the purpose of reviewing whether the Board exceeded its statutory authority by accepting jurisdiction over the approved settlement.”
We conclude the Board possessed statutory authority to review Grajeda’s lump sum settlement award. However, the remainder of the appeal is dismissed because the Board’s decision to remand the settlement award to the ALJ for further consideration is not ripe for judicial review.
Factual and procedural background
Grajeda sought workers compensation benefits for injuring her upper back and left arm. Drs. C. Reiff Brown and Paul S. Stein concluded that she suffered a 5% whole body impairment based on tire injuiy. Grajeda and her employer, Aramark, negotiated a one-time lump sum settlement of $5,000. Part of the settlement worksheet read:
“This is full and final settlement of all claims arising out of claimant’s accident on 08/11/03 and each and every working day thereafter. This settlement is agreed by all parties to constitute a K.S.A. 44-531 complete and full redemption. Claimant waives formal notice of this hearing and believes it is in his/her best interest to receive this settlement in one lump sum.”
On July 27, 2004, a settlement hearing was held before the ALJ. Grajeda was represented by counsel and assisted by an interpreter. The ALJ asked Grajeda several questions regarding her rights:
“[ALJ]: You have certain rights under the workers compensation laws that I am required to explain, die first of which is you understand that you do have a right to litigate this case, and you could go ahead and present evidence to a judge, who would dien issue a decision which may give you more, may give you less than what is being offered today. Do you understand?
“[Grajeda]: Yes.
“[ALJ]: And you also understand that if a decision was issued and you weren’t satisfied with that decision, you would have a right to file an appeal, understand?
“[Grajeda]: Yes.
“[ALJ]: And finally you understand that if a decision was issued and then if at some time in the future you felt your physical condition had materially changed and you could relate that change to this date of accident, you would have a right to go back to the judge who issued the previous decision, ask him to review it and perhaps modify it in your favor; do you understand?
“[Grajeda]: Yes.
“[ALJ]: To put it in simple language, they are offering you $5,000. If you accept that amount of money today that is all the money you will receive as a result of this injury and you cannot come back tomorrow or any time in the future and ask for more money, more medical treatment or any other benefits of any kind under the workers compensation laws as it pertains to this injury. Do you understand?
“[Grajeda]: Yes.
“[ALJ]: Knowing that you are giving up those rights, do you still wish to have this settlement approved?
“[Grajeda]: Yes.”
The ALJ approved the settlement after reviewing the settlement worksheet and concluded that it was “fair, just and reasonable.” At the settlement hearing, counsel for Aramark and Bankers presented a $5,000 settlement check to Grajeda’s attorney. After the hearing, Grajeda obtained a new attorney and applied to have her lump sum settlement reviewed by the Board. As part of her application, Grajeda indicated that she had not negotiated the check given to her by Aramark and Bankers.
In her memorandum to the Board, Grajeda argued the ALJ failed to comply with K.S.A. 44-531(a) because he did not expressly find the lump sum payment was in Grajeda’s best interest. She also claimed the ALJ violated administrative regulations designed to ensure that Grajeda fully understood the medical evidence regarding her disability. Aramark and Bankers argued the Board had no jurisdiction to review Grajeda’s lump sum settlement award. In the alternative, Aramark and Bankers argued Grajeda received a proper settlement hearing and her lump sum settlement award should be approved.
The Board concluded it had jurisdiction to review Grajeda’s settlement award. However, tire Board neither approved nor set aside the settlement. Instead, the Board concluded:
“Claimant’s attack on the Settlement Award has raised issues that were not addressed at the administrative law judge level. Accordingly, the parties should be afforded tire opportunity to compile an evidentiary record to support their legal theories. Consequently, this claim should be remanded to an administrative law judge for further delineating the issues, setting the parties’ terminal dates for taking evidence, and decision.”
The Board remanded Grajeda’s claim to the ALJ for the parties to present evidence and for the ALJ to address Grajeda’s request to set aside the settlement award. Aramark and Bankers appeal the Board’s decision.
Did the Board have jurisdiction to hear the appeal?
Aramark and Bankers claim the Board did not have jurisdiction to hear Grajeda’s appeal. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
K.S.A. 2005 Supp. 44-551(b)(1) provides in part:
“All final orders, awards, modification of awards, or preliminary awards under K.S.A. 44-534a and amendments thereto made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days.”
When a statute is unambiguous, the appellate courts will not speculate as to the legislature’s intent nor, will they add something not readily found in the statute. State v. Thrash, 267 Kan. 715, 716-17, 987 P.2d 345 (1999). K.S.A. 2005 Supp. 44-551(b)(1) clearly provides the Board with jurisdiction to review final orders and awards made by an ALJ. There is no dispute that a lump settlement qualifies as a final order or an award. Thus, in the absence of contrary authority, 44-551(b)(1) provided the Board with jurisdiction to review Grajeda’s settlement award.
Aramark and Bankers argue that K.S.A. 2005 Supp. 44-551(b)(1) must be read in conjunction with K.S.A. 44-531(a), dealing with lump sum settlements, which provides:
“(a) Where all parties agree to the payment of all or any part of compensation due under the workers compensation act or under any award or judgment, and where it has been determined at a hearing before the administrative law judge that it is for the best interest of the injured employee or the dependents of a deceased employee, or that it will avoid undue expense, litigation or hardship to any party or parties, the administrative law judge may permit the employer to redeem all or any part of the employer’s liability under the workers compensation act by the payment of compensation in a lump sum, except that no agreement for payment of compensation in a lump sum shall be approved for nine months after an employee has returned to work in cases in which the employee, who would otherwise be entitled to compensation for work disability, is not entitled to work disability compensation because of being returned to work at a comparable wage by the employer who employed the worker at the time of the injury giving rise to the claim being settled. . . . Upon paying such lump sum the employer shall be released and discharged of and from all liability under the workers compensation act for that portion of the employer’s liability redeemed under this section.’’ (Emphasis added.)
Contrary to the assertion of Aramark and Bankers, K.S.A. 44-531(a) does not limit the Board’s jurisdiction to review a lump sum settlement award. The statute only provides that an employer is released from liability upon paying a lump sum settlement to an employee. The legislature’s intent that an employer be released from liability after payment of a lump sum settlement does not necessarily mean that the legislature also intended to prohibit review by the Board. Grajeda presents a strong argument that the legislature intended to subject lump sum payments to review because their settlement approval is thoroughly regulated. Among other things, K.S.A. 44-531(a) requires an ALJ to either determine that a lump sum settlement is in the claimant’s best interest or determine that the settlement would avoid undue expense and litigation. The statute also prohibits approval of lump sum settlements until the employee has returned to work for 9 months because if the employee has returned to work at a comparable wage, the employee is not entitled to work disability compensation. Under Aramark and Bankers’ interpretation of the statute, an ALJ could ignore the strict requirements of a settlement hearing under K.S.A. 44-531(a) but not be subject to any review by the Board.
Aramark and Bankers also point to K.S.A. 44-528(a), which provides in part:
“Any award or modification thereof agreed upon by the parties, except lump-sum settlements approved by tire director or administrative law judge, whether the award provides for compensation into the future or whether it does not, may be reviewed by the administrative law judge for good cause shown upon the application of the employee, employer, dependent, insurance carrier or any other interested parly.”
This section provides that lump sum settlement awards are exempt from further review and modification by the ALJ. The provision does not address review by the Board and is therefore inapplicable to Grajeda’s case.
Finally, Aramark and Bankers argue that Grajeda waived her right to appeal by agreeing to the lump sum settlement. They cite several cases for the proposition that, absent bad faith, neither party may repudiate a settlement. The cases are easily distinguished by the fact that they do not deal with the Workers Compensation Act or jurisdiction under the Act. Whether Grajeda is allowed to repudiate her settlement agreement is irrelevant to the issue of jurisdiction. Subject matter jurisdiction, the power of a court or agency to hear and decide a case, may not be waived by a party. See In re Estate of Wolf 32 Kan. App. 2d 1247, 1250, 96 P.3d 1110 (2004), aff'd 279 Kan. 718, 112 P.3d 94 (2005) (citing Labette Community College v. Board of Crawford County Comm'rs, 258 Kan. 622, 626, 907 P.2d 127 [1995]).
In summary, K.S.A. 2005 Supp. 44-551(b)(1) provided the Board with statutory authority to review Grajeda’s lump sum settlement award after it had been approved by the ALJ. The Board did not err in finding that it had jurisdiction to consider Grajeda’s appeal.
Did the Board err by remanding the case to the ALJP
Aramark and Bankers claim that even if the Board did have jurisdiction to hear Grajeda’s appeal, the settlement hearing complied with the provisions of the Workers Compensation Act and the Board should have approved the settlement award. In response, Grajeda claims the settlement hearing was deficient in three respects. First, Grajeda claims the ALJ failed to expressly find that the lump sum settlement was in Grajeda’s best interest, as required by K.S.A. 44-531(a). Second, she claims the ALJ failed to comply with K.A.R. 51-3-9, which requires a claimant to testily that he or she has read the medical reports introduced as evidence at the settlement hearing, or has had the reports read to him or her, and that the claimant fully understands the medical evidence regarding disability. Finally, Grajeda claims the settlement should not have been approved because the ALJ failed to determine whether Grajeda had been back to work for more than 9 months, as required by K.S.A. 44-531(a).
After considering Grajeda’s appeal and hearing arguments from both sides, the Board neither approved nor set aside Grajeda’s lump sum settlement award. Instead, the Board remanded Grajeda’s claim to an ALJ for the parties to present evidence and for the ALJ to address Grajeda’s request to set aside the settlement award. Both sides are now requesting this court to address the merits of whether Grajeda’s claim should be approved or set aside. We decline to do so without a final order from the agency. Clearly, it would be premature for this court to address the merits of the substantive claims. The parties should first be allowed to compile an evidentiary record for the ALJ to address Grajeda’s request to set aside the settlement award. The ALJ’s decision will tíren be subject to review by the Board. Once the Board has entered a final order, the issue will be ripe for appellate review. See Williams v. General Electric Company, 27 Kan. App. 2d 792, 793, 9 P.3d 1267 (1999) (order remanding for further factual findings by an administrative agency is not appealable in the absence of exceptional circumstances).
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Caplinger, J.:
Orvey Cousatte brought this action in die district court seeking imposition of a constructive trust on the home of Viola Caroline Lucas, who was the beneficiary of a trust created by Cousatte’s deceased half-sister, Imogene Collier. Cousatte alleged that because Lucas exercised undue influence over Collier in the execution of Collier’s trust, and because Lucas’ home was purchased with proceeds traceable to assets from that trust, Cousatte was entitled to the imposition of a constructive trust on Lucas’ home. The district court denied Cousatte’s request.
We hold that Cousatte failed to identify, much less prove, the fraud which is a necessary prerequisite to imposition of a constructive trust. We thus hold that under the circumstances of this case, the district court did not abuse its discretion in denying Cousatte’s request for imposition of a constructive trust.
The procedural history of this case is extensive and complex and includes a previous district court action by Cousatte alleging undue influence by Lucas; an appeal to this court of the district court’s decision in favor of Lucas; a remand from this court; a decision by the district court following remand in favor of Cousatte; an appeal by Lucas to this court; a decision by this court affirming the district court’s decision on remand; a bankruptcy action filed by Lucas; an adversary proceeding filed by Cousatte in that bankruptcy action; an appeal to the appellate bankruptcy court by Cousatte from the decision of the bankruptcy court in the adversary proceeding; a remand by the appellate panel; and, on remand to the bankruptcy court, a finding in favor of Lucas in the adversary proceeding in bankruptcy.
As will be seen, this procedural history is relevant to a determination of the issues in this appeal. Thus, we have set that history forth below in some detail.
Factual and procedural background
Imogene Collier spent most of her adult life living with her husband, Glenn Collier, and Imogene’s unmarried sister, Norma Lee Cousatte. Imogene was characterized as “slow,” could not drive a car, and essentially was cared for by Glenn and Norma Lee. After Glenn’s death in 1994, Norma Lee took over Imogene’s care.
When Norma Lee died in July 1996, Imogene’s condition deteriorated rapidly. Imogene’s neighbor, Viola Carolyn Lucas, cared for Imogene by driving her to the grocery store, helping her shop, writing checks, and taking her to appointments.
During this time period, Imogene added Lucas as a joint tenant to her bank accounts. Imogene spoke with a bank officer and filled out a worksheet indicating she wanted to leave her property to various cousins, nieces, and nephews. The worksheet did not include Imogene’s half-brother, Orvey Cousatte, as a beneficiary of her estate. Imogene told the bank representative that she wanted Lucas to handle her affairs.
In September 1996, Imogene met with an attorney recommended by the bank to draft a will and trust. Imogene told the attorney that she would like Lucas to inherit her estate. According to the attorney, Imogene was alert and able to understand her actions when she signed the will and trust.
Imogene died at age 77 on February 19, 1997. In March 1997, Orvey Cousatte brought an action to have Imogene’s will and trust set aside as the product of Lucas’ undue influence. At the conclusion of the trial, the district court found Imogene had testamentary capacity to execute the will and trust and that a fiduciary relationship existed between Imogene and Lucas. The court further determined that based upon the evidence before it, Cousatte had not made a prima facie showing of undue influence. Nevertheless, the district court concluded it was immaterial whether undue influence occurred because Cousatte was not contemplated as a beneficiary of the will.
Cousatte I
Cousatte appealed the district court’s ruling to this court but did not seek a supersedeas bond or a stay pending appeal. Thus, while the matter was on appeal to this court, Lucas sold Imogene’s home and applied the proceeds to pay off the mortgage on her own home. Lucas then sold her home and used the proceeds to purchase a new residence. The parties have stipulated that $77,273.06 of tire proceeds from the sale of Imogene’s home can be traced to Lucas’ new residence.
In Cousatte v. Lucas (Cousatte I), No. 80,637, unpublished opinion, filed January 21, 2000, this court reversed the district court and remanded for tire district court to make findings pursuant to Logan v. Logan, 23 Kan. App. 2d 920, 937 P.2d 967, rev. denied 262 Kan. 962 (1997). Specifically, the trial court was directed to determine whether “suspicious circumstances” existed regarding the execution of Imogene’s will and trust. If so, the trial court was directed to determine whether Lucas rebutted the presumption of undue influence. Cousatte I, Slip op. at 4.
Cousatte II
On remand, the district court issued its findings based upon the evidence presented at the December 1997, trial. The district court found suspicious circumstances surrounded the relationship between Collier and Lucas, and Lucas failed to rebut the presumption of undue influence established by those circumstances. The court thus concluded the will and trust were null and void, and set aside any conveyances made by Imogene to the trustees. The district court further ordered that all personal and real property-owned by Imogene at the time of her death be transferred to Cousatte as administrator of the estate. Further, the court ordered that certain itemized property, or the proceeds thereof, be delivered to Cousatte.
Lucas appealed, arguing the district court was precluded from modifying its original factual determination that there had been no undue influence. In Cousatte v. Lucas (Cousatte II), No. 86,463, unpublished opinion, filed March 1,2002, this court concluded tire district court had followed the mandate of this court and its findings were supported by substantial competent evidence. Cousatte II, Slip op. at 6.
Adversary proceeding in bankruptcy action
On May 7, 2001, while Cousatte II was pending in this court, Lucas filed for bankruptcy. The bankruptcy was filed in response to Cousatte’s attempt to enforce the judgment he received following this court’s remand to the district court. Cousatte commenced an adversaiy proceeding in the bankruptcy court arguing Lucas’ conduct in procuring the will and trust and in disposing of the trust assets during the first appeal constituted fiduciary fraud, embezzlement or larceny, or willful and malicious injury. As such, Cousatte sought a finding from the bankruptcy court that the debt owed to him by Lucas was excepted from discharge pursuant to 11 U.S.C. § 523(a)(4) and (a)(6) (2000). Cousatte also sought affirmative relief from the bankruptcy court in the form of a constructive trust upon Lucas’ homestead and vehicle.
In a memorandum opinion dated December 5, 2002, the bankruptcy court divided the relevant time period into two segments: the debtor’s conduct prior to Imogene’s death when the undue influence allegedly occurred, and the debtor’s conduct between the entiy of the first state court judgment and this court’s reversal and remand in Cousatte I. With respect to the first time period, the bankruptcy court considered whether the state court’s finding of a presumption of undue influence was equivalent to fiduciary fraud under § 523(a)(4) or malicious damage to property interest under § 523(a)(6). The court concluded collateral estoppel did not apply because there was no “identity of issues” — i.e., the existence of a “fiduciary relationship” for the purposes of undue influence did not meet the “technical trust” requirements for a fiduciary relationship under § 523(a)(4). Slip op. at 13.
Regarding Lucas’ conduct during the pendency of the first appeal, the bankruptcy court held Cousatte failed to establish embezzlement or larceny under Section 523(a)(4) or (6) because when Lucas liquidated the trust fund assets, she had a valid state court judgment permitting her to do so. The court also found the collateral estoppel effect of the undue influence judgment afforded no basis from which to find a willful injury under § 523(a)(6) because Cousatte was not a beneficiary under either the will or trust and, thus, there was no evidence that Lucas intended to injure Cousatte or his rights as a lawful heir. Finally, the court concluded that because the debt was not excepted from discharge, it was unnecessary to reach the constructive trust issue. The bankruptcy court thus dismissed Cousatte’s adversaiy proceeding. Slip op. at 17.
Appeal of adversary ruling
Cousatte appealed the bankruptcy court’s ruling to the Tenth Circuit’s Bankruptcy Appellate Panel (BAP). The BAP affirmed the bankruptcy court’s dischargeability ruling, but remanded the case for consideration of whether Lucas held any property in constructive trust. In re Lucas, 300 B.R. 526, 534 (Bankr. 10th Cir. 2003). The BAP reasoned that if the property was subject to a constructive trust, it was not property of the bankruptcy estate because Lucas held only legal, rather than equitable, title to the property. 300 B.R. at 533-34.
The BAP concluded the bankruptcy court erred when it determined that because the debt was dischargeable, it need not address the issue of whether a constructive trust had been imposed. In re Lucas, 300 B.R. at 534. The BAP remanded the case to the bankruptcy court to “either resolve the constructive trust issue with further findings, or, if it determines that the issue is not properly before it, dismiss it without prejudice.” 300 B.R. at 534.
Remand to bankruptcy court
In a decision dated March 2, 2004, the bankruptcy court stated the issue on remand as whether “this Court should declare that the property (i.e., a house and a car) acquired by Lucas with assets and proceeds of Collier’s estate is held by Lucas in constructive trust for Collier’s heirs at law.” In re Lucas, 307 B.R. 703, 705 (Bankr. D. Kan. 2004).
The bankruptcy court held that it lacked jurisdiction to impose a constructive trust because Cousatte failed to object to Lucas’ exemption of her home and vehicle; thus, whatever interest Lucas had in these items was no longer part of the bankruptcy estate. The court noted, however, that even if it did have jurisdiction, it would not find a constructive trust because the final and nonappealable state court judgment contained no reference to the declaration or imposition of a constructive trust, and the bankrutpcy court could not modify the state court’s judgment by imposing the additional remedy of a constructive trust to the existing judgment. Further, the court held the evidentiary record before the court was insufficient to find the fraud or constructive fraud required to im pose a constructive trust under Kansas law. In re Lucas, 307 B.R. at 707-709.
Finally, the bankruptcy court ruled that because Lucas’ debt to Cousatte was permanently discharged, Cousatte was permanently enjoined from taking any action against Lucas in personam. However, because Lucas’ home and vehicle were exempt under 11 U.S.C. § 522(1) (2000), the court found they were no longer protected by the discharge injunction and in rem relief might be available under state law. The bankruptcy court declined to express an opinion concerning the prospective merits of any such action. In re Lucas, 307 B.R. at 709.
Quiet title action
Before discussing the instant appeal, and for the sake of a complete recitation of the procedural history of this matter, we note that Cousatte also brought a separate quiet title action against the purchasers of Imogene’s home, in which he attempted to set aside the transfer of that property due to undue influence in creating the trust. The district court granted summary judgment for Cousatte, but in a published opinion, this court reversed and remanded, finding that the lack of a specific description of the real property in Cousatte’s 1997 petition asserting undue influence precluded application of the doctrine of lis pendens in the quiet title case. See Cousatte v. Collins, 31 Kan. App. 2d 157, 61 P.3d 728 (2003).
The current proceeding
Presumably acting on the bankruptcy court’s suggestion that in rem relief might be available under state law, Cousatte filed the current action in state court on April 19, 2004, seeking imposition of a constructive trust on Lucas’ home. Following a bench trial, at which no new testimony was presented, the district court dismissed Cousatte’s petition, citing several reasons for its decision: (1) Lucas acquired Imogene’s property pursuant to a valid order of the state court and not by any means of fraud or conversion, (2) the underlying debt owed to Cousatte was discharged by the bankruptcy court, (3) the bankruptcy court found no support for the existence or impression of a constructive trust, (4) the state court’s judgment in favor of Cousatte did not create a constructive trust in any prop erty, (5) Lucas’ home was set aside as exempt by the bankruptcy court, (6) Cousatte failed to state a claim and was precluded by res judicata and collateral estoppel from seeking a constructive trust against Lucas’ residence, and (7) no constructive trust attached to Lucas’ property. This appealed followed.
On appeal, Cousatte argues the district court erred in finding it could not impose a constructive trust on the proceeds used to acquire tire residence where the bankruptcy court set aside Lucas’ home as exempt. Cousatte further argues the bankruptcy court’s decision does not have res judicata or collateral estoppel effect on the constructive trust issue. Finally, Cousatte contends the district court erred by failing to impose a constructive trust on Lucas’ residence to the extent of the trust funds used to purchase the residence.
Exemption of home and vehicle
Cousatte first argues the district court erred in finding that because Cousatte did not object to the exemption of Lucas’ home from the bankruptcy estate, the court could not impose a constructive trust in this action.
We agree with Cousatte that the district court erred with respect to this finding. As the bankruptcy court pointed out, Lucas’ debt to Cousatte was permanently discharged through the bankruptcy proceeding. Lucas’ residence, however, was exempted from the bankruptcy proceeding and was not protected by the discharge. As the bankruptcy court further noted, although that court had no jurisdiction over tire exempt property, Cousatte might be entitled to in rem relief under state law.
Thus, we conclude Cousatte’s failure to object to the exemption of Lucas’ residence in the bankruptcy proceedings did not bar this in rem action filed in state district court!
Res judicata and collateral estoppel
Cousatte next argues the district court erred in finding the doctrines of res judicata and collateral estoppel precluded imposition of a constructive trust. Cousatte points out that on remand from the BAP, the bankruptcy court ruled that because Lucas’ home was exempt, the court did not have jurisdiction to rule on the con structive trust. Cousatte reasons that because there was no adjudication on the merits, res judicata and collateral estoppel do not apply.
Whether the doctrines of res judicata and collateral estoppel apply is a question of law over which this court has plenary review. In re Care & Treatment of Johnson, 32 Kan. App. 2d 525, 530, 85 P.3d 1252 (2004).
“An issue is res judicata when four conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and identity in the quality of persons for or against whom claim is made. [Citation omitted.] The requirements of collateral estoppel are: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” Regency Park. v. City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 (1999).
Cousatte is correct that the bankruptcy court found it lacked jurisdiction. Nevertheless, the bankruptcy court further held: “Even if this court had jurisdiction to declare or impose a constructive trust, the facts and evidentiary record before this Court are insufficient to establish a constructive trust under Kansas law.” 307 B.R. at 710.
Clearly, the bankruptcy court based its dismissal on a lack of jurisdiction and its further rulings as to imposition of a constructive trust represent dicta. Because the issue litigated was neither decided on the merits nor necessary to support the bankruptcy court’s judgment, we agree with Cousatte that the doctrines of collateral estoppel and res judicata do not bar imposition of a constructive trust in this case.
Denial of imposition of a constructive trust
We next consider Cousatte’s argument that the district court erred in ruling on the merits of this action — i.e., in finding no constructive trust attached to the property.
Commonly, when a trial court makes specific findings of facts and conclusions of law, the function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law, over which an appellate court has unlimited review. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003); see Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004);. However, “the application of an equitable doctrine[, such as a constructive trust,] rests within the sound discretion of the trial court. [Citation omitted.]” Bankers Trust Co. v. United States of America, 29 Kan. App. 2d 215, 218, 25 P.3d 877 (2001). A court abuses its discretion when no reasonable person would take the view adopted by the trial court. State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 (2001).
The district court recited several reasons for denying the imposition of a constructive trust. Before we consider whether the court abused its discretion in so ruling, we note that the record is unclear as to the basis Cousatte relies upon for the imposition of a trust. The petition, the pretrial conference order, and Cousatte’s trial brief all recite the substantive and procedural history of this case, including the finding of undue influence by the state court and Lucas’ liquidation of the trust assets during the pendency of the first appeal. However, all of Cousatte’s pleadings conclude that because the proceeds of the trust can be traced to Lucas’ current residence, a constructive trust exists in the residence. Cousatte’s brief on appeal provides no further illumination as to the specific factual basis supporting the imposition of the trust.
Rather, in support of his contentions, Cousatte cites cases standing for the proposition that where a fund has been wrongfully or erroneously disbursed, equity will follow it as far as it can be traced and will impress a trust upon it for the benefit of the parties’ entitled thereto. See, e.g., Woods v. Duval, 151 Kan. 472, 99 P. 2d 804 (1940); Myers v. Board of Education, 51 Kan. 87, 99, 32 Pac. 658 (1893).
The flaw in Cousatte’s conclusory analysis is that it slaps at least two steps necessary for the imposition of a constructive trust. As the Kansas Supreme Court succinctly stated in Woods:
“Before [a constructive trust may be equitably impressed,] the fraud must be proven, the equitable redress must be timely invoked, and the fund or property must be clearly traced into the hands of some person who has received it, and it still must be in existence.” 151 Kan. at 480.
Here, Cousatte skips directly to the third prerequisite and points out that the proceeds of Imogene’s trust are traceable to Lucas’ residence — a point on which both parties agree. However, Cousatte makes no clear statement in his appeal brief, or in the record below, as to the evidentiary basis for the fraud required for imposition of the trust or whether the relief was timely sought. We will address those issues in reverse order.
Was this relief timely sought ?
Our review of the record reveals that Lucas asserted the statute of limitations as an affirmative defense in her answer and in the pretrial conference order, and both parties addressed the issue in their trial briefs below. However, the issue of the timeliness of this action was not addressed by the trial court, nor was it asserted on appeal. An issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004).
Nevertheless, we will briefly discuss the arguments made by the parties in the trial court with respect to the statute of limitations issue, as those arguments are relevant to our subsequent discussion of the evidence of fraud, if any, asserted in support of the imposition of a constructive trust.
The 2-year statute of limitations applies to an action for imposition of a constructive trust. See K.S.A. 60-513(a)(3). See generally Herthel v. Barth, 148 Kan. 308, Syl. ¶ 1, 81 P.2d 19 (1938) (where the essence of a claim is to seek the imposition of a constructive trust because of the trustee’s fraudulent conduct, the 2-year statute of limitations applies).
“[T]he statute [of limitations in such an action] begins to run from the date the trust is repudiated, Flitch v. Boyle, 147 Kan. 600, 78 P.2d 9; Allbert v. Allbert, 148 Kan. 527, 83 P.2d 795, and cases therein cited, or [as] the rule is . . . sometimes stated, . . . the statute does not begin to run from the date of demand on the trustee and repudiation by him, but starts to run from the date the trustee commits a wrong or breach of his trust by which he becomes chargeable.” Staab v. Staab, 158 Kan. 69, 75, 145 P.2d 447 (1944).
In the pretrial conference order, Lucas’ contended: “[P]laintiff is barred by the [2-year] statute of limitations from bringing this action based upon fraud having waited seven years from the initial claims to make the claim.” Further, in Lucas’ trial brief, she asserted: “To the extent Cousatte relies upon the conduct of Lucas prior to the death of Imogene Collier when she executed her Will and Trust, as a basis for claiming a constructive trust, that claim is barred by the statute of limitations.”
In his trial brief, Cousatte conceded application of a 2-year statute of hmitations, but asserted his cause of action accrued when the trial court ruled in his favor on July 27, 2000. Cousatte further argued the statute of hmitations was stayed during the bankruptcy, from May 7, 2001, to March 2, 2004. Because the current action was filed April 19, 2004, Cousatte concluded the 2-year limitation period had not expired.
Significantly, Cousatte did not suggest at any point in the proceedings below that the fraud required to be established for the imposition of a constructive trust arose prior to Imogene’s death when Lucas allegedly unduly influenced Imogene in the execution of her will and trust, or when the trial court found the presumption of undue influence was not rebutted by Lucas. Nor did Cousatte suggest that the fraud occurred when Lucas liquidated the trust assets and utilized the proceeds to purchase her current home.
Evidence of fraud as basis for imposition of constructive trust
Keeping in mind the parties’ respective positions in the trial court regarding the accrual of the cause of action and the basis for imposition of a constructive trust, we next consider whether the district court erred when it found no constructive trust attached to Lucas’ home even though it was purchased with funds traceable from Imogene’s trust.
“ ‘A constructive trust arises wherever the circumstances under which property was acquired make it inequitable that it should be retained by the person who holds legal title.’ [Citation omitted.]” Garret v. Read, 278 Kan. 662, 673, 102 P.3d 436 (2004).
To prove a constructive trust, there must be a showing of either actual or constructive fraud. Kahm v. Klaus, 64 Kan. 24, 26, 67 Pac. 542 (1902) (a trust which the law implies from existing facts and circumstances, i.e., a trust which arises by operation of law, may be established by either actual or constructive fraud). Actual fraud is not at issue here.
“ ‘Constructive fraud is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose or intent to deceive is necessary.’ [Citation omitted.] Two additional elements also must be proved: ‘[T]here must be a confidential relationship [, and] the confidence reposed must be betrayed or a duty imposed by the relationship must be breached.’ ” Garret, 278 Kan. at 674 (quoting Logan v. Logan, 23 Kan. App. 2d 920, Syl. ¶¶ 7, 8, 937 P.2d 967, rev. denied 262 Kan. 961 [1997]).
Thus, in order to prove constructive fraud, Cousatte must have established the existence of a confidential relationship and a betrayal of that confidence, or a breach of a duty imposed by the relationship. See Logan, 23 Kan. App. 2d at 927.
As discussed above, Cousatte did not identify a basis for the imposition of a constructive trust in the trial court, other than to suggest that a cause of action accrued when the district court entered judgment for Cousatte following remand from this court. At trial, the court questioned Cousatte’s counsel as to the nature of his argument:
THE COURT: “[D]oesn’t [the request for a constructive trust] have to be a specific request, an order of the Court, with regard to establishing a constructive trust? It doesn’t establish itself, as a matter of law, just because you have a judgment, does it?”
Cousatte’s counsel responded that the judgment did not automatically establish the trust but argued drat because funds from Imogene’s trust could be traced to Lucas’ residence, the “law of tracing” required imposition of a constructive trust.
While we are unfamiliar with “the law of tracing,” we find that the fact that trust funds may be traced to Cousatte’s residence is insufficient to establish fraud, which is a prerequisite to imposition of a constructive trust.
The district judge so held:
“While I find that funds may be traceable, I do not find that there’s any automatic constructive trust that attaches to a judgment simply because the funds used in — by the defendant, in this case, could be traceable to her own accounts or at least some of them. . . . There has been no order with respect to the case that would establish a constructive trust on the proceeds.”
We agree with the district court’s conclusions. At no point in this action did Cousatte identify, much less prove, the fraud necessary to impose a constructive trust. Instead, Cousatte simply relied upon the fact that the district court entered a judgment in his favor on remand, and funds from Imogene’s trust could be traced directly to Lucas’ residence.
Moreover, even if Cousatte had alleged as an evidentiary basis for the fraud either (1) the trial court’s finding of an unrebutted presumption of undue influence in the execution of Imogene’s will and trust; or (2) Lucas’ liquidation of the trust assets during the pendency of the first appeal, the district court’s denial of the imposition of a constructive trust contemplated and rejected such allegations.
Presumption of undue influence as basis for imposition of constructive trust
In refusing to impose a constructive trust, the district court found Lucas acquired Imogene’s property pursuant to a valid order of the state court and “not by any means of fraud or conversion.” The district court also cited with the approval the bankruptcy court’s determination that no support existed for the existence or impression of a constructive trust. As discussed below, these findings refer to the bankruptcy court’s determination that the state court’s finding of a presumption of undue influence did not establish the fraud necessary for imposition of a constructive trust.
The bankruptcy court cited Logan v. Logan, 23 Kan. App. 2d 920, for the proposition that “merely establishing undue influence is not sufficient under Kansas law to impose a constructive trust.” In Logan, this court affirmed the trial court’s finding of undue influence based on the defendant’s failure to rebut a presumption of undue influence but separately considered the issue of whether to impose a constructive trust. 23 Kan. App. 2d at 925-26.
As the bankruptcy court pointed out, Kansas law “suggests that undue influence is a species of fraud.” In re Lucas, 307 B.R. at 709 (citing In re Estate of Hall, 165 Kan. 465, 470, 195 P.2d 612 [1948]). Further, “the definition of undue influence includes ‘coercion, compulsion and restraint as to destroy the testator s free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercising his own.’ ” In re Lucas, 307 B.R. at 709 (citing Heck v. Archer, 23 Kan. App. 2d 57, 62, 927 P.2d 495 [1996]). Moreover, as the bankruptcy court also noted, the influence exerted must directly affect the testamentary or inter vivos act itself. 307 B.R. at 709.
The bankruptcy court examined the records before it and found that the district court’s determination of the existence of a presumption of undue influence, which went unrebutted by Lucas, did not establish the constructive fraud necessary to impose a constructive trust:
“Very little in the state court’s decision points to ‘coercion, compulsion and restraint.’ Instead, the state court merely found that ‘suspicious circumstances’ which raise a presumption of undue influence were present, shifting to Lucas the burden of proving that she did not coerce or compel Collier, and that Lucas failed to meet that burden.” 307 B.R. at 709.
The bankruptcy court concluded that while “[t]here may well have been a sufficient record in the Civil Action to justify the state court’s imposition of a constructive trust had it been requested there, . . . the factual record before this Court is far from adequate for that purpose.” Lucas, 307 B.R. at 709.
Significantly, in presenting the constructive trust issue to the district court, Cousatte did not request that the court hear or consider any additional evidence with respect to the issue of whether Lucas breached an equitable duty to Imogene such as would permit the imposition of a constructive trust. Moreover, the district court, in denying imposition of a constructive trust, noted that the record before it included the court’s file in the 1997 civil action for undue influence. Thus, the factual record before the district court, like the factual record before the bankruptcy court, did not justify the imposition of a constructive trust.
Accordingly, we find that the district court’s July 27, 2000, judgment on remand in which it found a presumption of undue influence based upon suspicious circumstances and a failure to rebut that presumption did not establish the fraud required for the imposition of a constructive trust, and the district court did not err in so finding.
Lucas’ actions during the pendency of the first appeal
As discussed above, the district court held that Lucas acquired Imogene’s property pursuant to a valid order of the state court and not by any means of fraud or conversion. Thus, the district court’s holding also was broad enough to encompass a finding that the evidence did not support the imposition of a constructive trust based upon Lucas’ liquidation of the trust assets during the pendency of Cousatte I. As discussed below, the district court did not abuse its discretion in this regard.
Lucas’ actions during the pendency of the first appeal were summarized by tire bankruptcy court in its initial decision finding Lucas’ debt was not excepted from discharge under the fraud exception:
“By the time the first Court of Appeals’ opinion was handed down in January of 2000, Lucas had liquidated all of the Trust assets. During this time period, Lucas had a valid judgment that declared she was the rightful beneficiary and owner of the Trust assets. Lucas was operating under the authority of the first judgment. While she ran the risk of having to turn over the trust property or proceeds thereof if the judgment was reversed on appeal, she was at that time acting pursuant to a lawful order of the court. If Cousatte had wanted to prevent the liquidation and disposal of Trust assets during the pendency of tire appeal, he could have posted a supersedeas bond to obtain a stay of tire judgment pending the appeal. If Lucas had then liquidated the Trust in violation of the stay, a different result might obtain. But here, where Lucas acted pursuant to a lawful order of the Court, it cannot be concluded that she committed fiduciary fraud, embezzlement, larceny, or willful injury by liquidating the Trust. Thus, Lucas’ conduct during the pendency of the first appeal provides no basis for a §523(a)(4) or (a)(6) exception to discharge.” Slip op. at 10.
While the issue before the bankruptcy court was not whether Lucas’ actions during the pendency of the first appeal established constructive fraud under Kansas law, but rather whether her actions permitted application of tire fraud or embezzlement exceptions to discharge under the bankruptcy code, the bankruptcy court’s analysis is persuasive here.
At the time Lucas liquidated the trust assets, she had a valid judgment in her favor and Cousatte did not seek or obtain a stay preventing her from liquidating the trust assets during the pendency of the appeal. Moreover, no evidence was presented in the trial of this matter from which the trial court could have determined that in liquidating the assets pursuant to a valid state court judgment, Lucas breached any duty imposed by her relationship with Imogene. Thus, even if Cousatte had pointed to Lucas’ actions during the pendency of the first appeal as the basis for imposition of a constructive trust (and those actions were timely alleged), the conduct alleged could not have established the fraud required for imposition of a constructive trust.
In conclusion, we hold that Cousatte failed to prove the fraud necessary for the imposition of a constructive trust, and the district court did not abuse its discretion in refusing to impose a constructive trust under the facts of this case.
The judgment of the district court is affirmed. | [
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Malone, J.:
This is an interlocutory appeal from the district court’s decision denying the defendants’ summary judgment motion based upon the statute of limitations. There is no dispute that the plaintiffs’ original petition was filed within the applicable stat ute of limitations. However, the original petition was never served on the defendants. Instead, after the statute of limitations had expired, the plaintiffs filed an amended petition which was served on the defendants within 90 days of the filing of the original petition. We agree with the district court that the amended petition related back to the original petition, and the lawsuit was commenced on the date the original petition was filed.
The facts giving rise to the tort claim are undisputed. On September 27,2002, Kenneth L. Hay was driving a semi tractor-trailer owned by Eric D. Dunstan, d/b/a Eric Dunstan Trucking. Hay collided with a tractor mower driven by Dale L. Housh and owned by Mitchell County, Kansas.
On August 31, 2004, an attorney for Housh and Mitchell County (plaintiffs) spoke with an insurance claims representative for Hay and Dunstan (defendants) regarding settlement of the claims. The plaintiffs’ attorney confirmed this conversation with a letter and requested that the insurance company contact him regarding a resolution of the matter. After receiving no reply, the attorney sent a second letter, on September 17, 2004, and indicated that a draft of the petition had been prepared and would need to be filed prior to the running of the statute of limitations.
On September 24, 2004, the plaintiffs filed suit against the defendants for negligence. On September 30, 2004, the plaintiffs’ attorney was contacted by a new insurance claims representative for the defendants, who indicated that he would like to discuss settling die case before die defendants were served with process. The plaintiffs’ attorney agreed to delay service pending settlement discussions. As of October 26, 2004, the parties were still involved in settlement negotiations.
In the meantime, the plaintiffs filed a first amended petition on October 1, 2004, beyond the statute of limitations. The amended petition was identical to die original petition except it added a claim against Dunstan for negligent entrustment. The parties to the lawsuit remained die same. When it became apparent that the claims would not be settled, Dunstan was served with the first amended petition on November 5, 2004. Hay was served with the first amended petition on November 29, 2004.
On February 3, 2005, the defendants moved for summary judgment on the basis that the plaintiffs’ lawsuit was barred by the applicable statute of limitations. The defendants argued that the filing of the original petition did not commence the civil action because the original petition was never served. Further, according to the defendants, the amended petition was filed and served beyond the statute of limitations and did not relate back to the original petition.
The district court denied the motion, finding that the amended petition related back to the date of the original petition. Because the amended petition was served on the defendants within 90 days of the filing of the original petition, the district court found that the plaintiffs’ lawsuit was timely commenced. The district court certified the matter for interlocutory appeal, which this court granted.
On appeal, the defendants again claim that the plaintiffs’ lawsuit was barred by the applicable statute of limitations. The defendants argue that the amended petition, which was filed and served beyond the statute of limitations, could not relate back to tire original petition because the original petition was never served on the defendants. According to the defendants, the lawsuit was not properly commenced until the amended petition was filed on October 1, 2004, beyond the applicable statute of limitations.
The plaintiffs argue that the amended petition arose out of the conduct, transaction, or occurrence set forth in the original petition and related back to the original petition pursuant to K.S.A. 60-215(c)(1). Because the amended petition was served on the defendants within 90 days of the filing of the original petition, the plaintiffs argue that the lawsuit was timely commenced pursuant to K.S.A. 60-203(a). In the alternative, the plaintiffs argue that they substantially complied with the service of process requirements; therefore, service of process should be considered valid pursuant to K.S.A. 60-203(b) and'K.S.A. 60-204, notwithstanding some irregularity or omission in the original service of process. Finally, the plaintiffs argue that the defendants should be estopped from asserting the statute of limitations as a defense because the actions of the defendants’ insurance claims representative tolled the running of the statute of limitations.
This case involves statutory interpretation, which is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
The parties agree that the applicable statute of limitations for a negligence action is 2 years from the date of injury. K.S.A. 60-513(a)(4). Thus, the issue in this case is whether the plaintiffs commenced their lawsuit within 2 years of September 27, 2002. Resolution of this issue involves interpretation of K.S.A. 60-203 and K.S.A. 60-215 and the application of these statutes to the facts of this case.
Pursuant to K.S.A. 60-203(a), a civil action is commenced at the time a petition is filed, if service of process is obtained within 90 days thereafter or within 120 days upon court extension. Absent an extension, if service of process is not made within 90 days after the petition is filed, the action commences upon service of process.
K.S.A. 60-215(a) allows a party to file an amended pleading as a matter of right any time before a responsive pleading is served. K.S.A. 60-215(c)(1) provides that an amendment of a pleading relates back to the date of the original pleading when the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading.
Here, the plaintiffs filed the original petition on September 24, 2004, before the statute of limitations expired. Under K.S.A. 60-203(a), the plaintiffs had at least 90 days to serve the defendants with process to commence the civil action on the date the petition was filed. Although the original petition was never served on the defendants, an amended petition was filed on October 1, 2004, which was served on the defendants within 90 days of the filing of the original petition.
There are no reported Kansas decisions with facts identical to those presented in this case. However, the plaintiffs have cited as persuasive authority this court’s unpublished opinion in Cooper v. Weigel, No. 65,336, unpublished opinion filed April 5, 1991. In Cooper, the plaintiff filed a petition on December 18, 1989, alleg ing negligence against Weigel and other defendants that occurred beginning December 21,1987. Although the plaintiff filed the original petition prior to the running of the statute of hmitations, the plaintiff never served the defendants with the original petition within the 90-day statutory period. However, the plaintiff filed an amended petition on March 14, 1990, after the running of the statute of hmitations. The amended petition asserted the same claim against Weigel as that set forth in the original petition, but it dropped the other defendants from the lawsuit. Weigel was served with the amended petition within 90 days of filing of the original petition. The district court dismissed the lawsuit as barred by the apphcable statute of hmitations.
This court revez'sed the district court and held the lawsziit was timely commenced. The court determined there is nothing in the language of K.S.A. 60-215 which requires service of the original petition as a prerequisite to the relation-back provision of the statute. The court found the amended petition related back to tire date of the original petition and concluded:
“We perceive no reason to disregard [the filing of the original petition] and it is unquestioned that service of process and copy of the amended petition was effected within 90 days after December 18,1989. By operation of K.S.A. 60-215(a) and K.S.A. 60-215(c), this action was commenced against Weigel on December 18,1989, a date within the two years’ limitation imposed by K.S.A. 60-513(a)(7).”
Also, in Schlumpf v. Yellick, 94 Wis. 2d 504, 288 N.W.2d 834 (1980), the Wisconsin Supreme Court was faced with similar facts. In Schlumpf the plaintiff filed a petition and sumznons on February 15, 1977, alleging negligence against two defendants for injuries sustained on March 4,1974. Although the petition and summons were filed within the applicable Wisconsin statute of hmitations, the defendants were not served with the original pleadings. After the statute of hmitations had run, the plaintiff filed an amended petition and summons on March 30,1977. The aznended petition named an additional defendant, but was otherwise identical in its allegations of negligence regarding the original defendants. The plaintiff served all three defendants within 60 days of the filing of the original petition. 94 Wis. 2d at 506.
Similar to Kansas, Wisconsin statutes provided that a civil action was commenced upon the filing of a petition and summons, as long as the copies were served upon the defendant within 60 days after filing the petition. See Wis. Stat. § 801.02 (1975). Additionally, a statute provided that if a claim asserted in an amended petition arose out of the conduct or occurrence set forth in the original petition, then the amended petition related back to the filing of the original petition. 94 Wis. 2d at 507-08; see Wis. Stat. § 801.09 (1978).
The Schlumpf court concluded that the amended petition related back to the original filing as to the initial two defendants, and that the action commenced upon the filing of the original petition and summons. 94 Wis. 2d at 508-09. The court held that the failure of the plaintiff to serve the original petition was not fatal to the commencement of the action and the tolling of the statute of limitations. 94 Wis. 2d at 509. The court noted that the primary function of service is to give notice to a party of the action, and concluded:
“When the defendants, Dr. Yelliclc and Dr. Linn, were served with the amended summons and complaint, they were fully apprised of the nature of the action against them and the general circumstances surrounding the allegations of negligence against them. No prejudice occurred to them when they failed to receive tire original complaint because they were properly served with an amended complaint within sixty days of the filing of the original complaint.” 94 Wis. 2d at 509.
We find the reasoning of the decisions in Cooper and Schlumpf to be persuasive. K.S.A. 60-215(c) provides that an amended pleading relates back to the date of the original pleading when the claim asserted in the amended pleading arose out of the same occurrence set forth in the original pleading. As the court stated in Cooper, there is nothing in the language of K.S.A. 60-215 which requires service of the original pleading as a prerequisite to the relation-back provision of the statute. Likewise, K.S.A. 60-203(a) provides that a civil action is commenced at the time of filing a petition, if service of process is obtained within 90 days after the petition is filed. In describing the methods of service of process, K.S.A. 60-303(c)(2) refers to service of “a copy of the process and petition or other documente (Emphasis added.) Similarly, K.S.A. 60-303(d)(1) refers to service of a “copy of the process and petition, or other documents to be served.” (Emphasis added.) Thus, the term “process” is defined to include more than an original petition.
Applying these statutes to the facts of this case, we conclude the plaintiffs’ amended petition filed on October 1, 2004, related back to the date of tire original petition pursuant to K.S.A. 60-215(c)(1) because the amended petition arose out of the same occurrence set forth in the original petition. Furthermore, because process was served on the defendants within 90 days of the filing of the original petition, the lawsuit was commenced at the time the original petition was filed pursuant to K.S.A. 60-203(a). Requiring the plaintiffs to serve the original petition in addition to the amended petition would have been confusing and duplicative. The purpose of the service of process statutes had been satisfied with the service of the amended petition.
In summary, we conclude the plaintiffs’ lawsuit against the defendants was commenced on September 24, 2004, the date tire original petition was filed. Accordingly, the district court did not err in denying the defendants’ summary judgment motion based upon the statute of limitations. We do not need to address the alternative arguments advanced by the plaintiffs concerning substantial compliance with service of process and estoppel.
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Hill, J.:
In this tax foreclosure appeal, there are two separate counts where two couples, Kenneth and Sharon Schrage and Terry and Yvonne Hummer, claim they did not receive legally sufficient notice and ask us to set aside the sheriff s sales of their Jefferson County real estate tracts. The Schrages are correct, and tire Hummers are not.
In the Schrages’ case, Jefferson County officials relied upon service by publication after an attempt to personally serve the couple in Douglas County failed. Generally, in a tax foreclosure action, service by publication is disapproved if the address of the parties can be reasonably ascertained. Here, Kenneth and Sharon Schrage lived on the real estate tract in question. Furthermore, they had both been served with process at least seven times by an officer from the Jefferson County Sheriff s Department during the 3-year period preceding the tax sale. Because their address could have been reasonably ascertained, we hold the publication notice was insufficient and denied them due process of law. We reverse.
In the Hummers’ case, Terry Hummer was the president, sole stockholder, and resident agent of RVH, Inc., a corporation that was the title owner of a mobile home park in Jefferson County. The Hummers live in Topeka, and after their home was visited twice by Shawnee County process servers trying to serve the Jefferson County process, Terry Hummer called the Shawnee County Sheriff s office advising it that either he or an employee would be down to pick up the papers. An RVH, Inc. maintenance worker received the foreclosure petition and summons at the sheriff s office after telling the deputy he had been sent to pick up the papers. Because that worker was clothed with the apparent authority to receive process, we hold that personal service was achieved in this instance and affirm the judgment.
Because each case is unique, we will first review common facts and then focus on events important to each count. Finally, our analysis will concentrate on each count individually.
Facts Common to Both Counts
On January 8, 2003, the Board of Jefferson County Commissioners (the County), filed a tax foreclosure action that involved delinquent real estate taxes on more than 500 parcels of land. Each parcel was listed in a separate count. A title search performed on Count 286 revealed that Kenneth D. Schrage and Sharon A. Schrage, of 802 Oak, Lawrence, Kansas 66044 (the Lawrence address), were interested parties with respect to the real estate. Title searches performed on Counts 257, 258, and 264 revealed that Terry Hummer, Yvonne Hummer, and RVH, Inc., all with an address of 4431 N.W. Greenhills Road, Topeka, Kansas, 66618, were interested parties with respect to those counts.
On November 22, 2004, the attorney for the County filed an affidavit seeking to serve all of the defendants in the foreclosure action by publication notice. The affidavit stated that the locations of approximately one-half of the defendants were unknown but did not list the specific defendants whose whereabouts were unknown.
Notice of the tax foreclosure lawsuit was published in The Oskaloosa Independent on September 30, October 7, and October 14, 2004. The publication included Count 286 (the Schrages’ tract) and Count 257 (RVH, Inc.’s tract) in the notice. An affidavit of publication was later filed on August 2, 2005.
The County sought default judgment, which was granted on December 13,2004. A sheriff s sale was ordered to be held on January 21, 2005. Notice of the sale was published in The Oskaloosa Independent on December 16, 23, and 30, 2004. The affidavit of publication of that notice was filed on August 2, 2005. At the sheriff s sale, the Schrages’ property was sold for $55,500 and RVH, Inc.’s parcel was sold for $36,500.
Matters Unique to the Schrages’ Case
Not quite a month after the sheriff s sale on February 11, 2005, the Schrages filed a motion to set aside the default judgment obtained by the County as a result of the publication notice. The Schrages claimed that they did not receive notice of either the default judgment or the sale of the property and that they were not properly served.
At the April 15,2005, hearing on their motion, the Schrages were delinquent on multiple personal and real estate taxes from various years due to the County. The County claimed the total of the overdue taxes equaled $24,989.83. Ultimately, in June 2005, tire district court denied Schrages’ motion to set aside the default judgment.
Jefferson County records available at the time of the filing of the foreclosure action are revealing but not conclusive concerning the Schrages’ correct address. The Schrage tract is a 42-acre site with an address of 11585 U.S. 59 Highway, Oskaloosa, Kansas (the U.S. 59 address). In December 1997, the County issued a building permit to Ken Schrage for construction of a dwelling. The application for the building permit, as well as the permit itself, lists the Lawrence address for Ken Schrage but also listed the U.S. 59 address as his new address. Furthermore, an application for a permit to build a septic tank, dated December 16, 1997, indicated Kenneth’s address was the Lawrence address, but also listed the U.S. 59 address as a “New Address.”
The Jefferson County Treasurer testified that her office had several addresses listed for the Schrages but that the Lawrence address was the one that most commonly appeared on her records. She further stated that her office searched for addresses for the Schrages by using motor vehicle records, but no vehicles were registered in their name. The Schrages’ 2002 personal property tax statement was mailed to the U.S. 59 address but was returned as undeliverable. It was also sent to the Lawrence address but was returned by the post office.
The Schrages’ own conduct contributed to the confusion about their correct address. Sharon Schrage testified that she and her husband moved from the Lawrence address to the U.S. 59 address in March or April of 1997. Sharon further testified that in February of 2002 or 2003, a fire destroyed their residence at that address. After the fire she, began living in a “fifth wheel trailer” on the Oskaloosa property. The fifth wheel trailer was physically placed inside a Morton building on the real estate. As of April 15, 2005, the Schrages had not obtained a sewer permit for the trailer and had not placed the title for the trailer in their name.
Furthermore, Sharon also admitted to having two addresses in Nortonville as well as a P.O. Box address in Oslcaloosa. She explained that she needed two addresses in Nortonville because she had a business. Schrage further admitted that no vehicles had been registered under the name “Schrage” in 2003, 2004,. or 2005, because Sharon would not have been able to register her vehicles in Jefferson County under the name “Schrage” due to a policy preventing registration when outstanding property taxes are due. Sharon testified that her maiden name was “Tootle” and that she used that name for legal purposes. Sharon stated that she had a handicapped son, and she was made his conservator. Sharon testified that her attorney told her that it was legal if she used “TootleSchrage” as her last name until her son died.
Despite all of this behavior, there was evidently no problem in serving the Schrages with legal process in Jefferson County. Robert Chartier, an officer with the Jefferson County Sheriffs office, testified that he had served Kenneth Schrage at least seven times within the previous 3 years. Chartier claimed that all but one or two times he obtained service on Kenneth at the Schrages’ restaurant in Nortonville, which is also within Jefferson County. Chartier went on to state that the times he did not serve Kenneth at the restaurant, he obtained service on him at his address on U.S. 59.
Besides process servers, other county officials have been to the U.S. 59 property. Sharon Schrage claimed that during the time she owned the property at U.S. 59, the county attorney, representatives from the sheriff s department, representatives from the appraiser’s office, a representative from the health department, and other county officials had been on the property.
Matters Unique to the Hummers’ Case
Teriy Hummer was the president, sole stockholder, and resident agent of RVH, Inc. Count 257 in the tax foreclosure petition concerns a mobile home park owned by RVH, Inc. Neither Terry nor Yvonne Hummer had a personal ownership interest in Count 257. Sole ownership of the parcel in Count 257 was in RVH, Inc.
On March 30, 2004, a summons was issued for RVH, Inc. On August 12, 2004, separate summons were issued for Teriy and Yvonne Hummer. The address listed on the summons for all three parties was 4431 N.W. Greenhills Road, Topeka, Kansas, 66618. The return portion of the summons relating to Teriy and Yvonne indicated that service was attempted but not obtained and that Terry and Yvonne were avoiding service. The return portion of the summons relating to RVH, Inc. indicated that agent service was obtained on “Sean Sweeney at SNSO.”
The County obtained publication service on the Hummers through the same manner used to obtain publication service on the Schrages. The County also obtained a default judgment on Count 257 under the same motion used to obtain default judgment against Count 286 (the Schrages’ tract). The notice of sheriffs sale on Count 257 was also published in The Oskaloosa Independent on the same dates as the notice provided in Count 286, and the property was sold at the same sheriff s sale.
On January 28, 2005, RVH, Inc. and the Hummers filed a motion to set aside the sale of Count 257 and the other counts in which they had an interest, claiming a lack of notice of the judgment or the sale.
At the hearing on his motion, Terry Hummer testified that he did not receive a summons with respect to this matter or any notice concerning the tax foreclosure sale; he did not recall any telephone calls from the Shawnee County Sheriff s office indicating that papers were available to be picked up at its office. Furthermore, Hummer testified that he never had an intent to avoid service of process on any court matter and that he did not attempt to conceal himself or avoid public places during the period in which service was attempted. He stated that Sean Sweeney was an employee of RVH, Inc. who performed general maintenance, and Hummer went on to say that he never authorized Sweeney to pick up a summons on any matter.
Rosemary Hanna, a process server with the Shawnee County Sheriff s office, testified at the hearing on the Hummers’ motion. Hanna testified that she previously worked as a clerk with the sheriff s office, and during this time, she received a call from a person who identified himself as Terry Hummer. Hanna testified that process servers had previously gone to the Hummers’ home at 4431 N.W. Greenhills Road in Topeka and had left notes on the door on two different occasions. Planna claimed that when she received the call from Terry, she checked the computer system to determine if they had any outstanding papers for Terry Hummer but did not find any matches. When Hanna told Terry that they did not have any papers in his name, Hanna claimed he told her that it would probably be under the name of his company, RVH, Inc. Planna then found two summons for RVH, Inc. and asked if Terry was going to pick them up. Hanna claimed Terry stated that either he or someone from his company would retrieve them.
Eventually, Sweeney came to the Shawnee County Sheriff s office and picked up the papers on April 15, 2004. Hanna claimed that she asked Sweeney whether he was a representative of RVH, Inc. and Sweeney answered affirmatively and claimed that Terry had sent him to pick up the papers. Hanna did not request any identification from Sweeney before serving him with the papers. Hanna claimed that Sweeney did not know what type of papers he was receiving.
At the hearing, Carrie Chambers, the city clerk and court clerk for the City of Meriden, testified that Sweeney had delivered sewer payments for RVH, Inc. into her office on different occasions. She also testified that Sweeney had accepted official documents from the City of Meriden on RVH, Inc.’s behalf.
Ultimately, the district court denied RVH, Inc. and the Hummers’ motion to set aside the sale of Count 257.
Standard of Review and Legal Principles
The Schrages’ motion to set aside the sheriff s sale indicated that it was made according to K.S.A. 79-2804b. No Kansas case has defined the standard of review from a denial of a motion to set aside a sale under K.S.A. 79-2804b. But, we believe that an examination of K.S.A. 79-2804b persuades us that this action should be treated as we would treat a denial of a motion filed according to K.S.A. 60-260(b)(4) dealing with void judgments.
K.S.A. 79-2804b permits the filing of various motions to examine and modify tax judgments:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of K.S.A. 79-2803, or amendments thereto, or any sale made under the provisions of K.S.A. 79-2804, or any amendments thereof, but every such action or proceeding, including those brought to set aside judgments on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within twelve months after the date the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court.”
We note that K.S.A. 79-2804b does not provide any standards by which a district court should grant a motion to set aside a sale. Simply put, under K.S.A. 79-2804b a party may seek to “open, vacate, modify or set aside” a judgment or a sale. Thus, determining a standard of review based solely on K.S.A. 79-2804b is not possible. We therefore examine the nature of the action.
In this case, the Schrages are essentially seeking to set aside the sale due to a lack of personal jurisdiction. See In re Marriage of Brotherton, 30 Kan. App. 2d 1298, 1301, 59 P.3d 1025 (2002) (“Jurisdiction over a party can be acquired only by issuance and service of process in the method prescribed by statute or by voluntary appearance.”). If the district court lacked jurisdiction over the Schrages, then the district court’s orders relating to them would be void. See Abbey v. Cleveland Inspection Services, Inc., 30 Kan. App. 2d 114, 119, 41 P.3d 297 (2002). Accordingly, the Schrages’ motion to set aside the sale is similar to a motion for relief from a judgment or order filed under K.S.A. 60-260(b)(4), which applies to void judgments.
Review of a K.S.A. 60-260(b)(4) order is de novo. See State ex rel. Secretary of SRS v. Clubb, 30 Kan. App. 2d 1, 3, 39 P.3d 80 (2001), where the court specifically ruled a de novo standard is to be employed:
“The standard of review on appeal from a ruling for relief from judgment under K.S.A. 60-260(b) is generally abuse of discretion. The movant must prove sufficient grounds for relief by clear and convincing evidence. [Citation omitted.] However, when a judgment is attacked under K.S.A. 60-260(b)(4) as being void, there is no question of discretion on the part of the trial court. ‘Either a judgment is valid or it is void, and the court must act accordingly once the issue is resolved.’ [Citation omitted.] ‘A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time.’ [Citation omitted.]”
A de novo standard of review should be employed when reviewing motions to set aside tax judgments and orders of sales on the grounds of insufficient service filed according to K.S.A. 79-2804b.
In denying the Schrages’ motion, the district court found that a presumption of validity existed concerning service of process and that the burden was on the Schrages to overcome the presumption. The district court found that the Schrages failed to sustain their burden. Finding a party did not meet its burden of proof is a negative factual finding. Such a finding will not be disturbed by an appellate court in the absence of proof of an arbitraiy disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. See General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 541, 66 P.3d 873 (2003).
Our Supreme Court in deciding whether the district court erred in refusing to confirm a tax foreclosure sale due to a county’s failure to perform a reasonable search prior to resorting to service by publication stated: “The initial burden was on the [party attacking service] to show that the County did not make a reasonable effort to determine a correct address.” Board of Reno County Comm’rs v. Akins, 271 Kan. 192, 198-99, 21 P.3d 535 (2001). The statement on the burden of proof in Akins was previously stated in Board of County Commissioners v. Knight, 2 Kan. App. 2d 74, 78-79, 574 P.2d 575 (1978), in which this court found that a party attacking service by publication had the burden of proof to present a prima facie case. If such a showing was made, then the burden shifted back to the county to show that tire party’s due process rights were not violated. Accordingly, the district court’s finding that tire Schrages initially had the burden of proof was not erroneous. Thus, we conclude the use of the standard of review that applies to negative findings is proper.
Analysis of the Schrages ’ Case
The Schrages argue that the district court erred in finding that they did not meet their burden of showing that they were not properly served. It is undisputed that K.S.A. 60-307 allows for service by publication in tax foreclosure actions. However, the Schrages claim that the County failed to take appropriate actions prior to resorting to service by publication in an effort to ensure that their due process rights were protected.
For support, the Schrages rely on the decision in Akins. In discussing the issue of publication service and foreclosure orders, the Kansas Supreme Court first analyzed Mullane v. Central Hanover Bank Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), the fundamental case dealing with the subject. The court in Akins stated:
“Mullane does not stand for the proposition that service by publication deprives a party of their due process rights. Service by publication, without more, however, is unconstitutionally invalid. The Court in Mullane admitted that service by publication is nothing more than an exercise in futility a majority of the time. Service by publication will, more often than not, fail to provide notice to affected parties. Failure to provide actual notice, however, will not prevent a judicial foreclosure sale of real estate. A party’s due process rights are protected by what occurs prior to and in addition to the attempted publication service. . . . The Court in Mullane approved of service by publication where addresses were not known, but disapproved of service by publication where addresses of parties could be reasonably ascertained. [Citations omitted.]” 271 Kan. at 197.
Clearly, under Akins, resorting to service by publication prior to conducting a reasonable search for a party’s correct address is improper and violates due process rights. 271 Kan. at 197. Additionally, while the real estate at issue in the present case is not as economically valuable as the property in Akins, the property was valuable to the Schrages since they lived on it. Accordingly, the standard of reasonableness is heightened in the present case. Thus, this court must decide whether Jefferson County conducted a reasonable search for the Schrages’ correct address prior to resorting to service by publication.
Even though it is clear from the record that the County had reason to be confused regarding the Schrages’ current address, we do not think the County conducted a proper search prior to resorting to service by publication. There is evidence indicating that the County could have discovered the correct address by performing a reasonable investigation. First and foremost was Officer Char- tier’s testimony that as an officer with the Jefferson County Sheriff s office, he had served Kenneth approximately seven times, including once or twice at the U.S. 59 address. Therefore, if the County had contacted the sheriff s office prior to mailing the summons, it could have discovered the Schrages’ correct address. We do not think it too onerous to require the County to first attempt personal service in the county by an officer employed just for that purpose before resorting to publication notice. If it would have been to no avail, the failed effort provides evidence of a reasonable investigation as to the whereabouts of the parties.
Additionally, Sharon testified that various county officials had been at the U.S. 59 property. Other than Sharon’s claim of a visit by an official with the county health department where the official inspected the septic tank on the property and when county appraisers came to the property and saw furniture in the barn, it is unclear whether the remaining visits by county officials put the County on notice that the Schrages were living on the property.
While Akins does not require the County to exhaust every possible resource in attempting to determine a person’s address or whereabouts prior to resorting to service by publication, it does require a reasonable search. The County’s failure to attempt service at any address other than the Lawrence address goes against a finding of reasonableness, especially given the fact that personal service was never attempted at the property at issue. It is clear that the County had access to the U.S. 59 address but simply decided to only attempt service at tire address which the treasurer’s office had connected to the Schrages most often. We cannot find this to be reasonable.
Furthermore, we recognize that the behavior of the Schrages was suspect. This point is mentioned in Akins:
“We readily agree that a taxpayer has some duty to keep a county informed of the taxpayer’s address and to pay property taxes. However, when we are dealing with substantial and/or valuable parcels of real estate (here it appears the land was worth in excess of $150,000), the efforts taken by the County to locate tire landowner should be proportional to the use and value of tire property.” 271 Kan. at 200.
It appears the district court arbitrarily disregarded undisputed evidence. The court did not refer to the evidence supporting the Schrages’ claim, such as Chartier’s testimony or even the fact that the County was aware of other addresses for the Schrages, in making its decision. Additionally, the only evidence the court referred to regarding the reasonableness of the County’s search was the fact that the County attempted service at the Lawrence address. The court cited plenty of evidence showing why the County was confused as to the Schrages’ correct address but did not indicate that it even considered the reasonableness of the search.
If the evidence disregarded by the district court is taken into account, it is reasonable to conclude that the County did not perform a reasonable search. The County admits to having multiple addresses for the Schrages but did not take any action other than searching motor vehicle records and attempting service at the Lawrence address to find the correct address. Unquestionably, other methods were available. The County’s failure to use these methods resulted in a denial of the Schrages’ due process rights. Accordingly, the district court’s decision is reversed.
Since we are reversing this count, we need not examine the Schrages’ claim that the County never actually attained service on them due to the County’s failure to comply with K.S.A. 60-307(e).
Analysis of the Hummers and RVH, Inc. ’s Case
RVH, Inc. claims the district court erred by finding that it did not meet its burden of showing improper service. While publication notice was served on the corporation as well as the Hummers, publication notice is not the primary issue here. The County claims it obtained agent service on RVH, Inc. when it served Sean Sweeney. Since the corporation had sole ownership of the tract in Count 257, the service by publication as it relates to the Hummers individually is irrelevant.
The primary issue on appeal is whether Sweeney was an agent of RVH, Inc. at the time service was obtained on him. Resolution of this issue involves a review of factual findings made by the district court. We review these findings by determining whether substantial competent evidence exists to support them. See U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). “ The court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.’ [Citation omitted.]" State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
In this case, substantial competent evidence exists to support the district court’s factual finding that Sweeney was a general agent of RVH, Inc. First, it was uncontested that Sweeney worked for RVH. Additionally, Rosemary Hanna, a process server with the Shawnee County Sheriff s office who was working as a clerk at the relevant time herein, testified that a person identifying himself as Terry Hummer called her after notes had been left at the Hummers’ residence by process servers indicating that he needed to pick up papers. Hanna testified that Terry told her during the conversation that the papers would likely be under RVH, Inc. Hanna further testified that Terry told her that either he or someone from his company would get the papers. Hanna also claimed that a person identifying himself as Sweeney arrived on April 15, 2004, to pick up the papers. Hanna also testified that Sweeney stated that he was a representative of RVH, Inc. Additionally, Carrie Chambers, the city clerk and court clerk for the City of Meriden, testified that Sweeney had accepted official documents on RVH, Inc.’s behalf on prior occasions.
Terry Hummer disputed Hanna’s account of their conversations and the claim that he authorized Sweeney to pick up papers on his behalf. However, as stated earlier, this court does not pass on the credibility of witnesses or reweigh conflicting evidence. The only question is whether the evidence presented by the County was sufficient to support the factual findings by the district court. Accordingly, after analyzing the evidence set forth above, substantial competent evidence exists to support the district court’s findings of fact.
This evidence discussed above is sufficient to prove that Sweeney was not only directed to pick up the papers at Shawnee County but had also performed similar duties on other occasions. This is sufficient to show that Sweeney was a general agent of RVH, Inc. and, therefore, service was proper.
It is important to review the service statute. K.S.A. 60-304(e) allows service on corporations and other associations and states that service can be obtained “by serving an officer, manager, partner or a resident, managing or general agent . . . The County claims that Sweeney was a general agent of RVH, Inc. Kansas courts have not set forth a precise definition of a general agent. However, in Masek Distributing, Inc. v. First State Bank & Trust Co., 908 F. Supp. 856, 862 (D. Kan. 1995), the federal court enunciated principles it believed the Kansas Supreme Court would use when determining whether a person is general or special agent. Specifically, the court stated:
“ ‘One who is an integral part of a business organization and does not require fresh authorization for each transaction is a general agent.’ [Citation omitted.] The extent of discretion an agent has regarding the transactions he or she is employed to perform does not bear on whether the agent is special or general. [Citation omitted.] ‘Thus, one is a general agent if he is in continuous employment, although the employment consists of purchasing articles as the employer directs with no discretion as to the kinds, amounts, or prices to be paid.’ [Citation omitted.]” 908 F. Supp. at 862.
We believe the definition of a general agent set out above is reasonable and find it persuasive.
Going further, we note that no Kansas case has addressed apparent authority in regards to service. However, other jurisdictions have found that the apparent authority principle is applicable to issues regarding service. See Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309 (Minn. 1997); Reisenger v. Reisenger, 39 S.W.3d 80 (Mo. App. 2001); Eastman Kodak Co. v. Miller & Miller Consulting Actuaries, Inc., 195 App. Div. 2d 591, 601 N.Y.S.2d 10 (1993); Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093 (Pa. Commw. 2004).
If the apparent authority doctrine is applied to the present case, then Sweeney had apparent authority to accept service. The facts indicated that Terry contacted Hanna and told her that either him or one of his representatives would be by to pick up the papers. Sweeney later arrived and identified himself as a representative of RVH, Inc. No facts exist which indicate that Hanna had any reason to doubt Sweeney’s capacity to accept the papers. Accordingly, service was proper.
We reverse the Schrages’ judgment and remand. We affirm the RVH, Inc. judgment.
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McAnany, J.;
Douglas Veach and David Francis (collectively referred to as Veach) appeal the district court’s entry of summary judgment in a declaratory judgment action commenced by Midwest Land Investment Co., LLC (Midwest). We affirm.
Joel and Lynn Shafton were in bankruptcy. The assets of the estate included two parcels of real estate located in Johnson County. In November 2003, the bankruptcy trustee entered into a real estate contract for the sale of these parcels to Dan Quigley for $155,000. Quigley was a member of Midwest. Paragraph 14 of the contract provided:
“Buyer’s and Seller’s performance hereunder shall be contingent upon and subject to Seller’s obtaining a final and nonappealable order from the Bankruptcy Court, pursuant to 11 U.S.C. § 362(f), authorizing Seller to consummate tire sale herein described .... Seller shall initiate the appropriate proceedings in the Bankruptcy Court to obtain said Court Order and shall prosecute said proceeding in good faith. In the event that the Bankruptcy Court issues a decision not to issue such Court Order, this contract shall be terminated . . . .”
On December 10, 2003, Quigley assigned to Veach his interest in this real estate sales contract for $10,000, the amount of earnest money Quigley paid under the contract. The assignment, standing alone, provided Quigley with nothing more than the return of his earnest money. Therefore, and on that same day, Midwest and Veach entered into a participation agreement for development of the real estate. Under this agreement, and as additional consideration for Quigley having assigned tire real estate contract to Veach, Veach agreed to give Midwest the initial opportunity to bid for a contract to provide marketing and sales services for the real estate. Further, Veach agreed to give Midwest 10% of the net profits from tire ultimate sale of the real estate or $250,000, whichever was less.
A week later, on December 18, 2003, the bankruptcy trustee advised that objections to the real estate sale had been filed. He reported that there were three potential buyers for the property, all of whom had apparently entered into contracts with the trustee similar to tire one entered into by Quigley. A hearing was set for the following day, December 19, and the parties were urged to attend since the trustee predicted that tire court would order an immediate auction of the property among the three potential buyers and thereafter approve the highest bid.
Veach appeared at the hearing on tire following day. As predicted, the court ordered an immediate auction and Veach’s bid of $275,000 was the highest. The court immediately confirmed the sale.
On February 17, 2004, Veach advised Midwest that he considered the participation agreement to be void and did not intend to comply with it since Veach acquired the real estate not through the contract assigned by Quigley, but rather by being the successful bidder at the auction. Midwest responded by filing suit in the district court for a declaratory judgment declaring that the participation agreement remained a valid and enforceable agreement. When the court sustained Midwest’s motion for summaiy judgment and upheld the validity of the participation agreement, Veach appealed.
We need not review the well-known standards for summary judgment recently reiterated in State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). Since we are in as good a position as the trial court to review the record and consider the parties’ claimed uncontroverted facts and the legal conclusions that may flow from them, our review is de novo. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). This is particularly so when, as here, there is no dispute as to the facts.
Consideration
Veach claims the district court erred in finding consideration for the participation agreement. The participation agreement was entered into as an inducement for Quigley to assign to Veach the real estate sales contract. Veach argues that the existence of other sales contracts between the trustee and other prospective buyers rendered Quigley’s contract worthless, and his assignment transferred nothing of value to Veach.
We are not persuaded by this argument. First, Veach knew when the parties entered into the participation agreement that the contract that was the subject of the assignment was contingent upon approval by the bankruptcy court. Second, tire assignment conveyed all of Quigley’s rights in the real estate contract to Veach. It was the participation agreement that induced Quigley to give up these contract rights. In exchange for the promises in the participation agreement, Veach received the right to buy the real estate for $155,000 absent a challenge to the sale in bankruptcy court. When the sale was challenged, Veach had the opportunity to bid on the property only because he succeeded to the interest of Quigley, who originally contracted to buy it. It was the promises contained in the participation agreement that induced Quigley to give up his rights in the real estate sales contract. Absent Quigley s contract and the assignment, Veach would have had no opportunity to become the successful bidder.
Veach argues that he could have bypassed Quigley entirely and dealt directly with the trustee, as other prospective buyers apparently did, to negotiate his own real estate sales contract for the property. While this may be true, this is not what Veach did. Since the assignment provided Quigley with no benefit other than the return of the earnest money he had paid, the participation agreement served as the added inducement for Quigley to forego his rights in the real estate sales contract in exchange for the benefits Midwest, his company, would enjoy. Thus, by entering into this transaction, Veach reaped the benefit of the time and effort expended by Quigley in contacting the trustee and negotiating the real estate sales contract.
By using the participation agreement to induce Quigley to assign to Veach his rights in the real estate sales contract, Veach eliminated Quigley as a competing potential buyer of the property. In arguing a lack of consideration, Veach focuses on the benefit, or lack thereof, to him. But consideration also may be based on the rights that Quigley gave up: here, the right to acquire the property if the court approved the contract, and the right to bid on the property if the court did not. See In re Estate of Shirk, 186 Kan. 311, 321-22, 350 P.2d 1 (1960). Before December 10, 2003, Quigley was a potential future owner of property in fee simple. After December 10, 2003, Quigley had no prospect of acquiring the property outright, but only the prospect that his company might share in future development profits if Veach could successfully close the transaction. There clearly was consideration to support the participation agreement.
Mutual Mistake
Veach next argues that the district court erred in granting summary judgment because the documents were not clear and un ambiguous on their face and were not explained by parole evidence, which was necessary for their inteipretation. Veach argues that the ambiguity arose from the lack of any provision in the documents regarding what would happen if the purchase price for the real estate increased substantially. Veach claims that the documents are silent on this issue because there was a mutual mistake that the property could be acquired for $155,000.
The contingent nature of the deal was made clear in paragraph 14 of the real estate contract. There is no evidence that Quigley was mistaken and unaware of the possibility of an auction. Veach had the duty to read and obtain an explanation of the contents of the written documents before signing them. See Albers v. Nelson, 248 Kan. 575, 578-79, 809 P.2d 1194 (1991). He could have inquired further of the bankruptcy trustee regarding the contingency of court approval. If he was mistaken about the contents of the documents, the general rule is that in the absence of fraud, such a unilateral mistake will not excuse his duty to perform. See 248 Kan. at 580. Veach makes no allegation of fraud by either Quigley or Midwest.
Finally, tire documents are silent on the question of what happens if the sale cannot be consummated for $155,000, because performance under the participation agreement is not contingent on the ultimate price of the real estate. The assignment, the participation agreement, and the real estate sales contract are clear and unambiguous and do not require parole evidence.
In reality, Veach’s arguments address an objection not to the existence of consideration legally sufficient to support a contract, but rather to the adequacy of the consideration to support a profitable business transaction. It is not the task of the courts to rewrite contracts or deny their enforcement simply to correct an improvident business decision.
Veach acquired rights to the real estate sales contract by giving up a portion of the future profits he anticipated from development of the property. He knew that the real estate sales contract was contingent on court approval. When approval was not forthcoming, he participated in an auction for the property which resulted in an increased acquisition cost. At the time of his bid, Veach knew of his obligation to Midwest should he be the successful bidder and should have taken that fact into account. Veach now claims, in retrospect, that his obligation to Midwest under the participation agreement undercuts the profitability of the transaction. In other words, he either gave up too much in the participation agreement or made too high a bid in the auction for the property. Our task is to review the soundness of decisions of trial courts, not the soundness of business decisions of litigants. That review leads us to conclude that the district court did not err in granting summaiy judgment in favor of Midwest.
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McAnany, J.:
This appeal presents the situation of a child caught between three warring former marriage partners. The ultimate issue here is whether the district court erred in ordering stepparent visitation with B., now 8 years of age. Finding the district court’s decision error free in eveiy respect, we affirm.
Julianne (Julie) Riggs and Lars Hem, the natural parents of B., were married on January 19, 1996. B. was born on November 22, 1997. Within weeks following B.’s birth, Julie filed for divorce from Lars. She then began living with Charlie Riggs in January 1998, when B. was about 2 months old. Julie’s divorce from Lars was effective the following summer on June 4, 1998.
From the outset Julie told B. that Charlie was her father, and B. called Charlie “daddy.” Lars had only sporadic contact with B. for the first 6lA years of her life. At various times, Julie asked Lars about giving up his parental rights so Charlie could adopt B., but Lars never agreed to do so.
On October 26, 1998, K. was born to Julie and Charlie. K. and B. developed a close sibling relationship. Julie and Charlie were finally married on October 5, 2002. The following year, on August 27, 2003, Julie obtained a decree, with Lars’ consent, to change B.’s name from Hem to Riggs, the name of her new husband.
Julie’s second marriage was also short-lived. On April 1, 2004, Julie filed for divorce. It was at this time drat she told B. for the first time that Charlie was not her father.
On May 11, 2004, Charlie filed a motion to intervene in the original divorce action between Julie and Lars in order to assert a claim for stepparent visitation with B. Three days later, Julie obtained a decree changing B.’s name from Riggs back to Hem.
On June 28, 2004, the district court granted Charlie’s motion for temporary stepparenting time, to begin 2 days later. B., who was obviously confused and angry upon learning the person she had always known as her father was not her father, expressed the desire not to see Charlie any further, and Charlie’s last visit with her was on September 22, 2004.
Julie’s divorce from Charlie was granted on September 29,2004. Two days later Lars moved to suspend Charlie’s visitation time with B. Julie filed a parallel motion. At the hearing on these motions, Dr. Christine Hillila testified to the strong, loving relationship between B. and Charlie that developed over the years. B.’s guardian ad litem, attorney Frank Gilman; her therapist, Dr. LeCluyse; and Dr. Schmidt, appointed by the court to conduct an evaluation, all agreed that it was in B.’s best interests that she have continued contact with Charlie. The district court denied the motions to terminate stepparent visitation and this appeal followed.
Charlie as a Stepparent
Julie and Lars argue that the court erred in granting Charlie visitation since he is no longer B.’s stepparent, that relationship having ended when Julie divorced him. They reach this conclusion by examining K.S.A. 60-1616(b), which provides that “[grandparents and stepparents may be granted visitation rights,” but makes no reference to former stepparents. In further support of their position, they contend that since K.S.A. 59-2112, which relates to stepparent adoptions, refers to adoption by the spouse of a parent, when one is no longer the spouse of a parent one is no longer a stepparent. They also cite other statutes that refer to a former spouse or former parent, and reason from this that the absence of the word “former” in referring to stepparents means Charlie is not covered by the statute providing for stepparent visitation.
We exercise unlimited review in questions of law, such as the interpretation of statutes. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). In doing so, we construe statutes to avoid unreasonable results, and presume that the legislature did not intend to enact meaningless legislation. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). We examine the various provisions of an enactment in order to bring them into workable harmony if possible. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
K.S.A. 59-2112, the stepparent adoption statute which Julie and Lars rely upon, does not apply. It obviously refers to a stepparent adoption in the context of a current intact family. K.S.A. 60-1616 typically comes into play during the process, or the aftermath, of the breakup of a family. Further, K.S.A. 60-1616 contains no language that limits its application only to temporary visitation orders pending the granting of the divorce. It clearly applies to orders for visitation when or after a divorce has been granted. Its intent is obvious: to give stepparents and grandparents visitation rights under the appropriate circumstances, including while the divorce action is pending or thereafter. It does not limit the time when a motion may be brought. It specifically provides that “[t]he court may modify an order granting or denying parenting time or visitation rights whenever modification would serve the best interests of the child.” K.S.A. 60-1616(c). Its purpose would be utterly frustrated if it applied only to temporary orders pending entry of the final decree of divorce.
Aside from instances of temporary orders for stepparent visitation pending a divorce, Lars and Julie suggest that the stepparent visitation statute was intended also to apply in situations such as when the parents of a child are divorced; one of the parents remarries, thereby bringing a stepparent into the equation; that parent leaves the country for an extended period, such as being deployed for military service in Iraq; and the stepparent must file a motion for visitation during the parent’s absence to maintain contact with the stepchild. While this is one rather out-of-the-mainstream scenario in which the statute could be invoked, if the legislature intended its application to be so narrowly restricted, it certainly could have done so. A commonsense reading of the statute indicates otherwise.
Finally, Julie and Lars raise the familiar “floodgate” argument, citing the statistic of over 10,000 divorces in Kansas in 2002. While they cite no statistics on remarriage after a divorce, they suggest that those 10,000 Kansas divorces have the prospect of creating some lesser, but nonetheless impressive, number of stepparents. They argue that if K.S.A. 60-1616(b) includes former stepparents, “it will create a substantial policy dilemma for the state of Kansas.” We doubt it. The statute does not mandate visitation for every stepparent. It simply allows them to seek visitation which the court may or may not grant as circumstances warrant. Doubtless, not every stepparent has enjoyed the close, natural-parent-like relationship from the child’s birth that Charlie enjoyed with B. A commonsense reading of the statute supports its application under circumstances such as Charlie’s. Charlie is a stepparent within the contemplation of K.S.A. 60-1616(b).
The Constitutionality of K.S.A. 60-1616(b)
Julie and Lars contend that the district court erred in finding K.S.A. 60-1616(b) was constitutional as ultimately construed. They argue that while the district court found K.S.A. 60-1616(b) was unconstitutional standing on its own, it erred when it construed the statute together with K.S.A. 38-129(a) to find it constitutional.
Julie and Lars contend that 60-1616(b), on its face, does not satisfy the due process requirements set out in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). In Troxel, tire Supreme Court examined a Washington visitation statute which allowed any person to petition for visitation rights at any time, and allowed state courts to grant visitation rights whenever it was in the best interests of the child, without any regard to the reasonable wishes of a fit custodial parent. The Troxel Court found the statute was an unconstitutional infringement on a custodial parent’s fundamental right to make decisions concerning the care, custody, and control of her children. The statute contradicted the traditional presumption that a fit parent will act in the best interests of his or her child, and failed to accord special weight to a fit parent’s decision.
Unlike the Washington statute, K.S.A. 60-1616(b) provides visitation rights only to grandparents and stepparents. However, on its face it places no limitations on the district court’s discretion to grant visitation rights to grandparents or stepparents. In Skov v. Wicker, 272 Kan. 240, 32 P.3d 1122 (2001), our Supreme Court resolved the constitutionality of K.S.A. 60-1616(b) in the context of grandparent visitation by reading 60-1616(b) together with K.S.A. 38-129(a). K.S.A. 38-129(a) deals with grandparent visita tion in general terms. The court found 60-1616(b) was constitutionally infirm because it is overly broad, but that K.S.A. 38-129(a) clarifies the limits of a court’s discretion in awarding visitation. When these two statutes are read together, the hmitations of K.S.A. 38-129(a) are sufficient to constitutionally limit the breadth of K.S.A. 60-1616(b).
Neither K.S.A. 38-129(a) nor Skov deal with stepparent visitation rights. The district court applied K.S.A. 38-129(a) and the rationale of Skov to the stepparent provisions of K.S.A. 60-1616(b). The question for today is whether the rationale of Skov applies to stepparent visitation so as to maintain the constitutionality of K.S.A. 60-1616(b) in its present application.
As noted earlier, we exercise unlimited review in questions of law, such as the interpretation of statutes. Cooper, 277 Kan. at 252. Further, we presume that the statute is constitutional and resolve all doubts in favor of its validity. We will not strike it down unless it clearly violates the constitution. Our duty is to construe the statute in such a way that it is constitutional if we can do so without doing violence to the legislature’s intent in enacting the statute. State v. Van Hoet, 277 Kan. 815, 829, 89 P.3d 606 (2004).
Even if a statute appears to be unconstitutional on its face, it may nevertheless be constitutional when limited and construed as in Skov by reading into the statute any necessary judicial requirements or constraints, provided such an interpretation is consistent with tire intent of the legislature. State v. Kleypas, 272 Kan. 894, 1017, 40 P.3d 139 (2001), cert denied 537 U.S. 834 (2002); State v. Motion Picture Entitled “The Bet,” 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 485-86, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 156-58, 434 P.2d 999 (1967).
Here, the district court found that on its face K.S.A. 60-1616(b) was unconstitutionally overbroad. However, using the rationale in Skov, the district court interpreted K.S.A. 60-1616(b) to be constitutional by reading the requirements of K.S.A. 38-129(a) into it, notwithstanding the absence of any reference to stepparent visitation in the latter statute. The obvious problem is that in Skov, the court had the benefit of an ancillary statute applying specifically to grandparents that it could engraft onto the challenged grandparent visitation statute to render it constitutional. Here, however, the district court seems to be grafting the branch of a pear tree onto an apple tree. While this may not offend botanists, is it proper to do so here? We must satisfy ourselves that such judicial tinkering with K.S.A. 60-1616 is not an impermissible invasion into the legislative domain.
Our Supreme Court pondered these questions in State v. Motion Picture Entitled “The Bet” when confronted with an attack on the Kansas obscenity statute when measured against United States constitutional standards. The court observed:
“This court has on previous occasions seen fit to construe and limit criminal statutes in such a way as to uphold their constitutionality by reading judicial requirements into statutes which otherwise were overbroad.
“K.S.A. 21-2437 (relating to possession of burglary tools) was construed to require proof of intent to employ tools in the course of burglarious episodes, whenever and wherever opportunity might present itself. In State v. Hart, 200 Kan. 153, 434 P.2d 999, we state, ‘So construed, we have no hesitancy in holding the statute to be free of constitutional infirmity. . . .’ [Citation omitted.]
“K.S.A. 1971 Supp. 21-3419 (relating to terroristic threats) was construed to proscribe a communicated intent to inflict physical or other harm on any person or on property and reduce a person to an extreme fear that agitates body and mind. In State v. Gunzelman, 210 Kan. 481, 502 P.2d 705, 58 A.L.R.3d 522, we hold that given such limiting definitions for the words ‘threat’ and ‘terrorize’ the statute survives constitutional challenge. [Citation omitted.]
“Construction of this sort, moreover, was invited by the United States Supreme Court in Miller in which the Chief Justice speaking for a majority said:
“We do not hold . . . that all States . . . must now enact new obscenity statutes. Other existing state statutes as construed heretofore or hereafter, may well be adequate. [Citation omitted]’ (413 U.S. 24, note 6, 37 L. Ed. 2d 430, 93 S. Ct. 2615.)” State v. Motion Picture Entitled “The Bet,” 219 Kan. at 70.
In Hart, the defendant attacked the constitutionality of the statute that makes criminal the possession of burglary tools. He claimed the statute was unconstitutionally vague because it made the mere possession of certain tools criminal without regard to intent. The Supreme Court read into the statute the requirement of intent based upon a common sense reading of the statute and analyses conducted by the high courts of other states on their own similar statutes. In Gunzelman, our Supreme Court did not have any legislative pronouncement to define “terrorize,” so the court relied upon common sense, the dictionary definition, and the interpretation of the word by courts in other states to define “terrorize” and overcome a claim of unconstitutional vagueness.
It is clear that limiting language that the courts engraft on an otherwise constitutionally infirm statute can arise from many sources and is not limited to language in other statutes, such as the other statute referred to in Skov. If a court can look to sources beyond our statute books for guidance, it surely is proper for it to seek guidance from a statute that expresses legislatively imposed limitations on the power of the courts to grant visitation to persons other than natural parents.
Although Skov did not consider stepparent visitation, its reasoning is not inimical to Charlie’s visitation claim. K.S.A. 60-1616(b) treats grandparents and stepparents in an identical fashion. Each may move the court for visitation, and each may or may not be granted visitation, depending upon the facts. What Skov engrafted onto K.S.A. 60-1616(b) are the requirements from K.S.A. 38-129 that (1) the visitation is in the child’s best interests, and (2) there exists a substantial relationship between the child and the grandparent. While Julie and Lars complain that K.S.A. 38-129 does not refer to stepparents, they do not argue that the two requirements of the statute are somehow inadequate for evaluating visitation claims by stepparents. What additional standards should be imposed on a stepparent before the court could grant visitation? If a court can grant visitation to a grandparent who has a substantial relationship with the child and it is in the child’s best interests that visitation be ordered, why would that not also be enough for visitation with a stepparent? Julie and Lars do not suggest a more stringent standard. We conclude that no reasonable basis has been established upon which we should distinguish the standards for examining a stepparent’s claim for visitation from a grandparent’s claim.
A court is not permitted to strike down a legislative enactment merely to substitute its own belief of what the law ought to be for that of the legislature. Likewise, we must resist similar efforts by litigants who seek to bend the law to their own ends when the constitutionally of an enactment can be saved by construing it in a manner that is both constitutional and consistent with legislative intent. That is what we face today: a statute that is constitutional when construed in a manner consistent with the legislature’s intent.
The district court did not err in its analysis. K.S.A. 60-1616(b) is constitutional with regard to stepparent visitation when the requirements and limitations enumerated in Troxel, Skov, and K.S.A. 38-129(a) are engrafted onto it.
The Order for Visitation
Finally, Julie and Lars argue that even if K.S.A. 60-1616(b) is constitutional, the district court erred in ordering stepparent visitation. They argue the district court could only issue an order overriding their wishes if they proposed an unreasonable visitation plan. They argue the district court did not find their proposed plan unreasonable, and thus the court could not grant visitation over their objections.
This argument fails both factually and conceptually. Their visitation plan for Charlie was that he should have none. At the hearing on their motions to discontinue Charlie’s visitation, Julie and Lars argued that the visitation was causing B. emotional trauma and that stepparent visitation was unconstitutional.
While it is true, as Julie and Lars claim, that the district court believed Lars and Julie were generally acting in B.’s best interests, they failed to note the court’s finding that in seeking to bar all visitation between B. and Charlie, the only father B. had known for the first 6 of her then 7 years of life, they were not acting in B.’s best interests.
In In re T.A., 30 Kan. App. 2d 30, 38 P.3d 140 (2001), which dealt with grandparent visitation, the court noted that because this type of visitation interferes with a parent’s constitutional right to rear his or her children, the district court must give material weight and deference to the position of a fit parent. It held that “[t]he trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parent’s, absent a finding of unreasonableness.” 30 Kan. App. 2d at 35. “Absent a finding of unreasonableness, the trial court should adopt a grandparent visitation plan proposed by the parent.” 30 Kan. App. 2d 30, Syl. ¶ 4.
The only proposal to the district court from Julie and Lars was that they, as parents, abdicate any guidance over their daughter on this issue and simply defer to the wishes of a 7-year-old child as to whether she wants to see Charlie. This was tantamount to no plan at all. The district court exercised proper deference to the position of Julie and Lars, but found that in this instance their proposal for visitation was unreasonable.
Once die parental preference presumption was rebutted with substantial evidence, the court considered the history and nature of the relationship between B. and Charlie over the years and the substantial expert testimony and recommendation of B.’s guardian ad litem that visitation with Charlie would be in B.’s best interests. In doing so the district court satisfied the factors enumerated in K.S.A. 38-129(a) and Skov. Accordingly, the district court did not err in granting stepparent visitation to Charlie.
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Green, J.:
Nathaniel Swenson appeals from the trial court’s denial of his K.S.A. 60-1507 motion. First, Swenson argues that the trial court in his underlying criminal case should not have allowed the State to amend the complaint. We determine that the State’s amendment of the complaint before trial to charge attempted first-degree murder was proper as there was no indication from the record that Swenson’s substantial rights were prejudiced. Moreover, Swenson’s argument relating to the State’s amendment of the complaint during trial to alternatively charge aggravated battery is moot because Swenson was never convicted of this offense.
Next, Swenson contends that the trial court failed to make adequate findings of fact and conclusions of law on all the issues presented in his 60-1507 motion. With the exception of one ineffective assistance of counsel issue, we determine that the trial court’s factual findings and legal conclusions adequately addressed the issues in this case. Next, Swenson asserts that his trial attorney was ineffective for failing to investigate exculpatory witnesses; for failing to move for arrest of judgment; and for failing to provide a defense to the element of premeditation. We determine that an evidentiary hearing is necessaiy to address the issue of whether defense counsel was ineffective for failing to investigate a witness who had information that possibly could show Swenson’s innocence. As to all other ineffective assistance of counsel issues raised by Swenson, we determine that his arguments lack merit.
Finally, Swenson maintains that his appellate attorney was ineffective for failing to timely petition our Supreme Court for review of his case. Because Swenson has failed to establish that he was prejudiced by the action of his appellate attorney, his claim of ineffective assistance of counsel fails. Accordingly, we affirm in part, reverse in part, and remand for an evidentiary hearing.
In his underlying criminal case, Swenson was charged with aggravated battery in November 1999. Swenson waived preliminary hearing. In February 2000, the State filed an amended complaint and information charging Swenson with attempted first-degree murder. An aggravated battery charge was not included in the amended complaint and information. A prehminary hearing was conducted, and Swenson was bound over and arraigned on the attempted first-degree murder charge. At the preliminary hearing, the victim in this case, Freddie Hooks, Jr., indicated that he had been shot multiple times during an incident occurring in September 1999 and had sustained life-threatening injuries. Hooks identified Swenson as the individual who had shot him.
In June 2000, the case against Swenson proceeded to a jury trial. After opening statements but before the presentation of evidence, the prosecutor stated that he would be filing an amended information to include an aggravated battery charge. Indicating that the amended complaint and information was in response to Swenson wanting a jury instruction on aggravated battery and that there was no objection by Swenson to filing an amended information, the prosecutor stated:
“[Prosecutor:] I think we needed to make a record. We discussed it a little bit about proceeding on this Amended Information and no objection to going right into the jury trial on this Amended Information, which I don’t believe — I believe I’m entitled to do it, but it’s my understanding, too, that the defense wanted an instruction on an agg. battery. I decided that the safest way to do it is to do it through an alternative count.
“I just want it clear that there is no objection to the Amended Information and then proceeding right into the jury trial on this Amended Information.
“The Court: [Defense counsel?]
“[Defense counsel:] No objection, Your Honor.
“The Court: All right. That’s the way we’ll proceed.”
During the jury trial, Hooks again testified about the severity of his injuries resulting from the shooting and identified Swenson as the person who shot him. Swenson did not testify at trial. The jury was instructed on the crimes of aggravated battery, attempted first-degree murder, and attempted second-degree murder. The jury found Swenson guilty of attempted first-degree murder. Swenson was sentenced to 203 months in prison. One day after the jury verdict, the State filed a written amended information charging Swenson with attempted first-degree murder or alternatively aggravated battery.
Swenson appealed his conviction to this court, arguing that the trial court should have instructed the juiy that Hooks’ credibility had been impeached by his prior convictions and that the trial court erroneously allowed an officer to compare Swenson’s appearance in court to his appearance in a mug shot. This court affirmed Swenson’s conviction. Swenson’s counsel failed to timely file a petition for review with our Supreme Court. Although Swenson’s counsel moved to file the petition for review out of time, his request was denied.
In March 2003, Swenson moved for relief under K.S.A. 60-1507 as a pro se litigant. In his 60-1507 motion, Swenson alleged that the amended complaint and information was fatally defective due to the element of premeditation being omitted from his attempted first-degree murder charge; that his attorney was ineffective by not filing a motion for arrest of judgment and by not presenting a defense against premeditation; that the trial court abused its discretion by failing to take notice that the element of premeditation was omitted from the amended complaint and information; that the trial court abused its discretion by allowing the State to amend the complaint to charge a different crime; that his trial counsel was ineffective by not calling witnesses who could provide exculpatoiy testimony and could discredit Hooks’ testimony; and that his appellate counsel was ineffective by failing to timely file a petition for review.
The trial court conducted a nonevidentiary hearing at which it heard arguments from Swenson’s counsel and from the State. At the conclusion of the hearing, the trial court found that Swenson’s presence was not necessaiy and that the files and records conclusively established that Swenson was not entitled to relief.
I. Standard of Review
There are three avenues of approach for the trial court faced with a K.S.A. 60-1507 motion. First, the court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the movant’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Finally, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the movant. If the issue or issues are substantial, involving events in which the movant participated, the court must proceed with a hearing involving the presence of the movant. Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000).
Here, tire trial court followed the third avenue of approach by appointing counsel and conducting a preliminary hearing. After the preliminary hearing, the trial court concluded that no substantial question of law or triable issues of fact had been raised and denied Swenson relief on his 60-1507 motion. The trial court has discretion to ascertain whether the claim is substantial before granting an evidentiary hearing and ordering the prisoner’s presence at the hearing. Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004); Supreme Court Rule 183(h) (2005 Kan. Ct. R. Annot. 228). Judicial discretion is abused when no reasonable person would take the view of the trial court. Woodberry v. State, 33 Kan. App. 2d 171, 173, 101 P.3d 727, rev. denied 278 Kan. 853 (2004).
II. Jurisdiction
First, Swenson contends that the trial court never obtained jurisdiction in his underlying criminal case on either the attempted murder or aggravated battery charge. Relying on K.S.A. 2005 Supp. 22-3201(e), Swenson maintains that there was no jurisdictional authority for the State to amend the complaint to charge a new crime. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Hodgden, 29 Kan. App. 2d 36, 38, 25 P.3d 138, rev. denied 271 Kan. 1040 (2001).
The State alleges that Swenson failed to raise this issue in his 60-1507 motion and thus it is not properly before this court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Nevertheless, it appears that Swenson sufficiently raised this issue in his pro se 60-1507 motion when he.argued that the trial court erred in allowing the State to amend the complaint to charge a different crime from that contained in the original complaint. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (Pro se pleadings are to be given a liberal construction.). In liberally construing Swenson’s pro se 60-1507 motion, we determine that he sufficiently raised his present argument at the trial court level.
Moreover, Swenson’s argument is essentially that the trial court lacked subject matter jurisdiction over his charged offenses of attempted first-degree murder and aggravated battery. An objection that is based on lack of subject matter jurisdiction may be raised at any time, whether it is raised for the first time on appeal or upon the appellate court’s own motion. Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999).
A. First Amended Complaint
Swenson maintains that K.S.A. 2005 Supp. 22-3201(e) prohibits the State’s action of amending the complaint and information to charge attempted first-degree murder, a crime that was different from the original aggravated battery charge.
The original complaint and information in this case charged Swenson with aggravated battery. Before trial, the State filed an amended complaint and information charging Swenson with attempted first-degree murder. No aggravated battery charge was included in this amended complaint and information. ■
K.S.A. 2005 Supp. 22-3201(e) states: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if sub stantial rights of the defendant are not prejudiced.” (Emphasis added.) Our Supreme Court in State v. Woods, 250 Kan. 109, Syl. ¶ 2, 825 P.2d 514, cert. denied 506 U.S. 850 (1992), stated that K.S.A. 22-3201(4) (the current version of which is K.S.A. 2005 Supp. 22-3201[e]) does not forbid differentiation between allowing the State to amend a complaint before trial and during trial. Our Supreme Court held that “[p]rior to trial, the trial court has discretion to allow an amendment to a complaint, including the charging of a different crime, provided the substantial rights of the defendant are not prejudiced.” 250 Kan. 109, Syl. ¶ 1.
Swenson fails to set forth any argument as to how his substantial rights were prejudiced when the State amended the complaint before trial to charge attempted first-degree murder. The State amended the complaint nearly 4 months before trial. The trial court conducted a preliminary hearing and bound over Swenson on the attempted first-degree murder charge. The victim testified at the preliminary hearing about the severity of his injuries and identified Swenson as the individual who had caused these injuries. Thus, Swenson was well aware of the allegations against him several months before trial. We are unable to determine that Swenson’s substantial rights were prejudiced by the amendment of the complaint.
B. Second Amended Complaint
Swenson also argues that the second amended information in which the State added an alternative count of aggravated battery was jurisdictionally defective because a new charge was added and he was never given a preliminary hearing nor was he arraigned on the charge. We point out that Swenson was originally charged with aggravated battery and chose to waive preliminary hearing on this charge. Nevertheless, because Swenson was not convicted of aggravated battery, it is unnecessary to address his argument that the trial court lacked jurisdiction to try him on this offense.
III. Findings of Fact and Conclusions of Law
Next, Swenson argues that die trial court failed to make findings of fact and conclusions of law on all of the issues raised in his K.S.A. 60-1507 motion. Kansas Supreme Court Rule 183(j) (2005 Kan. Ct. R. Annot. 228) requires the trial court to malting findings of fact and conclusions of law on all issues presented in a K.S.A. 60-1507 motion. See Stewart v. State, 30 Kan. App. 2d 380, 382, 42 P.3d 205 (2005) (determining that trial court failed to make findings of fact and conclusions of law on all of movant’s arguments and remanding case for compliance with Rule 183[j]).
Case law interpreting Rule 183(j) indicates that a trial court must issue findings of fact and conclusions of law so that there can be meaningful appellate review. Therefore, this court looks not only to the journal entry but also to the trial court’s oral comments at the time of the hearing. If the record contains a transcript of the trial judge’s oral findings and conclusions and they met Rule 183(j)’s requirements, then remand is not required. Harris v. State, 31 Kan. App. 2d 237, 239, 62 P.3d 672 (2003).
Swenson maintains that the trial court failed to adequately address the following two arguments raised in his 60-1507 motion: (1) that his trial counsel was ineffective by failing to contact and investigate witnesses; and (2) that his trial counsel was ineffective by failing to present any defense to the element of premeditation. We will discuss the trial court’s findings and conclusions more thoroughly in the issues to follow. As an appellate court, our function is to determine whether the trial court’s factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the trial court’s conclusions of law. Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998).
TV. Ineffective Assistance of Counsel
Next, Swenson maintains that he was denied effective assistance of counsel when his trial counsel failed to contact exculpatory witnesses, failed to move for arrest of judgment based upon a defective complaint, and failed to defend against the element of premeditation.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Our review is to determine whether the trial court’s findings of fact have substantial support in the evidence and whether the trial court’s conclusions of law follow as a matter of law from those facts. State v. Davis, 277 Kan. 309, 315, 85 P.3d 1164 (2004).
The test used in determining whether trial counsel’s assistance was so defective as to require reversal of Swenson’s convictions is two-fold. First, the defendant must establish that counsel’s performance was deficient, meaning counsel made errors so serious that his or her performance was less tiran that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel’s deficient performance prejudiced the defense, which requires a showing that counsel’s errors deprived the defendant of a fair trial. State v. Davis, 277 Kan. at 314.
“There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.] 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.” State v. Betts, 272 Kan. 369, 387-88, 33 P.3d 575 (2001). Moreover, “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Chamberlain v. State, 236 Kan. 650, 657, 694 P.2d 468 (1985).
A. Failure to Investigate Witnesses
Swenson argues that his trial attorney failed to contact or interview exculpatory witnesses who could have assisted in his defense. Swenson maintains that his trial attorney had a letter from Robert Turner stating that Hooks had told Turner that Swenson had not shot Hooks.
Swenson attached the letter from Turner to his 60-1507 motion. In his letter, Turner indicated that he had spoken with Hooks while they were at Ellsworth Correctional Facility in September 1999. According to Turner, Hooks was a “crips” gang member and had told him that Hooks had been “shot up by some big black dud[e] who was a blood [gang member].” Turner indicated that he was telling the truth because he was “a changed man in Christ Jesus” and wanted to help Swenson. Turner further indicated that his statements could place him in danger but that he was willing to testily at Swenson s trial.
In a letter written shortly after Swenson’s sentencing, Swenson’s trial attorney stated that Turner was not called as a witness because of trial strategy. Swenson’s trial attorney further stated, “His criminal record makes Hooks look like an angel. This testimony would have been unbelievable to the jury and would have hurt our case more than help.”
At the 60-1507 hearing, the trial court determined that defense counsel’s actions were a matter of trial strategy, stating:
"Mr. Swenson next argues that trial counsel was ineffective for failing to call witnesses on his behalf. This allegation does not establish ineffective counsel. This was trial strategy on the part of defense counsel. This is clearly evident from the letter dated July 27th, 2000, to Mr. Swenson from trial counsel, which is marked Exhibit B and is attached to Mr. Swenson’s habeas corpus petition. It clearly appears to the Court that trial counsel’s action was very reasonable, and it was made with his client’s best interest in mind.”
The decision of whether to call a particular witness is a matter of trial strategy. See Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). “On the other hand, defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made. [Citation omitted.]” Mullins v. State, 30 Kan. App. 2d 711, 716, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). When counsel does not have the information to make an informed decision due to an inadequate investigation, any argument of “trial strategy” is improper. 30 Kan. App. 2d at 716-17.
It is important for defense counsel to find out the names of all individuals who would be able to establish the defendant’s innocence. Defense counsel should interview all witnesses at the earliest possible date and should take recorded statements. 1 Gold-stein Trial Technique, The Criminal Case § 4:8 (3d ed. 2005). Here, defense counsel had information that possibly could establish Swenson’s innocence in the shooting. Nevertheless, there is no indication in the record that defense counsel made any attempt to interview Turner about the contents of his letter.
Attached to Swenson’s 60-1507 motion is a March 2005 affidavit from Turner in which he stated that he and Hooks had been members of the “insane crips” gang. Turner stated that during their September 1999 conversation at Ellsworth Correctional Facility, Hooks had told him that he had been shot by a blood gang member named Rodney over a dispute concerning Rodney’s girlfriend. Hooks told Turner that Swenson was not the shooter. Turner further stated in his affidavit that due to his long relationship with Hooks, Turner believed that Hooks was telling the truth about Swenson not being the shooter.
Based on his March 2005 affidavit, Turner had information indicating that Swenson was not the proper individual to be charged in this case. The person whom Hooks had implicated in his conversation with Turner was Rodney, the individual who was with Swenson when the shooting occurred. At trial, Hooks had testified that a black man named Rodney was with Swenson at the time of the shooting. Hooks further testified that he had consumed alcohol and smoked marijuana laced with cocaine before he was shot. Although Hooks indicated that he was not so “messed up” that he failed to recognize people, the jury could have found that Hooks was impaired by the combination of drugs and alcohol. If Turner would have testified at trial about tire information revealed in his letter and affidavit, this testimony might have been enough to convince the jury that Swenson did not shoot Hooks as the State alleged.
Clearly, defense counsel would want to interview or attempt to interview all key witnesses before trial. Swenson’s trial attorney had received potentially exculpatory information, and there is no indication from the record whether he made any effort to investigate this information. As pointed out in 1 Goldstein Trial Technique, The Facts §1:1, p. 1-4, “[witnesses in the client’s cause of action should be thoroughly examined and investigated. The attorney or the investigator must interview each person who has knowledge of the occurrence or incident.”
In his letter to Swenson, defense counsel indicated that his decision not to call Turner as a witness was based on Turner’s criminal history. Defense counsel suggested that the jury would not have found Turner credible due to his criminal history. Nevertheless, defense counsel had no other witnesses who could establish Swenson’s innocence. In fact, defense counsel did not present any witnesses at trial. Even if Turner had a significant criminal history, he was a witness who could possibly show that Swenson did not shoot Hooks. Moreover, Hooks also had a significant criminal history that included convictions for attempted robbery and theft. It would be for the jury to determine who was more credible in this case.
In denying Swenson’s ineffective assistance of counsel claim on this issue, the trial court focused on trial strategy which related to the performance prong of the test for ineffective assistance of counsel. Nevertheless, we have determined that defense counsel’s conduct was not properly attributable to trial strategy and that defense counsel had a duty to investigate the contents of Turner’s letter. The record in this case, however, fails to establish whether defense counsel followed up on Turner’s letter by interviewing or attempting to interview Turner. As a result, we remand for an evidentiary hearing on the issue of whether defense counsel was ineffective by failing to investigate Turner as a witness in Swenson’s criminal case.
Swenson further argues that his trial attorney failed to utilize evidence from his family regarding untrue statements made by Hooks to law enforcement. At trial, deputy Ann Marie Wenzel testified that Hooks had shown her an affidavit given to him that he was supposed to sign and have notarized. According to Wenzel, Hooks was supposed to say in the affidavit that he was not the suspect in the case. Hooks was supposed to send the affidavit to Lily Jackson at 2255 North Roosevelt in Wichita. Hooks told Wenzel that Jackson was Swenson’s grandmother.
In his 60-1507 motion, Swenson asserted that his mother would have testified that he does not have a grandmother named Lily Jackson nor does his grandmother live in Wichita. Nevertheless, Swenson fails to provide any supporting affidavit from his mother showing that this would have been her testimony. Swenson had the burden to prove his 60-1507 motion warranted an evidentiary hearing by including facts and evidence to support his motion. Without such evidence, Swenson has failed to establish that his counsel was ineffective in this regard.
B. Failure to Move for Arrest of Judgment
Next, Swenson asserts that the amended complaint charging first-degree murder was jurisdictionally defective because it failed to include the element of premeditation. Swenson maintains that his trial counsel was ineffective for failing to object and move for arrest of judgment based on the defective complaint.
If tire defendant seeks to challenge a complaint as defective, the proper procedure is to file a motion for arrest of judgment under K.S.A. 22-3502 with the trial court. State v. Shirley, 277 Kan. 659, 661-62, 89 P.3d 649 (2004). Where a motion filed under K.S.A. 60-1507 claims trial counsel was ineffective because counsel did not file a motion to dismiss or to vacate the judgment that alleged a defective information or complaint, the common-sense rule announced in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), will be used to analyze the prejudicial prong in the test for ineffective assistance of trial counsel. Ferguson v. State, 276 Kan. 428, 444-45, 78 P.3d 40 (2003).
Under the common-sense rule announced in Hall, the complaint or information is construed liberally in favor of validity and the record is reviewed as a whole. The sufficiency of the charging document will be determined on practical considerations. State v. Waterberry, 248 Kan. 169, 170-71, 804 P.2d 1000 (1991). To succeed, the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. 248 Kan. at 171.
Here, the amended complaint charged Swenson with attempted first-degree murder as follows:
“On or about the 3rd day of September, 1999, A.D., one NATHANIEL L. SWENSON did then and there unlawfully, intentionally, towards the perpetration of the crime of First Degree Murder, as defined by K.S.A. 21-3401, commit the following overt act, to-wit: shoot with a firearm, to-wit: Freddie L. Hooks, Jr., with the intention to commit said crime, and the said NATHANIEL L. SWENSON failed in the perpetration thereof.”
As Swenson maintains, the element of premeditation is missing from the express language of the complaint.
Swenson contends that he was prejudiced by the complaint’s omission of the premeditation element because he was unable to fully and appropriately present a defense. Nevertheless, the trial court found that the amended complaint properly advised Swenson of the attempted first-degree murder charge, stating: “As evidence of this, the court would cite defense counsel’s Closing Argument, wherein he argued the evidence did not prove premeditation.” We agree with the trial court. In closing argument, defense counsel argued in part: “You can’t assume that die intent was there, and you can’t assume that premeditation was there.” This shows that defense counsel was well aware of the premeditation element and attempted to present a defense to it. There is no indication in the record that the defense was prejudiced by the omission of the premeditation element in the complaint.
C. Failure to Provide a Defense to the Element of Premeditation
Swenson further contends that his trial attorney was ineffective for taking no action to defend against premeditation. As pointed out above, the trial court stated that defense counsel had argued to the jury that the evidence failed to prove premeditation. Swenson fails to show what other action defense counsel should have taken in defending against premeditation. We determine that Swenson’s argument lacks merit.
D. Failure to Call Swenson as a Witness
In his 60-1507 motion, Swenson also alleged that his trial attorney was ineffective for failing to call him as a witness at trial. Nevertheless, Swenson has failed to raise this issue in his brief. An issue not briefed by the appellant is deemed waived or abandoned. Roy v. Young, 278 Kan. 244, 248, 93 P.3d 712 (2004). Moreover, even assuming arguendo that Swenson had adequately briefed this issue, there is substantial competent evidence to support the trial court’s finding that Swenson voluntarily chose not to testily. The record establishes that the trial court explained to Swenson that he had a right to testily but that he also had a right against self-in crimination and could choose not to testify. Swenson indicated that he understood his rights and chose not to testify. Therefore, Swenson s argument fails.
V. Failure to Timely File Petition for Review
Finally, Swenson argues that his appellate counsel was ineffective by failing to timely petition our Supreme Court for review of this court’s decision on his direct appeal. To establish denial of effective assistance of counsel on appeal, tire defendant must show (1) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent a reasonable probability exists that, but for counsel’s deficient performance, the appeal would have been successful. State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004).
Here, Swenson’s appellate counsel failed to timely petition for review with our Supreme Court. In a letter written to Swenson, Swenson’s appellate counsel stated that although he had mailed the petition for review within the 30-day filing period, it was not received 1 day after the filing period had expired. Swenson’s counsel moved to file the petition for review out of time, but such request was denied.
In rejecting Swenson’s argument that his counsel was ineffective for failing to timely petition our Supreme Court for review, the trial court relied on Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993). In Foy, the appellant alleged that his counsel was ineffective for failing to inform him that he could petition for review to our Supreme Court. Review by our Supreme Court of this court’s decision to affirm the defendant’s sentence was discretionary. See K.S.A. 20-3018(b). In denying the appellant’s claim, this court noted that the appellant did not have a constitutional right to counsel to pursue a discretionary appeal to our Supreme Court. As a result, this court concluded that the appellant was not denied effective assistance of counsel when his counsel failed to file a petition for review or failed to let him know that he had the option to do so. 17 Kan. App. 2d 775, Syl.
Our Supreme Court’s analysis in Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004), however, seems to change the analysis in Foy. In Brown, Brown argued that because his appointed counsel on his K.S.A. 60-1507 motion did not timely inform him of his appeal right, he should be allowed to file his appeal out of time. Although our Supreme Court noted that there is no constitutional right to effective assistance of counsel on collateral attacks, it stated that Kansas provides a statutory right to counsel on collateral attack in certain circumstances. Our Supreme Court further noted that K.S.A. 2003 Supp. 22-4522(e)(4) suggests that appointed counsel is required to have certain standards of competence.
Additionally, our Supreme Court looked to cases in other jurisdictions in which the courts held that some standard of competence is required by appointed counsel. Our Supreme Court quoted from Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965), when the court stated:
“ ‘Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.’ (Emphasis added.)” 278 Kan. at 484.
Our Supreme Court stated that it agreed with the Tenth Circuit: “When counsel is appointed by the court in postconviction matters, the appointment should not be a useless formality.” 278 Kan. at 484. Our Supreme Court determined that the failure by Brown’s appointed attorney to notify Brown of the denial of his 60-1507 motion and of his right to appeal resulted in a denial of his statutory right to competent counsel. As a result, Brown was entitled to file a notice of appeal out of time.
Brown involved a movant’s right to effective assistance of counsel on a K.S.A. 60-1507 motion. Nevertheless, the analysis there can be applied to the instant case. Although there is no constitutional right to effective assistance of counsel when a defendant petitions for review of this court’s decision to our Supreme Court, K.S.A. 2005 Supp. 22-4505(b) provides a statutory right to counsel when the defendant appeals from a felony conviction. K.S.A. 2005 Supp. 22-4505(b) does not cut off this right to counsel once the appeal has been decided by this court. It appears that this statutory right to counsel would encompass petitioning our Supreme Court for review of the case. Furthermore, as pointed out in Brown, K.S.A. 2005 Supp. 22-4522(e)(4) indicates that appointed counsel is required to have certain standards of competence. After reviewing our Supreme Court’s decision in Brown, as well as K.S.A. 2005 Supp. 22-4505(b), we determine that Swenson had the right to competent counsel in seeking an appeal to our Supreme Court.
Nevertheless, even if Swenson’s counsel was deficient in failing to timely petition our Supreme Court for review of Swenson’s case, Swenson has failed to meet the prejudice prong of the test for ineffective assistance of appellate counsel. Swenson has not shown that a reasonable probability exists that but for his counsel’s failure to timely petition for review, his petition would have been granted and his appeal would have been successful. See Smith, 278 Kan. at 52.
In his direct appeal, Swenson argued the following: (1) that the trial court should have instructed the jury that Hooks’ credibility was impeached by evidence of prior convictions; and (2) that the trial court committed reversible error by allowing a law enforcement officer to compare Swenson’s court appearance to his appearance in a mug shot. A panel of this court rejected Swenson’s arguments, determining that the jury had been appropriately instructed on credibility and that it was the jury’s prerogative to determine Hooks’ credibility. The panel declined to address Swenson’s second argument due to Swenson’s failure to object to the testimony.
Swenson fails to make any argument or point to any facts that establish by a reasonable probability that but for his counsel’s failure to timely petition for review, our Supreme Court would have granted review of his case and his appeal would have been successful. We see no error in the panel’s decision on direct appeal. Clearly, Swenson’s first argument lacked’ merit, and his failure to timely object to the officer’s testimony precluded the appellate court from considering his second argument. Because Swenson has failed to satisfy the prejudice prong, we determine that his claim of ineffective assistance of counsel fails.
Based on the above analysis, we remand this case for an evidentiary hearing on the issue of whether defense counsel was ineffective for failing to investigate Turner as a witness. As to all other issues raised by Swenson on appeal, we find no abuse of discretion in the trial court’s decision to deny Swenson relief without conducting an evidentiary hearing in his presence.
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Green, J.:
Ahmad Ah Sultani and Najiba Sultani appeal from the trial court’s denial of their motion for a new trial. The Sultanis argue that the jury should have awarded noneconomic damages in this wrongful death case. The trial court determined that the Sultanis had waived their right to a new trial because they had declined to require the juiy to return to deliberations and include an award of noneconomic damages in its verdict. We agree with the trial court’s determination. Because the Sultanis decided to accept the verdict and not have the jury return to deliberations to award noneconomic damages, they waived any defect that existed in the jury’s failure to award noneconomic damages. Accordingly, we affirm.
The Sultanis brought this wrongful death action against April Bungard after the Sultanis’ 34-year-old son, Ahmad J. Sultani, sustained fatal injuries in a motor vehicle accident. Bungard was driving the car that collided with the motorcycle driven by Ahmad J. Sultani. The Sultanis alleged that Bungard’s negligence had caused the motor vehicle accident which resulted in their son’s death. The Sultanis claimed that as a result of their son’s death, they suffered total damages of more than $75,000, which included both economic and noneconomic damages.
A jury trial was conducted over several days in December 2004. The jury found Bungard to be 57 percent at fault and Ahmad J. Sultani to be 43 percent at fault. The jury awarded damages to the Sultanis as follows:
Noneconomic loss to date $0
Future noneconomic loss $0
Funeral expense $2,800
Economic loss to date $1,000
Future economic loss $7,200
Total damages $11,000
After the jury returned its verdict, the trial court offered the Sultanis the option to require the jury to resume deliberations to consider an award for noneconomic damages. The trial court told the Sultanis that they could have some time to research the issue and that tire jury could be instructed to return the following morning. Nevertheless, the Sultanis decided to accept the verdict.
The Sultanis later moved for a new trial, arguing that the jury’s failure to award noneconomic damages was contrary to the evidence presented at trial. The Sultanis pointed out that the uncontradicted evidence established that they had suffered grief and mental anguish from their son’s death and that they had suffered the loss of their son’s comfort, companionship, and society. Bungard responded to the Sultanis’ motion for a new trial and argued that the jury’s verdict was not contrary to the evidence. In addition, Bungard argued that the Sultanis had waived their right to object to the verdict. The trial court denied the Sultanis’ motion for a new trial, finding that they had waived their right to a new trial by declining to require the jury to resume deliberations for an award of noneconomic damages.
On appeal, the Sultanis maintain that they are entitled to a new trial because the jury’s verdict was based on passion and prejudice. Moreover, the Sultanis contend that the jury ignored uncontradicted evidence that they suffered loss of comfort, companionship, and society and mental anguish and bereavement from their son’s death. “The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion. [Citation omitted.]” Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Here, the trial court found that the Sultanis had waived their right to a new trial. As our Supreme Court observed in Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 90, 367 P.2d 44 (1961), litigants should take advantage of their rights at a proper time: “In practice, it is required of everyone to take advantage of his rights at a proper time, and his neglect to do so will be considered as a waiver.” The Flott court defined waiver as follows:
“Waiver is ordinarily the intentional relinquishment of a known right and is a voluntary act. It is the expression of an intention not to insist upon what the law affords. While it is consensual in nature, the intention may be inferred from conduct, and the knowledge may be actual or constructive, but both knowledge and intent are essential elements.” 189 Kan. at 90.
Discussing the concept of waiver, 58 Am. Jur. 2d, New Trial § 39, p. Ill, discusses how a litigant may waive matters that constitute grounds for a new trial:
“Litigants will be deemed to have waived, or will be considered as being estopped to rely upon, matters constituting grounds of new trial which come to their attention or knowledge during the course of trial, or of which they should, by the exercise of reasonable diligence, have acquired knowledge, where they fail to make objection at the time and seek to have the defects cured.”
Here, the trial court made the Sultanis aware of the potential problem with the jury’s failure to award noneconomic damages. Giving the Sultanis the opportunity to have the jury return to deliberations to award a sum for noneconomic damages, the trial judge stated: “[Y]ou are going to call the shots. If you want to have [the jury] come back tomorrow morning, I’ll let you do research cause I would rather have [the jury] deliberate a little further if they have to give something on a noneconomic loss.”
In Stowers v. Rimel, 19 Kan. App. 2d 723, 875 P.2d 1002 (1994), this court considered whether the trial court may order the jury back to the jury room to reconsider a matter and to correct an incomplete, defective, or inconsistent verdict. In particular, stating that the trial court properly ordered the jury to resume deliberations, this court stated:
“The failure of a juiy to award damages for pain and suffering was inconsistent with its award for damages for medical expense and with the evidence. Under these circumstances, the trial court could have ordered an additur or a new trial. The trial court also had a third option which it chose to exercise. It returned the jury to the jury room to resume its deliberations.” 19 Kan. App. 2d at 728-29.
The Sultanis’ conduct in declining to have the jury return to deliberations and in accepting the verdict constituted a waiver of any right they might have had to recover noneconomic damages in their wrongful death action. Although the Sultanis knew there might be a problem with the jury’s failure to award noneconomic damages, they decided not to cure the potential defect by having the jury return to deliberations. The Rimel court stated that returning the jury to deliberate was preferable to a costly new trial and was in the interest of judicial economy. 19 Kan. App. 2d at 727.
Nevertheless, the Sultanis contend that having the jury return to deliberate on noneconomic damages would not have served justice because the jury would have awarded a paltiy sum for non-economic damages. In their brief, die Sultanis make the following circular argument:
“This jury had shown its passion and prejudice in knowingly failing to award non-economic damages. Justice would not be served by having the jury return to deliberations and award a paltry sum for the substantial non-economic losses suffered by these parents. It is simply unreasonable to expect that a jury, whose verdict reflects their passion and prejudice, to return to deliberations and suddenly change their beliefs and convictions.”
The circularity of this argument can be shown by pointing out its basic structure: Because the juiy had shown its passion and prejudice by failing to award noneconomic damages, it would have been unreasonable to expect the juiy to change its beliefs and convictions and award an adequate amount for noneconomic damages. Therefore, it would have been pointless to have the jury return to deliberate on noneconomic damages.
The above construction asks us to assume the truth of the conclusion: It would have been pointless to have the jury return to deliberate on noneconomic damages. The conclusion depends on the premise that it would be unreasonable to expect the jury to change its beliefs and convictions and award an adequate amount for noneconomic damages. Because the premise and the conclusion actually make the same claim, the reasoning is circular and proves nothing. The conclusion simply restatés the evidence. The Sultanis have not offered this court any proof that it would have been a fruitless effort to have the jury resume deliberations for an award of noneconomic damages.
Moreover, the Sultanis never raised this argument when the trial court offered to have the jury resume deliberations on the award. Instead, counsel for the Sultanis stated that they would accept the verdict. The trial court then accepted the juiy’s verdict. The Sultanis cannot lead the trial court into accepting the juiy’s verdict and then argue that such verdict should never have been accepted. See Gilliland v. Kansas Soya Products Co., 189 Kan. 446, 451-52, 370 P.2d 78 (1962) (“Where counsel for one party causes or invites a particular ruling, such party cannot later argue that such ruling was erroneous. [Citation omitted.]”); Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 459, 856 P.2d 906 (1993) (“ ‘A defendant may not complain of rulings or matters to which he has consented, or take advantage of error upon appellate review which he invited, or in which he participated.’ ”) (quoting Mitchell, Trustee v. Moon, 206 Kan. 213, Syl. ¶ 3, 478 P.2d 203 [1970]).
The Sultanis’ decision to not have the juiy return to deliberations to award noneconomic damages and to accept the juiy’s verdict waived any defect that existed in the jury’s failure to award non-economic damages.
Affirmed. | [
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Green, J.:
Bradley Speer appeals from the decision of the Workers Compensation Board (Board) where the Board found that it lacked jurisdiction under K.S.A. 44-506 to consider Speer s claim because Speer failed to show (1) that his principal place of employment was within Kansas or (2) that his contract of employment was made within Kansas. To receive benefits under the Kansas Workers Compensation Act (Act), K.S.A. 44-501 et seq., K.S.A. 44-506 requires that a claimant meet one of the above requirements.
On appeal, Speer has failed to establish that the Board disregarded undisputed evidence or was motivated by bias, passion, or prejudice when it found that he had failed to show that his principal place of employment was within Kansas. Moreover, there is substantial competent evidence in the record to support the Board’s finding that Speer’s contract of employment was not made in Kansas. Finding no reversible error, we affirm.
Speer began working as a truck driver for Bob Wilbur in 1995 when Wilbur contacted him at his home about taking a load to Portland, Oregon. Wilbur was the owner and operator of a semi-truck which was leased to Sammons Trucking (Sammons) to haul goods and materials. Sammons has no offices in Kansas, and its main office is located in Missoula, Montana.
When Speer first went to work for Wilbur, he was not authorized by Sammons to drive Wilbur s truck. In fact, when Speer agreed to drive Wilbur’s truck to Oregon, Speer had a class A driver’s license but did not have the required Department of Transportation physical qualifications card. Wilbur paid Speer directly for his services.
Nevertheless, Speer indicated that he became authorized to haul goods and materials for Sammons approximately 2 months after he began driving Wilbur’s truck. Wilbur first contacted Sammons about authorizing Speer to drive his truck. Sammons mailed an application to Speer’s home in Wichita. Speer completed and returned the application to Sammons and also provided driving history and other requested verification information to Sammons. Speer indicated that a representative of Sammons named Otis handled his verification requirements. Otis advised Speer that he needed to come to Sammons’ office in Houston, Texas, to go through orientation and to be cleared to drive for Sammons. Speer then traveled to Houston, where he underwent orientation, drug screening, and driver certification for Sammons.
According to Speer, he later became authorized to haul goods and materials for Sammons after he traveled to Houston and passed the drag test and the road test and completed the orientation requirements. Upon completing Sammons’ requirements in Texas, Speer continued to drive Wilbur’s track and was paid by Wilbur. Speer indicated that he dealt with Sammons on a daily basis as they gave him information concerning tire pick-up and drop-off locations for loads.
Wilbur died in 1997 or 1998, and Wilbur’s family took possession of the truck. Speer indicated that he did not work until approximately 3 months later, when he began driving a company truck for Sammons. According to Speer, he contacted Sammons by telephone from his home in Wichita and asked if he still had a job. Speer spoke with Sammons’ representative Kathy Smith, who told him that they liked his work and that he still had a job with them. Speer told Smith, however, that he was not going to work under the same conditions that he had previously been working.
Specifically, Speer told Smith that he needed a company truck, benefits, higher pay, and seniority credit. Smith indicated that she would have to speak with Otis, who could authorize or deny those things. Both Smith and Speer spoke with Otis at different times. Otis agreed to Speer’s conditions of employment and said that he would credit Speer with half seniority time. At the time of their conversations, Otis and Smith were in Montana and Speer was in Wichita.
Speer was required to travel to Montana to pick up a company truck and to go through orientation. Speer picked up a bus ticket, which Sammons had purchased for him, at the bus station in Wichita and traveled to Montana where he completed orientation; signed paperwork, including an agreement which outlined the company bylaws; took a drug test; and picked up his company truck. Speer admitted that he would not have been hired had he failed the drug test.
Speer drove a company truck for Sammons for the next several years, spending long stretches of time traveling throughout the United States. Speer indicated that it was very difficult for him to get back home to Wichita and that he was only home for approximately 30 days a year. Sammons would credit Speer’s fuel card with the amount of his compensation and then send any information to Speer’s brother’s house.
In November 2002, Speer filed a workers compensation claim against Sammons. Speer alleged that he sustained injuries to his back, left arm, and left shoulder when he was tying down a load in downtown San Francisco in November 2001 and was struck from behind by the mirror of a pickup truck. Speer filed another workers compensation claim against Sammons in December 2002. In his second claim, Speer asserted that he sustained injuries to his back, left arm, and left shoulder on three separate dates in 2002 while in Texas, Arizona, and Colorado.
After his September 2002 injury, Speer made arrangements with Sammons so that he could return to Wichita to see his doctor. Speer s doctor then placed Speer on work restrictions. Sammons notified Speer that he was not allowed to drive for them with the work restrictions and that he would need a doctor s release before returning to work. Speer did not work for Sammons after September 2002.
One of the issues before the administrative law judge (ALJ) presiding over Speer s case was whether the parties were covered by the Act. Sammons argued that Kansas lacked jurisdiction over Speer’s claims under K.S.A. 44-506 because the accidents occurred outside of Kansas, because Sammons’ principal place of business was in Montana, and because the contract of employment was made outside of Kansas.
The ALJ determined that the parties were subject to the Act because Speer’s contract of employment with Sammons occurred while Speer was in Wichita. Finding that Speer suffered a 65.5 percent permanent partial disability, the ALJ awarded Speer compensation for his injuries. Sammons appealed the ALJ’s decision to the Board. The Board reversed the ALJ’s award of compensation, finding that Speer’s employment contract was not made within Kansas because the last act necessary for the contract’s formation was the acceptance by Sammons’ representative in Montana. Moreover, the Board found that Speer had failed to prove that his principal place of employment was within Kansas. Because Speer was not subject to the Act under K.S.A. 44-506, the Board determined that it lacked jurisdiction to consider Speer’s claims.
Standards of Review
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Abbey v. Cleveland Inspection Services, Inc., 30 Kan. App. 2d 114, 116, 41 P.3d 297 (2002). The question of jurisdiction in this case is governed by K.S.A. 44-506 which states:
“The workmen’s compensation act shall not be construed to apply to business or employment which, according to law, is so engaged in interstate commerce as to be not subject to the legislative power of the state, nor to persons injured while drey are so engaged: Provided, That die workmen’s compensation act shall apply also to injuries sustained outside the state where: (1) The principal place of em ployment is within the state; or (2) tire contract of employment was made within the state, unless such contract otherwise specifically provides.”
In this case, Speer challenges the Board’s findings relating to subsections (1) and (2) of K.S.A. 44-506. In addressing Speer’s arguments, we must bear in mind that a claimant has the burden of proof to establish the right to a compensation award by proving the conditions on which the right depends by a preponderance of credible evidence. Knelson v. Meadowlanders, Inc., 11 Kan. App. 2d 696, 699, 732 P.2d 808 (1987).
Moreover, we recognize that the Act “ ‘shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.’ K.S.A. 44-501(g).” Neal v. Hy-Vee, Inc., 277 Kan. 1, 14, 81 P.3d 425 (2003).
Was the principal place of employment in Kansas?
First, Speer argues that Kansas has jurisdiction over his claims under K.S.A. 44-506(1) because his principal place of employment was in Kansas. The Board found that Speer had not met this requirement of K.S.A. 44-506 because he had not proven that his principal place of employment was within Kansas. The Board’s determination that a party did not meet his or her burden of proof is a negative finding. Our standard of review is to determine whether that finding is supported by the evidence as a whole. The party challenging a negative finding must prove 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 arguing that his principal place of employment was within Kansas, Speer cites to this court’s decision in Knelson, 11 Kan. App. 2d 696. There, Knelson was a professional hockey player under contract to Meadowlanders, Inc., the corporate owner of the New Jersey Devils professional hockey team. Knelson was injured during a hockey game in Utah while he was playing for the Wichita Wind minor league hockey club. Knelson’s base of operations was in Wichita, he traveled from Wichita to play the hockey game in Utah, and he received his paychecks in Wichita. This court determined that the evidence supported the trial court’s conclusion that the Act applied to Knelson’s injury because his principal place of employment was within Kansas under K.S.A. 44-506(1). 11 Kan. App. 2d at 698-99.
Here, the Board discussed the Knelson case but found it to be distinguishable from the facts of the instant case, stating:
“In this instance, Knelson is distinguishable. This claimant, while living inWichita, Kansas, spent very little time in Wichita, Kansas. His base of operation was either Houston, Texas, or Missoula, Montana, the locations of respondent’s dispatch centers. Claimant acknowledged he was rarely in Kansas and had to make special arrangements in order to get back to Wichita in order to see his doctors for his injuries, including his neurosurgeon. The Board finds that in this instance, as claimant has not proven that his principal place of employment was within the state of Kansas, he does not meet drat requirement of K.S.A. 44-506.”
We agree that Knelson is factually distinguishable. Nevertheless, Speer argues that based upon Knelson, it would seem that Wichita was more of a base of operations for him than it was for Knelson. Speer identifies the following eight factors which he argues establish that his principal place of employment was within Kansas: (1) He resided in Kansas; (2) he was sent by Sammons to obtain medical care in Kansas; (3) he was originally recruited to work for Sammons by Wilbur in Kansas; (4) Wilbur’s business and truck were based in Kansas; (5) he had been a licensed truck driver since 1972 in Kansas; (6) he received health insurance benefits from Sammons in Kansas; (7) Sammons mailed his application for safety clearance to Kansas; and (8) Sammons purchased the bus ticket for him in Kansas.
Several of these factors relate to Speer’s initial employment with Wilbur and are not relevant in determining whether Speer’s principal place of employment with Sammons was in Kansas. The evidence in this case indicates that Speer was employed by Wilbur when he drove Wilbur’s truck. Wilbur was the owner and operator of the truck which he leased to Sammons. Wilbur hired Speer to be the driver of his truck and was the one who paid Speer. After Wilbur died, Speer did not work for 3 months. He then entered into an employment contract with Sammons that included a company truck, benefits, and seniority credit. Although Speer indicated that he was rehired by Sammons at that time, he also admitted that this was a new deal between he and Sammons.
Regardless of whether Sammons could be seen as Speer’s employer at the time Speer drove Wilbur’s truck, Speer entered into a new employment contract with Sammons after Wilbur died. The evidence indicates that Speer was injured when he was working for Sammons under the new employment contract. Therefore, we must analyze whether Speer’s principal place of employment was in Kansas under this employment contract.
Unlike tire facts in Knelson, Speer’s base of operations was not in Kansas. Speer, after becoming an employee of Sammons, was seldom ever in Kansas — so far as the record shows — except for short stays. As the Board stated in its decision, his base of operations was in either Texas or Montana, where Sammons had its dispatch centers. Speer’s own testimony indicated that Sammons did not have any offices in Kansas. When Speer was hired by Sammons, he had to take a bus to Montana to pick up tire truck he would be driving for tire company. He then spent long stretches traveling throughout tire United States without returning to his home in Wichita. Speer only returned to his home for approximately 30 days a year which did not occur all at the same time. Sammons would credit Speer’s fuel card with the amount of his compensation. Sammons would send a pay stub to the home of Speer’s brother. When Speer was injured and needed to see his doctor in Wichita, Speer had to make special arrangements with Sammons so that he could be routed back to Wichita. These facts indicate that Speer’s principal place of employment was not in Kansas.
As pointed out by Sammons, the factors referenced by Speer were listed in Speer’s letter to the ALJ, were included in Speer’s brief to the Board, and were pointed out to the Board during oral argument. Moreover, the Board discussed these factors in its written decision. The Board obviously considered these factors when making its findings that Speer’s principal place of employment was not within Kansas. We cannot say that the Board disregarded these factors when it found that Speer had not met his burden to show that his principal place of employment was within Kansas. Moreover, Speer has failed to show that the Board disregarded undisputed evidence or was motivated by bias, passion, or prejudice when it made this finding. As a result, Speer s argument fails.
Was the employment contract made within Kansas?
Finally, Speer argues that the Board erred in finding that his contract of employment was not made within Kansas. An appellate court’s review of questions of fact in a workers compensation case is limited to whether the Board’s findings of fact are supported by substantial competent evidence which is a question of law. Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). Substantial evidence in workers compensation cases is evidence drat possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Neal, 277 Kan. at 16-17.
In arguing that his contract of employment was made within Kansas, Speer asserts that he was continuously employed by Sammons beginning in 1995 after he accepted employment in Wichita. As in the previous issue, Speer attempts to bootstrap his employment when he drove Wilbur’s truck into his later employment contract that occurred in 1997 or 1998 with Sammons. Neverdreless, as discussed above, a new employment contract was formed between Speer and Sammons after Wilbur died. This new employment contract was the one in existence when Speer was injured. Therefore, the Board properly looked to this last employment contract when determining whether Speer’s contract of employment was made in Kansas.
Speer contends that regardless of whether his employment relationship with Sammons began before or after Wilbur’s death, there was uncontroverted testimony that his employment with Sammons was entered into at his Wichita home. The relevant in quiiy under K.S.A. 44-506(2) is whether Speer’s employment contract was made within Kansas. “[A] contract is 'made’ when and where the last act necessary for its formation is done. [Citation omitted.] When that act is the acceptance of an offer during a telephone conversation, the contract is 'made’ where the acceptor speaks his or her acceptance. [Citations omitted.]” Shehane v. Station Casino, 27 Kan. App. 2d 257, 261, 3 P.3d 551 (2000).
In finding that the contract of employment was not made within Kansas, the Board in this case stated:
“As noted above, during a telephone conversation, the act of the acceptance of an offer is the last act necessary for the contract to be formulated. In this instance, while claimant may have been employed by respondent after the Houston contact, it is obvious that claimant was no longer employed by them after die death of Mr. Wilbur. Claimant then contacted Missoula with the desire to become reemployed. Claimant acknowledged that after undergoing the successful completion of his test in Missoula, he was rehired. And while the contact between claimant and die Missoula, Montana, office occurred while claimant was in Wichita, Kansas, the Board notes the last act necessary for the formulation of the contract was the acceptance by respondent’s representative, Otis, of the terms presented to Sammons by claimant. Therefore, the last act necessary to formulate the contract occurred in Missoula, Montana, with the acceptance of claimant’s proposals. The Board finds that it does not have jurisdiction to consider this matter pursuant to K.S.A. 44-506, as the contract of employment was not made witiiin this state.”
The record on appeal contains substantial competent evidence to support the Board’s findings. Speer’s testimony in his deposition established that after Wilbur died and Wilbur’s family took the truck, he was not working for approximately 3 months. He spoke with Smith and offered to work for Sammons as long as Sammons would give him a company truck, benefits, and seniority credit. At Speer’s deposition, the following dialogue took place between Sammons’ counsel and Speer:
“Q. [Sammons:] So this is a new deal?
“A. [Speer:] Yes.
“Q. You are telling this at that time to Kathy, there is a new deal here, this is not like it was before, this is a new deal.
“A. Right.
“Q. And if you hire me on you must hire me on these conditions. Company truck, benefits, and I want you to go back and get my seniority so that I get some credit for the time I spent in association with Sammons. Is that true?
“A. Yes.”
Speer indicated that Smith had to talk tó Otis to see whether his offer would be accepted. According to Speer, both he and Smith talked to Otis at different intervals. Indicating that Otis accepted his offer of employment, Speer further testified at his deposition:
“A. Otis said no problem. He would go ahead and credit with me half of the time I had been with Sammons, authorized with Bob to drive he would give me half of that with credit and seniority.
“Q. Otis accepted your offer with the conditions you placed on it?
“A. Yes.”
Both Otis and Smith were in Montana at the time Otis accepted Speer s offer of employment.
Speer s testimony established that when he contacted Smith, he made an offer to work for Sammons with certain conditions of employment. Sammons accepted this offer through Otis while Otis was in Montana. Speer s testimony establishes that the last act necessary for the formation of the employment contract, that is, Sammons’ acceptance of his offer of employment, occurred in Montana. Speer’s testimony provides substantial competent evidence that his employment contract with Sammons was made in Montana.
Nevertheless, Speer argues that Sammons actually responded to his offer with a counteroffer which he then accepted while he was in Wichita. To support his argument, Speer points to testimony given by him at his deposition where he indicated that Sammons offered to give him half seniority for the time he worked with Wilbur and full seniority in die future. This testimony appears to conflict with that given later in his deposition establishing that Sammons responded by accepting his offer. As we set forth in our standard of review on this issue, however, we do not reweigh the evidence. See Neal, 277 Kan. at 16-17. Moreover, we uphold findings that are supported by substantial competent evidence even diough evidence in the record may support contrary findings. Stutzman v. City of Lenexa, 33 Kan. App. 2d 160, 162, 99 P.3d 145 (2004), rev. denied 279 Kan. 1010 (2005).
Even if we assume arguendo that Sammons made a counteroffer to Speer during the telephone conversation, Sammons asserts that “the last act necessary to consummate the employment agreement was for [Speer] to travel to Montana and successfully pass tire drug test and orientation.” After Speer s phone conversation with Sammons, he went to Montana where he signed papers, took a drug test, went through the rest of the orientation to be a company driver, and picked up his company truck. Speer s testimony indicated that he would not have been hired if he had failed the drug test in Montana. Speer further indicated that passing the drug test in Montana was a condition that he had to pass before he would be hired. Speer s own testimony indicates that he did not have a job with Sammons until he passed the drug test.
Nevertheless, Speer asserts that the fact that he had to travel outside of Kansas to complete paperwork and tests is irrelevant to the determination of the onset of his employment with Sammons and cites Shehane, 27 Kan. App. 2d 257. In Shehane, Shehane lived in Kansas and auditioned for an acting job at the Station Casino (Station) in Missouri. While at her Kansas home, Shehane verbally accepted a job during a telephone conversation with the Station’s director of casting who was also at his home in Kansas. The director of casting did not tell Shehane that drug testing was a prerequisite of the hiring process. Shehane’s job was to begin in November 1996 and was to continue until March 1997. Shehane received a written contract at her home. The contract set forth the terms of the parties’ agreement and referenced a “pre-employment drug screening” as a “condition of employment.” The contract stated that if Shehane did not pass the drug screen, then the “ ‘agreement shall be considered canceled and terminated and the offer of employment shall be withdrawn.’ ” 27 Kan. App. 2d at 258. Shehane signed and returned the contract. Before reporting to work at Station, Shehane completed the requested drug screening at a lab in Missouri.
Shehane subsequently became injured and filed a workers compensation claim under the Act. Determining that Shehane was within the jurisdiction of the Act, the ALJ found that Shehane’s employment contract was made within Kansas because she orally accepted the contract at her home in Kansas. The ALJ found that the drug screen was merely a basis for canceling the contract and was not the last act needed in order to create a contract between the parties. The Board agreed with the ALJ’s analysis on this issue.
On appeal to this court, Station argued that the last act necessary for formation of the contract was the successful completion of a drug screen which occurred in Missouri. Station contended that completion of the drug screen was a condition precedent to the formation of the contract. In rejecting Station’s argument, this court cited Bowen v. Workers’ Comp. Appeals Bd., 73 Cal. App. 4th 15, 22, 86 Cal. Rptr. 2d 95 (1999), where the court quoted from St. Clair, Cal. Workers’ Compensation Law & Practice, § 2.10, pp. 111-12 (5th ed. 1996), as follows:
“[T]he fact that there are formalities which must be subsequently attended to with respect to such extraterritorial employment does not abrogate the contract of hire or California jurisdiction. Such things as filling out formal papers regarding the specific terms of employment or obtaining a security clearance from the federal government are deemed ‘conditions subsequent’ to tire contract, not preventing it from initially coming into existence.” [Citations omitted.]’ ” 27 Kan. App. 2d at 262-63.
This court determined that Shehane’s employment contract was formed when she orally accepted the offer over the telephone and further when she signed the written contract at her home in Kansas. This court then looked at the language of the contract indicating that a contract was in existence at the time of the drug screening and determined that the drug screening was a condition subsequent to the contract. 27 Kan. App. 2d at 263.
Different from the facts of Shehane, there is no written contract here indicating that the drug test, orientation, and other required paperwork were conditions subsequent to Speer’s employment with Sammons. Moreover, it is apparent that Sammons would not have given Speer the keys to one of its trucks unless Speer had first satisfied tírese conditions. Speer admitted in his deposition testimony that passing the drug test was a condition that he had to meet before he would be hired. One might characterize Sammons’ offer to Speer as follows: Sammons says to Speer, “Speer, if you will take and pass a drug test, complete orientation, fill out and sign required paperwork, Sammons will hire you.” The taking and passing of the drug test and completing the other conditions must exist as a fact before there is any liability on Sammons to hire Speer. This was a condition precedent rather than a condition subsequent. Black’s Law Dictionary 312 (8th ed. 2004) defines a condition precedent as “[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.” Even if Sammons’ representative Otis communicated a counteroffer to Speer during the telephone conversations, this counteroffer had conditions precedent that were not fulfilled until Speer completed the drug test, orientation, and paperwork while he was in Montana.
In summary, the satisfaction of these conditions was a prerequisite to the employment contract coming into existence.
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Green, J.:
The plaintiff, Manuel Fernando Casas, sued the defendant, Marty Robbins Insurance Agency, Inc., (Agency) for failure to procure a homeowner s insurance policy. A jury trial resulted in a verdict in favor of the Agency. Casas brought his action against the Agency based upon both a contract and a tort theory. The Agency moved for dismissal of Casas’ negligence claim on grounds that Casas neglected to produce expert testimony to establish that Robbins had breached his duty of care as an insurance agent. The trial court granted this motion. In addition, the Agency sought dismissal of Casas’ contract claim on grounds that Casas failed to establish an oral contract to procure insurance. The trial court denied this motion.
Casas appeals the trial court’s granting of the Agency’s motion to dismiss his negligence claim. The Agency cross-appeals the trial court’s denial of its motion to dismiss Casas’ oral contract claim. We conclude that the trial court properly dismissed Casas’ negligence claim. We further determine that the trial court erred in failing to grant the Agency’s motion to dismiss Casas’ oral contract claim. Accordingly, we affirm in part and reverse in part.
In August 2003, Casas sued insurance agent Marty Robbins and Farmers Insurance Exchange (Farmers) after his home was destroyed by a tornado and Farmers denied homeowner’s insurance coverage. Casas and Farmers later reached a settlement, and Far mers was dismissed from the case with prejudice. Casas’ tort and contract actions against Robbins proceeded to a jury trial.
According to Casas’ testimony at trial, Casas telephoned Robbins, who was an independent agent with Farmers, in May 2002 and told him that he needed homeowner’s insurance coverage. At the time, Casas had both car insurance and renter’s insurance with Farmers. Casas had originally obtained car insurance in 1997 or 1998 with a different agent through Farmers. Nevertheless, Casas had been assigned to Robbins in early 1999 when Casas’ previous agent stopped working for Farmers.
When Casas called Robbins in May 2002, he reported that his van had been stolen and recovered and that there was some damage to it. Casas testified that he also told Robbins that he was purchasing a new home. Casas further testified that he gave Robbins the price of the home and the address and told him that he needed coverage for it. According to Casas, Robbins told him that “he was going to take care of it.” Casas indicated that Robbins’ statement made him believe that Robbins was going to get him the proper insurance coverage for tire house.
Casas admitted that he did not discuss with Robbins the date that he was moving; the construction of the house; the style of the house; the square footage; the number of bedrooms, bathrooms, or fireplaces; the amount financed; the financing arrangement; the loss-payee, if any, that should be listed on the policy; the policy period; the premium amount; or the deductible. Casas further admitted that he did not discuss with Robbins whether there was going to be coverage for contents, for additional living expenses, for debris removal, or for cleanup. Casas indicated that he did not sign an application for insurance coverage in May 2002 or ever receive anything in writing regarding a homeowner’s policy on the house in question.
During Robbins’ testimony, he indicated that it is necessary to know most of the above information before a homeowner’s policy is written. Robbins further indicated that he did not have the authority to issue a homeowner’s policy without this information. Moreover, Robbins indicated that it was not permissible for him to promise or issue a homeowner s policy if the application has not been signed by the customer and the premium has not been paid.
Robbins’ version of the May 2002 telephone conversation differed significantly from that given by Casas. Although Robbins agreed that Casas called and reported the damage to his van, he denied that Casas said that he was buying a new home and that he needed homeowner’s insurance. According to Robbins, Casas was upset that his van had been stolen for the second time in 6 months and indicated that he wanted to move into a safer neighborhood. Nevertheless, Casas did not give him any specific information concerning his intention to move. Robbins indicated that Casas just made a general statement that he wanted to get into a better neighborhood but did not indicate that he was definitely moving. Robbins’ computerized notes, which were taken at the time of the May 2002 conversation, were consistent with Robbins’ testimony. These notes failed to indicate that Casas told Robbins that he was buying a home, that he wanted Robbins to procure homeowner’s insurance, or that Robbins offered to issue homeowner’s insurance.
On May 13, 2002, several days after Casas’ phone conversation with Robbins, Casas purchased the house located at 2401 North 102nd Street in Kansas City, Kansas, through a contract for deed. The purchase price of the house was $135,000. Reid Roberts was the owner and builder of the house. Casas agreed to make monthly payments to Roberts and to refinance the home within 24 months so that the remaining balance could be paid in full. Casas moved into tire house on May 14, 2002.
According to Robbins, his computerized notes reflect that he again spoke with Casas in August 2002. Robbins also had handwritten notes from this phone conversation. At that time, Casas added an auto policy with Robbins’ agency and also added his wife to the coverage. In addition, Casas notified Robbins that his address had changed to 2401 North 102nd Street. Robbins indicated that this was the first time that Casas had notified him about the change of address. Robbins further indicated that it was the Agency’s standard practice to ask if there were any other changes that the insured would like to make to the policy other than tire address change and that Casas responded that there were not.
Casas’ home was destroyed by a tornado on May 4, 2003. The next day, Casas called the Agency to report the loss. According to Casas, he spoke with someone other than Robbins and was told that Robbins would call him back. When Robbins called back later that day, Casas was standing on the concrete foundation of his destroyed home and received the call on his cellular phone. Casas testified that Roberts, who owned the house next door and had been talking with Casas about the damage, was next to him when Robbins called. Casas put the call on speakerphone. According to Casas, Robbins told him that there was a problem with the insurance. Robbins advised Casas that he only had renter’s insurance and not homeowner’s insurance. Casas testified that Robbins admitted that he remembered Casas calling him the prior year and telling him that Casas was buying a new house. Nevertheless, Robbins indicated that he never made the change on Casas’ policy. Robbins told Casas that he was going to call Farmers’ main office and see what he could do to take care of it.
Roberts corroborated Casas’ testimony regarding the May 2003 telephone conversation. Roberts indicated drat he was beside Casas when Robbins called, that Casas put the call on speakerphone, and that he was able to hear the entire conversation. According to Roberts, Robbins said that he remembered Casas previously calling and saying that he was buying a new home. Nevertheless, Robbins said that he never got Casas’ policy changed from renter’s insurance. Robbins indicated that he was going to call the home office and see what needed to be done.
At trial, Robbins denied telling Casas during the May 2003 phone conversation that he had discussed homeowner’s insurance with him in May 2002. Robbins further denied telling Casas that he remembered Casas stating that he was going to buy a house. According to Robbins, during the May 2003 conversation, Casas wanted to know the amount of coverage on his policy. Robbins told Casas that he had $20,000 coverage for personal property plus coverage for additional living expenses. Casas then wanted to know the amount of coverage on the house. Robbins told Casas that he did not have coverage on the house and that he had a renter’s policy because someone else owned the house. Casas informed Robbins that he had bought the house the previous year. Casas told Robbins: “You and I had a conversation about that last May, that I was moving into a safer neighborhood.” At that point, Robbins went back and looked through his computer notes and read them to Casas. These notes failed to indicate that Casas had mentioned a homeowner s policy.
According to Robbins, he asked Casas if he ever received a homeowner s policy from Robbins or from Farmers, if he received evidence of insurance or a binder of insurance, if anything was ever mailed to his mortgage company, if Casas ever made any payments that could help Robbins track down the policy. Casas responded that he had not. Robbins then asked Casas: “How was I to know that you needed homeowner s coverage if you didn’t report these things?” Casas stated: “That is your job.”
At trial, the Agency introduced reproductions of several Farmers documents that purportedly had been sent to Casas. These included declarations pages covering the periods from May 1, 2002, to May 1, 2003; from August 9, 2002, to May 1, 2003; and from May 1, 2003, to May 1, 2004; and a March 10, 2003, offer of renewal of renter’s insurance. The trial court admitted these documents over Casas’ objections. Casas admitted that he had received several documents from Farmers between the time of the May 2002 phone conversation with Robbins and the day after the tornado. Although Casas could not recall the specific documents he received, he did not deny receiving the declarations pages and renewal notice. Moreover, Casas indicated that he probably received the Farmers declarations pages. The Agency also introduced an invitation sent out from its office inviting customers to go over their insurance coverage. Robbins indicated that Casas would have received an invitation each year. Although Casas indicated that he did not remember when he received the invitations, he testified that he remembered seeing things like it.
When Casas was cross-examined about the declarations page covering the May 1, 2002, to May 1, 2003, period, he indicated that a statement in the upper left-hand comer of the page revealed that it was a broad form renter’s policy. Moreover, the page listed “coverage for the property, the dwelling, or mobile home” as “not covered.” On redirect examination, Casas testified that the declarations page contained tire word “Homeowners” beneath the word “Declarations” in the top right-hand corner. Casas indicated that he continued to pay his premiums throughout the spring and summer of 2003.
In his suit, Casas raised contract and negligence claims against Robinson. At the May 2004 trial, the trial court signed an amended pretrial order where Casas agreed to amend the pleadings to substitute the Agency as the defendant in the case. In addition, the amended pretrial order which was agreed to by the parties set forth Casas’ claims as follows: (1) that Robbins “was negligent in not procuring the proper insurance which [Casas] had requested from Defendant Marty Robbins and which Marty Robbins said he would procure for [Casas] and which Defendant Robbins should have known was necessary;” and (2) that Robbins “breached the contract to procure insurance for [Casas] by not actually procuring the insurance with Farmers Insurance Company which was needed for Mr. Casas’ newly purchased home.” Casas sought damages of $172,000 from Robbins.
Within the amended pretrial order, the Agency also set forth his legal theories as to why Casas was not entitled to relief on his claims. The Agency maintained that Casas did not have an insurable interest in the property at the time of the May 2, 2002, phone conversation. In addition, the Agency asserted that no oral contract to procure insurance existed because Robbins never made any statements indicating that he would procure homeowner’s insurance for Casas. The Agency maintained that Casas never requested that Robbins procure homeowner’s insurance for him. Moreover, the Agency asserted that Casas should have been aware that he only had a renter’s policy because he had been sent an offer to renew the renter’s policy. The Agency contended that Casas’failure to review or object to this offer of renewal estopped Casas from claiming that he had a homeowner’s policy.
At the close of Casas’ evidence at trial, the Agency filed six motions requesting judgment as a matter of law on Casas’ claims. The trial court heard arguments from each of the parties on these motions. In ruling on diese motions, the trial court stated:
“[F]ranldy, Counsel, I just haven’t had — I don’t haven’t had the time and don’t have the time now to look deeply into these cases that are cited. I’m going to decide these the best I can.” The trial court granted the Agency’s motions for judgment as a matter of law on Casas’ negligence claim and claim for collateral damages. The trial court also granted the Agency’s motion for judgment as a matter of law requesting that Casas be required to elect between his inconsistent theories of recoveiy, that is, his breach of oral contract claim and his negligence claim. Moreover, the trial court denied the Agency’s motion for judgment as a matter of law on Casas’ breach of oral contract claim and the Agency’s estoppel defense. The trial court also denied the Agency’s motion for judgment as a matter of law in which the Agency argued that Casas did not have an insurable interest in the house. The case was ultimately submitted to the jury, which rendered a verdict in favor of the Agency.
First, Casas argues that tire trial court erred in granting judgment as a matter of law on his negligence claim due to the absence of expert testimony. K.S.A. 2004 Supp. 60-250(a)(1) governs when the trial court may grant judgment as a matter of law on a claim or defense raised by a party:
“If during a trial by jury a party has been fully heard on an issue and drere is no legally sufficient evidentiary basis for a reasonable jury to find for drat party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against diat party with respect to a claim or defense diat cannot under the controlling law be maintained or defeated without a favorable finding on that issue.”
Under a previous version of 60-250, the legislature used the term “directed verdict” instead of “judgment as a matter of law.” See K.S.A. 60-250(a) (Furse 1994). In reviewing the trial court’s decision granting or denying judgment as a matter of law, we apply the former directed verdict standard of review. White v. Tomasic, 31 Kan. App. 2d 597, 600, 69 P.3d 208 (2003).
“ “When ruling on a motion for directed verdict, die trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, die motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ [Citation omitted.]” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
The Agency argued before the trial court that its motion for judgment as a matter of law on Casas’ negligence claim should be granted because there was an absence of evidence that Robbins breached the standard of care for a reasonably prudent insurance agent. The Agency pointed out that Casas had made an untimely attempt to endorse an expert witness. The trial court sustained the Agency’s motion for judgment as a matter of law on the negligence claim.
Nevertheless, Casas argues that expert testimony was not necessaiy in this case to establish that Robbins was negligent in failing to procure a homeowner’s insurance policy. Casas maintains that the common knowledge exception applies in this case.
Casas cites to Bi-State Dev. Co., Inc. v. Shafer, Kline & Warren, Inc., 26 Kan App. 2d 515, 990 P.2d 159 (1999), where this court discussed the common knowledge exception. There, the court recognized that in order to maintain an action for negligence, the plaintiff needed to show a duty, breach of that duty, injury resulting from the breach, and that the breach proximately caused the injury. 26 Kan. App. 2d at 517. The court noted that in cases involving professional actions and whether the professional deviated from the standard of care, expert testimony is often necessary to establish the standard of care. Nevertheless, the court recognized that the common knowledge exception applies “when a lay person’s common knowledge is sufficient to recognize a deviation from the accepted standard of care.” 26 Kan. App. 2d at 518.
In Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, Syl. ¶ 1, 634 P.2d 133 (1981), this court set forth the standard of care that applies to an insurance agent who undertakes to procure insurance for another: “An insurance agent or broker who undertakes to procure insurance for another owes to the client the duty to exercise the skill, care and diligence that would be exercised by a reasonably prudent and competent insurance agent or broker acting under the same circumstances.” The court referred to this standard of care as the “exercise care duty.” 6 Kan. App. 2d at 683. Based on the language in Marshel, in order for Casas to establish an action for negligence in tort based on Robbins’ failure to procure insurance, he would need to show what “a reasonably prudent and competent insurance agent or broker acting under the same circumstances” would have done and that Robbins breached this “exercise care duty.” 6 Kan. App. 2d at 683.
The question is whether the jury, using its common knowledge, would recognize a deviation from the “exercise care duty” in this case or whether expert testimony was necessary. Neither Casas nor the Agency cite to any case within this jurisdiction that has addressed the issue of whether, or under what circumstances, the negligence of an insurance agent must be established by expert testimony. In Annot., Necessity of Expert Testimony to Show Standard of Care in Negligence Action Against Insurance Agent or Broker, 52 A.L.R.4th 1232, 1234, it was stated:
“Whether expert testimony is required to establish the standard of care applicable to insurance agents who are charged with negligence depends to a large extent on the nature of the alleged negligent act. While no court has suggested that expert testimony is necessary where the agent’s breach is so obvious that it is within the ordinary knowledge and experience of lay persons, several courts have taken the position that expert testimony as to the standard of care is required where tire breach involves the agent’s professional skills and expertise.
“No clear standard has evolved for determining whether a particular negligent act sufficiently involves an agent’s professional sldlls so as to require the use of expert testimony.”
Therefore, it appears that whether expert testimony is required to establish an insurance agent’s standard of care really turns on the facts of each case as to whether the breach involves the agent’s professional skills and expertise.
Casas cites to DiMarino v. Wishkin, 195 N.J. Super. 390, 479 A.2d 444 (1984), and Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650 (3d Cir. 1968), cert. denied 393 U.S. 1050 (1969), to support his position that expert testimony was not required to establish his negligence claim. In addressing the third-party defendant broker’s argument that there was an absence of expert testimony, tire DiMarino court stated that expert testimony is not required to show the culpability of an insurance broker when there has been a failure by that broker to meet the minimum established standard of care. In that case, there was a failure by the broker who undertook to procure a replacement policy for the third-party plaintiff to obtain requested coverage. DeMarino is distinguishable from the instant case, however, as the facts of DiMarino indicate that the broker had previously written insurance for the third-party plaintiff and that the third-party plaintiff was merely requesting a replacement policy. Consolidated Sun Ray, Inc., is also distinguishable from the instant case. There, expert testimony was found to be unnecessary to show the standard of care where the insurance broker had explicit directions from its insured to procure a specific type of insurance and to name a particular corporation as an insured but failed to do so.
Research of case law from other jurisdictions does not reveal a factual situation like the present case. As indicated above, the question of whether expert testimony is required to establish an insurance agent’s standard of care in a negligence action turns on the facts of the particular case and whether the agent’s professional skills and expertise are involved in the breach. See Annot., 52 A.L.R.4th 1232.
Under the facts of this case, Casas needed to show what a reasonably prudent and competent insurance agent would have done with the information allegedly provided by Casas during the May 2002 phone conversation. For instance, would a reasonably prudent and competent agent have understood that the information obtained during the phone conversation created a duty to obtain homeowner’s coverage? Was there enough information provided to go out and procure a homeowner’s policy? Would a reasonable and prudent agent need to get back with Casas and get additional information? All of these questions come within the “exercise care duty” and it is clear expert testimony is necessary to establish this standard of care.
Nevertheless, in arguing that the common knowledge exception applies here, Casas maintains that the alleged negligence issue in this case is very simple: Did Robbins procure or obtain the homeowner’s insurance which Casas requested and Robbins acknowledged he would procure? At trial, however, Casas indicated that his negligence theory involved whether Robbins, based upon his background, should have asked further questions that would have enabled him to procure the insurance. Specifically, Casas stated the following regarding his negligence claim:
“[A]s you heard Mr. Robbins testify, he’s got an excellent background in this area, and he should have known what to do for my client. Pie should have known the questions to ask. When Mr. Casas said he was moving to a new house, he should have known that he needed to ask another question there, which would have led him to another series of questions which would have got this job done.”
These statements indicate Casas’ negligence claim relied on Robbins’ expertise as an insurance agent to ask further questions and to procure the homeowner’s insurance.
Like DiMarino and Consolidated Sun Ray, Inc., Marshel is both instructive and distinguishable from this case. In Marshel, the applicant wanted “control of well” insurance coverage. Evidence was presented that control of well coverage was “unusual.” 6 Kan. App. 2d at 685. Expert testimony indicated that control of well coverage was generally obtained through specialty companies. 6 Kan. App. 2d at 685-86. Moreover, evidence showed that the control of well coverage would have been subject to a $25,000 deductible clause and that the annual premium would have been $2,250. As a result, the Marshel court stated that the “[insurance agent] did not find himself unable to proceed without a more complete and detailed understanding.” 6 Kan. App. 2d at 684.
Unlike Marshel, no evidence was introduced as to what type of homeowner’s insurance coverage should have been procured in this case. Moreover, no evidence was presented on what tire deductible would have been or what the annual premium would have been. A lay juror would not necessarily know whether Robbins had been furnished with sufficient information to procure a homeowner’s policy or whether Robbins was obligated to ask further questions.
The negligence elements of duty and breach in this case involved Robbins’ professional skills and expertise as an insurance agent. To send the negligence issue to the jury without expert testimony to establish what a reasonably prudent and competent insurance agent would have done under the same circumstances and whether Robbins had breached this standard of care would require the jurors to improperly engage in speculation on questions outside of their knowledge. The common every day knowledge of persons would not allow them to know the degree of skill, care, and diligence required of a reasonably prudent and competent insurance agent acting under the same circumstances. Casas had the burden to furnish the necessary expert testimony in this case to establish the duty and breach elements of his negligence claim. Because he failed to do so, the trial court properly granted judgment as a matter of law in favor of the Agency on Casas’ negligence claim.
In its cross-appeal, the Agency argues that the trial court erred in denying it judgment as a matter of law on Casas’ oral contract claim. The Agency contends that as a matter of law, Casas failed to present sufficient evidence which would allow a reasonable juror to find in his favor on his claim of breach of an oral contract to procure a homeowner’s policy. This court’s standard of review is set forth in the first issue raised by Casas in this case.
The question to be answered is whether, when resolving all facts and inferences reasonably to be drawn from the evidence in favor of Casas, a reasonable person could find that an oral contract to procure insurance was formed between Casas and Robbins and that Robbins breached the contract.
The Utah Supreme Court’s decision in Harris v. Albrecht, 86 P.3d 728 (Utah 2004), is instructive on this issue. In Harris, Albrecht was an insurance agent employed by Rick Albrecht Insurance Agency, Inc., but sold insurance policies exclusively through State Farm Fire & Casualty Company (State Farm). Beginning in 1989, Harris obtained an automobile insurance policy through State Farm from Albrecht. Thereafter, Albrecht procured various insurance policies for Harris, including an umbrella policy, as well as coverage for his house, boat, and recreational vehicle. Most of the business between Harris and Albrecht was conducted through telephone conversations. Harris and Albrecht spoke by telephone every couple of months. Generally, Harris would request insurance coverage, and Albrecht would fulfill Harris’ requests without detailed discussion of the different types of coverages.
Harris then contacted Albrecht in 1997 to obtain business insurance for his architectural firm. Harris directed Albrecht “ To place business and fire coverage on [his] equipment and the contents [of his office.]’ ” 86 P.3d at 730. According to Harris, Albrecht responded that “ ‘he would take care of [it],’ ” and “ ‘he would come out and look at [the] equipment.’ ” 86 P.3d at 730. Several months later, a fire destroyed the building where Harris’ architectural firm was located. Architectural plans and other valuable papers were lost in the fire. Harris called Albrecht and asked: “ ‘You placed that [business] coverage we talked about, didn’t you?’ ” 86 P.3d at 730. Albrecht responded: “ ‘We talked about it Ken, but we never did anything about it.’ ” 86 P.3d at 730. Harris sued Albrecht, alleging breach of a contract to procure insurance and negligent failure to procure insurance. The trial court granted summary judgment in favor of Albrecht on these claims. The Utah Court of Appeals reversed the grant of summary judgment. Albrecht appealed this decision to the Utah Supreme Court.
In determining whether an oral contract to procure insurance existed between Albrecht and Harris, the Utah Supreme Court cited Hamacher v. Tumy, 222 Or. 341, 352 P.2d 493 (1960). The Hamacher court stated that in order to find an agent hable for failure to procure insurance, the agent must have sufficiently definite directions from his principal to allow him to consummate the insurance contract. Nevertheless, noting that an express agreement is unnecessary and that many of the elements needed for an insurance contract can be found by implication, the Hamacher court stated:
“ ‘In entering into a contract to procure insurance, obviously the owner is seeking the same ultimate objective, that is, a contract of insurance, but the performance for which he bargains is the services of the insurance agent in obtaining the best possible terms consistent with the owner’s insurance needs. Such a contract could arise even though the agent was given the authority to ascertain some of the facts essential to the creation of the ultimate contract of insurance, such as the appraised value of the property to be covered or the most advantageous premium.’
“ ‘. . . Obviously, liability for failure to procure insurance could not arise unless the agent had sufficiently definite directions from his principal to enable him to consummate the final insurance contract. . . . [A]n express agreement is not necessary; the scope of the risk, the subject matter to be covered, the duration of the insurance, and other elements can be found by implication.’ [222 Or. at 349-50]” 86 P.3d at 731.
After setting forth this language from Hamacher, the Utah Supreme Court in Harris reached the following conclusion;
“Therefore, a contract to procure insurance may arise when the agent has definite directions from the insured to consummate a final contract, when the scope, subject matter, duration, and other elements can be found by implication, and when the insured gives the agent authority to ascertain some of the essential facts.” 86 P.3d at 731.
Applying this reasoning to the facts in Harris, the Utah Supreme Court determined that “Albrecht did not have sufficiently definite directions from Harris to consummate the final insurance contract.” 86 P.3d at 731. The court reasoned that in order for Albrecht to procure the business insurance for Harris, he needed to know the type of coverage drat Harris wanted, tire value of tire items insured, the deductible amount that Harris wanted, why the business had not been insured, the start date of the policy, and whether there had been any previous losses. The court noted that Albrecht did not have any of this information as all of Harris’ previous policies were personal. In addition, the court stated: “Harris has not cited any instance where a court has held that an insurance agent must procure part of an insurance policy while waiting for the remaining sections to be sufficiently identified.” 86 P.3d at 732.
Moreover, the Harris court noted that the scope of the risk, subject matter to be covered, duration of the coverage, and other elements could not be established by implication. Further, Harris had not given Albrecht the authority to ascertain some of the essential facts but had only made a blanket request for insurance. The Harris court also found that previous dealings between the parties did not supply by implication the missing terms of the contract. The court stated: “Prior dealings are supportive only to the degree that they supply essential elements from which the agent can complete an insurance contract. Harris’ personal insurance policies provided no information from which Albrecht could have inferred the necessary and missing terms for a business policy.” 86 P.3d at 732.
In concluding that Albrecht did not have sufficient information from which the terms of a contract of insurance or a contract to procure insurance could be implied, the Harris court stated:
“The expression of a desire to procure business insurance followed by an oral affirmation of that desire is not enough to create a contract to procure insurance. Creation of a contract to procure insurance requires that the agent know or have ready access to the information needed to procure the insurance or be able to imply the terms from prior dealings. If the insured gives authority to tire agent to obtain some information, he must do so explicitly.” 86 P.3d at 732.
Finding that no contract to procure insurance existed between the parties, the Utah Supreme Court reversed the Court of Appeals’ decision reversing the trial court’s grant of summaiy judgment in favor of Albrecht.
The instant case is factually similar to Harris. Here, as in Harris, there was very little information exchanged between Casas and Robbins during the telephone conversation in which an oral contract to procure insurance was allegedly formed. According to Casas, during the May 2002 conversation, he told Robbins that he was buying a new house, gave him the price and address of the house, and said that he needed coverage. Robbins responded that “he was going to take care of it.” Nevertheless, no information was given concerning the type of homeowner’s policy that Casas wanted (Robbins’ testimony indicated that there were several types), the amount of deductible that Casas wanted, and the date that Casas wanted the insurance policy to go into effect. This information concerns the essential elements, that is, scope of the risk and duration of the insurance, needed to consummate the final contract of insurance. The record indicates that Robbins did not have any of this information because Casas’ other policies were for car insurance and renter’s insurance. Further, Casas never filled out an application for homeowner’s insurance to provide this information.
Moreover, there is nothing in the record establishing that this information could be identified by implication. Casas never introduced a “standard” homeowner’s insurance policy. There was not any evidence presented about what a standard deductible would be or what the standard terms are in a homeowner’s insurance policy. Moreover, Robbins did not provide any information about what a standard homeowner s insurance policy would cover. For instance, when Robbins was questioned about what coverages other than the structure would be included in a standard homeowner s policy, Robbins stated: “It’s hard to know what to say [is] ‘standard’ simply because there’s so many different variables that go into a policy.” Moreover, Robbins indicated that there were several categories of information which were necessary to write a homeowner’s policy and which Casas had not provided. Specifically, Robbins indicated that the following information was necessary: the date that a person is moving into a home; the construction of the house, which included the style of the home, type of siding, number of fireplaces, number of bedrooms and bathrooms, whether the basement was finished, and the square footage; the deductible; the loan amount; and the financing arrangement. Robbins indicated that once all that information was collected, a quote would be put together for the customer. Robbins further indicated that he would usually review the quote with several deductible options with the customer and talk about additional insurance that was needed. None of these tilings were discussed with Casas.
The evidence in this case fails to indicate that Robbins knew or had ready access to the information that was necessary to procure a contract for homeowner’s insurance for Casas. The prior dealings between Casas and Robbins did not supply the essential elements from which Robbins could complete a homeowner’s insurance contract. As set forth in Harris, “Prior dealings are supportive only to the degree that they supply essential elements from which the agent can complete an insurance contract.” 86 P.3d at 732. Here, the prior dealings between Robbins and Casas related to the automobile insurance and renter’s insurance policies. The record does not indicate, and Casas fails to allege, that there was anything in these policies from which Robbins could infer the necessary and missing information for the homeowner’s insurance policy. As a result, the trial court should have granted judgment as a matter of law in favor of the Agency on Casas’ breach of a contract to procure insurance claim.
Because we have determined that the Agency was entitled to judgment as a matter of law on Casas’ negligence and contract claims, we need not address Casas’ other contentions.
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Rulon, C.J.:
Defendant Nicomedes Barahona appeals the district court’s denial of his motion to withdraw his plea, claiming his plea hearing violated his due process rights and that he was afforded ineffective assistance of counsel. We affirm.
The defendant claims the district court erred in summarily denying his request to withdraw his plea. Primarily, the defendant claims the district court violated his due process rights by failing to address the defendant to determine whether the plea was entered knowingly and voluntarily. We disagree.
After sentencing, a district court may permit a defendant to withdraw a plea, if doing so will correct a manifest injustice. K.S.A. 2005 Supp. 22-3210(d). A decision regarding a motion to withdraw a plea lies entirely within the discretion of the district court. An appellate court will not disturb the exercise of such discretion absent a demonstration of abuse. See State v. Muriithi, 273 Kan. 952, 955, 46 P.3d 1145 (2002). Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable so that no reasonable person would take the view adopted by the court. See State v. Murray, 22 Kan. App. 2d 340, 346, 916 P.2d 712 (1996).
The requirements in accepting a plea set forth in K.S.A. 2005 Supp. 22-3210(a) encapsulate the due process standard announced in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); see Muriithi, 273 Kan. at 964. In pertinent part, the statute provides:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”
A review of the plea hearings conducted in this case reveals a personal inquiry of the defendant by the district court about the defendant’s understanding of the charges and the potential consequences. The only objection to the sentencing hearing raised by the defendant is the court’s failure to address the defendant about the voluntariness of the plea.
While the record clearly reveals the district court’s failure to question the defendant about the knowing and voluntary nature of his plea, a failure to strictly comply with the provisions of K.S.A. 2005 Supp. 22-3210(a) does not necessarily mandate reversal. See Trotter v. State, 218 Kan. 266, 268-69, 543 P.2d 1023 (1975).
“While we do not approve of any failure to comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom requires reversal. If upon review of the entire record it can be determined that the pleas of guilty [or nolo contendere] were knowingly and voluntarily made, the error resulting from failure to comply strictly with K.S.A. 22-3210 is harmless.” Trotter, 218 Kan. at 269.
A review of the plea hearing transcripts leaves no doubt as to the defendant’s understanding of his plea. Because of die confusion related to the applicable criminal history score, the defendant was provided with two hearings, rattier than just one. During the second hearing, the defendant’s attorney informed the court that he had explained the changes in die plea agreement to the defendant. Later, the district court specifically asked the defendant whether the defendant understood what his attorney had just stated and whedier the defendant understood the ramifications of the change in the plea agreement. The defendant confirmed that he did.
Furthermore, the plea agreement was accompanied in this case by a written acknowledgment of a waiver of rights, signed by the defendant wherein the defendant acknowledged: “I do this of my own free will and under no threat, intimidation or coercion, and no promises have been made to me by my attorney, any police officer, or any prosecuting attorney as to what I should expect to receive from this.”
Most persuasively, however, the defendant wrote a series of letters to the district court in this case. The first, dated October 11, 1994, was received by the district court prior to the plea agreement in this case, which was dated November 7,1994. Within that letter, tiie defendant wrote:
“Your [sic] handeling [sic] my case in Riley County District Court. My case number is 94-CR-630. . . . Your honor, im [sic] not writeing [sic] to justify my criminal actions, Because there is no way for me to justify my action. . . . I found a girl I really love, she [sic] got pregnant & I didn’t know what to do. My mom wouldn’t have helpt [sic] out neither would her parents, so [sic] I resorted to a quick way of cash to help her out. I did the robbery, which im [sic] in here for.”
Prior to trial, the defendant had admitted committing one of the crimes to which he ultimately entered a plea. On October 8, 10, and 31, the district court received other letters from the defendant. Within these letters, the defendant begged the court for leniency and mercy, but the defendant never proclaimed his innocence of any of the charges he faced. There is nothing to indicate these letters were coerced in any manner or that the defendant desired a trial, which would undermine his later acknowledgment of the voluntariness of his plea within the plea agreement.
Although Kansas courts have not previously defined the term “manifest injustice” within the context of a motion to withdraw a plea, cases involving other contexts in which that standard has been applied have equated “manifest injustice” to something obviously unfair or shocking to the conscience. See State v. Turley, 17 Kan. App. 2d 484, Syl. ¶ 2, 840 P.2d 529, rev. denied 252 Kan. 1094 (1992) (interpreting “manifest injustice” standard in K.S.A. 1991 Supp. 21-4618[3]); State v. Cramer, 17 Kan. App. 2d 623, 635, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1094 (1993) (same).
One consideration courts have given to a request of a defendant to withdraw a plea is the timeliness of the request. See United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997) (under a “fair and just reason” standard, a court properly considers whether the defendant asserted innocence, whether the government is prejudiced by a withdrawal of the plea, whether the defendant delayed in filing a motion to withdraw the plea, whether the court will be inconvenienced, whether the defendant possessed the assistance of counsel, whether the plea was knowing and voluntary, and whether judicial resources will be squandered); People v. Castaneda, 37 Cal. App. 4th 1612, 1618, 44 Cal. Rptr. 2d 666 (1995) (requiring defendant to justify lapse of time between entry of plea and motion to withdraw if the delay is significant); Commonwealth v. Gonzales, 43 Mass. App. 926, 685 N.E.2d 1163 (1997) (attaching a presumption of regularity to plea proceedings when attempt to withdraw plea brought 10 years after entry of plea); Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (questioning validity of claims raised in a motion to withdraw a plea filed 22 months after entry of plea); State v. Tweed, 312 Mont. 482, 490, 59 P.3d 1105 (2002) (applying an abuse of discretion standard to review of district court’s refusal to allow the withdrawal of a plea; the court considered, in part, the promptness with which the defendant brought the motion to withdraw the plea); Hart v. State, 116 Nev. 558, 563, 1 P.3d 969 (2000) (considering whether inexcusable delay or implied waiver due to defendant’s knowing acquiescence to plea proceeding prevented a finding of manifest injustice warranting withdrawal of the plea); State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715 (1993) (requiring a more compelling reason to withdraw plea when request is made 8 months after plea was entered); State v. Bush, 96 Ohio St. 3d 235, 239, 773 N.E.2d 522 (2002) (undue delay in filing motion to withdraw plea is a factor adversely affecting the credibility of the movant’s claims).
The defendant filed this motion to withdraw his plea nearly 10 years after being sentenced. While his criminal history score continues to reflect the convictions resulting from his pleas, he has effectively served tire entire underlying sentence for these crimes. The record of the original proceedings disputes the defendant’s claim that he maintained his innocence but was pressured into a plea by his attorney.
Under these circumstances, no reasonable person in the position of the district court judge would conclude that enforcing the plea agreement was obviously unfair or shocking to the conscience. Consequently, the district court did not abuse its discretion in refusing to allow the defendant to withdraw his plea.
Alternatively, the defendant argues the district court should have allowed him to withdraw his plea due to the ineffective assistance of trial counsel. Again, the standard the defendant needs to meet is manifest injustice. K.S.A. 2005 Supp. 22-3210(d).
To demonstrate constitutionally ineffective assistance of counsel, tire movant must satisfy a two-prong test: (1) the performance of counsel must be so deficient as to impinge upon the guarantees of the Sixth Amendment to the United States Constitution; and (2) the deficient performance must be of a serious nature, prejudicing the movant’s ability to obtain a fair trial. See State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
“ ‘In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973)], and McMann v. Richardson, [397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)]. The second, or “prejudice,” requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of tire plea process. In other words, in order to satisfy tire “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ 474 U.S. at 58-59.” Muriithi, 273 Kan. at 956 (quoting Hill v. Lockhart, 474 U.S. 52, 58, 88 L. Ed. 2d 203, 106 S. Ct. 366 [1985]).
In evaluating counsel’s performance, a court must view the representation in light of knowledge a reasonable attorney possessed, or should have possessed, at the time of the performance in question. “Wisdom gained through hindsight cannot be used to gauge effectiveness of counsel. In retrospect, the possibility that some strategy or procedure, different from that used by the accused’s lawyer, might have brought about better results for tire accused, is wholly insufficient to sustain a claim of ineffective assistance of counsel.” State v. Hernandez, 227 Kan. 322, 328, 607 P.2d 452 (1980).
Failure to File Pretrial Motions
One of the allegations raised by the defendant is his trial attorney’s failure to file any pretrial motions or to conduct pretrial investigations. As we understand, this failure demonstrates his attorney’s intent to force the defendant to enter a plea instead of going to trial. However, the defendant fails to articulate what motions his attorney might have filed which would have benefitted the defense.
The defendant bears the burden of proving that the representation of his trial counsel was deficient by a preponderance of the evidence. Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980); Rule 183(g) (2005 Kan. Ct. R. Annot. 228). Merely speculative allegations are insufficient to mandate an evidentiary hearing. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).
Failure to Inform of Collateral Consequences
This defendant also contends his trial attorney was constitutionally ineffective in failing to inform the defendant that his convictions for robbery and burglary would not consolidate and would count separately in future criminal history determinations. This argument is devoid of legal merit. At the second plea agreement hearing, during which the defendant was present, the trial attorney stated:
“The benefit to the State is that by agreeing with us to withdraw this or the plea, they are getting a higher level felony 94 CR 630 as well as a person felony instead of a non-person. And I’ve advised Mr. Barahona what that means is if he is ever faced with a sentencing situation again, should he ever be convicted of another crime, his criminal history would be greater because of the burglary than it would have been for the criminal use of a communications facility.”
Moreover, due process does not require that the defendant be notified of collateral consequences arising from entering a plea, including the effect such convictions might have on his or her future criminal history. See In re J.C., 260 Kan. 851, Syl. ¶ 2, 925 P.2d 415 (1996) (holding that juvenile’s plea without being informed of the possibility that conviction might affect future status as a juvenile offender does not violate due process); City of Ottawa v. Lester, 16 Kan. App. 2d 244, 246-47, 822 P.2d 72 (1991) (due process does not require a criminal defendant to be informed of the possibility that a conviction as the result of a plea may be used to enhance the sentence for a later crime).
Therefore, even if defendant’s attorney had failed to inform the defendant that the two person felonies to which he was entering a plea would count against his criminal history at a later date, this failure does not equal constitutionally deficient representation.
Failure to Provide Charges and a Copy of the Plea Agreement
Next, the defendant contends his attorney failed to provide the defendant with a copy of the charges filed against him and a copy of the plea agreement. While the record does not demonstrate the defendant was given his own copy of the plea agreement, which clearly lists the applicable charges and the sentencing range, the defendant acknowledged he had read and understood the plea agreement, evidenced by his signature.
Additionally, though the secondary charge in the agreement was subsequently amended, the amendment, was explained to the defendant in open court. The defendant was told the applicable sentencing range and specifically questioned whether he understood the charges against him. Defense counsel’s representation in this matter was constitutionally sufficient. Furthermore, if the representation had been deficient in this regard, the defendant cannot demonstrate prejudice therein.
Failure to Notify of Postrelease Supervision Period
The defendant also claims that his counsel was ineffective in failing to advise him of the potential postrelease supervisory period applicable to his convictions for robbery and burglary as a result of his plea. The record supports his contention, as it is silent on the issue of the period of postrelease supervision applicable to the defendant’s convictions, except within the journal entry of sentencing.
As previously stated, due process only requires that a criminal defendant be notified of the direct consequences of his plea, not collateral consequences. See Muriithi, 273 Kan. at 964; Bussell v. State, 25 Kan. App. 2d 424, 426-27, 963 P.2d 1250, rev. denied 266 Kan. 1107 (1998). However, unlike the criminal history consequences of entering a plea, the postrelease supervision period attending a felony conviction is not speculative or conditional. A direct penal consequence is “definite, immediate, and almost automatic as a result of [a] guilty plea.” Bussell, 25 Kan. App. 2d at 427.
Although Kansas has not considered whether the postrelease supervision period constitutes a direct or a collateral consequence within the meaning of due process, such jurisdictions which have considered the question have nearly uniformly held that a mandatory supervised parole or release period is a direct penal consequence of the plea. See United States v. Yazbeck, 524 F.2d 641, 643 (1st Cir. 1975); Ferguson v. United States, 513 F.2d 1011, 1012 (2d Cir. 1975); Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974); Moore v. United States, 592 F.2d 753 (4th Cir. 1979); United States v. Garcia-Garcia, 939 F.2d 230 (5th Cir. 1991); United States v. Syal, 963 F.2d 900 (6th Cir. 1992); United States v. Richardson, 483 F.2d 516 (8th Cir. 1973); United States v. Roberts, 5 F.3d 365 (9th Cir. 1993); United States v. Watson, 548 F.2d 1058 (D.C. Cir. 1977); In re Moser, 6 Cal. 4th 342, 862 P.2d 723 (1993); Craig v. People, 986 P.2d 951 (Colo. 1999); Barkley v. State, 724 A.2d 558 (Del. Super. 1999); People v. Blackburn, 46 Ill. App. 3d 213, 360 N.E.2d 1159 (1977); State v. Henthorne, 637 N.W.2d 852 (Minn. App. 2002); People v. Melio, 304 App. Div. 2d 247, 760 N.Y.S.2d 216 (2003); State v. Acevedo, 137 Wash. 2d 179, 970 P.2d 299 (1999).
However, almost as uniformly, federal jurisdictions have concluded that due process is not violated by failure to advise a criminal defendant of the applicability of a postrelease supervisory period or mandatory parole, if the sentence assigned to the defendant and any mandatory supervised period following his or her release does not exceed the maximum penalty term the defendant was told at sentencing. See United States v. Raineri, 42 F.3d 36 (1st Cir. 1994), cert. denied 515 U.S. 1126 (1995); United States v. Andrades, 169 F.3d 131 (2d Cir. 1999); United States v. Good, 25 F.3d 218 (4th Cir. 1994); United States v. Saenz, 969 F.2d 294 (7th Cir. 1992); United States v. Osment, 13 F.3d 1240 (8th Cir. 1994); United States v. Barry, 895 F.2d 702 (10th Cir.), cert. denied 496 U.S. 939 (1990); United States v. Carey, 884 F.2d 547 (11th Cir. 1989), cert. denied 494 U.S. 1067 (1990).
At the original plea hearing, prior to the amended plea agreement, the district court advised the defendant that he could potentially serve 31 to 136 months for a conviction of robbery. The defendant entered a plea of no contest to that charge. Although the plea agreement was amended, which changed the second crime to which the defendant entered a plea, the plea related to the robbery was untouched in the subsequent plea proceedings at the sentencing hearing.
The amendment to the plea agreement affected the sentence ultimately imposed upon the defendant’s robbery conviction by dropping his criminal history score from a G to an H, but the sentencing range announced by the district court prior to accepting the defendant’s plea did not change.
Ultimately, the defendant was sentenced to serve 36 months in prison for the robbery conviction, 13 months for the burglary conviction, and a postrelease supervision period of 24 months. Even if the defendant served the full term of his robbery sentence before beginning his postrelease supervision period, the duration of the defendant’s total penal consequences of entering a guilty plea would not exceed the 136-month total advised by the district court. Consequently, the failure to notify the defendant of the consequences of the postrelease supervision term prior to accepting the defendant’s plea did not violate the defendant’s due process rights in this case.
If a defendant can demonstrate no due process violation in his or her attorney’s failure to advise of the postrelease consequences of his or her plea, the defendant cannot demonstrate the prejudice required to permit a withdrawal of a plea for ineffective assistance of counsel. As tire defendant was notified that he faced a sentence of 136 months prior to entering a plea of nolo contendere to the robbery charge, he cannot demonstrate a probability that, but for his counsel’s failure to advise him of the postrelease supervision period of 24 months, he would have proceeded to trial instead of entering a plea.
Right to Contact Consulate
Finally, the defendant argues the representation of his trial attorney was constitutionally ineffective for failing to advise the defendant to his right to contact his consulate under the Geneva Convention. Other than a reference to Panama in one of his letters to die district court, there is no evidence within the record to support a claim that the defendant is a foreign national entitled to the protection of the Geneva Convention. The defendant does not allege that he is not a citizen of the United States.
Furthermore, the defendant utterly fails to demonstrate how speaking to a consulate of a foreign nation would have assisted in his defense. This claim is devoid of legal merit.
Because the defendant has failed to present a colorable claim for ineffective assistance of counsel, the district court properly dismissed his claims without an evidentiary hearing. See State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 (1994) (applying procedure for K.S.A. 60-1507 motions while addressing a motion to withdraw a plea under K.S.A. 22-3210).
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Greene, J.:
Employers Mutual Insurance Companies (EMC) appeals a judgment of indemnity and attorney fees in favor of its insureds, Tom and Sherry Wenrich, on a claim for storm damage under their commercial property insurance policy. EMC argues that the district court erred in instructing the jury and submitting a special verdict question that allowed the jury to ignore a coinsurance provision in the policy. EMC also challenges the district court’s award of attorney fees. We affirm.
Factual and Procedural Background
EMC issued the Wenrichs a commercial property insurance policy on their business real and personal property in Pratt, Kansas, effective December 9, 2001. The declaration page designated an 80% coinsurance penalty, explained by the printed policy form as follows:
“If a Coinsurance percentage is shown in the Declarations, the following condition applies.
“a. We will not pay the full amount of any loss if the value of Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.
“Instead, we will determine the most we will pay using the following steps:
(1) Multiply the value of Covered Property at the time of loss by the Coinsurance percentage;
(2) Divide the Limit of Insurance of the property by the figure determined in Step (1);
(3) Multiply the total amount of loss, before tire application of any deductible, by the figure determined in Step (2); and
(4) Subtract the deductible from the figure determined in Step (3).
“We will pay the amount determined in Step (4) or the limit of insurance, whichever is less. For the remainder, you will either have to rely on other insurance or absorb the loss yourself.”
On May 7, 2002, the Wenrichs’ property, including a service station building and canopies, storage building, and 1981 GMC pickup were damaged by wind and hail. Wenrichs reported a claim to their agent, and after an adjuster inspected the damage, EMC issued a check to the Wenrichs in September 2002 for $7,481.50. The Wenrichs cashed this check but apparently were not satisfied with the amount. In December 2003 counsel for the Wenrichs issued a demand letter for additional indemnity on the damaged property, and EMC issued a second check in January 2004 for $1,628.94 for “full and final settlement.” This check was not cashed by the Wenrichs, and they shortly thereafter filed a petition against EMC seeking damages of $40,000 plus attorney fees.
After a formal pretrial order was entered, the matter was tried to a jury in late September 2004. The trial focused upon a host of issues, most of which are not material to this appeal, including the reasonable cost of repairs, whether the insureds provided an adequate basis to compute the loss, purported lack of financial interest of the insureds in some of the subject properties, and payment to and acceptance by the insureds. The principle issues on appeal surround instructions to the jury regarding the application of the coinsurance clause of the policy, and those issues seem to be related exclusively to a storage building located at 404 Pedigo in Pratt.
In its instructions to the jury, the district court included a modified version of PIK Civ. 3d 124.32, stating: “If you find that the terms of the insurance policy on the issue of coinsurance are susceptible of more than one meaning, tire policy provisions must be given the meaning which is most favorable to the policyholder.” EMC objected to this instruction, arguing that there was no issue of policy ambiguity or “question of fact as to which of the two reasonable meanings is to be given.”
The district court also included among five special verdict form questions a final question stating: “Has the defendant met its burden of proof that an underinsurance (co-insurance) penalty should be applied regarding any damage to the storage building at 404 Pedigo?” EMC also objected to this question, arguing that “the coinsurance penalty is plainly in the insurance policy and that’s a matter for the Court to decide if it should be applied and, therefore, we don’t think that’s a question for the jury.”
The jury returned a verdict in favor of E MC on the cost to repair, answering one of the special verdict questions, “We agree with all adjustments with insurance company,” but it rejected EMC’s claim for a coinsurance penalty on the Pedigo storage building, finding that EMC did not sustain its burden of proof that the coinsurance penalty should be applied. The district court entered judgment against EMC for $8,724.01, together with attorney fees and costs of $14,310.57. EMC appeals.
Did the District Court Err in Denying a Motion to Alter or Amend the Judgment for the Purported Amount of the Coinsurance Penalty?
On appeal EMC argues that its “primaiy” issue is whether the coinsurance deduction for $6,994.07 is enforceable as a matter of contract law. Notably, EMC did not move for partial summary judgment or for a directed verdict on this basis; apparently, it moved posttrial to alter or amend the judgment under K.S.A. 60-259(f), but this motion is not in the record on appeal. Because we have the transcript of argument on the posttrial motion, we are able to glean the thrust of EMC’s argument to the district court. We review the district court’s denial of a motion under K.S.A. 60-259(f) for an abuse of discretion. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004); 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2818, pp. 197-98 (1995) (abuse of discretion is well-settled standard of review on motion to alter or amend).
EMC’s argument suggests, first, that the coinsurance clause in the policy is not ambiguous and is capable of enforcement as a matter of law, and second, that the evidence of replacement cost (purportedly necessary for calculating the coinsurance penalty) was undisputed.
The term “coinsurance” means a relative division of the risk between the insurer and the insured. 15 Couch on Insurance, § 220:3 (3d ed. 2005).
“Coinsurance clauses are provisions in insurance policies that require the insured to maintain coverage to a specified value of the property, and stipulate that, upon his or her failure to do so, he or she becomes a coinsurer and must bear his or her proportionate part of the loss. For example, insurance policies which insure against particular hazards such as fire, water, or wind damage often specify that the owner of the property may not collect tire full amount of insurance for a loss unless the insurance policy covers at least some specified percentage, usually about 80 percent of tire replacement cost of the property. To the extent that the property is underinsured, the insured becomes a coinsurer with the underwriter.” Couch § 220:3, p. 220-9.
In Kansas, coinsurance clauses are enforceable and have been stated to be “a plain limitation of liability.” See Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 385, 291 Pac. 935 (1930).
Were the coinsurance provisions in the policy ambiguous?
EMC argues that the coinsurance provisions in the Wenrichs’ policy are not ambiguous and should be enforced as a matter of law. The Wenrichs argue that the term “value” as used in the coinsurance provisions renders these provisions ambiguous, apparendy because it is not clear whether the “replacement cost” optional coverage applies to displace “value” in its plain and ordinary sense. This is precisely the same argument made to the district court in advocating an instruction for ambiguity. Whether a written instrument is ambiguous is a question of law. O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 576, 56 P.3d 789 (2002). For reasons discussed below, we hold that there was no ambiguity in the coinsurance provisions.
Turning to applicable policy provisions, there is no dispute that the declarations page of the Wenrichs’ policy specifies that the replacement cost optional coverage applies to the real property at issue. The language of that optional coverage provides that “Replacement Cost (without deduction for depreciation) replaces Actual Cash Value in the Loss Condition, Valuation, of this Coverage Form.” The phrase “Loss Condition, Valuation” is a reference to section “E. Loss Conditions” and subsection “7. Valuation,” which states that “[w]e will determine the value of Covered Property in the event of loss or damage as follows: a. At actual cash value as of the time of loss or damage, except as provided in b., c., d., e., and f. below.” Accordingly, the replacement cost option has no express application to the coinsurance provisions contained at section “F. Additional Conditions” and subsection “1. Coinsurance,” but these provisions reference “the value of Covered Property at the time of loss” and inescapably incorporate the replacement cost option when designated by the declarations page.
We agree with EMC that the replacement cost optional coverage must be construed as altering the methodology for determining “the value of Covered Property in the event of loss” and is therefore inherently incorporated into the coinsurance provisions. There is no ambiguity in tire coinsurance provisions because we cannot conceive of any reasonable alternative meaning to the phrase “the value of Covered Property at the time of loss” other than replacement cost pursuant to the optional coverage. If the optional coverage had not been declared, the coinsurance provision would be interpreted consistent with the valuation provision to require use of “actual cash value.” The clear effect of the optional coverage is the substitution of “replacement cost” for “actual cash value” in determining “the value of Covered Property in the event of loss or damage.” In the absence of more than one possible meaning to a word or phrase in a legal instrument, ambiguity does not exist. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, Syl. ¶ 4, 961 P.2d 1213 (1998). ■
Were the coinsurance provisions enforceable as a matter of lawP
Concluding that there was no ambiguity in the coinsurance provisions does not, however, render the provisions enforceable as a matter of law where application inherently requires a determination of fact, specifically the replacement cost of the property at the time of loss. Under the EMC policy form, the coinsurance penalty applies “if the value of the Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.”
EMC argues that application of a coinsurance penalty presents a pure question of law, citing Bichelmeyer Meats v. Atlantic Ins. Co., 30 Kan. App. 2d 458, 465-66, 42 P.3d 1191 (2001), in which this court affirmed the district court’s finding that the coinsurance provision in the insurance policy was not ambiguous. EMC makes much of the Bichelmeyer court’s statements that construction of an insurance policy is a question of law and that an appellate court may construe the policy without regard to the district court’s interpretation of such. EMC then relies on this language to argue the district court in the present case should not have allowed the jury to determine whether it met its burden to show applicability of the coinsurance provisions. Importantly, however, the procedural posture of Bichelmeyer differed from that of the present case, in that the issues presented in Bichelmeyer were resolved by summary judgment. See 30 Kan. App. 2d at 460-61. Here, there is no indication either party ever sought resolution via summaiy judgment. Thus, the mere fact the district court evaluated the legal propriety of the coinsurance provision in Bichelmeyer does not mean the district court erred in submitting a coinsurance issue to the jury under the circumstances presented in this case.
In fact, application of a coinsurance clause generally presents a mixed question of fact and law. Although preliminary construction and application of coinsurance provisions may present legal issues, whether such a clause applies and justifies a coinsurance penalty in a particular case requires a determination of whether the insured was underinsured or, as stated in EMC’s policy, whether the “value of the covered property at the time of loss times the Coinsurance percentage ... is greater than the Limit of Insurance”; this is clearly a fact question. Although there is an apparent scarcity of case law on the question, we note that the Wisconsin Court of Appeals has held in an unpublished opinion that an insurer is not entitled to judgment notwithstanding the verdict based on a coinsurance provision where it failed to request that the jury make the requisite factual findings needed to support application of the clause. See Jonas Builders, Inc. v. United States Fidelity & Guaranty Co., 2001WL 1474775 (Wis. App., unpublished opinion filed November 21, 2001). We agree.
Was there disputed evidence on the inherent fact question?
Although EMC argues that there was no dispute as to the evidence of replacement value for the subject property, we disagree. We note that there is evidence that the “value” of the subject property was as little as $25,000, and other witnesses opined that replacement cost was as little as $33,000 to as much as $60,000, and disagreed as to replacement of the slab, the manner and cost of roof replacement, and other details. This evidence suggests that the proper application of the coinsurance provisions of the Wenrichs’ policy presented a mixed question of law and fact, and that the district court did not err in refusing to grant EMC’s posttrial motion to enforce the coinsurance penalty as a pure matter of law.
Did the district court abuse its discretion in denying posttrial relief?
The district judge denied EMC’s posttrial motion, stating:
“There were enough factual disputes in my opinion that it was appropriate to let the jury answer that question. Maybe it’s one of these mixed questions of fact and law that I don’t know that you can, you can separate it out.
“The Court would deny the motion to alter or amend. I think we did as good a job as we could with a difficult factual matter. A difficult matter of applying provisions of an insurance policy and a difficult matter that, for example, if there was going to be the Court determining as a matter of law an issue of a coinsurance penalty, I think that should have been done by a motion for partial summary judgment, or something of that nature prior to trial.
“After the dust has settled, we can Monday morning quarterback all we want to. The dust has settled. The jury says it’s appropriate that there be a verdict in favor of Mr. and Mrs. Wenrich because there shouldn’t have been a coinsurance penalty applied. That’s where the dust has settled and I don’t intend to restir it today and the motion to alter or amend judgment is denied.”
In the final analysis, we cannot conclude that the district court abused its discretion in denying posttrial relief to EMC. Indeed, we have previously recognized that motions to alter and amend may properly be denied where the moving party could have, with reasonable diligence, presented the argument prior to the verdict. See Blevins v. Hiebert, 13 Kan. App. 2d 318, 323, 770 P.2d 486 (1989). Despite our view that EMC’s coinsurance clause was not ambiguous, there was an inherent factual issue that was proper for resolution by the jury.
It is clear from the record that EMC may have only belatedly understood and realized that coinsurance issues might have been addressed before trial with a motion for partial summary judgment. At tire outset of its posttrial motion argument, counsel admitted, “After the dust settled after this trial we dug into the Kansas case law a little bit on this question on the coinsurance penalty issue and that’s what we’re here on.” In fact, the pretrial order approved by counsel for both parties identified the following as issues of both fact and law: “What was the Value’ of Plaintiffs’ insured property on May 7, 2002, for purposes of calculating an under-insurance penalty?” and “Were Plaintiffs under-insured and, if so, to what extent?” Additionally, EMC specifically identified the following as an issue of fact in the pretrial order: “What is the replacement cost of Plaintiffs’ metal building, insured by Defendant, damaged by wind or hail, May 7, 2002, and/or what is the actual cash value of Plaintiffs’ property insured by Defendant, damaged by wind or hail, May 2 [sic], 2002?” Neither party identified as a question of law the specific issue whether a coinsurance penalty should apply, and we deem this omission by EMC as particularly damning to its post-trial position and argument on appeal.
As the Wenrichs properly state, a pretrial order has the full force of other orders entered by the court and controls tire subsequent course of litigation unless modified to prevent manifest injustice. See K.S.A. 60-216(e); Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). In the absence of an attempt to modify the pretrial order, such order is binding and controls the subsequent course of trial. Sieben v. Sieben, 231 Kan. 372, 377, 646 P.2d 1036 (1982).
Granted, EMC objected to a proposed question for the special verdict form regarding whether the Wenrichs met their burden to prove the coinsurance penalty should apply, briefly stating such was a question for the court to decide. Nevertheless, the determination of whether and to what extent the Wenrichs were underinsured, such that the coinsurance penalty would apply, necessarily depended on the replacement cost of the property. As previously noted, EMC expressly- — and correctly- — agreed the issues of value and whether the Wenrichs were underinsured framed questions of fact.
The district court did not abuse its discretion in denying posttrial relief.
Did the District Court Err in Its Instructions and Special Verdict Question to the Jury Regarding the Coinsurance Clause?
EMC specifically challenges two aspects of the district court’s instructions to the jury: (i) the instruction on resolving ambiguity and (ii) the special verdict question regarding applicability of the coinsurance penalty.
Instruction on resolving ambiguity
With regard to the instruction on resolving ambiguity within the policy, EMC objected on the ground that there was no ambiguity shown. On appeal, EMC challenges this instruction on the basis that it “does not include all the applicable rules of construction for appropriate interpretation for [sic] an insurance policy.” Further, EMC briefly refers to its prior contention that the jury should not have been allowed to interpret the policy and maintains the policy was unambiguous.
As a preliminary matter, the Wenrichs question whether EMC waived its right to challenge any jury instructions due to its failure to submit proposed jury instructions in accordance with the pretrial order. Regardless of whether EMC submitted proposed instructions, we are not inclined to hold that EMC waived all challenges to jury instructions simply by failing to submit its own proposed instructions.
The instruction provided by the district court was slightly modified from PIK Civ. 3d 124.32, which reads: “When the terms of the insurance policy (including any endorsements attached thereto) are susceptible of more than one meaning, the policy provisions must be given the meaning which is most favorable to the policyholder.” The PIK Civ. 3d 124.32 Notes on Use acknowledge that ambiguity in a policy may present questions of either law or fact and state that in the case of the latter, this instruction may guide the jury in resolving the issue.
Given our holding that there was no ambiguity in tire coinsurance provisions of EMC’s policy, it was error to submit this instruction to the jury. There was simply no ambiguity to be resolved by the jury.
Nevertheless, when the jury instructions are considered together and read as a whole, it appears any error instructing the jury on how to resolve any ambiguity in the policy was harmless, at best. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Hawkinson v. Bennett, 265 Kan. 564, 577, 962 P.2d 445 (1998). Here, EMC has not demonstrated prejudice; there is simply no way to determine whether the juiy’s finding that EMC failed to meet its burden with regard to the coinsurance penalty was premised on a finding that the provision was ambiguous. Accordingly, we hold that any error in giving this instruction was harmless.
Special verdict question
With regard to the special verdict question, EMC objected, arguing that the district court, rather than the jury, should decide whether a coinsurance penalty applied. On appeal, EMC argues the special verdict question was too broad because it allowed the jury to determine what the terms of the policy meant and too vague because the policy set forth a specific formula for determining whether the coinsurance penalty applied. Again, EMC claims that the only factual issue for the jury to decide was the replacement cost of the storage building, yet EMC submitted no alternate spe cial verdict question in this regard (nor did it argue that one was needed) to the district court.
Both parties state appellate review of the propriety of a special verdict question is subject to the clearly erroneous standard. We disagree because, unlike Noon v. Smith, 16 Kan. App. 2d 818, 820, 829 P.2d 922 (1992), here EMC objected to the question. In Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 472, 819 P.2d 1192 (1991), cert. denied 504 U.S. 912 (1992), our Supreme Court stated: ‘Whether to submit a special verdict form or instruct the jury on the law and how it applies to each count against each defendant is within the sound discretion of the trial judge.” Hence, it appears EMC’s claim of error must be reviewed for abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the district court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
The Wenrichs maintain the special verdict question was proper in light of the pleadings, pretrial order, and evidence presented at trial.
“[A] special verdict [is] ‘a special written finding upon each issue of fact.’ Its provisions are permissive, not mandatory and where the court determines to use a special verdict, it has discretion as to tire nature, scope, and form of the questions to be put to the jury. [Citation omitted.] Where a case is submitted for special verdict, the issues of fact submitted to the jury should cover all issues raised by the pleadings, the pretrial order, and the evidence. Generally speaking, only ultimate fact questions so raised which are important to the final determination of the controversy should be submitted. [Citation omitted.]” Bott v. Wendler, 203 Kan. 212, 219-20, 453 P.2d 100 (1969).
More importantly, in attempting to reach a controlling fact issue, a question of law may be so intermingled that it cannot be separated, and it is proper to submit a question which combines both fact and law. 203 Kan. at 220. From a review of the record on appeal, the pretrial order and trial transcript in particular, we believe the district court’s decision to submit the special verdict question at issue to the jury was within the court’s discretion. As previously explained, whether a coinsurance penalty was warranted was heavily fact dependent, and the replacement cost of the prop erty remained in dispute. The jury had adequate information via the testimony presented and the insurance policy to utilize the formula set forth in the policy and assess whether the Wenrichs were underinsured. The jury could then determine whether EMC met its burden to show that a coinsurance penalty should apply. As the Wenrichs correctly note, the jury was aided in this determination by the district court’s instructions, which included a definition of “burden of proof.”
Moreover, EMC’s agreement to the issues of fact stated in the pretrial order and failure to object to the pretrial order’s omission of any questions of law (including whether the coinsurance provision was ambiguous and whether it should apply) precludes EMC’s challenge on appeal to the district court’s submission to the jury of the issue of whether a coinsurance penalty should apply. See Popp v. Popp, 204 Kan. 329, 332, 461 P.2d 816 (1969) (rejecting plaintiff s attempt to challenge district court’s submission of assumption of risk question to jury on grounds that such was question of law, holding “[hjaving agreed to submit the question of assumption of risk to the jury and having been defeated on the point, the plaintiff may not now complain”).
Clearly, the better approach would have been the submission of a special verdict question that simply asked the jury to determine the replacement cost of the Pedigo property at the time of loss. This was the sole fact issue requiring resolution for the court’s application of the coinsurance clause; the calculation of the penalty was straightforward once the “value of covered property at the time of loss” was determined. We cannot fault the district court, however, for the approach chosen; again, EMC did not submit proposed special verdict questions that were consistent with the pretrial order, did not advocate for a more simplified and fact-based special verdict question, and did not offer to assist the court in this regard except to object to the special verdict question proposed by the court. We concede that a proper understanding and application of the coinsurance provisions may have taken an above-average jury, but we cannot conclude that the question was so far beyond comprehension that its submission was an abuse of discretion.
Under these circumstances, we hold the district court did not abuse its discretion in submitting a special verdict question regarding application of the coinsurance provisions in the policy of insurance.
Did the District Court Err in Its Award of Attorney Fees ?
Finally, EMC argues the district court’s award of attorney fees should be vacated or at least reduced. First, EMC contends that because the Wenrichs should not have prevailed in their attempt to recover the coinsurance penalty, they should not be allowed to recoup their attorney fees in the matter. Obviously, this claim is now moot.
EMC also challenges the basis and amount of the attorney fees award. An appellate court reviews both a district court’s determination of the reasonableness of claimed attorney fees as well as the court’s actual award of attorney fees utilizing an abuse of discretion standard. Davis v. Miller, 269 Kan. 732, 748-50, 7 P.3d 1223 (2000). When reviewing an award of attorney fees, an appellate court will not reweigh the evidence or reassess the credibility of witnesses. In re Marriage of Burton, 29 Kan. App. 2d 449, 454, 28 P.3d 427, rev. denied 272 Kan. 1418 (2001). The district judge is an expert in the area of attorney fees and can draw on and apply his or her own knowledge and expertise in determining their value. Davis, 269 Kan. at 750. Although an appellate court is also an expert on the reasonableness of attorney fees, it will not substitute its judgment for that of the district court unless in the interest of justice such is necessary. 269 Kan. at 751.
Consistent with the Wenrichs’ amended pleadings and motion, die district court cited K.S.A. 40-908 as authority for its award of attorney fees. This statute provides:
“[I]n all actions now pending, or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action including proceeding upon appeal to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
K.S.A. 40-908 clearly provided the district court authority to award attorney fees in this matter. Thus, we cannot reverse the district court’s decision to award attorney fees absent a showing that the court abused its discretion, and no such abuse of discretion is apparent.
EMC claims the district court’s award of $14,000 was an unreasonable sum given that the Wenrichs did not prevail on all their claims. EMC thus argues the attorney fee award should have been tailored only to the time counsel spent on the issues on which the Wenrichs prevailed- — primarily, whether a coinsurance penalty was warranted.
In their written request for attorney fees, the Wenrichs referred to the factors set forth in Rule 1.5(a) (2005 Kan. Ct. R. Annot. 397) of the Kansas Rules of Professional Conduct (KRPC). Indeed, our Supreme Court has urged consideration of these factors in determining the reasonableness of attorney fees. See Davis, 269 Kan. at 751. As EMC notes, one of these factors is the amount of money involved and the results obtained under KRPC 1.5(a)(4), but this is only one of the eight factors identified. Of particular importance to the present case, another factor refers to the time and labor required, tire novelty and difficulty of the issues involved, and the skill required to perform the service properly. KRPC 1.5(a)(1). Counsel for the Wenrichs testified at some length in this regard.
In rendering its decision, the district court adopted the reasons set forth in the Wenrichs’ motion for attorney fees. Importantly, the district court did not award the Wenrichs the full amount of attorney fees sought. Rather, the court reduced the award to account for the fact that the Wenrichs did not prevail on all claims. It would be an exercise in futility to attempt to separate the services provided by counsel any further, given the nature of the claims asserted and the intermingling of the evidence relevant to each claim.
Consideiing the district court’s expertise in the area and the evidence submitted by the Wenrichs regarding their counsel’s ef forts, we cannot conclude the district court abused its discretion. Accordingly, we affirm the district court’s award of attorney fees.
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Johnson, J.:
Timothy W. Richert appeals the summary judgment granted to his insurer, American Family Mutual Insurance Company (American Family), on Richert’s claim for uninsured motorists coverage (UM) benefits. Richert contends that his automobile insurance policy provided broader coverage than the minimum required by Kansas statutes, entitling him to collect UM benefits in addition to the bodily injury liability payments received from the negligent driver’s policy. We disagree and affirm the district court.
The undisputed facts are straightforward. Richert, while operating his own vehicle, collided with a 1987 Chevrolet Blazer (Blazer) driven by Shawn D. McHone. McHone did not own the Blazer; the vehicle was titled to his mother and two other persons. At the time of the accident, tire Blazer’s owners did not have bodily injury liability insurance in effect. However, McHone had an automobile policy listing his own vehicle, and that policy extended McHone’s bodily injury liability protection to cover his operation and use of the Blazer. The liability limits of McHone’s policy were $100,000 per person and $300,000 per occurrence (100/300).
Richert’s automobile policy with American Family also carried 100/300 limits which were applicable to both the UM and under-insured motorists (UIM) coverages. Apparently, Richert is the only claimant and the $300,000 per occurrence liability limit is not involved in this appeal. Also, there does not appear to be a dispute as to whether Richert’s damages exceeded the tortfeasor’s per person liability limit of $100,000.
Richert sued McHone and the owners. Subsequently, American Family was added as a defendant upon a claim that it owed UM benefits to Richert. Richert settled with McHone for the tortfea sor’s $100,000 per person bodily injury liability limit. The vehicle owners defaulted. In a well-reasoned opinion, the district court granted American Family’s motion for summary judgment, essentially holding that under our prior decision in State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 778 P.2d 370, rev. denied 245 Kan. 786 (1989), the Blazer could not be considered “uninsured” at the time of the accident because its driver, McHone, had liability insurance which covered the Blazer.
On appeal, Richert, referring to the Blazer as “the offending vehicle,” states the issue as, “Whether the language of American Family’s uninsured motorist policy provides UM coverage when the offending vehicle was uninsured, even though the driver of the offending vehicle had insurance on a different vehicle?”
STANDARDS OF REVIEW
A summary judgment entered upon undisputed facts is reviewed de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). To the extent we are called upon to interpret an insurance contract or interpret statutory provisions, our review is likewise de novo and unlimited. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004) (statutory interpretation a question of law subject to unlimited appellate review); Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review).
STATE FARM vs. CUMMINGS
The Cummings facts are strikingly similar. Cummings involved an automobile accident where the negligent driver did not own the vehicle she was driving. The vehicle owner was uninsured, but the driver was insured for bodily injury liability through a separate policy which covered the driver’s operation of the nonowned vehicle. The injured claimants were covered by a State Farm policy providing UM and UIM coverage. The tortfeasor’s bodily injury liability limits were identical to State Farm’s UM and UIM limits. The injured parties settled with the tortfeasor’s insurance carrier for amounts less than their actual damages because of inadequate policy limits. State Farm initiated an action to determine whether it would be responsible to the claimants for UM or UIM coverage.
With respect to the UM issue, the Cummings court declared that the statutory provisions governing uninsured motorists coverage in Kansas, K.S.A. 40-284 et seq., are mandatory and automatically incorporated into every policy written in this state; any attempt by an insurer to diminish the statutorily mandated coverage is void. 13 Kan. App. 2d 630, Syl. ¶ 1. However, where not in conflict with the statutoiy mandates, the policy provisions are controlling. 13 Kan. App. 2d 630, Syl. ¶ 2. The courts will not permit a dilution or diminution of the statutorily required UM coverage, but neither will the courts extend an insurance carrier’s risk or extent of liability beyond that for which it has bargained. 13 Kan. App. 2d 630, Syl. ¶ 3.
The Cummings opinion set forth the applicable policy language of the State Farm UM coverage as follows:
“ “We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
“ ‘Uninsured Motor Vehicle — means:
“ T. an “uninsured” land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident.’ ” 13 Kan. App. 2d at 633.
Although the Cummings opinion does not present a detailed analysis of the State Farm policy language, it had to implicitly find that the UM provisions did not conflict with the statutory mandate. Its ultimate holding was:
“Where either tire owner or the driver of a vehicle is covered by the minimum insurance limits required by law, tire vehicle is not ‘uninsured’ within the meaning of the Kansas uninsured motorist statutes, and the injured parties are not permitted access to tire uninsured motorist coverage in their own policies.” 13 Kan. App. 2d 630, Syl. ¶ 4.
Although the portion of the Cummings’ opinion addressing UIM coverage has been altered by subsequent decisions, its holdings with respect to-UM coverage remain good law. Richert does not challenge the efficacy of Cummings’ legal pronouncements, but rather he attempts to factually distinguish the precedent based upon the differing UM policy language employed by American Family.
POLICY INTERPRETATION
Richert focuses entirely on a critical analysis of the following definition in American Family’s policy:
“3. Uninsured motor vehicle means a motor vehicle which is:
a. Not insured by a bodily injury liability bond or policy at the time of the accident.”
Richert contrasts that definition with the State Farm policy applicable in Cummings which referred to the “ownership, maintenance or use” of the other vehicle. 13 Kan. App. 2d at 633. He contends that the State Farm uninsured motor vehicle definition narrowed the UM coverage to the minimum required by statute, both of which require a showing that (1) the ownership of the other vehicle was not insured; (2) the maintenance of the other vehicle was not insured; and (3) the use of the other vehicle was not insured. The UM claimant in Cummings could not meet State Farm’s definitional requirements because the negligent driver’s separate liability policy insured the other vehicle’s “use."
To the contraiy, Richert argues that American Family’s policy definition only required him to show that the offending vehicle was not specifically covered by an insurance policy, whether the use of the vehicle was insured is of no consequence. His theory is that the omission of the “maintenance and use” language in American Family’s policy manifested an intent to provide broader UM coverage than is statutorily mandated, and correspondingly broader than was provided by State Farm. Because American Family’s policy broadens, rather than diminishes the statutorily required UM coverage, the policy controls tire parties’ respective rights. See Cummings, 13 Kan. App. 2d 630, Syl. ¶ 2.
Richert reminds us that an insurance policy provision is tested by what a reasonably prudent insured would understand the language to mean, not by what the insurer intended the language to mean. See Universal Underwriters Inc. Co. v. Hill, 24 Kan. App. 2d 943, Syl. ¶ 4, 955 P.2d 1333 (1998). He maintains that we must apply the plain and unambiguous policy provision as written and refrain from making a different contract for the parties. See Saucedo v. Winger, 22 Kan. App. 2d 259, Syl. ¶ 2, 915 P.2d 129 (1996). However, Richert omits any reference to the overarching methodology to be employed in construing the policy. “The meaning of a written agreement should always be ascertained by a consideration of all pertinent provisions and not by the critical analysis of a single or isolated provision.” Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, Syl. ¶ 3, 961 P.2d 1213 (1998). See also AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, Syl. ¶ 3, 71 P.3d 1097 (2003) (effect must be given to all pertinent provisions of an insurance policy construed together, rather than in isolation). Richert fails to place the policy definition in the context of the whole policy.
Uninsured Motor Vehicle Definition
N evertheless, even if we were to look solely at American F amily’s uninsured motorist definition, we do not perceive that the language employed yields an unambiguous provision. The mere use of the term, “uninsured motor vehicle,” suggests an ambiguity by intimating that an inanimate object is amenable to being independentiy protected against bodily injury claims. Richert punctuates this misconception by anthropomorphizing the Blazer as the “offending vehicle” which was “uninsured.”
A vehicle, by itself, is incapable of being offensive and incapable of obtaining or choosing not to obtain bodily injury liability insurance. A vehicle possesses no cognition. It cannot independently owe or breach a duty of care nor can it be held legally liable for the claimant’s bodily injuiy; one does not sue the vehicle. In other words, bodily injury liability coverage protects the living, breathing persons whose negligence caused the vehicle to injure another. It is inaccurate to say that a vehicle is insured or uninsured; the negligent person is either insured or uninsured. Perhaps that is why the coverage is called uninsured motorists, rather than uninsured vehicles coverage. Cummings hinted at this distinction when it said: “Since [the driver] was covered by a liability insurance policy, it follows that the vehicle itself was also covered and was not an An- insured vehicle’ witliin the meaning of the policy.” 13 Kan. App. 2d at 635.
A review of the bodily injury liability provisions of the American Family policy in the record corroborates our proposition that it is not the vehicle which is insured. The policy specifically excludes bodily injury liability coverage for “[a]ny person, other than a relative, using [the] insured car without [the insured’s] express or implied consent.” Therefore, even if the owners had possessed a policy specifically listing the Blazer as an “insured motor vehicle,” Richert could not have collected under that policy for his bodily injuries caused by the negligent operation of the vehicle by a car thief. In Richert’s parlance, the “offending vehicle” would have been “uninsured,” even though it was described on an insurance policy.
Therefore, we reject Richert’s attempt to distinguish American Family’s uninsured motor vehicle definition from that involved in Cummings. At the time of the accident, the negligent driver’s automobile policy insured, up to its limits, the damages inflicted on Richert by the Blazer because of the driver’s negligence. The Blazer was not an “uninsured motor vehicle” under the American Family policy.
Statement of UM Coverage
Richert ignores the policy language which sets forth American Family’s obligations under the UM coverage. The provision states:
“We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle or the underinsured motor vehicle.”
The boldfacing of a term indicates that it is defined in the policy. For purposes of the entire policy, the term “use” is defined as “ownership, maintenance, or use.” For UM and UIM purposes: “uninsured motor vehicle” means a vehicle which is “[n]ot insured by a bodily injury liability bond or policy at the time of the accident”; and “underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injuiy liability limits less than the limits of liability of this Underinsured Motorists Protection.”
We believe a reasonable insured would understand from the policy that if he or she is injured in an accident for which tire owner or operator of the other vehicle was at fault, but where there is no bodily injury liability coverage available to pay for the insured’s injuries, the insured may claim uninsured motorists benefits. However, if there is bodily injury liability coverage available from the owner or operator of the other vehicle, the applicable claim is for underinsured motorists protection, not uninsured motorists coverage.
Here, we are presented with an underinsured scenario. A bodily injury liability policy covered Richert’s damages, but the tortfeasor’s liability limits were inadequate, i.e., he was underinsured. Unquestionably, Richert could have had a UIM claim under his American Family policy, but for the fact that he purchased limits of liability for his own policy that did not ¿xceed those of the tortfeasor. See Halsey v. Farm, Bureau Mut. Ins. Co., 275 Kan. 129, Syl. ¶ 4, 61 P.3d 691 (2003) (“where the UIM coverage equals or does not exceed the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle, there is no UIM coverage”). We cannot accept that a reasonable insured would believe that an underinsured claim somehow transforms into an uninsured claim simply because the insured chose inadequate UIM limits on his own policy.
UM Limits of Liability
Even if the policy could be read to permit Richert to file a UM claim, other provisions would effectively preclude his collecting or keeping any additional monies. Under the portion of the policy describing the UM and UIM coverage, Part III, a limits of liability subsection contains the following language:
“The limits of liability of this coverage will be reduced by:
1. A payment made for the same damages by the owner or operator of the uninsured motor vehicle or organization which may be legally liable.” (Emphasis added.)
Richert received a $100,000 payment from the insurer of the legally hable operator. The payment was to cover the same damages for which Richert was claiming UM benefits. Therefore, Richert’s per person liabilility limit of $100,000 would be reduced by the $100,000 payment from the tortfeasor, resulting in a net UM liability limit of $0.
We do not believe American Family s limits of liability reduction provision violates Cummings’ prohibition against a policy provision that diminishes or dilutes the statutorily mandated minimum coverage. The statute which mandates UM coverage also contains an anti-stacking provision, which provides:
“Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest limits of any single applicable policy, regardless of the number of policies involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid or vehicles involved in an accident.” K.S.A. 40-284(d).
Thus, the legislative intent appears to be that a UM claimant can expect that the maximum insurance recovery he or she will receive for an accident is an amount equal to the limits of the one applicable policy which contains -the highest limits. Here, that amount is $100,000 which Richert has already received. At oral argument, Richert conceded that if the owners had been insured with the same liability limits as the driver, 100/300, Richert would not have collected any more in bodily injury liability payments. Thus, it is counterintuitive to expect to stack UM limits on top of bodily injury limits, when neither bodily injury limits nor UM limits may be stacked.
Insurers Recovery Rights
In addition, Richert’s policy invests his insurer with certain rights to recover policy benefits. Under Part VI, General Provisions, sub-paragraph 5, the policy includes the following language:
“b. When we pay damages under this policy to a person who also collects from another, the amount collected from the other shall be repaid to us to the extent of our payment.”
If American Family were to pay Richert $100,000 in UM benefits, the foregoing provision would require Richert to repay Amer ican Family the $100,000 collected from the tortfeasor. Thus, Richert would not keep anything more than the maximum allowable recovery of $100,000.
CONCLUSION
The Kansas uninsured motorist (UM) statutes, K.S.A. 40-284 et seq., do not require an insurer to provide UM coverage for an insured’s injuries which are sustained in an accident where either the owner or the driver of the other vehicle has a bodily injury liability insurance policy which covers the accident and which provides liability limits equal to or more than the minimum limits required by Kansas law. An insurance policy that defines an uninsured motor vehicle as a motor vehicle which is “[n]ot insured by a bodily injury liability bond or policy at the time of the accident” does not, by that definition alone, broaden or extend the policy’s UM coverage beyond die minimum coverage mandated by statute.
Considering all pertinent provisions of Richert’s American Family policy, giving effect to each provision without isolating any single provision, we are convinced that a reasonably prudent insured would understand that die uninsured motorists coverage is unavailable for the same damages covered by die negligent driver’s bodily injuiy liability insurance policy and that die UM limits cannot be added to or stacked upon the recovery obtained from the tortfeasor.
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Bukaty, J.:
Peter E. Wilson directly appeals his convictions of two counts of forgery and one count of attempted theft by deception. He argues that the district court erred in admitting hearsay statements, that two of the charges are multiplicitous, and that the district court erred in using his prior convictions to enhance his criminal history score because they were not proven to a jury beyond a reasonable doubt. Finding error in the admission of the hearsay, we reverse and remand for a new trial.
A somewhat detailed recitation of the facts is necessary for an understanding of the issues on appeal.
In relevant part the jury heard the following evidence.
Wilson worked as an over-the-road truck driver. On May 18, 2004, Officer Melissa Short, of the Salina Police Department, received a tip that Wilson might try to cash a fraudulent check at the United Missouri Bank (UMB) at 9 a.m. Short notified both branches of UMB in Salina.
On the same day, Shelly Smith worked as a bank teller at the UMB at Ninth and Magnolia, in Salina. She knew Wilson as a regular customer of the bank. When Smith arrived for work at 8:45 a.m. on May 18, 2004, she saw Wilson standing at the front door of the bank. When she arrived at her teller window, she noticed a note that stated: “Peter Wilson will be coming into the bank maybe, either on foot or driving a motorcycle. With a check that’s not probably a good check.”
After the bank opened, Wilson came inside and went to Smith’s teller window. He ordered some checks and then presented Smith with a check he wanted to deposit and cash. The check appeared to be from Owner Operator Services (OOS) in the amount of $3,096.80. Smith went to her supervisor’s office to get approval for the large check. The supervisor called the police and the phone number on the check. During the latter conversation, the supervisor learned that the check was not good and had never been issued to Wilson. The police arrived and Smith gave them die check.
Police arrested Wilson and took him to the police station. Short interviewed Wilson and advised him of his Miranda rights, which he waived. Wilson told Short that he was not aware that the check was fraudulent. He stated that he had gotten the check from Darla Slingsby, who lives at the residence where he receives all of his mail and stores his property while he is on the road. He stated that he believed the check was a reimbursement from OOS.
Following further investigation, it was discovered that OOS is an association that sells truck insurance to over-the-road truck drivers. Wilson had an insurance policy with OOS that was effective February 20, 2004, or about 3 months prior to the incident at the bank. For some reason the policy was cancelled a few days after its effective date. OOS had sent Wilson a refund check in the amount of $198.80 for the premium he had already paid. The refund check bore a check number of 060585. The check was cashed and cleared through OOS’s bank on March 29, 2004. OOS had never issued Wilson a check for the amount that was on the check he brought to the UMB and tried to pass. That check, however, bore the same number as the legitimate refund check issued previously by OOS.
During the course of their investigation, Salina police seized Slingsby’s computer disks, which contained scanned images of the fraudulent check. They also talked to Slingsby, who gave damaging information against Wilson.
At trial, however, Slingsby did not testify but apparently was in the courthouse at the time. During examination of Short on redirect, the prosecutor asked Short what Slingsby had told her. Wilson lodged an objection on the basis of hearsay, which the court denied. Short then testified that Slingsby told police that Wilson forced her to create the fraudulent check. Later on recross-examination by Wilson’s counsel, Short testified that Slingsby told her Wilson intended to create 30 to 50 fraudulent checks and planned to cash them all over Memorial Day weekend.
The jury found Wilson guilty of two counts of forgery and one count of attempted theft by deception. Wilson filed a motion for new trial alleging that the trial court improperly allowed Short to testify about the hearsay statements of Slingsby. The court denied the motion. Wilson appeals raising the hearsay issue, along with the multiplicity issue and the issue of his criminal history score.
Hearsay
When the defense cross-examined Officer Short during the State’s case in chief, the following exchange took place:
“Q. When you interviewed Mr. Wilson, he indicated to you that he had been given this check by Darla Slingsby?
“A. He advised that she stated that it came in the mail. For him.
“Q. So when he gets back to town he pretty much then does what she directs him to as far as his finances, correct?
“A. I don’t know that that’s what he does.
“Q. Well, did the answer he gave you, was it -would it be consistent with that, he was told by Darla, this came in the mail, here, take it to the bank?
“A. I would assume.”
On redirect examination, the prosecutor questioned Short as follows:
“Q. Officer Short, did you have any conversations with Ms. Slingsby about the check in Exhibit No. 1?
“[Defense Counsel]: Your honor, now I’m going to object to hearsay. “[Prosecutor]: Ms. Slingsby is here.
“[Defense Counsel]: She didn’t testify.
“THE COURT: You may inquire. Overruled.
“A. Yes, I did have a conversation with her about the check.
“Q. (By [Prosecutor]) Did Ms. Slingsby tell you if she created the check?
“A. Yes, she stated that she did.
“Q. Did she tell you if she created the check of her own accord?
“A. No, she stated that she was threatened and that Mr. Wilson used physical force.”
“ ‘The admission of evidence lies within the sound discretion of the trial court. [Citation omitted.] 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. One who asserts that the court abused its discretion bears tire burden of showing such abuse of discretion. [Citations omitted.]’ ” State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004).
This issue also involves interpretation of a statute. The prosecutor argued that the hearsay statements were admissible because Slingsby was present at the courthouse and the district court allowed their admission for that reason. Apparently, the court based the ruling on K.S.A. 60-460(a). “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
On appeal, the State does not argue the statements were admissible under K.S.A. 60-460(a). Instead, it urges that Wilson opened the door for admission of Slingsby s hearsay statements because Wilson’s counsel was the first to inquire about the statements when questioning Short and that he cannot now complain about their admission constituting error. The State also argues in the alternative that Slingsby’s hearsay statements were admissible as a coconspirator’s statements made during the course of the conspiracy.
As to the “opening of the door” argument, we note from the excerpt of defense counsel’s cross-examination of Officer Short set forth above, that defense counsel never asked Short to testify to any statements told her by Slingsby. Counsel only inquired about what Wilson had told Short. Short did volunteer that Wilson “advised that [Slingsby] stated that it came in the mail. For him.” This statement of Slingsby was not solicited by defense counsel, and we fail to see how this amounted to an opening of die door by Wilson to any further hearsay statements of Slingsby. Up to that point, no prejudice had occurred since the statement had little bearing on any issues in the case. The statement provides no justification for the State on redirect to elicit further statements from Short as to what Slingsby said to her.
The State’s argument that the statements were admissible as a coconspirator’s statements made during a conspiracy also fails. K.S.A. 60-460(i)(2) allows for an exception to the hearsay rule for
“a statement which would be admissible if made by the declarant at the hearing if: . . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
Here, Slingsby made the statements at issue to a police officer. Even if Wilson and Slingsby had previously been participating in a plan to commit a crime, any conspiracy had terminated by the time Slingsby talked to the police about it. Therefore, Slingsby’s hearsay statements were not admissible as statements of a coconspirator.
Nor were the statements admissible under K.S.A. 60-460(a), which states:
“Evidence of a statement which is made other than by a witness while testifying at die hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(a) Previous statements of persons present. A statement previously made by a person who is present at die hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.”
In State v. Fisher, 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012 (1977), the Kansas Supreme Court held that a declarant must testify at trial before hearsay evidence of his or her out-of-court statement may be admitted under K.S.A. 60-460(a). The court later modified Fisher in State v. Davis, 236 Kan. 538, 541, 694 P.2d 418 (1985), where the court held that if the declarant is actually present and testifies at trial, the statements are admissible whether admitted before or after the declarant testifies. Here, Slingsby, the declarant, was present but was not called to testify either before or after Officer Short testified about statements Slingsby made to her. Therefore, the trial court erred in admitting the hearsay statements under the provisions of K.S.A. 60-460(a).
We note that such an error maybe held harmless if the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Boldridge, 274 Kan. 795, 808, 57 P.3d 8 (2002). Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless. 274 Kan. at 808.
Here, the hearsay statement of Slingsby to Short to the effect that Wilson had threatened and forced her to create the check on her computer was most damaging and contrary to any contention by Wilson that he was unaware the check was forged. While certainly the record contained other evidence of Wilson’s guilt besides this statement, we are unable to conclude beyond a reasonable doubt that the statement did not affect the result of the trial.
We note that after his hearsay objection was denied, Wilson’s counsel for some unknown reason chose to solicit further damaging hearsay statements of Slingsby during recross-examination of Short. However, since this testimony did not occur until after the State offered and the court admitted improper hearsay statements, its content should not be considered in evaluating the issue of harmless error. We know of no rule that provides that if tire prosecutor commits reversible error on redirect examination, it can be turned into harmless error on cross-examination.
Multiplicity
With the remand for new trial, it might be said that the issue of multiplicity is no longer before this court at this time. However, should a new trial result in conviction of Wilson again on the same charges, the issue would again require resolution. In light of that possibility, we will address the issue.
Wilson argues that his convictions on one of the forgery charges and the attempted theft by deception charge are multiplicitous because they are based on the same single act. He failed to raise this issue before the trial court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). However, a party may raise a new legal theory for the first time on appeal when necessary to serve the ends of justice and prevent a denial of fundamental rights. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). We will address the issue on this basis.
Whether charges are multiplicitous is a question of law, and an appellate court’s review is unlimited. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003).
“The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense. Multiple punishments for a single offense are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. [Citations omitted.]” 276 Kan. at 205.
K.S.A. 2003 Supp. 21-3107(2)(a) and (b) state:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
“(a) A lesser degree of the same crime;
“(b) a crime where all elements of tire lesser crime are identical to some of the elements of the crime charged.”
Wilson was convicted of one count of forgery for violating K.S.A. 2003 Supp. 21-3710(a)(2) and one count of attempted theft by deception for violating K.S.A. 2003 Supp. 21-3701(a)(2) and K.S.A. 21-3301. Wilson argues that his conviction for forgery for delivering the check, (K.S.A. 2003 Supp. 21-3710[a][2]), and his conviction for attempted theft by deception are multiplicitous because they both rely on a single act: presenting the fake check to the bank for cash.
However, under current Kansas law, in determining whether offenses are multiplicitous, the focus is on the statutory elements of each crime without consideration of the facts that must be proven to establish those elements. See State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005). The Patten court concluded that the offenses of manufacture of methamphetamine and possession of drug paraphernalia were not multiplicitous. The Supreme Court noted that recent appellate decisions in Kansas reflected a mix of approaches between focus on the facts and focus on the statutory elements of offenses when determining multiplicity issues. It also acknowledged that under the facts of the case, proving the manufacturing charge also proved the possession of paraphernalia charge. However, in finding that they were not multiplicitous and in adopting the strict elements test, it stated:
‘What most recommends the strict elements analysis is its logical, mechanical ease of application and, hence, certainty. Consideration of the facts proved, in contrast, puts multiplicity in a case-by-case basis. We therefore adopt use of the strict elements analysis to determine multiplicity for several reasons: (1) for facility of application and certainty and (2) to avoid any possibility of returning to the difficulties of die second prong of the Fike test.” 280 Kan. at 393.
See State v. Schuette, 273 Kan. 593, 601, 44 P.3d 459 (2002).
Applying this rationale to the crimes involved here, we conclude tlrey are not multiplicitous.
The conviction for attempted theft by deception under K.S.A. 21-3301 and K.S.A. 2003 Supp. 21-3701(a)(2) required an overt act, an intent to commit the crime of theft by deception, and failure to complete the crime. The elements of the completed crime of theft by deception are: (1) someone other than the defendant owned the property, (2) the defendant obtained control over the property by means of deception, and (3) the defendant intended to permanently deprive the owner of the use or benefit of the property.
In contrast, forgery under K.S.A. 2003 Supp. 21-3710(a)(2) required that the defendant issued or delivered a written instrument which he knew had been made, altered, or endorsed so that it appeared to have been made, altered, or endorsed by someone with authority to do so, when in fact such authority was not given, and that the defendant did this act with the intent to defraud.
We are mindful that this court held in State v. Perry, 16 Kan. App. 2d 150, 823 P.2d 804 (1991), that these two offenses were multiplicitous. We did so there, however, based upon the second prong of the multiplicity test set forth in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). That test, in turn, found its basis in K.S.A. 21-3107(2)(d), since repealed. Basically, the statute at that time provided that one test for multiplicity was satisfied if one crime was necessarily proved if the other was proved. The statute was amended in 1998, and this language was deleted. We also noted in Perry.
“The State is correct that comparing the statutory elements of theft by deception with the statutory elements of forgery by delivery would indicate that forgery by delivery is not an included offense of theft by deception. However, the State fails to apply the second prong of the test as stated in Fike.” 16 Kan. App. 2d at 155.
In this case, each offense required proof of an element not required in proving the other. The crime of forgery did not require proof that Wilson obtained control over property and that he did so with intent to permanently deprive the owner of the use or benefit thereof. Conversely, the crime of attempted theft by deception did not require proof that Wilson issued, delivered, or altered a written instrument. The fact that one of the crimes may have necessarily been proven in proving the other is of no moment. With tire second prong of Fike no longer part of Kansas law as an alternative test, and in light of Patten, Wilson’s convictions are, therefore, not multiplicitous.
Criminal History and Prior Convictions
Again, we will address this issue at this time in the event it arises again following a new trial.
Wilson argues the trial court erred in using criminal history to increase his sentence without requiring the criminal history to be proved to a jury beyond a reasonable doubt. He cites Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), in support. In his brief, Wilson recognizes that the Kansas Supreme Court rejected his argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2001).
The Ivory court held that Apprendi, which required a jury to determine any fact that increased the penally for a crime beyond the statutory maximum, did not apply to defendant’s presumptive sentence which was based in part on defendant’s criminal history score under the Kansas Sentencing Guidelines Act. 273 Kan. 44, Syl. Wilson’s argument on this issue fails.
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McAnany, J.:
Edwin L. Tomlin appeals the district court’s summary denial of his K.S.A. 60-1507 motion. Tomlin claims his trial and appellate counsel were ineffective.
The State charged Tomlin with rape and aggravated indecent liberties with his 10-year-old stepdaughter. At trial the State admitted K.S.A. 60-455 evidence of his having engaged in the sexual abuse of five children from his prior marriages, some of which Tomlin ultimately admitted. During its deliberations, the jury sent the following note to the judge, indicating its less than unanimous findings on both counts:
“We are hung, 3 for Guilty to Count 1, 3 for Not Guilty to Count 1 or 2 due to reasonable doubt, 6 for Guilty to Lesser Charge of Count 1 and Guilty to Count 2. We reviewed the facts and your instructions. We have discussed how to ‘compromise’ but we all feel very strongly that we must vote what we believe. Also we feel strongly about our Duly to reach a decision for this Trial. To help us break our deadlocks — what can you say or do for us? We want to come to a decision.”
Over Tomlin’s objection, the court gave the jury an Allen-type instruction. After further jury deliberations, Tomlin’s counsel moved for a mistrial. A short time later, the jury sent another note to the court, stating:
‘We have moved to 11 guilty to count 1 of the lesser aggravated indecent liberties and 1 not guilty to count 1 or count 2 due to reasonable doubt. We have all agreed to Not Guilty to Count 1 Rape. Since 3 p.m. today, we have made good progress. However, the one has stated that since we haven’t convinced him of his reasonable doubt position that he will never change his mind. We are at an impasse. Most of the Jury feels further discussion will not change his mind.”
Shortly thereafter, the State also moved for a mistrial. The court determined that the jury was deadlocked, declared a mistrial, and discharged the juiy.
Tomlin then filed a timely motion for judgment of acquittal. He alleged that a retrial on the rape charge would subject him to double jeopardy based upon the jury’s second message that all members agreed he was not guilty of rape. The court denied the motion.
Tomlin was retried and convicted of both counts. He renewed his motion for a judgment of acquittal on double jeopardy grounds, which the trial court denied. He received consecutive sentences of 334 months for rape and 51 months for aggravated indecent liberties with a child.
Tomlin appealed. State v. Tomlin, No. 83,638, unpublished opinion filed December 14, 2001. This court determined that the trial court did not abuse its discretion in granting the mistrial or in denying his motion for judgment of acquittal, noting that Tomlin did not withdraw his own motion for a mistrial or oppose the State’s motion. The mistrial was proper due to the jury’s inability to agree on a verdict. Further, there was no verdict since the jury was discharged before submitting a verdict pursuant to K.S.A. 22-3421.
Tomlin then filed his K.S.A. 60-1507 motion, claiming ineffective assistance of trial counsel and appellate counsel. The trial court summarily denied the motion, and this appeal follows.
We review the trial court’s summary dismissal of Tomlin’s K.S.A. 60-1507 motion to determine if the court abused its discretion. The district court had discretion to determine whether Tomlin’s claims were substantial before granting an evidentiary hearing. See Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004); Supreme Court Rule 183(h) (2005 Kan. Ct. R. Annot. 228). The district court was not required to hold a hearing if Tomlin’s motion and the files and records of the case conclusively showed he was not entitled to relief. K.S.A. 60-1507(b).
Trial Counsel
Tomlin claims his trial counsel was ineffective because he failed to object to the mistrial and failed to request that the court publish the jury’s note as a verdict on the rape charge, and thereby avoid a retrial on that charge. In order for Tomlin to prevail, he must establish that his counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment and that, as a result, he was denied a fair trial. See State v. Orr, 262 Kan. 312, Syl. ¶ 1, 940 P.2d 42 (1997). To do so Tomlin must overcome the strong presumption that his counsel’s conduct falls within the wide range of reasonable professional assistance. Further, he must show that but for counsel’s errors he would have achieved a better outcome at trial. See State v. Betts, 272 Kan. 369, 387-88, 33 P.3d 575 (2001).
After it appeared that the jury remained deadlocked despite receiving an Allen-type instruction, Tomlin’s counsel moved for a mistrial. The jury’s second note was sent approximately 20 minutes later. Shortly thereafter, the State moved for a mistrial which the court granted. At the time, defense counsel was on notice of the current state of Kansas law on partial verdicts, mistrials, and the prospect of a retrial on the same charges. That law was embodied in K.S.A. 21-3108, K.S.A. 22-3421, and State v. McKay, 217 Kan. 11, 535 P.2d 945 (1975).
K.S.A. 21-3108, which codifies the constitutional prohibition against double jeopardy, provides:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: . . . (ii) the inability of the jury to agree . . . .”
K.S.A. 22-3421 requires a verdict to be in writing and signed by the presiding juror. Further, it requires the clerk to read the verdict to the jury and to inquire whether it is the jury’s verdict.
In McKay, the court declared a mistrial when tire jury was unable to reach a verdict on a second-degree murder charge. It later became apparent that when discharged, the jury had resolved the second-degree murder charge in McKay’s favor but was hung on the lesser included offense of manslaughter. McKay filed a motion for judgment of acquittal on the second-degree murder charge. The court denied the motion, and McKay was retried for second- degree murder. Following his conviction for manslaughter at the second trial, McKay appealed, claiming the second trial subjected him to double jeopardy. Citing K.S.A. 21-3108, the Supreme Court noted that a second prosecution is barred if the first prosecution “was terminated without the consent of the defendant after he was placed in jeopardy, except where the termination occurred because it was impossible for the jury to agree on a verdict.” McKay, 217 Kan. at 13. On the issue now before us of a possible partial verdict, the court cited with approval language from People v. Doolittle, 23 Cal. App. 3d 14, 19-20, 99 Cal. Rptr. 810 (1972), in which the court stated:
“ ‘[I]n the trial of an offense which necessarily includes a lesser offense . . . the jury, before they can return a verdict, must, on the one hand, agree that the defendant is guilty of the offense charged or any included offense or, on the other hand, agree that he is not guilty of any offense, whether the greater or the lesser.’ ”
Thus, the status of Kansas law was (and is) that Kansas does not recognize partial verdicts, and absent a verdict on all charges in conformity with K.S.A. 22-3421 a defendant can be retried following a mistrial due to a hung jury.
Tomlin nevertheless argues that his trial counsel’s performance was deficient because he failed to move the court for a partial verdict on the rape charge based upon the jury’s second note. He claims that the language in Doolittle, which was relied upon by the Kansas Supreme Court in McKay, was effectively disavowed in Stone v. Superior Court of San Diego County, 31 Cal. 3d 503, 183 Cal. Rptr. 647, 646 P.2d 809 (1982).
In Stone, the jury agreed the defendant was not guilty of first-degree or second-degree murder, but was hung on the issues of voluntary and involuntary manslaughter. Defendant moved to accept the jury’s verdict on the murder charge. The court denied the motion and ultimately declared a mistrial.
The defendant sought a writ of prohibition from the California Supreme Court to prevent a retrial, contending a retrial on the murder charge would constitute double jeopardy. The court held that a trial court is constitutionally obligated to provide the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense. The State could only retry the defendant for the lesser included offenses of manslaughter. (It is worth noting that in California, unlike in Kansas, there is no requirement that a verdict be in writing.)
The issue before us today is not the wisdom of the California procedure over that of Kansas. The issue is whether the performance of Tomlin’s counsel fell below the professional standard demanded by the Sixth Amendment.
Stripped to its essentials, Tomlin s argument is as follows: Existing Kansas law does not permit a partial verdict. That law is based, at least in part, upon die language in a California case, Doolittle. That language in Doolittle was disavowed in a later opinion by the California Supreme Court in Stone. My lawyer moved for a mistrial before it was known that the jury apparently had resolved the rape charge in my favor. However, in the short period between the time my lawyer became aware of the second jury note and the court’s declaration of a mistrial, he should have realized that withdrawing my mistrial motion, opposing the State’s mistrial motion, and asking for a partial verdict on the rape charge would not have been a futility since the language in Doolittle relied upon by the Kansas Supreme Court in McKay was disavowed by the California Supreme Court in Stone; and the Kansas Supreme Court would, in all probability, reverse its ruling in McKay and sanction a partial verdict in my favor on the rape, charge.
It would be laudable if trial counsel, when faced with an issue such as this, could, within the short time allotted, engage in the analysis of Kansas and California law that Tomlin suggests. In fact, it would be not only laudable but quite extraordinary. The Sixth Amendment does not set the bar for trial counsel’s performance so high.
In Baker v. State, 20 Kan. App. 2d 807, 811, 894 P.2d 221, rev. denied 257 Kan. 1091 (1995), the court rejected a claim of ineffective assistance of counsel for failure of counsel to anticipate a change in Kansas law.
“In this case, appellant entered into a plea agreement based upon charges that were consistent with the applicable law at the time. We hold that he cannot successfully challenge the voluntariness of his pleas based solely upon the fact that the State and defense counsel failed to apprise him of legal standards that would not be announced for another four years.” 20 Kan. App. 2d at 810.
At least in Baker the law had actually changed between trial counsel’s actions and the consideration of Baker’s 60-1507 motion. Here, Tomlin’s criticism is based on counsel’s failure to anticipate a change in the law which has yet to occur and, in fact, may never occur. To meet the reasonableness standard for effective assistance, trial counsel need not be prescient or omniscient. We hold Kansas lawyers to an understanding of Kansas law, not California law. While the growth of the law is dependent upon creative lawyers advancing new theories, failure to do so does not render a lawyer’s performance constitutionally deficient.
The performance of Tomlin’s trial counsel was not constitutionally deficient. The trial court did not abuse its discretion in denying Tomlin relief on his claim of ineffective assistance of trial counsel.
Appellate Counsel
Trial counsel did not handle Tomlin’s direct appeal. Separate counsel represented him on appeal. Tomlin contends his appellate counsel was ineffective for raising the wrong issue on appeal. Rather than raising the issue of double jeopardy, Tomlin claims his counsel should have argued that the trial court’s failure to publish the juiy’s acquittal and thereby render a partial verdict amounted to a constitutional error, die approach taken by the California Supreme Court in Stone.
The performance standards for appellate counsel are set forth in State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004). In order for Tomlin to prevail on this claim, he must show not only that his appellate counsel’s performance fell below an objective standard of reasonableness, but also that there is a reasonable probability that the appeal would have been successful but for his counsel’s deficient performance.
The failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. Jenkins v. State, 32 Kan. App. 2d 702, 704, 87 P.3d 983, rev. denied 278 Kan. 845 (2004). However, “a lawyer’s failure to foresee a change in the law may lead to 60-1507 relief if the failure was not objectively reasonable.” Laymon v. State, 280 Kan. 430, 439-40, 122 P.3d 326 (2005). The facts in Laymon, however, stand in stark contrast to those before us today.
In Laymon, our Supreme Court determined that appellate counsel’s failure to preserve a McAdam argument was objectively unreasonable when “the state of the developing Kansas law counseled in favor of preserving the line of argument . . . .” Laymon, 280 Kan. at 444. Unlike the case now before us, the changes in the law were imminent in Laymon. A lawyer in the Appellate Defender Office (ADO) filed a direct appeal for Laymon. At that time, the argument raised by another lawyer in the ADO on behalf of a different defendant had been rejected by this court in State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003), aff'd in part, revd in part 277 Kan. 136, 83 P.3d 161 (2004). However, the time had not yet expired for a petition for review of McAdam by the Supreme Court. Laymon’s appellate counsel did not make any significant McAdam argument in his brief. Two months later the Supreme Court granted the petition for review in McAdam and ultimately reversed this court 6 months later.
Whether there should be movement in Kansas toward permitting partial verdicts is not the. issue. The fact is, partial verdicts currently are not permitted, and we perceive no developing Kansas law indicating a movement toward permitting them. Tomlin’s direct appeal was heard by this court. McKay was and remains controlling precedent. This court was duty bound to follow McKay, absent some indication the Supreme Court is departing from its position announced in that case. See State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). To demonstrate the prejudice required to establish a claim for relief based upon ineffective appellate counsel, Tomlin would have us speculate whether our Supreme Court would have sustained a petition for review of the Court of Appeals decision adhering to McKay, and then whether our Supreme Court would have overturned McKay had it taken the case. There was no such speculation regarding changes of the law in Laymon. McAdam was “in the works” when Laymon’s counsel submitted his brief on appeal. Appellate counsel was on notice that his compatriot’s argument before the Court of Appeals in McAdam could ultimately prevail, and it did. In Tomlin’s case, on the other hand, he asks us to engage in multiple exercises in speculation to arrive at a conclusion of prejudice. This we are not prepared to do.
The trial court did not abuse its discretion in denying Tomlin relief on his claim of ineffective assistance of appellate counsel.
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Malone, J.:
Edward A. Sykes appeals his convictions and sentences in two separate cases from Sedgwick County District Court. In 04 CR 781, Sykes was convicted of misdemeanor theft and sentenced to 12 months in the county jail. In 04 CR 877, Sykes was convicted of possession of cocaine with intent to sell after a prior conviction and no drug tax stamp. He received a controlling sentence of 90 months3 imprisonment. Sykes claims the district court erred by not granting a jury trial on the misdemeanor theft charge and by denying his motions to appoint new counsel. Sykes also claims the district court erred by failing to suppress his statements to police and in instructing the jury on the tax stamp charge. He further claims there was insufficient evidence to support his conviction of possession of cocaine with intent to sell after a prior conviction. Finally, Sykes raises sentencing issues, including a claim that the district court erred by overruling Sykes’ objection to his criminal history score.
We conclude Sykes was denied his right to a jury trial on the misdemeanor charge, and we reverse his conviction and remand for a new trial in that case. In the felony case, we conclude the district court did not abuse its discretion when it denied Sykes’ motions to appoint new counsel. We find no reversible error in 04 CR 877, and Sykes’ felony convictions and sentences are affirmed.
Factual and procedural background
Misdemeanor Theft (04 CR 781)
On September 18, 2003, Sykes entered a smoke shop and asked for a carton of Marlboros, a carton of Newports, and a carton of Kools. The clerk provided Sykes with a carton each of Marlboros and Newports but had to go to the back of the store to get the carton of Kools. When he returned, Sykes and the two cartons of cigarettes the clerk had placed on the counter were gone. The clerk told the police he saw Sykes running from the store with the two cartons of cigarettes.
Sykes claimed he had been socializing with a couple he met at his motel earlier in die evening. The couple drove him to the smoke shop. The woman asked Sykes to go into the smoke shop and ask for several cartons of cigarettes while she went to the liquor store next door. Sykes asked for two cartons of cigarettes and also asked the clerk for a carton of Kools. According to Sykes, when the clerk turned his back to get the Kools, the woman rushed into the smoke shop, grabbed the cartons on the counter, ran out of the shop, and jumped into the back seat of the car driven by her husband. Sykes followed the woman out of the shop and ran after the car as it drove off. At first, the couple would not let Sykes in the car, but they eventually pulled over in a nearby Kwik Shop parking lot and let him in the car.
Sykes was arrested later that evening, and he was subsequendy charged with theft, a class A misdemeanor. He was arraigned on the misdemeanor charge, received an appointed attorney, and notified of the next court date. Sykes did not file a written request for a jury trial in the misdemeanor case.
A bench trial was scheduled on August 25, 2004. Prior to the trial, the district court held a hearing to address Sykes’ motion to replace his appointed attorney, Casey Cotton. During the hearing, Sykes informed the court that he wanted a jury trial, but his attorney had not requested one. Cotton explained he had only found out recently that Sykes now wanted a jury trial. After hearing from both Sykes and Cotton, the district court denied Sykes’ motion to appoint new counsel. The district court did not address Sykes’ request for a jury trial. After a bench trial, Sykes was convicted of misdemeanor theft and sentenced to 12 months in the county jail.
Felony Drug Charges (04 CR 877)
On December 30, 2003, Detective Jason Miller was driving in the area of 11th and Topeka in Wichita investigating a report of a possible methamphetamine lab in the area. Miller was in plain clothes in an unmarked car with the windows down. He noticed Sykes on the comer yelling and waving his arms, apparently trying to wave Miller over to the curb. Miller continued to drive around the block. When he came back, he observed Sykes waving a red car over to the curb. Miller also pulled to the curb directly behind the red car. The driver of the red car rolled down the window. Sykes approached the car and extended his right hand toward the driver. Miller saw what appeared to be a plastic baggie with four off-white rocks inside. Miller contacted the patrol station and requested that a uniformed officer be sent to the area.
Officer Robert Bachman responded, and Miller relayed to Bach-man what he had seen. Bachman approached Sykes, asked to pat him down, and then decided to search his pockets. Bachman recovered two plastic bags containing what appeared to be crack cocaine, and Bachman placed Sykes under arrest. As Bachman and another officer were preparing to conduct a field test on the rocks, Sykes motioned to Bachman and indicated he wanted to tell him something. Sykes told Bachman the rocks would test positive as cocaine and told him he had planned to sell the cocaine to make some money because he was out of work. Bachman read Sykes the Miranda warnings, and Sykes agreed to continue talking to the officer. Sykes told Bachman where he had obtained the drugs and told him he was on probation from a 1996 conviction for selling cocaine.
Sykes was charged with possession of cocaine with intent to sell after a prior conviction and failure to affix a drug tax stamp. Sykes filed a motion in both his misdemeanor and felony cases to replace his appointed attorney, Cotton. As previously discussed, the district court addressed the motion on August 25, 2004, and denied Sykes’ request for new counsel. A week after tire bench trial, Sykes filed a second motion to replace his appointed counsel. Sykes claimed Cotton insulted him, attempted to persuade him into taking a plea, abandoned him during the adversarial process, failed to file motions, and misled him into a bench trial in the misdemeanor case when Sykes wanted a jury trial.
On September 24, 2004, the district court addressed Sykes’ second motion to appoint counsel and heard from both Sykes and Cotton. The court questioned Sykes about the various problems he claimed to have with Cotton. Sykes told the court he was attempting to hire his own attorney and asked the court to grant him a continuance in the felony case if the court was not going to appoint new counsel. The district court again denied Sykes’ motion to appoint new counsel, but the court did grant him a continuance to hire counsel of his choice. Sykes never hired a new attorney.
Prior to trial on the felony charges, Sykes filed a motion to suppress the evidence recovered as a result of Bachman’s search of Sykes’ pockets. Sykes also argued that his pr e-Miranda statements to Bachman should be suppressed. The district court denied the motion to suppress. The district court found Bachman had probable cause to search Sykes and concluded Sykes’ pr e-Miranda statements to Bachman were voluntary and not the result of an interrogation.
Sykes’ felony case proceeded to a jury trial and he was convicted as charged. He received a controlling sentence of 90 months’ imprisonment. Sykes filed a timely notice of appeal. Additional facts will be provided.
Jury trial on misdemeanor charge
Sykes claims the district court violated his constitutional right to a jury trial when it proceeded with a bench trial on his misdemeanor theft charge even though Sykes had not knowingly and voluntarily waived a jury trial. The facts are undisputed. Under these circumstances, the question of whether Sykes knowingly and voluntarily waived his right to a jury trial is reviewed de novo. See State v. Carter, 278 Kan. 74, 77-78, 91 P.3d 1162 (2004).
In case 04 CR 781, Sykes was charged with theft, a class A misdemeanor, which carried a maximum sentence of 12 months’ confinement in the county jail. Sykes did not file a written request for a jury trial. However, on the morning of the scheduled bench trial, Sykes made it clear to the district court that he wanted to proceed with a jury trial. The district court never addressed this request.
A defendant charged with a misdemeanor has a statutory right to a jury trial pursuant to K.S.A. 2005 Supp. 22-3404(1), which provides:
“The trial of misdemeanor cases shall be to the court unless a juiy trial is requested in writing by tire defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant.”
Under this provision, the defendant in a misdemeanor case should file a written request for a jury trial not later than 7 days after receiving notice of a bench trial assignment. This notice is usually received at the misdemeanor arraignment. The time requirement for requesting a jury trial in a misdemeanor case may be waived at the court’s discretion to prevent hardship or prejudice to the defendant. Sykes never exercised his statutory right to request a jury trial.
In addition to the statutory right to a jury trial, the defendant in a misdemeanor case also has a constitutional right to a jury trial found in the Sixdi and Fourteenth Amendments to the United States Constitution and § 5 of the Kansas Constitution Bill of Rights. The constitutional right to a jury trial is triggered when the defendant is facing potential imprisonment for the offense exceeding 6 months.
“Where the potential imprisonment for the offense charged exceeds six months, a defendant standing trial for a misdemeanor or a traffic offense has a right to a jury trial, regardless of whether it is requested within seven days after notification of a trial setting. In order to waive the right to a jury trial under these circumstances, defendant must first be advised by the court of his or her right to a jury trial, and defendant must personally waive that right in writing or in open court.” State v. Jones, 19 Kan. App. 2d 982, 984, 879 P.2d 1141 (1994).
Jones followed the Kansas Supreme Court’s decision in State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). In Irving, the defendant was convicted by a magistrate of a class A misdemeanor and appealed to district court. Prior to trial in district court, the defendant appeared in court with his attorney and requested a jury trial. The district court found the defendant had waived his right to a jury trial by not demanding one within 48 hours of the appeal from the magistrate. The defendant was convicted in district court following a bench trial.
The Kansas Supreme Court reversed and noted the defendant had a constitutional right to a jury trial for any offense where imprisonment for more than 6 months was authorized. 216 Kan. at 589. The court found that since the right to trial by jury is constitutionally preserved, waiver of the right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. The Irving court concluded:
“In accord with this position we hold that in order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590.
Although Sykes did not timely exercise his statutory right to request a juiy trial on the misdemeanor theft charge, this did not abrogate his constitutional right to a jury trial since he was facing imprisonment for more than 6 months. In this context, incarceration in a county jail qualifies as imprisonment. The district court should have obtained a knowing waiver from Sykes, either in writing or in open court, of his constitutional right to a jury trial. The State concedes the record does not indicate Sykes waived his right to a jury trial. In fact, Sykes informed the district court he wanted a juiy trial immediately before the bench trial commenced. Sykes is therefore entitled to a new trial on the misdemeanor theft charge where he may exercise or waive his right to a jury trial.
Sykes also claims the district court erred by denying his motions to appoint new counsel, and we will address this issue as it relates to the felony case. Finally, Sykes claims on appeal that the district court erred in failing to suppress evidence in the misdemeanor case. Sykes acknowledges he did not file a motion to suppress the evidence prior to the trial, and he did not object when the evidence was introduced at trial. This issue is not properly preserved for this appeal. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).
Motions to appoint new counsel
We will now address Sykes’ claim that the district court erred by denying his motions for new counsel. Sykes claims he had significant communication problems with his court-appointed attorney, Cotton, during the course of both his misdemeanor and felony cases. He maintains these communication problems began when Cotton failed to inquire if Sykes wanted a jury trial in his misdemeanor case. Sykes filed two motions asking the district court to replace his court-appointed attorney. On appeal, he argues the district court erred when it failed to replace his counsel.
“A trial court’s refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. The test for abuse of judicial discretion is whether any reasonable person would take the view adopted by the district court. [Citation omitted.]
“To warrant the appointment of new trial counsel, a defendant must show justifiable dissatisfaction’ with his or her appointed counsel. ‘Justifiable dissatisfaction’ may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. [Citation omitted.]” State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006).
Sykes filed his first motion for appointment of new counsel on tire day of his misdemeanor trial. Although the written motion was not made part of the record, it appears that Sykes gave the written motion to the district court and supplemented it with oral argument. Sykes told the district court Cotton failed to meet with him in the early stages of his case and when he did finally meet with him, Cotton wanted to discuss a plea agreement rather than formulating a defense. Sykes also maintained Cotton failed to visit him at the jail, failed to discuss the facts of his case with him, and failed to locate potential witnesses identified by Sykes. Sykes also informed the district court that he did not want a bench trial on his misdemeanor charge.
In response, Cotton explained he had met with Sykes “on no less than four occasions.” Cotton indicated Sykes’ trial had already been rescheduled several times due in part to Cotton’s efforts to locate witnesses Sykes had identified. All that aside, in Cotton’s opinion, he and Sykes had a “material and complete breakdown in communications.” Cotton told the court, “Sykes does not trust me, is not open with me, and at this point I feel that further representation of him by me would in all likelihood be ineffective, due to the fact that we can’t communicate.”
The district court inquired who was responsible for the lack of communication between Cotton and Sykes. Before Cotton could finish answering the court’s question, Sykes interrupted and said he and Cotton were both at fault for the lack of communication. Cotton further explained that part of the miscommunication stemmed from his misunderstanding that Sykes wanted a jury trial. Cotton admitted he had not filed a motion requesting a jury trial, explaining Sykes had not told him he wanted a jury trial until the day before the bench trial was scheduled. Nevertheless, Cotton indicated he was willing to try Sykes’ case.
The court commented that it believed the conflict stemmed from Sykes’ misunderstanding of Cotton’s responsibilities. The court explained to Sykes that often a defendant misunderstands that it is an attorney’s responsibility to advise their clients on whether they should proceed to trial or enter a plea agreement. The court commented that sometimes that advice is not what the defendant wants to hear.
Upon hearing this, Sykes responded that he did not trust Cotton because Cotton told him he had “some ethical situations” and would prefer it if another attorney was appointed to represent Sykes. The court asked Cotton whether another attorney under the same circumstances would be able to represent Sykes without facing the same ethical situation. Cotton replied by informing the court that he did not have a direct conflict in representing Sykes. He told the court there was a way he could continue to represent Sykes and not violate any ethics code, but it was not a way he preferred.
Sykes responded that he had been represented by an attorney from the public defender s office in the past who had represented him with more assertiveness and enthusiasm than Cotton. Sykes suggested that in his past experience, his defense attorney had violated ethics codes to benefit him. He said:
“She seen what was going on in the operations of the court, and she did an unethical situation and put herself in jeopardy. This is how much enthusiasm she had. This individual is telling me on a continuous basis that this ethical situation that he has or sees or has foreseen that he cannot go forward in a trial if it malees him do that, and I don’t have a problem with that. But sometimes I have seen it from my own eyes that you may have to do some tilings like that to save your client maybe down the road.”
The district court noted that Cotton indicated he was willing to try Sykes’ case, and he did not have an ethical conflict that could not be cured. The court informed Sykes he was not entitled to an unethical attorney, even if he wanted one, who would be more aggressive in the case. The district court denied Sykes’ motion to appoint new counsel and assigned the misdemeanor case for a bench trial.
Sykes filed a second motion to appoint new counsel after his bench trial for misdemeanor theft. In the second motion, Sykes claimed Cotton insulted him, attempted to influence him, abandoned him during the adversarial process by suggesting a guilty plea, and misled him into proceeding with a bench trial rather than a jury trial on his misdemeanor theft charge.
The second motion for new counsel was heard by a different judge. During the hearing, Sykes rehashed most of his complaints about Cotton. Sykes told the court that Cotton failed to visit him at the jail when Sykes requested a visit. He complained there had not been any communication between himself and Cotton concerning his felony case. He also complained that Cotton had pro ceeded with a bench trial in the misdemeanor case even though Sykes had wanted a jury trial. Sykes told the court he was planning to hire his own attorney and requested time to do so.
Cotton explained that Sykes had not informed him that he wanted a jury trial until the day before his bench trial was scheduled. Cotton also informed the court that at one point he was faced with an ethics quandary in representing Sykes on the misdemeanor charge, but Cotton explained this was resolved and he was able to represent Sykes during his misdemeanor trial. Cotton told the court he was willing to continue to represent Sykes in the felony case but felt that the two had “a significant communication problem.” When the court asked whether Cotton thought the situation would be different if Sykes had new counsel, Cotton responded, “[Mjaybe he [Sykes] would be able to develop a modicum of trust [with new counsel] he doesn’t have with me. Maybe he won’t. I don’t know the answer to that.”
The district court denied Sykes’ motion but granted a 3-week continuance so that Sykes could hire his own counsel. However, the district court made it clear that if Sykes did not hire new counsel, Sykes would need to proceed with Cotton and another continuance would not be granted. Sykes did not hire new counsel. Cotton represented Sykes during his jury trial on the felony charges.
On appeal, Sykes focuses on Cotton’s failure to ask Sykes if he wanted a jury trial on his misdemeanor charge. He argues the district court had a duty to inquire into the communication problems that resulted from Cotton’s failure to request a jury trial in the misdemeanor case. He claims the district court abused its discretion when it determined Sykes was not entitled to new appointed counsel.
In State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006), the defendant was charged with attempted first-degree murder, attempted second-degree murder, unlawful possession of a firearm, criminal damage to property, and three counts of aggravated assault. Prior to trial, the defendant filed a motion to discharge his appointed counsel, alleging a conflict of interest and a breakdown in communication. The defendant also filed a motion to proceed pro se. The district court forwarded the motions to defense coun sel, but the district court did not address the motions and never inquired into the alleged conflict of interest between the defendant and his attorney. The defendant was found guilty by a jury.
On appeal, the Kansas Supreme Court reversed the defendant’s convictions. 280 Kan. at 790-92, 794-95. The court held the district court should have inquired about die alleged conflict of interest between the defendant and appointed counsel. The court stated:
“It is the task of the district judge to insure that a defendant’s Sixth Amendment right to counsel is honored. Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further. Likewise, where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and his or her client.” 280 Kan. 782, Syl. ¶ 1.
Sykes’ case is distinguishable from Vann. Here, the district court certainly did not ignore Sykes’ request for a new attorney. The district court held two separate hearings on Sykes’ motions and conducted a detailed inquiry concerning Sykes’ problems with his attorney. The district court heard from both Sykes and his counsel and ultimately determined that counsel did not have a conflict in representing Sykes at trial.
In McGee, the defendant was charged with first-degree premeditated murder. Prior to trial, the defendant filed a motion for appointment of new trial counsel. In the motion, the defendant alleged his appointed attorney never came to visit him in jail and there was a breakdown in communication with his attorney. The defendant claimed the attorney was making no effort to defend him and had lied to him about the case. At the hearing, defense counsel informed the court that he had visited his client in jail on more than one occasion. Defense counsel stated he believed he could adequately represent the defendant at trial. The district court denied the motion.
On appeal, the Kansas Supreme Court found there was no abuse of discretion in denying the defendant’s motion for new counsel. 280 Kan. at 896-97. The court noted there was a disagreement between the defendant and his appointed counsel, but the disagreement did not rise to the level of a conflict of interest. The court concluded: “McGee has failed to point to any facts that demonstrate an actual conflict of interest between himself and his trial counsel. Accordingly, the district court did not abuse its discretion when it concluded that there was no conflict of interest between McGee and his counsel.” 280 Kan. at 896.
Sykes’ case is similar to McGee. In both cases, the defendant alleged a breakdown in communication with appointed counsel. In McGee, defense counsel denied the defendant’s complaints. Likewise in this case, Cotton denied most of the complaints Sykes reported to the court. Cotton informed the court he had met with Sykes at the jail on several occasions, and he had expended considerable effort in locating witnesses Sykes had identified. Cotton also explained the only reason he had not requested a jury trial on the misdemeanor charge was because Sykes had not requested one until the day before trial. However, there is one significant difference between Sykes’ case and McGee. In Sykes’ case, Cotton at one point admitted there was a “complete breakdown in communications” between them.
Returning to our standard of review, to warrant the appointment of new counsel, a defendant must show justifiable dissatisfaction with his or her appointed counsel. Justifiable dissatisfaction may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. McGee, 280 Kan. at 894. Here, the record does not support a conflict of interest between Cotton and Sykes. At one point Cotton indicated he was faced with an ethical problem in representing Sykes in the misdemeanor case. However, Cotton informed the court he knew how to resolve the problem and he could represent Sykes at trial in the misdemeanor case.
The real issue is whether the record supports an irreconcilable conflict or a complete breakdown in communications between Cotton and Sykes. In the first hearing on Sykes’ motion for new counsel, Cotton acknowledged Sykes’ lack of trust and a significant communication problem with his client. However, in the same hearing, Cotton informed the court he had met with Sykes at the jail on several occasions, and he had expended considerable effort in locating witnesses Sykes had identified. This implies that Sykes and Cotton were communicating about the case. Cotton informed the court he had resolved the ethical dilemma and he was willing to represent Sykes at trial on the misdemeanor charge. In the second hearing on Sykes’ motion for new counsel, Cotton again told the court he was willing to represent Sykes and he was unsure if the appointment of new counsel would improve the situation.
Sykes is unable to point to any fact in the record to support the assertion of a complete breakdown in communications with his counsel, other than die miscommunication about whether Sykes wanted a jury trial in the misdemeanor case. As far as the felony case is concerned, the record reflects a high level of advocacy displayed by Cotton on Sykes’ behalf. Cotton filed a motion to suppress the evidence and adequately represented Sykes at the hearing on the motion. At trial, Cotton aggressively cross-examined the State’s witnesses. Sykes testified on his own behalf and responded to a detailed direct examination by Cotton. Sykes testified that he was at the intersection of 11th and Topeka on December 30,2003, on his way to visit a friend, but he denied selling cocaine as the State alleged. Cotton called two additional defense witnesses to corroborate Sykes’ testimony. Cotton effectively presented Sykes’ theory of defense to the jury, despite overwhelming evidence of Sykes’ guilt presented by the State. He could not have possibly represented Sykes in such a manner without communicating with his client. Cotton’s performance in representing Sykes belies the assertion of a “complete breakdown in communications” between them.
Of course, the district court did not have the benefit of hindsight when it denied Sykes’ request for new counsel. Nevertheless, the district court had received mixed signals from Sykes and Cotton regarding whether the communications problem between them was irreconcilable. Although at one point Cotton agreed there was a “complete breakdown in communications,” the district court was not obligated to accept this assertion at face value without further investigation. Here, the district court thoroughly explored Sykes’ complaints and ultimately concluded Cotton could adequately represent Sykes at trial. There is evidence in the record to support this determination.
“The test for judicial abuse of discretion is whether any reasonable person would take the view adopted by the district court.” McGee, 280 Kan. at 894. Although this case may be closer than others, we are unable to conclude the district court abused its discretion by denying Sykes’ motions to appoint new counsel. Sykes failed to show a justifiable dissatisfaction with his appointed attorney to warrant the appointment of new counsel.
Motion to suppress Sykes’ statements to police
Next, Sykes claims the district court erred by failing to suppress his pre-Miranda statements to the police made during his arrest in the drug case. He argues his statements were inadmissible because he made them while in custody and without the benefit of Miranda warnings. In district court, Sykes also attempted to suppress the evidence seized as a result of the search of his pockets. However, Sykes does not raise this issue on appeal. An issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004).
“ ‘In reviewing a district court’s decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. [Citation omitted.] [The appellate] court does not reweigh evidence, pass on credibility of witnesses, or resolve conflicts in the evidence.’ [Citations omitted.]” State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
Here, after a pat-down search and his previous observations, Bachman searched Sykes’ pockets and recovered two plastic bags containing what appeared to be crack cocaine, and Bachman placed Sykes under arrest. As Bachman and another officer were preparing to conduct a field test on the rocks, Sykes motioned to Bachman and indicated he wanted to tell him something. Sykes told Bachman the rocks would test positive as cocaine and told him he had planned to sell the cocaine to make some money because he was out of work. After these statements, Bachman read Sykes the Miranda warnings. After receiving the warnings, Sykes told Bachman where he had obtained the drugs and he also told him about his prior conviction.
Prior to trial, Sykes moved to suppress the statements he made to Bachman prior to receiving the Miranda warnings. The district court denied the motion, finding there was no interrogation since Sykes had initiated the conversation with Bachman.
On appeal, Sykes argues Bachman had a duty to give Sykes the Miranda warnings after Sykes told him the rocks in the plastic bag would test positive for cocaine. Consequently, Sykes argues his statements about being out of work and trying to sell the drugs to earn some money should have been suppressed as involuntary statements made during a custodial interrogation.
“ ‘ “It is well established that volunteered statements of any land are not barred by the Fifth Amendment and their admissibility is not affected by the Miranda holding. [Citations omitted.] Moreover, an accused’s statement may be found to be voluntary and spontaneous and, thus, admissible even though it is made after the accused is arrested and in custody.” ’ [Citations omitted.]” State v. Lackey, 280 Kan. 190, 225, 120 P.3d 332 (2005).
Aside from express questioning, interrogation can also include other words and actions on the part of the police that they reasonably know are likely to elicit an incriminating response from the suspect. Lackey, 280 Kan. at 224. In this case, however, Bachman did nothing that could reasonably be construed as an attempt to elicit incriminating statements from Sykes. Sykes called Bachman over and began talking without any prompting from Bachman.
A suspect’s privilege against self-incrimination does not impose a duty upon police officers to prevent the suspect from malting incriminating statements. Instead, the Miranda warnings were designed to safeguard suspects against coercive interrogation tactics and are required when a suspect is in custody and subject to “ 'express questioning or its functional equivalent.’ ” Lackey, 280 Kan. at 224. Here, Sykes’ statements were voluntary and there was no interrogation. Bachman was not required to interrupt Sykes with Miranda warnings to prevent him from making further incriminating statements. The district court did not err when it denied Sykes’ motion to suppress his statements to the police.
Jury instructions on drug tax stamp charge
Sykes claims the district court erred by failing to instruct the jury that in order to find him guilty of a drug tax stamp violation, the jury had to find that Sykes possessed the cocaine for a sufficient length of time to acquire a stamp. Sykes failed to request such an instruction at trial. “ ‘It is well established that [an appellate] court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.’ [Citation omitted.]” State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citation omitted.]” State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004).
The district court instructed the jury on the drug tax stamp charge as follows:
“The defendant is charged in Count Two with the crime of possession of cocaine without Kansas tax stamps affixed. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly possessed more than 1 gram of cocaine without affixing official Kansas tax stamps or other labels showing that the tax has been paid; and
“2. That this act occurred on or about the 30th day of December, 2003, in Sedgwick County, Kansas.”
Sykes now claims this instruction was deficient. He relies on State v. Edwards, 27 Kan. App. 2d 754, 9 P.3d 568 (2000), and In re Burrell, 22 Kan. App. 2d 109, 912 P.2d 187, rev. denied 260 Kan. 993 (1996). In Burrell, the court addressed whether a taxpayer had sufficient possession of marijuana to trigger the application of the Kansas Drug Tax Act, K.S.A. 79-5201 et seq. The court held that in order to incur tax liability under the Kansas Drug Tax Act, a taxpayer must have had sufficient possession of the marijuana so that he or she had an opportunity to affix the tax stamps. 22 Kan. App. 2d at 116-17.
In Edwards, the court applied Burrell to a criminal case. The court held that in order for a defendant to be found guilty of a tax stamp violation under K.S.A. 79-5208, the jury must be instructed that the defendant was in possession of the controlled substance a sufficient time to have affixed the drug stamps. 27 Kan. App. 2d at 761-63.
The ruling in Edwards was specifically and categorically rejected in State v. Alvarez, 29 Kan. App. 2d 368, 372, 28 P.3d 404, rev. denied 272 Kan. 1419 (2001). The Alvarez court stated:
“Significantly, the Echuards court failed to mention K.S.A. 79-5204(c), which requires that a dealer affix a drug tax stamp Immediately after receiving the substance.’ Rather than applying a broad test to determine whether a dealer was in possession sufficient to affix a drug tax stamp, the Edwards court could have relied on K.S.A. 79-5204(c). ‘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.]’ In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).” Alvarez, 29 Kan. App. 2d at 372.
The Alvarez court went on to hold:
“The legislature’s use of ‘immediately after receiving the substance’ to establish when a drug tax stamp must be affixed to a controlled substance is not ambiguous. As a result, we refuse to read the statute as allowing for a grace period to purchase and affix a drug tax stamp. The tax is due and payable, and the tax stamp must be affixed, immediately upon possession.” 29 Kan. App. 2d at 372.
Also, in State v. Curry, 29 Kan. App. 2d 392, Syl. ¶ 3, 28 P.3d 1019, rev. denied 272 Kan. 1420 (2001), the court held:
“Where the evidence will support a jury finding that a defendant had actual possession of a controlled substance or possession with sufficient control to allow any opportunity to immediately affix drug tax stamps to the drugs, it is not clearly erroneous for the district court to fail to give an instruction, sua sponte, requiring the jury to find defendant had sufficient possession of the drug to allow defendant an opportunity to affix the drug tax stamps.”
We find the court’s reasoning in Alvarez and Curry more persuasive than the court’s reasoning in Edwards. K.S.A. 79-5204(c) and (d) require a dealer to affix a drug tax stamp immediately upon possession of the controlled substance. Here, Sykes had been under police observation for several minutes prior to his arrest for possessing cocaine. He had an opportunity to immediately affix tax stamps to the controlled substance. Under these circumstances, the district court was not required to instruct the jury that in order to find Sykes guilty of a tax stamp violation, the jury had to find that Sykes possessed the cocaine for a sufficient lengdi of time to acquire a stamp. The district court’s jury instructions on the drug tax stamp charge were not clearly erroneous.
Sufficiency of the evidence
Sykes claims there was insufficient evidence to convict him of possession of cocaine with the intent to sell after a prior conviction. Specifically, Sykes argues the State failed to present evidence at trial of his prior conviction of sale of cocaine. In this case, the State only offered evidence of Sykes’ prior conviction at sentencing in order to establish Sykes’ conviction as a drug severity level 2 offense.
“ “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.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
In State v. Loudermilk, 221 Kan. 157, 159-60, 557 P.2d 1229 (1976), the defendant was charged with possession of heroin after a prior conviction. The court held the defendant’s prior conviction of possession of narcotics was not an element of the crime charged but served only to establish the class of the felony in order to enhance the punishment. The court determined that proof of the prior conviction should only be offered at sentencing. See also State v. Rome, 269 Kan. 47, 52, 5 P.3d 515 (2000) (prior convictions under a self-contained habitual criminal statute are not elements of the offense charged and are pertinent only to the sentence that will be rendered in the event of conviction).
Here, Sykes’ prior conviction of sale of cocaine was not an element of the crime charged which the State was required to prove at trial. The State was only required to prove the prior conviction at sentencing in order to enhance the punishment for the new offense. Therefore, there was sufficient evidence at trial to support Sykes’ conviction.
Cumulative error
Sykes claims cumulative trial errors denied him a fair trial in both his misdemeanor and felony cases.
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
We have already determined Sykes is entitled to a new trial on the misdemeanor theft charge. As for Sykes’ felony trial, we find there was no cumulative error sufficient to deny Sykes a fair trial. See State v. Deiterman, 271 Kan. 975, 992, 29 P.3d 411 (2001) (if no error is found in the defendant’s case, the defendant’s claim of cumulative error must likewise fail).
Sentencing issues
Sykes claims the State failed to prove his criminal history after he objected to his criminal history score at sentencing. Sykes’ presentence investigation (PSI) report disclosed 37 prior convictions, including at least three residential burglaries. Sykes made a general objection to his criminal history at sentencing, but he did not specifically deny the existence of any prior convictions. The district court noted the objection but found Sykes’ criminal history category was “A” based on the PSI.
When a defendant has objected to his or her criminal history, the State has the burden to prove the criminal history by a preponderance of the evidence. K.S.A. 2005 Supp. 21-4715(a). Determining whether Sykes’ objection was sufficient to shift the burden of proof to tire State involves statutory interpretation. Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 2005 Supp. 21-4715 provides:
“(a) The offender’s criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.
“(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender’s criminal history prepared for the court by the state shall satisfy the state’s burden of proof regarding an offender’s criminal history.
“(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify tire district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” (Emphasis added.)
Sykes’ objection to his criminal history was insufficient to shift the burden of proof to the State for two reasons. First, Sykes failed to provide written notice of his objection to tire State. Second, and more importantly, Sykes failed to specify the exact nature of the alleged error he was claiming.
In addressing his criminal history at sentencing, Sykes claimed that his 1996 conviction for selling cocaine within 1,000 feet of a school was a matter of entrapment. He further stated he did not even know there was a school in the area. Sykes also complained that the burglary charges he pled guilty to in 1987 should have been possession of stolen property, but he was ignorant of the law when he entered the plea agreements.
Sykes made no specific objection to the existence of any of the prior convictions in his criminal history. He was primarily disagreeing with the law as it applied to some of his prior crimes. Under the circumstances, Sykes’ objection was not specific enough to require the State to present additional evidence proving the existence of Sykes’ prior convictions.
Finally, Sykes claims his sentence was unconstitutional because the existence of his prior convictions was not proved to a jury beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He recognizes this issue has been decided adversely to him by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002), but he argues Ivory was wrongly decided. “This court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. [Citation omitted.]” State v. Maybin, 21 Kan. App. 2d 189, 205, 2 P.3d 179, rev. denied 269 Kan. 938 (2000). There is no indication that the Kansas Supreme Court is departing from its prior decision in Ivory. The district court did not violate Sykes’ constitutional rights by basing his sentence on the existence of prior convictions not proved to a jury beyond a reasonable doubt.
In summary, Sykes was denied a right to a jury trial on the misdemeanor theft charge. His conviction in that case is reversed and remanded for a new trial. We find no reversible error in 04 CR 877 on the drug charges, and Sykes’ felony convictions and sentences are affirmed.
Affirmed in part, reversed in part, and remanded. | [
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Pierron, J.:
Hemy Escalante appeals his conviction for attempted aggravated kidnapping and aggravated batteiy. Escalante argues his convictions are multiplicitous, the trial court erred in not giving a unanimity jury instruction, and that his criminal history calculation is incorrect.
Escalante and his ex-wife Nancy had been in a tumultuous relationship for 19 years. They had been married and divorced two times, and Nancy had filed for protection from abuse orders on multiple occasions. There was a protective order in place at the time of the events in this case. Nancy had ordered Escalante out of her house on September 24, 2003.
In the early morning hours of October 2, 2003, Escalante called Nancy and asked her to deliver his coveralls and coat to the hotel where he was staying. Nancy agreed and told Escalante she would deliver his clothes to the hotel during her lunch hour at work. Nancy was apprehensive and gave a note to her coworkers indicating she was going to the County Inn. She took the clothes to Escalante’s hotel room, and he asked if she would like to come in and talk. Nancy told Escalante she needed to get some gasoline and return to work. When she returned to her car, Escalante got in the front seat with her. Nancy testified she was scared to death. She said she could tell he had been drinking. Escalante said he needed a ride to Food-4-Less. Nancy said she wanted to get out of the car right then, but they were in an isolated place in the parking lot behind the hotel.
As they approached the Food-4-Less, Escalante told Nancy to keep driving to the country. She looked over at him and saw he had a small kitchen or paring knife in his hand. As they approached a K-Mart, Escalante told her to keep driving or he would stab her right there. Because there were many people around, Nancy drove into the K-Mart parking lot, stopped the car, opened the door, and tried to get out. Escalante pulled Nancy back into the car and repeatedly stabbed her in the chest, waist, neck, and arm. After she broke free, Nancy ran towards the K-Mart. A woman in a truck behind Nancy’s car witnessed the entire event and was able to help cause a distraction by repeatedly honking her horn. Nancy was taken to the hospital by ambulance and was treated for minor cuts and released.
Escalante was charged with aggravated kidnapping, aggravated batteiy, criminal threat, and aggravated assault. On the charge of aggravated kidnapping, the jury was instructed on the lesser included offenses of attempted aggravated kidnapping and criminal restraint. The jury convicted Escalante of attempted aggravated kidnapping, aggravated battery, aggravated assault, and criminal threat.
Prior to sentencing, Escalante filed an objection to his criminal history and a motion for judgment of acquittal based on multiplicity of charges. The trial court granted an acquittal of Escalante’s aggravated assault and criminal threat convictions, finding there was one continuous course of conduct and those two convictions merged into the aggravated battery in a single act of violence. The court rejected Escalante’s criminal history objections and sentenced him to a controlling term of 233 months’ incarceration. Escalante died during his incarceration. Under State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976), we will consider the underlying conviction but not the sentencing issues.
First, Escalante argues his convictions for attempted aggravated kidnapping and aggravated battery are mutiplicitous and he cannot be convicted of both crimes. He contends the trial court determined there was a cohesive and continuous course of conduct and he cannot be convicted of multiple crimes for a single act of violence.
Whether charges are multiplicitous is a question of law, and an appellate court’s review is unlimited. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). “Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. [Citation omitted.]” State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” 278 Kan. at 447.
In State v. Patten, 280 Kan. 385, Syl. ¶ 4, 122 P.3d 350 (2005), the Kansas Supreme Court reiterated its reliance on a straight elements test for multiplicity: “The test of multiplicity is the strict element test without considering the facts that must be proven to establish those elements.” The Patten court indicated this test is favorable (1) for facility of application and certainty, and (2) to avoid any possibility of returning to the difficulties of the second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). 280 Kan. 393.
Escalante relies on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), for his argument that because there was one single act of violence in the same time and place, the charges in this case are multiplicitous. The facts in Groves are arguably distinguishable from the present case. In Groves, the court held the defendant’s convictions for aggravated robbery and aggravated battery were multiplicitous where the same act of violence, grabbing the victim’s purse and knocking her to the ground, provided the basis for each conviction. 278 Kan. at 307-08.
To be convicted of attempted aggravated kidnapping, the defendant must perform one or more overt acts toward the commission of the crime of aggravated kidnapping, with the intent to commit an aggravated kidnapping, but fail to complete the crime of aggravated kidnapping. See K.S.A. 21-3301; K.S.A. 21-3421. To be convicted of aggravated battery, Escalante must have intentionally caused physical contact with the victim in a rude, insulting, or angry manner with a deadly weapon, or in a manner whereby great bodily harm, disfigurement, or death could have been inflicted, on the date in question. See K.S.A. 21-3414(a)(1)(C).
We do not find Escalante’s case presents a situation of a “single act of violence” as was the case in Groves when analyzing the ques tion of multiplicity. The events in this case clearly consisted of a continuous incident, but the charges are not multiplicitous as a single act of violence. See Groves, 278 Kan. at 307; State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987).
“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 convictions 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.]” State a Vontress, 266 Kan. 248, 256, 970 P.2d 42 (1998).
The State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 2005 Supp. 21-3107 provides statutory authority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. See State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
Considering the elements set forth in attempted aggravated kidnapping and aggravated battery, it appears that aggravated battery does not constitute a lesser degree, attempt, or attempt to commit a lesser degree of attempted aggravated kidnapping. Therefore, the convictions for both counts are not necessarily multiplicitous as each charge required proof of an element not required in proving the other, notwithstanding the fact that there was a continuous event.
Due to the elements of aggravated kidnapping as charged here, had that crime been successfully completed, the aggravated battery would have merged with the aggravated kidnapping. However, here there was only an attempt, which did not require a completed aggravated battery, so the two crimes are not merged.
Next, Escalante argues the trial court erred in not giving a unanimity juiy instruction. We disagree.
Escalante did not raise his unanimity instruction argument during trial. Escalante raised the issue in his motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for new trial. He argued that because the State kept the basis of the charges vague and did not separate out which act formed which charge, the jury was left to guess in trying to figure out if the verdict was unanimous. The trial court denied the motion at sentencing.
Having failed to request the jury instruction at trial, our standard of review is based on clear error. “ It is well established that [an appellate] court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where tire party neither requested the instruction nor objected to its omission.’ [Citation omitted.]” State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if tire error had not occurred.’ [Citation omitted.]” State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004).
In a multiple acts case, several acts are alleged and any one of tire acts could constitute the crime charged. In such a case, the jury must be unanimous as to which act constitutes the crime. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). Therefore, to ensure jury unanimity, either the State must elect the particular act upon which it will rely for conviction or the court must instruct the jury to agree on a specific underlying criminal act. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994).
In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our Supreme Court adopted a two-step analysis for determining whether a unanimity instruction is required. The first step is to determine whether there was a possibility of jury confusion from the record, or if the evidence shows either legally or factually separate incidents. A legally separate incident is when a defendant presents different defenses to a separate set 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. A factually separate incident is when independent criminal acts have occurred at different times or when a later act is motivated by a “fresh im pulse.” If juiy confusion is not shown under step one, the second step is to determine if the failure to give a unanimity instruction is harmless beyond a reasonable doubt with respect to all acts. 271 Kan. at 939.
Escalante claims that he presented separate defenses to the attempted aggravated kidnapping, namely that the cuts were minor and Nancy was not confined when they got in the car and left the hotel, and to the aggravated battery, namely that no knife was ever found and Nancy was not a credible witness. We agree with the State that Escalante’s claims of multiple defenses are without merit and obviously amount to the same defense, namely that he did not kidnap Nancy and he did not cut her badly with the knife.
As previously discussed in relation to the multiplicity argument, the events in this case involved a relatively short, continuous, single incident comprised of several overt acts individually sufficient for conviction of attempted aggravated kidnapping as well as aggravated battery. Consequently, jury unanimity requires only that the jury agree to the act of the crime charged, not which particular act. See State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601 (2000).
We do not consider this case a “multiple acts” case, and we are convinced that there was no possibility of jury confusion. There was certainly no clear error in not giving the unanimity instruction. Moreover, any such purported error was harmless beyond a reasonable doubt with respect to all acts. See Hill, 271 Kan. at 939-40. Specifically, it was made clear what overt acts were charged and which supporting evidence that the State was relying upon in estabhshing each charge, and Escalante did not present separate defenses to any of the overt acts outlined by the prosecution.
Last, Escalante argues the trial court erred in overruling his objection to his criminal history by including in his history a crime that had been enhanced and also the crimes used to enhance that crime to the felony level. His appellate brief requests a remand for resentencing.
“Although many other courts have held the death of a defendant during the pendency of his appeal from a criminal conviction abates die appeal, in Kansas the death of a defendant does not abate his direct appeal as it is in the interest of tire public that the issues raised on appeal be adjudicated upon tire merits. State v. Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976). While death moots the sentence and renders impossible a new trial, [a defendant’s] appeal as to the admitted redacted statement should be reviewed and decided.” State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990).
We hold all issues regarding computation of Escalante’s sentence are rendered moot as a result of his death, as any resentencing is academic.
Affirmed. | [
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Green, J.:
Wal-Mart Real Estate Business Trust and Wal-Mart Stores, Inc. (Wal-Mart); Merit General Contractors, Inc. (Merit); and Centennial Insurance Company (Centennial) (collectively the defendants) appeal from the trial court’s grant of the partial summaiy judgment motion filed by Tradesmen International, Inc. (Tradesmen) and the trial court’s denial of the defendants’ motion for summary judgment. Tradesmen cross-appeals from the trial court’s decision denying its claim for attorney fees against Centennial under K.S.A. 40-256. The parties’ arguments in this case concern two central issues: The validity of a mechanic’s lien filed by Tradesmen under K.S.A. 60-1103(a)(1), and Tradesmen’s right to recover under a payment bond executed between Merit and Centennial.
First, the defendants argue that the trial court erred in allowing Tradesmen to amend its original mechanic’s lien statement. Tradesmen’s original Men statement failed to correctly name the contractor as required by K.S.A. 60-1103(a)(1). Tradesmen moved — after the 3-month statutory period for filing a valid mechanic’s lien had expired- — to amend its lien statement to state the name of the correct contractor. Tradesmen maintains that the amendment of its lien statement was proper under K.S.A. 60-1105(b), which permits amendment upon leave of court and in furtherance of justice as long as the lien amount is not increased.
We determine that a mechanic’s Hen statement filed by a subcontractor under K.S.A. 60-1103(a)(1) that fails to correctly name the contractor is vitally defective. To hold otherwise would allow Tradesmen to skip one of the essential steps required by K.S.A. 60-1103(a)(1): to correctly state the name of the contractor in its lien statement. Moreover, to hold otherwise would allow Tradesmen to create a mechanic’s lien, where none previously existed, after the expiration of the statutory period for obtaining such a lien. Because the trial court may not exercise its authority to allow the amendment of a mechanic’s hen statement to evade or defeat the operation of K.S.A. 60-1103(a)(1), we determine that the trial court’s decision allowing Tradesmen to amend its mechanic’s lien statement to correctly name the contractor was in error. Because Tradesmen does not have a valid mechanic’s hen, we reverse the trial court’s grant of summary judgment in favor of Tradesmen on Count I of its petition.
Next, the defendants argue that Tradesmen was not a proper bond claimant under Centennial’s payment bond. We determine that because Tradesmen provided skilled laborers that were used in tire prosecution of work under the general contract between Wal-Mart and Merit, Tradesmen was a proper bond claimant un der Centennial’s payment bond. As a result, we affirm the trial court’s grant of summary judgment in favor of Tradesmen on Count II of its petition.
Finally, in its cross-appeal, Tradesmen argues that the trial court erred in finding that there was “just cause or excuse” for Centennial refusing to pay its bond claim and in denying recovery for its attorney fees under K.S.A. 40-256. Because we are unable to determine that no reasonable person would take the view of the trial court, we find no abuse of discretion and affirm the trial court’s decision on the attorney fees issue. Accordingly, in this case we affirm in part and reverse in part.
Merit contracted with Wal-Mart for the construction of a WalMart supercenter in Overland Park, Kansas (Wal-Mart project). As the general contractor on the Wal-Mart project, Merit posted a payment bond naming it as the principal and Centennial as the surety. Merit subcontracted with Construction Services Corp. (CSC) to complete the concrete work called for in the general contract.
A “Client Services Agreement” existed between CSC and Tradesmen in which Tradesmen agreed to provide skilled laborers to CSC. In turn, CSC agreed to pay Tradesmen’s billed hourly rate for the skilled, laborers that were provided. Although Tradesmen and CSC never entered into an agreement specifically concerning the Wal-Mart project, CSC used laborers provided by Tradesmen in the Wal-Mart project.
Merit eventually terminated CSC from its subcontract. As of June 27,2003, the amount of $168,031.04 remained due and owing from CSC to Tradesmen for the skilled laborers supplied to the Wal-Mart project. Tradesmen made demand upon Merit and the payment bond for $168,031.04. Merit and Centennial refused to pay Tradesmen’s claim.
In August 2003, Tradesmen filed a subcontractor’s mechanic’s lien statement against property owned by Wal-Mart. In its lien statement, Tradesmen claimed that under its contract with CSC, it had furnished labor for the construction of the Wal-Mart project. The amount of Tradesmen’s claim was $168,031.04 plus interest. Tradesmen alleged that it had last furnished labor and services under the client services agreement on June 27, 2003. The lien statement failed to correctly name the contractor as Merit General Contractors, Inc., and instead named Merit Construction Co., Inc., as the contractor.
Tradesmen filed suit in August 2003. In its first-amended petition, Tradesmen sought to foreclose its mechanic’s lien (Count I) and to recover $168,031.04 plus interest and costs from Centennial on its payment bond, as well as attorney fees from Centennial under K.S.A. 40-256 (Count II). Tradesmen raised other claims in its first-amended petition, including a quantum meruit claim against Merit (Count III) and a contract claim against CSC (Count IV). Nevertheless, the latter two claims are not the subject of this appeal.
In January 2004, Tradesmen moved to amend its mechanic’s lien statement to correctly name Merit General Contractors, Inc., as the proper contractor. The defendants opposed the amendment, arguing that Tradesmen could not be allowed to amend the lien statement to correctly name the contractor after the statutory period for filing a valid hen had expired. The trial .court allowed Tradesmen to amend its hen statement to name the proper contractor as Merit General Contractors, Inc. Tradesmen filed its amended subcontractor’s lien statement in June 2004.
Both the defendants and Tradesmen moved for summary judgment on Counts I and II of Tradesmen’s first-amended petition. The trial court denied the defendants’ motion for summaiy judgment and granted Tradesmen’s motion for summaiy judgment. The trial court, however, denied Tradesmen’s request for attorney fees under K.S.A. 40-256 against Centennial. The trial court entered a final judgment on Counts I and II of Tradesmen’s petition under K.S.A. 60-254(b).
Summary Judgment Standard of Review
In reviewing the trial court’s decision on the parties’ summaiy judgment motions, we use the following standard of review:
“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 parly is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusion drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Validity of Mechanic’s Lien
First, the defendants contend that the trial court erred in allowing Tradesmen to correct its vitally defective mechanic’s lien statement after the time for filing the lien statement had expired. K.S.A. 60-1105(b) authorizes amendment of a lien statement by leave of the court and in the furtherance of justice as long as the lien amount is not increased. See Scott v. Strickland, 10 Kan. App. 2d 14, 22, 691 P.2d 45 (1984). Nevertheless, K.S.A. 60-1105(b) does not permit the trial court to allow amendment of a vitally defective mechanic’s hen statement after the statutory filing period has expired. See D.J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 372, 430 P.2d 222 (1967).
Here, it is undisputed that Tradesmen amended its lien statement to change the name of the contractor after the 3-month statutory period for filing its lien statement had expired. The question tiren becomes: Was the initial lien statement filed by Tradesmen within the 3-month statutory filing period vitally defective by failing to name the proper contractor?
In order to determine whether the mechanic’s Men statement filed by Tradesmen was vitally defective, we must look at the statutory requirements that govern mechanics’ lien statements. This is because mechanics’ hens are statutory and can only be created in the manner set forth in the statutes. Parties claiming a mechanic’s lien have the burden of bringing themselves clearly within the statutory provisions. Creme de la Creme (Kansas), Inc. v. R & R Int’l, Inc., 32 Kan. App. 2d 490, 493, 85 P.3d 205, rev. denied 278 Kan. 844 (2004). Although the mechanics’ hen statutory provisions are liberally construed once a hen attaches, the requirements for a hen to come into existence must be strictly met. J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 691, 817 P.2d 201 (1991).
Both parties agree that Tradesmen filed its mechanic’s hen under K.S A. 60-1103, which states in relevant part:
“(a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to tire same extent as the original contractor except that:
(1) The lien statement must state the name of the contractor and be filed within three months after the date supplies, material or equipment was last furnished or labor performed by the claimant.’’ (Emphasis added.)
K.S.A. 60-1103(a)(1) clearly requires the contractor to be named in the mechanic’s lien statement. Here, Tradesmen’s original lien statement incorrectly named Merit Construction Co., Inc., as the contractor. Tradesmen moved after the statutory filing period to amend its mechanic’s lien statement to correctly name Merit General Contractors, Inc., as the contractor. Merit Construction Co., Inc., and Merit General Contractors, Inc., are separate corporate entities.
Tradesmen maintains that the case closest in point to the instant situation is Strickland, 10 Kan. App. 2d 14, Syl. ¶ 5, where this court affirmed the trial court’s decision allowing amendment under K.S.A. 60-1105(b) of a lien statement to add a joint owner. In that case, Jerry Wilson d/b/a Woods-Ringstaff Lumber Company (Woods-Ringstaff) filed a mechanic’s lien for an unpaid lumber bill. Although the property on which the mechanic’s lien was filed was owned by Cecilia and Jimmie Scott in joint tenancy, the original lien statement only named Jimmie Scott as tire owner. After the statutory filing period had expired, Woods-Ringstaff was allowed to amend its mechanic’s lien to add Cecilia Scott as an owner.
Woods-Ringstaff later obtained a judgment to foreclose its mechanic’s lien on the subject property. On appeal, the Scotts argued that the failure of tire original hen statement to name Cecilia Scott as an owner and thus to attach to her interest in the property could not be cured by amending the statement after the statutory filing period had expired. In rejecting tire Scotts’ argument, this court relied on Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 651, 347 P.2d 438 (1958), where our Supreme Court stated that there is an identity of ownership among spouses so that an amendment to a valid hen against one spouse to add the name of the other spouse is proper. This court concluded that the trial court properly allowed amendment of the mechanic’s hen statement to name Cecilia as an owner. Strickland, 10 Kan. App. 2d at 22.
The Scotts also argued that the mechanic’s lien statement was deficient because it failed to specifically identify Forrest Strickland as the contractor. Nevertheless, the lien statement did name Strickland as receiving the materials provided on behalf of the Scotts. This court stated that the job and authority upon which WoodsRingstaff provided the building material were identified by the inclusion of Strickland’s name in the hen statement. Thus, this court concluded that the hen statement adequately identified Strickland as the contractor. 10 Kan. App. 2d at 23.
It is puzzhng why Tradesmen relies on Strickland to support its argument here. Unlike the facts of Strickland, the original mechanic’s hen statement filed by Tradesmen never identified the correct contractor. In fact, nowhere within the original mechanic’s hen statement was the name of Merit General Contractors, Inc.
Further, the instant case does not fall within the “identity of ownership” situation that existed in Strickland. In Strickland, Woods-Ringstaff was merely attempting to add a joint owner to an already valid mechanic’s hen. The mechanic’s hen had already attached to the husband’s interest in the property because he had been named in the original hen statement. The Strickland court noted that “[a] mechanic’s hen may attach to any interest in the land held by the person for whom the materials were provided. In other words, a person holding any legal or equitable interest in realty may be an owner for the purposes of the mechanics’ hen statutes. [Citation omitted.]” 10 Kan. App. 2d at 22. Here, there was never a correct contractor named in the original mechanic’s hen statement. Moreover, Tradesmen persuaded the trial court to allow it to name a different corporation as the contractor. Similarly, the substitution of separate and distinct entities was rejected in the Black case. See 185 Kan. 644, Syl. ¶ ¶ 1 and 3.
In Black, 185 Kan. 644, our Supreme Court held that a mechanic’s lien statement may not be amended to change the names of the owners of the property after expiration of the statutory filing period. There, Logan-Moore Lumber Company (Logan-Moore) filed a mechanic’s lien statement that listed James and Sara Black as owners of the property. After the statutory period in which to file tire lien statement had expired, Logan-Moore requested leave to amend its lien statement to show that Leland Lewis owned the property at the time it contracted to supply materials and at the time it supplied all but one of the items described in the lien statement. The trial court amended the lien statement to substitute the names of Lewis and his wife for the names of the Blacks.
In reversing the trial court’s decision, our Supreme Court distinguished its earlier decisions where the amendment of lien statements had been allowed to change the names of the owners as follows: “A review of the cases under 60-1405, where the amendment of lien statements has been permitted to change the names of the owners, reveals facts which show identity of ownership. None of them involves a separate and distinct entity of ownership as we have in tire instant case." 185 Kan. at 652. Our Supreme Court cited its earlier decision in Cooke v. Luscombe, 132 Kan. 147, 149, 294 Pac. 849 (1931), where it held that amendment of the lien statement was proper where the individuals named represented the same identity of ownership. Our Supreme Court stated that the amendment had not created a valid hen but rather had “clarified the identity of ownership of the property upon which a valid hen had already been created.” 185 Kan. at 652-53. Nevertheless, the hen statement of Logan-Moore was fatally defective when filed and thus no hen had been created on the property at the time of fihng. Our Supreme Court determined that the trial court had erroneously amended the hen statement by substituting the names of entirely different owners after the expiration of the statutoiy filing period. 185 Kan. at 654.
Nevertheless, the Black holding was decided under G.S. 1949, 60-1405, which predated K.S.A. 60-1105(b). In D.J. Fair Lumber Co., 199 Kan. 366, our Supreme Court considered what effect K. S. A. 60-1105(b) had on previous holdings under G.S. 1949, 60-1405. K.S.A. 60-1105(b) deleted language from G.S. 1949, 60-1405 permitting amendments only “ ‘as pleadings may be in any matter.’ ” 199 Kan. at 371. Our Supreme Court set forth District Judge Spencer A. Gard’s comments in Gard’s Kansas Code of Civil Procedure Annotated § 60-1105, p. 661 (1st ed. 1963), on K.S.A. 60-1105(b), as follows:
“ ‘This provision is the same as the last part of GS 1949, 60-1405, relating to ámendment of the lien statement. The attitude toward amendment in Kansas has been liberal, both as expressed by the legislative intent and by the court decisions. This subsection does not make it less so . . . [.]’
“However, Judge Gard continues:
‘In order to justify an amendment the hen statement must have been sufficient when filed to perpetuate the hen. S. J. Safford & Son Lumber Co. v. Kerley, 184 Kan. 59, 334 P.2d 334 [1959], Thus any amendment may be permitted to perfect a hen statement not vitally defective . . . [.]’ ” D.J. Fair Lumber Co., 199 Kan. at 371.
Our Supreme Court determined that “the language used in K.S.A. 60-1105(b) is not sufficiently different from that used in the prior statute (G.S. 1949, 60-1405) to permit amendment of a vitally defective lien statement after the statutory period in which to file such lien has expired.” 199 Kan. at 372.
Here, Tradesmen moved to amend the hen statement to substitute the name of an entirely different company as the contractor. Because the original lien statement contained the name of the wrong contractor, it failed to create a valid hen against the property. “There is no privity of contract between a subcontractor and a property owner, and the former can obtain a Hen only by complying with the statutory provisions. [Citations omitted.]” Sutherland Lumber Co. v. Due, 212 Kan. 658, 660, 512 P.2d 525 (1973). Tradesmen did not establish the connection between a subcontractor and the owner of property by naming the contractor as required by K.S.A. 60-1103(a)(1).
Unlike tire facts of Strickland, there was no valid mechanic’s hen in effect when Tradesmen sought to amend its mechanic’s hen after the expiration of the statutory filing period. Tradesmen was not seeking to merely add a contractor to an already valid lien statement. In fact, there is no evidence in the record that Merit Construction Co., Inc., was also a contractor on the Wal-Mart project and thus its name on the original lien statement created a vaHd lien. Instead, the record indicates that Tradesmen had listed on the original lien statement an entity that was entirely different from the proper contractor, Merit General Contractors, Inc. Without the proper contractor being named in the original lien statement, no valid lien was created within the statutory filing period.
In D.J. Fair Lumber Co., 199 Kan. 366, Syl. ¶ 5, our Supreme Court determined that D.J. Fair Lumber Co.’s lien statement, lacking verification as required by K.S.A. 60-1102, created no valid lien and could not be amended after the statutory filing period had expired. Determining that the trial court’s power to permit amendment of a hen statement is limited where the proposed amendment would evade or defeat tire operation of mechanics’ lien statutes, our Supreme Court in D.J. Fair Lumber Co. stated:
“The exercise of the power of amendment conferred by 60-1105(b) is limited by the possibility of injustice to either the defendant or to third persons, and the burden is upon the claimant to show die proposed amendment would not work an injustice. The power is further limited where the proposed amendment would evade or defeat the operation of statutes-here, 60-1102 and 60-1103-since no court has power to nullify statutes valid on their face. (Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640.) In short, the plaintiffs proposed amendment would not have been ‘in the furtherance of justice’ since the amendment sought would have had the effect of creating a lien where none previously existed, and this, as we have seen, would evade or defeat the operation of 60-1102 and 60-1103.” 199 Kan. at 372.
Thus, if the lien statement is vitally defective when filed, it cannot be amended after the statutory period in which to file the lien has expired.
Nevertheless, Tradesmen contends that there is no evidence that the defendants were prejudiced in any way by the name of the wrong contractor in the Hen statement or that Merit did not know which entity was involved. With this argument, Tradesmen seems to focus on a matter extraneous to the question at hand. Although the defendants may not have been prejudiced by Tradesmen naming the wrong contractor, this is not the issue. The question at hand is whether the trial court properly granted the amendment to Tradesmen’s mechanic’s hen statement.
In our extensive research on this issue, however, we have not discovered a case which has considered the issue of whether defendants have been prejudiced by deficiencies in a lien statement. Instead, we find that the cases consistently hold to the rules that parties can only create a mechanic’s lien by strictly following the requirements contained in the statutory provisions and that those parties have the burden of bringing themselves within the statutory provisions. See Sutherland Lumber Co., 212 Kan. 658, Syl. ¶ 1; Jankord v. Lin, 32 Kan. App. 2d 1255, Syl. ¶ 2, 96 P.3d 692 (2004); Creme de la Creme, 32 Kan. App. 2d 490, Syl. ¶ 2. These rules are best expressed in D.J. Fair Lumber Co., where our Supreme Court quoted the following language from Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 635-36, 400 P.2d 707 (1965):
“ Tt is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic’s lien. Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. A lien claimant must secure a lien under the statute or not at all. (Don Conroy Contractor, Inc v. Jensen, 192 Kan. 300, 304, 387 P.2d 187.) The validity of a lien created solely by statute depends upon the terms of the statute, and parties may not by estoppel enact or enlarge a statute. (Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P.2d 280.) There is no privity of contract between the subcontractor and the owner, and the [subcontractor] can only obtain a lien by compliance with the statutory provisions. It is not enough that [the subcontractor] has furnished the material and filed a lien.’ ” D.J. Fair Lumber Co., 199 Kan. at 369.
Thus, we look only to whether a Hen claimant followed the statutory requirements to create a valid hen on the property. Here, by not following an essential requirement of K.S.A. 60-1103 to name the proper contractor, Tradesmen failed to bring itself within the statutory provisions to file a valid mechanic’s Hen.
Our Supreme Court has held that a mechanic’s lien statement filed by a subcontractor which fails to state the name of the contractor is fatally defective. Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, Syl. ¶ 1, 251 Pac. 196 (1926). D.J. Fair Lumber Co. concluded that K.S.A. 60-1105(b) does not permit “amendment of a vitally defective lien statement after the statutory period in which to file such lien has expired.” 199 Kan. at 372. Thus, the lien statement was vitally defective when filed and could not be amended to allow Tradesmen to correctly name the contractor. As a result, the trial court had no authority to allow the amendment of the hen statement.
Because Tradesmen never had a valid mechanic’s hen on the property, die trial court erred in granting Tradesmen’s motion for summary judgment and in denying the defendants’ motion for summary judgment relating to Count I of Tradesmen’s petition.
Recovery Under Payment Bond
Next, the defendants argue that Tradesmen was not a proper bond claimant under the payment bond issued by Centennial on the Wal-Mart project. This issue requires interpretation of language found in the payment bond executed by Merit and Centennial. “The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
The payment bond states in relevant part:
“The said Principal [Merit] and the said Surety [Centennial] agree that this Bond shall inure to the benefit of all persons or entities as supplying labor, material, services, utilities and equipment in the prosecution of die work provided for in said Contract, as well as to the Obligee [Wal-Mart Stores, Inc.], and that any of such persons or entities may maintain independent actions upon this Bond in the name of the persons or entities bringing such action.”
The trial court determined that Tradesmen could recover under this payment bond, stating:
“Based on this Court’s conclusion that Tradesmen provided labor, and that Tradesmen is a proper hen claimant, this Court further finds that Tradesmen’s bond claim is proper and valid. Moreover, even if it did not supply labor, Tradesmen clearly supplied ‘services ... in the prosecution of the work’ on the Supercenter project ■— a category not provided in the Kansas statute — and is entitled to the benefit of the bond for this reason as well. Defendants have failed to establish a genuine issue of material fact as to Count II and Plaintiff is entitled to judgment as a matter of law.”
In arguing that the trial court’s determination was erroneous, the defendants cite Goodyear Tire & Rubber Company v. Jones, 317 F. Supp. 1285 (D. Kan. 1968), aff'd 433 F.2d 629 (10th Cir. 1970), where the court held that a contractor’s promise to pay additional compensation to two foremen if they were still working for the contractor at the completion of the project did not come within the term “labor” as used in a labor and materials payment bond. There, Mrs. E.A. Jones (Fern Jones) d/b/a Jones Electric Machinery Company (Jones) entered into a construction contract with Goodyear Tire & Rubber Co. (Goodyear) to perform electric work and supply materials to the Goodyear plant near Topeka. Based on a requirement under the contract, Jones posted a performance bond and a labor and material payment bond. The labor and material payment bond was conditioned to pay all claimants “ Tor all labor or material used or reasonably required for use in the performance of the contract.’ ” 317 F. Supp. at 1292. The payment bond further defined a claimant as “ "one having a direct contract with the principal or with the subcontractor of the principal for labor, material, or both, used or reasonably required for use in the performance of the contract.’ ” 317 F. Supp. at 1292.
On the day that Goodyear accepted Jones’ bid for the project, Jones agreed to pay two foremen additional compensation of $5,500 each upon the completion of the Goodyear contract if these two foremen continued to work for Jones until the end of the project. The written agreement to pay this additional compensation indicated that the two foremen were having difficulty with their union and were under enormous pressure to leave Jones. Before the federal district court, the two foremen and Jones argued that the promised additional wages were covered under the labor and material bond. In addressing this argument, the federal district court looked to the contract between Goodyear and Jones drat was made a part of the bond by reference. Although the contract outlined the labor and materials costs of the project specifications, there was no disclosure of die written agreement between Jones and the two foremen concerning the additional money promised and the contract made no provision for such payment. The federal district court determined that the additional money promised to the two foremen was not for “labor” within the contemplation of any of the parties as that term was used in the labor and material payment bond. 317 F. Supp. at 1293.
The Goodyear decision is factually distinguishable from the instant case in two important ways. First, the claimed amount in Goodyear was essentially a retention bonus. Jones promised the two foremen money so that they would resist pressure from their union and not end their employment with Jones during the Goodyear construction project. As pointed out by Tradesmen, the claimed amount was not for labor performed on the construction project at the foremen’s normal compensation rates. Here, Tradesmen is seeking compensation for skilled labor that they provided to CSC and was used in the Wal-Mart construction project.
Second, the language contained in the bond in Goodyear was much more restrictive than the language used in the payment bond here. In Goodyear, the payment bond extended to all claimants “ ‘for all labor or material used or reasonably required for use in the performance of the contract.’ ” 317 F. Supp. at 1292. The payment bond further limited its coverage by defining the term “claimant.” Here, the coverage of the payment bond is not restricted to a defined “claimant.” Rather, the broad language of the payment bond extends to “all persons or entities.” Moreover, unlike the language found in the payment bond in Goodyear, coverage is not limited to those providing labor or material. Instead, “all persons or entities as supplying labor, material, services, utilities and equipment in the prosecution of the work provided for” in the general contract are included within the language of the bond. (Emphasis added.)
Tradesmen is seeking payment under the bond for skilled laborers it provided to CSC which in turn used these laborers in the Wal-Mart project. The general manager of Tradesmen, Paul Neuberger, stated in his affidavit that “Tradesmen, at CSC’s request, sent Tradesmen’s skilled construction work[er]s to the Wal-Mart jobsite ... to assist CSC in the performance of CSC’s subcontract obligations to Merit.” Further, as Tradesmen points out, Merit’s president Stanley Bachman admitted in his deposition that Tradesmen provided laborers to CSC and that these laborers worked on the Wal-Mart project:
“Q. [Tradesmen’s counsel]: Would you agree that Tradesmen was an entity that supplied labor in the prosecution of the work provided for in Merit’s contract with Wal-Mart?
“A. [Bachman]: It is my understanding that Tradesmen did' — and CSC had some type of an arrangement where the people were provided to CSC by Tradesmen that worked on the project, yes.
“Q.: That those people worked on the project; is that correct?
“A.: It’s my understanding, yes.”
Thus, diere is no dispute that Tradesmen supplied laborers who worked on the Wal-Mart project.
Nevertheless, the defendants argue that Tradesmen did not supply any labor or services in the prosecution of the Wal-Mart project but instead only provided services to CSC of an administrative nature. The defendants maintain that Tradesmen was a professional employer organization (PEO) type of entity which courts from other jurisdictions have held are not proper bond claimants. To support its argument on this issue, the defendants cite Tri-State Employment v. Mountbatten Surety, 99 N.Y.2d 476, 758 N.Y.S.2d 595, 788 N.E.2d 1023 (2003), and Better Financial Solutions v. Transtech, 112 Wash. App. 697, 51 P.3d 108 (2002), rev. denied 149 Wash. 2d 1010 (2003).
Neither Tri-State nor Better Financial provide support for the defendants’ argument. The PEO’s in both Better Financial and TriState merely provided payroll services to the contractor or subcontractor on the construction project. In Tri-State, the PEO entered into an agreement with the contractor to provide employee leasing services which consisted of hiring the contractor’s employees, leasing the employees back to the contractor, and paying all of the wages, taxes, and other payroll expenses of the contractor’s former employees. In Better Financial, the PEO provided similar services to a subcontractor on a construction project. The subcontractor transferred its employees to the PEO to allow the PEO to take over the payroll administration for these individuals. The PEO’s in Better Financial and Tri-State did not provide actual laborers who worked on the construction project as Tradesmen did in this case.
The evidence in this case shows that Tradesmen is not the type of PEO found in Better Financial and Tri-State. Tradesmen supplies its own employees to supplement the labor needed by its clients. These employees have been interviewed, screened, and hired by Tradesmen according to Tradesmen’s procedures and employment criteria. In addition, these employees are also trained by Tradesmen. According to Neuberger’s affidavit, each of the employees for whom Tradesmen billed CSC in connection with the Wal-Mart project was interviewed, screened, hired, and trained by Tradesmen. Tradesmen was not merely supplying administrative services.
We agree with the trial court that Tradesmen supplied labor and that its bond claim was proper and valid. The plain language of the payment bond extends coverage to “all persons or entities as supplying labor, material, services, utilities and equipment in the prosecution of tire work provided for” in the general contract between Merit and Wal-Mart. "Where contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from tire contract itself. [Citation omitted.]” Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480 (2003), rev. denied 277 Kan. 928 (2004). Because Tradesmen was an entity that supplied skilled laborers who were used in the prosecution of the work provided for in the general contract between Merit and Wal-Mart, we determine that Tradesmen should be permitted to recover under the payment bond.
Moreover, the trial court also concluded that even if Tradesmen did not supply labor, it clearly supplied ""services ... in the prosecution of the work” on the Wal-Mart project and thus was entitled to payment under the bond. The defendants, however, contend: ""Tradesmen merely provided services to CSC of an administrative nature, it did not provide any labor or services in the prosecution of the contract work. Tradesmen’s administrative services are of the type and nature of office work, not physical labor.” With this argument, the defendants seem to suggest that the term “services” in the bond means that a person or entity has to provide some physical labor. Even if we were to agree with the defendants’ argument, which we do not, we have already determined that Tradesmen supplied physical labor that was used in the Wal-Mart project.
Furthermore, the payment bond does not restrict the term “services” to physical labor. Because the broad terms used in the payment bond are undefined, we give this clear and unambiguous language its ordinaiy meaning. See American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 740, 658 P.2d 1015 (1983) (if language in insurance policy is clear and unambiguous, it must be taken in its plain, ordinaiy, and popular sense). Here, the defendants’ argument concedes that Tradesmen provided services to CSC. Moreover, we determine that the hiring, training, and paying of employees supplied to the Wal-Mart project constituted “services ... in the prosecution of the work provided for” in the general contract between Merit and Wal-Mart. Therefore, the defendants’ arguments on this issue fail.
Because Tradesmen was a proper claimant under Centennial’s payment bond, the trial court properly granted Tradesmen’s motion for summary judgment and denied the defendants’ motion for summary judgment relating to Count II of Tradesmen’s petition.
Attorney Fees
Finally, in its cross-appeal, Tradesmen argues that the trial court erred in finding that there was “just cause or excuse” for Centennial refusing to pay Tradesmen’s payment bond claim and in denying it attorney fees under K.S.A. 40-256.
K.S.A. 40-256 outlines the circumstances under which a claimant is allowed to recover attorney fees against an insurance company that has refused without just cause or excuse to pay for a loss:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, and including in addition thereto any fraternal benefit society and any reciprocal or interinsurance exchange on any policy or certificate of any type or land of insurance, if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company, society or exchange before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
Under K.S.A. 40-201, the term “insurance company” includes “corporations, companies, associations, societies, persons or partnerships writing contracts of insurance, indemnity or suretyship upon any type of risk or loss.”
Whether an insurer has refused to pay without just cause or excuse is a factual question for the trial court. In refusing to pay a claim, an insurer has the duty to investigate the facts surrounding the claim. If there is a bona fide and reasonable factual ground for contesting the claim, there is no failure to pay without just cause or excuse. An appellate court reviews the trial court’s determination of whether there was just cause to refuse payment and, therefore, justification for denial of attorney fees for an abuse of discretion. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 261-62, 815 P.2d 550 (1991). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Here, the trial court stated that the issues presented raised questions of first impression. Indeed, the parties did not point us to any Kansas cases that addressed the obligation of a surety to a subcontractor of a subcontractor. Moreover, the parties failed to cite any Kansas cases involving a PEO. Based upon our standard of review, we are unable to say that no reasonable person would take the view of the trial court. In declining to award attorney fees to Tradesmen, the trial court did not abuse its discretion because there existed a valid controversy in the case.
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Malone, J.:
Lindon A. Allen pled no contest to one count of aggravated indecent liberties with a child. He appeals his enhanced sentence pursuant to the persistent sex offender statute, K.S.A. 2005 Supp. 21-4704(j). Allen claims the trial court erred by finding his prior juvenile adjudication for aggravated incest constituted a sexually violent crime for the purpose of sentencing him as a persistent sex offender. Allen also claims his enhanced sentence under 21-4704(j) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
On February 20, 2004, Allen was charged with two counts of aggravated indecent liberties with his 4-year-old daughter, In exchange for his no contest plea to Count I, the State agreed to dismiss Count II and recommend tire low number in the appropriate sentencing guidelines grid box. The trial court accepted the plea.
Allen’s presentence investigation report disclosed a 1987 juvenile adjudication for aggravated incest. Due to the prior adjudication, the State sought to have Allen sentenced as a persistent sex offender. Allen responded by filing a motion challenging his criminal history score. Allen argued that his prior juvenile adjudication for aggravated incest did not qualify as a sexually violent crime for the purpose of sentencing him as a persistent sex offender.
The trial court considered Allen’s motion at the sentencing hearing. After hearing arguments from counsel, the trial court found it was clear that Allen’s prior juvenile adjudication for aggravated incest could be determined beyond a reasonable doubt to have been sexually motivated. Accordingly, the trial court concluded that Allen qualified for sentencing as a persistent sex offender. Allen was sentenced to a controlling term of 110 months’ imprisonment. He timely appeals his sentence.
Initially, we will summarily address Allen’s constitutional argument. Allen asserts K.S.A. 2005 Supp. 21-4704(j) creates a departure scheme in which facts not proved to a jury beyond a reasonable doubt are used to exceed the statutory maximum sentence. Accordingly, Allen claims the statute is unconstitutional under Apprendi and Gould.
In State v. Moore, 274 Kan. 639, 654, 55 P.3d 903 (2002), the Kansas Supreme Court unanimously ruled that a trial court’s decision to double an offender’s sentence under 21-4704(j) did not violate Apprendi. Allen acknowledges the Kansas Supreme Court has already decided this issue adversely to his position, but he contends Moore was wrongly decided. However, the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). We have no indication the Kansas Supreme Court is departing from its recent decision in Moore, and, accordingly, Allen’s constitutional argument fails.
We now turn to Allen’s argument that the trial court erred by finding his prior juvenile adjudication for aggravated incest constituted a sexually violent crime for the purpose of sentencing him as a persistent sex offender.
We preface our discussion by noting that our analysis of this issue is largely academic in Allen’s particular case. Allen received a sentence of 110 months’ imprisonment as a persistent sex offender. In computing his presumptive sentence under the sentencing guidelines, Allen’s prior juvenile adjudication for aggravated incest was not scored in his criminal history since this offense was used to enhance the sentence. See K.S.A. 21-4710(d)(ll). If Allen had not been sentenced as a persistent sex offender, his full criminal history would have been scored, which would have placed Allen into criminal history category D. In this event, Allen’s presumptive sentence would have been 89-100 months. Thus, in Allen’s particular case, the enhanced sentence he received as a persistent sex offender was not substantially greater than what his presumptive sentence would have been without the sentence enhancement. Nevertheless, we will address the merits of Allen’s argument.
The core issue on appeal is whether Allen was subject to a sentence enhancement under K.S.A. 2005 Supp. 21-4704(j) as a persistent sex offender. Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the trial court’s interpretation of a statute. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
’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.” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
“While courts must give effect to legislative intent and the plain language of a statute, courts may not ‘ “delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.” ’ [Citation omitted.]” State v. Patterson, 25 Kan. App. 2d 245, 248, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
The legislature is presumed to intend that a statute be construed reasonably so as to avoid absurd or unreasonable results. State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). However, if the language of a criminal statutory scheme creates any reasonable doubt as to its meaning, it must be strictly construed in favor of the accused. State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
Allen’s sentence for his current conviction was enhanced pursuant to K.S.A. 2005 Supp. 21-4704(j), which provides:
“(1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.
“(2) Except as otherwise provided in this subsection, as used in this subsection, ‘persistent sex offender means a person who: (A)(i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A)(i) has at least one conviction for a sexually violent crime, as defined in K.SA. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government; or (B)(i) has been convicted of rape, K.SA. 21-3502, and amendments thereto; and (ii) at the time of the conviction under paragraph (B)(i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government.
“(3) Except as provided in paragraph (2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.”
Under this provision, a criminal defendant can be sentenced as a persistent sex offender if the defendant’s current conviction is for a sexually violent crime and the defendant has at least one prior conviction for a sexually violent crime. Here, there is no question that Allen’s current conviction for aggravated indecent liberties with a child qualified as a sexually violent crime. The issue is whether his prior juvenile adjudication for aggravated incest qualified as a sexually violent crime “as defined in K.S.A. 22-3717 and amendments thereto.” K.S.A. 2005 Supp. 21-4704(j).
K.S.A. 2005 Supp. 22-3717(d)(2) includes a list of specific offenses which are deemed to be per se sexually violent crimes. However, aggravated incest is not listed as a per se sexually violent crime under this statute. Allen points to K.S.A. 2005 Supp. 22-4902(c), which lists specific offenses which are deemed to be sexually violent crimes under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. Aggravated incest is included in this list. Thus, as Allen argues, the legislature knows how to include aggravated incest within the definition of a sexually violent crime when it chooses to do so.
The State argues, and the trial court agreed, that Allen’s prior juvenile adjudication for aggravated incest can be deemed a sexually violent crime under K.S.A. 2005 Supp. 22-3717(d)(2)(L), which includes
“any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this sub-paragraph, ‘sexually motivated’ means that one of the purposes for which tire defendant committed the crime was for the purpose of the defendant’s sexual gratification.”
Under this provision, an offense can be deemed a sexually violent crime if “at the time of sentencing for the offense” it is determined beyond a reasonable doubt to have been sexually motivated. Here, there is nothing in the record which indicates that at the time of Allen’s juvenile adjudication or disposition for aggravated incest, the court made any determination beyond a reasonable doubt that the offense was sexually motivated. However, at Allen’s sentencing hearing in the present case, the trial court examined the juvenile court complaint which alleged that Allen had committed the offense “with the intent to arouse or to satisfy the sexual desires of either the child or the said respondent or both.” Based upon the prior complaint, the trial court found it was clear that Allen’s juvenile adjudication for aggravated incest could be determined beyond a reasonable doubt to have been sexually motivated. Therefore, the trial court concluded that the juvenile adjudication met the definition of a sexually violent crime pursuant to 22-3717(d)(2)(L).
Allen argues that 22-3717(d)(2)(L) was not intended to expand the list of specific sex offenses which are deemed to be per se sexually violent crimes under the statute. As persuasive authority, Allen cites this court’s unpublished opinion in State v. Colter, No. 91,034, filed September 3, 2004. In Colter, the issue was whether the defendant’s prior conviction for misdemeanor sexual battery qualified as a sexually violent crime so that the defendant could be sentenced for his current conviction as a persistent sex offender. Misdemeanor sexual battery is not listed as a per se sexually violent crime under 22-3717(d)(2). However, the State argued that the offense was obviously sexually motivated and therefore fit within the definition of 22-3717(d)(2)(L). This court rejected that argument with the following analysis:
“[T]he wording of K.S.A. 2003 Supp. 22-3717(d)(2)(L) does not suggest that it was intended to expand tire list of per se offenses. If that were the case, the determination of sexual motivation would be made at the time guilt is adjudicated, not at the time of sentencing. The more likely intention of the subsection is to bring within the ambit of sexually violent crimes those offenses which do not necessarily involve sexually motivated acts. For instance, a burglar whose specific intent is to steal has not committed sexually motivated acts, whereas a burglar who enters a dwelling intending to rape the occupant is amenable to a sexually motivated determination. This interpretation is bolstered by the maxim, expressio unius est exclusio alteráis, by which we presume that the legislature’s express listing of crimes that are designated per se sexually violent crimes manifests an intent to exclude other, unlisted sex crimes from the definition of a per se sexually violent crime. [Citation omitted.]” Colter, slip op. at 8.
We agree with this court’s reasoning in Colter. K.S.A. 2005 Supp. 22-3717(d)(2)(L) is not a “catch-all” provision, as argued by the State, to encompass any offense of a sexual nature within the meaning of a sexually violent crime for the purpose of sentencing persistent sex offenders. Instead, the provision was intended to bring within the ambit of sexually violent crimes those offenses which are not necessarily sexual in nature, but have been determined beyond a reasonable doubt at the time of sentencing as sexually motivated under the facts. In any case, the court must malee the determination that the act was sexually motivated “at the time of sentencing for the offense” in order for the act to fit within the definition of a sexually violent crime under 22-3717(d)(2)(L).
Patterson illustrates how an identical provision under the Kansas Offender Registration Act has been interpreted. In Patterson, the defendant pled guilty to residential burglary and theft. The evidence presented to the trial court indicated the defendant had taken women’s underwear in the burglary which the defendant kept in a locked cabinet containing pornographic materials. At sentencing, the trial court noted the burglary carried a “sexual connotation,” found the burglary was sexually motivated, and ordered the defendant to register as a sex offender. 25 Kan. App. 2d at 246-47.
On appeal, the court construed the language of K.S.A. 22-4902(b)(12) (now located at 22-4902[c][14]) which is identical to K.S.A. 2005 Supp. 22-3717(d)(2)(L). The court reasoned that because the defendant’s burglary conviction was determined beyond a reasonable doubt at sentencing to be sexually motivated, the burglary conviction constituted a sexually violent crime for purposes of the registration act. 25 Kan. App. 2d at 251; see also Moore, 274 Kan. at 650-51 (court determined at sentencing that the defendant’s current conviction of kidnapping was sexually motivated, thus fitting the definition of a sexually violent crime under 22-3717[d][2][L]).
The State claims the Kansas Supreme Court “has already addressed a very similar issue” in State v. Wilkinson, 269 Kan. 603, 9 P.3d 1 (2000). In Wilkinson, the defendant pled guilty to two counts of incest, and on appeal he attacked the constitutionality of the sex offender registration requirements under K.S.A. 22-4901 et seq. on due process grounds. In referring to the defendant’s conviction, the court stated, without any analysis, that “Wilkinson’s crime of incest is not one of the crimes enumerated by name in K.S.A. 22-4902, but it is deemed a sexually violent crime under K.S.A. 22-4902(a) and (b)(12) because it was found beyond a reasonable doubt to have been sexually motivated.” 269 Kan. at 606. According to the State, this language from Wilkinson supports its contention that Allen’s prior juvenile adjudication for aggravated incest should also be interpreted as sexually motivated, thereby qualifying as a sexually violent crime for the purpose of sentencing Allen as a persistent sex offender.
Wilkinson is distinguishable because it involved the sex offender registration requirements under K.S.A. 22-4901 et seq., and at the time of sentencing the court found the defendant’s current conviction for incest to be sexually motivated. Allen’s case is complicated by the fact that the trial court found his prior juvenile adjudication for aggravated incest to be sexually motivated for the purpose of sentencing Allen as a persistent sex offender. However, this finding had not been expressly made by the court “at the time of sentencing for the offense” as required by 22-3717(d)(2)(L). Had Allen’s current conviction been for aggravated incest, the trial court could have readily applied 22-3717(d)(2)(L) to determine at sentencing that the act was sexually motivated. However, the trial court erred by attempting to apply the same provision to determine that Allen’s 1987 juvenile adjudication for aggravated incest was sexually motivated.
The elements of aggravated incest as set forth in Allen’s juvenile court complaint do not necessarily equate with the definition of a sexually motivated crime under 22-3717(d)(2)(L). The juvenile court complaint alleged that Allen had committed aggravated in cest “with the intent to arouse or to satisfy tire sexual desires- of either the child or the said respondent or both.” (Emphasis added.) Under 22-3717(d)(2)(L), “ ‘sexually motivated’ means that one of the purposes for which tire defendant committed the crime was for the purpose of the defendant’s sexual gratification.” (Emphasis added.) Arguably, Allen’s juvenile adjudication could have been based on a specific intent to arouse or to satisfy tire sexual desires of another without having personal gratification as a purpose. As this court acknowledged in Colter, “a scenario involving a nonconsensual touching motivated solely by altruism is difficult to perceive.” Colter, slip op. at 8. Nevertheless, this analysis illustrates the due process considerations at play when a court many years later attempts to label a crime sexually motivated without having before it the facts of tire case as a judge would have at the time of sentencing for the offense.
In summary, aggravated incest is not listed as a per se sexually violent crime under 22-3717(d)(2). Also, Allen’s juvenile adjudication for aggravated incest was not determined beyond a reasonable doubt to have been sexually motivated “at the time of sentencing for the offense” as required by 22-3717(d)(2)(L). Accordingly, we conclude the trial court erred by finding Allen’s prior juvenile adjudication for aggravated incest constituted a sexually violent crime for tire purpose of sentencing him as a persistent sex offender.
New people would disagree that the crime of aggravated incest is sexually motivated. However, this does not lead to the conclusion that Allen’s prior adjudication for aggravated incest qualified as a sexually violent crime under K.S.A. 2005 Supp. 22-3717(d)(2)(L). Such an interpretation renders the remaining statutory language meaningless and unnecessary. The legislature has had the opportunity to define aggravated incest as a sexually violent crime under 22-3717, just as it has done under the Kansas Offender Registration Act, but the legislature has failed to do so. In fact, we note that in 1997 the legislature specifically amended 22-4902 to include aggravated incest within the definition of a sexually violent crime for tire purpose of the registration requirements, but the legislature did not similarly amend 22-3717 to include aggravated incest as a sexually violent crime for the purpose of sentencing persistent sex offenders. Perhaps the legislature intended this distinction, or perhaps it was merely an oversight. Nevertheless, this ambiguity must be construed in Allen’s favor. Allen’s sentence as a persistent sex offender must be reversed and the case remanded for resentencing without the application of the sentence enhancement in K.S.A. 2005 Supp. 21-4704(j).
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Rulon, C.J.:
Defendant Ronald Donaldson appeals the district court’s denial of his motion to correct an illegal sentence, contending an incorrect criminal histoiy score was applied to his sentences. We reverse and remand for further proceedings.
The defendant contends the district court improperly dismissed his motion to correct an illegal sentence, arguing the district court applied an incorrect criminal history score to calculate his sentences. The defendant was assigned a criminal history score of B due to Iris prior conviction for robbery, an adult person felony, and 3 convictions for omitting to provide for minor children, which were classified as adult person misdemeanors. The three prior misdemeanor convictions were then scored as an adult person felony under K.S.A. 2005 Supp. 21-4711(a).
The State initially contends the district court lack jurisdiction to modify the defendant’s sentence. Where a question of jurisdiction has been raised, this court must consider the claim, even if raised for the first time on appeal. See Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999).
The State basis its jurisdiction argument on State v. Miller, 260 Kan. 892, Syl. ¶ 2, 926 P.2d 652 (1996), wherein our Supreme Court held:
“After a lawful sentence has been imposed under the Kansas Sentencing Guidelines Act (K.S.A. 21-4701 et seq.) for a crime committed on or after July 1,1993, committing a defendant to the custody of the Secretary of Corrections, the sentencing court lacks jurisdiction: (1) to modify the sentence except to correct ‘arithmetic or clerical errors’ pursuant to K.S.A. 21-4721(i); (2) to consider or reconsider departure from the presumptive sentence; or (3) to modify the sentence by reinstating a previously revoked probation.”
The key to this holding is the term “lawful sentence.” K.S.A. 22-3504(1) provides that a court may correct an illegal sentence at any time. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004) (citing State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 [1997]).
“ ‘The sentencing guidelines are based on two controlling factors: crime severity and criminal history of the defendant.’ State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). Consequently, if either the crime severity level or the criminal history score are in error, a defendant could challenge his or her sentence as being an illegal sentence under K.S.A. 22-3504. [Citation omitted.]” State v. Lakey, 22 Kan. App. 2d 585, 586, 920 P.2d 470 (1996).
By definition, an illegal sentence encompasses a sentence to which the district court assigned an incorrect criminal history to a criminal defendant. Therefore, the district court possessed jurisdiction to consider the defendant’s motion to correct an illegal sentence, and this court possesses jurisdiction to consider a timely appeal from the denial of that motion.
The State further contends that tire defendant is barred from challenging his sentence because he stipulated to his criminal history score at sentencing. A criminal defendant who stipulates to a criminal history score cannot challenge the use of the criminal history score to calculate the sentence because its use has been invited by the defendant’s stipulation. See State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996).
In response, the defendant claims tire right to waive a criminal history score objection is reserved to a defendant. He argues in this appeal that his counsel only acknowledged that the presentence investigation (PSI) report was correct and that the defendant’s criminal history was properly scored in the context of a departure argument. He contends the district court never asked the defendant about his criminal history score. Therefore, the defendant claims he did not invite the error in his criminal history score by stipulation.
In State v. Vanderoort, 276 Kan. 164, 72 P.3d 925 (2003), the Kansas Supreme Court considered a similar claim. Vandervort’s PSI report erroneously listed two Virginia convictions as person felonies rather than nonperson felonies, resulting in a criminal history score of B rather than C. Defense counsel apparently had reviewed the PSI report prior to the sentencing hearing but had been given an amended PSI report with the changes highlighted just prior to the hearing. Defense counsel stipulated to the amended PSI report.
Relying upon the absence of any oral stipulation by Vandervort and the lack of any reasonable opportunity for Vandervort to review the amended PSI report, the Kansas Supreme Court ruled that K.S.A. 21-4721(e) provided authority to consider the merits of Vandervort’s claim, despite any apparent stipulation by defense counsel. 276 Kan. at 177.
Vandervort is distinguishable on its facts. K.S.A. 2005 Supp. 21-4715(c) places an affirmative duty upon a criminal defendant to file a written objection to any error in the proposed criminal history worksheet, specifying the exact nature of the alleged error. In the present case, the defendant received the PSI report well before the sentencing hearing and, presumably, reviewed the PSI report with his counsel. While the district court did not specifically accept an oral stipulation from the defendant at sentencing, die court did specifically fist each crime charged, the applicable criminal history score to be applied, and applicable sentencing range before asking the defendant whether he was aware of any legal reason that sentence should not be imposed. Defense counsel answered for the defendant in the negative.
Generally, a criminal defendant is bound by the tactical decisions of counsel made after proper consultation with the client. See State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (defendant bound by counsel’s waiver of speedy trial when he failed to object); State v. Thomas, 21 Kan. App. 2d 504, 507, 900 P.2d 874 (1995) (defendant bound by counsel’s stipulations to defendant’s ineligibility for sentencing conversion). The defendant was present during sentencing; his silence is equivalent to an endorsement of his counsel’s actions during the hearing.
Nevertheless, the invited error rationale is not applicable when the erroneous information at tire heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant. As the defendant notes in this appeal, the stipulation at issue is not to the factual existence of his prior convictions but to the classification of those prior convictions.
Essentially, the error raised by the defendant in his motion to correct an illegal sentence and in this appeal involves the application of law. As such, no party can properly stipulate to an incorrect application of the law. See Bright v. LSI Corp., 254 Kan. 853, 859, 869 P.2d 686 (1994). Therefore, the defendant’s failure to object to his criminal history score, as required by K.S.A. 2005 Supp. 21-4715(c), merely prevents him from challenging the factual basis for the criminal history classification applied in this case.
The classification of prior out-of-state convictions for criminal history purposes is governed by statute. K.S.A. 2005 Supp. 21-4711(e) provides, in pertinent part:
“An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.”
In the present case, the State relied upon at least two of the defendant’s prior convictions for omitting to provide for minor children in classifying the three prior misdemeanor convictions as a felony. (The only other adult person misdemeanor listed in the criminal history was a 1995 conviction for assault and batteiy in Oklahoma.) In Oklahoma, omitting to provide for minor children, Oída. Stat. tit. 21, § 852 (2002), is classified as a misdemeanor or as a felony, depending upon the circumstances. Subsection A provides:
“Unless otherwise provided for by law, any parent, guardian, or person having custody or control of a child as defined in Section 7001-1.3 of Title 10 of the Oklahoma Statutes who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, monetary child support, medical attendance, payment of court-ordered day care or payment of court-ordered medical insurance costs for such child which is imposed by law, upon conviction, is guilty of a misdemeanor; provided, any person obligated to make child support payments who willfully and without lawful excuse becomes delinquent in said child support payments after September 1,1993, and such delinquent child support accrues without payment by the obligor for a period of one (1) year, or exceeds Five Thousand Dollars ($5,000.00) shall, upon conviction thereof, be guilty of a felony which is punishable in the same manner as any subsequent conviction pursuant to the provisions of this section. Any subsequent conviction pursuant to this section shall be a felony, punishable by imprisonment for not more than four (4) years in the State Penitentiary or by the imposition of a fine of not more than Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment. As used in this section, the duty to furnish medical attendance shall mean that the parent or person having custody or control of a child must furnish medical treatment in such manner and on such occasions as an ordinarily prudent person, solicitous for the welfare of a child, would provide; such parent or person having custody or control of a child is not criminally liable for failure to famish medical attendance for every minor or trivial complaint with which the child may be afflicted.”
As the defendant contends, the Kansas criminal nonsupport statute closely resembles the Oklahoma statute, which provides in part: “Nonsupport of a child is a parent’s failure, neglect or refusal without lawful excuse to provide for the support and maintenance of the parent’s child in necessitous circumstances.” K.S.A. 21-3605(a)(1). Nonsupport of a child in Kansas is classified as a severity level 10, nonperson felony. K.S.A. 21-3605(a)(7).
However, depending upon the underlying circumstances of the Oklahoma convictions, the Kansas statute proscribing endangering a child might also be the most comparable offense. That statute provides, in pertinent part: “Endangering a child is intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” K.S.A. 21-3608(a). Endangering a child is a class A person misdemeanor in Kansas. K.S.A. 21-3608(c).
From this record, we are unable to determine if the prior Oklahoma convictions were properly classified as misdemeanors or felonies, although the Oklahoma journal entries will presumably clarify this point. Further, this court cannot determine whether, under Kansas law, the defendant’s Oklahoma convictions would have been classified as criminal nonsupport of a child, a nonperson felony crime, or as endangering a child, a person misdemeanor crime. This court cannot even determine if the children the defendant was convicted of neglecting in Oklahoma were his own children, which is an element of nonsupport of a child.
As the State contends, generally, the appellant bears the burden of designating a sufficient record from which an appellate court may review the legal issues raised on appeal. Without such a record, this court presumes the action of the district court was proper. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004).
However, in this case, the district court appointed counsel and provided a hearing on the defendant’s motion to correct an illegal sentence. The defendant’s appointed counsel raised the defendant’s objection to the classification of his three prior Oklahoma convictions for omitting to provide for minor children. While defense counsel did not provide any factual details concerning the defendant’s prior convictions, counsel argued tire relevant Kansas statute should be criminal nonsupport of a child under K.S.A. 21-3605.
K.S.A. 2005 Supp. 21-4711(e) provides: “The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.” Even though the objection to the criminal history classification was raised in a motion to correct an illegal sentence rather than at sentencing, tire burden remains upon the State to justify a prior out-of-state conviction’s classification in tire criminal history.
The district court erred in relying upon the defendant’s failure to object to his criminal history classification as a basis for dismissing the defendant’s motion to correct an illegal sentence. Upon remand, the district court should hold a hearing to determine if the prior Oklahoma convictions were properly classified. The State bears tire burden of proof during such hearing.
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Greene, J.:
Maryam Hjersted, surviving spouse of Norman B. Hjersted, petitioned under K.S.A. 59-6a201 to take her spousal elective share of tire augmented estate, thus triggering contentious and complex litigation with her stepson and executor, Lawrence Hjersted, regarding valuation of uncompensated nonprobate transfers to Lawrence and to Norman’s trust, as well as related issues. Maryam appeals several orders of the district court, including (i) the award of $100,000 as executor fee; (ii) the award of $284,330 as executor expenses and attorney fees and costs; and (iii) the reduction by $10,000 of the value of an uncompensated transfer to Lawrence of a limited partnership interest to be included in the augmented estate. Lawrence, executor of Norman’s estate and trustee of Norman’s revocable trust, cross-appeals several orders of the district court, including (i) the court’s valuation of an uncompensated nonprobate transfer to him of a limited partnership interest to be included in the augmented estate; (ii) the inclusion in the augmented estate of a portion of the proceeds of the sale of certain realty in Nebraska; and (iii) the court’s valuation of certain realty in Missouri to be included in the augmented estate. We analyze each issue framed, affirming the district court on all issues except Lawrence’s issue (in), where we reverse and remand for further proceedings.
Factual and Procedural Background
Norman J. Hjersted died testate April 28, 2001, survived by his wife of nearly 20 years, Maryam; his son bom of that marriage, Timothy; and three children from a prior marriage, Lawrence, Karen, and Ingrid. At some time before his death, Norman apparently visited his attorneys and expressed a desire to disinherit his wife. The following transactions occurred during the last few years of Norman’s life, each of which spawned issues for the probate court and this appeal following Norman’s death:
The Restated Norman B. Hjersted Revocable Trust (the Trust).
The Tmst was created in 2000 by amendment and restatement of a prior tmst agreement created in 1998. The will “poured over” the probate assets into the Tmst. At the time of Norman’s death, Lawrence was trustee.
Hjersted Family Limited Partnership (HFLP).
HFLP was created in 1997, and the initial partners were the decedent, who owned a 2% general partnership interest and a 96% limited partnership interest, and Lawrence, who owned a 1% general partnership interest and a 1% limited partnership interest. The decedent transferred all of the outstanding shares of his company, Midland Resources Inc. (MRI), to the partnership, and these MRI shares were the sole asset of the partnership. On March 1, 2000, decedent and Lawrence entered into a part gift/part sale transaction whereby decedent transferred to Lawrence his 96% limited partnership interest in HFLP.
Nebraska realty/Florida orange grove.
Norman owned a life estate in certain realty in Richardson County, Nebraska, and Lawrence owned the remainder interest. In September 1999, under purported “threat” of condemnation, the property was deeded to the United States Army Corps of Engineers for $292,950. The price included both the life estate and the remainder interest, but the entire proceeds were deposited into Lawrence’s bank account. Lawrence later contributed these proceeds toward the purchase of a Florida orange grove as a like-kind investment. At the time of this purchase, Norman wrote to Lawrence: “It is my intent and has always been that you retain ownership of the Florida Farm. I would like and need some of the profits but not to exceed 5%/year of value of money received from the Corp. of Engineers.”
St. Louis Realty.
At some unspecified time prior to his death, Norman conveyed to the Trust his interest in St. Louis, Missouri, realty. The parties stipulated that this property was an asset of tire Trust and, therefore, part of the augmented estate, but the parties disagreed as to its value. In March 2000, the property was leased to MR.I for a term of 10 years, and the lease contained a provision requiring the tenant to purchase the property at the conclusion of the term for a price to be determined from a formula in the lease agreement.
Following Norman’s death, Maryam filed a petition seeking her spousal elective share of Norman’s estate pursuant to K.S.A. 59-6a201 et seq. Subsequently, the district court admitted the will to probate and appointed Lawrence executor of the estate. Although the parties were able to resolve numerous issues necessary to determine tire value of the augmented estate under K.S.A. 59-6a203, unresolved issues prompted a lengthy and complex trial before the district court in June 2003.
Ultimately, after modifications to its original orders, the district court calculated the total value of the augmented estate to be $4,548,333. The court awarded Lawrence $100,000 as executor fee, and awarded his attorneys $233,602.75 in fees, $18,935.69 in costs, and $31,792.03 in expenses. Based upon the length of the marriage, Maryam’s elective share percentage under the statute was 50%, and the court determined that her unsatisfied elective share was $1,175,322.
Overview of the Kansas Spousal Elective Share Statutes
In 1994, the Kansas Legislature amended the Kansas Probate Code to incorporate a comprehensive spousal elective share scheme patterned after the Uniform Probate Code. See K.S.A. 59-6a201 et seq. The statutory scheme gave the surviving spouse the right to take an elective share amount equal to the value of an elective share percentage of the augmented estate, the percentage determined by a statutory table based on length of the marriage. K.S.A. 59-6a202. For purposes of determining the augmented estate, certain uncompensated nonprobate transfers to others are included, including certain of those during the 2-year period next preceding the decedent’s death. K.S.A. 59-6a205 and K.S.A. 59-6a207.
The public purpose of the statutory scheme is to prevent disinheritance of the surviving spouse. Moreover, the scheme is based on two theories of the marriage relationship: the “partnership theory” and the “support theory.” The partnership theory of marriage recognizes that both partners have contributed to the accumulated estate, whereas the support theory recognizes that during their joint lives, spouses owe each other mutual duties of support, and these duties continue in some form after death in favor of the survivor, as a claim on the decedent spouse’s estate. A comprehensive discussion of the genesis and purpose of the Kansas scheme can be found in In re Estate of Antonopoulos, 268 Kan. 178, 180-84, 993 P.2d 637 (1999).
In a situation such as that presented here, upon the election by a surviving spouse, the statutory scheme requires analysis of non-probate transfers to determine whether assets should be “pulled back” or included in the augmented estate, together with valuation of those assets at date of transfer. K.S.A. 59-6a205 to K.S.A. 59-6a208. Once the augmented estate has been composed generally from the net probate estate and the eligible uncompensated non-probate transfers, the surviving spouse is entitled to the elective share percentage shown in the statutoiy table. K.S.A. 59-6a202 to K.S.A. 59-6a203. Award of fees and other administrative expenses reduce the augmented estate for these purposes. K.S.A. 59-6a204.
Standards of Review
This appeal presents numerous questions requiring construction and application of Kansas statutes. These questions are entitled to de novo review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). To the extent that the district court made fact findings, particularly as they regard valuation issues, we review those findings to determine whether they are supported by substantial competent evidence. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Substantial evidence is evidence possessing both relevance and substance which furnishes a substantial basis of fact from which tire issues can reasonably be resolved. 275 Kan. at 318. We do not weigh conflicting evidence, pass on tire credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
Lawrence urges us to review the district court’s valuation conclusions for an abuse of discretion, citing In re Marriage of Cray, 254 Kan. 376, 867 P.2d 291 (1994). Cray, however, involved the propriety of the district court’s selection of a particular valuation date for marital assets in a divorce proceeding. We do not believe that the discretionary selection of a valuation date in a divorce proceeding is parallel to the complex valuation issues presented in a probate matter, and we decline to adopt an abuse of discretion standard of review for the valuation issues herein.
Attorney and executor fee determinations in probate matters are reviewed for an abuse of discretion. In re Estate of Somers, 277 Kan. 761, 89 P.3d 898 (2004).
Did the District Court Err in Determining the Value of the Uncompensated Nonprobate Transfer of the HFLP Interest to Lawrence for Purposes of Inclusion in the Augmented Estate?
Lawrence appeals the district court’s valuation of the 96% interest in HFLP conveyed to him in March 2000 by his father. He argues that the district court employed “fair value” rather than “fair market value” and, accordingly, failed to consider or apply discounts for lack of marketability and lack of control that were inherent in his limited partnership interest. Maryam maintains that there is no evidence to demonstrate the district court employed any valuation other than fair market value and that the court’s refusal to consider such discounts was appropriate based on the absence of her consent to Norman’s transfer of the interest to Lawrence.
Details of the transaction are essential to our analysis. The March 2000 transaction was achieved partially by gift and partially by sale. The gift portion consisted of a transfer of that extent of the HFLP limited partnership interest having a fair market value of $675,000; this was the maximum transfer without incurring gift tax under the Internal Revenue Code. The remainder of the limited partnership interest was purchased by Lawrence, by a down payment and promissory note in amounts to be determined by an appraisal of tire interest. Because the sole asset of the limited partnership was 100% of the MRI stock, the appraisal required by this agreement first determined the stock to be worth $4,500 per share, but then discounted that value by a total of 32.5% to account for the restrictions imposed upon owners of a limited partnership, including lack of marketability and lack of control. Lawrence urged the court to add the value of only the gift portion of the transaction ($675,000) to the augmented estate.
In contrast, Maryam urged the court to adopt her appraiser’s value of the MRI stock as of March 1, 2000, which reflected a discount of 10% for lack of marketability, and to include the full value of this stock (without further discounts attributable to limited partnership holding) in calculating the amount of the transfer, a total of 96% of $2,660,000, or $2,553,600. Thus, reducing the value by consideration received (the promissory note [$743,914] and down payment made by Lawrence [$39,150]), Maryam urged the court to add $1,770,536 to the augmented estate by reason of the uncompensated portion of the nonprobate HFLP conveyance in March 2000.
With one caveat, the district court adopted Maryam’s calculation of the value of the transfer, finding that although the HFLP “was a valid and existing limited partnership at the time of the gift . . . and continues to be so,” the entire value of the limited partnership interest (i.e., without discounts for control or marketability) must be included in the augmented estate because Maryam did not consent to the transfer. The court agreed with Lawrence, however, that K.S.A. 59-6a205(c)(3) required tire court to reduce the amount of this uncompensated transfer by $10,000.
Lawrence initially claims that the district court utilized an incorrect standard of value in computing the value of the HFLP interest. He argues that the district court applied the concept of “fair value” rather then “fair market value.” We agree with Mar-yam, however, that there is nothing to indicate the court used anything other than a fair market value standard. In fact, we find nothing in the record to suggest that any issue of value standard was addressed before the district court, and finding no preservation of an issue in this regard, we decline to analyze this argument further. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). We note, however, that the crux of Lawrence’s argument regarding applicability of certain discounts in the valuation process was preserved and will be addressed below.
Lawrence next argues that it was error for the court to focus on lack of consent in determining whether discounts inherent in limited partnership interests should be ignored. He argues:
‘AVhy is consent an issue? The only relevant issue under the statute is the value of the gift. K.S.A. 59-6a205(c). Certainly, if the surviving spouse gives written consent, then the effect under the spousal election law is that the gift is not considered to be a part of the augmented estate, even if die gift was made within two years of the testator’s death. See K.S.A. 59-6a208(a). For gifts that are pulled back into the calculation of the augmented estate pursuant to K.S.A. 59-6a205(c), however, the task for the court is to determine the value of the gift, not to selectively apply differing valuation principles for tire gifted interest based on whether or not tire surviving spouse consented to the gift.”
We agree with Lawrence that the trial court erred in its exclusive focus on the lack of consent to the transfer. The proper focus was to determine the value “at the time that the right, interest, or power terminated.” See K.S.A. 59-6a205(c)(1). Under K.S.A. 59-6a205 and K.S.A. 59-6a207, consent is irrelevant, and the paramount consideration is to value the “property” at the date of the nonprobate transfer. Here, the transfer was a 96% limited partnership interest in HFLP on March 1, 2000. The value of this property interest must be included in the augmented estate to the extent that it was not supported by consideration.
On the question of valuation of this interest, there was competing evidence on the value of the MRI shares held by the partnership. The district court weighed the evidence and accepted the appraisal presented by Maiyam.
“[A]fter analysis of the written reports submitted by both experts and weighing the testimony provided by both experts, that the opinion of [Maryam’s appraiser] is better supported (in particular with regard to use of more recent data concerning the increase in pre tax income in early 2000, the on sight investigation, and the inherent bias to minimize value by [the original appraisal] in performing the task hired for) and the court finds that the value of 500 shares of Midland Resources Inc. to be $2,660,000.00.”
We conclude that there is substantial competent evidence to support this conclusion, leaving only the question whether the court’s apparent misfocus on the MRI shares rather than the limited partnership interest resulted in error, particularly because of its disregard of discounts for lack of control and marketability purportedly inherent in the fact that the stock was held in a limited partnership.
On this question, we begin by analyzing the result of the transaction. After receiving the 96% limited partnership interest in March 2000, Lawrence owned a 97% limited partnership interest and a 1% general partnership interest. The remaining 2% general partnership interest had already been conveyed to the Trust or was headed there as a result of the “pour-over” provisions of the will; accordingly, the entirety of the partnership interests was unified in Lawrence, either individually or in his capacity as trustee.
Discounts for lack of control and lack of marketability were unnecessary under these circumstances for several reasons:
• Discounting individual share holdings injects into the appraisal process speculation on the various factors which may dictate the marketability of such holdings. Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1145 (Del. 1989);
• Control and marketability discounts are not appropriate when the purchaser is either the majority shareholder or the corporation itself. Arnaud v. Stockgrowers State Bank, 268 Kan. 163, Syl. ¶ 3, 992 P.2d 216 (1999). Similarly, when the result of the transaction unifies the interests of a partnership in the same individual, albeit as an individual and a trustee, such discounting is illusory;
• Where the sole asset of the partnership is corporate stock that has already been discounted for lack of marketability, no further discount is appropriate when valuing the partnership interests because the partnership did not perform a management function for such asset. See Estate of Bongard v. Commissioner, 124 T.C. 95, 126-29 (2005) (transfer of stock to a limited partnership does not satisfy bona fide sale exception to 26 U.S.C. § 2036[a] [2000]);
• Where, as here, the artificiality or illusoiy nature of the partnership entity is manifest by its disregard in practice, including illusory capital contributions, lack of any filing of state or federal partnership tax returns, MRI dividends paid directly to Lawrence and Norman rather than the entity, and charter forfeiture by the State, the separate legal existence of the partnership entity at death does not require discounting that might otherwise be appropriate in valuing partnership interests. See Estate of Thompson v. C.I.R., 382 F.3d 367 (3d Cir. 2004); Estate of Reichardt v. Commissioner, 114 T.C. 144 (2000); Estate of Morton B. Harper, 83 T.C.M. (CCH) 1641 (2002); Estate of Dorothy Morganson Schauerhamer, 73 T.C.M. (CCH) 2855 (1997) (ah of which hold that where a decedent’s relationship to transferred assets remains the same before and after transfer, the assets transferred are returned to gross estate for estate tax purposes).
• Recognition of discounting under these circumstances could encourage the creation of layer's of illusory ownership for nonprobate transfers, each with the potential for additional discounting, and all for the purpose of insulating the true value of assets transferred, in furtherance of a scheme to disinherit a spouse. Such encouragement would be counter to the legislative purpose of the Kansas spousal elective share statutes. See In re Estate of Antonopoulos, 268 Kan. 178, 181-82, 993 P.2d 637 (1999); Ackers v. First National Bank of Topeka, 192 Kan. 319, 332-33, 387 P.2d 840 (1963).
Although the district court erred in disregarding the proposed discounts due to lack of spousal consent, we may affirm where such disregard was appropriate for other reasons. See Hall v. Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002).
The parties raise two related issues regarding the valuation of the HFLP transaction:
(1) Maryam challenges the district court’s deduction of $10,000 from the valuation of the partnership interest for purposes of augmentation, and she claims there were additional transfers of $10,000 that should have been considered. We reject this argument, concluding that in the deducting this $10,000, the district court did no more than follow K.S.A. 59-6a205(c)(3) in including the value of property transferred only “to the extent that the aggregate transfers to any one donee in either of the two years exceeded $10,000.” (Emphasis added.) Claims to consider additional nonprobate transfers were not preserved below.
(2) Lawrence challenges the district court’s failure to consider the liability of MRI created by a deferred compensation agreement between Norman and MRI that was dated March 8, 2000. We reject this argument, concluding that the statute required valuation of the HFLP interest on the date of the transfer, March 1, 2000. Despite evidence that the compensation agreement was intended to be a part of the transaction, the district court found to the contrary, and we decline to reweigh the evidence or redetermine the underlying question of fact. See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. at 775.
For all of the reasons stated, we affirm the district court’s valuation of the HFLP transfer and the resulting addition of $1,760,536 to the augmented estate.
Did the District Court Err in Including in the Augmented Estate a Portion of the Proceeds from the Sale of the Nebraska Realty, Based on Norman’s Life Estate Therein?
Lawrence next challenges the district court’s decision to include in the augmented estate a portion of the proceeds from the sale of Nebraska realty, arguing that the forced nature of the sale, together with the reinvestment agreement, did not “separate the life estate from the remainder [estate].” Lawrence argues that the reinvestment of proceeds from the sale into the Florida orange grove with the understanding that Norman would have “5%/year” profits should limit any inclusion of proceeds in the augmented estate to tire extent of such unpaid profits, or $23,478. In contrast, Maryam argues and the district court concluded that the augmented estate should include a portion of the proceeds of sale, based upon actuarial tables using Norman’s age at the time of transfer and an appropriate interest rate, amounting to $137,393.55. The parties stipulated to these competing values, framing only the question of which conceptual approach was correct.
During the bench trial, the district court ruled from the bench that the only evidence of a reinvestment agreement, a handwritten memo from Norman expressing his desire for 5% profits from the reinvestment, was not an enforceable agreement.
“That’s a memorandum of what they discussed, but it’s not an agreement. Agreement requires consideration and a contract signed by both parties, and it’s not been signed by both parties. It’s signed with Mr. Hjersted as to what he expects, so the Court finds that’s not an agreement. No written agreement.”
We agree. A careful reading of the handwritten memo reveals that it was nothing more than an expression of Norman’s desire to receive a portion of the profits from the Florida orange grove. It did not speak to the actual disposal or division of the proceeds from the sale of the Nebraska property. Moreover, no payments were ever made to Norman by Láwrencé, based upon the memo. Lawrence’s basis for a stipulated amount of unpaid profits to be included in the augmented estate is unsupported by any enforceable agreement.
Lawrence argues that Maryam’s conceptual approach is legally flawed, because “the law affirmatively prohibits the district court from separating the life estate from the remainder as part of a forced sale.” Lawrence supports this statement with the following quote from treatise law:
“When not required by the exigencies of the situation, the separation of life estates from estates in remainder, by estimating the values of the former and paying such values to the life tenants, constitutes an unnecessary and therefore unauthorized infringement upon the testator’s intention. Hence, in the absence of some overpowering necessity, the court has no power to direct the separation of tile life estate from the estate in remainder by estimating the value of the former and paying that value to the life tenant.” 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 105, Practice Guide, p. 296-97 (2000).
Lawrence’s quotation and associated argument are a bit misleading, however, given that the treatise section begins with the caveat: “When the entire interest in real estate is sold by court order . . . .” (Emphasis added.) In fact, the cited treatise expressly notes that “[t]he judicial or nonjudicial character of the sale greatly affects whether a fife tenant is entitled, or may be compelled, to receive from the proceeds of a sale of the property which was subject to his or her estate.” 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 104, p. 295 (2000). The treatise then fully supports a division of the hfe estate interest when there has been a nonjudicial sale:
"When a life tenant and remainderman unite in a nonjudicial sale of property, without agreeing as to a division of disposal of the proceeds, the life tenant is entitled to receive, absolutely, from such proceeds the estimated value of his or her estate computed as of the time of the sale.” 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 107, p. 299 (2000).
Notwithstanding the district court’s characterization of the sale as “forced,” we note Lawrence’s admission at trial that the sale was entirely voluntary.
“The Army Corp of Engineers came to me asking me if I wanted to sell this property. I didn’t have to sell it. I got my dad’s approval and he signed a document which I don’t have, but that was prior, and that document then bound us. At the time we did that, I didn’t know that — I didn’t know that he would get a division of that. I didn’t know that until after we were already bound to do it.” (Emphasis added.)
The sale of the Nebraska realty was clearly not a judicial sale, and based upon this admission by Lawrence, it was not truly a “forced” sale either. We adopt the rule set forth above as applicable, that when a life tenant and remainderman unite in a nonjudicial sale of their property, the life estate is entitled to receive the estimated value of his or her estate at the time of sale. We understand that this is precisely what Maryam’s approach was intended to achieve.
Given the stipulation as to the numerical calculation, we decline to examine the amount with more precision, and we affirm the district court’s adoption of Maryam’s approach together with the resulting inclusion of $137,393.55 in the augmented estate.
Did the District Court Err in Its Valuation of the Missouri Realty for Purposes of Inclusion in the Augmented Estate ?
Lawrence next challenges the district court’s valuation of Missouri realty on which MRI operates a chemical plant. The properly was deeded to the Trust by Norman prior to his death, so the only issue presented to the district court was how the properly should be valued for purposes of inclusion in tire augmented estate.
At trial, Lawrence presented evidence of an appraisal of the realty conducted at his request that stated the fair market value of this property was $250,000 at the date of Norman’s death. Lawrence also presented evidence of various environmental problems associated with this property, but the appraisal did not consider such problems and it is not clear that Lawrence sought further discounts to the appraised value due to such problems. In any event, Lawrence contends oh appeal that his appraisal was the sole evidence of fair market value and that the district court erred in concluding otherwise.
Maiyam did not present appraisal evidence as to value of this property, but instead relied solely upon monetizing a lease agreement for the property between Norman as landlord and MRI as tenant. According to its terms, MRI was required to pay $5,000 per month to Norman during a 10-year term concluding in March 2010. At termination, the lease provided that the tenant was required to purchase the property at the greater of (i) 10 times annual rental; or (ii) fair market value determined by appraisal. This purchase requirement expressly stated that any such appraisal “not take into account any environmental contamination associated with the Real Estate.” Given this lease, Maiyam proposed that valuation be based upon the balance of rental payments and 10 times the rental rate, both discounted at 6%, the rate issued by the Internal Revenue Service for federal income tax purposes for April 2001 under § 7520 of the Internal Revenue Code (the § 7520 rate). See Rev. Rui. 2001-17 and 26 U.S.C. § 7520 (2000). The revenue ruling established the rate “for determining the present value of an an nuity, an interest for life or a term of years, or a remainder or reversionary interest.”
The district court rejected Lawrence’s appraisal and adopted Maryam’s approach to value of this property:
“The court rejects the executor’s request to use the appraised value, as the lease creates greater value to the decedent and his successors, than that of the present fair market value; without the lease, the court would have used appraised value. There was no evidence presented to suggest that the terms of the lease would not be complied with and the court believes the amounts contracted to be paid, would in fact be paid, thus creating a different and higher value than fair market value. The fact that there may exist environmental contamination associated with the property does not impact the contractual obligation to pay the terms of the lease, and in light of the profitability and appraised value of Midland, these concerns did not impact on the court[’]s beliefs and findings.
“Further as the lease creates two obligations to pay the decedent and his successors, the court accepts the arguments of the surviving spouse that the court should bifurcate its approach to the value of the real estate in St. Louis, and thus finds the value of the lease is $315,074.30 and the value of the ‘put right’ at $358,521.36.
“The total value of the St. Louis real estate is $673,595.66, to be added to the [K.S.A.] 59-6a204 net probate estate.”
At the outset, we agree with the district court that Lawrence’s appraisal must be rejected. The appraisal states that.“[t]he property is reportedly involved in a corporate lease, and this lease is not considered to be arms length and it was not considered in the valuation of the property.” This statement conflicted with the court’s findings that “the lease agreement was in full force and effect on the date of decedent death, and remains so today” and that “[tjhere was no evidence presented to suggest that the terms of the lease would not be complied with.”
Given these fact-findings, together with the significant remaining term of the lease, the viability of the tenant, and the provision requiring purchase at termination, it simply defies logic to disregard the lease’s impact on the value of this property. (We note that the appraiser’s failure to analyze the effect on value of the terms and conditions of the lease may also violate generally accepted appraisal practice. See Appraisal Standards Board, Uniform Standards of Professional Appraisal Practice, Standards Rule l-4(d) [2001 ed.]). We view the district court’s criticism of the appraisal and the court’s refusal to adopt or further consider Lawrence’s appraisal conclusion as grounded in a credibility determination, and we decline to disturb the court’s conclusion in this regard. See Oshman, 275 Kan. at 775.
Even more problematic, however, is Maiyam’s reliance on the 26 U.S.C. § 7520 (2000) rate for purposes of capitalizing revenue streams and discounting terminal purchase price under the MRI lease. We agree with authorities cited by Lawrence regarding the impropriety of employing the § 7520 rate for tírese purposes. For example, the tax court has stated:
“A leasehold interest is the product of an agreement providing for a lessor to receive payment for a lessees’s use of property. Valuation of the resultant payment stream typically relies upon an income capitalization approach to discount the rental installments to present value. Factors considered in calculating an appropriate capitalization rate include the nature of the property, the positive and negative physical attributes of the property, the term of die lease, the market rate for rent for similar properties, and any risk factors that could affect receipt of payments.” Estate of Gribauskas v. Commissioner, 116 T.C. 142, 153 (2001), rev'd on other grounds 342 F.3d 85 (2d Cir. 2003).
Although we agree that the terms and conditions of the MRI lease were crucial to an accurate valuation of the Missouri realty, we are unable to determine the propriety of the district court’s decision to apply the § 7520 rate for purposes of capitalizing the income stream or discounting the terminal purchase value. In fact, tire record and the court’s journal entries are devoid of the detailed calculations, making it impossible for us to provide meaningful appellate review. See Burch v. Dodge, 4 Kan. App. 2d 503, 506-07, 608 P.2d 1032 (1980).
We conclude that neither party to the proceeding provided substantial competent evidence of the value of the Missouri realty and that the court’s adoption of Maiyam’s approach to valuation is not sufficiently supported or detailed for appellate review. For all these reasons, we are compelled to reverse the district court’s valuation of the Missouri realty and remand for further proceedings to determine the fair market value of this property at the date of Norman’s death with due regard for all terms and conditions of the MRI lease.
Did the District Court Err in Awarding Executor and Attorney Fees and Costs?
The final issue in this appeal is Maryam’s challenge to the district court’s award of executor and attorney fees and costs. Generally she contends that the fees were either inadequately documented, unreasonable, or inappropriate in light of Lawrence and his attorneys’ performance of duties unrelated to the interests of the estate.
At the posttrial motions hearing, the parties extensively litigated the propriety of this award. Lawrence testified in some detail about the various duties he performed on behalf of both the estate and the Trust as well as the impact those duties had on his personal and professional life. Additionally, Lawrence testified about his numerous trips to Kansas that were associated with the administration of the estate; for support, Lawrence submitted a copy of his counsel’s itemized billing record with the dates of Lawrence’s participation highlighted. The court also admitted a document into evidence estimating from the information contained in the billing record that Lawrence spent 197.6 hours providing services as executor through July 31, 2003. Lawrence conceded, however, that he did not keep a log of the time he spent performing estate or trust duties. Lawrence testified he arrived at his requested sum of $100,000 by estimating both that the estate administration would wrap up by the end of December 2003 and that his services were worth approximately $33,000 per year. When asked whether he believed the sum of $100,000 represented fair compensation for the duties he performed as executor, Lawrence responded, “I think it’s a bargain.”
In contrast to the documentation for executor fees, the attorney fee request was supported by a 57-page detailed billing, reflecting date of service, timekeeper, hours spent, rate, and detailed description of services provided. The hourly rates of timekeepers servicing the estate ranged from $45 (presumably paralegal services) to $180.
The district court’s comments from the bench illuminate its rationale for the fee awards. With regard to the executor fee, the court stated:
“[Lawrence] has a lot of responsibilities and spent a lot of time and the Court believes that, while [Maryam’s counsel] has pointed out that, you know, trying to account for hours he has failed to do, but I’m not expecting of that, I really think the Court looks at the overall position that he was placed into, the trust he was given by [Norman], the responsibilities given to him, I think he has earned a fee of; $100,000 is warranted under the circumstances. . . . Well I’m not going to try to suggest that I am basing this on x-number of hours that he spent on it, I just know that he spent an awful lot of time, that he was invested with a lot of responsibility and that should be compensated and when you consider the length of time these proceedings have gone, the complexity of the issues, the involvement he had obviously with the number of hours he spent dealing with lawyers, accountants, appraisers, etcetera, travel; the court believes he is justified not by any percentage, not by any hourly rate, but just by the overall complexity, time spent and responsibility level.”
With regard to attorney fees and costs, the court stated:
“[T]he Court believes that even while there may have been some blending and some overage and overlapping, the Court still believes that the fee is not unconscionable, the request and that it is in all or in part related to the estate and therefore, the court denies the request to reduce the fee as [Maryam’s counsel] has suggested.”
Again, the crux of Maryam’s argument is that the district court erred in awarding the requested executor and attorney fees because the services rendered were not confined to the administration of the estate. For support, Maryam correctly states that an allowance of fees is inappropriate when a party pursues litigation for his or her personal benefit rather than for that of the estate and is unsuccessful in those endeavors. See In re Estate of Somers, 277 Kan. 761, 773, 89 P.3d 898 (2004); Householter v. Householter, 160 Kan. 614, Syl. ¶ 2, 164 P.2d 101 (1945).
Pursuant to the probate code, every fiduciaiy is “allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable.” K.S.A. 59-1717. An executor qualifies as a fiduciary of the probate estate. K.S.A. 59-102(2) and (3); In re Estate of Petesch, 31 Kan. App. 2d 241, 244, 62 P.3d 674 (2003). Accordingly, an executor owes a duty to the estate as a whole rather than to each individual heir. 31 Kan. App. 2d at 244. In allowing an executor’s claim for compensation, a district court must find that the services rendered were reasonably necessary for the proper administration of the estate. 31 Kan. App. 2d at 244-45. “Services provided or expenses incurred solely to benefit one or more of the heirs or beneficiaries to the detriment of or without any benefit to the estate are not properly compensable or reimbursable from the estate assets.” (Emphasis added.) 31 Kan. App. 2d at 245.
Mindful that we review these awards for an abuse of discretion, we simply cannot conclude that either the executor fee or the attorney fees were unreasonable. The record demonstrates Lawrence spent a considerable amount of time in the past 5 years tending to matters involved in the administration of Norman’s estate. Although Lawrence performed services in various capacities, one cannot conclude he provided those services “solely to benefit one or more of the heirs or beneficiaries to the detriment of or without any benefit to the estate.” (Emphasis added.) Petesch, 31 Kan. App. 2d at 245. Moreover, even if one could establish that some of the efforts were more beneficial to Lawrence or the Trust than to the estate, the parties have not proposed and we decline to require any precise formula that would accurately segregate, allocate, or otherwise treat differently such services from those performed exclusively for the estate.
We specifically reject Maryam’s suggestion that all fees be prorated based upon the amount and source of assets ultimately included in the augmented estate, because the raw dollar value of an asset is no rehable measure of services that were reasonably necessary to properly administer that asset.
Given both the complex circumstances involving the administration of Norman’s estate and the nature of the duties imposed upon Lawrence, the district court’s view of services performed by the executor and his attorneys was reasonable. To this end, Maryam’s arguments on appeal are troubling, in that they appear to disregard the inherent overlap in duties imposed upon Lawrence. Moreover, she casts a negative shadow over Lawrence’s decision, as executor, to defend the estate against her spousal election claim, characterizing Lawrence’s actions as having been “done in an effort to advance the interests of recipients of non-probate transfers from the decedent.” Although, undoubtedly, this probate matter became contentious, Maiyam’s characterization of Lawrence’s underlying intentions in defending against her election claim is unsubstantiated in the record.
From a review of the extensive record, and based on the district court’s reasonable characterization of the nature of services performed, we conclude the district court did not abuse its discretion in awarding and deducting from the probate estate the executor fee, attorney fees, costs, and expenses pursuant to K.S.A. 59-6a204.
Summary and Conclusion
The district court is to be commended for an overall fair and insightful resolution of complex factual and legal issues presented by this probate matter. We affirm the district court’s conclusions regarding the valuation and inclusion in the augmented estate of Lawrence’s HFLP interest, Norman’s life estate in the Nebraska realty, and the awards of executor and attorney fees, costs, and expenses. We reverse only the district court’s valuation of the Missouri realty and remand for further proceedings consistent with this opinion.
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Brazil, J.:
Steve Hammer and Ron Howe appeal the district court’s decision to grant the summary judgment motions of Roger Morris d/b/a Morris Cattle Company and Auction Service (Morris), Nick Hunt d/b/a Clan Farms, Inc. (Hunt), IBP Foods, Inc., now known as Tyson Fresh Meats (Tyson), and Farm Bureau Management Corporation d/b/a BIC Catde (BIC) in their action for conversion of catde and the denial of the appellants’ motion for partial summary judgment. The district court found that the entrustment doctrine pursuant to K.S.A. 84-2-403 protected these appellees. We affirm the court’s denial of Hammer and Howe’s motion for partial summary judgment and reverse and remand the summary judgment granted to the appellees.
Steve Hammer and Ron Howe filed a petition in chapter 61, limited actions, against Kevin Thompson, Morris, Hunt, and Tyson. The petition stated that Hammer and Howe placed 150 breeding heifers with Thompson for grazing on pasture land. Hammer and Howe alleged that Thompson transferred the cattle to Morris for $131,750, thus converting the cattle for Thompson’s own use and purpose. Morris then transferred the cattle to Hunt who transferred the cattle to Tyson. Hammer and Howe alleged that all defendants were jointly and severally liable for the conversion of the cattle.
Tyson raised the affirmative defenses of the entrustment doctrine and buyer in the ordinary course of business in its answer. Tyson also cross-claimed against Hunt for indemnification.
In his answer, Morris admitted that he gave Thompson $83,188 for 150 head of cattle. Morris specifically denied that he converted the cattle. He claimed he was a buyer in the ordinary course of business and that Thompson was a merchant under the Uniform Commercial Code (UCC). Therefore, the entrustment doctrine barred the claims.
Thompson did not answer the petition, and a default judgment of $131,750 was entered against him.
Hammer and Howe filed an amended petition on January 29, 2004. BIC was added as a defendant. The petition alleged that Morris transferred the cattle to Hunt through BIC and that BIC also converted the cattle.
In his answer, Hunt raised the defense of the entrustment doctrine and buyer in the ordinary course of business. Hunt raised a cross-claim against BIC for indemnification. BIC also raised the defenses of entrustment and buyer in the ordinary course of business. BIC filed a cross-claim against Morris for indemnification.
BIC and Tyson filed a joint motion for summary judgment, arguing that they were protected from liability by the entrustment doctrine found in the UCC. Hunt filed a motion for summary judgment, incorporating BIC and Tyson’s memorandum of law and requesting summary judgment pursuant to the entrustment doctrine. Morris also filed a motion for summary judgment based on the entrustment doctrine. Hammer and Howe moved for partial summaiy judgment against all defendants on the issue of liability.
The district court adopted the uncontroverted facts set forth by the moving defendants and concluded as a matter of law that the entrustment doctrine applied to the case. The district court found that Thompson was a merchant and that Morris was a buyer in the ordinary course of business pursuant to the entrustment doctrine. Therefore, Morris and all subsequent purchasers obtained and passed good tide to the cattie. The district court granted the defendants’ motions for summary judgment and denied Hammer and Howe’s motion for partial summaiy judgment. The cross-claims were dismissed as moot.
Hammer and Howe timely appeal.
“ ‘ “Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
The filing of cross-motions for summaiy judgment does not obligate a trial court to enter summary judgment. Rather, the trial court must independently determine whether a genuine issue of material fact exists. 73 Am. Jur. 2d, Summary Judgment § 43, pp. 684-85.
Hammer and Howe’s motion for partial summary judgment
We have jurisdiction to consider the denial of Hammer and Howe’s own summary judgment motion because the district court granted the opposing parties’ summary judgment motion. See Southwest Nat’l Bank v. Simpson & Son, Inc., 14 Kan. App. 2d 763, 768, 799 P.2d 512 (1990), rev. denied 248 Kan. 997 (1991).
Hammer and Howe argue that they established conversion as a matter of law through the following uncontroverted facts: Thompson did not have title to the cattle; Morris bought the cattle from Thompson for the benefit of Hunt who used BIC as its agent to purchase the cattle; Hunt sold 142 of the 150 cattle to Tyson; and Hammer and Howe did not give authority to Thompson to sell the cattle on the date of sale. Hammer and Howe contend that although the entrustment doctrine provides an exception to the general rule that a thief cannot pass good title, the defendants had the burden to establish each element of their affirmative defense and failed to do so.
Conversion is defined as “the unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other’s rights.” Moore v. State Bank of Burden, 240 Kan. 382, 386, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987).
Hammer and Howe contend that the defendants were not authorized to exercise the right of ownership as a matter of law. In order to overcome the motion, the appellees must raise a genuine issue of material fact as to their authority to exercise ownership. Appellees argue that authority is provided by the UCC’s entrustment doctrine.
There is no dispute between the parties that Article 2 of the UCC applies to this case.
Kansas statutes set forth the UCC entrustment doctrine, applicable in transactions of goods, as follows: “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business.” K.S.A. 84-2-403(2). The statute also provides in part: “ ‘Entrusting’ includes any delivery and any acquiescence in retention of possession . . . .” K.S.A. 84-2-403(3). Hammer and Howe do not dispute that they delivered possession of tire cattle to Thompson.
Case law has defined three steps required for the doctrine to be applicable. “(1) An entrustment of goods to (2) a merchant who deals in goods of that kind followed by a sale by such merchant to (3) a buyer in the ordinary course of business.” Executive Financial Services, Inc. v. Pagel, 238 Kan. 809, 816, 715 P.2d 381 (1986).
The parties’ briefs do not point out that the UCC limits the definition of merchant under the entrustment doctrine to a person who “deals in goods of that kind” even though the definition of merchant in K.S.A. 84-2-104(1) includes those who are merchants because of their knowledge or skill peculiar to the goods involved in tire transaction or who hold themselves out as having such knowledge and skill. See K.S.A. 84-2-403, Kansas Comment, 1996, subsection 4 (“Persons who are merchants because of their knowledge of business practices would not qualify under this subsection [entrustment].”).
Hammer and Howe rely on the interpretation of tire term “merchant” in Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976), and Musil v. Hendrick, 6 Kan. App. 2d 196, 627 P.2d 367 (1981).
In Decatur, the Kansas Supreme Court reviewed the issue of whether a farmer was a merchant pursuant to the UCC in an action where a cooperative sought to obtain possession of wheat purchased under an oral contract with a farmer. If the farmer was a merchant, then the statute of frauds would not apply to the contract. 219 Kan. at 172, 176. The opinion found that under the UCC there are three criteria for determining merchant status: who by his occupation holds himself out as having knowledge or skill peculiar to die practices or goods involved in the transaction.” 219 Kan. at 176.
“(1) a dealer who deals in goods of the land involved, or (2) one who by his occupation holds himself out as having knowledge or skill peculiar to tire practices or goods involved in the transaction, even though he may not actually have such knowledge, or (3) a principal who employs an agent,, broker or other intermediary
The Supreme Court noted that “professionalism, special knowledge and commercial experience” are to be used in the determination. The court found that the farmer was not a merchant because he did not “deal” in wheat and because he did not have any knowledge or skill peculiar to the practices or goods involved in the transaction. Instead, the farmer had special knowledge in raising wheat. 219 Kan. at 177.
Musil relied on the Decatur criteria for determining merchant status in a case where the question was whether a hog farmer was a merchant under the UCC for the purpose of applying the implied warranty of merchantability. 6 Kan. App. 2d at 201. This court found that there was no doubt that the appellee was a dealer in hogs since he testified that he had been in the hog business for 30 to 40 year's, and at the time of the sale at issue, was selling 50 to 100 pigs each month. 6 Kan. App. 2d at 202. This court also found that the appellee’s testimony supported a finding that he was a merchant under the second Decatur criteria.
Morris distinguishes Decatur and Musil. However, the parties fail to recognize that the definition of merchant under the UCC entrustment doctrine is limited to a person who “deals in goods of that kind.” It is this limitation that distinguishes Decatur and Musil, which do not interpret merchant solely based on “deals in goods of that land.”
In his brief, Morris says that the appellants concede that an order buyer can qualify as a “merchant”; however, the pleading referred to is a factual assertion that Morris “bought and sold cattle as a dealer in cattle on a regular basis.” It does not appear that Hammer and Howe were conceding that Thompson is a merchant.
The parties indicate that Thompson was involved in order buying cattle. Thompson described order buying as acting as the middleman between the purchaser and the seller. “I buy die cattle for the man that’s purchasing them and try to help the man that’s selling them get rid of them or sell them.”
In order to determine whether the appellees established that entrustment gave them ownership authority, the term “deals in goods of that kind” needs to be interpreted. There are no published Kansas cases on this issue, and the parties did not reach this question since they relied on the broader definition of merchant.
“Deals in goods of that land” entrusted has been construed as a person who is engaged regularly in selling or leasing goods of the land. 3A Anderson on the Uniform Commercial Code § 2-403:80 (3d ed. 2002 rev.); see also Toyomenka, Inc. v. Mount Hope Finishing Company, 432 F.2d 722, 727-28 (4th Cir. 1970) (customs broker was not engaged regularly in selling goods of the land); Prenger v. Baker, 542 N.W.2d 805, 808-09 (Iowa 1995) (farmer who raised and sold exotic animals for 6 years was regularly engaged in selling goods of the fend); Canterra Petro., Inc. v. Western Drill, & Min., 418 N.W.2d 267, 271 (N.D. 1987) (relevant factual inquiry was whether the entrustee was regularly engaged in selling goods of the land; conclusory statements in affidavits were not dis-positive of the issue).
K.S.A. 47-1804(c) defines “livestock dealer” as
“any person engaged in the business of buying or selling livestock in commerce, either on that person’s own account or as the employee or agent of the seller or purchaser, or any person engaged in the business of buying or selling livestock in commerce on a commission basis and shall include any person who buys or sells livestock with die use of a video. ‘Livestock dealer’ does not include any person who buys or sells livestock as part of that person’s own breeding, feeding or dairy operation, nor any person who receives livestock exclusively for immediate slaughter.”
The definition of a livestock dealer would encompass an “order buyer” as defined by Thompson, and an order buyer of cattle would arguably be a merchant who “deals in goods of that kind” under the entrustment statute.
We have found no Kansas cases on the question of whether an order buyer is considered a merchant under the entrustment doctrine. However, in Heinrich v. Titus-Will Sales, 73 Wash. App. 147, 153, 868 P.2d 169 (1994), the court found that it was not necessaiy for a party to possess an inventory in order to fit within the statutory definition of merchant for the purposes of the entrustment doctrine. 73 Wash. App. at 154. There, the broker/dealer of used cars failed to pay the seller for a vehicle which the broker/dealer sold to a third party. The appellate court upheld the application of the entrustment doctrine and granted replevin of the vehicle to the third-party buyer. However, in reasoning that the broker/dealer was a merchant, the opinion noted that the definition of merchant includes one who holds himself or herself out as having knowledge or skill peculiar to the goods involved in the transaction and that the broker/dealer held himself out as a dealer in automobiles and appeared to be a dealer in automobiles. 73 Wash. App. at 154-55. To the extent that the court relied on the broader definition of merchant, the reasoning could be considered flawed.
In their brief, BIC and Tyson cite to Cattle Finance Co. v. Boedery, Inc., 795 F. Supp. 362 (D. Kan. 1992), as a case involving similar facts to the present case and decided under Kansas law. In Cattle Finance, the defendant was an Iowa corporation in the business of buying and selling cattle. The defendant shipped cattle to a Kansas feedlot. The manager of the feedlot sold the cattle to the debtors of the plaintiff finance company and kept the proceeds for himself, keeping two sets of books on the ownership of the cattle. The defendant opposed a preliminary injunction to escrow the proceeds from the sale of the cattle. The federal court determined that there was a fair ground for litigation under the UCC entrustment doctrine and issued a prehminaiy injunction.
BIC and Tyson assert that the federal court upheld the superior title of the plaintiff debtors over the defendant who entrusted the cattle to the feedlot. However, the federal court made it clear that its decision was based on the plaintiff s production of evidence in support of its claims, demonstrating a fair ground for litigation on the issue. It was not a determination on the merits. 795 F. Supp. at 366 n.2.
The Cattle Finance opinion also discussed the manager of the feedlof s status as a merchant under the entrustment doctrine. The feedlot manager would solicit buyers for cattle and broker deals with the defendant or purchase cattle in the name of the feedlot for retransfer to the purchasers. The federal court noted that this practice was well known to the plaintiffs and defendant at the time and the practice showed that the feedlot manager was a merchant who dealt in goods of the land entrusted. 795 F. Supp. at 366. However, as stated above, this was not a determination on the merits of whether the merchant element was met for the purposes of tire entrustment doctrine.
To support their argument that Thompson was not a merchant, Hammer and Howe argue that Thompson had no intention of being an order buyer of cattle; his intent was only to run growing lots. Hammer and Howe contend there is no evidence that Thompson was running an order buying business in May 2002 when he sold the Hammer/Howe cattle and, therefore, he was not dealing in goods of the land. Hammer and Howe assert that Thompson’s documented sales were in the months of October and November 2002, after tire May 2002 sale of Hammer and Howe’s cattle to Morris.
Morris argues that Thompson was a merchant, pointing to the following facts: Thompson began an order buying business while working at Greeley Farms, and Hammer sold Thompson 300 head of cattle earlier in the summer. Thompson held himself out as a person with specialized knowledge of pasturing cattle, Thompson had documented purchases and sales of cattle as early as March 2001 and had bought or sold cattle as an order buyer in at least 60 different transactions.
BIC and Tyson argue that tire fact Thompson sold and purchased cattle before and after the sale in the present case and the fact the other transactions involved multiple persons and/or business entities, as well as Thompson’s testimony about acting as order buyer and cattle trader, show that Thompson was a merchant.
BIC and Tyson provided the district court with 18 exhibits in their motion for summary judgment. Among the exhibits was an excerpt of Thompson’s deposition. Thompson testified that he managed a ranch in Greeley, Kansas, from 1996 to 2001. In 2001, Thompson moved to Richmond, Kansas, to “start the cattle business for myself. I was running a starting lot and trying to order buy cattle and trade cattle.” He began order buying when he was still working at the ranch in Greeley in 2000. Thompson testified that he did most of his order buying in 2001-02.
The exhibits also included two charts drat list the dates and transaction information for Thompson’s catde sales and purchases in 2002. It appears from the chart of cattle sales that there were eight transactions between October 16, 2002, and November 19, 2002, while the chart of cattle purchases shows there were 18 transactions between October 9, 2002, and November 21, 2002.
Appellee Morris sold cattle to Thompson in the 19 transactions which were dated between May 15, 2002, and August 18, 2002.
In BIC and Tyson’s response to Hammer and Howe’s motion for partial summary judgment, one of the attached exhibits included an affidavit from Thompson that stated the attached were true and correct documents from his cattle business in 2001.
The attached invoices clearly showed Thompson was involved in 31 transactions between March 15, 2001, and December 20, 2001. There were 25 invoices where Thompson was listed as the buyer and 6 where Thompson was listed as the seller.
Through the above evidence, the appellees showed that there was a material dispute as to the question of whether Thompson was a merchant for the purposes of the entrustment doctrine. We will address the district court’s decision that Thompson was a merchant as a matter of law in the second issue. The next question is whether the appellees raised a material dispute as to the buyer in the ordinary course of business element from the entrustment doctrine.
The definition of “buyer in the ordinary course of business” is not limited by the entrustment doctrine. K.S.A. 84-2-403, Kansas Comment, 1996, subsection 4. The UCC defines buyer in the ordinary course of business in relevant part as “a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker in the business of selling goods of that land.” K.S.A. 2005 Supp. 84-1-201(9). Under Article 2 of the UCC, a merchant is subject to a higher standard for good faith: “[I]n the case of a merchant [good faith] means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” K.S.A. 2005 Supp. 84-2-103(l)(b). When the buyer is a merchant, the buyer must meet the higher standard for good faith. 3A Anderson on the Uniform Commercial Code § 2-403:34-35.
Hammer and Howe do not contend that Morris had actual knowledge of their ownership rights. Hammer and Howe also concede that Morris has sufficient evidence on the subjective element of good faith — honesty in fact. However, they claim that Morris failed to come forward with material evidence of the objective element of good faith — the observance of reasonable commercial standards. Hammer and Howe point out that the Kansas Comment to K.S.A. 2005 Supp. 84-2-103, subsection 3 states: “Usage of trade, course of dealing, and course of performance are relevant in establishing reasonable commercial standards.” Because course of dealing and course of performance are not applicable under the facts of the transaction at issue, Hammer and Howe argue that Morris must rely on proof of trade usage to establish that he observed reasonable commercial standards of fair dealing.
Morris argues that Hammer and Howe do not offer any support for their assertion that the appellees needed to show objective good faith through course of dealing. Article 1 of the UCC provides the general definitions for the Code. The definitions are prefaced by the following language: “Subject to additional definitions contained in the subsequent articles of this act which are applicable to specific articles or parts thereof, and unless the context otherwise requires . . . .” (Emphasis added.) K.S.A. 2005 Supp. 84-1-201.
Under Article 1, good faith is defined as “honesty in fact in the conduct or transaction concerned.” K.S.A. 2005 Supp. 84-1-201(19). At oral argument, the appellees pointed out that the 1996 Kansas Comment states: “The definition of ‘buyer in ordinary course of business’ is a specialized version of the traditional concept of bona fide purchaser, purchasing from one who deals in goods of that land. ‘Good faith’ is defined in subsection (19) of this section.” K.S.A. 84-1-201, Kansas Comment, 1996, subsection 9.
Therefore, the subjective good faith standard is applicable to a buyer in the ordinaiy course of business, in general. However, the Comment goes on to state:
“The definition of‘good faith’ in this subsection is subjective, and requires only honesty in fact. . . . In Articles 2 and 2a, the definition of‘good faith’is expanded to include an objective standard of‘reasonable commercial standards of fair deal ing in the trade’ when the party involved is a merchant.” K.S.A. 84-1-201, Kansas Comment, 1996, subsection 19.
Article 2 provides the following definition of good faith: “ ‘Good faith’ in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” K.S.A. 2005 Supp. 84-2-103(1)(b). Therefore, whenever a merchant is involved in a case under Article 2, the merchant is subject to both the objective and the subjective standard of good faith. The entrustment provision is found in Article 2, at K.S.A. 84-2-403(3). Further support for the application of the expanded standard is found in the 1996 Kansas Comment to 84-2-103:
“Paragraph (1)(b) defines ‘good faith’ as applied to merchants (defined in 84-2-104) under Article 2 as containing both a subjective standard (‘honest in fact’) as well as an additional objective standard of the observance of reasonable commercial standards of fair dealing in the trade. Usage of trade, course of dealing, and course of performance are relevant in establishing reasonable commercial standards. . . . The general Code definition of ‘good faith’ is limited to subjective honesty in fact, and applies to non-merchants under Article 2.” K.S.A. 84-2-103, Kansas Comment, 1996, subsection 3.
See also 3A Anderson on the Uniform Commercial Code § 2-403:34 (“When the buyer is a merchant, the buyer must meet the requirements of goods UCC § 2-103[1][b] which require both honesty in fact and observance of ‘reasonable commercial standards of fair dealings.’ When the buyer is not a merchant the subjective test of good faith found in UCC § 1-201[19] applies.”).
The appellees also argue that this court should rely on Executive Financial Services, Inc. v. Pagel, 238 Kan. 809, 715 P.2d 381 (1986). There, the Kansas Supreme Court quoted the definition of “buyer in the ordinary course of business” from the Article 1 definitions section. The opinion then quoted the subjective definition of good faith from Article 1. 238 Kan. at 817-18.
It seems the appellees are arguing that the Supreme Court determined that the subjective standard of good faith applies to a buyer in the ordinary course. However, the Supreme Court did not address the question of whedrer the buyer was a merchant or discuss the appropriate standard of good faith. The Pagel issue was whether the transaction met the definition of “buying” as found in the “buyer in the ordinary course of business” definition. 238 Kan. at 818. The Pagel court did not address the same issue that is raised in the present case — whether a buyer in tire ordinary course of business, who is also a merchant, is subject to the Article 2 definition of good faith.
Finally, the appellees argued that there is a split in the jurisdictions as to what standard of good faith applies to a buyer in the ordinary course of business. We did not find anything in our research indicating that there is such a split for Article 2 cases.
However, there are conflicting decisions in other UCC cases. See 1 Anderson on the Uniform Commercial Code § 1-201:88 (“Courts do not seem to be consistent in determining whether a merchant buyer has the duties to observe reasonable commercial standards of the trade.”).
The two cases annotated by the treatise were cases that involved Article 9. Sea Harvest, Inc. v. Rig & Crane Equip. Corp., 181 N.J. Super. 40, 49-50, 436 A.2d 553 (1981), determined that the merchant good faith standard from Article 2 is not applicable in Article 9 cases because it found the Article 2 definitions did not control the other UCC articles unless the context otherwise required. Sherrock v. Commercial Credit Corporation, 277 A.2d 708, 713 (Del. Super. 1971), revd on other grounds 290 A.2d 648 (Del. 1972), found that the merchant buyer had to meet the subjective and objective standards of good faith in an Article 9 case. See also Sherrock v. Commercial Credit Corporation, 269 A.2d 407, 408 (Del. Super. 1970) (a merchant buyer would be subject to two different standards if the Article 2 standard of good faith were not applied to merchant buyers in Article 9 transactions).
In summary, the Article 2 standard of good faith applies in the current case since there is no dispute that Morris is a merchant.
Hammer and Howe argue that Morris did not establish observance of reasonable commercial standards through trade usage. Morris does not otherwise provide any argument as to the facts in evidence supporting Morris’ observance of reasonable commercial standards. Morris also contends that course of performance, course of dealing, and usage of trade are only useful in evaluating good faith when interpreting a contract.
BIC and Tyson seem to acknowledge that Morris is subject to the higher standard of good faith for merchants. They argue that there is no requirement for expert testimony to establish that reasonable commercial standards have been met.
There are no Kansas cases to provide guidance on the determination of whether a merchant has observed reasonable commercial standards. In Cugnini v. Reynolds Cattle Co., 687 P.2d 962 (Colo. 1984), the appellate court found that a buyer in the ordinary course of business met the higher good faith standard. There, the plaintiffs sold cattle to an individual who was in the business of buying and selling cattle. Per the buyer s instruction, the plaintiffs shipped the cattle to a feedlot even though the buyer had not paid for tire cattle. The buyer failed to pay the plaintiffs for the cattle. Nevertheless, the buyer sold the cattle to the defendant cattle company, which paid for the cattle and took possession of them. The sued to recover the cattle and for damages.
Among their arguments, the Cugnini plaintiffs claimed that the defendant cattle company was not a buyer in the ordinary course of business because it did not observe reasonable commercial standards of fair dealing in the cattle trade. The plaintiffs specifically pointed to a failure to acquire a brand inspection certificate and to accepting an inadequate bill of sale as violating the standards. The Colorado Supreme Court reviewed the trial court’s findings of fact concerning whether reasonable commercial standards were met and affirmed the trial court’s finding that the standards were reasonable and had been met. The Colorado Supreme Court did not set forth any rules in manner of proof but did note that the trial court’s findings were supported by testimony in the record from various cattle merchants. 687 P.2d at 968.
In Touch of Class v. Mercedes-Benz, 248 N.J. Super. 426, 443, 591 A.2d 661 (1991), the New Jersey appellate court found that a merchant was not a buyer in the ordinary course of business because he did not meet the higher good faith standard. There, the Canadian defendant entered into a car lease with an individual lessee in Canada. The lessee fraudulently sold the car to a New York automobile wholesaler and retail dealer who then sold the car to another individual. The car was then transferred to a leasing agent. After the car was impounded, the New York wholesaler, leasing agent, and individual buyer filed suit, claiming that the leasing agent had tide to the car.
The New Jersey Superior Court found that the New York wholesaler failed to observe reasonable commercial standards in its dealings with the lessee. Specifically, the court found that it was unreasonable for die merchant to fail to inquire how to assure purchasers of receiving good title when purchasing from a nontitle jurisdiction since the automobile wholesaler rarely bought vehicles from Canada. The opinion referred to testimony of the president of the automobile wholesaler and the statutes in New Jersey and Canada concerning the purchase of and passing good tide to vehicles. It does not appear that there was any other evidence introduced to establish reasonable commercial standards of fair dealings in the trade.
In BIC and Tyson s opposition to Hammer and Howe’s partial summary judgment motion, the appellees argued that there was no need for expert testimony on what reasonable commercial standards are for die purchase of cattle. They contended that there was nothing out of the ordinary about the fact that Thompson sold cattle and Morris bought the cattle. Hammer and Howe had argued that the transaction in this case was suspicious because a check that Thompson wrote to Morris on May 15 bounced, which was 3 days before the sale to Morris in this case. In otiier words, Morris should have known that there was something suspicious about Thompson. BIC and Tyson countered that Thompson’s check to Morris cleared when Morris put it through the bank a second time.
As evidence that Morris was paid, BIC and Tyson attached an excerpt of Thompson’s deposition where he said he did not owe Hammer or Hunt any money. Also attached were two bank statements for Morris Cattle Company. There is an affidavit in the record by Morris where he said that the first check was returned for insufficient funds on May 20 and Morris resubmitted the check and it cleared on May 29. The record shows that at the time Morris purchased the cattle at issue in the case, he did not know there was a problem with Thompson’s check.
An excerpt of Morris’ deposition shows that Morris’ friend told him about Thompson. Morris was told that Thompson “moves quite a few cattle over there.” Morris had been trying to find a place to sell cattle. Morris then made contact with Thompson and offered to do business with him. At some point, Thompson contacted Morris and purchased some cattle.
Morris testified that Thompson called to ask if Morris could sell 150 black heifers. Morris asked Thompson to describe them, and Thompson said they were good heifers from the north. Morris said that Thompson said the heifers were his and that he had decided to sell the heifers rather than malee cows of them. Morris, who is located in Arkansas, had his truck driver look at the heifers and also asked a friend who lives in Kansas to look at them. After the truck driver and friend reported the heifers were good, Morris offered 70 cents per pound for the cattle. Morris was not sure if his friend had made a special trip to see the heifers or if he had just seen the cattle because he lived in the area. After agreeing to purchase the cattle from Thompson, Morris then called Hunt and offered the heifers to him. Morris testified that he never saw the heifers and they went directly to Hunt’s farm in Iowa. Hammer and Howe do not contend that Morris is incorrect about how tire cattle purchase was conducted.
In Hunt’s response to the partial summary judgment motion, Hunt argued that Morris provided sufficient evidence to establish his compliance with reasonable commercial standards. Hunt claims that testimony from Hunt and Morris shows that the transaction was typical and that Hunt and Morris have extensive cattle trading experience.
The excerpt of Hunt’s deposition shows that Hunt testified that he had about 10 different cattle deals with Morris over the course of 20 years. Hunt said that he never had a transaction like the one in this case. Hunt testified that what was different about the transaction was that Morris was selling him cattle that were not located in his area. Hunt also testified as to the nature of his own normal buying transaction for feeding cattle.
Hunt attached an affidavit from Morris to his response. The affidavit stated that Morris had been in the cattle business for 32 years and that in his business as an order buyer, he locates farmers and ranchers who have cattle to sell, buys the cattle, and resells them. The affidavit said that it was not unusual to buy and sell cattle from someone who he did not know and that there was nothing unusual about the transactions between Thompson and Morris.
Hunt offered in his response that all of tire defendants were experienced in the area of cattle trading and each can offer testimony as to what is commercially reasonable. However, that testimony was not prepared for the response to the partial summary judgment motion.
In Morris’ response, he did. not offer any additional evidence showing that he followed reasonable commercial standards. However, he did incorporate his arguments and authorities from his motion for summaiy judgment. In Morris’ summary judgment motion, Morris contended that he observed reasonable commercial practices when he negotiated the purchase because he asked several questions about the heifers, had two people look at the heifers before tire purchase, and offered what he testified was a fair market value.
It appears that tire appellees did come forward with evidence that established there was at least a dispute as to Morris’ status as a buyer in the ordinary course of business sufficient to overcome Hammer and Howe’s motion for partial summaiy judgment, based on the exhibits attached to their motions and the record developed through the cross-summary judgment motions. Hammer and Howe’s contention that there was no evidence to show Morris observed reasonable commercial standards is more appropriately dealt with in the next issue concerning whether the district court erred in finding that Morris was a buyer in the ordinary course of business as a matter of law. The pleadings, depositions, and affidavits show that there was a genuine issue as to whether the appellees had authority through the entrustment doctrine to exercise ownership over the cattle. The district court did not err in denying Hammer and Howe’s motion for partial summaiy judgment on the issue of liability.
Appellees’ motion for summaiy judgment
Hammer and Howe argue that the district court failed to apply the proper summary judgment standard of resolving the facts and inferences in favor of the party against whom the motion is made when granting the appellees’ summary judgment motion. Hammer and Howe contend that they offered evidence disputing the material fact that Morris and subsequent buyers were buyers in the ordinary course of business and that Thompson was a merchant.
Status as a merchant
Hammer and Howe argue that the district court erred in finding that Thompson was a merchant as a matter of law. They point out in their brief that whether a person is a merchant is a question for the trier of fact and the issue becomes one of law only if reasonable minds could not draw different conclusions from the facts (citing Colorado-Kansas Grain Co. v. Reifschneider, 817 P.2d 637, 640 [Colo. App. 1991]). Hammer and Howe argue that reasonable minds could differ as to whether Thompson was a merchant.
Summaiy judgment is proper where the only questions presented are questions of law. Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993).
There are no published Kansas opinions that address whether the question of a party’s status as a merchant under the UCC is a question of law or fact. In Executive Financial Services, Inc., 238 Kan. at 816, the Kansas Supreme Court affirmed a district court’s grant of a defendant’s summary judgment motion based on the entrustment doctrine without any discussion as to whether a party’s status as a merchant was a question of law or fact. 238 Kan. at 813-19. The Supreme Court reviewed the party’s status as a merchant.
Some courts find that whether a person is a merchant under the UCC is a question of fact. Prenger v. Baker, 542 N.W.2d 805, 808 (Iowa 1995) (“[W]hether a party to a transaction is a merchant is a question of fact.”); Touch of Class v. Mercedes-Benz, 248 N.J. Super. 426 (status as a merchant is determined according to circumstances of each case).
It has also been held that the status of a person as a merchant is a question of law for the courts to decide by applying the UCC definition of merchant to the facts of the case. See Cudahy Foods Company v. Holloway, 55 N.C. App. 626, 629, 286 S.E.2d 606 (1982); Miller v. Badgley, 51 Wash. App. 285, 291, 753 P.2d 530 (1988).
One court held that it is a mixed question of law and fact. Vince v. Broome, 443 So. 2d 23, 28 (Miss. 1983); see 2 Anderson on the Uniform Commercial Code § 2-104:18-19 (3d ed. 2004 rev.).
We agree with those authorities which find the status of merchant is a mixed question of law and fact. Whether there exist circumstances to constitute merchant status is a question of fact. But whether those facts that are determined constitute a person as a merchant is a question of law.
Assuming the question of status as a merchant is initially a question of fact, if there are no disputed material facts, then the issue of whether a party is a merchant under the UCC becomes a question of law and appropriate for summary judgment. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 154, 959 P.2d 894 (1998) (when there were no disputed facts and there was no other factfinding necessary, the question of whether a contract was breached was a matter of law).
There are three general policies supporting the UCC entrustment provision. First, it protects the innocent buyer who believes the merchant has legal title to the goods because the goods are in the merchant’s possession. Second, the entrustment provision is also based on the rationale that the entruster is in a better position than the innocent buyer to protect against the risk of the dishonesty of the dealer. Third, entrustment facilitates the flow of commerce when buyers in the ordinary course of business are involved. See Heinrich v. Titus-Will Sales, Inc., 73 Wash. App. 147, 153, 868 P.2d 169 (1994); 3A Anderson on the Uniform Commercial Code § 2-403:75.
Among the 26 exhibits attached to the motion for partial summary judgment, Hammer and Howe included an excerpt of Thompson’s deposition where Thompson said that he did not want to order buy or trade cattle when he left Greeley’s ranch. He only wanted to run growing lots. Thompson started order buying because he did not have any income from starting calves.
The evidence concerning Thompson’s status as a merchant included invoices that Thompson attested were from his cattle busi ness for calendar year 2001. Between March 15, 2001, and December 20,2001, there were 25 transactions where Thompson was the buyer and 6 where Thompson was the seller. Additionally, Thompson confirmed at his deposition that charts prepared for the litigation represented his cattle sales and purchases for calendar year 2002. Between October 9, 2002, and November 21, 2002, Thompson was involved in at least one sale and at least 15 purchases as shown by his name listed on the invoices. There were additional invoices in the record where Thompson purchased cattle from Morris in 19 transactions between May 15, 2002, and August 18, 2002.
In the sale at issue, Thompson sold the cattle to Morris on May 18, 2002. There is a lapse in time between December 2001 and May 2002 where there are no records to support that Thompson was involved in order buying cattle. This is consistent with Thompson’s testimony that his initial intention was to run growing lots when he moved to Richmond but that he began order buying because he did not have any income. Even if we find that the question of whether a party is a merchant is a question of fact, the undisputed facts in the record support a finding that as a matter of law, Thompson was a merchant who dealt with goods of the kind. The cases we mentioned in the first issue construed a person who deals in goods of the kind as a person who is engaged regularly in selling goods of the land. However, where an individual is acting as a middleman in the cattle trade, the issue is whether the party is regularly involved in transactions instead of only sales.
Hammer and Howe seem to contend that the low number of sales, instead of purchases, show that Thompson is not a merchant. Even when resolving inferences in favor of Hammer and Howe, Thompson’s few months during which he did not conduct order buying do not negate the numerous deals that show he was a merchant. Hammer and Howe do not take the position that Thompson was not an order buyer for those transactions/invoices that are in the record.
The court did not err in finding that Thompson was a merchant as a matter of law.
Buyers in the ordinary course of business
The next question is whether the court erred in finding as a matter of law that Morris was a buyer in the ordinary course of business. As stated earlier, Hammer and Howe only contend that the appellees have not shown that Morris observed reasonable commercial standards and, therefore, cannot show that he acted in good faith as required of a buyer in the ordinary course of business.
Hammer and Howe argued that the transaction was not within die norm because the buyer weighed the catde instead of the seller. An excerpt of Hunt’s deposition confirms that the catde were weighed on a scale near Hunt’s farm. Morris testified in his deposition that in most transactions, he weighs the catde at the closest scale to the seller, and he goes to the location of the scale. However, Morris went on to explain why the cattle were not weighed near Thompson’s place, but that portion of the deposition was not included in the record.
Hammer and Howe also submitted an excerpt of Hunt’s deposition where he said that he paid “a little below market value” for tire heifers. But he also said that he “always lilce[s] to buy cattle below the market.”
Finally, Hammer and Howe point out that Morris did not plan to provide an expert witness to discuss the industry standards for cattle sales, as shown by Morris’ notice regarding expert witness testimony. Hammer and Howe claim that Morris’ “self-serving” testimony about industry standards is inadequate to establish industry standards as a matter of law. They argue that whether a buyer qualifies as a buyer in the ordinary course of business is an issue of fact that typically cannot be resolved on a motion for summary judgment (citing Brasher's Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 15 Cal. Rptr. 3d 70 [2004]).
The defendants/appellees do not address whether the determination of a buyer in the ordinary course of business is a question of law or fact.
Brasher, cited by Hammer and Howe, found that the issue of whether a merchant observed a commercially reasonable standard was a question of fact. 119 Cal. App. 4th at 1059; see also Ledbetter v. Darwin Dobbs Co., Inc., 473 So. 2d 197, 201 (Ala. Civ. App. 1985) (whether a merchant acts in good faith is generally a jury question).
Under Article 3 of the UCC, this court found that whether a bank acted in a commercially reasonable manner was a question of fact. Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 551, 630 P.2d 721 (1981).
From the evidence in the record, we conclude there is a genuine issue of material fact as to whether Morris was a buyer in the ordinary course of business because of the lack of evidence showing that Morris observed reasonable commercial standards of fair dealing in the cattle trade. Basically, Morris says that he followed reasonable standards because his own testimony shows that the transaction was normal. BIC and Tyson argue that there was no testimony showing that there was anything out of the ordinary about the transaction. However, there were no depositions or affidavits in evidence that showed the commercial standards in a typical transaction.
As the appellees argued, there is no authority requiring expert testimony to establish reasonable commercial standards have been met. However, the UCC says that usage of the trade is relevant, not the only means, to show reasonable commercial standards. Of the cases that Hammer and Howe rely on, only Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279 (10th Cir. 1977), is a UCC case. However, the issue was whether an arbitration clause was a material alteration of a contract. There, the federal court said that a party must usually call on an expert to prove trade usage. 126 F.3d at 1285 n.15.
In Cugnini v. Reynolds Cattle Co., 687 P.2d 962 (Colo. 1984), various cattle merchants testified as to the standards of fair dealing. However, in the present case there was not any testimony as to the standards of fair dealing in the trade. On remand, appellees should be required to provide evidence of standards of fair dealing by cattle merchants or other persons with the requisite knowledge or experience. In order for die appellees to show that they did not convert the cattle, they need to show that they had authority through the entrustment doctrine. On their summary judgment motion, the appellees do not show that they are entitled to judgment as a matter of law because they have not shown that they are buyers in the ordinary course of business as a matter of law, an essential element of the entrustment doctrine.
Subsequent buyers
Hammer and Howe’s last point is that the district court erred in finding the entrustment doctrine protected the subsequent buyers, BIC, Hunt, and Tyson, before the court determined that Morris was a buyer in the ordinary course of business.
The sale by the entrustee transfers the entruster’s title to a buyer in the ordinary course of business. K.S.A. 84-2-403(2). Once a buyer in the ordinary course of business acquires title by the entrustment doctrine, subsequent purchasers benefit by the buyer’s title regardless of whether the subsequent purchasers would qualify as buyers in the ordinary course of business. See 3A Anderson on the Uniform Commercial Code § 2-403:128-29. Therefore, appellees need only establish the status of Morris, the first purchaser from Thompson, as a buyer in the ordinary course of business.
BIC and Tyson argue that all subsequent purchasers were buyers in the ordinary course of business. As stated earlier, subsequent purchasers benefit by the first buyer’s title. Therefore, if Morris, the first buyer, is not a buyer in the ordinary course of business, then he could not pass good title to subsequent purchasers. In the context of the court’s ruling, its finding that the subsequent purchasers were not liable was not erroneous. The district court erred in finding as a matter of law that Morris was a buyer in the ordinary course of business. Thus, it also erred in absolving the subsequent purchasers of liability. Hammer and Howe are correct that the court first needed to determine the nature of the title that Morris had to transfer.
Denial of plaintiff s motion for partial summary judgment is affirmed. Grant of summary judgment to appellees is reversed and remanded. | [
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Marquardt, J.:
Dodge City (City) appeals on a question reserved from the district court’s finding that it had jurisdiction over Humberto Reyes’ appeal from his municipal court convictions. Appeal denied.
On March 10, 2005, Reyes was convicted in Dodge City’s municipal court of one count each of driving while under the influence of alcohol (DUI) (second violation), speeding, and refusing to submit to a preliminary breath test. He was sentenced to a jail term of 180 days with 175 days suspended, and fined $1,000. Reyes’ fine, court costs, and other fees totaled $1,315. The court ordered him to appear on June 7,2005, unless all fines and costs were paid, and to post an appearance bond of $1,315 cash or surety.
On March 16, 2005, Reyes paid $131.50 to the court and filed a notice of appeal to the district court. The receipt he received was entitled, “Dodge City Municipal Court Bond Record.” The space labeled “Date of Arrest, or Appearance” was filled in with the words “appearance bond.” The space labeled “appearance bond number” was left blank. Two days later, Reyes filed a signed document entitled “appearance bond” but left blank the spaces on the document where a date and signature for a judge’s approval would normally appear. The same day, Bankers Insurance, a surety, filed a document entided “Appearance Bond” with the municipal court on behalf of Reyes, acknowledging an indebtedness of $1,315 to the City. The only signature on the appearance bond was Bankers Insurance surety’s representative, Myma San Miguel.
On April 7, 2005, the City moved to dismiss Reyes’ appeal on grounds that the district court lacked jurisdiction because Reyes failed to file his appearance bond within the statutorily mandated 10 days. At a hearing on the motion before the district court, the City argued that although Reyes timely filed his notice of appeal, he did not sign the appearance bond; therefore, Reyes’ document was ineffective. The City further argued that the appearance bond was invalid because it did not bear the signature of a municipal court judge approving the surety. In denying the City’s motion, the district court found the appearance bond met the statutory requirements and directed Reyes to sign it.
The case proceeded to trial in the district court where a jury convicted Reyes of refusing to submit to a preliminary breath test and speeding but found him not guilty of DUI. The City timely appeals on a question reserved, claiming that the district court lacked jurisdiction to hear Reyes’ appeal.
The City argues that Reyes failed to properly execute an appearance bond under K.S.A. 12-4301, which in turn is a statutory requirement under K.S.A. 2005 Supp. 22-3609 for appealing a municipal court conviction. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
A defendant may appeal to the district court any judgment of a municipal court where the defendant was found guilty of violating an ordinance of that municipality. K.S.A. 2005 Supp. 22-3609(1). The procedure for perfecting an appeal from a municipal court to the district court is statutory:
“An appeal to the district court shall be taken by filing, in the district court of the 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 authorized to accept notices of appeal and appearance bonds under this subsection .... No appeal shall be taken more than 10 days after the date of the judgment appealed from.” K.S.A. 2005 Supp. 22-3609(2).
When computing the 10-day period after a judgment, Saturdays, Sundays, and legal holidays are not included in the calculation. K.S.A. 60-206(a). Reyes was convicted on March 10, 2005, and the deadline for filing his appeal was March 24, 2005.
Failure to follow tire provisions of K.S.A. 2005 Supp. 22-3609 is a jurisdictional defect which deprives the district court of jurisdiction to proceed with an appeal. See City of Overland Park v. Barron, 234 Kan. 522, 526-27, 672 P.2d 1100 (1983). Reyes’ notice of appeal identifies the parties but does not identify the case being appealed. The notice states: “Linda L. Eckelman, . . . hereby appeals the decision of the Municipal Court Judge of Dodge City of the Court trial heard filed of Record, March 10, 2005, to the Municipal Court of Dodge City, Ford County, Kansas.” K.S.A. 2005 Supp. 22-3609(3) requires a notice of appeal from a municipal court must designate the judgment appealed from. Appellate court notice of appeal requirements may be liberally construed and a written notice of appeal is deemed sufficient if it sets forth the defendant’s wish to contest the judgment. State v. Boyd, 268 Kan. 600, 607, 999 P.2d 265 (2000) (citing State v. Walker, 260 Kan. 803, 805, 926 P.2d 218 [1996]). The body of Reyes’ notice of appeal does not designate the specific judgment appealed from; however, the caption provides the omitted information.
Reyes argues that the document he signed and filed on March 18, 2005, is entitled “appearance bond,” the municipal court set an appearance bond, and the surety’s agent posted an appearance bond all within the 10-day statutory period. The document states:
“AND NOW, on this __day of_, 2005, the Court being duly advised that the Defendant intends to appeal this matter to the District Court, herein sets the appeal bond in tire amount of $131.50 as security for his appeal in any and all matters here in the Municipal Court of Dodge City, Kansas.”
An appearance bond is an undertaking, with or without security, entered into by which the person is bound to comply with the conditions of the undertaking. K.S.A. 12-4113(a).
Although the document Reyes signed and filed on March 18, 2005, is entitled “appearance bond,” it says that Reyes intends to appeal his conviction to the district court. The question is whether tire appearance bond filed by the surety, and signed by Reyes on April 20, 2005, satisfies statutory requirements.
“ ‘[/Jurisdiction in any action on appeal is dependent upon strict compliance with the statutes. However, when there is a valid controversy whether the statutoiy requirements have been complied with [this court is] required to construe those statutes liberally to assure justice in every proceeding.’ [Citation omitted.]” State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000).
K.S.A. 12-4301 states, in relevant part, “[a] person having the right to post bond for appearance shall, in order to do so, execute in writing a promise to appear at the municipal court at a stated time and place.” (Emphasis added.) The appearance bond filed by the surety complies with the suggested form under K.S.A. 12-4304; however, the municipal court judge and Reyes did not sign it before it was filed with the clerk of the municipal court. An executed document is one that has been signed. See Black’s Law Dictionary 609 (8th ed. 2004). Reyes signed the appearance bond 19 days beyond the 10 days permitted to file an appeal.
At the April 20, 2005, hearing, the district court found that despite Reyes’ missing signature from the appearance bond, it was valid because the surety’s representative signed and filed the bond. The district court noted Reyes’ signature was not an absolute requirement. The district court concluded that Reyes complied with the statute and directed him to sign the appearance bond. The district court properly found that it had jurisdiction over Reyes’ appeal.
Appeal denied. | [
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Green, J.;
This is a summary judgment case involving whether certain express conditions precedent had been fulfilled. These conditions precedent qualified Bradley and Elizabeth Bergmans’ right of first refusal to purchase a 10-acre tract from Crispan Richardson, now deceased. Both sides moved for summary judgment. Maiy Richardson and Commerce Trust Company, N.A. (Commerce), Crispan Richardson’s successor in interest, sought judgment in the action on grounds that the qualifying conditions precedent had never occurred. The Bergmans sought a ruling that the right of first refusal had been triggered. Determining that the conditions quahfying the Bergmans’ right of first refusal had never been fulfilled, the trial court granted Commerce and Mary’s motion for summary judgment and denied the Bergmans’ motion.
We determine that two separate conditions precedent would have had to occur before triggering the Bergmans’ right of first refusal; (1) Richardson or Commerce would have had to form a specific intent to sell, transfer, or convey the 10-acre tract; and (2) Richardson or Commerce would have had to receive a bona fide written offer for the purchase of the 10-acre tract that Richardson or Commerce would have accepted. Because the Bergmans have failed to show that these conditions precedent were satisfied, the Bergmans’ right of first refusal never ripened into an enforceable right to purchase the property. Accordingly, we affirm.
In June 1995, Crispan Richardson and the Bergmans executed the Declaration of Restrictions and Reservations (Declaration) which granted both parties the right of first refusal on specified adjacent properties owned by each of the parties. The Declaration stated in part that Richardson would not “sell, transfer or convey” the 10 acres in dispute “to any third party without first offering the same to [the] Bergman[s], or to the survivor of them, on the same terms and conditions as any bona fide written offer which Richardson has received for the purchase of such property.” Interestingly, paragraph 3(e) of tire right of first refusal indicated that an offer did not constitute a bona fide written offer unless the Berg-mans could match tire terms and conditions of such offer. The Declaration was filed with the Johnson County Register of Deeds in June 1995.
In August 2001, Richardson executed a will and trust leaving all of his personal property and real property, including the 10 acres in dispute, to Christa Park. Park is not a party to this action. In September 2001, Richardson executed a deed conveying certain real estate, including the 10 acres in dispute, to tire trust. The deed was not recorded. Richardson died several days later, and Commerce was appointed special administrator of Richardson’s estate.
Mary Richardson, the decedent’s sister, contested the will, claiming that Crispan Richardson did not have the mental capacity to execute the will, trust, and deed. Mary, Commerce, and Park later entered into a settlement agreement which was approved as part of the probate/estate matter. Under the settlement agreement, Commerce transferred certain real estate, including the disputed 10 acres, to Mary by a Kansas Special Administrator’s Deed of Distribution. This transfer was made in December 2003.
In April 2003, before the deed of distribution was executed and delivered, Bradley Bergman made a written offer to Commerce to purchase the disputed 10 acres for $106,000. In September 2003, Patrick Smith wrote to Commerce and offered $106,000 for tire disputed 10 acres. Commerce responded to Smith in a written letter, stating: “Please be advised that Commerce Bank does not view your letter as a bona fide, serious offer to purchase the property identified therein. Further, Commerce Bank would not be interested in pursuing a sale at the price suggested in your letter. Accordingly, your letter will be disregarded.”
The Bergmans sued Commerce and Mary, and the parties later both moved for summary judgment. The parties stipulated that Crispan Richardson’s mental competency to execute the instru ments was not at issue for purposes of the summary judgment motions. Moreover, the parties stipulated diat the only issue was whether the Bergmans’ right of first refusal had been triggered.
The Bergmans argued that Bradley’s April 2003 offer, the Smith offer, and the transfer and conveyance by Commerce to Mary triggered their right of first refusal in the subject property. On the other hand, Commerce and Mary contended that none of these events triggered the right of first refusal. Commerce and Mary asserted that Crispan Richardson and the Bergmans intended that the right of first refusal would only be triggered upon an intended sale based on a bona fide written offer from a third party.
Determining that the transfer made by Commerce to Mary was not based on a bona fide written offer, the trial court granted Commerce and Mary’s motion for summary judgment and denied the Bergmans’ motion for summaiy judgment.
On appeal, the Bergmans maintain that the trial court erroneously interpreted the plain language in the Declaration and disregarded the parties’ intent in signing the Declaration. Because the summary judgment motions were decided on stipulated facts, our review of the trial court’s decisions is de novo. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
Moreover, when construing the right of first refusal provisions contained in the Declaration, we exercise a de novo standard of review. See Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 920, 46 P.3d 1120 (2002). When construing this written instrument, we bear in mind the following rules:
“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 comers. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]” Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000).
We turn now to paragraph 1 of the right of first refusal set forth in the Declaration. The relevant language stated:
“1. Richardson will not sell, transfer or convey
the west one-half of the south one-half of the southwest quarter of Section 30, Township 14, Range 25, in Johnson County, Kansas, which property, together with the property described in paragraph 2 hereof is referred to herein as ‘The Property,’
to any third party without first offering the same to [the] Bergman[s], or to the survivor of them, on the same terms and conditions as any bona fide written offer which Richardson has received for the purchase of such property.”
The language of the Declaration leaves no doubt that at least two separate conditions precedent must be satisfied before the Berg-mans’ right of first refusal would have ripened into a present enforceable contract right.
First, Commerce and Mary maintain that Commerce’s desire to sell the property is a condition precedent to the Bergmans’ right of first refusal. Commerce and Mary are essentially arguing that a willing seller is an “implied in fact” condition to the Bergmans’ right of first refusal. “Implied in fact conditions are similar in their nature to express conditions, except that the parties have expressed their intentions not in words but in the nature of their undertakings.” 15 Williston on Contracts § 48:1 (4th ed. 2000); see Restatement (Second) of Contracts §226(c) (1979).
Although not cited by either party, our Supreme Court’s decision in Anderson v. Armour & Company, 205 Kan. 801, 473 P.2d 84 (1970), offers guidance on whether a preemptive right is conditioned upon a willing seller. In Anderson, the Andersons entered into a lease agreement in which they leased property from Armour. A provision of the lease agreement stated that in the event Armour desired to sell the premises, Armour would notify the Andersons in writing of its intention and of the purchase price and would allow the Andersons 15 days in which to attempt to negotiate a purchase and sale contract with Armour. Without first notifying the Andersons, Armour conveyed by warranty deed the property that was being leased to the Andersons to Iowa Beef Packers, Inc. The Andersons sued Armour and received a favorable jury verdict. Armour appealed, arguing that the lease provision was unenforceable.
On appeal, our Supreme Court determined that the provision in question gave the Andersons a preemptive right of purchase which ripened into an enforceable right to purchase when Armour decided to sell. In making this determination, our Supreme Court cited Weintz v. Bumgarner, 150 Mont. 306, Syl. ¶ ¶ 2-3, 434 P.2d 712 (1967), where the Montana Supreme Court set forth the difference between a purchase option and a preemptive right:
“ ‘A pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then owner of the property may sell to anyone.
“ ‘Under a lease giving tenant a pre-emptive right of purchase, at such time as the owner forms a specific intention to sell such right ripens into a present enforceable contract right of the tenant to purchase.' ” Anderson, 205 Kan. at 805.
The preemptive right set forth in Anderson is similar to the Berg-mans’ right of first refusal in the instant case. Although the right of first refusal does not actually state that Richardson must have formed a specific intent to sell the 10-acre tract, the terms of the Declaration indicate that the parties intended to qualify their promises. For example, it would be absurd to find that an owner unwilling to sell his or her property could nevertheless be forced to sell under the terms of a preemptive right because he or she received a bona fide offer for the property. As discussed in Anderson, a preemptive right “ ‘merely requires the owner, when and if [the owner] decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price.’ ” (Emphasis added.) 205 Kan. at 805.
Conditions implied in fact are those which are “necessarily inherent in the actual performance of the contract.” 13 Williston on Contracts § 38:11, p. 421 (4th ed. 2000). We determine that under the terms of the Declaration, Richardson or Commerce would not have triggered a right of first refusal in the Bergmans until Richardson or Commerce had formed a specific intent to sell the 10-acre tract.
Second, Richardson’s promise to sell the property to the Berg-mans “on the same terms and conditions as any bona fide written offer which Richardson has received for the purchase of such property” was a condition qualifying his promise to the Bergmans. These words constituted a condition precedent. This condition required an external event: Richardson or Commerce receiving a bona fide written offer to purchase the 10-acre tract. The quoted language was intended to make satisfaction of this condition a prerequisite to the Bergmans’ right of first refusal coming into legal existence.
Moreover, in explaining that a preemptive right is not triggered until the conditions are met, this court in Miller v. Alexander, 13 Kan. App. 2d 543, 552, 775 P.2d 198, rev. denied 245 Kan. 785 (1989), stated that “when the conditions are met for the exercise of a preemptive right, that right becomes, in effect, an option.”
The Bergmans, however, assert that their April 2003 offer for $106,000 and the Smith offer for $106,000 triggered their right of first refusal on the disputed property. We do not agree that these offers constituted bona fide written offers under the Declaration. As pointed out by Commerce and Mary, the record indicates that Smith was the Bergmans’ long-time friend; that he wrote the letter as a favor to the Bergmans; that he did not expect to keep the property; and that he expected to be reimbursed for the property if his offer was accepted. Nevertheless, it is unnecessary to address the Bergmans’ argument concerning these offers any further because there is no evidence in the record that Commerce was willing to sell the property or willing to sell it for $106,000. Without the occurrence of these conditions precedent, the Bergmans’ right of first refusal could not have ripened into a present enforceable contract right.
Finally, the Bergmans contend that the transfer and conveyance of the disputed property from Commerce to Mary triggered their right of first refusal under the Declaration. On the other hand, Commerce and Mary argue that this was not the type of transfer and conveyance contemplated by the right of first refusal under the Declaration. Commerce and Mary point out that there was no element consistent with the right of first refusal, that is, there was no bona fide written offer, no third party, and no terms and conditions to match.
We agree with Commerce and Mary’s argument. Simply stated, the transfer of property from Commerce to Mary did not trigger the Bergmans’ right of first refusal because the conditions precedent had not occurred. There was no bona fide written offer and consequently no evidence that Commerce was willing to accept the offer. Therefore, the Bergmans’ argument fails.
Based on the above analysis, we determine that the Bergmans’ right of first refusal could only be exercised after the occurrence of two conditions precedent: (1) a showing that Commerce was willing to sell the property and (2) a receipt by Commerce of a bona fide written offer to purchase the property that Commerce was willing to accept. Because these conditions were never fulfilled, the Bergmans’ right of first refusal never came into existence.
We find that the trial court’s denial of the Bergmans’ motion for summaiy judgment and that its grant of summaiy judgment to Commerce and Mary Richardson were proper.
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Malone, J.:
Richard A. Blanchette appeals his convictions of rape and aggravated indecent liberties with a child. At trial, the child victim testified by closed-circuit television pursuant to K.S.A. 22-3434. The primary issue on appeal is whether K.S.A. 22-3434 violates a defendant’s constitutional right to confrontation of witnesses. In the alternative, Blanchette claims the State failed to demonstrate that closed-circuit testimony was necessary in his case. Blanchette also claims the trial court erred in overruling his motion to have the child victim interviewed by a psychologist. Blanchette also claims his convictions of alternative counts of rape and aggravated indecent liberties with a child were multiplicitous, the trial court erred in admitting photographs into evidence, and he was denied a fair trial due to prosecutorial misconduct and cumulative error.
Factual and procedural background
We will review the facts in considerable detail. In 2000, Paula Iverson met Blanchette through a mutual acquaintance, Brooke Osier. In 2003, Iverson and her daughter, J.I., d/o/b August 11, 1999, temporarily moved in with Blanchette while their home was being refurbished. Iverson and Blanchette were never romantically involved.
On February 9, 2004, Osier came over to Iverson s house and asked Iverson to accompany her to the hospital because she believed she was going into labor. Iverson contacted her family and J.I.’s father to see if anyone could watch J.I., but she was not able to find anyone to baby-sit. Blanchette was present at Iverson’s house working on the phone, so Iverson asked Blanchette if he could watch J.I. Blanchette agreed and he took J.I. back to his house.
Iverson drove Osier to die hospital. The contractions proved to be a false alarm, and Osier was sent home. When Iverson and Osier arrived at Blanchette’s house to pick up J.I., Blanchette was in the dining room watching television, and J.I. was asleep in Blanchette’s bedroom. Blanchette, Iverson, and Osier talked for about 30 to 45 minutes. Blanchette told Iverson that J.I. had fallen asleep on his couch. According to Blanchette, when he picked J.I. up to move her into his bedroom, she was “freaking out” and told him not to touch her “bum-bum.” Iverson testified that “bum-bum” was not a word that J.I. ever used to describe any part of her body. Blanchette advised Iverson that he thought she should have J.I. examined to find out if anyone had been touching her inappropriately.
Iverson went to the bedroom to get J.I. When she picked her up, J.I. wrapped her arms around Iverson’s neck and clung to her tightly, which was unusual behavior for J.I. In the car, Iverson attempted to strap J.I. into her car seat. When she separated J.I.’s legs to get the buckle, J.I. started to cry and said her “tee tee” hurt. “Tee tee” was the word J.I. used for her vagina. As they drove to Osier s house, J.I. continued to cry. Iverson asked J.I. if anyone had touched her “tee tee,” and J.I. responded that Blanchette had hurt her “tee tee.” When they reached Osier s house, Iverson took J.I. inside and discovered blood on her underwear.
Iverson immediately contacted the police department and took J.I. to the hospital. She was sent to a second hospital where a sexual assault examination was conducted. Vickie- Tucker, the sexual assault nurse examiner (SANE), noted injuries to J.I.’s hymen at the 3 o’clock and 9 o’clock positions as well as between the 6 o’clock and 8 o’clock positions. According to Tucker, the nature of J.I.’s injuries were typical of blunt force penetration. J.I’s injuries were internal; there were no external injuries to her genitalia.
Two days later, DeShonn Larkins, a detective with the exploited/ missing child unit, interviewed J.I. J.I. told Larkins that Blanchette had touched her “tee tee” with his finger while she was on the couch at his house. The following day, Larkins asked Blanchette to come to Larkins’ office for an interview. Blanchette was advised of his Miranda rights and agreed to speak with Larkins. Blanchette acknowledged that he had watched J.I. at his house, but he denied that he had touched J.I. inappropriately. On February 17, 2004, Blanchette was charged with one count of rape. The charge was eventually amended to include an alternative count of aggravated indecent liberties with a child.
On March 15, 2004, J.I. returned to the hospital for a follow-up examination. J.I. told the SANE nurse, Diana Schunn, that Blanchette had hurt her “tee tee” with his “bad finger.” On March 17, 2004, Larkins again met with J.I. for another interview. J.I.’s statements were consistent with those made at the first interview. J.I. told Larkins that Blanchette had pulled her pants down and had touched her “tee tee” with his finger.
On April 1, 2004, the trial court conducted a preliminary hearing. The State called three witnesses: Iverson, J.I., and Larkins. Iverson testified regarding J.I.’s behavior, the events of the evening when Blanchette watched J.I., and J.I.’s statements that Blanchette had hurt her “tee tee.” Larkins testified about the custodial interview conducted with Blanchette where he acknowledged he had watched J.I. at his house on February 9, 2004.
J.I.’s testimony was conducted in the judge’s chambers in order to provide a setting that would be less frightening for J.I. Blanchette was present, but he was seated behind J.I. so she could not see him as she testified. J.I. testified that Blanchette had touched her “tee tee” with his finger. J.I. also indicated on a diagram of a little girl the location of Blanchette’s contact with her genitalia. J.I. referred to Blanchette as “Richard,” but it was established she only knew one person named Richard. On cross-examination, J.I. confirmed that Blanchette had touched her, but she said the touching happened outside the house. J.I. then began to answer every question negatively. She said she was tired, and defense counsel indicated he had no further questions. On redirect examination, the prosecutor asked J.I. to stand up so that she could see where Blanchette was sitting. The prosecutor asked J.I. to identify Blanchette, but she said she did not want to do so.
Based upon J.I.’s behavior at the preliminary hearing, the State filed a motion to allow J.I. to testify at trial by closed-circuit television pursuant to K.S.A. 22-3434 because it would be too traumatic for J.I. to testify in Blanchette’s presence. In response, Blanchette filed a motion requesting permission to have J.I. submit to an independent psychological evaluation. The trial court heard oral arguments on the motion for an independent psychological evaluation and requested briefs from both parties. Ultimately, the trial court denied the motion. The trial court found J.I.’s therapist to be a neutral therapist who was not connected to or under any influence by the State.
On November 12, 2004, the trial court conducted a hearing on the State’s motion to present trial testimony pursuant to K.S.A. 22-3434. Gail Bussart, a licensed social worker, testified regarding her involvement in nondirective play therapy with J.I. Bussart began seeing J.I. on March 1, 2004, and conducted 24 play therapy sessions with J.I. through November 2004. Bussart testified that J.I. talked about how Blanchette had hurt her. J.I. also expressed safety issues to Bussart and expressed a fear that her mother would not keep her safe from Blanchette. In the only directed play session, Bussart attempted to prepare J.I. for testifying in court. When Bussart began to explain how J.I. would need to talk to a judge who would keep her safe, J.I. became very frightened and cowered. She did not want to talk to Bussart about testifying in court. Bussart testified that she would not expect J.I. to be able to answer questions about the case with Blanchette present in court.
Dr. Molly Allen, a licensed psychologist, testified as a witness on behalf of Blanchette. Allen had not spent any time with J.I. since Blanchette’s motion for an evaluation had been denied. Allen opined that testifying in court is stressful to a child, but it did not have to be a traumatic event. She said that “[w]ith enough preparation and possibly therapy in place before and after the court appearance, a lot of lads can process that sort of stress and be able to put it into context.” On cross-examination, Allen admitted that testifying in court could be traumatic, which might manifest itself in disassociation, emotional meltdowns, extreme regression, developmental delays, recurrent nightmares, flashbacks, and rumination over die events.
J.I. was the next witness at the hearing. Her testimony was taken in die courtroom, but outside Blanchette’s presence. J.I.’s grandfather was allowed to sit beside her during her testimony. J.I. was able to answer several prehminary questions and testified that Blanchette had touched her on her “tee tee.” J.I. testified that if Blanchette came into the room, she would want to go home. J.I. told the court that it made her sad to talk about what Blanchette had done to her.
Iverson was the final witness at the hearing. She testified that after the preliminary hearing, J.I. was emotionally upset and clung to her family members. She said that J.I. was crying, screaming, lacking, paranoid, and did not want to get into her car seat. Within a half hour of the hearing, J.I. told her mother that she was afraid Blanchette was going to come get her.
The trial court took the matter under advisement and ruled on the motion on the morning of the trial. The trial court noted that J.I. answered questions about Blanchette at the preliminary hearing, but refused to identify Blanchette once she knew he was in the room. The trial court noted that Iverson testified that J.I. was very upset following the prehminary hearing. The trial court reviewed the evidence at the pretrial hearing and noted that J.I. said she would want to go home if Blanchette was in the courtroom. The trial court noted that Bussart was of the opinion that J.I. should not testify in Blanchette’s presence because the trauma could be of a permanent nature. The trial court concluded by finding:
“Taking everything into consideration, the Court finds that the evidence establishes by clear and convincing evidence that to require the child, who is the alleged victim, to testify in open court in the presence of the defendant will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child available to testify.
“The evidence presented establishes by clear and convincing evidence that the child witness will be traumatized not by the courtroom, generally, but by the presence of the defendant.
“The Court further finds that the evidence establishes by clear and convincing evidence that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. The evidence presented shows the emotional distress to be more than mere nervousness or excitement or some reluctance to testify. The evidence presented shows that the child witness has suffered and will suffer a freeze presence if required to testify in the presence of the defendant. The evidence establishes that the presence of the defendant will retraumatize the child permanently with long-lasting negative effects, which could manifest later in life.
“Based on the Court’s findings, the Court concludes that the use of the one-way closed circuit TV authorized by K.S.A. 22-3434 is necessary to protect the welfare of the child witness in this case.”
Blanchette’s trial commenced on November 16, 2004. J.I. testified via a one-way closed-circuit television. Her testimony was taken in the judge’s chambers with the prosecutor and defense counsel present. J.I.’s grandfather was also allowed in the chambers, but he did not communicate with J.I. during her testimony. There was a live feed to the courtroom where J.I.’s testimony could be viewed and heard simultaneously by Blanchette, the court, and the jury. The camera and the microphone were situated in such a manner whereby J.I. was unaware she was being recorded, and there was no technician present in the chambers. During J.I.’s testimony, the trial court was able to communicate directly with the attorneys and was able to contemporaneously rule on any objections. Blanchette was allowed to confer with his counsel as often as he wanted during J.I.’s testimony.
J.I. testified without incident. She described the evening at Blanchette’s house and testified how Blanchette had touched her “tee tee” with his finger. J.I. answered all questions she was asked on cross-examination. Iverson, Osier, Larkins, and the SANE nurses also testified for the State. Blanchette testified in his own defense and denied touching J.I. inappropriately.
The jury found Blanchette guilty of rape and also guilty of the alternative count of aggravated indecent liberties with a child. At sentencing, the trial court adjudged Blanchette guilty of both offenses. The trial court pronounced a sentence for both offenses but “declined to impose” the sentence for aggravated indecent liberties with a child because it was an alternative charge. Blanchette timely appeals.
Constitutionality ofKS.A. 22-3434
Blanchette first claims K.S.A. 22-3434 is unconstitutional as it contravenes die Confrontation Clause of the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Blanchette rests his argument upon the holding in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
Whether a defendant’s right to confrontation of witnesses has been violated is a question of law subject to unlimited review. State v. Saleem, 267 Kan. 100, 107, 977 P.2d 921 (1999).
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken 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.” State v. Martis, 277 Kan. 267, 298, 83 P.3d 1216 (2004).
K.S.A. 22-3434 provides, in part:
“(a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, subject to the conditions of subsection (b), the court may order that the testimony of the child be taken:
(1) In a room other than tire courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in tire proceeding; or
“(b) The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. The court shall make such an individualized finding before the state is permitted to proceed under this section.
“(c) At the taking of testimony under this section:
(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child’s testimony;
(2) only the attorneys may question the child;
(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
“(d) If tire testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.”
The use of closed-circuit television testimony is not unique to Kansas. The State cites to the statutes of 21 other states which are similar to K.S.A. 22-3434.
The constitutionality of K.S.A. 22-3434 was previously upheld by the Kansas Supreme Court against a Confrontation Clause challenge in State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989) (Chisholm I). The Chisholm court recognized the fundamental right of a defendant to confront a witness in a criminal trial is not absolute and has exceptions where necessary to further an important public policy. 245 Kan. at 150. The court permitted the use of closed-circuit television testimony and held:
“A defendant in a sexual abuse trial is not denied his constitutional right of confrontation where the child-victim witness testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court makes an individualized finding that the child-victim witness would suffer trauma as a result of giving in-court, face-to-face testimony.” 245 Kan. 145, Syl. ¶ 4.
In Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), the United States Supreme Court upheld the constitutionality of a Maryland statute almost identical to K.S.A. 22-3434. The Craig Court noted that face-to-face confrontation with witnesses is not an indispensable element of the Sixth Amend- merit’s confrontation guarantee. 497 U.S. at 849-50. The Court found it significant that the Maryland statute preserved the essence of confrontation by requiring the child witness to testify under oath, subject to full cross-examination, and by allowing the judge, jury, and the defendant to view the witness’ demeanor during the testimony. 497 U.S. at 851. The Court recognized that the State’s interest in protecting the well-being of a child is a compelling public policy which could outweigh a defendant’s confrontation rights if the State made an adequate, fact-driven showing of necessity. The Court concluded:
“[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” 497 U.S. at 857.
In State v. Chisholm, 250 Kan. 153, 825 P.2d 147 (1992) (Chisholm II), the Kansas Supreme Court again addressed a challenge that K.S.A. 22-3434 violated the defendant’s right of confrontation. The court again upheld the statute by reading its provisions in conformity with the United States Supreme Court opinion in Craig. 250 Kan. at 166. Based on Craig, Kansas adopted the following standard for the use of closed-circuit televison for child-victim witness testimony pursuant to K.S.A. 22-3434:
“A defendant in a sexual abuse trial is not denied the constitutional right to confrontation where the child-victim witness testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court (1) hears evidence and determines use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) finds that the child witness would be traumatized, not by the courtroom generally, but by tlie presence of the defendant; and (3) finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.” 250 Kan. at 166.
A Confrontation Clause issue was again addressed by the Supreme Court in Crawford, which Blanchette claims abrogates the Court’s holding in Craig. The issue in Crawford involved a hearsay exception, not closed-circuit television testimony. The defendant was charged with assault and attempted murder arising from a stabbing incident. At trial, the State was allowed to play a tape-recorded statement in which the defendant’s wife, who did not testify at trial, had described the stabbing incident to the police. The Supreme Court determined the playing of the tape-recorded statement violated the defendant’s Sixth Amendment right to be confronted by the witnesses against him. The Court held that out-of-court testimonial statements by a witness are barred under the Confrontation Clause unless the witness is unavailable and the defendant had the prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59. The Court declined to follow Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597,100 S. Ct. 2531 (1980), which had allowed the hearsay testimony of an unavailable witness provided the testimony fit within a firmly rooted hearsay exception or otherwise contained adequate indicia of reliability. Crawford, 541 U.S. at 63-65.
Blanchette argues that K.S.A. 22-3434 is unconstitutional under Crawford because the language of K.S.A. 22-3434(b) permits closed-circuit television testimony when the court finds the defendant’s presence with the child victim in court will so traumatize the child as to prevent the child from reasonably communicating to the jury or renders the child unavailable to testify. Blanchette argues the “or" in the statute allows the court to permit a child to testify without finding the child is unavailable, as is required by Crawford. However, this argument misses the point that when closed-circuit television testimony is permitted under K.S.A. 22-3434, the child victim is available and subject to cross-examination. The holding in Crawford is limited to testimonial hearsay where the defendant is denied an opportunity to cross-examine the witness, so Crawford should not apply to closed-circuit television testimony.
In Crawford, the majority did not overrule or even mention Craig. Several post -Crawford decisions have continued to uphold the constitutionality of closed-circuit television testimony against Confrontation Clause challenges. In United States v. Kappell, 418 F.3d 550 (6th Cir. 2005), cert. denied 547 U.S. 1056 (2006), the defendant was convicted of the sexual abuse of two minor children. He argued that his confrontation rights were violated when the child witnesses were permitted to testify via closed-circuit television. The court found the Confrontation Clause was not violated because the children provided direct testimony and the defendant was afforded tire opportunity to cross-examine the witnesses. 418 F.3d at 554-56. The court analyzed the issue in light of the decision in Crawford but concluded:
“Crawford thus involved the admissibility under the Confrontation Clause of recorded testimonial statements of a person who did not testify at trial. The holding in Crawford was that such statements, regardless of their reliability, are not admissible unless the defendant was able to cross-examine their maker. In the present case, in sharp contrast, the two witnesses (the children) did testify and were cross-examined.” 418 F.3d at 555.
In State v. Henriod, 131 P.3d 232 (Utah 2006), the defendant was charged with six counts of aggravated sexual abuse of a child. The district court refused to permit closed-circuit television testimony in reliance upon the Crawford decision. The Utah Supremé Court reversed, rejecting the defendant’s argument that Crawford abrogated Craig. The court concluded: “Because we believe that Craig, not Crawford, is controlling, we find that the district court made an error of law, and therefore committed an abuse of discretion, when it held that Crawford prevented a child from testifying via closed circuit television.” 131 P.3d at 237-38; see also Williams v. United States, 859 A.2d 130 (D.C. 2004) (taking 5-year-old victim’s testimony via closed-circuit television was warranted); Ahmed v. United States, 856 A.2d 560 (D.C. 2004) (defendant’s confrontation rights were not violated when the trial court allowed child victim to testify outside the presence of the defendant via closed-circuit television); Barnes v. State, 165 S.W.3d 75 (Tex. App. 2005) (record supported constitutionally required findings necessary for minor child to testify/ via closed-circuit television).
In line with post-Crawford, decisions from other courts, we reject Blanchette’s argument that K.S.A. 22-3434 is unconstitutional based on Crawford. Closed-circuit television testimony differs from testimonial hearsay because the witness is available and sub ject to cross-examination. In this case, J.I. was a full participant in Blanchette’s trial and was subject to cross-examination in full view of Blanchette and the jury. The constitutionality of K.S.A. 22-3434 does not rest upon the Roberts “reliability” test which was rejected by the Court in Crawford. Craig and Chisholm are still good law and control the determination that K.S.A. 22-3434 does not violate the Confrontation Clause of the Sixth Amendment.
In the alternative, Blanchette argues that K.S.A. 22-3434 violates § 10 of the Kansas Constitution Bill of Rights. Blanchette argues the Kansas Constitution is more explicit than the Sixth Amendment regarding the right of confrontation. The Sixth Amendment states the accused shall have the right “to be confronted with the witnesses against him.” Section 10 of the Kansas Constitution Bill of Rights states the accused shall have the right “to meet the witness face to face.”
While the Kansas Supreme Court may interpret the Kansas Constitution in a manner different than the United States Constitution has been construed, it has not traditionally done so. State v. Kleypas, 272 Kan. 894, 1032, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002). In State v. Busse, 231 Kan. 108, 110, 642 P.2d 972 (1982), the Kansas Supreme Court stated the protections given under both constitutions with regard to confronting witnesses are the same.
“It has long been recognized . . . that the right of confrontation under the United States Constitution and the right to meet the witnesses ‘face to face’ under Section 10 of the Kansas Bill of Rights are satisfied when defendant has had an opportunity to cross-examine the witnesses against him. [Citations omitted.]” 231 Kan. at 111.
Also, as previously discussed, the Kansas Supreme Court has upheld the constitutionality of K.S.A. 22-3434 despite the “face to face” language contained in § 10 of the Kansas Constitution Bill of Rights. Chisholm, 250 Kan. at 166. As long as the standards of Craig and Chisholm are satisfied in presenting the evidence, closed-circuit television testimony of a child victim does not contravene the defendant’s confrontation rights. Blanchette’s argument that K.S.A. 22-3434 violates the Kansas Constitution is without merit.
Compliance with K.S.A. 22-3434
Assuming K.S.A. 22-3434 is constitutional, Blanchette claims the State did not meet its burden in demonstrating that closed-circuit television testimony was necessary in his case. Blanchette also contends the trial court failed to make the necessary findings to warrant the use of closed-circuit television testimony.
Generally, the standard of review pertaining to a trial court’s admission or exclusion of evidence is abuse of discretion. State v. Holmes, 278 Kan. 603, 625, 102 P.3d 406 (2004). However, where statutory interpretation is involved, an appellate court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
In order to introduce closed-circuit television testimony of a child victim in a criminal proceeding, the State must establish by clear and convincing evidence that the defendant’s presence with the child in court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. K.S.A. 22-3434(b). In making this determination, tire trial court must: (1) hear evidence and determine use of one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. Chisholm, 250 Kan. at 166.
In Blanchette’s case, the trial court held a pretrial hearing in which extensive evidence was presented. Bussart testified about J.I.’s fear of Blanchette and her preoccupation with being safe from Blanchette. Bussart testified it was her opinion that J.I. would be traumatized if compelled to testify in Blanchette’s presence and tire trauma could have an impact on her behavior and emotional development later in life. Blanchette’s expert, Allen, admitted in cross-examination that testifying in court could be traumatic, which might manifest itself in disassociation, emotional meltdowns, extreme regression, developmental delays, recurrent nightmares, flashbacks, and rumination over the events. J.I.’s behavior showed her reluctance to be with Blanchette. She testified that she would want to go home if Blanchette was allowed in the courtroom. Iverson testified that J.I. showed signs of extreme emotional distress after the preliminary hearing. J.I. had told her mother that she was afraid Blanchette was going to come and get her.
Blanchette argues J.I.’s reluctance to discuss the incident was not related to Blanchette’s presence. He asserts it was the courtroom in general that produced the trauma. This argument is not supported by the evidence. At the preliminary hearing, J.I. testified in the judge’s chambers with Blanchette situated outside her line of vision. She was able to answer the questions and testified that Blanchette touched her “tee tee.” However, J.I.’s demeanor and behavior changed when she realized that Blanchette was present in the room. At that point, J.I. would not get out of her chair to identify Blanchette, and she did not respond to any further questions.
After considering all the evidence presented at the hearing, the trial court found the use of the closed-circuit television testimony was necessary to protect J.I.’s welfare. Further, the trial court made the specific finding that “[t]he evidence presented establishes by clear and convincing evidence that the child witness will be traumatized not by the courtroom, generally, but by the presence of the defendant.” The trial court noted that Bussart felt as if J.I. would “freeze” or “cower” if forced to testify in Blanchette’s presence and would suffer permanent trauma resulting from the incident. Finally, the trial court made the required finding that the emotional distress suffered by J.I. in the presence of Blanchette was more than de minimis. The trial court concluded that to require J.I. to testify in open court in the presence of Blanchette would so traumatize J.I. as to prevent her from reasonably communicating to the jury or render J.I. unavailable to testify.
In State v. Albert, 13 Kan. App. 2d 671, 675-76, 778 P.2d 386 (1986), this court upheld the use of closed-circuit televison testimony pursuant to K.S.A 22-3434. A social worker had testified before the trial court that the child victim would be unable to testify in the presence of the defendant in any degree of detail. The child had recently been diagnosed with a severe ulcer that could be aggravated by testifying. The social worker testified the child still had trouble discussing the incident in counseling sessions and cried when the possibility of her testimony was discussed. The trial court stated it was reluctant to bring in a young witness just to see if she would freeze and fall apart on the stand. The trial court expressed confidence in the social worker’s expertise in making the judgment about the child’s testimony.
The quality and quantity of evidence presented in Blanchette’s case greatly exceeded the evidence relied upon by the court in Albert. Also, the trial court’s findings in Blanchette’s case were far more particular than the trial court’s findings in Albert. We conclude the State met its burden in demonstrating that closed-circuit television testimony was necessary in this case. We also conclude the trial court made sufficient findings required by statute and case law to permit the admission of the child victim’s testimony. Accordingly, the trial court did not err in admitting J.I.’s closed-circuit television testimony pursuant to K.S.A. 22-3434.
Motion for independent psychologist
Next, Blanchette claims the trial court erred in overruling his motion to have J.I. interviewed by an independent psychologist. Blanchette asserts the issue involves statutory interpretation and the standard of review is unlimited. However, K.S.A. 22-3434 does not require or even suggest that a defendant has a right to subject the child-victim witness to an independent psychological examination prior to a finding that closed-circuit television testimony can be utilized. Resolution of this issue does not involve statutory interpretation.
The correct standard of review for the denial of an independent psychological examination is abuse of discretion. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979).
“A trial court’s denial of a defendant’s motion to compel the victim, who is not a party in the State’s criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. [Citations omitted.] The party who asserts the court abused its discretion bears the burden of showing such abuse. [Citation omitted.]” State v. McIntosh, 274 Kan. 939, 941, 58 P.3d 716 (2002).
Prior to the K.S.A. 22-3434 hearing, Blanchette filed a motion requesting that J.I. submit to an independent psychological evaluation. The trial court heard oral arguments on the motion and requested briefs from both parties. Ultimately, the trial court denied the motion. The trial court found J.I.’s therapist to be a neutral therapist who was not connected to or under any influence by the State.
An accused is only entitled to compel an independent psychological evaluation of a victim if the accused can establish a compelling reason for the examination. State v. Price, 275 Kan. 78, 80, 61 P.3d 676 (2003). There are several factors the trial court should consider in determining whether a psychological evaluation is warranted:
“(1) whether the victim demonstrates mental instability, (2) whether the victim demonstrates a lack of veracity, (3) whether similar charges by the victim against others are proven to be false, (4) whether the defendant’s motion for a psychological evaluation of the victim appeared to be a fishing expedition, (5) whether anything unusual results following the questioning of the victim’s understanding of telling the truth, and (6) whether there are any other reasons why the victim should be evaluated.” 275 Kan. at 84.
Here, J.I. established a relationship with her therapist, Bussart, soon after the incident and continued to see her regularly until the time of trial. Bussart was not an expert secured by the State to conduct an examination of J.I. for the purposes of the hearing. Bussart was a neutral witness who could provide the trial court with relevant information after conducting 24 therapy sessions with JI-
Furthermore, the pretrial hearing provided Blanchette with the opportunity to fully cross-examine Bussart. Blanchette also called a psychologist to testify about the general nature of trauma under such circumstances. Blanchette failed to demonstrate a compelling reason to subject J.I. to further psychological examination. We conclude the trial court did not abuse its discretion in denying Blanchette’s motion.
Multiplicitous convictions
Blanchette claims his convictions of alternative counts of rape and aggravated indecent liberties with a child were multiplicitous. The State concedes this issue. Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Groves, 278 Kan. 302, 304, 95 P.3d 95 (2004).
The State charged Blanchette with one count of rape and, in the alternative, one count of aggravated indecent liberties with a child. The juiy found Blanchette guilty on both counts. The trial court accepted the verdicts and adjudged Blanchette guilty of each offense. The trial court pronounced a sentence for both offenses, but the trial court “declined to impose” the sentence for aggravated indecent liberties with a child.
If a defendant is charged in a complaint or information with alternative counts, the jury is free to enter a verdict on each count. However, the defendant may be convicted of only one offense. State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992); PIK Crim. 3d 68.09-A. Plere, the trial court appeared to understand that it could not impose a sentence for each alternative count. Nevertheless, the trial court adjudged Blanchette guilty on both counts, and the journal entiy of judgment reflects that Blanchette has been convicted of both crimes. As the State concedes, Blanchette’s conviction of aggravated indecent liberties with a child must be reversed.
Admission of photographs
Next, Blanchette claims the trial court erred by admitting gruesome and cumulative photographs into evidence. The trial court has broad discretion regarding the admission of demonstrative photographs. To determine whether such photographs should be admitted, the trial court must decide whether they are relevant and whether a proper foundation has been laid. State v. Kirby, 272 Kan. 1170, 1186, 39 P.3d 1 (2002).
At trial, Blanchette objected to five photographs of injuries to J.I.’s hymen. The photographs were taken with the use of a colposcope during J.I.’s sexual assault examination. Defense counsel argued that tire nurse’s explanation of J.I.’s injuries was sufficient and the photographs did not assist the jury. The trial court overruled the objection and admitted the photographs into evidence.
Blanchette concedes that the photographs were relevant. However, he argues the photographs were far more prejudicial than probative and amounted to cumulative evidence admitted for the purpose of appealing to the passions of the jury. “While photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. [Citation omitted.]” State v. Carr, 265 Kan. 608, 623, 963 P.2d 421 (1998).
Here, the nurse testified as to the authenticity of each photograph and laid a proper foundation for their admission into evidence. The photographs were relevant to illustrate and corroborate testimony as to the nature and extent of the injuries. Injury to the hymen was particularly relevant because the jury was being asked to find the element of penetration to support the charge of rape rather than the alternative charge of aggravated indecent liberties with a child.
Further, the cause of the injuries was controverted. Blanchette asserted at trial that J.I.’s injuries must have occurred when he caught J.I. by her jeans as she started to fall from his arms. The State alleged that such an incident would only produce external injuries, not the type of internal injuries sustained by J.I.
The photographs admitted at Blanchette’s trial were relevant and corroborated the medical testimony. They did not appeal to the passions of the jury, and the probative value of the evidence outweighed any prejudice. We conclude the trial court did not abuse its discretion in admitting the photographs into evidence.
Prosecutorial misconduct
Blanchette claims he was denied his right to a fair trial when the State made several inappropriate comments during its opening statement and closing arguments which amounted to prosecutorial misconduct.
An appellate court’s review for an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudice the jury against the defendant and deny the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005).
In the second step of the two-step analysis, the appellate court considers three factors to determine whether a new trial should be granted:
“(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on tire prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed tire result of the trial] have been met.” State v. Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204 (2004).
Blanchette malees three specific claims of error. First, during the opening statement, the State noted that Blanchette told tire police that J.I.’s injuries might have occurred when she started to fall from his arms and he caught her by the jeans. The State summarized:
“There is no bruises to the — where she was — fell or where jeans were pulled up too tight on the external part of her genitalia. Her labia is fine. Her labia majora is fine. It’s not till you get inside her genitals, all the way to the hymen that we have injuiy. So the detective says that’s — that doesn’t wash, I mean, that’s not an explanation that fits the facts of the case.”
Blanchette asserts that “[b]y making these comments, the prosecutor not only managed to tell the jury what tire officer thought about Mr. Blanchette’s testimony but also managed to get his own personal opinion before the jury as well.” This argument is without merit. Fair comment on tire interpretation of evidence is appropriate when the State makes arguments to the jury. State v. Mosley, 25 Kan. App. 2d 519, 524-26, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998). The State was simply relating the sequence of events and the evidence that would be presented to the jury. The information was relevant to explain why the detective did not accept Blanchette’s explanation for the injuries.
The second claim of error is taken from the State’s closing arguments. The State argued:
“One last thing to consider: When [J.I.] says, Richard touched my tee-tee, she tells it to the cop, she tells it to the nurse, she tells it to Diana Schunn, tells it to Detective Larkins. How could that child — how could Paulahave known that when confronted with this, Mr. Blanchette would say, you know what, someone did touch her, matter of fact, I — I am sure someone touched her. Matter of fact, I told her mom about — that someone had touched her. He makes the quantum leap that someone had touched her, because she said, no, no, no, when he woke her up from the couch. From that, he is able to glean that someone touched her.”
Blanchette takes issue with the State’s decision to employ the phrase “quantum leap” when discussing the inference Blanchette drew from J.I.’s behavior. Blanchette equates this phrase with telling the jury that Blanchette was lying. We again conclude this argument is without merit. The State was not improperly commenting on Blanchette’s credibility. The State’s use of the word “quantum leap” did not amount to prosecutorial misconduct.
The final claim of error is also taken from the State’s closing arguments. Blanchette argues the State misstated the law when it informed the jury that it could convict Blanchette of both alternative charges:
“The point is, if you — if you believe — all 12 of you believe that he placed his finger insider her labia and there was, by legal definition, penetration, then he’s guilty of rape, he’s not guilty of aggravated] indecent liberties. It’s rape.
“If you’re equivocal about that, if you’re not sure about the penetration issue, then at the veiy least he’s guilty of aggravated indecent liberties, because that requires simply that she be fondled or touched in a lewd manner, and that is defined for you in Instruction 11. That’s why the two charges.
“Quite honesdy, you could find him guilty of both, because in fondling her, the State’s position is he also — his finger went inside to the hymen, so technically he’s guilty of both. You could find him guilty of both, but make no mistake about it, my position is, the State’s position is, he’s guilty of rape.”
When the statement is read in context, it is evident the State was attempting to communicate to the jury that enough evidence had been presented to satisfy the elements of either crime charged. As previously discussed, it was appropriate for tire jury to consider both counts against Blanchette. Even if the prosecutor’s statement was somehow improper, the aggravated indecent liberties with a child conviction is being reversed, so any harm resulting from the misstatement of law is cured.
The statements at issue in this case were not outside the wide latitude that a prosecutor is allowed in discussing the evidence. Accordingly, Blanchette’s claim that he was denied a fair trial due to prosecutorial misconduct is without merit.
Cumulative error
Finally, Blanchette argues that cumulative errors in this case deprived him of his right to a fair trial.
Cumulative errors, when considered collectively, maybe so great as to require reversal of any convictions. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied his or her right to a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence against the defendant is overwhelming. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
We find there was no cumulative error sufficient to deny Blanchette a fair trial. See State v. Deiterman, 271 Kan. 975, 992, 29 P.3d 411 (2001) (if no error is found in the defendant’s case, the defendant’s claim of cumulative error must likewise fail).
Affirmed in part, reversed in part, and remanded with directions to correct the journal entry to set aside the aggravated indecent liberties with a child conviction. | [
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Greene, J.:
Lawrence Hjersted, executor of the Estate of Norman B. Hjersted, appeals die district court’s refusal to deduct a gift tax assessment from the probate estate for purposes of determining the amount of the unsatisfied elective share of Norman’s surviving spouse, Maryam Hjersted. We reverse, concluding that the assessment was a liability that accrued during the life of the donor and must be deducted as an enforceable demand against the probate estate.
The detailed factual and procedural background underlying this appeal is set forth in our opinion in the companion case, In re Estate of Hjersted, 35 Kan. App. 2d 778, 135 P.3d 202 (2006). Suffice it to say for purposes of this appeal that following the orders of the district court at issue in the companion case, and in January 2005, the Internal Revenue Service (IRS) assessed a gift tax in the amount of $509,818 based upon the district court’s valuation of a nonprobate transaction that occurred in March 2000. Although the decedent had reported the value of the gift as $675,000, the district court’s valuation of the same transaction at $1,770,536 triggered the additional gift tax liability.
Lawrence, in his capacity as executor, petitioned the district court to deduct the unpaid gift tax assessment in determining the value of the surviving spouse’s unsatisfied elective share. The district court held a nonevidentiary hearing on Lawrence’s petition and then made the following ruling denying Lawrence’s petition:
“The Court will find that the gift tax should not be included in the value of the probate estate inasmuch as it was a transfer made within 2 years of death. Therefore, it’s more akin to a death tax than a gift tax, because the only events that triggered a reevaluation of the transfer or gift was the petition for elective share and therefore, it was the post-death actions that created tire increased value which then created the gift tax. Therefore, it should not be included in the value of the probate estate. As it is more akin to an estate tax, under tire circumstances as it played out in this case.”
Lawrence appeals.
Resolution of this issue requires the construction of various state and federal statutes. Accordingly, we exercise de novo review. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
Lawrence argues that the IRS’s gift tax assessment was a debt incurred by Norman at the time of the gift and was, therefore, deductible from the probate estate as an enforceable demand pursuant to the plain language of K.S.A. 59-6a204. Maryam argues that the district court correctly refused to deduct the assessment from the estate based on its construction and application of the term “demands” in the Kansas elective share statutes, which term she argues “was not intended to, and does not, include unpaid gift tax liability of a decedent.”
For support of his argument that the federal gift tax assessment qualified as an enforceable demand under K.S.A. 59-6a204, Lawrence refers this court to 26 U.S.C. § 2502(c) (2000), which provides that the federal gift “tax imposed by section 2501 shall be paid by the donor.” Lawrence also cites the following Treasury Regulation speaking to the liabilities associated with gift tax:
“Section 2502(d) [now § 2502(c)] provides that the donor shall pay tifie tax. If the donor dies before the tax is paid the amount of the tax is a debt due the United States from the decedent’s estate and his executor or administrator is responsible for its payment out of the estate.” 26 C.F.R. § 25.2502-2 (2005).
Maryam takes issue with Lawrence’s reliance on federal tax law, arguing such merely determines the taxability of interests and rights in property. See Estate of Davenport v. C.I.R., 184 F.3d 1176, 1182 (10th Cir. 1999) (“ ‘[Although state law creates legal interests and rights in property, federal law determines whether and to what extent those interests will be taxed.’ ”). Maryam relies instead on Kansas case law pertaining to the treatment of estate taxes; in doing so, she equates gift taxes with estate taxes, referring to them generically as “transfer” taxes. Additionally, in defending the district court’s refusal to deduct the gift tax assessment from the probate estate, Maiyam refers this court to the Kansas Estate Tax Apportionment Act (“KETAA”), K.S.A. 2005 Supp. 79-15,126 et seq., which, by virtue of the federal marital deduction, generally prohibits a surviving spouse from being charged with estate taxes on property transferred to him or her upon the decedent’s death. See 26 U.S.C. § 2056(a) (2000); K.S.A. 2005 Supp. 79-15,126(b), (d).
We disagree with Maryam’s attempt to characterize this gift tax assessment as akin to estate taxes. Her citations to Spurrier v. First National Bank of Wichita, 207 Kan. 406, 408-10, 485 P.2d 209 (1971), and Jackson v. Jackson, 217 Kan. 448, 451, 536 P.2d 1400 (1975), are not persuasive because both cases address issues surrounding treatment of estate taxes, not gift taxes.
Lawrence cites, and we agree with, an opinion of the Indiana Supreme Court recognizing the distinction between these two forms of taxation:
“It is of great importance that a distinction be drawn between unpaid gift taxes as charges against the estate, and estate and inheritance taxes which are incurred due to the inclusion of said gifts in the taxable estate. Unpaid gift taxes are no more than debts of the estate .... On the other hand, the estate taxes generated by property not part of the probate estate but included in the estate for tax purposes must be apportioned among the recipients of such property. [Citation omitted.]” Stoner v. Custer, 252 Ind. 661, 668, 251 N.E.2d 668 (1969).
It is clear from a plain reading of the relevant IRS provisions that a gift tax imposed pursuant to 26 U.S.C. § 2501 (2000) is the liability of the donor. Treasury Regulations direct that upon a decedent’s passing, an unpaid gift tax assessment becomes a debt of the decedent’s estate. 26 C.F.R. § 25.2502-2 (2005). When these provisions are read in tandem with Kansas’ elective share statutes, a surviving spouse is not shielded from incurring any liability for the decedent’s unpaid gift tax. Rather, there is no indication such a debt should be considered anything other than an enforceable demand, which is deductible from the probate estate pursuant to K.S.A. 59-6a204. Accordingly, we conclude the district court erred in refusing to deduct Norman’s outstanding gift tax assessment, from the probate estate for purposes of calculating Maiyam’s unsatisfied elective share.
We reverse the district court and remand with directions to deduct the gift tax assessment, subject only to the outcome of Lawrence’s appeal of the IRS assessment, and to recalculate the unsatisfied elective share.
Reversed and remanded with directions. | [
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Greene, J.:
Abby Miller, natural mother of J.N.L.M., appeals the district court’s order changing her child’s surname from her own to that of his natural father, arguing that the district court abused its discretion. We agree with her, reverse die district court, and remand for further proceedings.
Factual and Procedural Background
J.N.L.M. was nearly 2 years old when Ricky Killingsworth (father) filed a paternity action, stating he believed he was J.N.L.M.’s biological father but seeking DNA testing to confirm his parentage, asking the court to determine a reasonable child support order if DNA testing proved him to be the father, and requesting that the court malee appropriate orders as to custody and parenting time. The mother responded that she had never been married to father, father had not been involved in J.N.L.M.’s life since his birth, and father had provided only $50 in monetary support. She also brought a counterclaim for back child support and medical expenses. Before trial, the father filed an amended petition requesting that J.N.L.M.’s surname be changed from Miller to Killingsworth.
The father testified at trial he wished to have J.N.L.M.’s surname be changed to Killingsworth because “I feel that a child, a little boy, should have his father’s last name, so I just — I would like it if he had my last name.” Later, he again asked for the name change “just because every litde boy I know personally has their father’s last name. It’s just — it’s the way I — that’s the way I believe it should be.” The father further testified drat although the mother asked him to sign the birth certificate, he refused because he had asked the mother that the child bear his last name, but she had refused.
Although the father was present at the hospital when J.N.L.M. was born because he believed he was the father, he had allegedly overheard the mother telling his mother that “he isn’t Ricky’s” in the midst of an argument. He claimed this statement affected his desire to visit J.N.L.M., but he did continue to visit the child. Originally testifying that he had visited J.N.L.M. approximately 50 times before filing the paternity petition, the father later retracted this claim when confronted with his deposition testimony that for the first year of the child’s life he saw the child only two or three times. The father also testified he gave the mother baby supplies valued at $1,296.07 and a total monetary contribution of $50. He claimed that he had learned to properly care for J.N.L.M.’s asthma and noted that the child was allergic to dogs, cats, and dust mites.
The mother testified that the father discontinued his relationship with her for about 2 weeks after she told him she was pregnant. The father told her “he did not want to be a father, and that he wanted to have this time with his friends.” After that time, the father did not contact the mother, but he accepted her invitation to be present at the time of J.N.L.M.’s birth. Regarding the birth certificate incident, the mother testified:
“I called him on the Tuesday after I had [J.N.L.M.], I had him early Monday morning and he had went to work that day, and I told him that they came in and we filled out the birth certificate and that it was up here for him to sign. He had to sign it for him to be legally be [J.N.L.M.’s] father, and he refused to — to do so"
All of J.N.L.M.’s hospital records at the time of birth listed his surname as Miller, as did all of his medical records, bank accounts, and his Social Security card. The mother testified that J.N.L.M. knew his full name and answered to his first name followed by “Miller.”
According to the mother, her mother and father had provided support for J.N.L.M. in the preceding year. She had received $50 from the father on one occasion, but he refused to provide monetary support on other occasions when the mother asked, and ultimately she stopped asking him for money. The mother denied receiving all of the baby supplies the father allegedly bought for her and J.N.L.M. The court later found the father had not met his burden of proof on providing the baby supplies.
The mother confirmed that she planned to be married in the near future, but testified she would keep her maiden name so J.N.L.M. would have the same name as her. She testified she did not want to give the name Killingsworth to her child because:
“Ricky did not have anything to do with my pregnancy. Everything that Ricky knew about my pregnancy I had to call and either tell him or tell his mother. He — had made it clear to me that he wasn’t ready for a kid and he did not want to settle down and did not want to get married and did not want to raise a child, so I saw no reason for [J.N.L.M.] to live with Ricky’s last name when he had made it clear that he did not want to be around.”
On cross-examination of mother, the father s counsel elicited the following exchange:
“Q. You agree that it’s customary in our culture for men to have the same last name as their father, do you agree with that?
“A. Yes.
“Q. Do you know of any men that don’t have tire same last name as their father? “[The mother’s counsel]: Your Honor, I object. This is irrelevant to the issues in this case.
“THE COURT: Overruled. The statute in question talks about parentage. I think it’s broad enough.
“Q. Let me restate the question. Can you name any men that you know of that don’t have the last name of their father?
“A. Urn, some — I mean, some people I have known in high school who I don’t know personally have — who I’m not friends with have named their children after them and not tire father because tire father was not in the picture. I do not see any reason . . . .”
The trial judge also examined mother, asking, “When Mr. Killingsworth refused to sign the birth certificate, did he already know that you wanted to use the name Miller on tire birth certificate?” The mother replied that he did. During final arguments, the mother s counsel reminded the court that Kansas does not have a “paternal assumption as to the surname of a child,” as counsel for the father seemed to argue. The court responded:
“What do you say about the language in [M.L.M. v. Millen, 28 Kan. App. 2d 392, 15 P.3d 857 (2000),] that says 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? Doesn’t that indicate that there would be times when a father’s name would not be on tire birth certificate for one reason or the other and yet.”
In its journal entry, the trial court granted the father’s motion to change J.N.L.M.’s last name to Killingsworth, citing the fact that the father’s involvement as a father was improving, and citing M.L.M. v. Millen, 28 Kan. App. 2d 392, 394-95, 15 P.3d 857 (2000). On the docket sheet, the court noted:
“[C]ourt grants name change of child to surname of killingsworth ms miller is soon to be married to mr marxen mr kiUingsworth is carrying out finally his paternal duties like in mlm vs mullen ‘parentage’ as demonstrated by surname is important so court finds that it is best interest of child to have father’s surname also there was some game-playing by ms miller at the birth otherwise the name of killingsworth would have been on the birth certificate all along.”
The trial court’s complete discussion and ruling on the motion for name change was as follows:
“Mr. Killingsworth requests that the child’s surname be changed to Killingsworth. The caselaw and statutes are in somewhat of a state of confusion. The most recent appellate pronouncement on the issue is in the case of M.L.M. v. Millen, 28 K.A. 2d 392. In that case the Court of Appeals held that a trial court is not precluded by K.S.A. 38-1130 from changing a child’s surname even when there is no agreement. It is implicit in that holding that the trial judge must find that good cause for the change has been shown. Here Mr. Killingsworth has assumed, although belatedly, tire responsibilities of paternity: he has been for some time and is paying [child] support, he has had parenting time with the child, he has become trained in dealing with [J.N.L.M.’s] asthma. The oral reports of the GAL confirm that Ms. Miller has facilitated Mr. Killingsworth’s parental efforts. In the M.L.M. case the Court of Appeals cites language of the Supreme Court from In re the Marriage of Ross, 245 Kan. 59: ‘The Kansas Parentage Act is to provide that every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his or her parentage.’ The court finds under the facts here that the last name of the child should be changed from the maiden name of Ms. Miller to the surname of the child’s father, i.e., Killingsworth.”
The mother moved the court to reconsider, arguing it failed to apply the proper legal test to the name change issue, failed to provide a factual basis for its decision, and misinterpreted the evidence and Millen. At the hearing on the motion for reconsideration, the court appeared interested in the “events that occurred at the hospital that caused Mr. Killingsworth’s name not to be on the birth certificate in the first place,” apparently under the belief that the mother had somehow wrongfully prevented the father’s name being given to J.N.L.M. and reflected on the birth certificate. The mother s counsel also informed the court that her plans to marry had fallen through.
The court denied the motion for reconsideration, stating in part:
“Unfortunately, this court did not express clearly but only by implication its use of tire best interest of tire child test in its order, stating only that ‘The court finds under tire facts here tiiat die last name of the child should be changed from the maiden name of Ms. Miller to the surname of die child’s fadier, i.e., Killingsworth.’ This court did not state in its order its use of die best interests test, but the court did use that test. Plaintiff argued at the June 24, 2005, hearing diat the court could have taken into account events that occurred between die parties at the hospital at the time of birth. The court did not cite in its order of May 10, 2005, each and every fact in evidence that supported its decision regarding die child’s name. But Mr. DeCoursey’s submission, paragraph 3, is accurate, in tiiat the court did apply the best interests test.”
The mother appeals.
Standard of Review
Where a child is bom to a nonmarital relationship and the issue is whether the child’s surname shall be that of the mother’s, the father’s, or both, we review such determination for an abuse of discretion. Struble v. Struble, 19 Kan. App. 2d 947, Syl., 879 P.2d 37 (1994). See M.L.M. v. Millen, 28 Kan. App. 2d 392, 394-95, 15 P.3d 857 (2000). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Did the District Court Abuse Its Discretion in Ordering a Change in J.N.L.M.’s SurnameP
Natural mother challenges tire district court’s order to change J.N.L.M.’s surname from her name, Miller, to the natural father’s surname, Killingsworth. She argues that the court failed to apply the proper legal standards and ignored undisputed evidence
“tiiat it would be in the best interests of the child to keep his motiier’s name when the child had used tiiat name since birth, knew his name, had Social Security and medical records in that name, had lived only with his mother and her parents since birth, and had been virtually unsupported by the father until the time of trial.”
Despite the district court’s assertion that our “caselaw and statutes are in somewhat of a state of confusion,” we believe that the legal standards applicable here are rather straightforward. The factors to be considered are, quite simply, the best interests of the child and the interests of the parents. These standards were initially established by our court in In re Application to Change Name, 10 Kan. App. 2d 625, 628-29, 706 P.2d 480 (1985), where we held:
“[PJarents have special rights and interests with regard to their children which our courts will seek to preserve. Therefore, we hold that in exercising the discretion implicit in deciding whether a reason for a name change has been shown . . . the court considering the proposed name change for a child should also consider the interests of the parents and the best interests of the child.” (Emphasis added.)
The importance of determining whether a name change is in the best interests of the child was emphasized in M.L.M. v. Millen, 28 Kan. App. 2d 392, where we reiterated “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.” (Emphasis added.) 28 Kan. App. 2d at 394-95. In an unpublished opinion cited by Mother, our court noted that Kansas has no presumption that the paternal surname should be used and that it is an abuse of discretion to rely on a perceived tradition as the basis for restoring the paternal surname. The court then suggested that application of the best interests test may include considerations such as:
“(1) the child’s preference in light of the child’s age and experience; (2) the effect of a name change on the development and preservation of the child’s relationship with each parent; (3) the length of time the child has used a name; (4) the difficulties, harassment, or embarrassment a child may experience from bearing the present or proposed name; (5) the possibility that a different name may cause insecurity and lack of identity; and (6) the motive or interests of tire custodial parent.” In re Marriage of Elkins, an unpublished opinion No. 74,118 filed May 3, 1996 (citing Hamby v. Jacobson, 769 P.2d 273 [Utah App. 1989]).
We embrace as consistent with Kansas law the authorities cited by Mother from other jurisdictions which reject any presumption for paternal surname. These authorities note that any tradition for a child to bear its paternal surname has become inappropriate in today’s culture. There is little reason today to fear the stigma of illegitimacy; “it is doubtful that [the child’s] retention of [his or] her mother’s surname would even raise an eyebrow, let alone subject [him or] her to ridicule or scorn.” Lufft v. Lufft, 188 W. Va. 339, 341, 424 S.E.2d 266 (1992); see Collinsworth v. O’Connell, 508 So. 2d 744, 747 (Fla. Dist. App. 1987); Aitkin County Family Service Agency v. Girard, 390 N.W.2d 906, 908 (Minn. App. 1986); Gubernat v. Deremer, 140 N.J. 120, 140, 657 A.2d 856 (1995); Petition of Schidlmeier by Koslof 344 Pa. Super. 562, 569-70, 496 A.2d 1249 (1985); In re M.C.F., 121 S.W.3d 891, 897 (Tex. App. 2003).
Here, Mother argues that the district court failed to make findings regarding the best interests of the child. Our examination of the record reveals that the district court paid lip service to the proper standard, but we find no actual objective consideration of the type of factors outlined in the In re Elkins opinion. Instead, it appears to this court that the district court either based its ruling on the perceived “game-playing” at the hospital, a misreading of our Millen decision, or on the mistaken notion that the father’s new-found parental interest justified the paternal surname. Frankly, we believe that careful scrutiny of the district court’s comments during the trial and from the bench reflect its view that children “should” have the names of their fathers, a view that is not consistent with Kansas law.
With regard to the perceived “game-playing” at birth, we disagree with the district court’s view of the law and its characterization of the evidence. In stating that but for “comments made by Ms. Miller,” the father’s name “would have been on the birth certificate in the first place,” the district court is apparently referring to the evidence that the mother invited the father to sign the birth certificate, but insisted that the child’s last name be hers, which prompted the father to refuse to sign. K.S.A. 65-2409a(c) provides, in part:
“If the mother was not married either at the time of conception or of birth, or at any time between conception and birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father on a form provided by the state registrar pursuant to K.S.A. 38-1138 . . . .” (Emphasis added.)
Thus, the mother s “comments” — or as the court characterized them on the docket sheet, “game-playing” — consisted of her exercising her statutory right to refuse her consent to enter father s name on the birth certificate. The court abused its discretion by mischaracterizing the evidence based on an apparent misconception of law.
With regard to the district court’s reliance on the Millen decision, we disagree with the district court’s reading and application of the Millen opinion. The district court appeared to rely on the following language from Millen, 28 Kan. App. 2d at 395: “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.” The court’s interpretation seems to be that this language requires that the child’s name be changed to prevent a mother from holding a father hostage as to the name of his child. This interpretation is incorrect. The mother/appellant in Millen argued K.S.A. 38-1130 prevented the court from changing the name of a child without the consent of both parents. Millen rejected the mother’s argument and adopted the holding of Struble, that a court has the authority and discretion to change a non-marital child’s name, but that the best interest of the child standard must be used in making the change. See Millen, 28 Kan. App. 2d at 394-95; Struble, 19 Kan. App. 2d at 949.
Moreover, the mother in Millen was affirmatively evading the father, had remarried and taken her husband’s name so that the child had neither parent’s surname, and the father was given primary residential custody of the child. This was clearly not the case here. Mother was granted primaiy residential custody of J.N.L.M., and she testified she would keep her surname in the event she married. The mother sought out the father’s assistance with J.N.L.M., but the father failed to show any significant interest in raising his child until filing the parentage action. Although the father claims he had doubts whether he was J.N.L.M.’s father after the off-hand comment by mother, he still believed the child was his as demonstrated by his claims of continued visitation and purported contributions of cash and baby supplies.
The district court here also cited as support for its decision this statement from Mitten: “The Kansas Parentage Act is to provide that every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his or her parentage.” 28 Kan. App. 2d at 395. The mother in Mitten, however, had taken a different name, so the child in question had a different name than either unmarried parent. In this case, J.N.L.M. shares his last name with his mother, and in the event she married, he would still share his last name with his mother. Accurate identification of his parentage would therefore be achieved by either the name Miller or Killingsworth. We conclude that the court erroneously construed and applied Mitten.
Because the district court failed to meaningfully apply the correct legal standards, relied upon an erroneous interpretation of K.S.A. 65-2409a(c) and associated testimony, misread and misapplied our court’s opinion in Mitten, failed to malee findings that would facilitate meaningful appellate review of the decision (see State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 [2000]), and made comments on the record that may be interpreted as directly contrary to Kansas law, we conclude that there has been an abuse of discretion.
Reversed and remanded to a different district judge for further proceedings consistent with this opinion. | [
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Marquardt, J.:
LSF Franchise REO I, LLC (LSF) appeals from a trial court order which quashed a garnishment of Polaris Restaurants, Inc.’s (Polaris) bank accounts. We affirm.
Emporia Restaurants, Inc.; Polaris Restaurants, Inc.; and North Star Holdings of Missouri, L.L.C., signed two promissory notes totaling $2,600,000. The notes were secured by a mortgage, assignment of leases and rents, and a fixture financing statement. By assignment, LSF is the holder of the notes.
On September 22, 2003, LSF filed a petition to foreclose on the mortgage and personal property collateral, and for breach of the promissory notes. On March 18,2004, the trial court filed a journal entry of judgment and foreclosure against Emporia Restaurants, Inc.; Polaris Restaurants, Inc.; and North Star Holdings of Missouri, L.L.C.
On July 23, 2004, the trial court issued a garnishment order to Commerce Bank (Commerce) for funds, credits, or indebtedness held by Commerce for Polaris not to exceed $2,624,361.61. Commerce answered the order stating that it held $33,686.73 in accounts belonging to Polaris.
Commerce subsequently amended its answer, stating that on the date the garnishment order was served, Polaris had two checking accounts with Commerce. One account had a balance of $24,069.66 and the other account had a balance of $9,617.07. However, deposits made to the accounts prior to receipt of the garnishment order which were part of the $33,686.73 reported to the trial court were returned to Commerce as unpaid by the paying bank. After subtracting the returned amounts, $9,086.73 remained in Polaris’ Commerce accounts.
On August 9, 2004, Polaris filed a motion to quash the trial court’s garnishment order. At the hearing, Polaris testified that one account was for operating funds and the other was a payroll account, although Commerce did not have them designated as such. Polaris had scheduled an electronic funds transfer for July 27,2004, in the amount of $8,791.64 for payroll taxes before it received the LSF garnishment. Polaris testified that Commerce’s amended garnishment answer indicated it held $6,670.66 in the operating account and $2,418.07 in the payroll account. The payroll account did not have sufficient funds to cover the transfer, so Polaris intended to transfer the money from the operating account into the payroll account to cover the electronic funds transfers for the payroll tax. Polaris argued that the funds in the account were not actually property of Polaris because the employee taxes were the property of the employees, United States Treasury, and the Kansas Department of Revenue.
The trial court found that the two accounts were actually held in trust for taxes and arrangements for payment of the taxes by electronic transfer were made prior to the receipt of the garnishment. The trial court found that the funds should be returned to Polaris for the purpose of paying taxes only. LSF appeals.
LSF argues that the trial court erred in granting Polaris’ motion to quash the garnishment, arguing that the funds in Polaris’ accounts could not be protected as payroll taxes. LSF argues that the account is not protected because Polaris did not designate it as a special account with the bank to be used exclusively for the purpose of paying taxes.
The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
K.S.A. 60-729 provides:
“Garnishment is a procedure whereby tire wages, money or intangible property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order.”
In this case, the garnished property consisted of funds in two accounts at Commerce in Polaris’ name. LSF argues on appeal that the funds were in Polaris’ account and were not designated with the bank as funds in which someone else had an interest. LSF argues that because Polaris could access the funds at any time and was not restricted as to how it could use the funds, the funds should have been garnished. However, LSF cites cases from other jurisdictions to support this argument. It cites to one Kansas case which deals with a similar issue in a different context.
In Capital Serv., Inc. v. Dahlinger Pontiac-Cadillac, Inc., 10 Kan. App. 2d 328, 699 P.2d 549, rev. denied 237 Kan. 886 (1985), the court was presented with an issue of a judgment creditor seeking to garnish funds from a debtor’s bank account. The bank refused to garnish the bank account because the account was a specially designated payroll account where the debtor could not draw funds for any purpose other than payroll. The debtor could not have withdrawn the money from the account to pay the creditor.
The Capital Services court found the bank appropriately refused to garnish those funds because the account was a special account, held in trust for a specific purpose. 10 Kan. App. 2d at 332.
In Capital Services, the bank refused to comply with the garnishment order. The issue was whether the bank could refuse to comply because of the special relationship with the debtor. Furthermore, although the Capital Services court held that the bank could refuse to garnish the funds when there was a special account set up for the debtor’s payroll, the court did not require a special account to be created in order to protect a payroll account. In the case at bar, Commerce complied with the order of garnishment, so the issue is not whether the bank can refuse to garnish the funds, but whether the debtor can overcome the garnishment order by presenting evidence to show the funds in the account belong to someone else.
No case could be found where a debtor claimed the money being garnished from a bank account was being held in trust for someone else. The most analogous situation is one of joint tenancy because a joint tenant does not technically own all the funds in an account. Likewise, in this case, Polaris is claiming it did not have ownership over all the funds LSF attempted to garnish. K.S.A. 60-733(a), (b), and (c) provide direction on the proper procedure for garnishing funds held by financial institutions. K.S.A. 60-733(d) provides information for the garnishee on how to answer an order of garnishment. With regard to joint tenancy, K.S.A. 60-733(f) provides:
“If an order of garnishment attaches funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company and tire garnishee holds funds or credits or is indebted to the judgment debtor in an account which judgment debtor owns in joint tenancy with one or more individuals who are not subject to the garnishment, the garnishee shall withhold the entire amount sought by the garnishment. Neither the garnishor nor the garnishee shall be hable to the joint owners if the ownership of the funds is later proven not to be the judgment debtors.” (Emphasis added.)
This statute recognizes that a debtor or joint tenant can offer proof as to the ownership of the funds. Though the judgment creditor is released from liability if the ownership of tire funds is later shown not to be the debtor’s, it does not preclude the offering of evidence prior to garnishment as to the ownership of the funds.
In Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382 (1978), a judgment creditor attempted to garnish a debtor s joint tenancy bank account established by the debtor with her spouse. The court held that the creditor could garnish the account, and such garnishment would sever the joint tenancy, leaving husband and wife as tenants in common. The Walnut Valley court also concluded that the burden of rebutting the presumption fell on the person attacking the presumption of equal ownership. Thus, the wife’s creditor could garnish only one-half of the account unless it could prove that the wife had a greater interest. Or, if the wife could prove that she had less than a one-half interest, the creditor would be limited to that amount. 223 Kan. at 463-64.
In joint tenancy cases, the financial institution is required to inform the creditor that the debtor’s account is held in joint tenancy. K.S.A. 60-733(d)(2). In this case, Commerce was unaware that the funds were intended to pay the IRS for payroll taxes and did not inform LSF that the funds belonged to someone else. However, “ ‘ [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.’ [Citation omitted]” Nicklin v. Harper, 18 Kan. App. 2d 760, 766, 860 P.2d 31, rev. denied 253 Kan. 860 (1993). If the money truly did not belong to Polaris, LSF was not entitled to garnish the funds.
At the hearing before the trial court, Polaris’ president testified that $8,610.20 was to be transferred from Polaris’ payroll account to the IRS. On July 23, 2004, an arrangement was made for an electronic transfer to the IRS on July 27. The president also testified that although some of the funds were in the operating account, Polaris had intended on transferring those funds to the payroll account to effectuate the transfer.
Garnishment is a statutorily created remedy, and there is nothing in the garnishment statutes which would prevent a court from hearing evidence about the ownership of funds in a bank account.
The trial court’s findings are supported by substantial competent evidence, and the trial court was not presented with any conflicting evidence. The trial court did not err in quashing die garnishment order.
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Hill, J.:
Craig and Charlene Heath appeal the court-ordered reestablishment of grandparent visits between their daughter and son and Craig’s mother, Judy Davis. The Heaths broke off all contact between their children and Davis after she advised social services, incorrectly, that their daughter may have been sexually abused. The Heaths claim that their decision to deny visitation, made as two fit parents in a continuing nuclear family, should be given absolute deference by the courts. Because our statute dealing with grandparent visitation makes no distinction between nuclear families and other types of families, we reject the Heaths’ conten tion. If the legislature wanted to create such a preference, it could have done so.
Further, the Heaths argue that the trial court erred by granting visitation with Davis. Also, they contend the evidence did not support a finding that there was a substantial relationship between their son and his grandmother that would compel grandparent visitation. As our rules require, after reviewing the evidence in the light most favorable to the party prevailing below, we find no error by the court when it granted Davis visitation. In like manner, we approve the district court’s treatment of both siblings similarly and together as a pair, despite the boy’s younger age and necessarily more limited relationship with his grandmother. We affirm.
Background Facts
Craig and Charlene Heath, married in August 1994, are the parents of B.H., a daughter born in August 2000, and C.H., a son bom in December 2002. Charlene also has a son, W., from a previous marriage. Davis is Craig’s mother and grandmother of B.H. and C.H. She is now married to Robert Davis, Craig’s stepfather.
Uneasy Relationship Between Mother and Grandmother
Testimony from the trial of this matter reveals that Charlene Heath has never experienced a welcoming relationship with her mother-in-law, Judy Davis, from the start of her marriage with Craig. Davis once told her that she knew that Craig should never have married her, that Craig was not happy, and that Charlene did not love Craig. From that point on, Charlene claimed she avoided Davis whenever possible. Davis admitted that she told Craig that she objected to his marriage to Charlene because Charlene was older than he and was divorced, and that she never saw Craig smile or be happy since the marriage.
Relationship between Grandmother Davis and the Grandchildren
Davis testified that B.H. was 3 days old when she first visited her at Charlene and Craig’s house. Afteiwards, she visited B.H. once a week for several weeks to take pictures of B.H. These weekly visits stopped after Davis became ill. However, Davis tes tified that she visited B.H. nine times in 2000, including a Thanksgiving celebration at her farm. Davis did not recall Charlene or Craig expressing any concerns to her regarding her care of B.H. Davis testified that in 2001 she had 12 visits with B.H. and an additional 6 visits where she would sometimes play with B.H. Most of these visits took place at Charlene and Craig’s house. She also testified that in 2001 she had telephone calls with B.H. and B.H. would laugh and giggle on the phone.
In 2002, Davis had six phone conversations with B.H. She stated that B.H. was able to talk in 2002 and that she knew her as “Granny.” Davis had a nickname of “Bibby” for B.H. She and B.H. began using tírese nicknames when B.H. was between 2 and 3 years old. Then in 2003, Davis called Charlene and Craig approximately 18 to 20 times. During these calls, B.H. would speak to her for a few minutes. Davis did not speak to C.H. because he was too young. Davis testified that when B.H. was older, Davis would cook, paint, make paper dolls, draw, color, play ball, play dress up, and take tractor rides with B.H.
At the time of trial, Davis had not seen the children since a December 2003 incident described later. C.H. was 1 year old at that time. Charlene testified that Davis had very little contact with C.H. and felt that Davis was always more interested in B.H. than C.H. Charlene did not believe Davis had a substantial and meaningful relationship with C.H. While Charlene acknowledged that Davis’ relationship with B.H. was different than her relationship with C.H., she also did not believe that Davis had a substantial relationship with B.H. Charlene simply does not believe it would be in B.H.’s or C.H.’s best interests to continue a relationship with Davis.
On the other hand, Davis testified that she visited C.H. when she visited B.H. She stated that during her visits, she mainly just held C.H. but also played with him some of the time. Davis also stated that while C.H. was originally intimidated by her glasses, he later would gurgle and laugh at her. Davis also testified that she would like to continue her relationship with B.H. and C.H.
Davis testified that Charlene and Craig asked her to watch W. frequently, including some overnight visits, starting when he was 5 years old. W. was 16 at the time of the trial in March 2005. W. is diagnosed as having ADHD and takes Ritalin. Davis testified that Charlene and Craig had neither complained about the way she looked after W., nor indicated a reluctance to have W. come to her house.
Overnight Visit December 2003
According to the district court, the “straw that broke the camel’s back” arose after an overnight visit of B .H. with Davis in December 2003. Davis stated that during the visit, B.H. complained about pain when she tried to have a bowel movement. Davis examined the child’s vaginal area. She claimed that B.H.’s vaginal area was red and swollen. When she asked B.H. what happened, B.H. responded by stating, “[T.] took an orange plastic snake and poked me in my pee pee and my bum.” B.H. has a cousin named [T.]. Davis testified that B.H. stated it hurt and that she could not go to the bathroom. Davis claimed that B.H. was restless for the remainder of the night. Davis told both parents the next morning, but they were not convinced that their daughter had been inappropriately touched.
After believing that the parents did not plan to seek any help for B.H., Davis called the parents several times and volunteered to pay for a doctor or psychologist to examine the girl. Davis believed B.H. had been traumatized and needed care. A couple of days after the sleep over, Davis called Social and Rehabilitation Services because she believed the parents were not going to seek help for B.H. Approximately 9 days after the visit, the parents took B.H. to see a family practitioner who found no evidence of trauma. Charlene sent this doctor’s report to SRS, and she was never contacted again by social services.
Charlene claimed that even after the doctor found no evidence of abuse, Davis still claimed that B.H. needed counseling. Charlene testified that Davis believed B.H. needed counseling for lying. At the time of the trial, Davis testified that she was willing to put the December 2003 incident behind her and move forward with her relationship with B.H. She is now willing to accept at face value the parents’ assertion that B.H. does not need psychological counseling and that whatever trauma may have existed is gone.
Conclusions of Court
The district court concluded that a substantial relationship existed between Judy Davis and B.H. before Craig and Charlene shut the door on them. The two clearly demonstrated mutual affection, and the relationship was good and positive for B.H. Because it was in B.H.’s best interests to continue this relationship, the court ordered monthly 4-hour visits.
Furthermore, the court decided that, due to C.H.’s young age, his relationship was more limited with his grandmother but was “developing.” The court decided that it was appropriate to deal with siblings similarly and together as a pair when ruling on the motion for grandparent visitation. Therefore, despite the more limited relationship, visits between C.H and Davis should start again as well.
In this appeal, the parents claim that their decision to cut off visitation with their children’s grandmother should be given absolute deference since they are two fit parents in a nuclear family. They also argue that the district court abused its discretion in granting Davis’ petition requesting visitation with B.H. and C.H. Finally, the parents claim that substantial evidence did not exist showing that Davis had a substantial relationship with C.H. or that it would be in C.H.’s best interest to continue the relationship with her grandmother.
Legal Standards
The statute that deals with grandparent visitation is K.S.A. 38-129. It succinctly states:
"(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established.”
When reviewing a district court’s decision regarding grandparent visitation, an appellate court should “review the evidence in a light most favorable to the prevailing party below to determine if sub stantial evidence exists to support the trial court’s findings. [Citations omitted.] ‘ “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved.” ’ [Citations omitted.]” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 653, 16 P.3d 962 (2001).
A review of the law concerning these types of cases reveals several points. A grandparent has the burden to prove the elements of K.S.A. 38-129(a) that would then compel court-ordered visitation with a grandparent. DeGraeve v. Holm, 30 Kan. App. 2d 865, 867, 50 P.3d 509 (2002). In Paillet, the court interpreted the United States Supreme Court case Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), as requiring a court to allow a presumption that a fit parent will act in the best interests of their child and requiring a court to give a fit parent’s decision regarding grandparent visitation special weight. 270 Kan. at 655-56. The court in Paillet went on to find that K.S.A. 38-129 was not unconstitutional on its face but was unconstitutional as applied in that case since the district court’s order failed to indicate that it considered the fitness of the parent or that the parent’s decision was given special weight. 270 Kan. at 657-60.
While a court must consider the fitness of a parent when making a determination on grandparent visitation, the court is not required to find parental unfitness before allowing grandparent visitation under K.S.A. 38-129(a). DeGraeve, 30 Kan. App. 2d at 867. As stated in DeGraeve:
“There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation under K.S.A. 38-129. However, a parent’s determination of what is in the child’s best interests is not always absolute; otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse. [Citation omitted.]” 30 Kan. App. 2d at 867.
Also, in In re T.A., 30 Kan. App. 2d 30, 35, 38 P.3d 140 (2001), the court stated; “The trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parent’s, absent a finding of unreasonableness.”
Absolute Parental Preference
In making this absolute preference argument to us, Craig and Charlene cite no case law but unsuccessfully attempt to persuade us with a law review article. In Carey, Grandparent Visitation Rights In Kansas: A Review Of Troxel v. Granville, 69 J.K.B.A. 14 (Oct. 2000), the author argues what tire courts should do:
“Imagine tire scenario of both parents who are married to each other deciding to deny access of their children to their grandparents for whatever reason. Under existing K.S.A. 38-129(a), grandparents have standing to sue the parents for visitation. Should tire district court award visitation under these circumstances? While the Troxel decision said nothing about court intervention in this type of case, the fact that two fit parents in a nuclear family situation jointly malee a decision regarding grandparent visitation should be given substantial, if not, absolute deference because of the family status. Therefore, tire trial court should probably dismiss the grandparent’s petition.” (Emphasis added.) 69 J.K.B.A. at 18-19.
The parents contend that this case is a clear example of what the author envisioned.
The trouble with this argument is that it ignores the statute, K.S.A. 38-129(a), a law that does not make any distinction between nuclear families and other families. In Paillet, 270 Kan. at 652-54, the court refused to create an exception in K.S.A. 38-129(a) that would allow grandparent visitation when the lack of a substantial relationship was caused by the parents’ refusal to allow visitation with the child. In making this determination, the court stated the statute is clear and unambiguous:
“The provisions of K.S.A. 38-129(a) are clear and unambiguous and do not provide for an exception to the requirement of finding the existence of a substantial relationship between die grandparents and grandchild. Clearly, the legislature, if it wanted to, could have included such an exception, but it did not do so. It is for tire legislature and not tire courts to ‘draft’ an exception to the statute.” 270 Kan. at 654.
In regards to this case, the legislature, if it had intended to, could have chosen to treat certain families differently by drafting the statute differendy. Since the legislature did not create an exception for nuclear families, this court will not “draft” one into the statute. Courts need not give absolute deference to the decision of two parents in a nuclear family to prohibit grandparent visitation.
Furthermore, we point out that when the district court correctly set forth the assumption that fit parents act in the best interests of their children and that their decision is given special weight, the court gave further credence to the assumption due to the nature of the family. Specifically, the court held:
“This court finds that Craig and Charlene are fit parents and that the law assumes they will act in the best interests of their children in determining visitation under K.S.A. 38-129 and this Court gives that presumption special weight. [Citation omitted.] This Court further notes this assumption is significant considering the fact that the [family is] an intact family.”
Accordingly, while the district court did not give the parents’ decision absolute deference, the court did give greater deference to the decision due to the nature of the family.
No Error in Granting Grandparent Visitation
We now examine the record in the light most favorable to Davis, who prevailed below. The district court set out in its order that the parents were fit parents and acknowledged that their decision was to be given special weight. The court also found that the reasons the natural parents listed in support of their determination to cut off visitation between Davis and B.H. and C.H. were “unreasonable, arbitrary and punitive.” The parents first argue that the district court erred in determining that their decision to cut off visitation with tire grandmother was unreasonable.
In viewing this in the light most favorable to Davis, we conclude that substantial evidence does exist to support the district court’s finding. The frequent visits, the telephone calls, and the nicknames were all persuasive evidence to the district court, and we will certainly not substitute our judgment for that of the trial court.
While the evidence clearly shows that hostility exists between Charlene and Davis, the evidence also shows that a substantial beneficial relationship existed between B.H. and the grandmother. We note that the parents do not appeal from the district court’s findings that a substantial relationship existed between Davis and B.H. and that it would be in B.H.’s best interests to continue the relationship. The evidence in this case does not show that B.H. or C.H. were abused or harmed in any way by Davis’ actions. Addi tionally, no evidence was presented that the hostility between Charlene and Davis was noticeable to B.H. or C.H. or somehow negatively affected them. Instead, the evidence shows that a productive relationship existed between the grandmother and the children. In fact, when the evidence is viewed in the light most favorable to Davis, substantial evidence exists showing that the decision to cut off visitation with the grandmother was unreasonable. Accordingly, the district court did not err.
Lack of Relationship with C.H.
The parents claim that substantial evidence does not exist showing that Davis had a substantial relationship with C.H. or that it would be in C.Ii.’s best interest to continue the relationship with his grandmother. We employ the same standard of review.
The district court found that at the time of trial, no current relationship existed between Davis and C.H. But, K.S.A. 38-129(a) does not require a current relationship to be shown in order to grant grandparent visitation. See State ex rel. Secretary of Dept. of SRS v. Strotkamp, 30 Kan. App. 2d 1143, 1146-47, 55 P.3d 924 (2002), where it was held:
“There is no requirement in the statute that the relationship must exist at the time of the hearing or for any length of time whatsoever. We do not believe that the court should read the statute to create additional requirements where none exist. We hold that a finding a substantial relationship has existed between the grandparent and the grandchild in the past is sufficient to satisfy the statutory requirements.”
While there is clearly sufficient evidence to show a substantial relationship between Davis and B.H., much less evidence exists showing that a substantial relationship existed between the grandmother and C.H. In its journal entry, the court characterized the evidence of the relationship between Davis and C.H. as a “limited” or “developing” relationship.
After finding that a “developing relationship” existed, the court stated: “Where siblings are at issue, it is generally appropriate to treat the siblings similarly and together in ruling on a motion for grandparent visitation under K.S.A. 38-129(a).” In support of this statement, the court cited Spradling v. Harris, 13 Kan. App. 2d 595, 778 P.2d 365, rev. denied 245 Kan. 786 (1989). In Spradling, the court found that it was in one child’s best interests to not be treated differently than her siblings in a K.S.A. 38-129(a) action. 13 Kan. App. 2d at 600. The district court here decided C.H. should be treated no differently than B.H. under these circumstances. The need to treat children alike supplies additional weight to a district court’s decision that a substantial relationship between a grandparent and grandchildren exists. Furthermore, the need to treat children similarly should be considered when deciding whether to continue a developing relationship between a very young child, such as the grandson here, and his or her grandmother. As an appellate court, we will not reweigh evidence under these circumstances.
In the present case, as in Spradling, the evidence showing the relationship between the grandmother and C.H. is limited. However, Davis testified that she was present when C.H. was taken home from the hospital after birth. She also testified that she had five or six visits with C.H. in 2003. Davis testified that she initially just held C.H., but she played with him more as he got older. She further testified that she believed C.H. knew who she was when she held him and that he eventually would giggle and laugh at her.
Since C.H. was only 1 year old when contact was cut off with Davis, it is difficult to determine what constitutes a substantial relationship. The needs and abilities of a 1-year-old and those of a 3-year-old to relate to anyone are vastly different. While the evidence supporting a finding that a substantial relationship existed is not overwhelming in this case, when the evidence is viewed in the light most favorable to Davis, there is sufficient evidence to support a finding that a substantial relationship existed. Accordingly, the district court did not err in finding that a substantial relationship existed between the grandmother and C.H.
More importantly, the district court also did not err in determining that it would be in C.H.’s best interests to continue the relationship with Davis. As the court found in Spradling, it is apparent that it is in C.H.’s best interests to be treated the same as B.H. Equal treatment of children that are similarly situated is a hallmark of our law concerning children. For example, K.S.A. 60- 1610(a)(5)(B) only allows siblings to be divided into separate residences after a divorce when the case is “exceptional.” Furthermore, nothing about the evidence presented at trial shows that C.H. would not benefit from having a relationship with his grandmother. The concerns expressed by the parents about further grandparent visits are speculative.
After reviewing the evidence presented at trial, it appears Davis has had a nurturing and positive relationship with both B.H. and C.H. Thus, substantial evidence exists to support the district court’s finding that B.H.’s and C.H.’s best interests would be served by allowing a relationship with their grandmother to continue.
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Greene, J.:
The Kansas Department of Revenue (KDOR) appeals the district court’s dismissal of driver’s license suspension proceedings against Jason Gudenkauf due to the arresting officer’s failure to comply with K.S.A. 8-1002(c) by serving Gudenkauf a copy of the officer’s certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 8-1002(c). We reverse and remand for further proceedings, concluding that service of the form was adequate.
Gudenkauf was arrested for driving while under the influence and transported to jail, where he refused to submit to a breath test. The arresting officer filled out the DC-27 form in Gudenkaufs presence, but Gudenkauf remained handcuffed due to his “uncooperative, rude, confrontational,” and “bizarre” behavior during transport. The officer testified:
“I finished the document and then thoroughly explained it to Mr. Gudenkauf part by part while placing it in front of his face so he could look at it, and continuously asked him if he had any questions about it, and I went through each part of it right in front of him. I asked him if he would like me to take the handcuffs off so that he could physically touch the document if he wanted to do that. He was looking around from me, refusing to speak to me, and continuously acting bizarre at that time. He wouldn’t answer me. So I thoroughly explained all of the parts of it before telling him with great clarity that I was — it was his, that he was being served with it, am now putting it in his property bag, and it was his, in his possession at that point.”
Gudenkauf testified that although he recalled sitting in handcuffs with the officer at the jail and refusing to answer questions, he did not remember either the officer placing the DC-27 in front of him at any time or offering to remove the handcuffs so he could touch the document. He also confirmed that the officer never touched him with the form and did not place it in his pocket.
Following an administrative hearing, the KDOR affirmed the suspension of Gudenkauf s driver’s license for his refusal to submit to alcohol testing. Gudenkauf filed his petition for review with the district court, which dismissed the proceedings, concluding that the arresting officer never personally served Gudenkauf with the DC-27 form as required by the statute. We review the district court’s fact findings to determine whether they are supported by substantial competent evidence, but we review questions of law, including statutory construction, de novo. See Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993); Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The transcript of the court’s statements from the bench indicate that the court accepted the officer’s testimony as true, but simply found the conduct inadequate to effect service:
“[Tjhere is three things there he says, look at it. Does looking at it, is that an offer to deliver a copy? I don’t think so.' Take the handcuffs off so he could — if he had any questions about it; well,- questions about it, again isn’t- — he may or may not have had questions about it, but that’s not the purpose of die delivery of it. So— and the other part was, touch it.
“. . . He didn’t refuse to touch it, he didn’t refuse to look at it — well, I’m not sure about that, but he looked away. I don’t know if he was looking at the form or not. But even if he looked at it tiiat doesn’t satisfy die requirement of personal service, and asking questions about it doesn’t satisfy. . . .
. . [T]lie officer didn’t testify that die plaintiff ever refused to accept service. He never refused, he just never answered, and the officer took that failure to speak as refusal to be personally served, left him handcuffed, never touched it, so I don’t believe there is any evidence that the defendant refused to accept service. He wasn’t served . . . .”
The parties concede that K.S.A. 8-1002(c) requires that the DC-27 form must be “served” upon the defendant “by the officer on behalf of the division of vehicles.” KDOR argues that “there was delivery, an offer to deliver, and a refusal by the plaintiff s uncooperative threatening conduct” regarding the DC-27 form. KDOR relies on K.S.A. 60-303(d)(4) and an unpublished opinion of this court in Ortiz v. Kansas Dept. of Revenue, No. 88,231, filed October 18, 2002.
We agree with KDOR that K.S.A. 60-303(d)(4) is applicable here; that statutory subsection addresses personal service when there is a refusal to accept process.
“In all cases when the person to be served, or an agent authorized by the person to accept service of process, refuses to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and the refusal shall be sufficient service of process.”
Here, we respectfully disagree with the district court regarding the effect of defendant’s refusal to respond to the officer’s attempt to deliver the form. The defendant had a clear opportunity to accept the form without compromising his right to remain silent. Under these circumstances, Gudenkauf was “offered” the DC-27, and his actions constituted a refusal to accept the offer to take delivery. Under K.S.A. 60-303(d)(4), Gudenkaufs refusal was sufficient service of the form.
We also agree with KDOR that the Ortiz decision is instructive. In Ortiz, the DC-27 was placed on the table directly in front of the handcuffed defendant who was told to take the form with him. When the form fell to the floor upon the defendant’s movement from the table, the officer picked it up and placed it in Ortiz’ pocket. The court found that “personal service occurred when [the officer] placed the form on the table in front of Ortiz and told him to be sure to take it with him.” Ortiz, Slip op. at 6. Similarly, the form was also placed before Gudenkauf; additionally, it was explained to him before he was declared served.
Gudenkauf argues that placing the notice in his belongings was not sufficient, citing Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 853 P.2d 69, rev. denied 253 Kan. 856 (1993). In Anderson, however, the defendant was not aware of the DC-27 form or its content until he was released from custody. In contrast, here the form was placed before Gudenkauf and was explained to him in some detail before it was placed in his belongings.
We conclude that placing the form DC-27 within the direct vision of the defendant and explaining its contents to him, together with offering physical delivery and ultimate placement of a copy in defendant’s belongings, is adequate to constitute personal service for purposes of K.S.A. 8-1002(c). To require more effective service under these circumstances would potentially imperil officer safety without accomplishing any more effective notice to the defendant of the consequences of his or her decision to decline testing. The district court erred in dismissing the proceedings due to failure of service.
Reversed and remanded for further proceedings. | [
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Greene, J.:
Landowners in Cowley County whose properties were purportedly damaged by a 1998 flood due to the actions or inactions of governmental entities involved in a highway/levee project appeal die district court’s summary judgment against them in favor of the City of Arkansas City (City) and the Kansas Department of Transportation (KDOT), arguing that the district court misapplied Kansas law governing liability of governmental entities. City and KDOT cross-appeal the district court’s refusal to make certain corrections to its memorandum decision. We affirm the district court’s summary judgment, rendering moot the cross-appeal.
Factual and Procedural Background
After suffering severe flood damages to their homes and businesses after the 1998 “Halloween Flood,” plaintiff landowners brought suit against City and KDOT alleging that in work on a flood control project, the purported removal from design or the delay in construction of a secondary levee (the Tieback Levee) that was intended to protect plaintiffs’ properties were acts of negligence and nuisance. Plaintiffs specifically alleged that “water which would never have flowed into the plaintiffs’ neighborhood was diverted there” as a result of defendants’ conduct. City and KDOT disclaimed any duty to plaintiffs and asserted various defenses and immunities under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
After extensive discovery including the depositions of respective experts, City and KDOT moved for summary judgment. Uncontroverted facts of interest to this appeal include the following:
In 1996, a joint levee/highway project was approved to construct two levees to the east of Arkansas City. One north/south levee would create a bypass for Highway 77 (the Bypass levee) and a second small east/west levee would stretch between the Bypass Levee and the existing north/south elevated embankment on which the railroad ran (the Tieback Levee). Together, the Bypass Levee and the Tieback Levee constituted the total Flood Control Project for the Walnut River (the Flood Control Project). Persons living outside the existing old Walnut River levee had no protection from the Walnut River prior to the construction of the Bypass Levee and the completion of the Tieback Levee.
The Flood Control Project was identified as KDOT Project No. 77-18 K-4431-01 and was submitted to the Kansas Department of Agriculture, Water Resources Division chief engineer for his required approval on November 27, 1995. The application was approved as Approval No. LCL-0045 on June 3, 1996, by the chief engineer, stating that “[a]ll work authorized by this approval shall be performed in accordance with the maps, plans, profiles and specifications filed with the application, and . . . the attached approval conditions.”
The Bypass Levee and KDOT Highway Bypass took a number of months to build. The operating parameter throughout the entire levee project was that until the new protection (the Bypass Levee and the Tieback Levee) was in place, the old protection (the existing Old Walnut River levee) was relied on.
Plaintiffs do not contend that the Flood Control Project was not constructed according to the design and plan submitted and approved by the chief engineer. Rather, plaintiffs claim that the plan as approved was defective for failing to incorporate a “contingency plan” which would provide plaintiffs, before the construction of the Flood Control Project was completed, with the level of protection intended to be achieved at its completion.
The Flood Control Project design and plan as submitted and approved were prepared in conformity with all applicable laws, regulations, and the generally recognized and prevailing engineering standards in existence at the time it was prepared. No regulations, requirements, or standards applicable to the Flood Control Project, including the regulations promulgated by the Department of Agriculture, Division of Water Resources, contain any requirement for a contingency plan during the construction of a levee.
The Bypass Levee portion of the Flood Control Project had been completed by the time of the 1998 flood. The KDOT Highway Bypass project was also completed by that time. The Tieback Levee portion of the Flood Control Project had not yet been completed at the time of the 1998 Flood due to delays by the Kansas Historical Society over a concern that American Indian artifacts might be buried in the area. Approval from the Historical Society was required before the Tieback Levee construction could begin.
The flood crest of the Walnut River during the 1998 flood reached an all-time historic high in Arkansas City, according to the National Weather Service records, and both the Old Walnut River Levee and the Old Arkansas River Levee were overtopped and breached.
Plaintiffs’ expert M.S. Mitchell admitted in his deposition that he knew of no requirements of any State of Kansas agency for there to be any type of contingency plan during construction of a flood control project. He also admitted that he knew of no regulations or requirements applicable to the Flood Control Project design or plan which would require a contingency plan to be included in the Flood Control Project design or plan.
Plaintiffs produced no evidence whatsoever that the volume or elevation of water on their properties during the 1998 flood was increased from the flooding they would have been subject to had the Bypass Levee not been constructed by that time. Furthermore, the calculations by defendants’ expert hydrologist, Jonathan Jones, based on available flood data, demonstrated that all plaintiffs would have experienced essentially the same amount of flooding on their property in 1998 if the Bypass Levee had not been constructed as they did in fact experience, taking into account all relevant factors.
The following facts were presented by the City and KDOT as uncontroverted, but plaintiff landowners then attempted to controvert them with an affidavit from their expert. The purported uncontroverted facts stated:
“[Plaintiffs expert] M.S. Mitchell admitted in his deposition that he knows of no project that had a contingency plan in place during construction of a flood control project.
“Plaintiffs’ expert M.S. Mitchell, admitted during his deposition that it is not necessary to have a contingency plan during construction of a flood control project because there may be many situations during the construction where someone could be adversely affected because of the stage construction was in.”
The controverting affidavit stated:
“I [M.S. Mitchell] have reviewed the Statement of Uncontroverted Facts put forth by the defendants in this case. It would appear the defendants have misunderstood my conclusions in this matter. It is not my position that a written contingency plan is required for every possible contingency that can arise during the construction of a flood control project. It is, however, clear to me that it is custom and practice in the industry — an industry I have been involved in for the last 50 years — that when changes are made that could expose parts of a project to flooding there is an obligation on the part of parties responsible for the construction to develop a contingency plan to minimize the effects of that change on the total project. This is certainly custom and practice in the industry and in my view certainly not a matter of discretion. I have worked on and around flood control and drainage projects for the last half century and have never seen a situation like this in which the sponsor of the project made changes to the project and failed to make provisions to protect its citizens. Again, this to me is not a matter of discretion. Custom and practice in the industiy require this.”
Ultimately, the district court sustained City and KDOT motions for summary judgment and dismissed the claims of negligence and nuisance in a comprehensive memorandum opinion, concluding:
“The opinions of defendants’ expert are based on data accumulated and analyzed by the witness and are within the scope of his expertise. The data analyzed proportions the significance of the opinion, in the absence of a countervailing opinion, to the level of compelling under the maxim quoted in Mid-State Fertilizer v. Exchange Nat. Bank, 877 F.2d at 1339, cited in City of Chanute v. Williams Natural Gas Co., 743 F. Supp. 1437 at 1444. The opinion of defendants’ expert is that construction of the bypass levee was not the proximate cause of the flooding of plaintiffs’ properties: the flooding would have occurred if the bypass levee had never been built and the flooding experienced by plaintiffs was not the result of construction of the bypass levee to the stage accomplished at the time of the 1998 flood. Plaintiffs offer no testimony to challenge the opinions of defendants’ expert, which are admissible as facts within the requirements of K.S.A. 60-256(e). Under the rule of Celotex [Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)], adopted in Kansas, plaintiffs have failed to establish a genuine dispute to a material fact — proximate cause of their injuries by the negligent acts of defendants — on which they would have the burden of proof on trial. Based on the summary judgment record herein, defendants, and each of them, are entitled to judgment against each of the named plaintiffs dismissing the plaintiffs’ individual causes of action.”
Defendants later filed a motion for an order nunc pro tunc to correct purported misstatements in the memorandum decision, specifically requesting correction of “two inadvertent errors in three sentences of Judge Bishop’s 18-page Memorandum Decision.” District Court Judge Robert L. Bishop filed a journal entry taking under advisement die requested amendments. Judge Bishop then retired, which left the issues to be decided by Senior Judge Jack L. Lively, who decided the “suggested changes [were] substantive and inconsistent with Judge Bishop [’]s filed memorandum” and could not be corrected. Plaintiffs filed a timely appeal; defendants filed a timely cross-appeal.
Standard of Review
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 summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, an appellate court must apply the same rules and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Did the District Court Err in Granting Summary Judgment for the City and KDOTP
Plaintiff landowners essentially complain on appeal that the district court erred in applying Kansas law to the uncontroverted facts, which they contend demonstrated that City and KDOT undertook a discretionary act and thereafter performed that act in a manner that constituted negligence or nuisance. They articulate this argument as follows:
“The decision of the defendants to remove the protection of the tie-back levee protecting the plaintiffs was a discretionary judgment by these defendants. The plaintiffs do not attack this decision. The defendants are liable because once they exercised their discretion and decided to remove the tie-back levee from the project, they were under an obligation to do so in a non-negligent manner. They likewise were not free to create a nuisance in the process.”
We begin by examining tire applicable statute establishing immunity from liability of governmental entities for performance of discretionary acts. K.S.A. 2005 Supp. 75-6104 provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved;
"(m) the plan or design for the construction of or an improvement to public property, either in its original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of die governmental entity or some other body or employee exercising discretionaiy authority to give such approval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
The uncontroverted facts clearly established that the entirety of the highway/levee project was authorized and approved by the Kansas Department of Agriculture, Water Resources Division. Although plaintiffs apparently now contend that the design — as modified for delay in completion of the Tieback Levee — -was not in conformity with generally recognized and prevailing standards, we note that plaintiffs made no attempt to controvert the fact statement suggesting the design was formally approved. Instead, plaintiffs submitted a belated affidavit of their expert suggesting that it is custom and practice in the industry to create a contingency plan to address changes made during construction of a flood control project.
Contrary to Mitchell’s deposition testimony that he knew of no project that had a contingency plan in place during construction and that it was not necessary to have such a plan, the belated affidavit suggested that such contingency plans were the custom and practice in the industry. Given the expert’s deposition testimony, this affidavit was ineffective to create a genuine issue of material fact. See Mays v. Ciba-Geigy, 233 Kan. 38, Syl. ¶ 1, 661 P.2d 348 (1983) (party may not defeat summary judgment by filing a subsequent affidavit impeaching previous deposition testimony). Accordingly, in the absence of facts demonstrating that K.S.A. 2005 Supp. 75-6104 is not applicable, City and KDOT were immune from liability by reason of this statute. Although this plan/design immunity was not the express basis for the district court’s decision, it serves as an alternate basis for our conclusion to affirm the district court’s dismissal of plaintiffs’ action.
Second, and perhaps more fundamental, established Kansas law generally recognizes no action against governmental entities for failure to control surface waters or for any increased or accelerated flow caused by lawful improvement, especially where it is demonstrated that the public improvement caused no greater amount of damage to adjoining landowners than would have been caused without the improvement. A city has no duty to provide drainage to take care of surface waters, and ordinarily its failure to protect citizens from surface water is not actionable. Baldwin v. City of Overland Park, 205 Kan. 1, Syl. ¶ 3, 468 P.2d 168 (1970).
“ ‘In the control and disposition of surface waters, municipal corporations ordinarily have the same rights and are subject to the same liabilities as private persons. In the absence of statute or charter providing otherwise, they are under no obligation to prevent the natural flow of surface waters or to protect private property from damage therefrom, and they are not liable for any damage caused thereby.’ [Citation omitted.]” 205 Kan. at 7.
“As a general rule, a municipal corporation is not liable for damage caused by tlie increased or accelerated flow of surface waters which have not been diverted from their natural course, or by the incidental change or interruption in, the discharge of, or the increased or accelerated flow of surface waters caused by the lawful improvement of its streets or the making of other public improvements.” Williamson v. City of Hays, 275 Kan. 300, Syl. ¶ 5, 64 P.3d 364 (2003).
"In any event, if the act of the district in its work on a flood control project did not result in a greater amount of damage to landowners from overflow than would have been caused if there had been no change, the district will not [be] liable to the landowners.” 52B C.J.S., Levees & Flood Control § 19, p. 551.
The district court viewed the last of these principles as the mere application of a proximate cause requirement and cited Cole v. Shell Petroleum Corp, 149 Kan. 25, 36-37, 86 P.2d 740 (1939), where the court stated:
“The record fails to disclose plaintiffs crops would not have been damaged or that they would not have been damaged to the same extent except for the [defendant’s] structures themselves or the structures as maintained. In fact, we think the damage occurred independent of the structures as maintained. That being true, there could be no recovery even though it were conceded, which it is not, that defendant had been negligent in the erection or maintenance of the structures. [Citations omitted.] . . .
“ ‘The principle involved is simply that of causation. Except when there are joint tort-feasors "a defendant’s tort cannot be considered the legal cause of plaintiff s damage, if that damage would have occurred just the same even though defendant’s tort had never been committed.” ’ [Citations omitted.]”
We agree with the district court. In the absence of evidence that any acts or omissions of the defendants — including the delay in completion of the Tieback Levee — caused flood damage in excess of that which would have been sustained in any event, there was simply no proximate cause established. Whether plaintiffs’ claims are characterized as negligence or nuisance, defendants were entitled to judgment as a matter of law. See Williamson, 275 Kan. at 311; Baldwin, 205 Kan. 1, Syl. ¶ 2; Culwell v. Abbott Construction Co., 211 Kan. 359, 364, 506 P.2d 1191 (1973).
The cross-appeal merely challenges the district court’s failure to make corrections to the memorandum of decision and is moot by reason of our conclusions above.
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Malone, J.:
Richard L. Berry appeals the judgment against him for violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. Berry claims the trial court erred by granting a directed verdict in favor of the State on three separate KCPA violations. Beriy also claims the trial court lacked subject matter jurisdiction to enter a judgment regarding one of the transactions.
The State brought an action against Beriy for violations of the KCPA in relation to three separate transactions. The first transaction involved the sale of a horse to Raymond Sawyer. In response to Berry’s advertisement, Sawyer contacted Beriy looking for a trained roping horse. Sawyer went to Berry’s ranch where Berry showed Sawyer a horse. According to Sawyer, Berry assured him the horse was a “finish roping horse.” Sawyer did not attempt to ride the horse that day because it was sick. Sawyer returned to Berry’s ranch 1 week later, but because the horse was still a little sick, Sawyer did not do any roping.
According to Berry, he told Sawyer that he probably should not buy the horse because Beriy believed the horse was “too much” for Sawyer’s abilities. However, Sawyer insisted on purchasing the horse, indicating his friends would teach him how to ride and rope off the horse. Beriy anticipated Sawyer might want to return the horse. Thus, Beriy explained to Sawyer that if the horse did not work for any reason, he had 30 days to bring it back to exchange for another horse. However, Berry would not refund his money.
On June 18, 2000, Sawyer and Berry reached an agreement whereby Sawyer paid $3,500 as a down payment for the horse and another $500 upon possession. Immediately after taking possession of the horse, Sawyer took it to an arena and attempted roping. According to Sawyer, the horse did not track the steers properly out of the gate. A couple of Sawyer’s friends, who were more ex perienced ropers, also attempted to rope steers with the horse but had the same results as Sawyer. Sawyer returned the horse to Berry for a refund. Beny gave Sawyer a check for $4,000, but told Sawyer to hold the check for a few days because Berry needed to sell a couple of horses before the check would clear. The date on the check was left incomplete, only indicating a month and year.
According to Berry, Sawyer returned the horse because he found another horse he liked better and which was cheaper. Beny refused to refund Sawyer’s money for the horse, but he did offer to sell the horse for Sawyer. Berry knew someone who would be willing to buy the horse and believed he could have the horse sold in a couple of weeks. Thus, Berry gave Sawyer the partially dated check so that Sawyer could cash it as soon as the horse was sold.
Upon return to Berry, the horse was 100 pounds underweight and within 2 weeks the horse started losing its equilibrium. The veterinarian diagnosed the horse with possum disease. The horse did not respond to treatment, and Berry had to destroy the horse. Berry’s check to Sawyer never cleared the bank.
The second transaction involved the sale of a horse to Stephen and Vera Gannaway. Vera Gannaway taught horseback riding lessons. One of her students was looking for a horse that could jump and perform dressage. After seeing Berry’s advertisement in the Kansas City Star, Vera Gannaway contacted Berry. Berry brought a horse to Gannaway’s arena. Gannaway’s student was unable to be at the arena that day; however, Gannaway and her trainer rode the horse. According to Gannaway, they walked, trotted, and cantered the horse but did not do any jumping. Gannaway believed tire horse was able to jump because Berry told her a child had been jumping the horse within the last couple of years.
According to Berry, however, Gannaway and the trainer jumped the horse over 1-foot high obstacles. While Gannaway rode the horse, Berry and Gannaway’s husband discussed the clicking sound that came from the horse’s knees, and Beny stated this indicated arthritis. Beny also informed Gannaway about the horse’s last véterinary examination with Dr. Todd Welsh. According to Beny, Welsh noted tire horse had arthritis in both front legs and a right front low heel. Welsh further indicated the horse was able to do some light riding in an arena or on grass trails and some light jumping over 1- to lVfofoot obstacles.
On August 15, 2002, Gannaway agreed to purchase the horse for $2,500. Gannaway prepared a contract which contained a veterinary inspection provision allowing Gannaway to return the horse within 30 days for a full refund if the veterinary inspection revealed any “defects, imperfections, abnormalities, deformities, irregularities, illnesses, or diseases that may inhibit or affect the health, soundness, performance ability, or resale ability of the horse.”
One week later, Dr. Jon Haggard performed a veterinary inspection of the horse. Haggard determined the horse was not “vet sound,” which meant the horse was not suitable for jumping. The father of Gannaway s student decided he would not purchase the horse.
Vera Gannaway attempted to contact Berry several times via telephone calls and a letter to request a refund or to renegotiate the purchase price of the horse. Berry refused to cooperate. Berry believed he had fulfilled his part of the agreement. He believed Gannaway knew of the horse’s arthritis before she purchased it and was attempting to back out of the contract because Gannaway’s agreement with her student fell through. Gannaway eventually sold the horse for $1,500.
A third transaction involved the sale of cattle to Firman Brandt. After seeing Beriy’s advertisement in the Grass & Grain magazine for the sale of 80 head of cattle, Brandt’s business partner, Clint Wiese, contacted Berry. Wiese and Brandt traveled to Boonville, Missouri, to meet Berry and inspect the cattle. According to Brandt, Berry informed him that he owned the cattle they were viewing.
On May 25, 2004, Brandt paid Berry $80,000 for 80 head of cattle. According to Berry, he did not own the cattle when he showed them to Brandt; rather, Brian Ackerman owned the cattle at the time. However, Berry had an agreement to buy 250 head of cattle from Ackerman. Berry wired Ackerman $70,000 of the $80,000 Brandt had paid. However, Ackerman informed Berry that he had found another purchaser for the cattle, who was willing to pay more money; therefore Ackerman chose not to sell the cattle to Berry. Ackerman returned the $70,000 to Berry.
Berry explained these circumstances to Brandt and offered to complete the transaction by providing 80 head of cattle from another herd which he owned near Wichita. Brandt refused the offer and demanded a refund. Berry returned $70,000 to Brandt that Beriy had received back from Ackerman. However, Berry had already used the remaining $10,000 to pay off another loan. About 9 weeks after the initial transaction, Berxy refunded the remaining $10,000 to Brandt, plus $300 in interest.
On September 3, 2004, the State filed a petition against Berry, alleging violations of the KCPA in relation to die three transactions. Regarding the Sawyer transaction, the State alleged Berry committed deceptive acts and practices in violation of K.S.A. 50-626(b)(1)(A), K.S.A. 50-626(b)(1)(D), K.S.A. 50-626(b)(1)(F), and K.S.A. 50-626(b)(2). The State also alleged Berry committed unconscionable acts in violation of K.S.A. 50-627(b)(1), K.S.A. 50-627(b)(3), and K.S.A. 50-627(b)(6). Regarding the Gannaway transaction, the State alleged Berry committed deceptive acts and practices and unconscionable acts in violation of the same statutory provisions as alleged in the Sawyer transaction. Regarding the Brandt transaction, the State alleged Berry committed deceptive acts and practices in violation of K.S.A. 50-626(b)(2), K.S.A. 50-626(b)(3), K.S.A. 50-626(b)(5), and K.S.A. 50-626(b)(6). The State also alleged Berry committed unconscionable acts in violation of the same statutory provisions as alleged in the Sawyer and Gannaway transactions.
The case proceeded to a jury trial. After both sides presented evidence regarding all three transactions, the State moved for a directed verdict. The trial court granted the State’s motion for a directed verdict on all three transactions. On tire Sawyer transaction, the trial court determined Berry committed an unconscionable act in violation of K.S.A. 50-627(b)(6). On the Gannaway transaction, the trial court determined Berry committed a deceptive act and practice in violation of K.S.A. 50-626(b)(3). On the Brandt transaction, the trial court determined Berry committed a deceptive act and practice in violation of K.S.A. 50-626(b)(2). The trial court made no findings regarding any of the other alleged violations. The trial court granted judgment against Beriy and ordered him to pay $10,000 in civil penalties for each of the three transactions. The trial court also ordered Berry to pay restitution in the amount of $4,300 to Gannaway and $16,000 to Brandt and to pay reasonable expenses and investigative fees to the State in the amount of $7,500. Berry timely appeals.
Berry claims the trial court erred by granting a directed verdict in favor of the State on all three transactions. AJso, regarding the Brandt transaction, Berry claims the trial court lacked subject matter jurisdiction to consider the alleged KCPA violations because the cattle were sold in Missouri.
" ‘When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ [Citation omitted.]” Wilkinson v. Shoney's, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
Brandt transaction
We will first consider Berry’s claim that the trial court lacked subject matter jurisdiction to consider the alleged KCPA violations in the Brandt transaction. Berry contends the KCPA applies only to transactions that occur in Kansas. He asserts the cattle were sold in Missouri and any misrepresentation about ownership occurred in Missouri; therefore, the trial court lacked subject matter jurisdiction over this transaction.
A challenge to the trial court’s subject matter jurisdiction raises a question of law. Thus, this court’s scope of review is unlimited. Morgan v. City of Wichita, 32 Kan. App. 2d 147, 154, 80 P.3d 407 (2003).
K.S.A. 50-624(c) provides:
“ ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” (Emphasis added.)
In Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 13, 637 P.2d 458 (1981), rev. denied 230 Kan. 819 (1982), the defendant’s car dealership was located partially in Missouri and partially in Kansas. The defendant advertised over a Kansas radio station and in a Kansas newspaper, soliciting customers to lease the defendant’s vehicles. In response to the advertising, the plaintiff traveled to the dealership to discuss leasing a vehicle. The lease agreement was signed in Missouri.
The plaintiff brought a KCPA claim against the defendant arising from the lease agreement. The defendant challenged the court’s jurisdiction because the lease agreement was signed in Missouri, but the plaintiff argued there was jurisdiction because the solicitation occurred in Kansas. The court construed the language of K.S.A. 50-624(c) concerning solicitation and noted: “[I]t is difficult to believe the legislature intended [to include] only sohcitations which resulted in a sale or lease of property within [Kansas], If that were the meaning intended there would be little or no need for adding the solicitation provision . ...” 7 Kan. App. 2d at 12. The court concluded:
“We hold that under K.S.A. 50-624(c), which defines a consumer transaction subject to the requirements of the Kansas Consumer Protection Act, a solicitation by a supplier may be sufficient to subject a supplier to tire requirements and penalties of the Act regardless of whether the solicitation results in a sale, lease or other disposition of propertu within the State of Kansas.” (Emphasis added.) 7 Kan. App. 2d at 13.
Similarly, in this case, the initial solicitation occurred in Kansas but the contract was signed in Missouri. Berry argues that any misrepresentation concerning the ownership of the cattle occurred in Missouri. However, in Watkins, the alleged deceptive act also occurred in Missouri, but the court still concluded there was jurisdiction to bring the claim in Kansas based on the solicitation. Accordingly, we conclude Berry’s solicitation in Kansas was sufficient to subject him to the requirements and penalties of the KCPA. The trial court had subject matter jurisdiction to enter a judgment against Berry regarding the Brandt transaction.
Turning to the merits of the Brandt transaction, the trial court concluded Berry engaged in a deceptive act of misrepresentation during contract formation by willfully stating he owned cattle, which he did not own. Therefore, the trial court found that Berry “willfully misrepresented a material fact” in violation of K.S.A. 50-626(b)(2), and granted a directed verdict in favor of the State. Whether Berry engaged in a deceptive act in violation of the KCPA typically is a jury question. See Queen v. Lynch Jewelers, LLC., 30 Kan. App. 2d 1026, 1038, 55 P.3d 914, rev. denied 275 Kan. 965 (2002). The question is whether reasonable minds could have reached different conclusions about whether Berry willfully misrepresented his ownership in the cattle.
Berry acknowledged he did not own the cattle when he showed them to Brandt; rather, Ackerman owned the cattle at the time. However, Berry testified he was already buying 250 head of cattle from Ackerman and, in fact, Berry wired Ackerman $70,000 of the $80,000 Brandt had paid. Berry contends even if he did not own the cattle at the time he sold them to Brandt, he did not intend to willfully misrepresent ownership of the cattle in an attempt to deceive Brandt.
There was evidence at trial, through Berry’s own testimony, to support his assertion. Berry’s testimony indicated he was a broker in the catde business, and prospective buyers understand a broker may not own the cattle at the time of a sales contract. Instead, according to Berry, the broker often purchases the cattle after a sales transaction has taken place. Berry testified that it is common for brokers to run advertisements attempting to sell cattle that they do not yet own.
The issue for the factfinder was whether Berry “willfully misrepresented” ownership of the cattle. Berry’s state of mind was at issue and his credibility was a question for the jury. As a result of Berry’s testimony, the jury may have concluded the State failed to prove that Berry willfully misrepresented his ownership of the cattle. When reviewing the evidence in Berry’s favor, reasonable minds could have reached a different conclusion than the trial court concerning the alleged deceptive act. Accordingly, the trial court erred in granting the State’s motion for a directed verdict concerning the Brandt transaction.
Gannaway transaction
Regarding the Gannaway transaction, the trial court concluded Berry engaged in a deceptive act of misrepresentation during contract formation by concealing facts from Gannaway. Specifically, the trial court found Berry had no intention of honoring the veterinary inspection provision of tire contract, which allowed Gannaway to cancel the sale if fire horse did not “vet check” to her satisfaction. The trial court found Berry “willfully concealed a material fact,” in violation of K.S.A. 50-626(b)(3), and granted a directed verdict in favor of the State.
Again, whether Berry engaged in a deceptive act in violation of the KCPA typically is a jury question. See Queen, 30 Kan. App. 2d at 1038. The question here is whether reasonable minds could have reached different conclusions about whether Berry willfully concealed a material fact.
The veterinary inspection provision of the contract provided:
“A) The purchase of this horse by Buyers is contingent upon tire horse passing a veterinary inspection to the sole satisfaction of Buyers. . . .
“B) Seller agrees that if the veterinary inspection reveals any defects, imperfections, abnormalities, deformities, irregularities, illnesses, or diseases that may inhibit or affect the health, soundness, performance ability, or resale ability of the horse, Buyers may return the horse to Seller for a full refund of all moneys paid to Seller by Buyers. Buyers agree that if they decide to return the horse, they will return him no later than 30 days after taking possession of the horse, unless otherwise agreed by the parties.”
Berry testified he believed the veterinary inspection provision provided for a full refund only if the horse had any life-threatening diseases or illnesses, but not for known prior existing conditions. Berry contends even if his interpretation of the veterinary inspection provision was incorrect, his subsequent refusal to refund Gannaway’s money did not establish that he willfully concealed a material fact during contract formation.
There was evidence at trial, through Berry’s own testimony, to support his assertions about the Gannaway transaction. According to Berry, he intended to honor the veterinary inspection provision if the horse had any life-threatening diseases or illnesses. However, Berry testified Gannaway knew of the horse’s arthritis and knee condition. According to Berry, he and Gannaway’s husband discussed the clicking sound coming from the horse’s knees, which Berry attributed to arthritis. Berry also informed Gannaway of Welsh’s veterinary examination findings, which included arthritis in both front legs and a right front low heel. Berry testified he believed the contract’s veterinary inspection provision did not apply to preexisting conditions which had been disclosed to Gannaway.
Gannaway drafted the contract. Therefore, even though the veterinary inspection provision seems unambiguous, there was a possibility that Berry had a different interpretation of the provision. Admittedly, the contract specifically provided that the “agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this agreement, shall not be binding upon either party except to the extent incorporated in this agreement.” Had tins been a breach of contract action brought by Gannaway against Berry, Gannaway would have been entitled to a directed verdict on whether the contract had been breached. However, the issue in the KCPA claim was whether Berry “willfully concealed a material fact” concerning the contract. Berry’s state of mind and his interpretation of the contract were relevant to whether Berry willfully concealed an intention not to honor the contract.
The jury should have been allowed to review the conflicting evidence and determine whether Berry’s actions involved willful concealment. When reviewing the evidence in Berry’s favor, reasonable minds could have reached a different conclusion than the trial court. Accordingly, the trial court erred in granting the State’s motion for a directed verdict on the Gannaway transaction.
Sawyer transaction
The trial court concluded Berry engaged in an unconscionable act during contract formation by expressing a misleading statement of opinion regarding the training and abilities of the roping horse purchased by Sawyer. The trial court determined “Berry’s credibility and manner of presentation in court granted no foundation upon which a reasonable person could conclude that [the horse] was a trained roping horse.” The trial court also found that Sawyer relied upon Berry’s statement to his detriment. Thus, the trial court determined Berry violated K.S.A. 50-627(b)(6), and the court granted the State’s motion for a directed verdict.
As with the Brandt and Gannaway transactions, Berry’s testimony regarding the Sawyer transaction conflicted with the State’s evidence, and questions of fact were presented to the trial court. Although we have determined this precluded a directed verdict in the Brandt and Gannaway transactions, there is one important distinction concerning the Sawyer transaction. After hearing the evidence concerning the Sawyer transaction, the trial court determined Beriy had committed an unconscionable act in violation of K.S.A. 50-627(b)(6), as opposed to the deceptive acts the trial court found Berry committed in the other two transactions. While the determination of whether a party has engaged in a deceptive act in violation of the KCPA typically is a jury question, the unconscionability of an act or practice is a question for the court. K.S.A. 50-627(b). This affects our standard of review on whether the trial court erred in granting a directed verdict on this claim.
Berry disagrees and argues it should have been up to the jury to resolve the disputed fact of whether Berry made a misleading statement about the training and abilities of the horse he sold to Sawyer. If tire jury so found, it would have then been up to the court to determine whether this constituted an unconscionable act. We find no support for Berry’s argument. To the contrary, in Swanston v. McConnell Air Force Base Fed’l Cred. Union, 8 Kan. App. 2d 538, 542, 661 P.2d 826 (1983), the plaintiff brought claims against the defendant under the KCPA alleging both deceptive acts and practices and unconscionable acts. After hearing the evidence, the trial court directed a verdict in favor of the defendant on all claims. On appeal, the court determined there was conflicting evidence, and the trial court erred in granting a directed verdict concerning the alleged deceptive acts and practices. However, the court noted the unconscionability of an act is a question of law for the court to determine. The court concluded tire trial court’s judgment as to the claim of unconscionability was not erroneous as a matter of law and upheld the directed verdict on the unconscionability claim. 8 Kan. App. 2d at 542.
Thus, in judging a claim of unconscionability, the court determines both the facts and the ultimate legal conclusion. In making this determination, the court is permitted to weigh the credibility of the witnesses. Because the unconscionability of an act is a question for the court, tire appellate court’s review of such a determination is unlimited. State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 1317, 38 P.3d 707 (2002); Farrell v. General Motors Corp., 249 Kan. 231, 238, 815 P.2d 538 (1991). Furthermore, the credibility of a witness will not be reweighed on appeal. ConfiMed.com, 272 Kan. at 1322.
Here, the trial court believed Sawyer’s testimony over Berry’s. Sawyer testified he contacted Berry about purchasing a trained roping horse. Beriy showed Sawyer the horse and assured him it was a “finish roping horse.” Sawyer was unable to rope with the horse prior to the sale, so he purchased the horse based on Berry’s word that it was roping horse. After the sale, Sawyer took the horse to an arena and attempted to rope steers; however, the horse was unable to track the steers out of the gate. A couple of Sawyer’s friends, who were more experienced ropers, also attempted to rope steers with the horse but had the same results as Sawyer.
Under these facts, the trial court did not err in determining Berry engaged in an unconscionable act during contract formation by expressing a misleading statement of opinion regarding the training and abilities of the horse purchased by Sawyer. Accordingly, the trial court did not err in granting the State’s motion for a directed verdict regarding this violation of the KCPA.
In summaiy, we conclude the trial court erred in granting a directed verdict in favor of the State in the Brandt and Gannaway transactions. The case is remanded for further proceedings concerning those claims. The trial court’s judgment against Berry concerning the Sawyer transaction is affirmed.
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Rulon, C.J.:
Defendant Maurice Miles appeals the sentence imposed for his conviction for conspiracy to manufacture methamphetamine, arguing the conduct proscribed by K.S.A. 65-4159(a) is identical to the conduct proscribed by K.S.A. 65-4152(a)(3). Under the reasoning of State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), the defendant contends he should have been sentenced to the lesser of the penalties prescribed by the two statutes, a severity level 4 offense. We affirm.
The State charged the defendant with manufacture of methamphetamine, in violation of K.S.A. 65-4159(a), or in the alternative, attempted manufacture of methamphetamine, in violation of K.S.A. 21-3301 and K.S.A. 65-4159(a); unlawful possession of ephedrine or pseudoephedrine, in violation of K.S.A. 2001 Supp. 65-7006(a); and possession of drug-manufacturing paraphernalia, in violation of K.S.A. 65-4152(a)(3).
Pursuant to plea negotiations, the defendant entered a plea of nolo contendere to the charge of conspiracy to manufacture methamphetamine. In exchange, the State dismissed the remaining counts. Consistent with the holding of McAdam, the district court sentenced the defendant to 26 months based upon a severity level 3 drug felony conviction. The sentence was ordered to run consecutive to a Missouri sentence.
The defendant contends the district court should have sentenced him for a severity level 4 drug felony because some of the conduct proscribed in K.S.A. 65-4152(a)(3) is identical to the conduct proscribed by K.S.A. 65-4159(a). Where two statutes with differing penalties proscribe identical conduct, a criminal defendant may be sentenced only to the lesser of the two penalties. See McAdam, 277 Kan. at 145-46.
Despite the defendant’s failure to raise this issue before the district court, this court possesses jurisdiction to review this sentencing claim on a direct sentencing appeal. See State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004). The issue raised in this appeal requires this court to construe the pertinent statutes, which is a question of law subject to unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 65-4159(a) provides: “Except as authorized by tire uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is a controlled substance within the meaning of the statute. See K.S.A. 65-4150(a) and K.S.A. 65-4107(d)(3).
K.S.A. 65-4152(a)(3) states: “No person shall use or possess with 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.”
“Drug paraphernalia” is statutorily defined as
“all equipment, products and materials of any land which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controlled substances act.” K.S.A. 65-4150(c).
K.S.A. 65-4150(c) then proceeds to list some examples of drug paraphernalia.
The fundamental rule of statutory interpretation is that the intent of the legislature, where ascertainable, governs. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). If the language of the statute is unambiguous, the intent of the legislature is presumably effected therein, and the appellate court need not resort to legislative histoiy or rules of construction. See State v. Campbell, 279 Kan. 1, 6, 106 P.3d 1129 (2005).
In Campbell, our Supreme Court considered the similar question of whether K.S.A. 65-4152(a)(3) and K.S.A. 65-7006(a) proscribed identical conduct. The statutory definitions were important to the Campbell court’s determination that the statutes prohibited overlapping conduct which was at issue in the case. See Campbell, 279 Kan. at 16.
“The conduct prohibited by K.S.A. 65-7006(a) is a defendant’s act of knowingly possessing ephedrine or pseudoephedrine with the intent to use the product to manufacture a controlled substance. The conduct prohibited by K.S.A. 65-4152(a)(3) is a defendant’s act of knowingly possessing drug paraphernalia with the intent to use it to manufacture a controlled substance. The definition of drug paraphernalia in K.S.A. 65-4150(c) includes products and materials of any land’ which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited by K.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine. Indeed, in K.S.A. 65-7006(a) tire legislature used the term ‘product’ as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drugparaphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).” (Emphasis added.) Campbell, 279 Kan. at 16-17.
The defendant invites us to construe the act of manufacturing methamphetamine as encompassing the use of drug paraphernalia to manufacture methamphetamine. From a practical standpoint, the defendant’s argument holds some validity. Due to the broad definition of drug paraphernalia provided by statute, it would be impossible to manufacture any controlled substance without drug paraphernalia. Consequently, any attempt to convict a defendant of manufacture of methamphetamine (or attempted manufacture of methamphetamine) under K.S.A. 65-4159(a) and use of drug paraphernalia to manufacture methamphetamine under K.S.A. 65-4152(a)(3), based upon the same evidence, might raise a multiplicity conflict. This is not the issue before this court.
For purposes of identifying identical proscribed conduct under different statutes, however, the test is not whether proving one offense necessarily proves the other but whether the same conduct, as defined by the elements contained within each statute, is proscribed.
K.S.A. 65-4152(a)(3) possesses a crucial element which differs from the elements for manufacturing methamphetamine under K.S.A. 65-4159(a): physical control of drug paraphernalia. While drug paraphernalia is a factual prerequisite to the manufacture of methamphetamine, it is not a legal prerequisite. Consequently, based upon the plain language contained in the two statutes, we are convinced the legislature intended to criminalize two different acts. Under K.S.A. 65-4159(a), the legislature intended to criminalize the act of producing a controlled substance; under K.S.A. 65-4152(a)(3), the legislature intended to criminalize the possession, collection, or application of noncontrolled substances or products with the intent to produce a controlled substance.
As the statutes proscribe different conduct, even though the conduct is inextricably connected, the rule of McAdam does not require resentencing of the defendant.
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Buser, J.:
Robert A. Ward appeals the jury’s verdict that he is a sexually violent predator as defined by the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. We reverse and remand for a new trial.
Factual and Procedural Background
On April 27,2002, Ward was charged in Johnson County District Court with three counts of criminal threat in violation of K.S.A. 21-3419. The complaint identified three dates, February 24, 2002, March 17, 2002, and April 12, 2002, on which Ward called three young girls, M.R., L.K., and K.D., and communicated “a threat to commit violence with the intent to terrorize another, or in reckless disregard of the risk of causing terror in another . . . .’’Ward pled guilty to one count of criminal threat (a severity level 9 person felony) on August 23, 2002. In exchange for his guilty plea, the State dismissed the other two counts of criminal threat.
The district court sentenced Ward to the mid-point sentence of 6 months incarceration and, in accordance with the sentencing guidelines, placed him on presumptive probation for 12 months. At the time of sentencing, Ward had already served 166 days in custody. Among the conditions of probation, Ward was ordered to have no unsupervised contact with anyone under 18 years of age, undergo a mental health evaluation, and complete counseling.
After considering evidence presented at the sentencing hearing, the district judge stated, “I think the facts show beyond a reasonable doubt that one of the purposes for which the defendant com mitted the crime was the defendant’s sexual gratification and therefore find that this was a sexually violent crime as defined in K.S.A. 22-4902(c)(14).” As a result, die district court ordered Ward to register as a sex offender.
Ward appealed from the registration order, and this court affirmed that ruling in State v. Ward, No. 89,659, unpublished opinion filed February 20, 2004. Rejecting Ward’s challenge to the sufficiency of the evidence for purposes of sex offender registration, this court found “all of Ward’s comments referenced the genitalia of pre-teenaged girls and Ward’s body coming in contact with these girls. There is no way to interpret these statements other than as sexually violent overtures to young girls.” Slip op. at 6. Ward did not petition the Kansas Supreme Court for review of this adverse decision.
Ward voluntarily surrendered his probation only 2 days after sentencing and returned to prison to serve the 12 days remaining on his sentence. On October 21, 2002, the day before Ward was scheduled for release from prison, the State filed a petition under the KSVPA. At the December 23, 2002, probable cause hearing held pursuant to K.S.A. 59-29a05, the district court found probable cause to retain Ward in custody for further evaluation. An amended petition was filed on February 7, 2003.
Ward filed two motions to dismiss on July 11, 2003. First, Ward contended the KSVPA was unconstitutional because it defined a “sexually violent predator” as a person who is “likely” to engage in repeat acts of sexual violence. See K.S.A. 59-29a02(a). Ward contended the use of the word “likely” in that definition “creates a burden of proof that is incompatible with the standard imposed by the Supreme Court of the United States and the higher standard Kansas itself requires . . . .” In his second motion to dismiss, Ward argued the State was without jurisdiction because it had not filed a special allegation of sexual motivation as provided by the KSVPA in K.S.A. 59-29al4(a). The district court denied both motions.
Trial commenced in July 2002, but' a mistrial was declared when the jury was unable to reach a verdict. The retrial began on November 17, 2003.
Evidence at trial established that Ward had called three young girls on the telephone and, during the course of the conversations, had asked the girls vile and lascivious questions. These questions related to Ward describing deviant sex acts he could perpetrate upon the girls and the pain and injury those acts would cause to their vaginal and rectal areas. Ward told K.D. not to give the phone to her mother or hang up “because he knew where we hved, he knew our names, and he would come and hurt us . . . .” Ward also told L.K. he knew where she hved. Testimony further revealed that shortly before Ward made these calls, he had traveled to New York for penis enlargement surgery.
The State offered into evidence items seized from Ward’s home, including numerous pictures of young girls dressed in swimming or gymnastics attire. In addition to the photographs, Ward possessed materials regarding area dance and gymnastics clubs and a program from a local gymnastics competition held April 13-14, 2002. Some of the victims were listed in this program.
Ward had attended the gymnastics competition on April 13, 2002, and videotaped several of the competitors. This occurred the day after Ward called K.D. who attended that competition. A representative selection of videotapes seized from Ward’s home revealed he focused the camera almost exclusively on girls’ pelvic areas. K.D.’s mother testified that her daughter no longer competes in gymnastics for fear of who might be watching her.
The State offered the journal entry of judgment from Ward’s criminal case into evidence. The journal entry included the question “Was the crime sexually motivated?” The box for “Yes” was checked, and the journal entry was signed by the sentencing judge, prosecutor, and Ward’s counsel.
The State presented the expert testimony of Rex Rosenberg, “a licensed master’s level psychologist and licensed clinical psychotherapist at State Security Hospital at Lamed.” Rosenberg had conducted sexual predator evaluations since 1996. At the time of trial, he had been named the sexual predator evaluation coordinator for the Lamed State Security Hospital.
Rosenberg testified that Ward’s conviction for criminal threat was “determined to be sexually motivated.” The State also used Rosenberg’s testimony to provide a detailed account of Ward’s sexual history. Ward had told Rosenberg that he became curious about sex at age 5, began masturbating at age 7, and continued this practice nearly every day until he was incarcerated. Ward was 47 at the time of trial. Ward described his “gymnastics fetish” to Rosenberg, which first developed in his early teenage years when he furtively watched a gymnastics practice and clipped a photograph from a yearbook for masturbatory fantasies.
In the mid-1980’s, Ward worked at a summer camp and started noticing younger teenage girls. Rosenberg recounted that Ward told him, “ ‘Once you start looking down, where does it end?’ ” and “ ‘You start with 16, then 14, and then, unfortunately, I started looking at younger ones in that way.’ ” Ward said he started noticing how “provocatively” 10- to 12-year-old girls were dressed in certain areas of New York, where he lived in the 1990’s. Ward taught elementary school, and he told Rosenberg that when he saw some of his students, he “went ‘oo-la-la.’ ”
Ward told Rosenberg that the pictures recovered from his house were used for masturbatory purposes. Ward described how, while living in New York, he would take pictures of females on public streets when he saw “something that stunned [him] that was so beautiful . . . .” The females ranged in age from about 11 to 40. Ward said he started using pictures out of magazines and catalogs because “the quality of the images and the quality of the models” were higher. Ward said that “eventually he would get rid of the collection that he had” because he was “disgusted with what he was doing.” Ward always started a new collection, however, and he noted the collection seized by the police was his largest ever.
Ward admitted to videotaping at beaches and gymnastics meets. Ward told Rosenberg he intended to use the videotapes for masturbatory fantasies. Ward also said he had visited at least 100 gymnastics web sites and 30 ice skating web sites. Ward told Rosenberg the web sites “were being put together for the purposes of having males go into them looking for provocative pictures.” Rosenberg testified Ward used pictures from the web sites “for sexual arousal and for masturbatory purposes.”
Ward denied exclusive interest in children. Ward found younger females more exciting, however, because they were, in his words, “forbidden fruit.” In his testimony at trial, Ward said his “whole sexual life is pretty damn dull whether it’s fantasy or not.” In contrast, Ward told Rosenberg that he found it “exciting to pretend that he was a bad guy” when calling the girls on the telephone. In addition to speaking with M.R., L.K., and K.D., Ward placed approximately 20 other telephone calls, although not all of them resulted in obscene language.
Rosenberg commented on a Kansas City radio station’s recorded telephone calls and interview with Ward while he was in jail. Rosenberg thought the interview showed Ward’s lack of insight into the impact his actions had on the victims, and how, in Ward’s opinion, “he’s being victimized by the DA and the judge and the prison evaluator . . . .”
Among other mental disorders, Rosenberg diagnosed Ward with pedophilia. According to Rosenberg, this disorder made it seriously difficult for Ward to control his behavior. Rosenberg also expressed concern that Ward was beginning to express his fantasies directly, and he believed this escalation would continue. In Rosenberg’s opinion, Ward’s pedophilia was a mental abnormality that made him likely to engage in repeat acts of sexual violence.
Ward testified in the State’s case in chief. He readily admitted to sexual fantasies about prepubescent children, to masturbating while having such fantasies, to the use of photographs and videotapes for this purpose, and to making the videotapes and phone calls to young girls. Ward maintained he had never actually touched a child, however, and that when he fantasized about having intercourse with a child, he pictured himself as a young teenage male he called “Rrian Paul.” Ward also denied telling Rosenberg that he had an increased attraction to younger children.
Ward generally denied that he suffered from pedophilia. When asked if he needed treatment, Ward responded, “ 'Spirituality or treatment, . . . one, the other, or both.’ ” Ward offered no specifics, however, and maintained “I’m not going to spend my life in a mental asylum.”
Ward presented testimony from two doctorate level psychologists. The first, Robert W. Barrett, a clinical psychologist, was previously the chief psychologist at the Kansas State Department of Corrections Reception and Diagnostic Center, where he performed psychological evaluations of prisoners. At the time of trial he worked as a board certified forensic examiner, providing psychological screening for various organizations.
Barrett disagreed with Rosenberg’s diagnosis of pedophilia, finding instead that Ward had “what’s sort of informally called [a] fetish. He’s interested in the clothing, provocative clothing on a wide range of women, and it’s not children per se that are of particular interest to him.” Dr. Barrett’s diagnosis was paraphilia, specifically “[i]n this case [Ward] seems to be most interested in the buttocks of women encased in spandex.” Dr. Barrett thought it especially significant Ward possessed no child pornography, stating in his experience that this was an almost invariable interest of pedophiles. Dr. Barrett also thought Ward’s motivation for the phone calls was not sexual arousal because he had placed them from a public phone, which was contrary to the typical behavior of persons making scatological phone calls.
The second defense expert, clinical psychologist William L. Albott, had worked as a staff psychologist on the general psychiatric unit and a unit for the criminally insane at Lamed State Hospital and at Osawatomie State Hospital treating adolescents. He had served on the faculty of the Menninger School of Psychiatry and was formerly president of tire Kansas Psychological Association. Dr. Albott collaborated with others to formulate the sex offender treatment program currently in use at the Lamed State Hospital.
Dr. Albott’s testimony focused on the methodology used by Rosenberg. Dr. Albott thought Rosenberg’s descriptions of Ward’s sexual fantasies had little to do with the triggers which might explain why Ward committed the criminal threats. Dr. Albott characterized some of Rosenberg’s testing as invalid, and he found it “puzzling at best and distressing” that Rosenberg drew conclusions from that testing. Dr. Albott claimed Rosenberg’s evaluation of Ward’s potential to reoffend did not nreet American Psychological Association guidelines. Dr. Albott rescored Ward’s results from Rosenberg’s testing and stated that Ward had “a 10 percent likelihood of reconviction over a 16-year period, not a 36 percent chance” as Rosenberg had determined. Dr. Albott also disagreed with the diagnosis of pedophilia, agreeing instead with the diagnosis offered by Dr. Barnett.
The State presented rebuttal testimony from Gerald H. Vandenberg, a licensed doctorate level psychologist. Dr. Vandenberg, after reviewing Ward’s files and listening to some of the Dr. Barnett’s testimony, testified that Ward’s behavior was “consistent with the diagnosis of pedophilia. I don’t want to take the one step farther and say that Mr. Ward is a pedophile, because I haven’t examined him . . . .” Dr. Vandenberg disagreed with Dr. Barnett’s diagnosis that Ward’s condition was limited to paraphilia, stating “this [Ward’s behavior] in my opinion goes beyond that.” Dr. Vandenberg testified that Ward’s telephone calls had “[p]retty ugly sexual content,” and that possession of child pornography is not critical to a pedophilia diagnosis.
During closing argument, the State’s attorney made numerous comments which are discussed in detail below. He concluded his argument by telling the jury:
“You know, I told you at the beginning of this case that if you’ve got a reasonable doubt, if you’ve got a reasonable doubt, you’re not going to get on that airplane. And if you go to the airport and you find out that the pilot’s got a history of substance abuse, maybe been busted for operating or piloting the plane while under the influence of alcohol or drugs, and you find out that that pilot’s never been treated and he’s ready to hop back up on that airplane, are you going to put your lads on that airplane? Well, I’m telling you, ladies and gentlemen, Robert Ward’s piloting that ship. So you malee the decision.”
After the jury had been excused for deliberations, Ward’s counsel moved for a mistrial due to the State’s closing argument. The district court denied the motion. Ward also filed a motion for judgment notwithstanding the verdict based on the State’s closing argument which was also denied.
On November 20, 2003, the jury returned its verdict finding beyond a reasonable doubt that Ward was a sexually violent predator. Ward filed a timely appeal.
Due Process Implications of the Definition “Sexually Violent Predator”
Ward first contends the KSVPA is unconstitutional because K.S.A. 59-29a02(a) defines “[s]exually violent predator” as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” According to Ward, “[t]he use of the word ’likely’ in the [K]SVPA’s definition of a sexually violent predator creates a lesser burden of proof which is incompatible with [the] standard imposed by the Supreme Court and the higher standard Kansas itself requires in the [K]SVPA.”
An appellate court’s review of statutory interpretation is unlimited. Coopero. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). We begin our review, however, “by remembering our longstanding and well-established rules that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and that before a statute may be struck down, it must clearly appear that the statute violates the Constitution. [Citation omitted.]” In re Care & Treatment of Hay, 263 Kan. 822, 831, 953 P.2d 666 (1998).
Due process in civil commitment cases requires a higher standard of proof than preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 431, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979). The KSVPA provides the requisite burden of proof for civil commitment is beyond a reasonable doubt. K.S.A. 59-29a07(a) and (e). As a result, Ward concedes the KSVPA requires “a more stringent standard of proof’ than mandated by the Constitution.
Ward’s complaint, however, is that “the use of the word likely’ in the [K]SVPA’s definition of a sexually violent predator is akin to a preponderance of the evidence standard of proof which has been found by the Supreme Court to be unconstitutional in civil commitment hearings.” Ward provides no statutory or case law precedent in support of his novel claim.
“In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into a work able harmony if possible.” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
With regard to the challenged statutory language, Ward’s argument fails to consider the KSVPA as a whole. As noted by the State, the KSVPA definition of “likely to engage in repeat acts of sexual violence” means “the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” K.S.A. 59-29a02(c). As noted earlier, the ultimate question, whether a defendant is a sexually violent predator, must be proven beyond a reasonable doubt. K.S.A. 59-29a07(a) and (e). Considering these statutory provisions together, the KSVPA requires the court or jury to determine beyond a reasonable doubt that, inter alia, the person poses a menace to the health and safety of others.
Requiring a more exacting definition would mandate a level of certainty beyond that necessary for due process. See Kansas v. Crane, 534 U.S. 407, 411, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002) (“requiring the State always to prove that a dangerous individual is completely unable to control his behavior . . . is far too rigid.”); Addington, 441 U.S. at 430 (“Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and die patient that are served by civil commitments.”).
In Addington, the United States Supreme Court suggested that employing a burden of proof similar to the one required under Kansas law may be too demanding as a matter of psychiatry, if not constitutional law: “Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. [Citations omitted.]” 441 U.S. at 429. Not only did the Supreme Court use the veiy word “likely,” which Ward protests here, it was used to express the Court’s opinion that this standard was in all practicality too rigorous. Because the “subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations,” states are not required under the-Fourteenth Amendment to employ the reasonable doubt standard, although they are free to do so. 441 U.S. at 430-31. Addington teaches that the burden of proof standard employed in the KSVPA and the statutory language “likely to engage in repeat acts of sexual violence” in K.S.A. 59-29a02(a), not only meets but exceeds the Constitution’s due process requirements in civil commitment cases.
Finally, the United States Supreme Court has specifically considered and approved the due process implications of the KSVPA provisions in two cases. See Crane, 534 U.S. 407; Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997).
In Hendricks, the United States Supreme Court held that the KSVPA’s definition of “mental abnormality” satisfied due process requirements for civil commitments. Hendricks, 521 U.S. at 371. As part of the Court’s holding, the majority referenced language similar to that challenged here (“likely to engage in the predatoiy acts of sexual violence”) as used in the predecessor statute, K.S.A. 59-29a02(a) (Furse 1994). The Court concluded that “[t]he statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.” Hendricks, 521 U.S. at 357-58. The Court held: “The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” Hendricks, 521 U.S. at 358.
Similarly, in Crane, the United States Supreme Court noted: “In Hendricks, this Court upheld the Kansas Sexually Violent Predator Act, Kan. Stat. Ann. § 59-29a01 et seq. (1994), against constitutional challenge. . . . And it held that the statutoiy criterion for confinement embodied in the statute’s words ‘mental abnormality or personality disorder’ satisfied ‘ “substantive” due process requirements.’ [Citation omitted.]” Crane, 534 U.S. at 409.
We hold that the use of the word “likely” in the KSVPA’s definition of a sexually violent predator (K.S.A. 59-29a02[a]) does not establish a lesser burden of proof in civil commitment cases than is required under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Failure to File Special Allegation of Sexual Motivation
Ward claims error because the State failed to file a special allegation of sexual motivation in his criminal case pursuant to K.S.A. 59-29al4. Ward contends K.S.A. 59-29al4 is “a statutory duty placed on the State” because “[a] criminal defendant has no way of knowing whether the Státe believes its evidence will lead to a sex predator commitment proceeding.” Once again, this issue involves statutory interpretation, and this court’s review is unlimited. See Cooper, 277 Kan. at 252.
K.S.A. 59-29al4 provides in part:
“(a) The county or district attorney shall file a special allegation of sexual motivation within 10 days after arraignment in every criminal case other than sex offenses as defined in article 35 of chapter 21 of the Kansas Statutes Annotated . . . when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.
“(b) In a criminal case wherein there has been a special allegation, the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury is had, the jury, if it finds the defendant guilty, also shall find a special verdict as to whether or not the defendant committed the crime with a sexual motivation.”
We begin by noting the hybrid character of this statute. Although located in the probate code, the statute directs when a special allegation of sexual motivation is to be filed in a criminal case. Any finding based upon such an allegation is not used in the criminal case, however, but in the KSVPA proceeding. This distinguishes K.S.A. 59-29al4 from a finding of sexual motivation for purposes of sex offender registration under K.S.A. 2005 Supp. 22-4902(c)(14).
A finding of sexual motivation under K.S.A. 59-29al4(b) means that, in addition to the sex crimes listed at K.S.A. 59-29a02(e)(1)-(12), a crime so motivated is a “sexually violent offense” under the KSVPA. K.S.A. 59-29a02(d) and (e)(13). Importantly, subsection (e)(13) provides that a finding of sexual motivation may be made either at sentencing in an underlying criminal case or during tire KSVPA proceeding. K.S.A. 59-29a02(e)(13). These alternative approaches provide the key to interpreting K.S.A. 59-29al4. See Oshman, 275 Kan. 763, Syl. ¶ 2 (the provisions of an act should be construed together in pari materia).
Here, the State did not file a special allegation of sexual motivation within 10 days following Ward’s arraignment in the criminal case. Instead, during the KSVPA civil commitment proceeding, tire State alleged and the jury determined that Ward’s offense was sexually motivated. Given that the KSVPA provides alternative methods for the State to allege and prove sexually motivated offenses, a question arises whether the State was still obliged to file a special allegation in Ward’s criminal case.
This issue, however, is not properly before us because Ward has not made a sufficient showing that within 10 days from Ward’s arraignment sufficient admissible evidence existed which, when considered with the most plausible, reasonably foreseeable defense under the evidence, could lead a reasonable and objective factfinder to a finding of sexual motivation. See K.S.A. 59-29al4(a).
Ward argues that “sufficient evidence to justify a finding of sexual motivation . . . exist[ed] .... The affidavit which accompanied the . . . criminal complaint provided enough information to justify such a finding.” There are three reasons, however, why appellate review is not appropriate in this circumstance.
First, the district court did not make findings regarding the state of the evidence, Ward’s most plausible, reasonably foreseeable defense, or whether a reasonable and objective factfinder could have found sexual motivation. We are precluded from making such a determination. See Oshman, 275 Kan. at 775 (an appellate court does not weigh the evidence). Second, the State’s position at the hearing on this issue was that the applicability of the KSVPA was not obvious at the beginning of the criminal case, and Ward presented no evidence to the contrary. Third, although this court has already held “[tjhere is no way to interpret [Ward’s] statements other than as sexually violent overtures to young girls,” Ward, slip op. at 6, on appeal Ward does not address the statutory require ment to consider this evidence against the most plausible, reasonably foreseeable defense that could be raised. See K.S.A. 59-29al4(a). Even if we were to attempt this analysis, the record contains too little information regarding the criminal case to indicate what, if any, defenses were plausible and reasonably foreseeable at the time a special allegation of sexual motivation was to be filed.
In summary, we are unable to reconstruct die situation which existed within 10 days after arraignment in Ward’s criminal case. It was Ward’s duty to designate a record “sufficient to estabhsh the claimed error.” State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003). Given the record before us, Ward’s claim that the State was required to file a special allegation of sexual motivation in the criminal case does not estabhsh error.
Admission of Prior Judicial Determination that Crime Was Sexually Motivated
Ward contends “[t]he trial court erred when it admitted [during the KSVPA proceeding] a prior judge’s finding that [Ward’s] underlying conviction for criminal threat was sexually motivated.” In particular, Ward complains the district court abused its discretion by the admission of this evidence because “[n]o reasonable person would have agreed that a court’s finding of sexual motivation at sentencing, when made solely for the purpose of [Ward’s] registration as a sex offender, should have been admissible to prove [Ward] was a sexually violent predator.”
The pretrial judicial determination that Ward’s criminal threat conviction was sexually motivated was admitted in evidence during the KSVPA proceeding in two ways. First, the State offered the journal entry of judgment which, among other information, contained the question “Was the crime sexually motivated?” A check mark was entered in the box which indicated “Yes.” Second, during the KSVPA trial, psychologist Rex Rosenberg testified that Ward was convicted of a criminal threat which was “determined to be sexually motivated.”
Our standard of review regarding the admission of evidence, subject to exclusionary rules, is abuse of discretion. “A court may only be said to have abused its discretion when its actions are arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the view of the trial court.” In re Care & Treatment of Hay, 263 Kan. 822, 836, 953 P.2d 666 (1998).
At the outset, Ward’s claim is not properly before this court because Ward’s counsel failed on both occasions to object to the admission of this evidence. See State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003).
When the State offered the journal entry, Ward’s counsel approached the bench and told die district court, “I don’t have an objection to the journal entry.” Ward’s counsel stated further, “I just wanted it noted for the record that our contention is that sexual motivation for purposes of registering, not for purposes of the offender statute, the predator statute [sic].” On appeal, Ward acknowledges he did not object to the journal entry. Instead, he claims he objected to “the use of that court’s finding of sexual motivation at the predator trial.”
It is difficult to discern how Ward objected to the use of the finding of sexual motivation without objecting to the admission of the document which memorialized that finding. The failure of Ward’s counsel to object to the admission of the journal entry or Rosenberg’s testimony bars appellate review of this evidentiary issue.
Sufficiency of Evidence
Ward contends the evidence at trial was insufficient to support the verdict. The appellate standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, a reasonable factfinder could find the defendant to be a sexually violent predator beyond a reasonable doubt. In re Care & Treatment of Hay, 263 Kan. at 842.
Ward first complains that he did not commit a sexually violent offense because the crime was “never proven to be sexually motivated beyond a reasonable doubt at the civil commitment trial.”
Evidence presented at trial established that Ward’s phone calls to three young girls contained vile and lascivious questions about Ward engaging in deviant sex acts that would cause pain or injury to the girls’ vaginal and rectal areas. Ward’s numerous pictures of young girls dressed in swimming or gymnastics attire and videotapes focused almost exclusively on young girls’ pelvic areas underscored the sexual nature of these phone calls. Ward also admitted to the dullness of his long-time autoeroticism, which contrasted with his description of the excitement he felt upon actually contacting the girls by telephone. As noted earlier, this court has already held “[t]here is no way to interpret [Ward’s] statements other than as sexually violent overtures to young girls.” Ward, slip op. at 6. Finally, even Ward concedes on appeal that psychologist Rex Rosenberg “did testify that he believed the phone calls were sexually motivated.” In summary, there was considerable evidence to establish that Ward’s conviction for criminal threat was sexually motivated.
Ward next contends the evidence was insufficient to establish that he suffers from a mental abnormality or personality disorder which makes him likely to engage in repeat acts of sexual violence or experience serious difficulty in controlling his behavior.
Our review of the record reveals that Rosenberg diagnosed Ward with pedophilia — -a mental disorder which made it seriously difficult for Ward to control his behavior. Rosenberg also opined this diagnosis made Ward likely to engage in repeat acts of sexual violence. Ward acknowledges this testimony but suggests Rosenberg’s opinion was not convincing, especially when compared to the opinions of his defense experts. Ward is essentially asking us to reweigh tire evidence or determine witness credibility, but both assessments are beyond the purview of this court. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 478, 15 P.3d 338 (2000).
Apart from Rosenberg’s expert opinion, evidence showed that Ward resisted therapeutic efforts to help control his behavior. For example, Ward refused to participate in therapy ordered as part of his probation, characterizing it as a plot by the State. Considered together, there was sufficient evidence to establish that Ward suffered from a mental abnormality or personality disorder which made him likely to engage in repeat acts of violence or serious difficulty in controlling his behavior.
Finally, Ward argues his actions were not as egregious as some reported in our published cases. While that may be true, by enacting the KSVPA “the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals .. . .” Kansas v. Hendricks, 521 U.S. 346, 364, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). In deciding whether Ward fit the definitions established by the legislature, the jury properly did not consider the wide range of predatory acts described in published case reports. The State was not required to prove that Ward was one of the worst sexually violent predators in Kansas, only that his mental condition and conduct met the KSVPA’s definition of a sexually violent predator in K.S.A. 59-29a02(a).
Having considered each argument raised by Ward, we hold that a reasonable factfinder, considering the evidence at trial in the light most favorable to the State, could have found Ward was a sexual predator beyond a reasonable doubt.
State’s Closing Argument
Ward’s final claim of error relates to the State’s closing argument. The State’s attorney began his closing argument by stating, “Those are Robert Ward’s words, ladies and gentlemen: ‘There are no guarantees.’ But when you are risking the safety of children, you need a guarantee. . . . And you know the stakes are high.” From these opening words the State’s attorney developed his theme — that unless the jury found that Ward was a sexual predator, they were putting at risk the safety of their children and the community’s children.
Early in the closing argument, the State’s attorney posed two rhetorical questions:
“And here’s the question: Should the parents of children be worried? Do you find that Robert Ward is a guy who’s just into making obscene phone calls or a man who has a much darker, violent and aggressive side to him; a man who, if released today by you, poses a risk to the lives and tire safety of our children? He is the latter, not the former.”
Later in the argument, the State’s attorney warned:
“His behavior is escalating, and it should concern you.
“You know, with all due respect to the psychologist that testified on behalf of Mr. Ward today, does just the evidence, the phone calls, the videotapes, the statement of the police suggest anything other than a ticking time bomb? Absolutely not. Should the parents of girls be worried? Absolutely.
“ . . . And you can feel sorry for Robert Ward, but he needs to get the help that he needs for tire protection of our children.
“. . . He’s tire way that he is. And if he’s this way, he’s a risk to children.”
Throughout his closing argument, the State’s attorney returned to the opening theme that “parents of children” and “parents of girls,” should be “concerned,” or “worried” about the risk Ward posed “to the lives and the safety of our children.” The State’s attorney cautioned that Ward “was likely to do it again unless you intervene.” With regard to Dr. Barnett’s expert opinion that Ward did not pose such a threat, the State’s attorney stated, “I’m here to tell you that if you were to — if Dr. Barnett was paid to say 2 plus 2 equals 5, he would do it . . . .”
It was in this context that die State’s attorney concluded his argument with an allegory:
“You know, I told you at the beginning of this case that if you’ve got a reasonable doubt, if you’ve got a reasonable doubt, you’re not going to get on that airplane. And if you go to the airport and you find out drat the pilot’s got a history of substance abuse, maybe been busted for operating or piloting the plane while under tire influence of alcohol or drugs, and you find out that that pilot’s never been treated and he’s ready to hop back up on that airplane, are you going to put your kids on that airplane? Well, I’m telling you, ladies and gentlemen, Robert Ward’s piloting that ship. So you make the decision.”
In his motion for a mistrial after the jury had been excused for deliberations, Ward’s counsel protested that the “State’s . . . final closing comment was to place the jury in the position of their children being exposed to Robert Ward.” The district court judge denied the motion, acknowledging “it’s maybe not the best choice of phrase for the closing,” but stating, “[T]he way I took the comments and the way I think the jury undoubtedly took the comments was in the collective view, referring to society.” The district court further explained its ruling as follows:
“[T]his case does not simply involve the jurors making a determination as to whether there’s a mental disease or defect, whether there’s a likelihood the of fender is going to find it impossible or substantially difficult to reoffend. That’s the heart of the case, those two issues. He’s [the State’s attorney] allowed latitude in arguing tire second half of that. He need not confine himself to the clinical medical issues in the case where there are two issues.”
Ward also filed a posttrial motion based on the State’s closing argument. This motion was denied as well.
On appeal, Ward initially invites us to apply the prosecutorial misconduct standard used in criminal cases to this civil commitment proceeding because while “the SVPA is civil in nature, it contains many similarities to a criminal trial.” Ward argues the State’s comments during closing argument were improper because they were “comments on the credibility of a witness and appeals to community values.”
The State counters that Ward seeks to impermissibly “graft the body of criminal cases discussing prosecutorial misconduct in closing argument onto sexual predator cases.” The State also emphasizes that the closing argument by the State’s attorney addressed a key issue at trial: “Whether there was a likelihood the offender was going to find it impossible or substantially difficult to reoffend.” Finally, the State submits that the substance of the arguments was “about the community as a whole rather than the community of jurors.”
This court has used the prosecutorial misconduct standard as a means to evaluate the propriety of a State’s attorney’s opening statement in a KSVPA proceeding. See In re Care & Treatment of Foster, 33 Kan. App. 2d 717, 724, 107 P.3d 1249 (2005), revd 280 Kan. 845, 127 P.3d 277 (2006). In its recent opinion reversing this court’s Foster decision, however, the Kansas Supreme Court declined to apply tire prosecutorial misconduct standard. 280 Kan. at 853 (characterizing it as “our stair-step analysis articulated in State v. Tosh, 278 Kan. 83, 91 P.3d 1204 [2004]”).
Instead of adopting the Tosh analysis for use in KSVPA proceedings, the Supreme Court focused on whether the “attorney misconduct” alleged by Foster was “inconsistent with substantial justice and affects his substantial rights, see K.S.A. 60-261, and denies him his right to a fair trial.” In re Care & Treatment of Foster, 280 Kan. at 861. The Supreme Court reached its conclusion “after considering the admittedly strong evidence against Foster.” 280 Kan. at 861. Significantly, our Supreme Court cited both criminal and civil cases in its analysis. See 280 Kan. at 854-60.
One case highlighted by our Supreme Court in Foster was Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973). The Supreme Court noted that in Blakey, “even though defense counsel had not objected, this court reversed and remanded for a new jury trial . . . because of the opposing counsel’s conduct, including improper statements in closing argument.” In re Care & Treatment of Foster, 280 Kan. at 854. In the Blakey opinion itself, our Supreme Court had stated both the general rule regarding contemporaneous objections in civil cases and the exception when the fairness of the trial is in question:
‘We are cognizant of the rule that on appeal reversible error will not be considered when based on misconduct of counsel unless objection is made in trial court. [Citations omitted.] We adhere to this rule; however, we point out that in tire above cited cases the instances of impropriety were isolated and not of the nature disclosed by this record.....[Here, counsel’s] efforts were not of an isolated nature but, to the contrary, permeated the whole of the trial from opening statement to final argument. . . .
“Under what circumstances do remarks of counsel result in reversible error? An uncontradictable answer must be: they are reversible error when, because of them, the parties have not had a fair trial.” 213 Kan. at 95-96.
In the instant case, the State contends Ward’s objection after the jury retired preserved for review only the final airplane allegory. Considering Foster and Blakey, however, we believe the entirety of the State’s closing argument is subject to review because of the substantial constitutional rights involved.
We also note that in reviewing the KSVPA, the United States Supreme Court emphasized civil involuntary commitment is permissible only if “the confinement takes place pursuant to proper procedures and evidentiary standards.” Hendricks, 521 U.S. at 357. This is because the liberty interest in freedom from physical restraint “ ‘has always been at the core of the liberty protected by the Due Process Clause ....’” 521 U.S. at 356 (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437, 112 S. Ct. 1780 [1992]). Moreover, if “the typical civil case involving a monetary dispute between private parties,” where “society has a minimal concern with the outcome,” is reversible absent a fair trial, so much more should an appellate court consider allegations of abusive argumentation where a party has been civilly committed, which is “a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 423, 425, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979).
In conducting this review, we keep in mind the fundamental duty of counsel in closing arguments — to argue the evidence. See Hudson v. City of Shawnee, 246 Kan. 395, Syl. ¶ 16, 790 P.2d 933 (1990). The mandate to argue tire evidence and not appeal to passion or prejudice has a long history in Kansas. In State v. Laird, 79 Kan. 681, Syl. ¶ 3, 100 Pac. 637 (1909), the district court properly excluded argument on facts “immaterial and evidently intended to excite the sympathy of the jury . . . .” In Forsyth v. Church, 141 Kan. 687, Syl. ¶ 3, 42 P.2d 975 (1935), the Supreme Court condemned “inflammatory argument of counsel reciting testimony not introduced in evidence, ridiculing witnesses, and making appeals to passion and prejudice . . . .” In State v. Majors, 182 Kan. 644, 648, 323 P.2d 917 (1958), the Supreme Court taught that “appeals to the self-interests of jurors .... are not to be condoned because they are obviously prejudicial to the defendant’s right to a fair trial.” In State v. Kelley, 209 Kan. 699, Syl. ¶ 4, 498 P.2d 87 (1972), the Supreme Court stated that prosecutors “should not use statements calculated to inflame the passions or prejudices of the jury,” and “should refrain from argument which would divert the jury from its duty to decide the case on tire evidence . . . .” Finally, in State v. McHenry, 276 Kan. 513, 523, 78 P.3d 403 (2003), the Kansas Supreme Court examined whether a prosecutor used a “golden rule” argument, which the Supreme Court defined as “the suggestion by counsel that jurors should place themselves in the position of a party, a victim, or the victim’s family members.” The Supreme Court explained such arguments were improper because “they encourage tire jury to depart from neutrality and to decide the case on the improper basis of personal interest and bias.” 276 Kan. at 523.
In summary, there exists in Kansas civil and criminal jurisprudence a long history wherein our Supreme Court has admonished trial counsel to argue the evidence and avoid rhetoric designed to inflame the passions and prejudices of the jury, thereby diverting the jury from its duty to fairly and impartially evaluate the evidence.
Examining the State’s closing argument in the instant case, we first consider whether the State’s attorney exceeded the bounds of the evidence when he asserted Ward’s expert would testify to patent falsehoods for money. The expert, Robert Barnett, a Ph.D. level psychologist, was previously the chief psychologist at the State Reception and Diagnostic Center. He had evaluated pedophiles before and had testified numerous times as an expert. Our review of the record reveals no scintilla of evidence to suggest that Dr. Barnett would commit perjury because he was paid an expert witness fee to testify for the defense. These comments were impermissible because they were without any evidentiary foundation. We also note, in mitigation, that the comment was brief, was stated only once, and the jury was aware that both parties had produced expert witnesses in support of the parties’ respective legal positions.
We have grave concerns, however, about the repeated references to the risk Ward posed, if not confined, to the jurors’ children (“our children”) and the community’s children and the culmination of this argument in the airplane allegory. These comments were well beyond the wide latitude allowed in discussing trial evidence. See Hudson, 246 Kan. 395, Syl. ¶ 16. The State’s allegory was not based upon facts developed during trial and did not address the important issues to be decided on the verdict form — whether Ward had been convicted of a criminal threat, whether the crime was sexually motivated, and whether Ward suffered from a mental abnormality or personality disorder which made him likely to engage in repeat acts of sexual violence.
We understand this allegory to mean the State’s attorney was encouraging jurors to decide this case as parents with fears for their own children’s safety. Significantly, this argument directly contradicted the district court’s instruction to the jury: “You must not be influenced by anything not within the issues of the case.” We view this argument as especially provocative because it not only ex ploited the fears of parents, but it effectively dissuaded the jurors from evaluating the merits of the case fairly, impartially, and dispassionately.
As already noted, the State defends the propriety of the allegory by contending the oratorical device was simply argument to persuade the jury that Ward was likely to reoffend — an element essential to the State’s burden of proof. While we agree the State was permitted to argue that Ward’s mental condition created a likelihood of future sexually motivated violent acts, the crux of the allegory did not address the direct and circumstantial trial evidence in support of this essential issue. Rather, the allegory was an impassioned plea for jurors to decide this case as parents personally fearful for the safety of their own children. As enacted by the legislature, the KSVPA “requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.” (Emphasis added.) Hendricks, 521 U.S. at 357-58. The personal fears of parents who are jurors in KSVPA cases are not evidence and, as a result, should not be the subject of argument by counsel. See State v. Duke, 256 Kan. 703, 719, 887 P.2d 110 (1994) (Prosecutors “should not use statements calculated to inflame the passions or prejudices of the jury . . . or . . . mak[e] predictions of the consequences of the jury’s verdict.”).
We also disagree with the district court’s view that because the State’s attorney referenced children “in the collective view, referring to society” that the argument was permissible. Whether the argument appealed to the jurors’ personal fears for the safety of the community’s children or their own children, we consider this argument highly improper. In State v. Jordan, 250 Kan. 180, 193, 825 P.2d 157 (1992), a prosecutor told the jury, “ ‘[I]t’s up to you now ... if you want to live in a community where a person can kill another person . . . and excuse it because he had a few drinks, that’s up to you.’ ” The Kansas Supreme Court held the “argument was improper ... in appealing to a juror’s personal interests as a member of a community.” See also State v. Finley, 268 Kan. 557, 572, 998 P.2d 95 (2000) (“We cannot tolerate this land of drug use in our community, especially when a person dies. You have to find him guilty.”); State v. Green, 254 Kan. 669, 684, 867 P.2d 366 (1994) (“What you [the jurors] decide will be what our community stands for.”).
Having carefully examined the State’s entire closing argument, we also must conclude it was obviously planned with an impermissible theme running throughout, culminating in the airplane allegory. This allegory was not a careless phrase or unfortunate slip of the tongue. Instead, it was specifically designed to play upon a powerful motivator — the jurors’ fears as parents and as guardians of the community’s children. The allegory ultimately referenced the jurors’ own children and was preceded by repeatedly provocative references, effectively encouraging the jury to forsake its sworn duty to reach a verdict through fair, impartial, and dispassionate deliberation.
Turning to the strength of the evidence, we have already noted that the Supreme Court found reversible error in In re Care & Treatment of Foster even though the evidence was “admittedly strong . . . against Foster.” 280 Kan. at 861. In this case, the evidence was controverted, convincing us that the error requires reversal. Stated another way, we cannot find the misconduct by the State’s attorney was harmless. See Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967).
Ward’s first trial resulted in a mistrial due to a hung jury. In this retrial, the expert psychological testimony presented by the State regarding the nature and significance of Ward’s mental abnormality or personality disorder was directly challenged by Ward’s two expert psychologists. Similarly, the critical issue of whether Ward’s mental abnormality or personality disorder made it difficult if not impossible to control his dangerous behavior was also disputed.
Given our complete review of the record, we hold that the district court’s failure to grant a mistrial was an abuse of discretion because the attorney misconduct was inconsistent with substantial justice, affected Ward’s substantial rights and denied him his right to a fair trial. See K.S.A. 60-261; In re Care & Treatment of Foster, 280 Kan. at 861.
We reverse the jury’s verdict and remand for a new trial. | [
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Hill, J.:
In this case we must decide whether Tiffany Bolden could be convicted of both intentional aggravated battery and aggravated assault when she rammed her car into the car in which her husband was riding with his mistress. Because Bolden’s convictions arose from a single act of violence — ramming her car into the other car — we hold that her aggravated assault convictions are multiplicitous with the aggravated battery convictions, and we reverse and remand.
Furthermore, we disagree with Bolden’s argument that the trial court should have given jury instructions for reckless aggravated battery or misdemeanor battery based on reckless conduct. We hold that because those crimes require the State to prove some type of bodily harm and the facts of this case reveal no bodily harm, the court did not err by not giving such instructions.
Background Facts
There is no dispute about the facts of this case. After dining with her estranged husband, Derrick, Bolden dropped him off at his brother’s residence. Later that evening Derrick was riding in a car driven by his mistress, Glenda Plunk. They were the only people in the car. Bolden followed them for awhile. Bolden flashed her lights at them, pulled her car alongside Plunk’s car, and eventually rammed her car into Plunk’s, forcing it to the side of the road.
After Derrick got out of the car to inspect it for damage, Bolden got out of her vehicle and tried to coax him into returning with her. Derrick refused and got back into the car with Plunk. This time, while Plunk was driving toward the police station, Bolden rammed her car into Plunk’s car a second time. Without stopping, Plunk finally reached safety at the police station. She had previously obtained a protection order against Bolden.
Tiffany Bolden was convicted of two counts of intentional aggravated battery, two counts of aggravated assault, one count of criminal damage to property, one count of violation of a protection order, and one count of reckless driving.
Aggravated Battery and Aggravated Assault Convictions
Bolden argues that her convictions, two counts of aggravated battery and two counts of aggravated assault, are multiplicitous. The frequently cited definition of multiplicity warns against charging a single offense in several counts:
“Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of tire Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).
Even though Bolden did not raise this issue at trial, multiplicity is one of the arguments that can be raised for the first time on appeal. See State v. Groves, 278 Kan. 302, 303-04, 95 P.3d 95 (2004).
Recently, our Supreme Court has addressed the issue of multiplicity in State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005).The court adopted a strict elements test in order to determine multiplicity:
“The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove tire other offense. If so, the charges stemming from a single act are not multiplicitous.” Patten, 280 Kan. 385, Syl. ¶ 3.
If a strict elements test is used in this case, it is clear that Bolden’s convictions are not multiplicitous. A review of the instructions revealed that the State was required to prove, in part: “That the defendant intentionally caused physical contact with Glenda Plunk in a rude, insulting or angry manner with a deadly weapon whereby great bodily harm, disfigurement, or death can be inflicted.” The same language was used in the aggravated battery instruction relating to Derrick. In contrast, the jury instruction on aggravated assault required the State to prove, in part: “That the Defendant intentionally placed Glenda Plunk in reasonable apprehension of immediate bodily harm.” Once again, the same language was used in the aggravated assault instruction relating to Derrick.
Thus, it is apparent that the crimes of aggravated battery and aggravated assault each have different elements. For aggravated battery, the State must prove that the defendant made physical contact with the victim. No such showing is required for aggravated assault. For aggravated assault, the State must prove that the victim was placed in “reasonable apprehension of immediate bodily harm.” No such showing is required to support an aggravated bat tery conviction. Accordingly, the elements of aggravated batteiy and aggravated assault are different. Thus, aggravated battery and aggravated assault are not multiplicitous under the strict elements test used in Patten.
But the Patten court did not discuss how its new test affects the “single act of violence” aspect of multiplicity. We distinguish this case from Patten for that reason. The most recent case dealing with this, Groves, describes how the defendant grabbed the victim’s purse from her in a parking lot. During the struggle, the victim was thrown to the ground and consequently suffered a fractured sacrum. The jury convicted Groves of aggravated robbery and aggravated battery. Groves appealed, arguing his convictions were multiplicitous because they arose out of the same act of violence. The court stated that Kansas has recognized some form of the “single act of violence” paradigm for years. Therefore, under the specific facts of the case, the single act of violence test applied and controlled, “especially since the pushing down and purse robbing did not just occur at ‘approximately the same time and place,’ but apparently they were both virtually contained in one physical motion.” 278 Kan. at 307.
Under the authority of State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), and State v. Vontress, 266 Kan. 248, 970 P.2d 42 (1998), the court determined the conviction for aggravated battery must be set aside. Groves, 278 Kan. at 307-08.
In Warren, the court reversed an aiding and abetting aggravated batteiy conviction because it found the convictions for aggravated robbery and aggravated battery multiplicitous when the same act of violence provided the basis for each conviction. Warren was the driver of the car taking two women from the scene of the crime after they forcibly took the victim’s purse, knocking her to the ground and causing injuries.
In Vontress, the court determined convictions for aggravated robbeiy and aggravated battery were multiplicitous because the same act of violence- — -the shooting of the victim — was used to prove both crimes. Even though the victim sustained two gunshot wounds, because there was no distinction made in the charging instrument or the jury instructions between which shot supported the bodily harm element in the aggravated battery count and which supported the aggravated robbery count, the convictions were multiplicitous. The Vontress court stated that 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.]” 266 Kan. at 256.
Kansas has long recognized the merger of crimes when they arise from a “single act of violence.” This paradigm is exemplified in State v. Cathey, 241 Kan. 715, 717-18, 741 P.2d 738 (1987). Cathey and his brother beat and shot the victim because they believed he had beaten their brother. Cathey was convicted of aggravated battery and attempted murder but appealed, arguing his convictions were multiplicitous. The court held:
“Where there is only one victim and two acts of violence — a beating and a shooting — occurring at approximately the same time and place, the person who inflicts such injuries cannot be charged with both aggravated battery and attempted murder. To hold otherwise would be inconsistent with our reasoning in Games that when a series of violent acts occurs simultaneously, it is multiplicitous to charge both aggravated battery and attempted first-degree murder.” 241 Kan. at 719-20.
In State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), the court determined the aggravated battery conviction charged in Count I was not multiplicitous with the attempted murder conviction because the shooting that supported the aggravated battery conviction occurred at an earlier time and place. The shooting was a separate and distinct act from the stabbing, running over, and abandoning that later occurred in a different location. However, since the stabbing that supported the aggravated battery conviction charged in Count II occurred simultaneous with running over the victim and abandoning her, the aggravated battery by stabbing conviction was multiplicitous with the attempted murder conviction. 229 Kan. at 373-74.
Furthermore, in Lassley, cited by Bolden here, the court held that the defendants aggravated assault conviction was duplicitous with his kidnapping and rape convictions. According to the court, the act relied upon for the aggravated assault conviction was a single continuous transaction in which two crimes — kidnapping and rape — were committed. State v. Lassley, 218 Kan. 758, 762, 545 P.2d 383 (1976); cf. State v. Fulton, 28 Kan. App. 2d 815, 823, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001) (“Duplicity is the joining in a single count of a complaint two or more distinct and separate offenses.”).
The two acts of violence here, Bolden ramming her car twice, several minutes apart, into the car driven by Plunk, were used to support four convictions — two aggravated battery counts and two aggravated assault counts. By applying the single act of violence paradigm here, Bolden can be convicted of the two counts of aggravated batteiy but not the two counts of aggravated assault because they merged into tire more serious offenses of aggravated battery.
No Instruction Error
Bolden claims the trial court erred by failing to instruct the juiy on lesser included offenses of aggravated battery. She did not request any such instructions from the trial court. The statute dealing with this, K.S.A. 2005 Supp. 22-3414(3), requires us to then apply a clearly erroneous standard of review:
“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 die 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.)
“ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citations omitted.]” State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004).
Here, Bolden claims that since she was charged and convicted of intentional aggravated battery as well as reckless driving, the jury should have been instructed on reckless aggravated batteiy or misdemeanor battery based on reckless conduct, which are less severe offenses than intentional aggravated batteiy. An examina tion of the relevant statutes shows that the defendant’s claim lacks merit.
Bolden was convicted of aggravated battery under K.S.A. 21-3414(a)(1)(C). This statute states that aggravated battery is “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Going on, K.S.A. 21-3414(a)(2) details how reckless conduct can constitute aggravated battery:
“(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
“(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
Additionally, in order to prove simple battery based on reckless conduct, the State must show that the defendant recklessly caused bodily harm to another person. K.S.A. 2005 Supp. 21-3412(a)(1).
All of the statutes that define how reckless conduct can constitute battery or aggravated batteiy require die State to prove some type of bodily harm. The facts of this case show that Plunk and Derrick did not suffer bodily harm as a result of Bolden’s conduct. As a result, there is little chance that the jury would have returned a different verdict had the additional instructions been given. Thus, Bolden’s argument fails because this is not clear error.
Affirmed in part, aggravated assault convictions reversed, and case remanded. | [
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Pierron, J:
The State appeals a question reserved of whether the district court erred in releasing Jose Ramon Carbajal Palma on an own recognizance bond following a warrantless arrest and a probable cause finding by the court because no warrant had ever been issued in the case.
Palma was stopped for traffic violations on September 5, 2004. He consented to a search, and officers discovered 21 pounds of marijuana in hidden compartments in the car. Palma was arrested and transported to the county jail. Officer Robert Walker of the Pratt Police Department prepared a probable cause affidavit and submitted it to the district court for a judicial finding of probable cause. On September 7, 2004, the court determined there was probable cause to believe that Palma committed the offense of possession of marijuana with intent to distribute and there was probable cause for Palma’s arrest and detention. Bond was set at $25,000.
That same day, on September 7,2004, the State filed a complaint against Palma alleging drug crimes of possession of marijuana with intent to sell, possession of controlled substances without a tax stamp, and possession of drug paraphernalia. Palma made his first appearance on September 7, 2004, received appointed counsel, and after a number of continuances during the following weeks, a preliminaiy hearing was scheduled for October 12, 2004. On October 12, 2004, the district court held a prehminary hearing and bound Palma over for arraignment on a finding of probable cause that Palma committed the charged felonies.
At the arraignment hearing on October 15, 2004, Palma had not posted bond and was still in custody. He pled guilty to the charges. The district court set tire sentencing hearing for November 15, 2004, and released Palma because no warrant had been issued or served. The court stated:
“Court directs Mr. Palma be released on his own recognizance to appear before this Court November 15th for sentencing.
“I do not believe it was appropriate that he be held in custody without the issuance of a warrant after this charge was filed.
“The Court directs you, Mr. Johnson [Defense Counsel], to research and potentially file pleadings on behalf of Mr. Palma on the issue of whether his constitutional rights have been violated because of his detention in the Pratt County Jail for five weeks without a warrant being served upon him.”
The State appeals the trial court’s release of Palma due to the lack of a warrant. The journal entry of arraignment states:
“The State, with the consent of the Defendant, is permitted to reserve for appeal the issue whether an arrest warrant must be issued when a complaint is filed following a warrantless felony arrest when probable cause has been found by the court based on the arresting officer’s affidavit, when the court has authorized the arrest and detention of the Defendant on the officer’s affidavit, when the Defendant is already in custody, and when a bond has been set. The Defendant in the present case was issued a summons.”
The State argues the issuance of a post-arrest warrant was not required and it was clear error for the trial court to release Palma on an own recognizance bond solely on the belief that the issuance of a post-arrest warrant was required.
Palma does not address the substance of the State’s arguments. Rather, he argues this court should decline jurisdiction because the State does not raise an issue of statewide importance. K.S.A. 2005 Supp. 22-3602(b)(3) provides that the prosecution can appeal upon a question reserved.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). The Kansas Supreme Court has emphasized that questions reserved are not entertained simply to demonstrate trial court errors which are adverse to the State or because a decision would be helpful precedent. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005). Instead, “[t]o be considered on appeal, questions reserved by the prosecution must be issues of statewide interest important to the correct and uniform administration of criminal law.” State v. Mountjoy, 257 Kan. 163, 167-68, 891 P.2d 376 (1995).
Palma contends this case presents simply another instance where the State is merely trying to have tire appellate courts consider whether the district court committed an error in' its rulings adverse to the State, in this case whether the court was wrong to release him. Palma also argues the question is moot and the State cannot show any prejudice because he returned for all subsequent proceedings as ordered in the own recognizance bond and is now in prison serving his sentence. Further, Palma maintains this is an inappropriate way to handle any claims he might have for violation of his civil rights as a result of his imprisonment without ever receiving a warrant.
We can permit this appeal under K.S.A. 2005 Supp. 22-3602(b)(3) only if we deem the issue presented to be of statewide interest. In order to reserve a question, the State must “make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. [Citation omitted.]” 257 Kan. at 166. No formal procedural steps are required by K.S.A. 2005 Supp. 22-3602(b)(3) to appeal on a question reserved.
We determine that resolution of the question reserved would provide helpful precedent. The issues sought to be raised in this appeal are not questions that are fact-specific, and this case answers a question of statewide interest concerning post-arrest warrants. Compare Tremble, 279 Kan. 391. We agree with the State that the discussion over Palma’s bond did not go to the amount or the character of the bond. Instead, the questions involving the bond concerned whether Palma was being illegally held in jail due to the lack of preparation or execution of a post-arrest warrant. Further, we do not find tire issues in the present case to be moot, since it is easily recognizable that other district courts in Kansas may have to answer this dilemma. In State v. Woodling, 264 Kan. 684, 688, 958 P.2d 398 (1998), the court stated: “ We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent.’ [Citation omitted.]” A question reserved “presuppose[s] that the case at hand has concluded but that an answer is necessary for proper disposition of future cases which may arise.” State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). For all of these reasons, we hold that the correct and uniform administration of the criminal law requires our consideration of this issue.
Kansas jurisprudence in the area of criminal law clearly allows law enforcement officers to arrest an individual when the officer has probable cause to believe the individual is committing or has committed a felony. See K.S.A. 2005 Supp. 22-2401(c)(1); Gerstein v. Pugh, 420 U.S. 103, 113, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). After this warrantless arrest, a suspect may be held in custody pending trial so long as a judicial determination of probable cause is made within 48 hours of the arrest. See K.S.A. 2005 Supp. 22-2901(7); County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991).
K.S.A. 22-2302(1) addresses the usual situation where law enforcement officers provide sufficient information to obtain an arrest warrant:
“If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue, except that a summons instead of a warrant may be issued if: (a) The prosecuting attorney so requests; or (b) in the case of a complaint alleging commission of a misdemeanor, the magistrate determines that a summons should be issued. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.”
In the situation of a warrantless arrest and a subsequent finding of probable cause, K.S.A. 22-2302(1) has minimal applicability. The process of arrest without a warrant and a subsequent judicial finding of probable cause within 48 hours is a valid substitute for obtaining an arrest warrant with the attendant finding of probable cause and subsequent execution of the warrant. See, e.g., State v. Hershberger, 27 Kan. App. 2d 485, 489-91, 5 P.3d 1004 (2000) (McLaughlin only applies to detentions following warrantless arrests); K.S.A. 2005 Supp. 22-2901(7).
In State v. Overton, 279 Kan. 547, Syl. ¶ 1, 112 P.3d 244 (2005), the court addressed the necessity of filing a warrant for a defendant who is already in custody and concluded that the issuance of a warrant or summons for the arrest of a defendant who had been arrested by an officer on probable cause and is already in custody on other charges is not required by the Kansas criminal statutes. Overton argued that his convictions should have been reversed because the district court lacked jurisdiction to prosecute him. He claimed the State failed to commence prosecution within the statute of limitations when it did not prepare and deliver an arrest warrant to the sheriff for execution. In Overton, there was never a warrant issued for Overton’s arrest because he was arrested by an officer who had probable cause to believe Overton had committed a crime. A complaint was filed, and Overton’s first appearance was held prior to the expiration of the statute of limitations of the crimes charged by the State. Because Overton’s first appearance occurred while he was in custody for subsequent charges, the court did not issue a warrant or summons for the charges at issue. The Overton court stated;
“Under the circumstances of this case, the district court’s procedure comports with the purpose of the Code. The issuance of a warrant or summons for the arrest of a defendant already in custody on other charges is not required by the Code.
“Although K.S.A. 22-2302(1) requires a magistrate to issue a warrant or a summons after determining that there is probable cause supporting a complaint, the issuance of a warrant or summons is not required for commencing a prosecution pursuant to K.S.A. 22-2301(1). K.S.A. 2004 Supp. 22-2401(c)(1) provides that a law enforcement officer can arrest a person when the officer has probable cause to believe that the person has committed or is committing a felony. Once an arrest has been made without a warrant, the person arrested must be taken before the nearest available magistrate without unnecessary delay and a complaint filed forthwith. K.S.A. 2004 Supp. 22-2901(1). The accused maybe released on bond after his or her first appearance before a magistrate, pending a preliminary examination or trial. K.S.A. 2004 Supp. 22-2802(1). In this case, Overton was arrested by a peace officer without a warrant because the officer had information that Overton had committed a felony.” 279 Kan. at 550.
We note that a complaint is a “written statement under oath of the essential facts constituting a crime.” K.S.A. 22-2202(8). K.S.A. 22-2301(1) states that a prosecution is commenced when the complaint is filed: “Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. A copy of the complaint shall forthwith be supplied to the county attorney of the county and a copy thereof shall be furnished to the defendant or said defendant’s attorney upon request.”
The State maintains that applying the warrant or summons requirement in K.S.A. 22-2302 produces an unreasonable and absurd result. “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. [Citation omitted.]” In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). The State suggests that if a post-arrest warrant is required, the possible scenario arises where a defendant could be rearrested after already lawfully bonding out on the same charge. The State also suggests a post-arrest warrant in this situation could result in a return of the warrant that predates the judge’s issuance of the warrant. This would occur if the officer dates the return on the day the defendant was actually brought into custody on the warrantless arrest. Last, the State suggests that if a defendant is out on bond, there is no purpose for the warrant since the defendant has already ensured that he or she will appear on a specific day and time for the next hearing.
The purpose for issuing a warrant or summons is to provide the accused with actual notice of the charge or charges against him or her and to insure that the accused appears before the court for further proceedings. See K.S.A. 22-2304 (form of warrant or summons). Both of those goals were accomplished when Palma appeared before the district court for the judicial finding of probable cause without a warrant. Palma has failed to show a violation of the criminal code or any prejudice resulting from the court’s failure to issue a warrant.
Applying the principles of Overton to the present case, we conclude the district court erred in determining that Palma should be released from custody because a warrant had not been issued or executed. The lack of necessity of requiring the State to serve Palma with a warrant is demonstrated by the fact that he was already in custody for the crime at issue at the time the arrest warrant would have issued. “Warrant” is defined in the criminal code as “a written order made by a magistrate directed to any law enforcement officer commanding the officer to arrest the person named or described in the warrant.” (Emphasis added.) K.S.A. 22-2202(20). “Arrest” is defined as “the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime.” (Emphasis added.) K.S.A. 22-2202(4).
The issuance of a warrant or summons for the arrest of a defendant who has already been arrested on probable cause and remains in custody after a probable cause determination by the court is not required by the Kansas criminal statutes.
Appeal sustained. | [
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Knudson, J.:
This forfeiture action was commenced under the Kansas Standard Asset Seizure and Forfeiture Act (K.S.A. 60-4101 et seq.). Ahmed Mohamed-Abdulla-Omar Al-Haj (hereafter “Al-Haj”) appeals the district court’s order forfeiting a 1998 Chevrolet Tahoe and $4,453. Two issues are presented: (1) Is compliance with K.S.A. 60-4111(b) directory or mandatory; and (2) must there be a probable cause finding to support forfeiture under K.S.A. GO-4116 regardless of whether a proper claim has been filed?
We conclude the provisions of K.S.A. 60-4111(b) are mandatory and Al-Haj failed to file a proper claim. We further conclude the district court properly struck Al-Haj’s claim but failed to enter findings of fact to support a forfeiture order. Consequently, we vacate the forfeiture order and remand for a determination of probable cause to support forfeiture. If there is a finding of no probable cause, disposition of the property shall be in compliance with the Uniform Unclaimed Property Act, K.S.A. 58-3934 et seq.
Underlying Circumstances
On May 20,2003, Russell County Sheriff Sergeant Kelly Schneider was informed by Kansas Highway Patrol Trooper Andy Dean that Dean had stopped a van in which 332 pounds of pseudoephedrine tablets were found. Dean told Schneider he believed a 1993 red Ford pickup with Ohio plates and a black vehicle were traveling with the van. Schneider, who was patrolling Interstate 70 in Russell County, Kansas, located a black Chevy Tahoe driving in front of a Ford pickup matching the description. Both vehicles were stopped. Al-Haj was the driver of the Tahoe.
The vehicles and their occupants were transported to the Russell County Sheriffs Office, where the vehicles were searched. Inside the Ford, officers found 198 pounds of “pseudoephed” tablets. A small bag of marijuana, two marijuana cigarettes, and ZigZag rolling papers were found in the Tahoe. A search of Al-Haj produced $4,453 cash. The driver of the Ford had $2,165 cash. The Ford driver’s wallet held a piece of paper on which Al-Haj’s first name and phone number were written.
Sometime around May 21, 2003, the State filed a notice of pending forfeiture of the vehicles and cash under K.S.A. 60-4109. The State alleged the vehicles and cash were used in furtherance of or were proceeds of transactions in violation of the Uniform Con trolled Substance Act, K.S.A. 65-4101 et seq. On May 29,2003, Al-Haj filed a claim to $4,453 and the Tahoe pursuant to K.S.A. 60-4111. The State then filed an in rem forfeiture action under K.S.A. 60-4113 of the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. The State’s complaint noted Al-Haj’s claim on the property but said it believed tire claim was invalid.
At the bench trial on the forfeiture, dre State argued Al-Haj’s claim should be denied because it did not meet all the requirements of K.S.A. 60-4111. Specifically, the State argued Al-Haj’s claim failed to include “the date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the property” which K.S.A. 60-4111(b)(4) requires. The district court did not deny tire claim at trial but proceeded to hear the evidence. After trial, the district court issued a written decision denying the claim and forfeiting the property. Al-Haj timely appeals.
Sufficiency of the Claim
Al-Haj acknowledges his claim was not in compliance or even substantial compliance with the requirements of K.S.A. 60-4111(b). He contends the statute is directory, not mandatory. Interpretation of a statute is a question of law permitting unlimited review on appeal. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
K.S.A. 60-4111(b) states in material part that a claim
“shall be in affidavit form . . . and shall set forth all of the following:
“(3) The nature and extent of the claimant’s interest in the property.
“(4) The date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the property.”
Al-Haj’s affidavit in support of his claim states: “The date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the motor vehicle is as set forth on title to same showing claimant as owner.” No title was attached to the affidavit; Al-Haj did not provide a copy of the title at trial. Al-Haj never attempted to explain his acquisition of or interest in the cash.
In its decision to deny the claim for failing to meet K.S.A. 60-4111, the district court stated:
“Under the facts and circumstances of this case, the claimant, Mr. Ahmed Al-Haj, says he owns the vehicle and you can verify this from the title. He fails to provide a title to the plaintiff or for the court’s review. The statute requires the claimant to make that presentation and upon his failure to do so, he has not met the elements of the statute.
“Further, in regards to the cash, there is no mention at anytime, in the affidavit or claim, as to how this cash in Iris wallet came into the possession of the claimant. He has an affirmative duty under the statute to provide a detailed description of the circumstances of the claimant’s acquisition of the interest in the property. By failing to do so, he has failed to properly follow the statute, and therefore, his claim cannot be valid.”
Al-Haj does not challenge the district court’s findings, only its conclusions of law. He contends the district court erred because the requirements of K.S.A. 60-4111(b) are directory, not mandatory. Al-Haj would ask us to conclude his failure to comply does not prevent standing in a subsequent forfeiture proceeding.
Canons of construction in determining whether a provision is mandatory or directory are addressed in Wilcox v. Billings, 200 Kan. 654, 657-58, 438 P.2d 108 (1968). The court stated:
“No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. Certain rules and aids to construction have been stated. The primary rule is to ascertain legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. It has been said whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. (82 C.J.S., Statutes, § 376).” 200 Kan. at 657-58.
K.S.A. 60-4102(g) provides: “ ‘Notice of pending forfeiture’ means a written statement by the plaintiff s attorney following a seizure of property but prior to the filing of a judicial complaint against such property allowing for an administrative resolution to claims.” (Emphasis added.) K.S.A. 60-4113(c) provides that“[o]nly an owner of or an interest holder in the property who has timely filed a proper claim may file an answer in an action in rem.” (Emphasis added.) Both of these provisions are consistent with and supportive of legislative intent that tire requirements of K.S.A. 60-4111(b) be interpreted as mandatory and an antecedent to filing an answer in the forfeiture proceeding.
A somewhat analogous statute is K.S.A. 2005 Supp. 12-105b that requires presentation of a detailed notice of claim against a municipality prior to the commencement of litigation under the Kansas Tort Claims Act. In Bell v. Kansas City, Kansas, Housing Authority, 268 Kan. 208, 210, 992 P.2d 1233 (1999), the court held the detailed requirements for a proper claim were mandatory, not directory. The court interpreted the statute is to “sufficiently advise the proper municipality ... of the time and place of the injury and give die municipality an opportunity to ascertain the character and extent of the injury sustained. [Citations omitted.]” 268 Kan. at 210. Obviously the analogy cannot be taken too far. Compliance with K.S.A. 2005 Supp. 12-105b is a condition precedent to commencement of litigation, whereas a determination of whether a party has legal standing in an in rem action is not. However, whatever the dissimilarities, the fact remains both laws are essential to either the commencement or participation in a subsequent proceeding.
Al-Haj relies on our holding in State v. Residential Unit & Real Estate, 26 Kan. App. 2d 260, Syl., 983 P.2d 865, rev. denied 268 Kan. 893 (1999), interpreting K.S.A. 60-4113(g) to be directory. K.S.A. 60-4113(g) provides in an in rem proceeding “the hearing on the claim shall be held within 60 days after service of the petition unless continued for good cause.” In essence, a majority of the panel concluded this provision to be directory, not mandatory. The court reasoned: “Here, K.S.A. 60-4113(g) is a matter of convenience rather tiran substance. It gives a view to the proper, orderly, and prompt conduct of business; has no words of absolute prohibition; and does not provide a penalty for noncompliance.” 26 Kan. App. 2d at 263.
The Residential Unit decision is not persuasive authority for Al-Haj’s argument. K.S.A. 60-4113(g) concerns scheduling a proceeding for hearing within a certain time; it does not consist of substantive content going directly to the essence of the litigation. This distinction was not lost on the State that also cited Residential Unit to support its argument that the requirements of K.S.A. 60-4111(b) are mandatory.
We acknowledge forfeiture proceedings are governed by the Kansas Code of Civil Procedure. City of Lenexa v. A Maroon 1978 Chevrolet, 15 Kan. App. 2d 333, 336, 807 P.2d 694 (1991). However, Al-Haj’s argument that “the trial court should have applied K.S.A. 60-102 and K.S.A. 60-208(f) to Mr. Al-Haj’s pleadings and/ or claim . . . should have been liberally construed and adjudicated on its merits,” is not persuasive. K.S.A. 60-4111(b) is a claims statute that precedes actual litigation. The Code of Civil Procedure does not address the substantive issue of claim content. Al-Haj’s argument would have this court disregard settled canons of construction to determine if a particular provision of law is mandatory or directory.
We hold the requirements of K.S.A. 60-4111(b) to be mandatory, not directory. As already demonstrated, various provisions of the Act direct that a valid claim must contain certain, specific information, crucial to facilitating prefiling consideration of an owner or interest holder’s claim. A failure to file a proper claim deprives a claimant of standing to file an answer and litigate his or her claim in the subsequent in rem forfeiture proceeding.
The Forfeiture Order
Al-Haj also contends the district court erred in denying his claim because the district court must first find the property is subject to forfeiture. After the district court struck Al-Haj’s claim, it held:
“The court further finds that based upon the legal determination the claimant failed to properly follow the statutory requirements to make his claim, it is unnecessary to go further and make a determination on the merits of the case as to whether the forfeiture should be granted. The court finds that issue is moot as a result of this legal determination and ruling.”
K.S.A. 60-4116(a) provides:
“If no proper claims are timely filed in an action in rem, or if no proper answer is timely filed in response to a complaint, the plaintiffs attorney may apply for an order of forfeiture and allocation of forfeited property pursuant to K.S.A. 60-4117, and amendments thereto. Upon a determination by the court that the seizing agency’s written application established the court’s jurisdiction, the giving of proper notice, and facts sufficient to show probable cause for forfeiture, the court shall order the property forfeited to the seizing agency.”
K.S.A. 60-4116(a) requires that the district court enter a probable cause finding. Because that was not done in the underlying proceeding, we vacate the order of forfeiture and remand to the district court for a probable cause determination based on the evidence that was presented.
Our conclusion gives Al-Haj a hollow victory because of his failure to file a proper claim. If there is a finding of probable cause, the district court shall order the property forfeited to the seizing agency. If there is no finding of probable cause, disposition shall be in compliance with the Uniform Unclaimed Property Act, K.S.A. 58-3934 et seq.
Conclusion
The district court’s order striking Al-Haj’s claim is affirmed. The district court’s order of forfeiture is vacated for a probable cause determination to support forfeiture.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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Malone, J.:
C.M.O., the 11-year-old daughter of Laura Osborn, n/k/a Bertelsen, and David Osborn, filed a postjudgment motion to modify parenting time in her parents’ divorce case. The district court dismissed the motion on the ground that C.M.O. had no legal standing to file the motion. We affirm.
On January 3, 1997, Laura filed for divorce from David. There were two children of the marriage: C.R.O., born June 3,1992, and C.M.O., bom April 28,1994. A decree of divorce was entered April 18, 1997. The parties were awarded joint custody of the children, with Laura as the residential parent. The district court established a parenting plan to enable David’s visitation. Conflict immediately arose over the parenting plan, and the parties litigated the visitation issue several times over the ensuing years.
In 2002, David was residing in Emporia and Laura was residing in Dodge City. At a hearing on June 3, 2002, the district court ordered that David’s summer parenting time with the children would begin the day after Memorial Day and end 1 week before the start of school. During the summer period, Laura would have the children for 1 full week of her choice and alternating weekends. Laura subsequently filed a motion to alter or amend the judgment, and the district court denied the motion and ordered Laura to pay $400 of David’s attorney fees. Laura filed a second motion to alter or amend tire judgment which was also denied.
On May 19, 2005, C.M.O., by and through her attorney, filed a motion to modify parenting time in her parents’ divorce case. C.M.O.’s appeal brief acknowledges that her attorney was employed by her mother and stepfather. C.M.O.’s motion sought modification of the summer parenting time schedule to enable C.M.O. to participate in certain sports and band programs in Dodge City. C.M.O. also filed a motion for an interview pursuant to K.S.A. 60-1614. David filed a motion to dismiss C.M.O.’s motions due to C.M.O.’s lack of standing. David also asserted C.M.O.’s motion was not verified, as required by K.S.A. 60-1628, and there had not been any changed circumstances which would require the court to modify the present parenting plan.
On June 16, 2005, the district court held a hearing on the motions. The district court noted the legislature had not provided for minor children to file their own motions regarding visitation. The district court indicated a guardian ad litem can file motions on behalf of children in certain situations. However, in the present case, the district court noted C.M.O. had made no allegation that her parents were unfit, and the district court specifically found both parents were fit and proper persons to have die care, custody, and control of their children. The district court found C.M.O. had no legal right at stake before the court. The district court dismissed C.M.O.’s motion to modify parenting time because she lacked standing to file the motion. The district court did not specifically address C.M.O.’s motion for an interview. C.M.O. timely appeals.
C.M.O. claims the district court erred in finding she had no standing to file a motion to modify parenting time in her parents’ divorce case. C.M.O. maintains Kansas law does not restrict a minor cliild from filing a motion to alter or amend parenting time. C.M.O. states that K.S.A. 60-1610(a)(3)(B) provides that die desires of the child and the child’s adjustment to his or her home, school, and community should be considered when determining visitation; therefore, C.M.O.’s motion should have been heard by the court.
This is an issue of first impression in Kansas. Whether standing exists is a question of law providing an appellate court with unlimited review. In re Marriage of Brown, 279 Kan. 282, 287, 109 P.3d 1212 (2005).
Kansas courts are vested with continuing jurisdiction to modify custody and visitation orders. Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980). K.S.A. 60-1610(a)(2)(A) authorizes the court to “change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown.” K.S.A. 60-1616(c) provides that the court can modify parenting time “whenever modification would serve the best interests of the child.”
Kansas statutes authorize parenting time and visitation rights only to parents, grandparents, and stepparents. K.S.A. 60-1616. The Kansas Supreme Court has recognized that any expansion of the categories of individuals who have standing to seek visitation rights should originate with the legislature. In re Hood, 252 Kan. 689, Syl. ¶ 2, 847 P.2d 1300 (1993); see 2 Elrod and Buchele, Kansas Law and Practice, Kansas Family Law, § 13.33 (1999). There are no statutes which explicitly address whether a minor child has standing to file a motion to modify visitation or parenting time. K.S.A. 60-217(c) specifically restricts minors from appearing in court without a duly appointed representative, except by their next friend or a guardian ad litem.
We begin with the premise that only a party may file a motion in any civil action, unless specific leave to do so is granted by the court. C.M.O. is not a party to her parents’ divorce action. Because she is not a party to tire action, she lacks standing to challenge the terms of the court orders related to the decree of divorce. C.M.O. made no attempt to file a motion to intervene as a party pursuant to K.S.A. 60-224. In the absence of an order allowing C.M.O. to intervene as a party, she had no standing to file a motion in the divorce case.
C.M.O. emphasizes that her motion should be heard so that her preferences can be considered in determining the parenting plan. However, there are other ways for C.M.O.’s wishes to be made known to the court. First and foremost, if one of C.M.O.’s parents determined that C.M.O.’s schedule and activities required a modification of parenting time, then the parent could file a motion in district court for the direct benefit of C.M.O. “Parents have a constitutionally protected right to determine how their children will be raised. See Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).” Hood, 252 Kan. at 692. There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 658-59, 16 P.3d 962 (2001). Of course, the parent would need to show the prerequisite that a material change in circumstances had occurred, prompting the motion to modify.
Second, if one of C.M.O.’s parents believed that C.M.O.’s interests were not being represented in die divorce case, the parent could file a motion pursuant to K.S.A. 60-217(c) for the appointment of a guardian ad litem. In die alternative, the district court could appoint a guardian ad litem on its own motion if the court believed both parents were unfit. Once a guardian ad litem was appointed to represent C.M.O., the guardian ad litem could file motions on C.M.O.’s behalf. See 2 Elrod and Buchele, Kansas Law and Practice, Kansas Family Law, § 12.13 (1999).
Third, K.S.A. 60-1614 expressly authorizes any party to request the district court to interview a minor child involved in divorce proceedings. C.M.O. filed her own motion for an interview which was not addressed by the district court. However, there was nothing to prevent one of C.M.O.’s parents from requesting an interview pursuant to K.S.A. 60-1614.
Finally, C.M.O. argues she should have standing in her parents’ divorce case because she has a personal stake in the determination of her parenting time. However, C.M.O. fails to recognize that minor children are subject to the rights of the parents to determine what is in the best interests of their children. Kansas law does not recognize that C.M.O. has a legal right to participate in summer sports and band programs. If C.M.O.’s parents were not divorced, there would not be a forum for her to petition the district court to allow her to participate in these activities. We agree with the district court that C.M.O. had no legal right at stake before the court.
In summary, the legislature has not provided for minor children to file their own motions regarding visitation and parenting time. C.M.O. has two fit parents who can and should represent her interests before the district court. The Kansas statutes provide other alternatives for C.M.O.’s preferences to be made known to the court. We hold a minor child has no legal standing to file a motion to modify visitation or parenting time in a divorce case. The district court correctly dismissed C.M.O.’s motion due to lack of standing.
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Green, J.:
Vincent Young appeals from the trial court’s decision revolting his probation and ordering him to serve his underlying sentence. The sole issue on appeal is whether the trial court erred in deciding not to continue the probation revocation hearing and forcing Young to proceed pro se. K.S.A. 2005 Supp. 22-3716(b) provides defendants with the right to be represented by counsel in probation revocation proceedings. In State v. Weigand, 204 Kan. 666, 466 P.2d 331 (1970), our Supreme Court stated that when an accused has not obtained counsel by the day that the accused has been ordered to appear with counsel, counsel should be appointed to represent the accused, and the trial date should be set with adequate time to allow counsel to prepare for the case. Here, the trial court committed reversible error by failing to follow our Supreme Court’s holding in Weigand when it declined to continue Young’s case and forced Young to proceed pro se. Accordingly, we reverse and remand.
Young pled guilty to obstruction of official duty in violation of K.S.A. 21-3808 and was sentenced in January 2004 to 12 months of probation with an underlying prison sentence of 7 months. In April 2004, die State moved for revocation of probation, alleging that Young had violated his probation conditions. The trial court issued a bench warrant for Young’s arrest. Young was served with the bench warrant and appeared pro se in court in May 2004. The trial court appointed counsel to represent Young. Young appeared in court with attorney Patrick Lewis in June 2004. A probation revocation hearing was scheduled for July 2004. Although Young’s counsel was present at the July 2004 hearing, Young failed to appear and a bench warrant was issued for Young’s arrest. Young was served with the bench warrant and appeared pro se before the trial court on August 26, 2004, stating that he was going to hire Tom Bath as his attorney.
Another hearing for Young’s probation violation was conducted in September 2, 2004, at which time Young appeared pro se and stated that he was still gathering funds to hire Bath. Young again appeared pro se before the trial court on September 30, 2004, and stated that he was still gathering funds to hire an attorney. The docket notes entered on September 30, 2004, state that Young said he could hire an attorney.
At the probation revocation hearing on October 26,2004, Young appeared pro se and stated that he had hired Bath to represent him. Nevertheless, Young indicated that Bath was at a trial in Jefferson City that day and could not be present at the probation revocation hearing. The State opposed any continuance of the probation revocation hearing, asserting that the case had been going on since April 2004, that there had been many different court settings, including one where Young failed to appear, and that it had been well over a month since Young had stated that he was going to hire Bath.
Determining that it would proceed on the State’s motion to revoke probation, the trial court stated:
“Mr. Young, you’ve had too many continuances, and you needed to have an attorney here present today. And if you couldn’t get Mr. Bath or somebody from his office, you just had to hire somebody else. We’re here on a motion to revoke probation. The State’s ready to proceed, and they have witnesses, and we’ve been here on several occasions, so the Court is going to hear die motion today.”
At the probation revocation hearing, the State presented testimony from Young’s probation officer, Robert Augustus. Augustus testified that Young had violated the condition of his probation which required him to report to his probation officer and to provide his current residential address to his probation officer. According to Augustus, Young was required to report to him weekly in his office. Nevertheless, Young had only come into Augustus’ office three times since February 11, 2004. All three of these visits occurred in June 2004.
Augustus testified drat Young had called him in October 2004 and said that he had been in a car accident in which the driver of the car had died. Young told Augustus that he was confined to a wheelchair and was undergoing physical therapy. When Augustus told Young that the driver of the car was on probation, Young denied any knowledge of this fact. Augustus conducted a home visit with Young on October 14, 2004, and instructed Young to report to him by phone on October 18, 2004. Nevertheless, Young failed to do so.
Young neither cross-examined Augustus nor presented any evidence at the October 2004 probation revocation hearing. Finding that Young had violated his probation, the trial court revoked Young’s probation and ordered him to serve his sentence.
On appeal, Young contends that the trial court abused its discretion in denying his request for a continuance of the probation revocation hearing and forcing him to proceed pro se without his retained counsel. Generally, the granting or denial of a continuance in a criminal prosecution is within the trial court’s discretion. The trial court’s ruling on this matter will not be disturbed unless there has been a showing that the trial court abused its discretion and that the defendant’s substantial rights have been prejudiced. State v. Snodgrass, 252 Kan. 253, 264, 843 P.2d 720 (1992). An abuse of discretion occurs when no reasonable person would take the view of the trial court. State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004).
Young argues that his rights to due process and to counsel under the Sixth and Fourteenth Amendments to tire United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution were violated and that he was substantially prejudiced when he was forced to proceed pro se without his retained counsel. Asserting that the United States Supreme Court has determined that a defendant has the right to counsel in probation revocation proceedings, Young cites to Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967). Nevertheless, Mempa does not stand for the proposition that a defendant must be afforded counsel in all probation revocation proceedings.
In Mempa, the United States Supreme Court reversed the defendants’ revocation of probation and imposition of sentences that occurred in proceedings where the defendants were not represented by counsel and were not offered appointed counsel. In that case, the probation revocation proceedings also operated as deferred sentencing proceedings. The Mempa Court recognized that the assistance of counsel was necessary at those proceedings to present the defendants’ cases as to sentences and to preserve certain legal rights that may be lost if not exercised at that stage under Washington procedure. Determining that an attorney must be afforded at such proceedings, the United States Supreme Court stated:
“[W]e do not question the authority of the State of Washington to provide for a deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be an enlightened step forward. All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing. We assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.” 389 U.S. at 137.
The United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), has indicated there is no constitutional requirement that counsel be provided in all probation revocation cases. Rather, “the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.” 411 U.S. at 790. The Gagnon Court indicated that in certain cases, fundamental fairness, which is the touchstone of due process, will require that counsel be appointed for indigent probationers or parolees. 411 U.S. at 790.
Nevertheless, Kansas statutory law provides defendants the right to representation by an attorney at a probation violation hearing. See K.S.A. 2005 Supp. 22-3716(b); State v. Gordon, 275 Kan. 393, 411, 66 P.3d 903 (2003). K.S.A. 2005 Supp. 22-3716(b), which sets forth the procedure for a probation violation hearing, states that “[t]he defendant shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant.” Therefore, Young had a statutory right to counsel at the probation revocation proceedings before the trial court. The question is whether the trial court’s decision denying a continuance constituted an abuse of discretion which violated Young’s right to counsel in his probation revocation proceedings.
Young cites to Weigand, 204 Kan. 666, where our Supreme Court held that Weigand was denied effective assistance of counsel in violation of the fundamental principles of due process when he was forced to go to trial 10 to 15 minutes after counsel was appointed. Weigand had initially hired his own counsel who represented him for approximately 11 months throughout the case but withdrew the day of trial in September 1968 due to health problems. At that time, Weigand told the court that he could and would hire another attorney. Trial was reset for October 1968, and the trial court told Weigand to have his attorney enter an appearance in the case. Nevertheless, no entry of appearance was made and Weigand appeared without counsel at the October trial setting. The trial court told Weigand that his case was going to proceed to trial that day and gave him until that afternoon to find counsel to represent him. When court was convened that afternoon, Weigand indicated that he did not have the immediate funds necessary to hire an attorney and asked the court to appoint counsel. A 10-minute recess was taken, and the trial court appointed defense counsel to represent Weigand.
Upon being appointed, defense counsel moved for a 2-week continuance of the trial, arguing that he could not fully represent Weigand due to the short time period he had been on the case. Defense counsel pointed out that he needed time to discuss with Weigand his potential witnesses and where they might be found. Stating that the case had been set for some time and that it had already continued the case, the trial court ordered the trial be set for the next day, which was October 8. Thereafter, counsel selected a jury to try the case. On October 8, the trial court continued the trial to the following morning to allow the defense to subpoena witnesses and to examine documents in the prosecutor’s file. At the jury trial, Weigand was convicted of feloniously defrauding a doctor by false pretenses. Defense counsel filed a motion for new trial, arguing that Weigand had been denied effective assistance of counsel. Defense counsel asserted that within 10 minutes of being appointed, he was required to select a jury to try the case without having the opportunity to examine and discuss the State’s witnesses and the prospective jurors with Weigand.
On appeal, our Supreme Court reversed the trial court’s judgment and granted Weigand a new trial, stating:
“A trial court should be aware of the propensities of the accused to procrastinate in the hiring of counsel. The court can and should protect itself against the irresponsibility of the defendant. After a reasonable time has been granted to the accused to procure counsel of his own choosing, as was done in this case, die accused should be ordered to appear on a day certain with counsel. If the accused has not obtained counsel on that day counsel should dien be appointed to rep resent him and the trial date should be set with sufficient time to permit counsel to advise with the accused, prepare a defense, subpoena witnesses and acquaint himself with the facts and the law. What time is reasonable will depend upon the circumstances of each case and should be determined by the trial court in its discretion.” 204 Kan. at 671.
In finding that Weigand had been denied effective assistance of counsel, our Supreme Court indicated that defense counsel had not been given adequate time to select a fair and impartial jury as he had been required to select a jury within a few minutes after being appointed. Noting that a defendant is entitled to effective assistance of counsel no matter how strong the evidence may be against him or her, our Supreme Court further stated: “This conclusion is not intended to indicate that evidence of guilt was inconclusive. No matter how guilty a defendant may be, or how strong and overpowering the evidence may be against him, he is entitled to a fair and impartial trial with the effective assistance of counsel. [Citation omitted.]” 204 Kan. at 672.
Our Supreme Court in Weigand determined that if a defendant has not obtained an attorney by the date that he or she has been ordered to appear with counsel, the trial court should appoint counsel to represent the defendant and should set the trial date with sufficient time to allow counsel to prepare for the case. Weigand was cited in State v. Miller, 4 Kan. App. 2d 68, 75-76, 602 P.2d 553 (1979), where this court found no abuse of discretion in the trial court’s decision denying Miller’s request for a continuance to obtain a new attorney and forcing him to proceed to trial pro se. In reaching the decision in Miller, this court set forth our Supreme Court’s rule in Weigand that counsel should be appointed if the defendant has failed to obtain counsel by the ordered date. Nevertheless, this court stated that Miller was found not to be financially unable to employ an attorney and so the rule of Weigand was inapplicable.
The instant case is distinguishable from Miller because the record here indicates that Young qualified for appointed counsel. The record contains an order appointing counsel for Young in his underlying criminal case. Moreover, tíre record shows that the trial court appointed counsel in May 2004 when Young first appeared in this case on a bench warrant. Therefore, we are unable to find as we did in Miller that our Supreme Court’s rule in Weigand is inapplicable.
Nevertheless, the State maintains that a reasonable person would agree with the trial court’s decision to deny the tacit request for a continuance on a motion to revoke probation that had been pending for 6 months. The State cites to State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183 (1976), where our Supreme Court stated: “Although an accused must be provided fair opportunity to obtain counsel of his choice, his right cannot be manipulated to impede the efficient administration of justice. [Citation omitted.]”
In Bentley, Bentley requested a continuance on the morning of trial. Bentley appeared with his appointed counsel but complained of a conflict with his attorney and requested a continuance to obtain other counsel. The trial court denied Bentley’s request for a continuance, and the case proceeded to a bench trial. On appeal, Bentley argued that the trial court abused its discretion in denying his request for a continuance. In rejecting Bentley’s argument, our Supreme Court stated that Bentley had been represented throughout the proceedings “by counsel of good repute, who was known to the court which appointed him as professionally competent to handle trial of this case’ ” and that the record did not suggest otherwise. 218 Kan. at 695. Moreover, our Supreme Court indicated that it did not disagree with the trial judge’s opinion that Bentley’s last-minute request for a continuance was a delay tactic, and further stated:
“The defendant was vague and imprecise concerning the conflict and its nature. By his own statement the ‘problem’ had been on his mind a month, yet his counsel said Bentley had never told him about it.
“Bentley had shown a propensity for delay by twice forfeiting bonds to appear at a preliminaiy hearing. The trial court knew that a last minute continuance would result in further substantial delay in getting the case to trial.” 218 Kan. at 695.
Bentley is distinguishable from the instant case because Bentley was represented by appointed counsel at trial. Here, Young did not have appointed counsel who represented him at the probation revocation hearing. Although counsel had been appointed to represent Young in May 2004, apparently this counsel was no longer repre senting Young as the record indicates that he had not appeared with Young in court since July 2004.
Under our Supreme Court’s holding in WeigancL, when Young failed to appear with retained counsel on the morning of the probation hearing, tire trial court was required to appoint counsel to represent Young and to set the hearing date with adequate time for counsel to confer with Young, to prepare a defense, to subpoena witnesses, and to become acquainted with the facts and the law. In Unwitting Victim v. C. S., 273 Kan. 937, 944, 47 P.3d 392 (2002), our Supreme Court stated that “ ‘[a]n abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.’ [Citation omitted.]” Because the trial court failed to follow the rule in Weigand, we determine that the trial court abused its discretion in declining to continue the probation revocation hearing and forcing Young to proceed pro se.
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McAnany, J.:
Charles Adams appeals his convictions for possession of cocaine, conspiracy to sell cocaine, attempted sale of cocaine, possession of hydromorphone, possession of marijuana, and two counts of possession of drug paraphernalia. Because the admission of hearsay testimony from an informant violated Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and the Confrontation Clause to the Sixth Amendment to the United States Constitution, we reverse Adams’ conviction for attempted sale of cocaine, set aside his sentence on that count, and remand for a new trial on that count. We affirm tire remainder of Adams’ convictions and his sentences.
Adams’ first jury trial in January 2004 ended in a mistrial for reasons unrelated to this appeal. The retrial was held in August 2004. Officer Todd Godfrey of the Junction City Police Department testified for the State. On April 3, 2003, Godfrey was a detective with the Junction City-Geary County Drug Operations Group. Adams was the focus of their investigation. This was based on information from Frederic Green, a confidential informant, who told Godfrey that he had purchased crack cocaine from Adams in the past. Adams objected to this hearsay testimony. The trial court overruled the objection.
Godfrey testified that the police set up a buy/bust room at a local motel in order to catch Adams in the course of a drug deal. Green then placed a phone call to Adams while the police listened in and recorded the call. Godfrey overheard the conversation. In the call, Green asked Adams for “a bill” and stated that he was “stuck like Chuck, at the motel room and that he couldn’t leave.” Adams informed Green that he would be at the motel in about 10 minutes. Green told Godfrey that “a bill” meant $100 worth of crack cocaine.
When Adams failed to arrive at the motel, Green made two more calls to Adams. Godfrey was not personally present while Green made these calls. He could hear Green’s side of the conversations from an adjoining motel room, but not what Adams said to Green. Following the second call, Green told Godfrey that Adams would be there in about 5 minutes. After the third call, about 10 minutes later, Green told Godfrey that Adams was outside waiting for Green to come out. The police left the building, located Adams in a car with two other occupants, and arrested him.
Green did not testify at trial. Godfrey testified that Green could not be found and he believed Green was dead.
Adams contends that the trial court erred in admitting Green’s hearsay statements contrary to the ruling in Crawford. He contends that this error denied him the right to confront his accuser. First we will examine this claim in the context of Adams’ conviction for attempted sale of cocaine.
Confrontation Clause — Attempted Sale of Cocaine
The Confrontation Clause of the Sixth Amendment to the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
When faced with a constitutional challenge to the admission of evidence, we apply the federal constitutional rule, under which an error is not harmless unless we are willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Holmes, 278 Kan. 603, 625, 102 P.3d 406 (2004).
In Crawford, the United States Supreme Court drew a distinction between testimonial and nontestimonial hearsay evidence. The Court held:
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68.
If an unavailable witness’ out-of-court statement is testimonial in nature, it cannot be admitted into evidence unless the defendant has had a prior opportunity to cross-examine the witness. Godfrey s recounting of Green s telephone conversation is clearly hearsay. Green was not available to testify. Thus, the issue turns on whether Green s statements were testimonial in nature.
While not providing a comprehensive definition of “testimonial” statements, the Crawford Court provided examples, historical and otherwise, that are instructive. Chief among them is one involving tire use of an informant: the trial in 1603 of Sir Walter Raleigh for treason, in reaction to which the English right of confrontation was bom. Lord Cobham, alleged to be Raleigh’s accomplice in a treason plot, implicated Raleigh in statements to the Privy Council and in a letter, both of which were read to the jury at trial. Raleigh argued that Cobham lied to save himself and demanded that Cob-ham appear at trial and be subject to cross-examination. The court refused and Raleigh was convicted and condemned to death. 541 U.S. at 44.
The issue of an informant’s testimony was considered in United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004), in which the court declared that testimony by the police recounting statements by a confidential informant are testimonial in nature, and without the testimony of the confidential informant they violate the Confrontation Clause. As noted in United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004):
“Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation.”
Here, Adams’ statements which Godfrey overheard in Green’s first telephone call to Adams are admissions that satisfy K.S.A. 60-460(g). Godfrey, who recounted them in his testimony, was available for cross-examination, so his testimony does not implicate Crawford. Further, and as argued by the State, to the extent that Green’s statements to Godfrey are not offered to prove the truth of the matter asserted but merely to explain why Adams was the target of the investigation, they are not hearsay and their admission does not violate Crawford. (We caution prosecutors that this is a close question, and our holding in this respect is not an open invitation to them to gild the lily in eliciting unnecessary and damning details to establish the motivation for the police investigation. Prosecutors do so at their peril. See Silva, 380 F.3d 1018.)
On the other hand, Godfrey was permitted to recount absent-witness Green’s statements in his telephone calls to Adams. Green has never been available for cross-examination. Further, there was evidence of bad blood between Green and Adams. Green was specifically retained by the police because of his knowledge of drug deals and drug dealers. The whole point of Green’s telephone call to Adams, which he knew the police were listening to, was to establish evidence with which to prosecute Adams. Green had every reason to believe that his statements made to Adams during the telephone conversations would be used against Adams at trial. Green’s statements in his telephone conversations with Adams were testimonial in nature. They were offered for the truth of the matter asserted, i.e., that Green offered to buy cocaine from Adams.
While in the proper context such a statement may be viewed as a verbal act, to which the hearsay rule does not apply, State v. Smith, 271 Kan. 666, 673, 24 P.3d 727, cert. denied 534 U.S. 1066 (2001), when a defendant is charged with an attempted sale of cocaine, K.S.A. 65-4161(a) requires a sales transaction that “encompasses such transactions as barter, exchange or gift, or offer therefor.” (Emphasis added). State v. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976). There was no actual transaction since Adams was apprehended before it took place. However, there was an offer for such a transaction, and it came from Green. Obviously, this testimony was offered to satisfy an essential element of the crime of attempted sale of cocaine. Without it, there is no evidence of a proposed sales transaction which Adams could attempt to consummate. Without it, we have only Adams’ statement that he was coming to the motel, a visit he says was for the purpose of beating up Green. Thus, Godfrey’s testimony of Green’s conversation with Adams violates Crawford, and we must set aside the attempted sale of cocaine conviction and remand for a retrial on this charge.
Confrontation Clause — Conspiracy to Sell Cocaine
Adams’ conviction for conspiracy to sell cocaine is not dependent upon the admission of Green’s hearsay statements. Unlike in the attempted sale of cocaine charge, the issue is not whether Green and Adams negotiated for the purchase and sale of cocaine. Rather, the issue is whether there was an agreement among coconspirators (Adams and someone other than Green) to commit a crime and an overt act in furtherance of the conspiracy. K.S.A. 21-3302; State v. Daugherty, 221 Kan. 612, 562 P.2d 42 (1977).
The jury had before it the statements of Green. As noted earlier in Holmes, we must determine whether we are willing to declare beyond a reasonable doubt that the admission of Green’s statements contrary to Crawford had any likelihood of changing the result of the trial on this count. In other words, was there any reasonable likelihood that the jury could have erroneously concluded that the requirement of an overt act was satisfied by the phone call between Green and Adams?
We think not. The phone calls were initiated by Green, not Adams. It was the independent act of coming to the motel, not the prior phone calls, that supplied one of several possible overt acts. Adams admitted that he went to the motel to meet Green. He claimed he went there to fight Green. The jury obviously rejected this claim. Drugs and paraphernalia for selling drugs were found in the house occupied by Adams and Jasmine Davis. Drugs packaged for sale were found in the car. Substantial sums of cash were found on Adams and among his personal effects at his house. The video received in evidence showed a modus operandi for drug sales consistent with the events leading up to Adams’ arrest. The K.S.A. 60-455 evidence was relevant to show Adams’ plan. Even without Green’s statements, the totality of the evidence supported the jury’s conclusion that the reason for Adams going to the motel was to sell Green drugs, not fight him. The admission of Green’s statements did not affect the outcome of the conspiracy to sell cocaine charge.
Confrontation Clause — Possession of Cocaine, Possession ofHydromorphone, Possession of Manjuana, and Possession of Drug Paraphernalia
Using the same analysis as in the preceding section, we are satisfied beyond a reasonable doubt that the admission of Green’s statements was unlikely to change the results of the trial on these remaining counts. These charges arise from events that occurred after the police confronted Adams outside the motel. They are not dependent upon the prior exchanges between Godfrey and Green, or between Green and Adams. The admission of Green’s statements did not adversely impact the outcome of these charges.
K S. A. 60-455 Evidence
Adams claims the court erred in admitting his prior convictions for possession of marijuana and for the possession and sale of cocaine. We review tins claim using the abuse of discretion standard. Holmes, 278 Kan. at 623.
Adams did not object at trial to the admission of his prior convictions. The court instructed the jury that this evidence was admitted solely to prove Adams’ plan or intent and that the juiy should not consider it in any other way. These are proper purposes for the admission of Adams’ prior convictions when there is an issue whether he intended to exercise control over the controlled substances in question. See State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976).
When the police first confronted Adams outside the motel, he was in the front passenger seat of an automobile driven by his girlfriend, Jasmine Davis. James Epps was in the back seat. The automobile was owned by Adams’ mother. The police found the cell phone whose number Green had called earlier. Adams had $810 in cash on his person. A cigar box containing a baggie of marijuana was located on the console between Adams and Davis. A plastic baggie containing crack cocaine was found stuffed between tiae seat and the door in the back where Epps was sitting.
After the arrests, the police searched Davis’ residence where they found clothing, shoes, a videotape, and personal effects of Adams indicating that he resided there with Davis. They also found a bottle of Dilaudid pills which contain hydromorphone, along with baggies, a set of scales, some Zigzag rolling papers, a single-edged razor blade, a small pile of marijuana, a dish containing cocaine residue, and two rocks of cocaine. An issue at trial was Adams’ intent to possess the illicit items found in the automobile and in Davis’ residence.
In State v. Likins, 21 Kan. App. 2d 420, 903 P.2d 764, rev. denied 258 Kan. 861 (1995), marijuana and drug paraphernalia were found in a car occupied by the defendant and another person. The trial court admitted evidence of the defendant’s prior conviction for possession of marijuana to prove the element of intent to possess the marijuana and drug paraphernalia. Since intent to possess was at issue, evidence of the defendant’s prior marijuana conviction was relevant, and its probative value outweighed any prejudicial effect. Thus, the trial court did not abuse its discretion in admitting evidence of the conviction.
The analysis in Likins applies to Adams’ claim. The trial court did not err in admitting the evidence of Adams’ prior related convictions to prove Adams’ plan or intent.
Admission of Video
Another item found in the Davis/Adams residence was a video which showed Adams engaging in what the police claimed to be a drug transaction over the telephone. Adams made a generic objection to the video and testimony about it. He now claims the court erred in admitting the video and testimony about it because it failed to consider their admissibility under K.S.A. 60-455. “A generic objection is insufficient to preserve the issue of the erroneous admission of evidence for appeal.” State v. Flynn, 274 Kan. 473, 501, 55 P.3d 324 (2002). Nevertheless, the trial court would not have abused its discretion in overruling a more specific objection and admitting this evidence pursuant to K.S.A. 60-455 to show Adams’ plan or modus operandi. See State v. Rucker, 267 Kan. 816, 828, 987 P.2d 1080 (1999).
Motion for a New Trial
Adams contends the trial court erred in denying his motion for new trial. We review this issue using the abuse of discretion standard. Flynn, 274 Kan. at 513.
Adams attempted to call Davis to testify at his trial. Since she was facing charges in another case, she invoked her Fifth Amendment right not to testify. Adams then requested that Davis’ testimony from his first trial be read into evidence. The State objected, stating that if Davis did not testify it would be unable to impeach her testimony by showing that she was biased in favor of Adams as evidenced by her being charged with intimidating a witness in a case where Adams was charged with burglary. The court admitted into evidence a transcript of Davis’ prior testimony along with a copy of the court file in the witness intimidation case against Davis. Adams’ counsel not only failed to object to this procedure at the time, but stated, “Okay. I’ll go along with that.”
In his motion for new trial, Adams contended he was denied a fair trial because Davis’ case file contained information indicating that Adams had committed a robbeiy and intimidated a witness, charges completely separate from the charges he faced at trial.
We fail to see how evidence of an unproven charge can be used to attack a witness’ credibility by showing the witness’ bias in favor of tire defendant under either K.S.A. 60-421 or K.S.A. 60-420. See State v. Mariis, 277 Kan. 267, 282, 83 P.3d 1216 (2004). Nevertheless, whatever file the court admitted into evidence does not appear to be a part of the record on appeal. Since Davis’ file in the record contains an order dismissing the intimidation charges after Adams’ trial, and since the file has no exhibit sticker, it does not appear to be the file that was admitted at trial. Further, there is absolutely no mention of Adams in this file. Separate and apart from this file, the record also contains an affidavit detailing the robbery allegedly committed by Adams in May 2004. However, Adams fails to demonstrate that this affidavit was admitted into evidence at trial. Adams has the affirmative duty to show in the record the error he attributes to die trial court. He has not done so. Under these circumstances, we find no abuse of discretion in the trial court’s denial of Adams’ motion for a new trial.
Davis' Prior Testimony
Adams has an additional complaint about the admission of Davis’ prior testimony. He now claims this procedure violated his due process rights. On the one hand, he claims that there was no guarantee that the jury actually read the transcript of Davis’ testimony from the first trial during its deliberations. On the other hand, if they did read it in the jury room, he claims he had a constitutional right to be present during its reading. We review this constitutional challenge using the standards enunciated earlier from Holmes.
With respect to the alternative that the jury may not have read the transcript during its deliberations, Adams’ sole authority is Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). In Chambers, the defendant was denied the opportunity to attempt to impeach a defense witness based upon the Mississippi rule that one may not impeach one’s own witness. As a result, he was prohibited from presenting an essential defense to the murder charge against him. The court found that due process requires that a defendant be able to confront and cross-examine witnesses who give testimony damaging to the defense.
Adams does not assert that he was denied the right to fully examine Davis. Further, Adams failed to object to the admission of Davis’ testimony in this fashion. State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003). In fact, it was Adams’ counsel who offered the transcript into evidence. He speculates that the jurors may not have read Davis’ testimony in the jury room. If Davis’ testimony had been read in open court, Adams could assert that the entire jury was asleep throughout the reading, resulting in the same complaint that he raises today. But without some proof in the record to support such a complaint, it would necessarily fail. Mere speculation does not carry the day. The jury had the duty to consider and weigh all the evidence in arriving at its verdict. We presume it did so absent evidence to the contrary.
With respect to the alternative that the jury read the transcript during deliberations and outside of Adams’ presence, he relies upon State v. Brockenshire, 26 Kan. App. 2d 902, 995 P.2d 905, rev. denied 269 Kan. 935 (2000). In Brockenshire, the State offered into evidence a tape from a body wire worn by an informant during two marijuana purchases from the defendant. The tape was admitted into evidence even though the seal had been broken on the box which contained it and the testifying officer “assumed” the tape in the box was the one obtained through the informant. The defendant’s voice was never identified on the tape. The defendant’s objection to a lack of foundation was overruled and the tape was admitted and later played in the jury room, but not in open court.
Unlike in Brockenshire, Adams was the one offering the evidence, not the State. He was not confronted with damning evidence which he could not rebut or comment upon. There was no issue about foundation or the accuracy of the transcript of Davis’ testimony. (In Brockenshire, there was no determination before the tape was played in the jury room that it was even the defendant’s voice that was recorded.) Adams knew what Davis said in the first trial and what the transcript contained. After all, it was Adams who called Davis to testify. His counsel not only acquiesced to the procedure of offering the transcript into evidence, but was the one who offered it as an exhibit. Knowing the details of Davis’ prior testimony memorialized in the transcript, he had every opportunity to introduce other evidence bearing upon that testimony and to explain to the jury in closing argument its contents and significance. See State v. Gholston, 272 Kan. 601, 609, 35 P.3d 868 (2001), cert denied 536 U.S. 963 (2003).
We discourage the use of the procedure adopted by the trial court. The trial court should require that testimony presented in the form of a transcript be read to the jury in open court. While the trial court did not follow that procedure, under the facts peculiar to this case there was no violation of Adams’ constitutional rights.
Conspiracy to Sell Cocaine — Sufficiency of the Evidence
In considering Adams’ challenge to the sufficiency of the evidence to support his conviction for conspiracy to sell cocaine, we review the evidence in the light most favorable to the prosecution to determine if a rational factfinder could have found Adams guilty beyond a reasonable doubt. State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005). A conviction of even the gravest offense may be sustained by circumstantial evidence. Holmes, 278 Kan. at 632.
As discussed earlier, the crime of conspiracy requires an agreement between two or more persons to commit or to assist in com mitting a crime, and an overt act in furtherance of the conspiracy committed by one or more of the conspirators. Daugherty, 221 Kan. at 619. The agreement element requires no particular formalities. A tacit understanding regarding the unlawful scheme will suffice. That understanding may be inferred from the facts and circumstances of the case. See State v. Hernandez, 24 Kan. App. 2d 285, 291, 944 P.2d 188, rev. denied 263 Kan. 888 (1997). The overt act element requires the showing of an act to effectuate the object of the conspiracy. State v. Hill, 252 Kan. 637, 642, 847 P.2d 1267 (1993).
Viewed in a light most favorable to the State, and disregarding the statements of the absent Green, rocks of crack cocaine and paraphernalia used in marketing this product were found in the house where Adams and Davis lived, along with $1,100 in cash found in a shoe which the State contended belonged to Adams. The police also found a video which showed Adams engaging in what appeared to be a drug transaction over the telephone. Adams was arrested with Davis and Epps in an automobile that contained rocks of cocaine packaged in the same manner as those found at the Davis/Adams residence. Adams had $810 in cash and Epps had $218 in cash when they were arrested. Adams admitted that he went to the motel to meet Green, though he denied the purpose was to sell drugs to Green. Davis testified (through the transcript of her testimony at the first trial) that she, Epps, and Adams went to meet Green for the purpose of engaging in a fight. Whether this testimony about the reason for meeting Green was credible was a matter for the jury, and the jury resolved that issue contrary to Adams. See State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004).
It is apparent that the jury concluded that, at the minimum, Adams and Davis had an agreement to engage in the sale of cocaine and drove Adams’ mother’s car containing rocks of cocaine to meet a prospective customer to consummate a sale. There is substantial evidence of the elements necessary to support Adams’ conviction of this charge.
Possession of Contraband and Paraphernalia — Sufficiency of the Evidence
As discussed above, we use the substantial evidence test in evaluating Adams’ challenge to die sufficiency of the evidence to sup port his convictions for possession of cocaine, possession of hydromorphone, possession of marijuana, and two counts of possession of drug paraphernalia. Adams claims there was insufficient evidence to establish that he actually possessed the contraband or paraphernalia.
As noted earlier, Adams was not in exclusive possession of the car or house where these items were found. Therefore, there must be other incriminating circumstances linking Adams to the drugs, such as prior drug dealing, his proximity to the area where drugs were found, the proximity of his possessions to the drugs, and whether the drugs were in plain view. See State v. Geddes, 17 Kan. App. 2d 588, 591, 841 P.2d 1088 (1992), rev. denied 252 Kan. 1094 (1993). All of these factors are present here: Adams’ prior drug convictions, the location of the marijuana on the console next to Adams and in plain view, the hydromorphone found in a medicine cabinet, drug paraphernalia found in the house he occupied with Davis, and the cocaine found in the house and in the automobile. While Adams had different explanations for this evidence, the jury found that testimony lacking in credibility.
The evidence was sufficient to establish that although Adams did not have exclusive possession of the contraband and paraphernalia, based upon his prior convictions, his proximity to tire location where the drugs were found, and the proximity of his belongings to tire drugs and paraphernalia, he knowingly and intentionally had control over them.
Cumulative Error
Adams claims the trial court erred with respect to two additional issues which, when considered collectively, deprived him of a fair trial. We examine these claims to determine whether, under the totality of the circumstances, the collective effect of any such errors had the effect of denying Adams a fair trial. See State v. Kirby, 272 Kan. 1170, 1191-92, 39 P.3d 1 (2002).
1. Arrest Warrants
Officer Godfrey testified that the officers approached Adams’ vehicle with their firearms drawn because Adams had an active Kansas Department of Corrections arrest and detain order and an outstanding failure to appear warrant through Geary County. Similar testimony came from Officer Coffman. Adams did not object to this testimony. Without a timely objection, Adams has not preserved this issue for appeal. Kunellis, 276 Kan. at 477.
2. Failure to Give Jury Instructions
A. Unanimity When Multiple Acts
Adams next contends the trial court erred in failing to give a unanimity instruction. Adams did not request such an instruction. We will reverse only if the failure to so instruct was error and we are firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004).
Adams was found guilty of possession of cocaine, possession of hydromorphone, two counts of possession of drug paraphernalia, and possession of marijuana. He claims error in the court’s failure to provide a unanimity instruction only with respect to his convictions for possession of cocaine and possession of marijuana.
Adams presents a rather seductive argument to support this claim. He points out that the claimed multiple acts are Adams’ possession of the drugs found in the car and his possession of the drugs found in the house he apparently shared with Davis. In such a situation the State can avoid a multiplicity problem by electing a particular act to rely on for a conviction. State v. Johnson, 33 Kan. App. 2d 490, 498, 106 P.3d 65 (2004). It failed to do so. Absent such an election, the salutary effect of a multiple acts instruction is to caution the jurors that they must unanimously agree on the specific act that constitutes an element of the crime charged, thereby avoiding the possibility of the jury finding Adams guilty of possession of illegal drugs based upon some jurors believing he possessed the drugs in the car and other jurors believing he possessed the drugs in the house. See State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001). The court gave no such instruction.
Incidents of claimed possession are factually separate if they occurred at distinctly different places and times. They are legally separate if Adams presented different defenses to them. Here, the jury was confronted with legally and factually separate incidents. The drugs found by the police were separated both in time and distance from one another. Adams’ defense was that he was unaware of the drugs found in the vehicle. The marijuana was found in the console between him and Davis. The cocaine was found stuffed between the door and the back seat where Epps sat. With respect to the drugs found in the house, his defense was that he did not live at Davis’ residence. He claimed that he was no longer in a relationship with Davis at the time that drugs were found in the house and, therefore, had no connection to them.
Despite these factual and legal distinctions between the drugs in the car and the drugs in the house that require a unanimity instruction, there was no possibility of jury confusion.
Adams was also convicted of possession of hydromorphone. That drug was found in only one location: tire medicine cabinet in the Davis/Adams house. Thus, there can be no multiplicity issue with respect to this conviction. Adams’ defense to the hydromorphone charge was tire same as to the other drugs: he did not reside in the house with Davis, and he and Davis had broken up long before these drugs were found. The jury either believed this defense or not. Having convicted Adams on the hydromorphone charge, they clearly rejected his defense and unanimously found that he did possess the drugs in the house. Since this was the same defense to the marijuana and cocaine charges, and since it is clear that the jury unanimously rejected this defense, there can be no doubt that the jury was unanimous in finding that Adams possessed the cocaine and marijuana located in the house. The fact that some but not all of the jurors may have also believed he had possession of tire drugs in the car is immaterial, since the finding that he possessed the drugs in the house was unanimous.
There was no real possibility that the jury would have rendered a different verdict if a unanimity instruction had been given. Thus, while Adams’ unanimity argument is facially appealing, it ultimately fails.
B. Multiple Counts
Adams also contends the court failed to give a multiple counts instruction. He requested no such instruction at trial. A multiple counts instruction avoids the jury being misled into believing that a finding of guilty on one count requires a finding of guilty on another. State v. Gould, 271 Kan. 394, 401, 23 P.3d 801 (2001). If a trial court should have given a multiple counts instruction but failed to do so, the error is harmless if the counts were distinguished on the verdict form and it was clear the jury weighed the evidence in reaching separate verdicts. State v. Kelly, 262 Kan. 755, 764, 942 P.2d 579 (1997).
Here, like the verdict form in Gould, the verdict form clearly indicated separate counts for each crime charged. The court gave separate instructions for each count, clearly delineating the elements for each crime charged. Under these circumstances, the court’s failure to give a multiple counts instruction was not clearly erroneous.
Adams’ claim of cumulative errors fails.
Enhanced Sentence
Adams contends the trial court erred by using his prior conviction for sale of cocaine to enhance his sentence for his convictions for conspiracy to sell cocaine and attempted sale of cocaine. Since we are reversing and remanding the attempt conviction, we will consider here only the conspiracy conviction.
Interpretation of a statute is a question of law over which our review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The intent of the legislature governs if that intent can be ascertained. We presume that the legislature expressed its intent through the language of the statutory scheme it enacted. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). We construe the various provisions of an enactment together with the goal of achieving workable harmony between them, if that is possible. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768, 69 P.3d 1087 (2003).
Adams contends that since he was convicted of conspiracy to sell cocaine under K.S.A. 21-3302(a), rather than sale of cocaine under K.S.A. 65-4161, his prior conviction for sale of cocaine under K.S.A. 65-4161(a) cannot be used to enhance his sentence. He claims that since K.S.A. 21-3302 does not contain an enhanced penalty provision, the penalty enhancement provision under K.S.A. 65-4161(b) cannot be used to enhance his sentenced since he did not specifically violate “this section.”
The elements of a conspiracy crime are a combination of those elements contained in the conspiracy statute and those contained in the statute defining the substantive offense. See PIK Crim. 3d 55.01, 55.03. Thus, the charge against Adams of engaging in a conspiracy to sell cocaine involved both K.S.A. 21-3302, the conspiracy statute, and K.S.A. 65-4161(a), the substantiative criminal statute.
The conspiracy statute, K.S.A. 21-3302(d), states: “Conspiracy to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.” Thus, the sentencing court must refer to the sentencing requirements in the statute for the substantive offense when determining the sentence for a conspiracy conviction. The severity level of a conspiracy crime is not set by the conspiracy statute but rather the statute containing the substantive offense, less 6 months.
In this case, Adams was convicted of conspiracy to sell cocaine. The conspiracy statute, K.S.A. 21-3302(d), is used in conjunction with K.S.A. 65-4161, the substantive criminal statute, to determine tire severity level of Adams’ sentence. K.S.A. 65-4161(b) states: “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.” Because Adams had a prior conviction for sale of cocaine under K.S.A. 65-4161, K.S.A. 65-4161(b) requires sentencing as a severity level 2 offense.
The trial court properly used Adams’ prior conviction to classify his conspiracy to sell cocaine conviction as a severity level 2 offense.
Apprendi
Finally, Adams contends the trial court violated the rule in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it increased the penalty for his possession of cocaine conviction without having first presented his prior conviction to a jury and proven it beyond a reasonable doubt. Adams recognizes that this issue has been adversely decided by our Supreme Court in State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court precedent unless there is some indication that the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). We see no such indication.
Conviction for attempted sale of cocaine is reversed, sentence is vacated, and case is remanded for retrial on that count. Convictions and sentences on the remaining counts are affirmed.
Affirmed in part, reversed in part, and remanded with directions. | [
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Greene, J.:
Lariy A. Poage, Jr. appeals his conviction for attempted possession of precursors with the intent to distribute in contravention of K.S.A. 21-3301 and K.S.A. 65-7006(b). He challenges the district court’s denial of his motion to suppress and the sufficiency of the evidence to support his conviction. We affirm.
Factual and Procedural Background
On March 26, 2002, an Olathe police officer working the midnight shift received a call from dispatch at approximately 3 a.m. reporting that a clerk at a convenience store had “advised that someone was trying to buy a large quantity of matches, the matchbook type.” The officer proceeded immediately to the convenience store and interviewed the clerk, who told him that this person had purchased two large boxes of matchbooks containing a total of 100 matchbooks (approximately 2,000 individual matches), and “had been doing that for several months.” She also told the officer that this person tried to buy two more boxes from her, but she refused to sell them due to a policy limiting sales to two boxes per customer. Despite this refusal, the person returned to the store after taking the first two boxes to his vehicle añd attempted once again to buy more matchbooks, but she refused to sell them and called dispatch, providing a description and a license plate number, which proved to be registered in Linn County. Finally, the clerk advised the officer that during the person’s visit to the store, he picked up a bottle of “Heet” fuel additive and looked at it but returned it to the shelf.
Based upon this information, the officer decided to call another nearby convenience store to see if this person had made similar purchases there. Indeed, the nearby store reported that a person in a vehicle matching the description had just “tried to purchase or did purchase matches.” Based upon this information, the officer radioed another officer believed to be in the area of the second store, gave him the vehicle description and tag number, and asked him to watch for the vehicle “hoping that the vehicle would be headed back towards Paola.” The second officer was told that he was to stop the vehicle if he saw it.
At approximately 3:30 a.m., the second officer spotted a vehicle matching the description with a tag number only one digit off the number provided by the clerk. He followed the vehicle, observed the vehicle pull into a gas station and the driver go into a restroom, and then stopped the vehicle. He approached the driver, ran a check on his license, and determined that his license was suspended. By this time the initial officer joined the second officer at the scene of the stop and placed Poage under arrest. The vehicle was towed and during an inventory search the following items were noted: 21 extremely small bottles of iodine, 12 boxes of matchbooks — each containing 50 books, empty boxes of cold and allergy medications, 4 bottles of Heet fuel additive, a gallon container of camp fuel, 6 boxes of Equate antihistamine tabs, 118 “red tablets,” various receipts, and a rifle.
Upon questioning, Poage admitted that “he was basically driving around town purchasing items for a gentleman named Steve or Steven and that . . . Steve was going to use those items to manufacture methamphetamine.” On March 27, 2002, the State charged Poage with possession of pseudoephedrine, ephedrine, or phenylpropanolamine with the intent to use the product as a precursor to any illegal substance, to wit: methamphetamine, and unlawfully driving a vehicle with a suspended license.
On March 5,2003, Poage filed a motion to suppress. In its ruling from the bench, the district court recited the salient facts and then stated:
“I think those things taken together establish a reasonable articulable suspicion that a crime was afoot and that’s really the only issue here is whether or not there was any probable cause to stop Mr. Poage in the first place. Once he was stopped there were lots of methamphetamine ingredient in his possession and he quickly volunteered that that was the purpose of having them, so that meandering summary of the facts lead me to believe that the motion to suppress should be denied.”
Following a bench trial and the court’s denial of his motion for acquittal, Poage was found guilty and sentenced to 30 months’ imprisonment. He appeals.
Did the District Court Err in Denying Poage’s Motion to SuppressP
We review the district court’s ruling on the motion to suppress to determine if the facts relied upon are supported by substantial competent evidence, but we review the ultimate legal conclusion de novo. State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998). Although we will not reweigh the evidence, the ultimate determination of the suppression of evidence is a legal question requiring our independent determination. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).
Poage concedes that the facts in this case are not in dispute, and the State apparently agrees. We note at the outset, however, that the district court erred in its reference to and apparent reliance on contraband recovered in Poage’s possession after the stop. In determining whether the officers had reasonable suspicion that the defendant was committing, about to commit, or had previously committed a crime, our focus is exclusively on the officer’s knowledge of facts at the moment of the stop or seizure. State v. Guy, 242 Kan. 840, 843, 752 P.2d 119 (1988).
Poage also implicitly concedes that in focusing on the facts purportedly supporting reasonable suspicion, we must consider not only those facts known independently by the officer executing the stop, but all of the facts known collectively by those involved in the investigation. In other words, we must examine the facts known not only to the second officer but those known to the first officer as well.
“In an era when criminal suspects are increasingly mobile and increasingly likely to flee across jurisdictional boundaries, this rule is a matter of common sense: it minimizes the volume of information concerning suspects that must be transmitted to other jurisdictions and enables police in one jurisdiction to act promptly in reliance on information from another jurisdiction.
“ ‘[Ejffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.’ ” United States v. Hensley, 469 U.S. 221, 231, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985).
Reasonable suspicion of criminal activity to justify an investigatory detention must be evaluated by examining the totality of the circumstances in light of common sense and ordinary human experience. Reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence. State v. Toothman, 267 Kan. 412, Syl. ¶ 4, 985 P.2d 701 (1999). Kansas courts have recognized that the location, time of day, previous reports of crime in the area, and furtive actions of suspects may well justify a stop. State v. Maybin, 27 Kan. App. 2d 189, 201, 2 P.3d 179, rev. denied, 269 Kan. 938 (2000). Although an officers reliance on a mere “hunch” is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, but both are dependent upon the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are to be considered in examining the totality of the circumstances. State v. Slater, 267 Kan. 694, 697, 986 P.2d 1038 (1999).
Poage argues that “buying matches cannot be considered sufficient justification to stop a car.” We agree with this proposition, but it does not encompass the true question before us. The officers understood that the matchbooks being purchased by Poage had red phosphorus strike plates that are preferred in one method of manufacturing methamphetamine. Poage did not merely “buy matches” but rather manifested a vigorous crusade to “stock up” on an unusual quantity of matchbooks. He was initially reported by a reliable source to have purchased large quantities of matchbooks at the same store on numerous occasions “for several months.” On the occasion of his stop and seizure, he was reported to have purchased not one box, but two, at the first store, and he attempted twice to purchase at least two more boxes at that store. Not satisfied with his purchase of at least 100 matchbooks, he then proceeded to another store in apparent furtherance of his crusade. Considering as well that he made these purchases and attempted purchases in a county other than his own (considering his county of vehicle registration), that he examined or considered for purchase a bottle of “Heet” fuel additive also known to be used in manufacturing methamphetamine, and that all these activities occurred between approximately 3 and 3:30 a.m., we conclude that the officers had reasonable suspicion that Poage may have been involved in criminal activity.
Poage argues that any conclusion of reasonable suspicion here could not be squared with our decisions in State v. Schneider, 32 Kan. App. 2d 258, 80 P.3d 1184 (2003), and State v. Knight, 33 Kan. App. 2d 325, 104 P.3d 403 (2004). We disagree and distinguish these cases.
In Schneider, we held that the mere purchase and possession of two packages of cold pills containing pseudoephedrine is not sufficient evidence to infer criminal intent. We noted in our opinion, however, that possession of two individually innocuous items could be deemed drug paraphernalia when considering that the two items were found in the same bag at the same time, citing State v. Daniels, 28 Kan. App. 2d 364, 370, 17 P.3d 373 (2000), rev denied 272 Kan. 1420 (2001). Schneider, 32 Kan. App. 2d at 264. Moreover, in Schneider there was no rehable report of a pattern of such activity by the defendant, there were no attempts at multiple purchases, at more tiran a single store, at locations beyond the purchaser s apparent home county, at odd hours of the night, or coupled with examination and consideration for purchase of a second material known to be used in manufacturing methamphetamine. Finally, it is not difficult to conceive innocent motivations for the purchase of two boxes of cold pills; it is far more difficult to con ceive innocent motivations for the crusade to purchase several hundred matchbooks in the middle of the night.
In Knight, a panel of our court held that “the mere purchase of two boxes of cold pills, a six-pack of bottled water, and table salt does not, standing alone, constitute the basis for reasonable suspicion.” 33 Kan. App. 2d 325, Syl. ¶ 4. Key to this holding is the phrase “standing alone.” Again, there was no reliable report of a pattern of such activity, there were no attempts at multiple purchases of suspicious ingredients, at more than a single store, at locations beyond the purchaser s apparent home county, at odd hours of the night, or coupled with examination and consideration for purchase of a second material known to be used in manufacturing methamphetamine.
In Knight as in Schneider, an examination of the totality of the circumstances did not meet the threshold of reasonable suspicion. Here, the totality of the circumstances, including the numerous attempts at more than one location to consummate these purchases, tire quantity of materials purchased or attempted to be purchased, the rehable information that this was a pattern of activity for this defendant extending for several months, the examination or consideration for purchase of a second material known to be used in manufacturing methamphetamine, the location of the purchases relative to the defendant’s apparent home, and the odd hours of purchase — in the middle of the night — cause us to resolve the question on these facts against Poage and in favor of the State.
We conclude that the officers had reasonable suspicion from the facts known to them collectively at tire time of the stop that Poage may have been engaged in criminal activity. The district court did not err in denying Poage’s motion to suppress.
Was there Sufficient Evidence to Support Poage’s ConvictionP
Poage was ultimately charged and convicted under K.S.A. 65-7006(b), which provides:
“It shall be unlawful for any person to market, sell, distribute, advertise, or label any drug product containing ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers if the person knows or reasonably should know that the purchaser will use the product to manufacture a controlled substance.”
On appeal, Poage argues he was the purchaser so he should not have been charged under this section and that the evidence was insufficient to sustain his 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.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
The evidence showed Poage bought iodine, antihistamine tablets, and other goods to give, distribute, or resell to “Steve” who was reported to be manufacturing methamphetamine with the goods provided by Poage. These statements came into evidence through Officer Alton’s testimony describing Poage’s own statements during the interview after the arrest. Poage readily admitted he knew “Steve” manufactured methamphetamine.
Viewing the evidence in the light most favorable to the State, a rational factfinder could find Poage guilty of violating K.S.A. 65-7006(b) beyond a reasonable doubt.
Affirmed. | [
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Caplinger, J.;
In this appeal of the district court’s decision finding Christina Winkel’s 1997 Chevrolet Monte Carlo was not subject to forfeiture under K.S.A. 60-4105(a)(2), the State argues the district court erred in finding the vehicle was not used in a manner which facilitated the conduct giving rise to forfeiture — i.e., the sale of marijuana. We hold the district court did not disregard undisputed evidence or exhibit bias, passion, or prejudice in finding the State failed to meet its burden of proof to show that the Monte Carlo was used or intended for use in any manner to facilitate the sale of marijuana where, as here, Winkel did not travel to the location in question for the purpose of conducting or finalizing a drug sale, but rather to pick up her son, who was in gymnastics class.
Background
On October 28,2003, Detective Jeff Ward with the Pratt County Sheriff s Department was contacted by a confidential informant. The informant told Detective Ward that Marco Montosa wanted to sell him marijuana so Montosa could obtain money to leave town. Detective Ward met with the informant, equipped him with an electronic transmitting device, and gave him $300 to make the purchase.
The informant left the meeting location in his vehicle and proceeded to the home of Christina Winkel, Montosa’s cousin, where the transaction was to occur. The informant had been to Winkefs home on several previous occasions to purchase marijuana from Montosa.
As the informant drove to Winkefs home, Detective Ward followed in his own vehicle a short distance behind the informant After turning onto Fifth Street, approximately 3 blocks from Winkefs residence, Detective Ward heard and recognized Winkefs voice over tire transmitter shouting at the informant to drive around the block and come back. From the position Ward took to conduct surveillance, he could see Winkefs green 1997 Chevrolet Monte Carlo parked in the 100 block of East Fifth, but he could not see if Winkel was inside of the vehicle.
Over the transmitter, Detective Ward then heard Winkel telling the informant that she had some marijuana at her house she needed to sell so Montosa could get out of town. Ward then heard Winkel tell the informant to follow Winkel back to her house. Ward observed both vehicles drive past him with Winkefs vehicle in the lead. Winkefs vehicle had dark, tinted windows and Ward could not see whether anyone else was in the vehicle.
Detective Ward followed the vehicles to Winkefs residence, where both vehicles were parked in the driveway. Over the transmitter, Ward heard Winkel and the informant discuss a quantity of IV2 ounces of marijuana. Some time later, the informant returned $150 of the $300 to Detective Ward along with an IV2 ounces of marijuana.
Winkel testified at the forfeiture hearing that she was standing outside of her vehicle in front of a building waiting for her son to finish gymnastics practice, when she saw the informant’s vehicle. Winkel testified she waived the informant down, he parked next to her car, and he told her he would meet her at her house. Winkel tiren went into the building to get her son, returned to her car, and drove home. Winkel testified the informant arrived at her home 15 to 20 minutes later, where the sale then occurred.
Winkel pled guilty to two counts of selling marijuana in violation of K.S.A. 65-4163(a)(3). Subsequently, the State filed an in rem petition seeking forfeiture of Winkefs 1997 Monte Carlo pursuant to K.S.A. 60-4104(b) and 60-4105(b)(2).
Following a bench trial, the district court found the vehicle was not used to facilitate the sale of the marijuana, and thus was not subject to forfeiture. The State appeals.
Standard of review
The parties disagree as to tire applicable standard of review. Winkel characterizes the trial court’s decision that the vehicle was not subject to forfeiture as a “negative finding.” The State argues the issue requires interpretation of K.S.A. 60-4105, and argues our review is de novo.
We agree with Winkel that the trial court specifically found the State failed to meet its burden of proof. “The correct appellate standard of review when a party has failed to sustain its burden of proof is the one applied to a negative finding of fact.” In re Marriage of Kuzanek, 279 Kan. 156, 159, 105 P.3d 1253 (2005). We will not disturb such a finding absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 541, 66 P.3d 873 (2003).
Application of K.S.A. 60-4105(b)(2)
Under the Kansas Standard Asset Seizure and Forfeiture Act (KSASF), “all property” is subject to forfeiture if it is “used or intended to be used in any manner to facilitate conduct giving rise to forfeiture.” K.S.A. 60-4105(b)(2). Acts giving rise to forfeiture include any violation of the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq. K.S.A. 60-4104(b). The Act defines “facilitate” as “any act or omission broadly construed to encompass any use or intended use of property which makes an act giving rise to forfeiture less difficult and laborious.” K.S.A. 60-4102(d).
In support of its argument that the requirements of the forfeiture statute were met here, the State initially notes that there have been no reported cases since the 1994 enactment of the KSASF that construe the term “facilitate.” However, the State points out that the term as used in the Kansas’ pre-1994 forfeiture law was interpreted broadly. See, e.g., State v. One 1984 Chevrolet Cor vette, 16 Kan. App. 2d 5, 10, 818 P.2d 800, rev. denied 249 Kan. 777 (1991). In One 1984 Chevrolet Corvette, the claimant drove his Corvette to a convenience store to receive partial payment of the proceeds of a previous drug sale from the co-perpetrator and to discuss further drug transactions. This court found that the use of the vehicle could be construed as facilitating the drug venture, and reversed and remanded the trial court’s judgment on the pleadings in favor of the owner of the vehicle. 16 Kan. App. 2d. at 10.
The State further suggests that we consider appellate court interpretations of Georgia’s forfeiture statute, which, like Kansas’ statute, allows forfeiture of property that is directly or indirectly “used or intended for use in any manner to facilitate a violation of [the Georgia Controlled Substances Act] or any proceeds derived or realized therefrom.” Ga. Code Ann. § 16-13-49(d)(2) (2005 Supp.). For instance, in Bettis v. State, 228 Ga. App. 120, 122, 491 S.E.2d 155 (1997), the Georgia Court of Appeals interpreted this statute to allow forfeiture where the vehicle’s owner drove his vehicle to a particular location for the purpose of engaging in prohibited drug activity.
Moreover, tire State points out that Florida and Massachusetts courts have interpreted their similar state forfeiture statutes in the same manner. See, e.g., Commonwealth v. One 1987 Mercury Cougar Automobile, 413 Mass. 534, 536, 600 N.E.2d 571 (1992) (seller drove himself and supplier to buyer’s house to conduct drug transaction); Duckham v. State, 478 So. 2d 347, 348 (Fla. 1985) (vehicle’s owner, acting as a middleman, drove to restaurant to negotiate drug transaction and then to his apartment where sale occurred).
Finally, the State relies on several federal court decisions that have similarly interpreted the federal forfeiture statute. The federal statute allows forfeiture of “[a]ll conveyances . . . which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment” of controlled substances. 21 U.S.C. § 881(a)(4) (2000). The federal cases cited by the State consistently interpret this statute to allow forfeiture of vehicles used to transport persons involved in drug trafficking to the sites of drug transactions or negotiations. See United States v. One 1984 Cadillac, 888 F.2d 1133, 1137 (6th Cir. 1989) (Cadillac used to transport purchaser to site of drug transaction); One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir. 1986) (jeep used by purchaser to drive to several meetings where the purchase and sale of narcotics discussed); United States v. 1966 Beechcraft Aircraft Model King Air, 777 F.2d 947, 948-49 (4th Cir. 1985) (seller flew private plane to city where drug transaction was to occur); United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir. 1983) (subject vehicle used by potential purchaser of drugs — a “pivotal figure in the transaction” — to drive several hundred miles to hotel where sale of cocaine negotiated); United States v. One 1977 Cadillac, Etc., 644 F.2d 500, 503 (5th Cir. 1981) (vehicle used to transport supplier, an “indispensable link” who approved the price and buyers, to site of drug transaction); United States v. 1974 Cadillac Eldorado Sedan, Etc., 548 F.2d 421, 422 (2d Cir. 1977) (agent of seller drove seller to buyer s house, where the parties discussed the sale of narcotics).
It is clear both federal and state courts have consistently interpreted language similar to that used in the KSASF to allow forfeiture of an automobile used to transport individuals to the site of the negotiation of a drug transaction or to the drug transaction itself, although no contraband or money was found in the vehicle. Further, as the State points out, the KSASF’s provisions are to “be applied and construed to effectuate its general purpose to make uniform law with respect to the subject of [the] act among the states enacting the act.” K.S.A. 60-4124.
This case is distinguishable, however, in that Winkel did not travel to the location where she spoke with the informant for the purpose of conducting or finalizing a drug sale. Rather, it is undisputed that Winkel drove to that location to pick up her son, who was in gymnastics class.
Significantly, when Winkel saw the informant and waived him down, tire informant was already driving to Winkel’s residence to complete a drug transaction with Winkel’s cousin, Montosa- — a transaction which previously had been arranged between Montosa and the informant.
Further, there is no dispute that Winkel was standing outside her vehicle when she waived the informant down, or that she remained outside her vehicle during their brief conversation. Moreover, Winkel testified she planned to return to her home immediately after she picked up her son from his gymnastics class, regardless of whether she had seen or talked to the informant.
We note that there was some dispute as to the nature of the conversation between Winkel and the informant. Winkel testified that the informant told Winkel that he would meet her at her home, while Detective Ward testified he heard Winkel tell the informant to meet Winkel at her home. This discrepancy, however, was not material to the issue of whether the vehicle was used to facilitate the sale of marijuana, as it was uncontroverted that the details of the drug transaction had already been negotiated, and the informant was driving to Winkefs home to complete that transaction when he had the conversation with Winkel outside Winkefs vehicle.
Thus, in reviewing the trial court’s decision, we find the following undisputed evidence significant: (1) Winkel drove to the location in question to pick up her son, who was in gymnastics class; (2) as Winkel waited outside of her vehicle for her son, she saw the informant driving by and waived at him to stop; (3) at that moment, the informant was on his way to Winkefs home to complete a drug transaction which he had already prearranged with Winkefs cousin; and (4) Winkel and the informant had a brief conversation, after which Winkel picked up her son and returned to her home, where she had planned to go before she saw the informant.
Under these circumstances, it cannot be said that Winkefs use of the Monte Carlo made the sale of the marijuana less difficult and laborious. See K.S.A. 60-4102(d). Therefore, we hold the district court did not disregard undisputed evidence or exhibit bias, passion, or prejudice in finding the State failed to meet its burden of proof to show that the Monte Carlo was used or intended for use in any manner to facilitate the sale of marijuana.
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