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Per Curiam:
On reconsideration the court is satisfied with the former decision in this case (The State v. Berger, 87 Kan. 479, 124 Pac. 400), and it is adhered to. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Fred H. Madison recovered a judgment against The Kansas City, Mexico & Orient Railway Company, which has been brought here for review. He was a railway mail clerk, and his run was from Wichita, Kan., to Altus, Okla., over appellant’s railway. While performing his duty upon a train of appellant it whs derailed and he sustained injuries to his knee, abdomen and kidneys. The derailment resulted from the defective condition of the track and the excessive speed of the train over such a track. The negligence of appellant is not denied, nor is liability for actual injuries contested, but it is contended that there was misconduct of the jury while considering the evidence, and that the award of the jury was so excessive as to indicate passion and prejudice. Some time after the case was submitted to the jury one of the jurors is said to have remarked that the railway company had offered, by way of compromise, to give Madison $5000 as damages. It appears that mention was made of an offer of compromise, but there is a dispute in the testimony as to whether any one stated as a positive fact that an offer had been made, or only that he had heard a rumor to that effect.
It has been held that to warrant a reversal because of the introduction of extraneous statements “it must be shown that such prejudicial statements so made were of positive facts within the knowledge, or asserted to be within the knowledge, of the juror making them, and such, as the jury might receive as evidence of the fact asserted, and not as the mere expression of opinion of the juror.” (Hulett v. Hancock, 66 Kan. 519, syl., 72 Pac. 224.)
(See, also, The State v. Woods, 49 Kan. 237, 30 Pac. 520; The State v. Burton, 65 Kan. 704, 70 Pac. 640; Karner v. Railroad Company, 82 Kan. 842, 109 Pac. 676.)
Whether the statement was made as a fact and within the personal knowledge of the juror making it was a question of fact for the trial court to determine, and upon the testimony of the jurors it expressly found that neither the juror, Steenrod, nor any other juror stated that an offer of compromise had been made in fact, but only that they had heard a rumor to that effect, and that the jurors treated it. merely as an idle rumor, and further, that none of them claimed to have any personal knowledge that an offer of compromise had been made. The question in dispute is concluded by this finding of the trial court. (Perry v. Bailey, 12 Kan. 539; The State v. Storm, 74 Kan. 859, 86 Pac. 145; Taylor v. Abbott, 85 Kan. 198, 115 Pac. 979.)
The fact that the matter of compromise was mentioned in the jury room may have been due to the fact that one of the counsel for appellant referred to it in his opening statement to the jury, saying, in substance, that the appellant and the appellee had been unable to agree upon the amount'he should receive for the injuries sustained.
In support of the claim that the award of $9000 to appellee was excessive and out of proportion to the injuries actually sustained, it is urged that the injuries did not render him unconscious at the time they were inflicted, that shortly afterward he was able to travel with the aid of a crutch and later with only a cane, that the postal authorities permitted him to draw full pay from the time of his injury until shortly before the trial, and that he was then given leave of absence with the privilege of reentering the postal service at the salary he formerly received, to wit, $1300 per annum, and that afterward he did resume work on the train and is receiving the same compensation as he did before the injury. It appears that at the time of the injury he was twenty-five years of age, having been in the postal service about five years, beginning on a salary of $800, and that he was advanced from grade to grade until he received a salary of $1300, that his general health was then good, that promotions were open to him in which he would receive much larger com pensation, and his eligibility extended to and included that of general superintendent of the service. The testimony was that the injury loosened a piece of the cartilage which serves as a pad between the two ends of the knee j oint which operated to lock the j oint, and that to unlock it it became necessary to open the joint and remove a part of the cartilage. There is evidence that the injury permanently mars the function of the joint, and notwithstanding the operation he will never be able to straighten the leg and will necessarily be a cripple for life. The testimony tended to show, too, that his kidneys were seriously impaired by the inj ury. He did return to the postal service and upon a later motion for a new trial, on the ground of newly discovered evidence, testimony was offered that he had resumed work, had walked without a crutch and with little, if any, limp. This was met, however, by testimony that while he had recently undertaken to perform his work as mail clerk, it was only done with great pain and difficulty and by the aid of a co-employee who did the work that required him to be upon his feet, and that he had, in fact, given up hope of performing the duties of that place and had applied for lighter work at less compensation. Some of the physicians who reexamined appellee about four months after the trial, and whose testimony was given upon the last motion for a new trial, stated that the appellee had grown worse, that his leg had shrunk in size and would grow worse as he grew older. They testified, too, that the reexamination showed the injury to the kidneys to be permanent in character. There was testimony, it is true, that the injuries to the appellee were not serious nor permanent, but there is abundant testimony which seems to have satisfied the trial court that the injuries sustained are serious and permanent, and although a liberal award was made we can not say on the testimony accepted by the trial court that it was the result of passion and prejudice nor hold that the verdict was so excessive as to require a reversal.
Error is assigned on the refusal of the court to require the jury to give more definite answers to special questions. To question No. 5, “What sum do you allow plaintiff on account of the injuries to his knee?” the jury answered, “$7,000,” and finding No. 6 was that $2000 was allowed for injuries to his abdomen and kidneys. As will be observed, these two items constituted the full amount of damages awarded by the jury. In response to other questions the jury found that nothing was allowed for mental pain and suffering, nothing for loss of time or earnings up to the time of trial, nor for loss of time or earnings in the future. By question No. 13 the jury were asked if anything was allowed on account of permanent injuries, and the answer was, “Included in Answers Nos. 5 and 6.” And question No. 14 was, “If you allow plaintiff anything on account of permanent injuries, please state for what injuries and in what amounts,” and the-answer was, “As stated in Answers Nos. 5 and 6.” It is insisted that the jury should have been required to have answered questions Nos. 13 and 14 definitely and to have subdivided the elements entering into' the award. These findings, in effect, declared that the injuries .sustained were permanent in character, and that for permanent injuries to the knee $7000 was allowed and '$2000 for permanent injuries to his abdomen and kidneys. Having eliminated, by other findings, mental pain and suffering, loss of time and earnings before the trial as well as in the future, there is little reason for a more detailed finding of the elements which constitute the permanent injuries to the knee and to the abdomen and kidneys. Something might very well have been allowed for loss of earnings in the future, but the jury probably concluded that, having awarded damages for permanent injuries, the loss of earnings in the future was covered by- that award.' Under the law regulating special findings a party is not warranted in asking the itemizing of the various things that enter into each element of the damages awarded. As has been decided:
“A party is entitled to special findings as to ultimate facts, but has no right to ask for mere evidentiary matters nor to require the jury to file a bill of particulars on each fact.” (Matheney v. El Dorado, 82 Kan. 720, 725, 109 Pac. 166; Railway Co. v. Bricker, 65 Kan. 321, 96 Pac. 328; Williams v. Withington, post, p. 809, 129 Pac. 1148; Barker v. Railway Co., ante, p. 767, 129 Pac. 1151.)
What is termed the newly discovered evidence did not warrant the court in granting a new trial, nor do we find any prejudicial error in the record.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this case the question involved is whether there was a good consideration' for a promissory note by which the appellants, M. W. and Victoria Vann, promised to pay $800 to the appellee, J. W. Bridges. George Vann, sr., who claimed to own the improvements on a tract of land in Indian Territory, was indebted to appellee in a sum in excess of $300, which was evidenced by promissory notes held by appellee. The appellants desired to purchase the improvements on the tract mentioned. No one then had a title to or the power to convey any specific part of the land, but a citizen of the Cherokee Nation who owned' the improvements on a tract' was given a prior right to filé oh the same and have'it allotted to him. A member of the Cherokee Nation with a right to settle upon and improve the land made a writing transferring the improvements on. this tract to George Vann, sr. He sold and transferred the improvements to the appellants, who were Cherokees, for $400, payment to be made by the execution of a promissory note to George Vann, sr., for $100 and the execution of another note for $300 directly to appellee, who accepted that note in lieu of notes of that amount held by him against George Vann, sr. The prior notes held byappellee were delivered and surrendered to George Vann, sr., and were destroyed by him. The appellee, was not a party to the sale and transfer of the improvements and never claimed any title to the land or the improvements on it. He simply accepted the $300' note executed by appellants in discharge of notes of the same amount which was owed to him by George Vann, sr.
It is contended that there was no consideration for the note given to him by appellants for the reason that appellants never gained possession of the improvements, and that appellee as well as George Vann, sr., had agreed to put them in possession. Upon the question whether appellee agreed to put appellants in possession the testimony is conflicting and their claim is negatived by the finding that appellee was not a party to that contract. When the transfer was made appellant Victoria Vann could have selected the land as her surplus allotment and have filed upon it, and in case anyone else had made a filing thereon she could have instituted a contest to determine who had the better right to the land and improvements. Although .appellants, nor either of them, ever obtained possession of the improvements, Victoria Vann, who contemplated filing qn the land, never made any attempt to file on it nor to contest the filing of any other person. There is a finding of the court, based on sufficient evidence, that appellants were well informed in respect to the improvements and the entire situation and, further, that no misrepresentations were made and no fraud practiced by any of the parties to induce appellants to enter into the contract.
The transfer of the land, or the right to transfer it, is not involved in the case, but it is insisted that the promise of appellants to pay $300 to appellee was without consideration for the reason that appellants had not received any benefit for their promise. It is not essential to the validity of the note that they were .benefited by. the transaction with George Vann, sr., nor that they did receive what he contracted to give them. The consideration for the note is not the benefit received by appellants, but it is rather the surrender and cancellation of the original debt held by appellee against George Vann, sr. It has been held that:
“It is no defense to an action on a promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promisor.” (Wright v. McKitrick, 2 Kan. App. 508, syl. ¶ 3, 43 Pac. 977.)
It is enough if the obligee foregoes some right or privilege or suffers some detriment, and the release and extinguishment of the original obligation of George Vann, sr., for that of appellants meets that requirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligation for the note executed by appellants. This, of itself, is sufficient consideration for the new note. (Underwood v. Lovelace, 61 Ala. 155; Bacon v. Daniels, 37 Ohio St. 279; Crowder et al. v. Reed, 80 Ind. 1; Mulcrone v. Amer. Lumber Co., 55 Mich. 622, 22 N. W. 67; 7 Cyc. 703; 29 Cyc. 1131; 21 A. & E. Encycl. of L. 671.)
It is contended that testimony was received upon the theory that there had been a novation, whereas the term was not even mentioned in the pleadings. It is immaterial that the transaction was not expressly designated in the pleadings as a novation. It was tried upon the theory that one debtor of appellee was substituted for another anh that a prior obligation was released and canceled by the execution and acceptance of the note in suit.
There is complaint of the admission of secondary evidence of the law in the Indian Territory as it stood in 1902, as to whether a white man not connected with the Cherokee Nation could own Cherokee lands or the improvements on such lands. The court could take notice of the acts of congress so far as they applied, and a qualified witness was competent to testify as to the local law of the Territory and its construction. The witness was undoubtedly qualified and it is not denied that he correctly stated the law, so that the objection to the reception of secondary evidence is not material. Besides,. it has been held that a provision making printed copies of foreign state or territorial statutes presumptive evidence of the law in such country, state or territory can not be regarded as the only means of making proof of the law and its construction. (Bank v. Shore, 87 Kan. 140, 123 Pac. 880.) However the competency of the secondary evidence may be viewed, it is clear that being in fact true no prejudicial error was committed by its admission. (Clements v. Gas Co., 87 Kan. 418, 124 Pac. 423; Funk v. Insurance Co., 87 Kan. 568, 125 Pac. 35.)
There are other criticisms of the rulings of the court but none of them is material. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Smith and Swan, and Harris entered into an arrangement to deal in oil-and-gas leases and properties, and after having operated for some time sold out their accumulations for $108,000 cash and a deferred payment of $81,000, the latter being compromised for $45,000. Afterwards Smith sued Harris to recover on a note of $3000, and Swan sued to recover on a note of $2000. Harris answered, alleging that Smith and Swan owed him about $17,000 on account of their former mutual dealings, that he was entitled to a half interest, that he had assigned a portion of his claim to his wife, Minnie Harris, and asking that the eases be tried together. Minnie Harris was made a party and the cases were consolidated, the reply asserting that Harris’ interest was one-third instead of one-half.' Smith offered to confess judgment for $2415.52 and afterwards Smith and Swan offered to confess judgment for $4000. A referee was appointed, who, after a trial of great length, decided that Harris owned a third interest, and that Smith and Swan should pay the costs. In an additional report the ques-. tion whether the costs should be thus decreed or divided equally among the three on the theory that the action was one for an equitable accounting was suggested. The original report was approved by the court and judgment rendered accordingly, from which the defendants, Harris and wife, appeal. A fourth party named Compton was taken into the .transaction and afterwards his interest was purchased by Smith, and one of the contentions of Harris was that the purchase inured to his individual benefit; the referee, however, found that the Compton interest was purchased for the mutual benefit of Smith, Harris and Swan. The chief controversy was over the question whether Harris had a half or third interest, but the referee, after receiving a great mass of testimony on the question, decided that the interest was one-third. The plaintiff’s main contentions are that Harris should be decreed to own one-half, that when the sale of the property was made certain parcels were the' individual property of Harris and not of the three jointly, and that a bonus of $1652.40 paid to a certain window-glass company should be disallowed as a charge for which Harris was not in any degree responsible, and that a larger sum should .be allowed as interest.
Counsel asserts that there is no finding and no evidence supporting the one-third interest theory, and that the third conclusion of law, that Harris should be credited personally with one-third of the net profits as shown on the Smith, Swan and Harris account, is erroneous and without foundation. The eighth finding of fact was in substance that in May or June, 1904, Harris agreed with Compton that any leases thereafter taken by them should be turned into the Smith, Swan and Harris gas deal, Compton to have one-i'ourth interest in such leases, Harris one-fourth and Smith and Swan the other half. The ninth finding is in. substance that shortly thereafter Smith was informed of this arrangement and no objections were made, and from thence leases were taken in the names of the different parties but owned by the four jointly until the sale of the Compton interest. The fiftieth finding is that the Compton interest was purchased by Smith for the benefit of himself, Swan and Harris. Finding No. 277 is that the Smith, Swan and Harris account showed on May 11, 1908, certain net proceeds and profits and that the third interest of C. C. Harris in such profits, less the amounts paid, left a balance due him of a certain named amount. It is true that these findings were none too definite and specific as to the one-third interest matter, but one of the numerous abstracts shows that Harris testified that he never made a claim of a one-half interest until December, 1907, and Smith testified that Harris never demanded a half interest until this action was begun, and in fact never máde a claim for more than a third, while Swan testified that Harris agreed to a third and never before the beginning of this action claimed a half. Smith also testified that he had many conversations with Harris during 1904 and 1905, and that the latter repeatedly mentioned his interest and on August 18,1904, he had a fourth interest, that such was their agreement, that he had several conversations with him after Compton sold out, one in particular when Harris “said that he would take one-third with us—that was our interest in the partnership funds. Harris did not say anything only he had a third.” It is said that the first 732 pages of the transcript, about one-third, are devoted to the question concerning whether the interest of Harris was one-half or one-third. And in view of the findings and testimony already indicated we are not able to say that the report which was approved by the trial court should in this respect be set aside.
It is insisted that the individual leases owned by Harris at the time of the sale did not become partnership property and that the proceeds arising from them should go to Harris individually; that there is neither finding nor evidence to the contrary. Supplemental finding No. 5 is to the effect that when the leases and pipe lines were sold on March 15, 1905, the individual leases theretofore mentioned in the report were turned in with the other leases and sold under the contract, being the interest in the Johnson, Myers, Dow, Red-dins, Frost and Read leases; that it was agreed between Smith, Harris and Swan that they should be sold together with the leases owned by them jointly, and the proceeds divided and owned in the same proportion and treated as though received for leases owned by them jointly. Smith testified that they enumerated the leases that were turned in, that were already owned outside or taken outside of the partnership arrangement but turned in by mutual consent an,d agreement, that Compton and Harris said they would turn theirs in and each have one quarter. Harris testified that these individual leases, by common consent and general understanding, were to be a part of the gas property when built up. All that can be clearly ascertained from the bits pf evidence found in the various abstracts is that this, like the question of the interest owned by Harris, was disputed; that there was conflicting evidence; that the referee took the view that the individual leases' went into the partnership interest; and that the trial court adopted the same view.
A charge of $1652.40 for bonus paid to a certain window-glass company was deemed by the referee to be a partnership charge, for one-third of which Harris should be held responsible. Finding No. 284 is to the effect that it was agreed between Smith, Harris and Swan that the claim for bonus made by the window-glass company should be paid and the matter settled. Finding No. 285 is that in accordance with this agreement Smith paid the amount. Swan testified that he' discussed the bonus proposition with Harris when it was asked for and that Smith discussed it with both Harris and Swan. He further testified:
“After fully discussing it, we all agreed that it would be the proper arrangement to make to agree to give the bonus of $4,000.00 worth of gas. There was a hitch afterwards as to how it should be paid. I remember the time when this $1,652.41 was paid. I brought the parties together. I went down to The Western Window Glass Company’s plant and had the officers accompany me up to our office at the time the payment was made. ... It was agreed that it should be paid and Harris agreed to it.”
Whatever other evidence may have been introduced the foregoing quotation furnishes support for the finding.
The referee found that no money was paid Harris-after May 1, 1908; that on or about .July 8, 1908, Smith paid $5000 on the notes of Harris endorsed by Smith and Swan, and also $119 accrued interest on such notes; that on May 1, 1908, the net balance due Harris was $10,954.38; that the interest on.this sum (to July 8) was $124.12, making a total of $11,078.50; that deducting the $5000 paid upon the Harris notes the balance left due was $6078.50 on July 8, 1908. Harris insists that this interest item of $124.12 should be $293.92. We do not understand how the interest on 810,954.38 from May 1 to July 8 could be computed at $293.92. The referee’s computation is substantially correct. Smith and Swan complain that no credit was given for the $119 interest paid on the two notes, because from the amount accrued after May 1, the refereé deducted only the $5000, which was the principal of the notes without the interest. It seems that these notes were dated in October and November, 1907, and Smith and Swan assume that Harris then received the money thereon, and hence that the referee allowed Harris interest upon this amount which he had already received. It is sufficient to say that no material error as against Harris appears as to this item.
The plaintiffs also appeal and demand credit for 8650 paid for the Emfield lease, $119 interest paid by Smith on the $5000 notes at the bank, $62.50 rental on the Myers lease, one-third of $1630.40 expended for drilling a dry well on the Read lease, one-third of $206.70 for gas furnished by the firm, $400 for a rig left- on the Dow lease, $100 paid for the Riley lease, and complain of interest allowed Harris on his judgment prior to the filing of the stipulation for- an accounting and of failure of the court to tax each of the members of the former firm with one-third of the costs. Another item of $100 which counsel frankly advises the court would be worth $100 to figure out need not bq further considered.
As to the first item'there was a square conflict in the testimony and therefore we can afford the plaintiffs no relief. The item of $119 interest paid on the $5000 notes at the bank appears to have been overlooked by the referee and it should be allowed. As to the credit given Harris on account of the Myers lease, we are unable to say from the record that this was improperly allowed. The claim for gas used by the firm is abandoned by the plaintiffs. The claim of $400 for a rig left on the Dow lease is not sufficiently supported to warrant its allowance. The same is true of the claim for $100 on account of the Riley lease. As to the proposition that Harris should not be allowed interest until the stipulation for an accounting was signed, it is sufficient to say that the referee found the amount due Harris and the date thereof and no reason is offered why it should not bear interest from the time it becámé due. It is suggested that Harris was in fact indebted to Smith and Swan, but if so. it was on account of certain Oklahoma matters which were by the stipulation not to be gone into in this litigation.
The plaintiffs insist that $1630.40, the cost of a dry well upon the ’-Read farm, should be credited to them. This farm was one of the individual properties' that Smith turned into the partnership enterprise. Two wells had been drilled thereon, one a producer and the other a dry well, costing the sum named. It appears that $231 worth of casing was drawn from this dry will, leaving the net cost $1399.40. The referee found that this well was dry and concluded that' its expense should fall' on Smith, who contends that it was a part of the general expense of the partnership in an attempt to make'the leases productive and was of actual value as showing the limits of the gas territory on the lease in question. It appears that in June, 1904, the lease was made to Smith and T. J. Booth, each owning a half interest; that prior to October 5, the dry well was drilled and the casing removed, anon October 5 Booth paid Smith and Swan one-third of the expense of the drilling and casing; that about that time Smith purchased Booth’s interest; that the lease continued to be the property of Smith and Swan until March 15, 1905; that the Harris leases on which there were no improvements were equal to the leases of Smith and Swan without the improvements; that the well in question was not an improvement; and that Smith and Swan and Harris received no benefit from its drilling. c
Deducting one-third of the cost, $543.50, and the value of the casing, $231—$774.50—the expense of the well to the enterprise was $855.90. There seems to be no claim that this expense' was not incurred in good faith, and the plaintiffs should have credit therefor.
The plaintiffs contend that the voluminous record and great costs of this litigation resulted principally from the refusal of Harris to concede that he was entitled to only a third interest, and that according to the statement of the referee about one-third of the testimony was directed to this point; that had he conceded what was afterwards found to be the fact concerning his interest this litigation could have been avoided, and that he should be required to bear the expense thus needlessly incurred. There is nothing in the record to show that the claim of Harris as to a half interest was without support or that a concession ón his part that he was a third owner would have ¿voided the litigation. After Harris filed his cross-petition in the actions on the notes the . parties stipulated to try the entire matter as an accounting, and in view of the conflicting claims and the amount of testimony introduced we think the suggestion of the referee that the costs be borne equally by Smith, Swan and Harris should have been followed. (Civ. Code, § 615; McGillvray v. Moser, 43 Kan. 219, 23 Pac. 96.)
The judgment is therefore modified in accordance with these views and in the respects heretofore indicated, the costs in this court to be similarly divided. | [
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The opinion of the court was delivered by
Smith, J.:
On April 19, 1910, the defendant,, through his attorneys, delivered to the county surveyor of Harvey county the following notice:
“To Q. P. Vaughn, County Surveyor of Harvey County, Kansas:
“I, A. L. Egy, owner of the North-west Quarter of Section No. Thirty (30), Township No. Twenty-two. (22) South, Range No. One (1) East, in Highland Township, hereby notify and request you to make an official survey, as is by law in such cases made and provided, of Section No. Thirty (30), Township No. Twenty-two • (22) South, Range No. One (1) East of the Sixth Principal Meridian in Harvey County, Kansas, and establish the east boundary line to the Northwest Quarter of said Section, the same being a boundary line between the North-west Quarter and the North-east Quarter of said Section.
“Dated this 19th day of April, A. D. 1910.
A. L. Egy.
“By Branine & Hart,
“His Agents and Attorneys.”
On May 21, 1910, the county surveyor personally served upon each of the landowners interested in the survey the following notice:
“To (the name of each respective landowner was inserted herein in the notices served) :
“You are hereby notified that I, Q. P. Vaughn, County Surveyor of Harvey County, Kansas, will on the 1st day of June, A. D. 1910, begin an official survey of Section Thirty (30), Highland Township, Township No. Twenty-two (22) South, Range No. One (1) East of the Sixth Principal Meridian, Harvey County, Kansas, and that I will establish the east boundary line of the North-west Quarter of Section No. Thirty (30), Township No. Twenty-two (22) South, Range One (1) East of the Sixth Principal Meridian, such line being boundary line between the North-west Quarter and the North-east Quarter of said Section.
“Q. P. Vaughn,
“County Surveyor of Harvey County, Kansas.”
The county surveyor proceeded, in accordance with the notice, to make a survey of section 30 on June 1, 1910, and filed his report June 10, 1910.
Roadenbaugh appealed to the district court of Harvey county. When the case was called for trial Egy and Roadenbaugh appeared, and Roadenbaugh demanded a jury trial, which was refused by the court. Roadenbaugh thereupon contended that the burden to sustain the report was upon Egy, and Egy contended that it was upon Roadenbaugh to impeach the report. The latter contention was sustained by the court. Thereupon Roadenbaugh moved the court for an order-rejecting and setting aside the report of the survey, which motion the court overruled, and Roadenbaugh offered his evidence. Egy filed a demurrer thereto, which was overruled. The case was submitted to the court, no further evidence being offered. The court found that the northeast corner stone of the section had been placed by the county surveyor three feet too far east and the stone marking the quarter' corner between the northwest quarter and the northeast quarter had been moved thirty inches too far east, and ordered the surveyor to replace the stones as indicated and file his report, and the case was continued.
Thereafter the orders of the court were complied with and the report of the surveyor was approved and confirmed. Roadenbaugh having died in the meantime, his administrators were substituted and appealed the case to this court.
On the trial Roadenbaugh offered in evidence, the affidavits of four men named Beery, Sharp, Hengst, and Livingstone, to the effect that in the year 1871 they, respectively, homesteaded the four eighty-acre tracts of land which constitute the north half of section 30, and that each one proved up and consummated his title to the land, and has since sold the same; that while they all held the lands they had the same surveyed by a surveyor named Brown; that they accepted the lines as established by him and agreed that the same should be the true and correct division and boundary lines, and that pursuant to this arrangement they set out hedge fences on the boundary lines between their respective tracts and agreed that such hedgerows should constitute the boundary lines between such tracts. Objection being made to the competency of the evidence, the objection was sustained.
The only line determined in this case is the line running from the quarter corner on the north line to the center corner in the middle of the section.
If the first settlers of the two tracts of land in question made an agreement as to the boundary line between the tracts, and marked the same by a hedgerow, and the lands have ever since been farmed and possessed in accordance with such boundary, these facts may have changed the ownership of a strip of land along the boundary between the two quarter sections, but such alleged agreement and use can not change the quarter-section line between the two quarter sections of land. In the case of In re Martin’s Appeal, 86 Kan. 336, 120 Pac. 545, it was said:
“It is the duty of a county surveyor, notified under the statute (Gen. Stat. 1909, § 2272) to survey land and establish its corners and boundaries, to proceed according to the statutory rules.” (Syl. ¶ 1.)
The statutory rules include the taking of evidence of witnesses. (Gen. Stat. 1909, § 2274.) Under section 2272, supra, a surveyor might be called upon to survey a number of contiguous tracts of land of irregular shapes owned or occupied by different persons and no one tract of which came to a government corner or was bounded by a-section line or section subdivision line. In any such or a similar case it would be utterly futile for the surveyor to attempt to survey without consulting deeds and taking such other evidence as should be produced to determine the location and boundary of the several tracts. The same class of evidence would, of course, be pertinent on trial in the district court. (Gen. Stat. 1909, §2274; Reinert v. Brunt, 42 Kan. 43, 21 Pac. 807.)
Much of the discussion in the briefs seems irrelevant to the real question in issue. It will be observed that the call for the survey in this case is not strictly under section 2272, supra, in that the surveyor is not required to establish the corners or boundaries of any tract or tracts of land owned by either of the parties to this action, but was to establish the boundary line between the northwest quarter and the northeast quarter of section 30.
Also, in his notice to the landowners interested, the surveyor stated, “I will establish the east boundary line of the North-west Quarter of Section No. Thirty (30), . . . such line being boundary line between the North-west Quarter and the North-east Quarter of said Section,” and not that he will establish the boundary line between the farms of A. L. Egy and J. Roadenbaugh.
The contention of the plaintiffs, as we understand it, is that the true boundary line between their land and the land of the defendant is not necessarily the boundary line between the northwest quarter and the northeast quarter of the section, but is a line agreed upon in 1871 by the original homesteaders of the two eighty-acre tracts of land, which line was identified by the planting of a hedge thereon, and has ever since been observed.
It is true that some expressions in the plaintiffs’ brief indicate that it is their contention that the hedgerow line is the true line between the two quarter sections, but it is evidently their contention that, whether this be true or not, the hedgerow is the true division line between the respective farms by virtue of .the alleged agreement in 1871 and subsequent occupancy. It does not appear, nor is it seriously contended, that the surveyor or the court erred in determining the true division line between the northwést quarter and the northeast quarter of section 30. ' As was said in Swarz v. Ramala, 63 Kan. 633, 637, 66 Pac. 649, and quoted with approval in Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, “Adverse possession may change the title to real property, but it can not change the location of a quarter-section line.” (p. 664.)
In this case the surveyor was called upon simply to locate the boundary line between two quarter sections of land, and his report shows that no evidence, other than such as was obtained from established section and quarter-section corners found in the locality, was neces-. sary to locate such line, and it is not even contended that he erred in the location thereof otherwise than in the mistake corrected by the court, or that the court erred in correcting and approving the survey, except that it is contended that the hedge line referred to, and not necessarily the quarter-section line, constituted the boundary between the farms of the litigants. This question was not determined by the survey or the j udgment of the court but may be determined in a suitable action for that purpose.
The questions presented in the specifications of error have not been discussed in formal order but are substantially answered, except the refusal of a jury trial. While the decision in a survey case may .affect the title to a tract of land, it does not adjudicate the title. It is not a case in which a jury trial is a guaranteed right but is a statutory proceeding. (Swarz v. Ramala, supra.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Authorities are cited to the effect that the written application and policy are to be construed together and that the policy must be held to cover the interest of the .insured in the brick wall. We do not understand that the trial court ruled differently. The statute so provides. (Gen. Stat. 1909, §4226; Smith v. Insurance Co., 82 Kan. 697, 702, 109 Pac. 390.) It follows by no means, however, that appellant is correct in the contention that the value of the appellee’s interest in the brick wall should have been deducted' from the amount for which the appellee could recover for the loss to the other property. The contention would be correct if the policy had by its terms placed a separate valuation on the different properties, or in other words if there had been in the policy a distribution of the insurance so as to provide for $250 on the interest of the insured in the brick wall and $750 on the frame structure. But there was no distribution of the amount of insurance nor a separate valuation of the different properties. (19 Cyc. 838.) The situation is the same as though the policy had provided for $1000 insurance on two buildings, and only one had been damaged by the fire. In an action upon such a policy the liability of the insurer would be the actual loss to the one building but could not exceed $1000.
The valued-policy law can have no room for operation for the reason that all the property included within the $1000 valuation was not wholly destroyed, the brick wall being practically uninjured. While the court finds that the frame building was totally destroyed, the amount of the recovery is not predicated upon the conclusive effect of this fact under the valued-policy law. (Gen. Stat. 1909, § 4260.) On the contrary the court heard the evidence of both parties as to the actual loss sustained. By reason of the action of the city authorities in refusing permission to repair after the appellant had elected to repair, the amount of the loss could only be ascertained by determining what it would cost to repair the structure or restore it to its original condition. The policy in express terms provides that such shall be the measure of liability.
There appears to be no difference in the contentions of the parties respecting the law, which controls in determining whether or not there has been a total loss of a building by fire. The appellant cites and relies upon the very cases which the trial court must have had in mind in arriving at the conclusion that the building in controversy was wholly destroyed. (Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879, and cases cited in the opinion.) This court there declared the rule to be that:
“Although some portion of the building may remain after the fire, yet if such portion can not be reasonably used to advantage in the reconstruction of the building or will not, for some* purpose, bring more money than sufficient to remove the ruins, such building is, in contemplation of law, a ‘total loss’ or ‘wholly destroyed.’ ” (p. 395.)
Another case cited by appellant which recognizes the same rule is Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068. There the test is said to depend upon the question “whether a reasonably prudent owner, uninsured, desiring such a structure as that in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as” a basis. See also note to the same case in 59 Am. St. Rep. 811, where the author uses the following language: “Undoubtedly, no matter how great a portion of the building may remain unconsumed, yet if it is so injured that it must be torn down or that what remains can not be utilized in reconstructing the building without incurring greater expense than if it were not so utilized, the property must be regarded as having been ‘wholly destroyed,’ ” citing O’Keefe v. Ins. Co., 140 Mo. 558, 41. S. W. 922, German Ins. Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, Harriman and another v. The Queen Ins. Co. of London and Liverpool, 49 Wis. 71, 5 N. W. 12, and Seyk and others v. The Millers’ Nat. Ins. Co., 74 Wis. 67, 41 N. W. 443.
That the trial court proceeded upon the correct theory appears from the finding that the value of the salvage would not exceed the cost of tearing it down and removing the debris.
The court, upon conflicting evidence, found the amount of the loss, and the claim that the finding is contrary to the weight of the evidence can not be considered. The witnesses varied in their estimates as to the amount it would Cost to repair or rebuild. The mere fact that the court saw fit to adopt the highest estimate of the witnesses for appellee is no ground for a claim of error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
By the prohibitory liquor law of 1881, enacted pursuant to the constitutional amendment of the preceding year, and in various amendments and supplemental acts, the manufacture, sale or barter of spirituous, malt, vinous, fermented or other intoxicating liquor was prohibited, provided that sales might be made for medical, scientific and mechanical purposes, as provided in the act. At the legislative session of 1909, amendments were made eliminating the exceptions, making the prohibition absolute. (Gen. Stat. 1909, §§ 4361, 4362.) At the next legislative session an amendment was adopted providing that sales of alcohol in specified quantities might be made by certain wholesale druggists under restrictions therein stated. (Laws 1911, ch. 178.) The prohibitory law' provides that any person who shall directly or indirectly sell any of the liquors referred to shall be punished as in the act specified. (Gen. Stat. 1909, § 4362.) It further provides that:
“Any person who shall take or receive any order for intoxicating liquor from any person in this state, or any person who shall, directly or indirectly, contract for the sale of intoxicating liquor with any person in this state, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquor.” (Gen. Stat. 1909, *§ 4365.)
It is also declared that
“The giving away of intoxicating liquor, or any shifts or device to evade the provisions of this act, shall be deemed an unlawful selling within the provisions of this act.” (Gen. Stat. 1909, § 4372.).
Provisions are also made for the punishment of offenders who maintain places or are guilty of practices in violation of the law which are denounced as common nuisances, and for abating and enjoining such nuisances. (Gen. Stat. 1909, §§ 4387, 4388.)
It was held in The State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040, that acts done in violation of law or which are against good morals are public nuisances, and that the sale and delivery of intoxicating liquors on the streets and alleys of a city publicly, repeatedly and persistently, is a common nuisance, which may be enjoined in a court of equity under section 265 of the civil code by an action in the name of the state.
The question to be determined here is whether the facts proven are sufficient to bring the case within, these principles. The defendant contends that his business is protected as interstate commerce under the commerce clause of the federal constitution. It appears that he was keeping for sale and selling beer for years in Leavenworth in violation of law until he became alarmed by the appearance of receivers in prosecutions against brewers. He says this “scared everybody up,” and, as he says, “everybody” moved across the river, and admits that there was not much change in the way of doing business. The principal changes appear to be the storage of his stock just across the river in Missouri, where eight or ten liquor warehouses were established convenient to Kansas, but where there was no station agent or post office. At the time when he thus moved across he leased another place in Leavenworth, equipped it with telephones, quartered his teams and wagons there, and continued to use them in making deliveries as he had before done. When orders were received at this place in Leavenworth by mail he took or sent them into Missouri before even opening them. Applicants for beer by telephone at the number carried in his advertisement were told to call up across the river. Although his drivers did not take orders to his knowledge, they made collections when he gave them bills for, that purpose. Empties were handled directly from the Leavenworth place of business to the Leavenworth depot. Shipments to points in Kansas outside the city were made at the same depot. Kegs and other receptacles were labeled by the. defendant or by his teamsters to fill orders in Leavenworth, and hauled daily to customers in the -city. Why was this warehouse established just across the river, which required over a mile of extra hauling and the payment of tolls at the bridge? Why were letters, received by the defendant in person at his place of business in .Leavenworth, remailed to be again delivered to himself at Stillings, a mile and a half away?' Why did he refrain from opening orders for beer until he was across the bridge? In short, why did he resort to these new methods? It is not unjust to the defendant to say that his own testimony furnishes the answer. “It was on account of the law.” Plainly stated, these things appear to have been done to evade the laws of this state—to carry on business of the character theretofore done in violation of law in such a manner as to avoid its penalties.
We do not overlook finding No. 15, quoted above, that these things were not intended as a shift and that •none of these circumstances tended to circumvent the law, but this finding is a conclusion or complex fact deduced from the underlying, basic facts found and stated in detail and which do not support the conclusion. Neither is it supported by the testimony of the defendant himself. The basic facts must prevail over such conclusion. (C. B. U. P. Rld. Co. v. Henigh, Adm’r., 23 Kan. 347, 359, 33 Am. Rep. 167; Penrose v. Cooper, ante, p. 210, 128 Pac. 362; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874.)
The finding that the telephone numbers 313 were not.' changed through oversight relates to the advertisement. The telephone service by that number was installed at 117 Delaware street, when the move was made across the river, as shown by other findings and by Mr. Kirmeyer’s testimony. Such practices as the storage of liquor across the state boundary, the remailing of letters received in Kansas, to himself in Missouri, and the repetition of telephone orders across the line, can not give the high sanction of the federal constitution to an otherwise unlawful traffic.
An interpretation of the law which gives effect to the mere form without regarding the substance only serves to bring its administration into reproach. The broad question here is whether the defendant was really engaged in commerce between the states of Missouri and Kansas, or was he only seeking by tricks and devices to evade the laws of his state—doing by indirection that, which could not lawfully be done by ordinary and direct .methods. Real interstate business needs no such methods to establish its character, and a wholesome-regard for the administration of justice will not tolerate such evasions.
Numerous cases in the federal supreme court are cited by the defendant wherein persons engaged in good faith in interstate commerce have been protected under the commerce clause of the constitution. There-is no disposition in this court to hold contrary to these decisions. The opinions of that court, however, do not preclude a fair inquiry into methods and practices in order to determine whether transactions under investigation constitute legitimate interstate commerce or are colorable merely and intended to evade and defeat the just operation of the constitution and law of the state.
In Austin v. Tennessee, 179 U. S. 343, the question of good faith was considered. The court said:
“Without undertaking to determine what is the proper size of an original package in each case, evidently the doctrine has no application where the manufacturer puts up the package, with the express intent of evading the laws of another state, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee. This court has repeatedly held that, so far from lending its authority to frauds upon the sanitary laws of the several states, we are bound to respect such laws and to aid in their enforcement, so far as can be done without infringing upon the constitutional rights of the parties.” (p. 360.)
Referring to the claim that each of the packages of cigarettes was a separate and distinct importation, the court said:
“We can only look upon it as a discreditable subterfuge, to which this court ought not to lend its countenance.” (p. 361.)
The right of the state to protect its citizens with respect to commodities deemed injurious to health is thus referred to in the same opinion:
“The doctrine that the silence of Congress as to what property may be of right carried from one state to another means that every article of commerce may be carried into one State from another and there sold,, ought not to be extended so as to embrace articles which may not unreasonably be deemed injurious in their use to the health of the people. ... Of course, it is one thing to force into a State, against its will, articles or commodities that can have no possible connection with or relation to the health of the people. It is quite a different thing to force into the markets of a State, against its will, articles or commodities, which, like cigarettes,' may not unreasonably be held to be injurious to health.” (p. 362.)
In Cook v. Marshall County, 196 U. S. 261, it was said:
“While it is doubtless true that a perfectiy lawful act may not be impugned by the fact that the person doing the act was impelled thereto by a bad motive, yet where the lawfulness or unlawfulness of the act is made an issue the intent of the actor may have a material bearing in characterizing the transaction. . . . So where the lawfulness of the method used for transporting goods from one State to another is .questioned, it may -be shown that the intent of the party concerned was not to select the usual and ordinary method of. transportation, but an unusual and more expensive one, for the express purpose of evading or defying the police laws of the State. If the natural result of such method be to render inoperative laws intended for the protection of the people, it is pertinent to inquire whether the act was not done for that purpose, and to hold that the interstate commerce clause of the Constitution is invoked as a cover for fraudulent dealing, and is no defense to a prosecution under the state law. . . . The power of Congress to regulate commerce is undoubtedly a beneficient one. The police laws of the State are equally so, and it is our duty to harmonize them. Undoubtedly a law may sometimes be successfully and legally avoided if not evaded, but it behooves one who stakes his case upon the letter of the Constitution not to be wholly oblivious of its spirit.” (pp. 271, 272, 273.)
That a party while doing business by methods appearing to place it under the shield of interstate commerce may at the same time be engaged in violating the state law was conceded in Adams Express Co. v. Kentucky, 206 U. S. 129, 137, although it was held by the majority of the court that such facts were not shown. Justice Harlan, in a dissent in that and other cases decided with it, stated his belief that they were not cases of legitimate interstate commerce, but showed only devices or tricks to evade or defeat the laws of Kentucky. We understand the majority opinion as assenting to the legal effect of such conduct if proven, differing with Justice Harlan, however, upon the proof.
It is true that a citizen of Kansas who finds that his business is prohibited by our laws may in good’ faith engage in the same business in another state where the legal obstacle does not exist. But he may not under the guise of moving across the state line, and other shifts or devices to evade the statutes of the state, continue in the prohibited business here and be immune from the penalties of our law.
From the facts found by the court and from the testimony of the defendant, it appears that his business was not legitimate interstate commerce but was carried on in violation of the statutes of - this state and is subject to abatement-and injunction.
The judgment of the district court is reversed with instructions to enter judgment for the state as prayed for in the petition, | [
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Per Curiam:
Upon rehearing the former judgment is 'adhered to. | [
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The opinion of the court was delivered by
Benson, J.:
A statement in the opinion that the rents and profits of the property set apart to the wife by the antenuptial contract had been absorbed by taxes is challenged in a petition for rehearing. On reexamining the evidence it is found that although the taxes upon one of the tracts exceeded the rent, the reverse is true of the other parcel. Concerning this subject the appellee’s brief contained the following:
“The North Topeka property produced a little income and was worth in 1898 about $1800, but, at the time of the death of Mr. Gordon, by reason of the flood and the decay of the buildings it was worth $600 or $800. The 7% acres never produced any revenue over and above the amount of the taxes. It was worth $1000 to $1500 in 1898 and from $2500 to $2800 in 1908. At the time of the death of Mr. Gordon the two properties did not produce any net revenue whatever.”
Elsewhere in the brief it is' stated that the North Topeka lot rented for about $8 per month. It was also stated that it was difficult and much of the time impossible to collect rent for the old house on this lot, and there was some difficulty in collecting rents from the barn. One tenant was dispossessed for failure to pay rent and another tenant was allowed a rebate for ten months or a year for repairs made necessary by a flood. The tax upon the North Topeka lot for one of the years was $27.67. The evidence does not show the exact amount of net revenue from both tracts. The statement referred to in the opinion appears to be too broad, but the surplus received from rents in excess of taxes, repairs and expenses was not so great as to affect the conclusion reached by the court.
Another statement in the opinion is criticised. It was said that:
“In many of the cases holding that such an agreement thus remaining unexecuted does not bar the widow’s dower or inheritance, the inexperience of the wife, her want of adequate knowledge of the husband’s property or other equitable considerations appear to have influenced the judgment.” (Gordon v. Munn, 87 Kan. 624, 633, 125 Pac. 1.)
It is said that no case can be found supporting this statement. In Sarah Woodward v. Benjamin Woodward et al., (5 Sneed) 37 Tenn. 49, cited by appellee, the statement of facts shows that the complainant was illiterate, that it was doubtful whether the paper was read to her, and that it was executed in great haste. The property to be transferred to the wife consisted of two slaves; such transfer was not made, and upon the death of the husband it was held that the widow might hold her legal rights in the estate of her husband notwithstanding the agreement, but the court said:
“The defendants, in this case, have not put themselves in an attitude, by filing a cross-bill, to ask a decree for specific execution of the agreement, if entitled to do so. But it is clear they have no such relief; the suspicions of unfairness which surround the execution of the paper, would repel them from a Court of Equity.” (p. 56.)
In Pierce v. Pierce, 71 N. Y. 154, a case also relied upon by the appellee, a decision had been rendered by the supreme court of that state reported in 16 N. Y. Sup. Ct., 9 Hun,, 50, holding that the wife was not bound by an antenuptial agreement of her husband .to settle upon her a sum of money because he had failed to make the settlement in his lifetime. In reviewing this decision the court of appeals of New York affirmed the judgment, for the reason, however, that the intended wife had been defrauded. No reference was made to the failure of the husband to complete the settlement as agreed. In Slingerland v. Slingerland, 115 Minn. 270, 132 N. W. 326, it appeared that the district court had held the antenuptial contract void because of inadequacy of consideration and the failure of the husband to make the payment as agreed, but that it was not invalid by reason of any fraudulent representations or undue influence. It appeared that the husband was over sixty years of age and was a wealthy' and successful business man. The wife was only 23 years old. Other circumstances affecting her situation were commented upon and it was held, contrary to the views of the trial court, that the contract should be set aside for fraud and undue influence, and the court added that “It is unnecessary to decide whether defendant’s failure to pay the $5000 is alone a ground for setting the contract aside.” (p. 275.) These cases may serve to illustrate what was in the mind of the writer of the opinion in this case in making the statement now challenged, and at least indicate the desire of courts to rest their decisions in such cases upon the ground of fraud rather than the default of one of the contracting parties. In Russell v. Russell, 129 Fed. 434, also cited by the appellee, the failure of the husband to perform a promise made in the antenuptial contract was held to be in itself a fraud relating back and vitiating the agreement in which it was contained. This may not be solid ground, but it further illustrates the judicial effort to base decisions in such cases upon fraud if it appears, rather than upon failure to fulfill a promise. The statement quoted above may be regarded as eliminated. It was a mere passing remark, having but a remote bearing upon but not necessary to the decision.
Inadequacy or disproportion of the consideration to be given to the wife was pleaded in the sixth paragraph of the reply. Attention was called to this feature of the case in a question submitted upon reargument, and it was fully treated in the briefs. This is believed to be a sufficient reason for the consideration given to it in the opinion of which complaint is now made.
It is suggested that the exclusion of evidence referred to in the sixth paragraph of the syllabus is not a ground of reversal because the proffered evidence was not set out in the motion for new trial. An examination of the opinion will disclose the fact that this evidence was considered because a new trial was ordered of the issue to which it related. It would be unfair to both parties to remain silent upon a matter of this nature where the same question is likely to be presented in another trial. It was fully argued in the briefs.
The vital question presented in the petition for rehearing is the effect of the failure of the husband to .make the conveyance as agreed. Many authorities. are again cited holding that such a failure is fatal and it is. asserted that none can be found to the contrary. That such authorities upon the general proposition were not wanting was stated in the opinion, but it may be useful at this time to reexamine some of them. In Bliss v. Sheldon, (N. Y. Supr. Ct.) 7 Barb. 152, a case frequently cited in later decisions, the agreement was tO' provide by last will for the widow an allowance of $50' each year during her natural life, together with a room, in the dwelling house, household furniture and garden, in lieu of dower. The will afterwards made provided for the payment of an annuity, not for life as promised,, but during widowhood only. The court said that “By disposing of the entire remainder of his property, he (the husband) rendered it impossible for his executors to perform it.” (p. 156.) It is true that another ground for the decision was added, but the fact that the agree ment was impossible of performance is significant. In the same case, reviewed in 8 N, Y. 31, the court said:
“The agreement was not performed by the testator, who not only omitted to make the provision contemplated by the contract for the respondent, but so disposed of his estate by his will as to place it beyond the power of his executors to make such provision, without departing from' his instructions. It is idle to talk of the wife being bound by an agreement which the husband in his lifetime virtually repudiated.” (p. 35.)
Thus it will be seen that the court of appeals rested its decision not alone upon nonperformance, but upon repudiation of the agreement by the husband as well as impossibility of performance by the executors.
In Camden Mutual Insurance Association v. Jones, 23 N. J. Eq. 171, the agreement provided for an annuity for the wife during widowhood. The husband died insolvent. The court said:
“It seems settled, both upon principle and by authority, that an ante-nuptial contract to release or not to claim dower, in consideration of an annuity or a provision out of personal property covenanted to be provided in lieu of it, will not bar the claim of dower if the provision on part of the husband fails. (1 Greenl. Cruise, Tit. 6, Dower, ch. 4, § 17; Hastings v. Dickenson, 7 Mass. 153; Gibson v. Gibson, 15 Mass. 110.)” (p. 173.)
In Hastings v. Dickenson & Ux., cited by the New Jersey court, an annuity had been provided for in a marriage settlement in lieu of dower. After holding that at common law and under an English statute in force in that commonwealth the provision made for the wife—not being a freehold—was not a bar to dower, the court said :
“As in this case the insolvency of the husband has deprived the widow of the contemplated annuity; if it were possible to consider this annuity as a freehold estate, yet within the equity of this statute, she ought to be admitted to her claim of dower, the consideration of her covenant having wholly failed.” (p. 155.)
The opinion in Gibson v. Gibson & Al., 15 Mass. 106, was rendered upon a question of pleading and follows the Hastings case. In the course of that opinion it was. said:
“From these principles it is manifest that, if the annuity has not been paid, and the security has failed, the demandant’s covenants can not be set up, to rebut her claim of dower.” (p. 112.)
It will be observed that in the New Jersey decision cited above it was said that the agreement will not bar dower if the provision for the wife fails, and in that case it failed entirely, because of the insolvency of the husband leaving nothing with which to pay the annuity. In Butman & wife v. Porter, executor, & another, 100 Mass. 337, a statute of Massachusetts required an ante-nuptial contract to be recorded. -The record was not made although either party might have caused it to be done. The court held the agreement inoperative under the statute. The Estate of Warner, 158 Cal. 441, 111 Pac. 352, was a case arising upon an antenuptial contract wherein the intended husband agreed to support and educate the minor child of the wife, then less than twelve years of age. Almost immediately after the marriage the child was sent out to work for her living under conditions making it impossible for her to attend school. The decision was based upon the pleadings showing this fact, and it was held, that the widow was not barred of her interest in the personal estate. It will be seen that this too is a case where performance was impossible; the education of the child having been neglected at the proper time, the opportunity ceased and the agreement could not be performed. Brenner v. Gauch, Exr., 85 Ill. 368, Phillips’ Ex’rs v. Phillips, 14 Ohio St. 308, and Sullings & another v. Sullings, 91 Mass. 234, are also cases where the intended husbands agreed to set apart personal property or pay money for the use of the wives, and may be distinguished from, agreements to convey real estate which vest an interest in the property. This distinction is suggested by a remark in Earl of Buckinghamshire v. Drury, (Eng.) 2 Eden, 60, referred to by Chancellor Walworth in McCartee v. Teller, 2 Paige’s Ch. 511, 560:
“If there had been danger of Sir T. Drury’s dissipating, and he had spent this equitable jointure, that would have been an. eviction in equity, and consequently would have given her right to dower, like the case of an eviction at law; for equity pursues the reason of the law. 2dly, But he could not have spent it, i. e., not his real estate.” (p. 68.)
In Sullings & another v. Sullings, above cited, the contract between the prospective husband and wife recited that it was his desire and purpose that provision should be made for her maintenance “as far as may be beyond the casualties and contingencies to which men and business are exposed.” (p. 237.) The widow’s counsel said in argument: “The testator failed to. perform his duties under the contract. All he did during the fifteen years’ coverture was the first transfer of fifty shares, and that only after a delay of four years, exposing her all this time ‘to the contingencies and casualties to which'man and business are exposed,’ and against which it was the express object of the instrument to guard.” (p. 236.) The court said:
“The essence of the contract was, that certain amounts of property should be irrevocably devoted to her use, at times specifically designated, so as to guard them against' accidents to her husband’s fortune. She was subject to the danger of loss to some extent during the whole coverture; and for nearly four years had no security whatever. . . . True, she could now receive the whole amount to which she would have been entitled, if the contract had been performed; but she has been exposed to the whole risk which the contract was framed to avoid.” (pp. 238, 239.)
The general rules relating to contracts for the sale of land are not deemed strictly applicable to this ques tion although the distinction has not always been observed in the adjudicated cases. In antenuptial contracts marriage is the principal consideration, and therefore a rescission of the agreement can not leave the parties in statu quo. (Note, 26 L. R. A., n. s., 858.) The annotator says that sound policy requires the enforcement of contracts entered into prior to and which induced the marriage, and that in the interpretation of covenants they will be construed as dependent or independent according to the intention of the parties and the good sense of the casé; that this rule is enforced with more liberality as to covenants contained in marriage settlements which will be held independent rather than dependent unless the language of the contract requires a contrary holding. The case of Lloyd v. Lloyd, (Eng.) 2 Myl. & Cr. 192, is cited as authority that where the marriage has taken place a contract had been so far performed that the court must put some construction upon it to the extent which remained to be performed, and although in the case of an ordinary contract the party who would not perform might not be entitled to claim any benefit, it was different in marriage articles. This matter of dependent and independent covenants in agreements of this nature is very briefly referred, to in Buffington v. Buffington, Executor, 151 Ind. 200, 51 N. E. 328. In that case the agreement contained a covenant on the part of the husband to make certain provisions for the wife’s support, and the court said:
“The stipulation as to support was not a condition upon which the validity of the contract was made to depend, and the allegation of a breach would not support a claim of forfeiture.” (p. 205.)
A similar conclusion was reached in Metz, et al., v. Blackburn, et al., 9 Wyo. 481, 65 Pac. 857. It is said in 19 A. &. E. Encycl. of L. 1244:
“A party to a marriage settlement does not lose his • right to the benefits thereby secured to him by the failure to perform the covenants on his own part, where the marriage has taken place and performance on his part is not made a condition precedent to performance by the other party.”
In North v. Ansell, (Eng.) 2 P. Wms. 618, the claim was interposed that the amount which the husband was to receive with the wife in' consideration of the marriage had not been paid, but the court said:
“The reason why this court does not relieve against marriage contracts for settlements, jointures or other provisions, though they may be very unequal, and in favor of the wife, is, because it can not set the wife in statu quo, or unmarry the parties.” (p. 619.)
To like effect is Jeston v. Key, (Eng.) 6 Chan. App. Cases, 610.
Without further considering the distinction between antenuptial agreements to pay money or transfer personal property and those providing for the conveyance of real estate, or the technical question whether the covenants here are mutual and dependent, our conclusion is based upon the proposition that the contract should be construed according to the intention of the parties to be gathered from the entire instrument, the nature of the property to be conveyed, and the effect of the agreement in vesting the equitable title in the. wife. So considered it is held that a conveyance by the husband was not indispensable to its enforcement, in the circumstances disclosed by the evidence and findings and commented on in the opinion.
“We have frequently held that agreements of this character should be liberally construed to carry into effect the -intention and purpose of the parties.” (Rouse v. Rouse, 76 Kan. 311, 317, 91 Pac. 45; Carr v. Lackland, 112 Mo. 442, 20 S. W. 624; Johnston v. Spicer et al., 107 N. Y. 185, 13 N. E. 753.) In the case last cited it was said that equity might impress a trust on the property to be conveyed.
The appellants have treated this particular issue as an action to rescind on the part of the appellee, while she has treated it as an action for specific performance on their part. In so considering it inconsistencies in the attitude and pleading of each party are pointed out by' the other. We have considered the issue upon broader lines and endeavored to determine the substantial rights of the parties upon principles of equity, whether the case is treated as attempted rescission or or specific performance. Failing in their contention that the marriage- was illegal, the appellants have nothing to urge against the validity of the agreement and ask that it be enforced. They hold the naked legal title, and if the other issue to be tried again shall be decided in their favor they may be adjudged to make a conveyance to the appellee and a complete title may be vested in her by the decree. This will obviate her objection made in the petition for a rehearing that another suit will be necessary to secure the legal title. If the appellee should be successful upon such trial the contract will be out of the case.
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was brought to foreclose a real-estate mortgage given by the defendants, Charles M. Wolf and Mary Wolf, on the lots in controversy. The mortgage ran to “S. W. Shattuck, Guardian,” and the original plaintiff in the action was so designated. The mortgage and the note it secured in fact belonged to the estate óf certain minors, who, after becoming of age, asked to be substituted as plaintiffs. Shattuck undertook to claim the note and mortgage as his own, but the substitution was allowed by the district court and the order of substitution was affirmed by this court. (Shattuck v. Wolf, 72 Kan. 366, 83 Pac. 1093.) At-the commencement of the suit the appellant, Sarah G. Shattuck, was made a defendant. The allegations of the petition were that she had or claimed to have some interest in or lien upon the premises described adverse to the lien of the mortgage, but that any interest she might claim to have was junior, subordinate and inferior to the mortgage lien. The prayer was that all the right, title, interest, estate, lien and equity of redemption which the defendants might have or claim to have should be forever barred, foreclosed and cut off. The appellant answered, setting up several tax deeds of the property. All these deeds had been issued after the suit was commenced and some of them were five years old when pleaded. The reply asserted the invalidity of the deeds on various grounds, and evidence showing irregularities in the proceedings on which they were based was introduced. The court stated findings of fact and conclusions of law favorable to the plaintiffs, and judgment was rendered foreclosing their mortgage as a lien.
The appellant argues, that no action was commenced to defeat the tax deeds until the reply was filed; that an affirmative attack on the tax deeds could hot be made by way of reply, but that the petition should have been amended or supplemented; that, as a result, all the tax deeds should have been sustained, but that in any event those which were five years old and regular in form could not be impeached.
In this state adverse titles may be litigated in an action to foreclose a mortgage. The petition charged that the appellant had no title to the premises superior to the mortgage, the purpose being to establish full title in the mortgagor so that the foreclosure sale would pass such title to the purchaser. If the appellant had made default she would have been concluded by the judgment barring her from making any claim to the property. (Hentig v. Redden, 46 Kan. 231, 26 Pac. 701.) It has been so held in a foreclosure case in which a defendant failed to set up a tax lien acquired after the suit was commenced. (Adair et al. v. Mergentheim, 114 Ind. 303, 16 N. E. 603.) Such a judgment rests upon the allegations of the petition, which are taken as true unless the title acquired subsequent to the commencement of the action be pleaded. The petition is a continuing challenge of all rights, adverse to the mortgage, which the judgment would cut off, if not pleaded and proved. Therefore, the plaintiffs were not called upon to supplement their pleading each time the appellant took out a tax deed. The petition on file stood as a declaration of the subordination of each one, as it was placed of record, to the mortgage, and the reply merely particularized the defects which made each one subordinate to the mortgage.
Some complaint is made because the cohrt allowed the reply to be amended and finally supplemented to conform to the proof, but no prejudice to the appellant’s substantial rights appears, or is even attempted to be pointed out. The last amendment was made before the cause was finally submitted and while the appellant had full opportunity to defend if she had so desired. The case of Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894, involving an amendment made after verdict and after a motion for a new trial had been filed, and which deprived the defendants of an opportunity to contest the issue presented, has no application.
The appellant argues that the reply presented no issue respecting the validity of the various tax deeds for the reason that conclusions of law only were stated. The reply did contain definite statements of fact touching the validity of the deeds and the regularity of the proceedings upon which they were based. Thus, the statement that “said deeds fail to show the date of sale” and the statement that the “notice of sale does not show by whom the sale would be made nor place of sale” are statements of fact. Numerous other specifications of- the reply embodied conclusions of fact. (See Gano v. Cunningham, post.) For purposes of the decision it may' be conceded that, strictly considered, the following allegation contained a conclusion of law only:
“That no notice of final redemption as provided by law was published as by law required prior to the execution of said deeds or any of them.”
The only objections to the reply were that no excuse was shown for not filing the amendments earlier, that certain of the tax deeds were protected by the statute of limitations, and that the reply did not state facts sufficient to constitute a defense to any of the tax deeds. The objections to the introduction of the evidence offered to sustain the reply were of the same character. All these objections went to the reply as a whole, and were manifestly untenable. No motion to strike out any allegation as a conclusion of law was made and the record discloses no effort to secure a ruling upon such a question. On the other hand, the court was permitted to treat the averment just quoted as one of fact relating to the departure of the substance of the notices from the statutory requirements. Findings of fact showing the various redemption notices were made and a specific conclusion of law was stated based upon such departure. No motion was made to strike out this conclusion of law as being outside the issues presented by the pleadings, and it was permitted to stand on the same footing with conclu sions based upon other defects in the notices pointed out in the reply. The motion for a new trial did not touch the subject, and the record may be searched in vain for even a suggestion to the district court of the distinction between conclusions of law and statements of fact in the reply. Consequently the allegation referred to will be treated here as one of fact. .
The appellant’s tax deeds are based upon three redemption notices, one of them involving four of the Wolf lots, another two lots and another six lots. The law in force at the time provided that the treasurer should cause to be published within a stated time “a list of all unredeemed lands and town lots, describing each tract or lot as the same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes. charged, and interest calculated to the last day of redemption, due on each parcel, together with a notice that unless such lands or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the purchasers.” (Gen. Stat. 1901, § 7671.)
The notices in question stated that “unless all such lands and town lots be redeemed . . . each parcel of land and town lot will be conveyed by tax deed to the purchaser of the same.” Under this notice the owner of several lots could not redeem one of them and thereby save it from conveyance to the tax purchaser. It would be necessary for him to redeem all to save any one. This condition upon redemption is unwarranted, and the notices do not merely fail to comply with the statute but, in the language of the opinion in Long v. Wolf, 25 Kan. 522, 524, they contain other statements and matters of such a character as to render them ineffectual. Substantial compliance with the statute is indispensable (Blackistone v. Sherwood, 31 Kan. 35, 2 Pac. 874), and the insertion in a redemption notice of misinformation calculated to mislead the owner to his prejudice renders the notice illegal (Cave v. Rinehart, 87 Kan. 81, 123 Pac. 766).
The appellant’s tax deeds are voidable for other reasons stated by the trial court, but it is not necessary to review them. The actual and continued possession of the lots by the mortgagor for more than twenty years, beginning before the mortgage was executed and extending to the time of trial, afforded sufficient evidence that the mortgage was a lien to permit the mortgagee to attack the tax deeds.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by the state to enjoin appellants, Nicholas Weber and John Weber, partners doing business as The Wilson Electric Light Company, from constructing an electric line from the city of Wilson, in Ellsworth county, to the city of Dorrance, in Russell county. Under a franchise from the- city of Wilson appellants had built and were operating, .an electric light plant in that city. Recently the city of Dorrance, located about seven miles from Wilson, authorized appellants to construct and operate an electric light plant there, and they were proceeding to extend their line to Dorrance and had expended a large sum of money to that end before this action was begun. On a preliminary hearing a temporary injunction was granted, and upon the final trial evidence was offered tending to show that appellants were constructing an electric line on the public-highway between the two cities, placing the poles near the fence line and about two feet from the outside of the highway. At this stage of the trial, and when an objection had been sustained to evidence tending to show that the proposed line would not prevent or impede travel or the full use of the highway, counsel for defendants made the following statement:
“In this case, the defendants have authority from the city of Wilson, as shown by the ordinance which has been read in evidence. The defendants have a contract to furnish electricity for the purpose of light, heat and power to the city of Dorrance. The plant of the defendants is located in the city of Wilson. The distance between the two cities is about seven and one- half miles. The defendants commenced the erection or were about to erect, when they were enjoined, an electric line from their plant in the city of Wilson into the city of Dorrance, Kansas, and were doing the same according to the most approved appliances and requirements to make the same a safe electric line for the conducting of electricity. That the electric current was to be carried on a suitable wire on poles between these points, the poles being 133 feet 10 inches apart, except at the public crosings, where the poles would be erected on each side of the crossings with the most approved form of baskets underneath the wires, and within two and a half feet of the wires at the public crossings for the purpose of catching the wires and preventing them from falling in the case of breakage ; that the poles being erected would be within about a foot to three feet of the margin and within the highway and they would be so placed as not to be in the way of public travel or in any manner to interfere with the use of the highway for travel, transportation or transfer along the highway. That the voltage carried would be 2300 volts and that the height of the poles would be such that the wires would extend 221/2 feet above the surface of the ground, and that the poles on each side of the road crossings would be well guyed and all the poles and all the work would be done in a substantial manner and erected according to the best and most approved methods for safe use of electricity for light, heat and current. That the defendants have such power and authority to erect this electric line as is given them by law and the permission of the said two cities as well as the permission of the adjacent landowners to the roads between the cities of Dorrance and Wilson, but has no other authority except as mentioned. That it is the opinion of counsel of defendants that the supreme court would take judicial notice of the question of whether or not the electric line would be dangerous and a nuisance, should the case ever reach that court. That the city of Wilson has a population of 981 inhabitants and the city of Dorrance has a population of 300 inhabitants. That the defendants are a partnership and that the partnership is amply responsible, financially.”
The trial court held that the facts stated by counsel did not constitute a defense and upon that statement rendered a judgment making the temporary injunction permanent.
The contention of appellee is that the electric line in question constituted an obstruction of the highway, or at least that the placing of it there was an exceptional use of the highway and that such use can not be made of it without express legislative authority. The state has sole control of its highways and the legislature has full power, within constitutional limitations, to regulate the use of them. This power may be delegated by the state and to some extent is delegated to boards, commissions and municipal authorities. Specific authority to erect or maintain this electric line has not been given to appellants, but is a special grant necessary? The transmitting and carrying of light, heat and power over and along a highway for distribution among consumers is a public use as well as one of the proper uses of a highway., (LaHarpe v. Gas Co., 69 Kan. 97, 76 Pac. 448; McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171.)
Being a public use and the line a public utility it is, of course, subject to the control of the public, and the legislature might well prescribe the conditions upon which a highway should be used for that purpose just as it has regulated the use of automobiles, telephones and other methods of transportation, traffic and communication on the highways. This highway was established under the statutory rules prescribed by the legislature. Having been so established it was open for any proper public use which the people might choose to make of it. A natural person needs no special license or grant of authority in order to use a highway for any of the purposes for which it was established. The legislature might have prescribed the conditions on which persons might transmit and transport light, heat and power along a highway, but it has nót done so, and in the absence of a statutory regulation there is no reason why they may not be transmitted and transported over the highway as freely as storage batteries or other appliances used in making light,. heat and power may be carried in a wagon over the same highway.
It is argued that because express authority to make such use of the highway has been conferred on corporations there is an inference that special legislative permission is necessary to that use by any one. Special authority is given to a corporation not because a grant is essential to the legal use of a highway for highway purposes by the people, but the grant is made in part to confer on an artificial being some of the rights which natural persons possess. In vesting the corporation with some of the powers and duties of a natural person, and which its own shareholders enjoy without a grant, the legislature provides how these duties and powers shall be exercised by the corporation and the conditions on which it may use the streets and highways in the conduct of its business. The fact that a franchise is essential to the exercise of its limited powers on a highway does not warrant the inference that legislative permission is necessary for the individual to use .the highway for any of the purposes, for which it was intended.
It is true that cities grant rights and prescribe the conditions upon which individuals and corporations may use the streets for certain purposes, but that does, not militate against the view that an individual may use the rural highways for the same purposes without, special authority. The power to control the streets, has been delegated by the state to the cities under which they may make grants of public rights for public purposes; but where the power has not been delegated and the state has prescribed no conditions limiting or regulating the use of the highway the people are at liberty to use it for travel, transportation and communication, subject to the condition that such use does not interfere with other lawful uses of the street nor invade the rights of the owners of abutting' lands. The cases cited by appellee relate mainly to the question whether the right of eminent domain may be exercised without special authority and whether there may be a use of the highway for such a purpose without the consent of the owners of the abutting lands. These questions are not in controversy here, as the consent of the abutting owners has been obtained, and it was not proposed to build the line over the lands of others or elsewhere than along the highway. It is insisted that no one can be given a special or exceptional use of a highway except by special grant from the sovereign power, but if this claim were conceded it is clear that the proposed use is a legal one which fairly comes within a highway easement. It is a new use, it is true, but not an exceptional one. On the contrary, it is one of the natural and legitimate uses to which a highway may be devoted. In The State v. Natural-gas Co., 71 Kan. 508, 80 Pac. 962, it was contended that the building and burying of pipe lines in 'the highway for the transportation and distribution of gas for light, heat and power was an exceptional use which could not be exercised without a franchise from the state. The court, however, held against that view, saying that:
“The use is not exceptional. The transportation of commodities on the highway is one of the uses for which it has always been maintained. The means, however, used by the gas company in the transportation of its gas are exceptional. A demand for this method has not heretofore existed in this state; but shall this fact alone deprive the defendant of the use of the highway for a usual and proper purpose, unless such use necessarily obstruct, seriously inconvenience or endanger public travel?” (p. 510.)
The court then made the following quotation from McCann v. Telephone Co., supra:
“ ‘The use is not to be measured by the means employed by our ancestors, or by the conditions which existed when highways were first devised. The design of a highway is broad and elastic enough to include the newest and best facilities of travel and communication which the genius of man can invent and supply.’ (p. 218.)” (p. 510.)
The court then added:
“The public highway is maintained for the transportation of the commodities of the country, and the means employed for such purpose need only be such as not to interfere with public travel to the extent hereinbefore stated.” (p. 510.)
The fact that the transmission of the electric current over wires is a proper use and that an individual may use the highway for this purpose without special authority does not mean that he is privileged to do-it in a way that will unreasonably interfere with the use of the highway by other members of the public.. The highway belongs to the public and all of the public, is entitled to the use of it. However, everyone must use it in a reasonable manner so as not to impede travel, transportation or communication, or interfere with its reasonable use by other citizens. If the methods of use adopted by appellants should unreasonably incommode others or render the proper use of the highway by others dangerous, or if the appliances used by them should constitute a nuisance, the state, at the instance of the attorney-general or the county attorney, could, under the general authority given them, maintain an action to enjoin the unlawful use. The same is true, however, as to pedestrians or of persons using ordinary vehicles; for while they may temporarily stop on the highway they are not permitted to stand an unreasonable length of time, and if they should unnecessarily block the highway or interfere with -its reasonable use by others they, too, might be enjoined.
What is an unreasonable use of the highway and whether the means and appliances employed by those using it constitute an obstruction or nuisance is ordinarily a question of fact. All who use it must respect the rights of the public. The right of the public to the use of it is subject to reasonable and necessary limitations. Every use may affect others to some extent,' but not every use which may cause some inconvenience to others can be regarded as a nuisance or an unreasonable use which would justify an action by the state to enjoin the use. Unléss there is something more than a technical obstruction, something which amounts to a substantial interference with the rights of others, there is no ground for an- injunction.
According to the record presented here there is no unreasonable interference with the rights of any one on the highway in question. It appears that the line is being erected with the best of materials, in the safest and most approved manner, and is being constructed so that it Will not interfere with travel, transporta,tion or any other legitimate use of the highway. It may be that it would be the better policy for the legislature to regulate the building of such lines on rural highways and place the control of them in some public officer who would fix the conditions on which the line should be constructed and maintained, but until such provision is made any person may, without special permission, make a reasonable use of the highway to transmit electric currents upon wires for the purpose of furnishing to consumers light, heat or power, providing it is done so as not to constitute a nuisance or interfere with the rights of other members of the public.
The judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
In a petition for rehearing the appellee insists that if the reasoning of the court is correct the judgment should have been modified, and not reversed, because the rights of the parties under the contract concerning the switch and right of way should be determined in this action. The case appears to have been tried upon the effect of the ordinance rather than the contract. The judgment declares-the ordinance to be null and void, and enjoins the appellants from closing up that part of Ferry street east of their property “under or by virtue of said ordinance, No. 5789.” It is further provided in the judgment that all issues relating to the switch in the rear of the appellants’ lots should be dismissed. The appellee stated in his brief that “the judgment does not adjudicate the rights of Weston & Co. under the ‘spur track’ contract with Perkins except in so far as said contract is sought to be interposed by them as a shield for the protection of ordinance No. 5789.” He further states his theory to be that he was entitled to the judgment adjudging the ordinance to be void “and enjoining the obstruction of the street, under said ordinance.” The appellants pleaded the contract as a defense to the claim of the appellee that the vacation of- the street should be held invalid. The case was tried and the judgment pronounced upon the invalidity of the ordinance, the contract being considered only so far as it affected,the right of the appellee to insist upon such invalidity.
In view of the condition of the pleadings and the theory upon which the case had been tried, it was deemed best that the rights of the parties under the contract should be determined in another action, if not otherwise adjusted. The proceedings in this action will not bar such a determination.
The statement in the opinion that the Weston building extended into old Ferry street is challenged. It is said that the evidence was conflicting upon that point. This was a material matter as the opinion shows, and the fact stated was not based upon a conflict in the evidence but upon testimony set out in the abstract and statements in appellee’s brief, where testi mony of Wilbur A. Weston is quoted as follows: “A portion of the extreme east end of our building extends over into old Ferry street. One corner extends about 8 to 12 feet.” Following the quotation containing this testimony, the brief says:'
“The main purpose of Perkins’ suit was to remove the cloud cast upon his right to use Ferry street . . . to destroy Weston & Co.’s alleged claim of ownership which upon the face of the record and in view of the conduct of Weston & Co., in constructing a part of their elevator building ... in the street, seriously interfered with the use of the street.”
It is further insisted that the contract only purported to give a right of way across lots 4 and 5 as platted, but the appellants claimed the premises in the rear of these lots by virtue of the vacation ordinances, and the right of way as used was over that property; necessarily so because the Perkins’ building extended to and into the old street, which was constructed or in process of construction when the contract was made. As interpreted by the conduct of the parties in its use, the right of way appears to be over the extensions of the lots caused by vacation of the street.
In the petition for rehearing it is contended that the judgment can not be reversed because it is final as to the city, which was a party to the action but-did not appeal, and was not served with notice of'the appeal taken by its codefendants. The issue tried was upon the validity of the ordinance as it affected the rights of the other parties. If the appellee deemed the city a necessary party in the hearing of this appeal, an objection ought to have been made before a final determination in this court.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
A rehearing was granted in this case and the only point reargued is this: Upon the facts found by the jury was it a question of law to be determined by the court, or one of fact for the j ury, whether the appellant exercised due diligence? The sixth paragraph of the syllabus of the former opinion reads:
“The plaintiff, who occupied the relation of a purchaser without actual knowledge of an unrecorded deed, inquired of the tenant and learned the name of the agent to whom the tenant paid rent. Relying upon his knowledge of the fact that the same .person had been, until a short time before that, managing the property as agent for the record owner of the title, he failed to make any inquiry of the agent to learn the name of the owner. Upon these facts, it is held that the question whether he acted with due diligence was one for the jury to determine, and not of law for the court.” (Penrose v. Cooper, 86 Kan. 597, 121 Pac. 1103.)
The facts are fully stated in the opinion in the former hearing. So far as pertinent to the question here they are as follows: S. W. Shattuck, jr., was the attorney and agent for the Anthony Investment Company, which was in possession under a tax title. Shattuck had appeared as its attorney in a former ejectment suit brought by Cooper, which was dismissed by the plaintiff without prejudice October 1, 1901. The next, day the investment company made a quitclaim deed to> W. B. Penrose, a son-in-law of the president of the-, company. From March, 1901, Shattuck had been in-charge of the property as agent for the company, securing tenants and collecting the rents. After the. execution of the quitclaim deed to Penrose he contin ued in charge of the property in precisely the same, way, but held a paper signed by Penrose authorizing him to represent Penrose under the direction of the president of the investment company. The tax deed would become five years old on December 7, 1901. Cooper, desiring to begin another action before that date, went to the property about December 1 for the purpose of ascertaining what interest, if any, the tenants occupying the place had or claimed, in order that he might make every person known to be interested a defendant. He inquired of the tenants and was informed by them that they paid rent to S. W. Shattuck, jr. He knew that the latter had been representing the investment company which held the record title, both as attorney and as agent in charge of the property. Cooper, with knowledge of these facts and with no actual notice or knowledge of the existence of the quitclaim deed to Penrose, which had been withheld from record, made no further inquiry. There is no evidence nor finding to show that if he had made any further inquiry of the tenants he would have learned the true state of the title. The j ury, in answer to special questions, have found that Cooper had no.'actual notice of the outstanding deed; also that in' their opinion he did not exercise due diligence to ascertain whether of not any other person had or claimed an interest in the property. They have found, however, every fact from which they have drawn the conclusion that he failed to exercise due diligence, and it may be said that the evidence fails to disclose any other fact or. circumstance putting the appellant upon inquiry or notice of the existence of the deed to Penrose or that Penrose had claimed any interest.
The recording act (Gen. Stat. 1909, § 1672) provides that conveyances of real estate not filed for record shall be void except as between the parties thereto and such persons as have actual notice there of. In the recent case of Faris v. Finnup, 84 Kan. 122, 113 Pac. 407, it was ruled as follows:
“Under the statute providing that no conveyance of real estate shall be valid, except as between the parties and as to those who have actual notice, until it is-deposited for record (Gen. Stat. 1909, § 1672), actual notice may be express, when it consists of knowledge actually brought personally home, or it may be implied, when it consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. In the latter case, the known facts must be sufficiently specific to impose the duty to investigate further, and they must furnish a natural clue to the ultimate fact.” (Syl, ¶ 1.)
Where due diligence is a mixed question of law and fact it is beyond any doubt one for determination of the jury.
“The question of actual notice is one of fact for the jury, but whether constructive notice is imputable to a party from particular facts is a question of law for the court, especially where the facts are not controverted.” (29 Cyc. 1126.)
In C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347, 33 Am. Rep. 167, it was held that where the jury stated the facts in detail and made a general finding that the defendant was guilty of negligence the latter amounted to nothing more than a conclusion from the detailed facts and that the detailed facts govern. In the opinion Valentine, J., speaking for the court, said: “Generally, when the facts are established, it is a question of law for the court to determine whether they constitute negligence, or not, and generally, when the jury find the facts in detail, they can not then say, in general terms and conclusively, that such facts constitute negligence, unless they in fact do constitute negligence.” (p. 359.) And for the reason that this court held there was no culpable negligence shown by the facts as found, the judgment was reversed and judgment ordered in defendants’ favor. The case has been followed and approved in numerous instances. (A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824; A. T. & S. F. Rld. Co. v. Brown, 2 Kan. App. 604, 42 Pac. 588, 2 Am. & Eng. Rld. Cas., n. s., 113; Railway Co. v. Laughlin, 73 Kan. 567, 85 Pac. 597.) The same principle had previously been declared in A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188.
Applying the doctrine of Faris v. Finnup, supra, can it be said here that the known facts were such as to impose upon Cooper the duty to investigate, further, and were they such facts as must have furnished a natural elue to the ultimate fact, the existence of the Penrose deed? It is elementary that the presumption of actual notice arising from circumstances may be rebutted by the person sought to be charged. Thus in Chadwick v. Clapp, 69 Ill. 119, it was held:
“Where circumstances are brought directly home to the knowledge of a purchaser, sufficient to put him upon inquiry, and thus amount to notice, he will be entitled to rebut the presumption of notice which would otherwise arise, by showing the existence of . other and attendant circumstances of a nature to allay his suspicions, and lead him to suppose the inquiry was not necessary.
“Where the circumstances relied on as sufficient to charge a party with notice, by requiring him to make inquiry, may be equally as well referred to a different matter or claim, as to the one he is sought to be chargeable with notice of, they will not be sufficient.” (Syl. ¶¶2, 3.)
The same doctrine, expressly declared by. this court in Faris v. Finnup, supra, and by the Illinois court in the opinion above quoted, was stated by the court in Cook v. Travis, 20 N. Y. 400, where it was said:
“It is quite true, generally, that the law regards the actual occupancy of land as equivalent to notice to all persons dealing with the title, of the claim of the occupant. But this is not an absolute proposition which is to be taken as true in all possible relations. The circumstances known may be such that the occupancy will not suggest to a purchaser an inquiry into the title or claim under which it may be held; and when the inquiry may be omitted in good faith, and in the exercise of ordinary prudence, no one is bound to make it. Possession out of the vendor and actually in another person only suggests an inquiry into the claim of the latter. Ordinarily that inquiry should be made, because it evinces bad faith or gross neglect not to make it. But the question in such cases is one of actual notice, and such notice will be imputed to a purchaser only where it is a reasonable and just inference from the visible facts.” (p. 402.)
And so it was ruled in Fargason v. Edrington, 49 Ark. 207, 4 S. W. 763, that when inquiry is made resulting in information that the possession is held by one who has placed upon record the evidence of his right to occupy, inquiry is arrested at that point. To the same effect, see Woods v. Farmere, (Pa.) 7 Watts, 382, 32 Am. Dec. 772; Knox v. Thompson, 11 Ky. 351, 13 Am. Dec. 247; Wade on Notice, 2d ed., §§ 297, 298. In the last two cases cited it was held in substance that where anything appears of record to justify the possession the latter will not be evidence of anything further. In the case of Smith v. Yule, 31 Cal. 180, 89 Am. Dec. 167, it was held that where the tenant is in possession and the purchaser makes due inquiry of the tenant, which fails to disclose the fact of tenancy, the purchaser is not chargeable with notice thereof. To the same general effect, see Thompson v. Pioche, 44 Cal. 508.
In the case at bar the jury have found as a fact that Cooper had no actual notice, and have likewise found just what he did to ascertain the fact, and yet, because they have also said that they do not think that Cooper exercised due diligence, we are are asked to stultify ourselves by declaring that the question of due diligence, which is no longer a mixed question of law and of fact but one of law arising upon known facts about which there is and can be no controversy, is foreclosed. As well might it be said that if they had found that Cooper inquired of the tenants the name of the owner for whom Shattuck was then acting as agent and had failed to learn the truth, he had nevertheless failed to exercise due diligence-because he had not inquired of Shattuck to leam if the latter was still acting for the record title-holder as he had been until a few weeks previous.
“To say that he was put upon enquiry, and that, having made all due investigation without obtaining any knowledge of title, he was still chargeable with notice of a deed, if one did really exist, would be absurd.” (Rogers v. Jones, 8 N. H. 264, 269.)
Here the particular claim by which Shattuck had exercised control over the possession was notorious, and in the opinion of a majority of the court was sufficient as matter of law to account for the possession of the tenants who were found there and from whom Cooper inquired, and it can not" be said that due diligence required him to speculate as to the possible existence of some, other claim under which the same person may be in fact exercising control and agency. There was no apparent change in the possession or in the character of Shattuck’s agency. Upon inquiry the tenants themselves' informed Cooper that they paid rent to one whom he had reason to believe was still the agent of the investment company. It would have required the exercise of extraordinary diligence to suspect a possible change in the ownership or agency within the few weeks’ time that had intervened.
Under the facts found by the jury and absolutely undisputed it became a question of law for the court to determine whether actual notice of the unrecorded deed was imputed to Cooper by reason of the failure to make further inquiry.
In Claflin et al. v. Lenheim, 66 N. Y. 301, the court submitted to the jury the question whether the circumstances, which were undisputed, were sufficient to charge the appellant with constructive notice of agency, the judgment was' reversed, and it was held that, the facts being undisputed, the question was one of law for the court, and as matters of law the facts and circumstances were insufficient to constitute constructive notice. In the opinion it was said:
“Constructive notice is a legal inference from established facts, and when the facts are not controverted the question is one for the court. . Whether, under a conceded state of facts, the law will impute notice is not a question for the jury. (Birdsall v. Russell, 29 N. Y. 220, 249.)” (p. 806.)
“Possession may in some cases be evidence of a claim; but when a particular claim is notorious and is sufficient to account for a possession, no one is called on to speculate as to the existence of some other claim.” (Lincoln v. Thompson, 75 Mo. 613, syl. ¶ 3.)
Numerous cases might be cited in support of the doctrine that where a change of title occurs and the tenant in possession under the former owner remains in possession and attorns to the new landlord who fails to record his deed, a purchaser from the former landlord is under no duty to inquire of the tenant as to who his landlord is. As a matter of law he is not charged with notice of any change of title, and we suppose that the rule of law would not be altered by the finding of a jury to the effect that he should have made inquiry. In Bynum v. Gold, 106 Ala. 427, 17 South. 667, it was ruled:
“The fact that a third person was in possession of land at the time of defendant’s purchase, is not sufficient to charge the latter with notice of a prior unrecorded deed to plaintiff, and that such person had attorned to him, when defendant knew such person went into possession as tenant of the grantor.” (Headnote, ¶ 4, 17 South. 667.)
The case of Harvester Co. v. Myers, 86 Kan. 497, 121 Pac. 500, is distinguishable from the present case. There the mortgagee, before accepting the mortgage, made no inquiry of the persons who were actually in possession of the premises, but he inquired of the mortgagor as to the possession. The latter held the record title and informed him that no one lived on the place, but that the two brothers were farming it. They were, in fact, in possession, claiming a two-thirds interest in the land. Their possession was notice which put him upon inquiry. He might as well have relied upon the record and ignored the fact of possession. In the present case the inquiry was made of those persons found in the occupancy of the premises. Possession speaks for itself to the extent of placing upon the purchaser or person about to deal with the property the duty to inquire of the one in possession-Htiot to inquire of the person holding the record title.
It follows, therefore, that the judgment must be reversed and the cause remanded with' directions to enter judgment in favor of appellant. | [
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The opinion of the court was delivered by
Fromme, J.:
Maurice Jefferson was convicted of first degree kidnapping (K. S. A. 21-449), felonious assault (K. S. A. 21-431) and unlawful possession of a pistol (K. S. A. 21-2611). The trial covered seven days. A jury returned verdicts of guilty on each of the counts. Judgment was entered approving the verdicts and sentencing the defendant. This is a direct appeal from that judgment.
Five court reporters took turns in reporting the trial proceedings. One of these reporters lost her shorthand notes. A complete transcript of the proceedings is not available. Defendant argues the incomplete transcript makes meaningful appellate review impossible and deprives him of substantive rights. He asks that the judgment be reversed and the verdicts set aside.
The record before us covers a substantial part of the trial pro ceedings. The testimony of all of the witnesses for the prosecution except one is recorded. The testimony of the last five witnesses for defendant is recorded. The recorded and transcribed testimony available on this appeal is sufficient to support the judgment and uphold the verdicts. The record includes testimony of the victim and five eye witnesses to the shooting and abduction. A brief summary of their testimony will suffice.
On the day in question the defendant called Mrs. Cochran on the telephone and made a veiled threat to her person. The defendant and Mrs. Cochran were estranged paramours. Mrs. Cochran left her home with her three children with the intention of spending the night at her grandmother’s home. On the way she stopped at an aunt’s house. The aunt accompanied them and drove the car. The children were in the back seat. The defendant drove up and forced them to stop their car by using his car as a battering ram. The defendant jumped out of his car and proceeded to pound on the window of the Cochran vehicle with a pistol until Mrs. Cochran unlocked the door in response to his demands. Defendant jerked Mrs. Cochran out of the car, called her a vile name and shot her in the arm. Thereafter he dragged her down the street toward his car. The aunt and three children got out of the car and pleaded with a couple on the street. They asked for help to assist in taking Mrs. Cochran to the hospital. The aunt and a twelve year old son helped Mrs. Cochran to the couple’s car. The defendant threatened the couple, fired his gun into the ground and forced Mrs. Cochran into his car. Two of the children got into the back seat of defendant’s car. The defendant drove them several blocks from the scene of the previous action, began crying and then shot himself in the chest. After Mrs. Cochran had stopped the defendant’s car by placing her foot on the brake pedal, she pulled the keys and got out. The gun fell into the street, unnoticed by defendant. Defendant then demanded the keys to his car. On receiving the keys he drove off. The gun was retrieved from the street and Mrs. Cochran was treated at a hospital for a gunshot wound in her arm.
The defendant does not question the sufficiency of this and other evidence which is available in the record. He contends: An appeal to this court may be taken as a matter of right under K. S. A. 62-1701. It is the duty of the official court reporter to take full stenographic notes of the entire trial proceedings as provided in K. S. A. 20-903. An indigent defendant shall be entitled to a transcript of the entire proceedings under K. S. A. 62-1304 (b). He concludes under authority of Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585; Eskridge v. Washington State Board, 357 U. S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061; Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 and similar cases, that the inability of the state to provide a full transcript of trial proceedings entitles the defendant to a new trial per se. We do not believe the cases cited support such a rule of automatic reversal.
In our present case a portion of the transcript is unavailable because of the loss or destruction of a part of the stenographic notes of the proceedings. The cases referred to by defendant relate to instances where a transcript is available but is denied a defendant because of his inability to pay for the same. The high court in such cases has declared that such a denial of an available transcript is an invidious discrimination against the indigent.
The federal courts have not found invidious discrimination attends when all or a portion of the transcript is unavailable because of the loss of stenographic notes or because of the death of the stenographer who alone can transcribe the record of trial. (Norvell v. Illinois, 373 U. S. 420, 10 L. Ed. 2d 456, 83 S. Ct. 1366; Goodwin v. Page, 296 F. Supp. 1205 [1969]; United States v. Pate, [7 C. A. 1963] 318 F. 2d 559.)
In Norvell v. Illinois, supra, it was said:
“When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made. . . .
“The ‘rough accommodations’ made by government do not violate the Equal Protection Clause of the Fourteenth Amendment unless lines drawn are “hostile or invidious’. . . .” (10 L. Ed. 2d 459)
Under our Kansas case law we have long recognized and approved the use of a reconstructed statement of a lost or destroyed transcript. The burden is on the appealing party to initiate the necessary proceedings to reconstruct a secondary record. (Spencer v. McClenney, 104 Kan. 107, 178 Pac. 253; State v. Allen, 111 Kan. 3, 206 Pac. 340; Addington v. State, 198 Kan. 228, 424 P. 2d 871.)
The “rough accommodations” referred to by the high court are provided by Rule 6 (n) of this court as follows:
“In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within ten (10) days after service upon him. Thereupon, the statement, with objections or proposed amendments, shall be submitted to the judge of the district court for settlement and approval and as settled and approved shall be included in the record on appeal.” (Rules of the Supreme Court of Kansas, Rule 6 (n), 201 Kan. xix and xx.)
The defendant-appellant made no attempt to reconstruct that portion of the record which was missing. The inability of the state to provide a full transcript of the trial proceedings does not entitle the defendant to a new trial per se. Before appellant can claim prejudice to his substantive rights based upon the unavailability of all or a portion of the record he must make a good faith effort to obtain a secondary statement of the lost portion of the transcript as outlined in Rule 6 (n) of this court. No invidious discrimination appears in this record and meaningful appellate review has not been denied the defendant.
The defendant next contends his conviction for unlawful possession of a pistol under K. S. A. 21-2611 cannot be sustained. He claims to have been without benefit of counsel in Mississippi where he was previously convicted of the burglary and larceny upon which this charge is premised. The record before us does not contain a copy of the journal entry of conviction from Mississippi. An authenticated copy of the journal entry was admitted into evidence at the trial as exhibit 2. This exhibit, if lost, could have been replaced by appellant from files and records of the Mississippi court. We suspect this was an intentional omission on his part, for the prosecution states the journal entry recited that the defendant appeared in Mississippi “with counsel”. The trial court delayed the admission of the journal entry to permit Mr. Updegraff, the defendant’s trial counsel, time to investigate the facts concerning the regularity of the prior conviction in Mississippi. It was later admitted.
The burden is upon the defendant to show he did not have benefit of counsel at his prior conviction. Without such a showing the validity of the judgment is presumed to be regular. Every reasonable presumption in favor of the validity of a judgment should be indulged where there is nothing in the record to support allegations of irregularity. (See Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397 and cases cited therein.) This presumption attends both the judgment of conviction in Mississippi and the present judgment. The appellant fails, therefore, to sustain his burden on appeal. It does not affirmatively appear from the record that prejudicial error was committed by the trial court in this particular.
The defendant’s final contention is that the trial court improperly permitted testimony by a firearms and ballistics expect who identified the pistol as having fired the bullet which injured Mrs. Cochran. The bullets and casings used by him in making tests, comparisons and identification were not in evidence. They had become lost after the tests were made and the photographs taken. The photographs were used by the expert and introduced in evidence over the objection of defendant’s trial counsel.
Appellant bases this last specification of error upon the best evidence rule and argues the rule requires exclusion of the testimony of the expert and of the photographs.
The best evidence is such proof as is the best obtainable under the existing circumstances. The prosecution’s testimony was sufficient to establish the bullets and casings were lost. Absent proof to the contrary, the loss of the bullets and casings resulted in the photographs and testimony of the expert being the best evidence obtainable under the existing circumstances.
In addition, the testimony of an expert as to tests, results thereof and demonstrations by him may be permitted and rests in the judicial discretion of the trial court. (Malone v. New York Life Ins. Co., 148 Kan. 555, 559, 83 P. 2d 639.) The results of a blood test, if properly obtained and accurately identified, are admissible in a case although the blood sample itself is not in evidence. (Williams v. Hendrickson, 189 Kan. 673, 676, 371 P. 2d 188.) Color slides or reproductions showing the victim’s body used by the coroner to demonstrate to the jury the depth of the wounds and type of blow inflicting them are admissible in evidence. (State v. Zimmer, 198 Kan. 479, 501, 426 P. 2d 267.) Photographs are generally admissible after proper foundation and identification if they accurately represent an object material and relevant to an issue in the case. Their admission rests in the judicial discretion of the judge and in the last analysis the weight to be given them is left to the jury. (See State v. Emery, 201 Kan. 174, 440 P. 2d 613.) The questions raised by the defendant in this case go to the weight of the expert’s testimony based upon tests made by him. The photographic aids were used by him in testifying. No question is raised as to foundation for this testimony. The photographs were properly identified and sponsored by the expert whose testimony they served to explain and illustrate. (See Howard v. Stoughton, 199 Kan. 787, 790, 433 P. 2d 567.) Such evidence was relevant and properly admitted.
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The opinion of the court was delivered by
Fromme, J.:
The cross-appeal in this case is from an order refusing to require a refund of attorney fees previously paid by an administrator to attorneys who successfully defended a will contest.
These parties have appeared three times before this court on matters connected with the estate of Charles T. Roberts, deceased.
In 1963 Albert H. Roberts appealed a decision of the Cowley district court ordering the last will and testament of Charles T. Roberts, deceased, admitted to probate. The order was affirmed on appeal. (See In re Estate of Roberts, 192 Kan. 91, 386 P. 2d 301.)
In 1967 Albert H. Roberts appealed a decision of the Cowley district court denying specific performance of a contract to transfer the property in the estate of Charles T. Roberts to Albert H. Roberts. The decision was reversed on appeal and the district court was directed to enter a decree of specific performance of the contract in favor of Albert H. Roberts. (See Roberts v. Coffey, Administrator, 198 Kan. 695, 426 P. 2d 30.)
The sole question in the present cross-appeal is whether the cross-appellants, Harley A. Coffey, Administrator, and Albert H. Roberts are foreclosed from further litigating the legality of a $3500 attorney fee previously allowed and paid to Ralph T. Gilbert and Earle N. Wright.
In the court below the attorneys Gilbert and Wright applied for and were denied additional fees. Notice of appeal was served but their appeal was abandoned. Coffey, as administrator, and Roberts perfected this cross-appeal. The sole question here is on the cross-appeal.
A motion to dismiss the cross-appeal was filed by Gilbert and Wright. It was denied by this court with permission to renew on the merits. The motion was orally renewed during oral argument but Gilbert and Wright did not appear or file briefs in opposition to the cross-appeal. The motion to dismiss the cross-appeal is denied.
We return to a consideration of the cross-appeal.
The $3500 attorney fee with which we are concerned was allowed by the district court in the will contest case and approved by this court in In re Estate of Roberts, 192 Kan. 91, 386 P. 2d 301. The cross-appellants argue the fee was illegally and improperly allowed and paid, and that allowance was not final even though it was considered and approved. They contend our inquiry in RobeHs was limited to whether the total attorney fees allowed were excessive.
We have examined the abstract and briefs in the will contest case and find the parties who litigated that matter were aligned as follows:
Albert H. Roberts was contesting the will. He, as appellant, was represented by Frank G. Theis, attorney.
Helen Roberts May, Marlene Roberts, natural guardian of Kim Leslie Roberts, a minor, and Kim Leslie Roberts, a minor, appeared as proponents of the will. They, as appellees, were represented by Earle N. Wright, Ted M. Templar and Ralph W. Gilbert, attorneys.
Harley A. Coffey, administrator, appeared as cross-appellant on the question of the allowance of attorney fees. He was represented by Grant H. Cole, attorney.
In that case the district court on appeal from the probate court had allowed attorneys’ fees as follows:
Frank G. Theis, attorney for appellant, $3000; Earle N. Wright and Ralph W. Gilbert, attorneys for appellees, $3500; Tom Pringle, guardian ad litem, $400.
The administrator, Harley A. Coffey, in his notice of cross-appeal in that case stated he desired to have a review of the order allowing fees for various reasons which included the following:
“1. That the trial court did not have authority or jurisdiction to order said attorneys’ fees and guardian ad litem fees.
“3. The attorneys’ fees awarded in said order were not proper due to the provisions of G. S. 59-1504 (1949).”
He likewise specified these two matters as error. In addition he claimed the fees were excessive, considering the value of said estate. His brief was limited to argument and authority to support these contentions. The brief of Albert H. Roberts and the brief of the proponents of the will did not speak to the questions raised by the administrator in regard to the attorney fees.
An examination of our reported opinion in In re Estate of Roberts, supra, will disclose the subject of these attorney fees was fully covered. The provisions of G. S. 1949, 59-1504, 59-2408 and 60-3706 were considered, construed and applied. We incorporate what was said in that opinion concerning the allowance of the attorneys fees. It is sufficient here to note that the $3000 fee allowed in the district court to Frank G. Theis as attorney for the unsuccessful contestant was disallowed on appeal. The fee of Tom Pringle, as guardian ad litem was approved in the sum of $400. The fee of $3500 to Earle N. Wright and Ralph W. Gilbert as attorneys for the successful proponents of the will was approved.
Our opinion in Roberts was filed November 2, 1963. On December 18, 1963, the $3500 fee was paid by the administrator, Harley A. Coffey, to Earle N. Wright and Ralph W. Gilbert. We are of the opinion the doctrine of res judicata is applicable.
When all parties are in court and the court has jurisdiction to determine the issues directly involved in the action, a judgment therein entered becomes res judicata not only as to all matters specifically and formally determined but also as to all matters which might and should have been determined. (Boyles v. Emery, 159 Kan. 300, 153 P. 2d 936.) This general rule is founded upon the sound policy of promoting a finality in litigation and of preventing litigants from being compelled to again defend in matters directly involved in a prior action. (Boyles v. Emery, supra; Stimec v. Verderber, 152 Kan. 582, 106 P. 2d 708.)
In Wharton v. Zenger, 163 Kan. 745, 186 P. 2d 287, the rule was stated in this manner:
“. . . [T]he doctrine of res judicata not only prevents the relitigation of identical facts and questions a second time but bars the litigation of all matters in a subsequent action which might and should have been determined in the first one (citing cases).” (p. 750)
In Adamson v. Hill, 202 Kan. 482, 449 P. 2d 536, it was said:
“The rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action is based on the doctrine of mutuality of estoppel; that is, a litigant can invoke the conclusive effect of a prior judgment only if he would have been bound by it had it gone the other way.” (Syl. ¶ 2)
In the prior case if the $3500 allowance of fee had been disallowed on appeal it could hardly be said, that the judgment would not be conclusive on the rights of Wright and Gilbert. The prior judgment remains unchallenged as to the fee allowed to the guardian ad litem and as to the $3000 fee disallowed to Frank G. Theis as attorney for Albert H. Roberts. In addition the fee now challenged was paid by the administrator who now joins with Albert H. Roberts in an attempt to obtain a refund of the attorney fee previously paid. Both cross-appellants took part in the previous appeal and were bound by that decision.
We .conclude the order of the district court denying the cross-appellants’ claim for recoupment was proper.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a direct appeal in a criminal action wherein the defendant pleaded guilty to charges of first degree murder (K. S. A. 21-401) and first degree robbery (K. S. A. 21-527) and was sentenced to consecutive terms in the state penitentiary of life imprisonment on the murder charge and ten to twenty-one years on the robbery charge.
The offenses of which defendant was convicted were the result of an armed robbery that occurred October 25, 1967, at the Kreipe Liquor Store in Topeka in which the clerk on duty, Eva C. Scott, was shot and killed. On October 27 the defendant was arrested as suspect in the commission of these offenses and taken to the police station for questioning. Following the taking of statements and the filing of a complaint in the Court of Topeka on the 28th, Sam A. Crow was appointed to represent the defendant. A preliminary hearing was held November 30, resulting in defendant’s being bound over to the district court for trial. Again Mr. Crow was appointed counsel.
On April 22, 1968, the district court held a hearing on a motion filed by defendant to suppress certain evidence, including the extra-judicial statements made by him shortly after his arrest. Thereafter, a sanity commission, appointed by the trial court, found that defendant was not insane and that he understood the proceedings against him and was able to assist in his defense. The motion to suppress was eventually overruled May 14, and on the next day defendant entered pleas of guilty to the charges pending against him. The district court on May 24 heard evidence concerning the commission of the offenses and defendant’s mental condition, and thereupon imposed sentence. Mr. Crow subsequently withdrew, and present counsel was appointed to present this appeal.
The thrust of defendant’s appeal is that he was denied the effective assistance of counsel because (1) his attorney allowed him to plead guilty despite his mental condition at the time, and (2) in light of the facts and circumstances developed at the April 22 hearing on the motion to suppress, his attorney improperly permitted him to enter a plea of guilty on the next day following the denial of the motion.
The claim of ineffective assistance of counsel has become increasingly popular as a ground for relief in criminal appeals. While each case must be judged on its own facts in assessing the merits of such a contention, we nevertheless are governed by well-grounded principles which have evolved from our decisions in recent years.
The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed. (Johnson v. State, 203 Kan. 947, 457 P. 2d 181; State v. Wright, 203 Kan. 54, 453 P. 2d 1.) On the other hand, where an attorney is so incompetent or so dishonest or so improperly conducts his client’s case as to amount, in practical effect, to no representation at all, the defendant is deprived of a fair trial and is entitled to relief. (Smith v. State, 199 Kan. 293, 429 P. 2d 103, and cases cited therein.) The burden of showing denial of effective assistance of counsel to the extent necessary to overcome the presumption of regularity of the conviction is upon the defendant, and it is not sustained by the unsupported, uncorroborated statements of the one convicted. (State v. Hemminger, 203 Kan. 868, 457 P. 2d 141.)
Defendant first questions the effectiveness of his counsel’s assistance on the basis there is no affirmative showing in the record as to defendant’s mental condition at the time he entered his pleas of guilty and at the time of sentencing. Reference is made to testimony of Dr. Joseph Satten, a psychiatrist, who, at the hearing on sentence, stated that he, as a member of the sanity commission, had examined the defendant in April. Dr. Satten testified that from his examination he was able to draw some inferences about the defendant over a “long period of time . . . [E]vidence of mental abnormalities which were of long standing existed, but that the mental abnormalities did not interfere with the [defendant’s] knowledge of what was going on at the current time or with his ability to cooperate with his counsel.” The doctor described defendant as suffering from a latent schizophrenic reaction, and that defendant’s symptoms were consistent with the predicament in which he then found himself. Defendant argues that this evidence, as well as other information in the record about his background, discloses he could not have freely and voluntarily entered a plea of guilty on May 15, 1968, or object to the imposition of sentence on May 24; and since he could not appreciate his position, counsel should have sought additional psychiatric sources for the purpose of ascertaining defendant’s mental condition at those crucial times. On the basis of the record before us, we believe defendant’s argument to be patently without substance.
In this jurisdiction the sanity of an accused, for the purpose of being placed on trial, is determined by his present ability to comprehend his position, understand the nature and object of the proceedings against him, and to conduct his defense in a rational manner. Thus, if the defendant is capable of understanding the nature and object of the proceedings pending against him, if he comprehends his own condition with reference to such proceedings and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound. (K. S. A. 1968 Supp. 62-1531; State v. Childs, 198 Kan. 4, 422 P. 2d 898; Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197.)
As previously indicated, in April 1968 a sanity commission found the defendant sane and competent to stand trial, although at the time he was suffering from a mental illness described as latent schizophrenic reaction. The record is void of any suggestion that there had been a change in his mental condition at the time of his pleas or when sentence was imposed. Absent any showing that counsel had knowledge of other relevant facts not brought to the attention of the commission that would give him reason to believe there was a real doubt concerning the sanity or mental ability of the accused to comprehend his position or assist in his defense, counsel was under no obligation to pursue the matter further. Nor was counsel derelict in any professional sense in allowing his client to plead guilty under the circumstances. As indicative of Mr. Crow’s diligence in pursuing his client’s cause, we note that the full nature of defendant’s mental problems was brought to the court’s attention by defense counsel at the hearing on sentence and may well have been a mitigating factor, in view of the sentence actually imposed on the murder charge.
The second prong of defendant’s claim of ineffective assistance of counsel is equally without merit. The motion to suppress filed by Mr. Crow was directed to the statements given by defendant shortly after his arrest, and also the murder weapon recovered by the police as a result of information given them by the defendant. A full evidentiary hearing was held, and the question of whether the statements were voluntarily given was thoroughly explored. In addition, defense counsel prepared and submitted a comprehensive brief in support of his contention that the statements and weapon were constitutionally inadmissible. After the court overruled the motion, the defendant was placed in the position of going to trial, with the very real possibility that the evidence sought to be suppressed would be used against him. At this point he was faced with the decision of whether or not to plead guilty. Which course of action would be a greater risk was a matter to be determined by defendant after consultation with his attorney. Both defendant and Mr. Crow were familiar with the evidence in possession of the state, as disclosed at the preliminary hearing. Further, the facts developed at the hearing on the motion to suppress left no doubt that the case fell squarely within the felony murder rule and that evidence of guilt was overwhelming. The assertion of ineffective assistance of counsel cannot be sustained by the mere fact the decision to plead guilty was made one day after the motion to suppress was denied. Before accepting defendant’s pleas of guilty, the trial court went to great lengths in inquiring about their providency and defendant’s understanding of his rights. From the colloquy shown in the record we are satisfied defendant had conferred fully with his attorney and the pleas were freely and voluntarily entered with full knowledge of the probable consequences. Defendant chose to plead guilty, and in doing so may well have taken into consideration the possibility that the death penalty would not be imposed. He gambled and won; hence, he is not now in a position to urge that his counsel was ineffective and failed to attain the desired results. Even had the strategy adopted proved unsuccessful, defendant cannot be heard to complain. In Brown v. State, 198 Kan. 527, 426 P. 2d 49, this court stated:
“. . . [W]here an indigent defendant is represented by counsel, and after consulting with appointed counsel enters a plea of guilty to the charge or charges . . . the strategy adopted is his own choice and he cannot be heard to complain on appeal if, upon adopting such trial strategy, he fails to attain the desired result. . . .” (p. 530.)
Defendant acknowledges our rule that where an accused pleads guilty he is deemed to have waived irregularities which may have occurred in the proceeding prior thereto (State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99), and thus, whether a confession would have been admissible at trial is no longer relevant (Allen v. State, 199 Kan. 147, 427 P. 2d 598). Nevertheless, defendant argues the trial court’s ruling on the motion to suppress was manifestly erroneous, and suggests Mr. Crow was derelict in not taking an immediate appeal before permitting his client to plead guilty. In this jurisdiction we have no procedure for an intermediate appeal of this nature. Whether the ruling could have been tested in any other way, we need not decide. The failure of counsel to seek review of the trial court’s decision cannot, under the circumstances, be charged as ineffective assistance of counsel. Moreover, there was abundant evidence to sustain the trial court’s ruling on the motion.
Mr. Crow is an active member of the bar of this state, thoroughly grounded and experienced in the trial of criminal cases. Any action or inaction taken by him must be charged to strategy rather than ignorance of the law. After careful examination of this record we can scarcely imagine a criminal case where an accused received more adequate and professional representation by his attorney than that accorded the defendant here. The effective assistance of counsel cannot be equated with the successful assistance of counsel. (Johnson v. State, supra.) The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. (Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. denied, 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) The record establishes that Mr. Crow diligently and faithfully performed his duties as defense counsel throughout the entire proceedings. Under all the circumstances, defendant’s accusations that he was denied the effective assistance of counsel must be regarded as utterly frivolous and irresponsible.
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The opinion of the court was delivered by
Harman, C.:
This is a workmens compensation case arising out of the death of Lionel D. Otta. Claimants, his widow and minor children, have appealed to this court from the trial court’s order denying compensation.
During a rainstorm on June 9, 1965, Otta and one Walter R. Ruehler were killed on the Kansas Turnpike near Wichita when the truck they were driving in a southwesterly direction struck a bridge abutment. The truck was owned by respondent Leslie L. Johnson of Colby, Kansas, and was en route between Scandia, Kansas, and either Altus or Alva, Oklahoma. The accident occurred approximately two and one half miles northeast of the South Wichita turnpike interchange.
Following the death claimants filed their application for hearing and claim for workmen’s compensation, alleging Otta was an employee of respondent Johnson and that the State Automobile and Casualty Underwriters, a corporation, was Johnson’s insurance carrier for workmen’s compensation.
From the inception of the litigation the respondent Johnson and his alleged insurance carrier have taken contrary positions on most issues. Generally, Johnson has agreed with claimants’ contentions and the insurance company has opposed them. The latter has also denied it was in fact a carrier of workmen’s compensation insurance on Johnson’s behalf.
After the stipulations of the parties at the hearing before the workmen’s compensation examiner, the issues remaining included the following. Whether or not the relationship of employer and workman existed at the time of decedent’s accidental injury; whether decedent’s death arose out of and in the course of his employment; whether the parties were governed by the Kansas workmen’s compensation law, and whether State Automobile and Casualty Underwriters had workmen’s compensation insurance coverage on Johnson’s business.
After extended hearing the examiner made findings of fact favorable to claimants on the disputed issues and awarded them compensation accordingly. No review of the award by the workmen’s compensation director was requested and it was automatically approved by the director. The award was then appealed by State Automobile to the district court of Sedgwick county. That court made extensive findings of fact adverse to claimants and denied compensation. Included in these findings was one that there was no contract of insurance coverage between Johnson and the insurance company on June 9, 1965. Claimants have now appealed to this court.
The only matter urged in the brief filed in this court by appellee Johnson is that the trial court erred in its finding on insurance coverage; however, he took no cross-appeal upon this ruling and it is not reviewable at his behest. Claimants do raise the issue in their appeal.
Appellants present a procedural point which should be dealt with first. They assert the district court of Sedgwick county was the wrong forum for the appeal, arguing it should have gone to and been decided by the district court of Thomas county because Otta and Johnson resided in that county and the alleged contract of employment was made there. The point is not well taken. In Russell v. Lamoreaux Homes, Inc., 198 Kan. 447, 424 P. 2d 561, the applicable statute, then K. S. A. 44-556, was construed and it was held an appeal from the director’s decision is to the district court of the county in which the accident occurred. This accident occurred in Sedgwick county.
The trial court found Johnson was not operating a “motor transportation line” as contemplated by K. S. A. 44-505; that prior to June 9, 1965, he had not filed an election to come under the workmen’s compensation act and had not qualified as a self-insurer; that certain named individuals (not including Otta or his companion Buehler) were not employees of Johnson on June 9, 1965; that on June 9, 1965, Johnson did not have five workmen employed by him in the trucking business, and that at the time of Otta’s accidental injury and death he had substantially deviated from the normal route of travel for no reason connected with his employment. The trial court made numerous findings on the question of insurance coverage for workmen’s compensation and concluded none existed on June 9, 1965. The court also concluded Otta’s accidental injury and death did not arise out of and in the course of his employment, and that Otta and Johnson were not covered by the provisions of the workmen’s compensation act.
Several propositions are embraced in the trial court’s conclusion the parties were not under the compensation act and further evidence should be recited to clarify the matter at issue. The evidence in some respects was inconclusive, inconsistent or conflicting and some was subject to different interpretations. Upon appeal it must be considered in the light most favorable to the prevailing party in the trial court.
Johnson had been in the trucking business at Colby for several years. He held various kinds of licenses and permits which authorized him to haul certain kinds of commodities in particular areas of the state and the United States. At various times he owned certain trucks and trailers and he leased others under a profit-sharing agreement. Some of Johnson’s drivers were truck owners who could not afford to purchase the necessary governmental permits. The lease agreement permitted them to operate under John son’s permits and use his trailers when necessary but they remained independent contractors in the operation of the trucks and were so carried on Johnson’s bookkeeping records prior to June 1, 1965. These drivers were permitted to solicit their own business. Johnson collected the gross revenue for hauling done by these drivers, deducted a percentage for himself and remitted the balance to the driver-owners. Johnson also collected the revenue for hauling done by his own trucks. Drivers of these trucks were paid a percentage of the gross earnings of the trucks. The percentage varied from twelve to twenty per cent depending on whether there were one or two men working on the truck. Johnson had no control over the drivers as to how, when or in what manner hauling jobs were done and was interested only in the result. Drivers paid their own expenses, taxes and insurance. Prior to June 1, 1965, all drivers were expressly carried on Johnson’s books as independent contractors or subcontractors and not as employees. Johnson arranged this relationship pursuant to legal advice and all drivers were informed of and understood the arrangement. There were no deductions for or reporting of income tax, payroll tax or F. I. C. A. payments.
Prior to June 1, 1965, Johnson carried liability, collision and cargo coverage insurance with State Automobile, such insurance being written by a local independent agent at Colby. He also carried accident insurance on the drivers but had not carried workmen’s compensation insurance and had not been under the workmens compensation act. The drivers testified they paid their own accident insurance. Johnson’s collision experience had not been good, several accidents having occurred. Because of this certain credits were forfeited on a renewal and his premium rate for collision insurance was going to be higher for the year commencing June 1, 1965, and he was so advised about May 15, 1965. Johnson commenced shopping around for cheaper insurance. He consulted an agency in Wichita but made no mention of workmen’s compensation insurance. He consulted several times with State Automobile’s local agent at Colby and mentioned workmen’s compensation but made no contract. Finally, on the afternoon of June 1 he held his trucks up until he had told the agent he wanted “the whole works, workmen’s compensation, collision and everything” and the agent had responded, “Consider yourself covered”, and Johnson had thereafter released the trucks. After June 1 the local agent communicated several times with State Automobile respecting Johnson’s insurance, both by telephone and letter, but did not mention workmen’s compensation coverage until after the June 9 accident. No premium had been calculated or paid and no election to come under the workmen’s compensation act had ever been filed. A driver testified Johnson was going to deduct any premium for workmen’s compensation from the money to be paid the driver.
After June 1, 1965, no change was made in any way in the method of operation of the trucks. Johnson’s records were kept in the same way and no deductions were made for F. I. C. A. or tax withholding. The business continued to be operated on the same basis as before.
On June 1, 1965, Johnson owned two trucks and had leased one from a Leroy Bell. On the fatal trip Otta and his companion were driving one of the trucks owned by Johnson. At the same time Johnson was driving another and could have had a helper with him. Bell was on a trip to the far west and was being assisted by his brother, a school teacher. Bell was paying the wages for his relief driver or helper out of his percentage of the proceeds turned back by Johnson. The trial court made specific findings of fact neither Bell nor his brother was an employee of Johnson. There was testimony from which the trial court could find no others were employed by Johnson in the trucking business at this particular period although others were mentioned as having been associated on a part time basis at other periods of time. A woman who had been working part time as bookkeeper for him had left the state of Kansas prior to June 1.
The trial court specifically found Johnson did not have five workmen employed by him. Without further detailing its import, we are bound to say the record contains substantial evidence supporting that finding, and the finding is binding and conclusive on appeal. Conceding for the sake of the argument that Otta and Buehler might have been treated as employees, there were not three others shown to be such. Bell was shown to be an independent contractor who hired and paid his own employees when needed. The prime consideration in the so-called leasing agreements in the evidence appears to have been use by others of Johnson’s licenses and permits, resulting in an independent contractor relation in fact and in law.
Treating Johnson’s business as a motor transportation line as contemplated by K. S. A. 44-505, despite the trial court’s ruling to the contrary, an election to come under the compensation act not having been filed, it was incumbent upon the appellants under the then existing law (K. S. A. 44-507) to show that five workmen were employed at the time of the alleged accident (Thorp v. Victory Cab Co., 172 Kan. 384, 240 P. 2d 128; Bratcher v. Royse, 185 Kan. 589, 345 P. 2d 648). Appellants’ failure to sustain this burden alone precludes them from recovery of compensation and renders determination of the other matters urged upon appeal unnecessary.
The judgment of the trial court is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Wyandotte County, Kansas, sustaining the action of the board of county commissioners which denied an application for a “special permit” to construct and operate a mobile homes park at 88th and Kaw Drive in Wyandotte County, Kansas.
The primary question on appeal concerns the reasonableness of the action taken by the board of county commissioners.
This is not strictly an action to secure “rezoning” of a tract of land. The Wyandotte County zoning regulations adopted by the board of county commissioners have a provision that requires a “special permit” for the operation of an auto truck park, junk yard or a “mobile home park.” While this case involves only the issuance of the “special' permit” and not the rezoning of land, the same rules of law apply in reviewing the administrative proceeding. (See K. S. A. 19-2901, et seq.; and Scherrer v. Board of County Commissioners, 201 Kan. 424, 441 P. 2d 901.)
By a unanimous vote the Wyandotte County planning board after considering the matter at two hearings approved the application for a “special permit” and recommended that it be granted on the ground “the County is in need of more residences and could use the additional facilities.”
The board of county commissioners of Wyandotte County considered the matter at two meetings and unanimously denied the application for a “special permit,” thereby refusing to follow the recommendation of the county planning board. Thereafter the applicant requested a rehearing before the board of county commissioners, and after granting a hearing the request for a “special permit” was again denied.
The applicant then filed an action in the district court under the provisions of K. S. A. 1969 Supp. 19-2926 to have the reasonableness of the action of the board of county commissioners determined.
The journal entry filed in the trial court on the 22nd day of April, 1967, discloses that Textilana Nease, Inc., a corporation, and Albert C. Becker were permitted to intervene as parties defendant, and the trial court thereafter denied the application of the plaintiffs to have the action of the board of county commissioners declared unreasonable, arbitrary and capricious. Hence this appeal.
The trial court after hearing the evidence presented by the parties and after examining the exhibits introduced found as follows:
"That plaintiff Arthur Creten is the record owner of the real estate concerned in this action generally described as follows, to wit:
A 75 acre tract on the East side of 88th Street and South of K-32 highway and South of the Union Pacific right-of-way, being identified as Tract No. 526 A-1 containing 35 acres and Tract No. 517 A-1 consisting of 40 acres;
and that A-1 Mobile Homes Village held an option to purchase said real estate. That die plaintiffs, in August, 1967 made application to the Board of County Commissioners of Wyandotte County, Kansas for a special permit for the installation of a Mobile Homes Park on the real estate above described. That on the 3rd day of November, 1968 said application was approved by the Planning Commission of Wyandotte County, Kansas, and said recommendation was directed to the Board of County Commissioners, which board, after a hearing and a view of the property concerned overruled said Planning Commission and denied said permit on the 20th day of November, 1967. That upon motion of plaintiffs for a rehearing by said commissioners, said board again denied such permit on the 4th day of January, 1968, stating that no new evidence had been presented which would cause said board to reverse its decision. That the evidence upon which the preceding findings have been made was undisputed by the parties hereto.
“The court finds from the evidence that the major access to the property concerned intersects with the mainline of the Union Pacific Railroad, such situation constituting a hazard detrimental to the establishment of a mobile home residential area on subject property.
“The court further finds that the Textilana Nease Chemical Company to the immediate West of subject property, emits unpleasant odors and maintains a lagoon of water adjacent to said plant which is a residue of the chemical processes of said company, all of which would constitute a hazard and nuisance to a Mobile Home Park on plaintiff’s real estate.
“The court further finds that the real estate concerned is subject to overflow of water and that as a result water stands on said property.
“The court further finds that the property concerned has a heavy industrial zoning classification and that it would be unreasonable to establish 500 families in said industrial area under the conditions heretofore found to exist with reference to this specific property.
“The court further finds that a large protest petition was signed and filed by persons living and owning property in the vicinity of the real estate concerned. The Court finds that from the evidence that although the reasons for which said County Commissioners voted against the issuance of said permit did not appear in the minutes of said commissioner’s meeting that said matters had been discussed by said commissioners in executive session.
“The court finds that the action of the County Commissioners of Wyandotte County, Kansas, in denying the permit concerned was a reasonable and proper exercise of their administrative authority, and that such action was in no wise unreasonable, arbitrary or capricious.”
The appellants, Arthur Creten and A-1 Mobile Homes Village, Inc., first contend the board of county commissioners, sitting as an administrative body, failed to make specific finding of fact or give any explanation to justify its conclusion in overruling the action of the county planning board.
The appellants rely on Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, for the proposition that administrative bodies must make findings of fact upon which they rely to arrive at their decision.
While it is true courts would be materially assisted in the review of decisions by administrative agencies if such agencies stated the reasons for their decision, this requirement has not been held mandatory by our decisions. The case upon which the appellants rely involved action by the state corporation commission which had promulgated and adopted its own rules. These rules had been published and had the force and effect of law. The question there posed was whether the commission s order complied with its own rules. The court found the commission s rules of practice and procedure, particularly Rule No. 81-1-232, provided that the commission should make a summary of the evidence and findings of fact and conclusions of law. In that respect the corporation commission had failed to conform to its own rules, and the case was remanded to the district court with instructions to issue an order setting aside the order of the state corporation commission, and to remand the case to the commission for further proceedings consistent with the court’s opinion.
The decision in Kansas Public Service Co. v. State Corporation Commission, supra, does not control the point here asserted by the appellants. There is nothing in the statutes of Kansas pertaining to zoning procedure by boards of county commissioners which even approaches the rule of the Kansas corporation commission, basically, the statute provides that the board of county commissioners must make a decision, and in the exercise of its discretion in zoning matters its decision must be reasonable. It further provides for an appeal if, in the opinion of the person or persons affected, that decision is unreasonable. (K. S. A. 1969 Supp. 19-2926.)
The record contains the testimony of the three county commis sioners of Wyandotte County relative to this application for a “special permit.” All three commissioners testified they voted against the application for a “special permit,” stating among the reasons:
1. That a very dangerous unprotected railroad crossing had to be crossed to approach the property concerned.
2. That there was a stagnant odorful lake or lagoon maintained by the chemical company immediately adjacent to the land in this case.
3. The chemical plant itself on the real estate adjoining the property could operate as a nuisance to persons living in mobile homes.
4. That the land involved was located adjacent to the river, and that the river overflows on the land and that when the Commissioners inspected the property water was standing on same.
5. That there was overwhelming protest against this project from the immediate area in which the land was located, and that all adjoining owners protested.
One of the county commissioners testified the minutes of the county commissioners’ meeting when the decision was made did not contain all of the dialogue at the meeting. It was disclosed the commissioners mentioned the reasons why the petition should be denied in discussing the matter.
The appellants next contend the board of county commissioners, in establishing a regulation applicable to the appellant Creten’s property, was so restrictive, unreasonable and unfair that it constituted arbitrary action.
To support this charge the appellants rely upon testimony of Mr. Creten to the effect that he has owned the property in question for some twenty or twenty-five years; that he has retired and discontinued farming because of age and economic reasons; that he has an option to sell the seventy-five acres at $1,900 per acre, subject to obtaining the “special permit” in question for a mobile homes park; and that it is zoned for heavy industrial purposes and has remained in this zoning classification since November 12, 1943. Thereupon it is argued the board of county commissioners denied the application for a special permit, without reviewing this restriction on the appellant Creten’s land and in failing to give consideration to the change in land use. This, it is said, “constitutes inaction or omission which contribute to an unreasonable restriction on the property involved.”
The appellant Creten s evidence tended to show his land had a value of $500 per acre for agricultural use, and $1,500 to $2,500 per acre for mobile homes use. There was testimony of real estate appraisers that the highest and best use for the appellant Creten’s land would be for a mobile homes park.
Another expert testified there were twenty thousand acres of land in Wyandotte County zoned for heavy industry that have never been used for such purpose, and that such zoning regulation constitutes an unrealistic restriction on the use of the land. The appellants’ evidence further showed a need for additional medium housing, and that there has been a significant increase in the required number of mobile homes to the point where they constitute a very significant portion of new family housing starts.
The appellants also rely upon the fact that a mobile homes village at 59th and Kaw Drive by A-1 Mobile Homes was established where the zoning was heavy industrial, and a special permit was granted approximately five years ago. This location is approximately twenty-nine blocks away from the property in question.
Based upon the appellants’ evidence, they argue the refusal to grant a special permit for a mobile homes park at this location is discriminatory, inequitable and contributes to the inescapable conclusion this was unreasonable action on the part of the county commissioners.
No question is raised by the appellants as to the admissibility of evidence and the manner in which the trial court conducted the proceeding. Generally, it may be said the proceeding was conducted consistent with the prior decisions of this court. (Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; and Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456.)
An expert witness for the appellees testified the land concerned herein was worth $1,500 to $2,500 per acre for mobile home use, but for industrial use was worth $15,000 per acre. This testimony would tend to indicate the industrial classification for the land owned by Creten was not only reasonable, but that he was not the victim of confiscation because of the continued reservation of his land for industrial use by the county.
Generally it may be said the evidence presented at the trial sustained the findings of the trial court.
In actions of this nature courts are limited to passing on the reasonableness of the action taken by the county commissioners. The plaintiff in such an action has the burden of establishing his cause of action by a preponderance of the evidence, and it is incumbent upon those attacking the action of the governing body to show the unreasonableness of such action. A court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. There is a presumption that the governing body acted reasonably, and it is incumbent upon those attacking its action to show the unreasonableness thereof. (Bodine v. City of Overland Park, supra; and Keeney v. City of Overland Park, supra.)
There is no testimony in the record that the industrial area concerned could not be feasibly developed for industry. The fact that large tracts of land had been reserved for industrial use does not show the action of the county commissioners in denying the permit unreasonable. The land in question lies adjacent to the river and adjacent to the main line of the Union Pacific Railroad and is ideal for industrial development. The planning consultant for the city of Kansas City, Kansas, who was a witness for the appellants, testified:
“The present practice of placing these courts in industrial areas raises some serious questions; if we subscribe to the belief that all living units should be provided with reasonably good environment, the ability to attain this environment in an industrial area is seriously limited, if in fact possible at all.”
It is not confiscatory to adopt a plan for land use development and to maintain that plan for development in an area where such development is possible. To abandon such plan for a single project in light of all the circumstances presented by the evidence herein is not required. Here abandonment of the plan would create a situation where homes and children would be placed in an industrial area next to a chemical plant which emitted odors and discharged chemicals into a stagnant lagoon. The area could be reached only by crossing an unprotected railroad crossing which passes forty-one trains in a given day; and the area is subject to overflow waters from the river.
The action of the county commissioners was not unreasonable because it had previously issued a special permit for a mobile homes park several miles east of the property in question under conditions which were dissimilar to those here presented.
Upon the record presented in the instant case, we cannot say the action taken by the board of county commissioners was unreasonable. The evidence supports the findings of the trial court, and they in turn support the action of the board of county commissioners.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
Following a full evidentiary hearing in a proceeding brought under K. S. A. 60-1507 petitioner was denied relief. He appeals from that ruling.
Petitioner, Archie Mathues, was charged in two counts with obtaining money under false pretenses as defined by K. S. A. 21-551. The substance of the charges was similar to that in the related case of State v. Paxton, 201 Kan. 353, 440 P. 2d 650 (supplemental opinion, 201 Kan. 607), cert. den. 393 U. S. 849, 21 L. Ed. 2d 120, 89 S. Ct. 137.
On November 10, 1966, petitioner appeared before the county court of Lane county with his retained counsel, Harold E. Jones, of Dighton. A preliminary examination was waived, and petitioner was bound over to the district court for trial.
On December 7, 1966, petitioner appeared before the district court. The following proceedings were had;
“APPEARANCES
“The State appears by Mr. John S. Elting, County Attorney of Lane County, Dighton, Kansas.
“The defendant appears in person and by Mr. Harold E. Jones, Dighton, Kansas.
“The Court: Let the record show this is Case No. 310, the State of Kansas vs. Archie Mathews, also known as A. L. Mathews. The State appears by John S. Elting, County Attorney. The defendant appears in person, in custody of the Sheriff, and without an attorney who has been formally appointed in this court.
“Mr. Jones: No, he has employed me.
“The Court: You have been employed?
“Mr. Jones: Yes.
“The Court: So he appears by Harold E. Jones, his privately empoyed attorney.
“Are you ready for arraignment?
“Mr. Jones: Your Honor, the defendant will waive his arraignment, formal arraignment, at this time.
“The Court: Mr. Mathews, step forward here. Now, Mr. Mathews, you are charged in this Information with tvyo felony counts of obtaining money under false pretenses, as defined by Section 21-551 of the General Statutes of 1949. A felony is a crime for which you can be sent to the penitentiary; do you understand that?
“Defendant: Yes sir.
“The Court: It’s a very serious matter. These two counts charge that you cheated and defrauded one Dorothy Ehmke, in the first count, and also a second count that you defrauded her.
“Mr. Jones: That’s one matter I forgot about and I was going to talk to the County Attorney, and possibly we can do it at this time, this second count which was charged, he never had a preliminary hearing on Count Two. They changed the names of the parties with whom he was alleged to have defrauded and I was wondering if it would be satisfactory to plead guilty on the one count, since there has been no preliminary hearing on the second.
“Mr. Elting: That’s all right with us.
“The Court: As I understand it, the State is willing to dismiss the second count.
“Mr. Elting: Yes, on the defendant pleading guilty.
“The Court: Now that clarifies the situation, Mr. Mathews; you have just one count on which you could be sentenced to the penitentiary, and the sentence would be the same sentence as the grand larceny sentence, under Section 21-534, which is a sentence of not more than five years. Now your attorney here has offered to waive the formal arraignment; that means having the County Attorney read this Information to you, so you would know exactly what you are charged with. Do you understand that?
“Defendant: Yes.
“The Court: Do you wish to waive formal arraignment?
“Defendant: Yes, sir.
“The Court: I will accept your waiver of formal arraignment. How do you wish to plead to this charge, guilty or not guilty?
“Defendant: Guilty.
“The Court: You wish to plead guilty?
“Defendant: Yes, sir.
“The Court: Is this in accordance with your advice, Mr. Jones?
“Mr. Jones: Yes, sir.
“The Court: You have been privately employed?
“Mr. Jones: Yes, sir.
“The Court: You have spent quite some time talking to this man, I understand.
“Mr. Jones: I have.
“The Court: Mr. Mathews, do you understand that if you choose to plead not guilty to this charge you would be entitled to a trial by jury?
“Defendant: Yes, sir.
“The Court: And that before that jury could convict you they would have to find you were guilty beyond a reasonable doubt; you wouldn’t have to prove you were innocent, the State would have to prove you were guilty? Do you understand that?
“Defendant: Yes, sir.
“The Court: That witnesses could be called and Mr. Jones would appear and try the case for you; you understand that?
“Defendant: Yes, sir.
“The Court: Knowing all these things, you still wish to plead guilty?
“Defendant: Yes, sir.
“The Court: Are you pleading guilty because anyone has made any promises to you or any threats to you or anything like that?
“Defendant: No, sir.
“The Court: No one told you I’m going to grant you probation or anything like that?
“Defendant: No, sir.
“The Court: There haven’t been any deals made?
“Defendant: No, sir.
“The Court: Are you pleading guilty because you actually did this?
“Defendant: Yes, sir.
“The Court: Did you actually obtain a check for $878.00 from this Dorothy Ehmke?
“Defendant: Yes, sir.
“The Court: And did you get that check by telling her there were powder post beetles when you knew that that wasn’t so?
“Defendant: Yes sir.
“The Court: Under those circumstances I’m going to accept your plea of guilty to obtaining money under false pretense as defined by Section 21-551, General Statutes of 1949. Now, is there any legal reason why sentence should not now be pronounced?
“Mr. Jones: No reason, Your Honor.
“The Court: Does the State know of any?
“Mr. Elting: We have no reason.
“The Court: Mr. Mathews, it will be the sentence of this Court under the provisions of Section 21-534 of Kansas Statutes Annotated that you be confined at hard labor at the Kansas State Penitentiary in Lansing, Kansas, for a term not exceeding five years. How long have you been in jail?
“Defendant: I don’t know; about seven weeks, I think.
“Mr. Jones: Do you know the exact date?
“Sheriff Paul Marsteller: Your Honor, it’s 10/28, 28th day of October.
“The Court: All right, I am going to further order that this sentence begin effective as of October 28th, in accordance with the applicable statute, so that he will have credit for the time he’s spent in jail from October 28th. Is there anything further?
“Mr. Jones: The defendant has nothing further.
“Mr. Elting: The State has nothing further.”
(Although in the foregoing proceedings—which are quoted from the Record on Appeal—petitioner’s name is shown as “Mathews” —we were advised by counsel at the oral argument of this appeal that the correct spelling of his name is “Mathues”—and that there is no question as to identity.)
On October 18, 1968, petitioner, pro se, filed a motion to vacate the judgment and sentence, alleging inadequate representation by his retained counsel, Mr. Jones. Among other things, the motion charged that Mr. Jones was guilty of a conflict of interest and that he had failed to advise petitioner of his right to appeal.
The court ordered an evidentiary hearing, and appointed Mr. Ward E. Loyd, an attorney of Garden City, to represent petitioner.
The matter came on for hearing on December 19, 1968, with petitioner present in person and by counsel.
The evidence of petitioner consisted solely of his own testimony.
The state’s evidence consisted of the testimony of Mr. Jones.
At the conclusion of the hearing the court ruled:
"The court after examining the papers on file in said action together with the transcript of the court proceedings pertaining to the taking of the plea of guilty of the defendant in case No. CR 310 in said court and after listening to argument by petitioner’s counsel and reading the brief submitted by petitioner’s counsel finds as follows:
“1. The movant was fairly and very effectively represented by his privately employed counsel; that he was given excellent advice and excellent results were obtained, and that privately employed counsel has in no way violated any duty or obligation to the movant, and in fact did far more than is required of counsel.
“2. That the mere fact that movant’s privately employed counsel in the criminal proceedings in CR 310 in the District Court of Lane County, Kansas, Harold E. Jones; name had been written in by the opposite political party for the office of County Attorney did not cause any conflict of interest; that the fact that Mr. Jones was City Attorney did not in fact cause any conflict of interest or in any way affect the representation given the petitioner and movant.
“3. That the movant, Mr. Mathues, at the time of his arraignment and sentence, plead guilty in open court, after the court had made every effort to ascertain by stating the facts which the defendant had done in committing the crime charged in the information and to determine whether or not the defendant in Case No. CR 310 and the movant herein really intended to plead guilty. The court finds that the plea of Archie Lee Mathues was fairly made and fairly accepted and that there has been no error or irregularity of any sort in this matter. That the motion herein filed on behalf of movant by and through the authority of, and pursuant to K. S. A. 60-1507, is expressly overruled and denied.”
Petitioner has appealed.
The gist of petitioner’s argument—although variously stated—is that the representation afforded him by Mr. Jones was, at best— merely perfunctory—and that the court erred in not so finding.
It is unnecessary to detail the testimony of petitioner and Mr. Jones at the evidentiary hearing. The judge at that hearing also was the sentencing judge in 1966 when petitioner entered his plea of guilty, and he simply did not believe petitioner’s uncorroborated statements with respect to the alleged inadequate representation by Mr. Jones. The court’s findings were fully supported by the record and the testimony of Mr. Jones.
Attacks on counsel have become quite frequent in the past few years. No one denies that the right to counsel means the right to the effective assistance of counsel (Smith v. State, 199 Kan. 293, 429 P. 2d 103), and that is what petitioner was found to have received in this case. The record of the proceedings when petitioner entered his plea of guilty is strikingly similar to that in Sharp v. State, 203 Kan. 937, 457 P. 2d 14, in which a majority of this court held that the denial of an evidentiary hearing was not erroneous. Here, however, the court did grant an evidentiary hearing!
We do not intend this as criticism of petitioner’s present appointed counsel, and what is said is not to be construed as completely foreclosing all inquiry into the facts and circumstances surrounding a plea of guilty. But—under a record such as this—which shows a painstaking effort by the trial court to ascertain whether a plea of guilty was knowingly, understandingly and voluntarily made—all in full compliance with the rule of Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (cited in the Sharp case)—we believe there should be a finality somewhere along the line and that counsel should not be subjected to the harassment which is evident here. Further—as to the contention petitioner was not advised of his right to appeal following his plea of guilty—the question might well be asked—what was there to appeal from?
The record here—including the formal allocution in compliance with K. S. A. 62-1510—speaks for itself. The findings denying relief under K. S. A. 60-1507 are fully supported by the evidence. The appeal is without merit.
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The opinion of the court was delivered by
Fatzek, J.:
The principal questions presented are whether the promise of Marjorie E. Walton comes within our statute of frauds (K. S. A. 33-106), as a “special promise to answer for the debt, default or miscarriage” of her brother, Robert E. Kendall, and whether her deposit of $15,000 in a savings account in The Piqua State Bank constituted a valid pledge to secure an indebtedness to the bank.
The facts are not greatly in dispute. The plaintiff Marjorie E. Walton, is a young farm widow, and started helping her brother, Robert E. Kendall, financially, shortly after her husband’s death in 1964. She had advanced him approximately $69,000 prior to the transaction in controversy. Some of the money was used to enable Kendall to move his family to Yates Center, but, by far, the majority of the money was used to enable him to set up his TV and Appliance business in Yates Center and to meet his business expenditures, such as obtaining inventory, meeting his payroll, making good insufficient checks written by him, and his business obligations in general. All of those transactions were entered into by Mrs. Walton to help her brother establish his business. She had no primary motivation to benefit herself.
About the time Kendall started his TV and Appliance business in Yates Center, Mrs. Walton signed a guaranty agreement with General Electric Credit Corporation (GECC) to enable him to finance his inventory. In September, 1965, Kendall was substantially in debt to GECC and it was pressing him for payment. It had a security agreement on his inventory and was going to pick it up. As he had done in the past, Kendall sought his sister’s assistance. She loaned him $4,000 which he sent to GECC for the amount due. Between September, 1965, and October 14, 1966, Mrs. Walton advanced Kendall more than $22,000 on twelve different occasions to pay his creditors. Between the latter date and December 27, 1966, she advanced Kendall money for the same purpose on three other occasions, totaling at least $6,000. It was conceded her intention in making the loans was to enable Kendall to continue his financing arrangements, and to keep his inventory from being repossessed. The fact she guaranteed his indebtedness with GECC in no way influenced her decision.
The present controversy arises out of loans The Piqua State Bank made to Kendall on and subsequent to October 14, 1966.
Mrs. Walton’s petition alleged she deposited $15,000 in a savings account in the bank; that she demanded a return of the deposit but the bank refused her demand; that it claimed she was guarantor of certain sums it advanced to Kendall, doing business as Kendall’s TV and Appliance; that a copy of the purported guaranty agreement the bank was relying on was attached to her petition as Exhibit A; that the same was null and void having no legal effect whatsoever, and was in violation of K. S. A. 33-106; that said purported guaranty agreement failed to comply with the statute of frauds in that it was not completely in writing; that the same failed to state with reasonable certainty each party to the contract, either by his own name or by such a description as would serve to identify him, or the name or description of his agent; that it failed to state with reasonable certainty the terms and conditions of all the promises constituting the contract, or to whom the promises were made; that neither the amount guaranteed, nor whose debt was guaranteed, was stated in said purported agreement; that no reference was made by said wilting to the principal obligation, nor did the writing describe in any way the principal obligation, and that the purported guaranty was invalid since it was not supported by any valid consideration, and was not capable of being performed within one year. The petition further alleged misrepresentation and fraud on the part of the defendant, but no evidence was offered on this point. The prayer was that the purported guaranty agreement be declared null and void as being in violation of K. S. A. 33-106, and that plaintiff be permitted.to withdraw the $15,000 deposited in the savings account.
The bank answered, and filed a cross petition. It admitted Mrs. Walton deposited $15,000 in a savings account in the bank, and, except as otherwise admitted or explained, it denied generally and specifically the petition.
The bank alleged Kendall sought a loan totaling $25,000, which it was unable to make since he did not have sufficient security; that Kendall was told by Dreiling, as president of the bank, the loan could be made if the plaintiff would guarantee it and deposit $15,000 in a savings account to be held as a guarantee. It further alleged a meeting on October 14, 1966, between Mrs. Walton, Kendall, and Dreiling, and that Mrs. Walton offered to guarantee the loan to Kendall and presented a true copy of a financial statement she had given to another bank; that Mrs. Walton offered to sign a written guarantee and to deposit $15,000 in a savings account to guarantee repayment of the loan, conditioned upon her being entitled to write checks upon the Kendall TV and Appliance account to which the proceeds of the loan were to be deposited; that it accepted plaintiff’s offer, and made loans to Kendall on which the present balance due was in excess of $25,000; that the proceeds of the loans were deposited to Kendall’s TV and Appliance account and Mrs. Walton was authorized to write checks thereon; that Mrs. Walton deposited checks of the New England Life Insurance Company totaling $25,230.20, $20,000 of which was deposited in the savings account in the name of Marjorie E. Walton, and the bank remitted $5,230.20 to her; that as a part of the same transaction, plaintiff executed and delivered to the bank for the purpose of guaranteeing the loan, the LOAN GUARANTY AGREEMENT, a copy of which was attached to plaintiff’s petition. It further alleged a loan of $15,000 to Kendall on October 14, 1966, and that the proceeds were deposited in his TV and Appliance account; that on said date, Mrs. Walton drew a check for $138.45 on the TV and Appliance account, payable to GECC, and that on October 17, 1966, she drew a second check on said account in favor of GECC for $14,119.64, which was honored in due course by the bank.
The bank further alleged that on September 14, 1967, Dreiling wrote Mrs. Walton, advising he was concerned about Kendall’s loans and thought she should know about the matter as she was guaranteeing them. It further alleged the plaintiff replied to Dreiling’s letter, and on October 31, 1967, Dreiling, as president of the bank, made written demand upon Kendall for payment of his entire indebtedness to the bank within ten days, such indebtedness being in the sum of $25,390, plus interest, and evidenced by two promissory notes; that payment was not made by Kendall as demanded, and Dreiling, as president of the bank, wrote plaintiff on November 20,1967, enclosing a copy of the demand letter addressed to Kendall, and demanded that plaintiff, as guarantor of his indebtedness, make full payment of the loans; that plaintiff did not make payment, but instead, commenced this action. The prayer was that plaintiff take nothing, and that the bank have judgment against plaintiff on her guarantee in the sum of $25,390, plus interest and costs.
Mrs. Walton timely replied to the bank’s cross petition, specifically incorporating all the allegations and statements in her petition setting forth the reasons she contended the guaranty agreement relied upon by the bank was null and void, and she further alleged the purported agreement was “otherwise invalid.”
The record indicates a pretrial conference was held, but no pretrial order, if one was made, is specifically set forth. However, reference is made to “Preliminary Proceedings” which appears to be a summary of a pretrial order. The summary indicates the Piqua State Bank’s action against Robert E. Kendall, doing business as Kendall TV and Appliance, to recover on his indebtedness to the bank, should be presented concurrently with the instant case, and that his liability to the bank should first be determined. The bank admitted that without further explanation, Mrs. Walton would be entitled to judgment. The summary stated it was determined the bank had the burden of going forward with the evidence.
The summary further indicates that Mrs. Walton presented her motion for summary judgment; contending the bank relied upon the written guarantee which was not completely in writing and was null and void, being in violation of the statute of frauds for the reasons alleged; that parol evidence was not admissible to supply, explain, supplement or alter the incomplete writing, and that the bank wrongfully refused to surrender the $15,000 she had on deposit. The court ruled it would take the issue under advisement, and treat it as an issue of law in the case.
The issues were tried by the district court.
The bank established Kendall’s indebtedness upon the two promissory notes which were executed after a financial statement and a security agreement upon his inventory were obtained from him. The first note was in the amount of $15,000, dated September 12, 1967, and due October 12, 1967, bearing interest at 7 percent per annum; the second note was in the amount of $10,390, dated September 12, 1967, and due- October 12, 1967, bearing interest at 8 percent per annum. Both notes were signed by Kendall and were the last of his series of notes dating back to October, 1966, the preceding notes having been paid by renewals.
The trial then proceeded to the dispute between the bank and Mrs. Walton. Both parties offered evidence. Dreiling’s testimony with respect to the loan guaranty agreement was admitted over plaintiff’s objection that it was an attempt to supply, explain, supplement or alter the incomplete writing, and was in violation of the parol evidence- rule.
Following the trial, the district court found that the loan made to Kendall on October 14, 1966, and represented by the $15,000 note signed only by Kendall, was made in consideration of a “direct primary contractual agreement” entered into between the bank and Mrs. Walton from which transaction she received substantial benefit and therefore the agreement was not within the statute of frauds, citing Mastic Tile Div., Ruberoid Co. v. Moore Associates, 191 Kan. 266, 380 P. 2d 376. It further found that the deposit of $15,000 in the savings account was a “pledge” with sufficient delivery of possession and control by the bank to meet the requirements of a pledge of security, since the deposit could not be withdrawn without the consent of the bank upon presentation of a passbook. It further found that aside from a “primary original contract” with Mrs. Walton, the $15,000 note transaction was removed from the statute of frauds by performance of the bank in consideration of the pledge of security by Mrs. Waltons deposit of $15,000. It further found that the written loan guaranty agreement signed by Mrs. Walton was void, since it did not meet the requirements of the statute of frauds and was unenforceable, except with respect to that portion of the loan which was intended to pay the note of $5,000 held by the Fourth National Bank of Wichita on which Mrs. Walton was Kendall’s guarantor, and to that extent, the loan was to the benefit of Mrs. Walton and not within the statute of frauds. The court concluded the bank was entitled to retain the $15,000 on deposit in the savings account, and rendered judgment against Mrs. Walton for $20,000, plus interest.
We first turn to the court’s finding that the purported Loan Guaranty Agreement signed by Mrs. Walton does not meet the requirements of the statute of frauds. The holding of the district court in this respect was eminently correct. To be sufficient as a note or memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be explained in writing. The contract cannot rest partly in writing and partly in parol. In Clark v. Larkin, 172 Kan. 284, 239 P. 2d 970, it was held:
“A Memorandum, in order to be enforceable under the statute of frauds, may be any document or writing, formal or informal, signed by the party to be charged or by his lawfully authorized agent, which states with reasonable certainty (a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, (b) the land or other subject matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.” (Syl. ¶ 2.)
In Wing v. Mollett, 115 Kan. 116, 222 Pac. 88, this court quoted with approval from 27 C. J. 267, 268:
“ ‘To be sufficient as a note or memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be expressed in the writing. The contract cannot rest partly in writing and partly in parol. The general rule that a contract which is not entirely in writing is to be treated as a parol or verbal contract is applicable in determining whether the contract is within the inhibition of the statute of frauds. The memorandum must contain all the essential elements or material parts of the contract.’ ” (p. 118.)
See, also, Reid v. Kenworthy, 25 Kan. * 701, and Cassity v. Cassity, 147 Kan. 411, 416, 417, 76 P. 2d 862.
The document signed by Mrs. Walton is attached to the opinion as Appendix A. As will be noted, it does not name or otherwise identify the other party to the contract, or state whose debt was guaranteed, or the amount of the debt guaranteed, or in any way make reference to the principal obligation, or the terms or conditions of repayment, or the consideration, or the date of the contract.
A guarantor, like a surety, is a favorite of the law, and without further discussion of the point, we hold the loan guaranty agreement signed by Mrs. Walton lacked the essentials of a note or memorandum under the statute of frauds and was void and unenforceable.
Mrs. Walton contends there was no competent evidence to sustain the district court’s finding she entered into a direct primary contractual agreement with the bank, and that she was not personally liable on the loan made to Kendall for $15,000 on October 14, 1966.
In September, 1966, Kendall sought a loan of $25,000 from the bank, where he had previous dealings. He did not have sufficient security, and the loan was refused. He owed GECC approximately $15,000, and sought the loan because it was demanding he make his account current. Recause he had not done so, it had a truck at his store and was threatening to repossess his inventory. Mrs. Walton prevented GECC from picking up the inventory by assuring it she would see the obligation was taken care of.
On Friday, October 14, 1966, Kendall and Mrs. Walton met with Mr. Dreiling, in the bank, at approximately 4:30 p. m. The evidence was clear that at the meeting, Dreiling agreed with Mrs. Walton the bank would make loans to Kendall up to $25,000 if she would guarantee the loans and deposit $15,000 in a savings account to secure her obligation. To make certain Kendall had a line of credit established, and after being told by Dreiling it was not necessary for her to sign the $15,000 promissory note if she signed the loan guaranty agreement, Mrs. Walton signed the incompleted agreement which was kept by the bank, and she deposited a check for $25,230.20 in a savings account. The bank issued her a cashiers check for $5,230.20 which she took with her. Mrs. Walton was issued a passbook for the savings account which she still has in her possession, and the bank paid her interest on the account. Later, and with the consent of the bank, Mrs. Walton withdrew $5,000 from the savings account for a purpose hereafter noted.
A loan of $15,000 was made to Kendall that day and he alone signed the promissory note, which was due in six months. The proceeds of the loan were deposited in Kendall’s TV and Appliance checking account. The note was subsequently renewed without Mrs. Walton’s knowledge or consent. It was Mrs. Walton’s understanding that as a result of her guaranteeing the $15,000 loan, the bank would make additional loans of $10,000 to her brother, which were to be secured by the inventory of his store. She was not informed as to the amount of the loans; only that the bank’s limit was $25,500.
Prior to October 14, 1966, Mrs. Walton had cosigned Kendall’s $6,000 promissory note to die bank and she signed a signature card for his TV and Appliance account at that time. She later gave her brother a check to pay the note in full. Mrs. Walton wrote no checks on that account other tiian the two checks hereafter noted.
As indicated, Mrs. Walton had guaranteed Kendall’s indebtedness to GECC, and on October 17,1966, she wrote two checks on the TV and Appliance account in favor of GECC in the approximate amount of $15,000 in payment of Kendall’s indebtedness to that company. As a result, she was relieved of her secondary obligation to GECC as Kendall’s guarantor.
On October 14, 1966, Kendall owed other creditors besides the $15,000 to> GECC and his unsecured promissory note to the bank in the amount of $3,779.96, but he did not know how much. It was agreed he would return to the bank on Monday, October 17, 1966, when he ascertained the amount. He returned to the bank on Monday and was loaned $8,000 for which he signed a promissory note, and subsequently the bank loaned him an additional $2,000 for which he also signed a promissory note. The proceeds of both loans were placed in his TV and Appliance checking account and part of the proceeds was used to pay his unsecured note to the bank. Those two notes were later consolidated into the $10,000 note sued on, which was renewed and extended many times without notification, consent or ratification by Mrs. Walton. She tried to talk to Dreiling about those transactions several times, but he acted as if they were none of her business, and did not want to talk to her.
From the foregoing it will be observed that as a result of the oral agreement between the bank and Mrs. Walton on October 14, 1966, she became guarantor of Kendall’s indebtedness to the bank. This is evidenced not only by their oral agreement, but by Dreiling’s statement that it was not necessary for her to sign the promissory note if she signed the guaranty agreement; by Dreiling’s letter to Kendall demanding he pay his indebtedness in full, and, later, by his letter to Mrs. Walton making demand upon her for payment in full of Kendall’s indebtedness as his guarantor. The fact that one who has made a loan of funds does not assert a claim against a third person until he has failed to receive payment from the person who was principally obligated, indicates that the third person was not looked to primarily for payment and that whatever promise he made for payment is within the statute of frauds as a collateral obligation. (49 Am. Jur., Statute of Frauds, § 91, p. 449.) Moreover, the bank’s cross petition alleged that the $15,000 loan to Kendall would be made if Mrs. Walton guaranteed it and deposited $15,000 in a savings account. When the words of the oral agreement can have only one meaning, there exists no grounds upon which reasonable minds might differ and the question becomes one of law for determination by the court.
A guaranty is a collateral undertaking by one person to answer for the payment of a debt or the performance of some contract or duty in case of default of another person who is liable for such payment or performance in the first instance. (38 C. J. S., Guaranty, § 1, p. 1129.) In Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P. 2d 72, 58 A. L. R. 2d 1265, it was said:
“. . . A guaranty is a contract between two or more persons, founded upon a consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and, in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. Sewing Machine Co. v. Gibbons, 4 Kan. App. 237, 45 P. 946; 38 CJS, Guaranty, § 2; 24 Am. Jur., Guaranty, p. 873, § 2. The contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and is not an engagement jointly with the principal to do the thing. A guarantor, not being a joint contractor with the principal, is not bound like a surety to do what the principal has contracted to do, but answers only for the consequence of the default of the principal. The original contract of his principal is not his contract. Sewing Machine Co. v. Gibbons, supra . . (l. c. 114, 115.) (Emphasis supplied.)
In Hoag v. Boyle, 125 Kan. 436, 440,265 Pac. 61, the terms original and collateral promise are distinguished, and it is said that where the direct and leading object of the promise is to become the guarantor of another’s debt, the agreement is collateral, and, where made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing.
As indicated, and as a result of the meeting of October 14, 1966, Dreiling looked to Mrs. Walton to guarantee payment of the loan of $15,000 to Kendall. An oral promise to guarantee payment of another’s debt has but one definite and fixed legal meaning, and is therefore not susceptible to any construction other than that of clearly manifesting the promisor’s intention to answer for the debt or default of another. In this case, the intention of the parties was clear. Their agreement can be interpreted as having but one meaning, that is, Mrs. Walton stood in relationship to the bank as guarantor of Kendall’s indebtedness, and other evidence showing the surrounding circumstances and situation of the parties under which the promise was made, is not required to ascertain their intention.
The bank argues Mrs. Walton entered into the guaranty agreement merely to benefit herself, and the oral contract is sufficient. It cites and relies upon Higgin Mfg. Co. v. Bankers Mortgage Co., 128 Kan. 267, 277 Pac. 44; Mastic Tile Div., Ruberoid Co. v. Moore Associates, supra, and Calahan v. Ward, 45 Kan. 545, 26 Pac. 53. The cases are not in point. In the first place, they did not involve a guaranty. In the second place, they are clearly distinguishable.
In Higgin, supra, the plaintiff sold weather stripping equipment and installed it in a hotel and apartment building which was at that time in possession of the mortgage company as a mortgagee in possession. Following the work, the mortgage company wrote the plaintiff to the effect the statment for the weather stripping on the hotel would be paid “by us who hold the mortgage on this property,” and that “as soon as this statement is OK’d by Mr. Pearcy and he states that strips are on and the work is satisfactory to him, we are ready to pay your statement.” Clearly, the promise was an “original promise” in writing.
A reading of the Mastic Tile case, supra, discloses it has no application to the facts involved in the instant case. There, the defendant, Moore Associates, agreed in writing to make all checks payable jointly to Mastic Tile and to Custom Floor, and it was said that the written promise to the plaintiff was sufficient to take the case out of the statute of frauds. Likewise, in the Calahan case, supra, Mounts purchased groceries and the question presented was whether Ward made an original contract to pay for them. This court reversed, directing that the question whether the goods were sold to Mounts on his own credit, or on the credit of Ward, be submitted to the jury.
Circumstances can hardly be conceived which would induce a person to promise to answer for the debt or default of another which did not at the same time benefit the promisor, but the same benefit could equally have been the inducement for a collateral promise. The agreement between the bank and Mrs. Walton, having been one of guaranty only, the nature and effect of such agreement is not altered because Mrs. Walton received a benefit by being relieved of her secondary obligation to GECC as guarantor. The majority rule is that even if the guarantor-promisor receives some benefit from his promise, that fact alone is not enough to take the promise outside the statute of frauds. The same contention advanced here was made in Brown & Root, Inc. v. Gifford-Hill & Company, 319 F. 2d 65. The court rejected the argument, and said:
“The agreement of Brown & Root having been one of guaranty only, the nature and effect of such agreement is not altered because Brown & Root was interested in the resumption of the deliveries of gravel.
“If the statute of fraud[s] is held to apply only where a promisor guarantees the debt of another in a transaction in which the promisor is completely uninterested, the statute is effectively destroyed. Completely uninterested persons do not guarantee the debts of others.” (p. 69.)
See, also, 49 Am. Jur., Statute of Frauds, §§ 74, 75, pp. 426-430, and 37 C. J. S., Frauds, Statute of, § 21, p. 531.
In Citizens State Bank v. Schulte, 123 Kan. 119, 254 Pac. 381, it was said:
“. . . The existence of a consideration does not render the statute of frauds inoperative. A consideration is necessary to the enforceability of a contract whether oral or in writing, and its existence does not dispense with the need of written evidence to support a promise to pay the debt of another. The fact that the defendant was to derive some personal benefit from the deal would not of itself take his promise out of the operation of the statute of frauds. . . .” (l. c. 121.) (Emphasis supplied.)
It is the duty of one who contends an oral promise is outside the statute to show or establish facts taking the promise out of the statute. We are of the opinion the bank failed to sustain that burden. The record establishes that Mrs. Walton was guarantor of her brother’s debt to the bank and there is nothing to support the district court’s finding her promise was a “direct primary contractual agreement” entered into between her and the bank. Under tibe facts and circumstances, Mrs. Walton’s promise is within the statute of frauds and is unenforceable.
We turn to the legal question presented by the district court’s finding the deposit of $15,000 in the savings account was a pledge with sufficient delivery of possession and control by the bank to meet the requirements of a pledge of security as the deposit could not be withdrawn without consent of the bank upon presentation of a passbook.
No finding was made as to what underlying obligation the savings account was pledged to secure; Kendall’s debt, or Mrs. Walton’s guaranty. Be that as it may, we note Mrs. Walton made no written assignment or transfer of the savings account to the bank, nor did she deliver the passbook to it, so as to make the account available as a pledge of collateral security to the extent of the debt secured.
The appellant contends that K. S. A. 84-9-104 (k) specifically exempts any deposit, savings account, passbook, or like account maintained with a bank from provisions of the Uniform Commercial Code relating to seemed transactions, and that if she made a pledge of the savings account, its validity is to be determined by the rules of the common law. We agree. K. S. A. 84-9-104 reads in part:
“This article does not apply . . .
“(k) to a transfer in whole or in part of any of the following: . . . any deposit, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization.”
The section was designed to exclude certain security transactions from Article 9 of the Uniform Commercial Code. Paragraph 7 of the official U. C. C. comment following the section states that “[r]ights under life insurance and other policies, and deposit accounts, are often put up as collateral. Such transactions are quite special, do not fit easily under a general commercial statute and are adequately covered by existing law.” Further, that “[paragraphs (g) and (7c) make appropriate exclusions.” (9 Vernon’s Kansas Statutes Annotated, Uniform Commercial Code, Howe and Navin, § 84-9-104, p. 189.)
Hence, no provisions of the Uniform Commercial Code are applicable to the question presented, and we refer to our decisions and to the Restatement of the Law, Security, as they apply the common law.
The pledge is one of the simplest of the security devices. The fundamental idea of the pledge is possession by the pledgee. If the creditor’s security interest depends upon possession obtained and held primarily for security, he has a pledge. No filing is required by the pledgee to perfect a security interest where he has possession of the collateral.
Restatement of the Law, Security, § 1, p. 5, defines a pledge as follows:
“A pledge is a security interest in a chattel or in an intangible represented by an indispensable instrument, the interest being created by a bailment for the purpose of securing the payment of a debt or the performance of some other duty.” (Emphasis supplied.)
Our cases hold that a pledge of property is analogous to a chattel mortgage in that it constitutes a lien on the property pledged to secure the payment of the debt according to1 the contract. To constitute a valid pledge of personal property as security for a debt, it is essential that there be an actual delivery of the property by the pledgor to the pledgee and that the pledgee must thereafter hold possession of the pledge openly and adversely to the pledgor. (Atkinson v. Bush, 91 Kan. 860, 863, 139 Pac. 393; State v. Hubbard, 126 Kan. 129, 266 Pac. 939; Columbia Casualty Co. v. Sodini, 159 Kan. 478, 484, 156 P. 2d 524.)
The early common law recognized pledge interests only in tangible chattels. Modern law allows pledge interests also to be created in intangibles. A discussion of the subject is well stated in 53 A. L. R. 2d, Anno: Pledge by Transfer of Instrument, § 2, p. 1398, that:
“Problems involved in the free transfer of intangible property interests have been substantially solved, as to a large class of such rights, by the introduction of the concept of negotiability, by virtue of which a document representing the right is vested with many of the characteristics of an actual chattel, and it seems to be settled that such a right may be pledged by delivery of the negotiable instrument which represents it. However, there remains a large class of intangibles which may in some sense be said to be represented by a commercial document which is not, however, negotiable, and the question is frequently presented whether such a right may be pledged by delivery of the document in question. This question may be answered simply, although not too helpfully, by saying that the courts generally recognize that if the document delivered does represent the right to the extent that it stands in the place of, or embodies, or reifies, the intangible, a pledge of the document amounts to a pledge of the right.” (p. 1398.)
Incorporeal property, according to many decisions, cannot be pledged without a written transfer of the title. Debts, negotiable instruments, and other choses in action are usually pledged in this manner. In other words, an assignment is an essential part of a pledge where the thing pledged can be delivered only by assignment. In the case of a chose in action, such as a deposit in a savings account (9 C. J. S., Banks and Banking, § 997, p. 1419), the pledgee must have possession of the documentary evidence of title, with a transfer executed to him, or in blank, so as to give to him the control and power to dispose of it. If there is no transfer attached to or accompanying the document, it is imperfect as a pledge. (41 Am. Jur., Pledge and Collateral Security, § 15, pp. 594, 595; 72 C. J. S., Pledges, §§ 19, 20, pp. 20-24.)
Many cases recognize that incorporeal property, or any legal or equitable interest whatever in personal property, may be pledged provided it is, by actual delivery of documentary evidence of title or written transfer, placed into the hands or within the power of the pledgee so as to be made available to him for the satisfaction of the debt.
Several cases have recognized that, by delivery of a savings account passbook, the depositor may pledge his rights therein to the bank. The delivery of such a passbook as collateral security has been held to give the recipient the rights of a pledgee, vesting equitable title not only in the book, but also in the sum deposited in the bank to the extent of the debt secured. (53 A. L. R. 2d, Anno: Pledge by Transfer of Instrument, § 5, pp. 1396, 1406.)
In M. M. Landy, Inc. v. Nicholas, 221 F. 2d 923, 53, A. L. R. 2d 1385, it was held:
“Stock certificates, insurance policies, and savings bank books may be the subject of pledges by delivery alone.” (Syl. ¶ 7.)
In Eichler v. Hillside National Bank, 71 N. J. Super. 110, 176 A. 2d 508, it was held:
“Savings bank books given as security may constitute a pledge." (Syl. ¶ 3.)
In Watson v. Stockton Morris Plan Co., 34 Cal. App. 2d 393, 405, 93 P. 2d 855, it was said:
“ ‘A savings account being a chose in action may be assigned with or without a delivery of the pass book though such assignment is best evidenced by a delivery of the pass book together with a formal written assignment of the account . . .’ ” (p. 405.)
See, also, Ornbaun v. First Nat. Bank, 215 Cal. 72, 8 P. 2d 470, 81 A. L. R. 1146; McGuire v. Murphy, 94 N. Y. Supp. 1005, 107 App. Div. 104; In re Smith-Flynn Commission Co., 292 F. 465; Taft v. Bowker, 132 Mass. 277; Rix v. Dooley, 322 Mass. 303, 77 N. E. 2d 233; Cunningham v. Teague, 105 Ind. App. 46, 11 N. E. 2d 525; Underwood v. Underwood, 43 Ga. App. 643, 159 S. E. 725, and Wells v. Dean, 211 La. 132, 29 So. 2d 590.
Restatement of the Law, Security, § 1, is quoted above, and refers to the pledge of an intangible represented by an “indispensable instrument.” Comment (e) defines “indispensable instrument” as meaning the formal written evidence of an interest in intangibles so representing the intangible that the enjoyment, transfer or enforcement of the intangible depends upon the possession of the instrument. The comment states that,
“. . . indispensable instruments include not only negotiable instruments such as promissory notes and bills of exchange, but also share certificates, bonds, interim certificates, savings bank boolcs and insurance policies.” (Emphasis supplied.)
Where a true pledge is involved, our decisions recognize that incorporeal property may be pledged, and regard the pledgee as having possession of the property right itself through assignment or delivery of the nonnegotiable instrument, thus placing in the hands of the pledgee the power to make the property available for satisfaction of the debt. In Bank v. Bank, 80 Kan. 205, 101 Pac. 1005, Jones on Pledges and Collateral Security (2d Ed.), § 37, is quoted as follows:
“‘A delivery of a document of tide, which serves to put the pledgee in possession of the goods, is equivalent to an actual delivery of them.’ ” (l. c. 207.)
Generally, to the same effect are Bailey v. Pierce, 123 Kan. 359, 361, 255 Pac. 37; Myers v. Isern, 147 Kan. 182, 188, 75 P. 2d 253, and Columbia Casualty Co. v. Sodini, supra. In the latter case it was said it was recognized that incorporeal property, such as a certificate of corporate stock, might be pledged by written transfer of title, and that it was immaterial that the pledge was of stock of an out-of-state corporation.
As indicated, certain kinds of instruments sufficiently represent obligations that a delivery of them pledges the obligation. We conclude that a savings account, being a chose in action, is a proper subject of a pledge, and may be placed in possession of the pledgee by delivery of the passbook, or by a written assignment of the account to the extent of the debt, and that such delivery is best evidenced by a delivery of the passbook together with a formal written assignment to the pledgee.
The record is clear the bank obtained no formal written assignment of the savings account from Mrs. Walton, nor did it request she deliver possession of the passbook to it. That being the case, we hold there was no transfer or delivery of possession of the savings account to the bank so as to constitute a valid pledge, and that what occurred was insufficient to establish a hen created by a pledge in favor of the bank. The resulting relationship between Mrs. Walton and the bank was in fact that of debtor and creditor; the amount of $15,000 deposited in the savings account represented merely an indebtedness by the bank to her as a depositor, and she was entitled to have the deposit returned to her upon demand.
As indicated, the district court found the bank was entitled to judgment against Mrs. Walton for the $5,000 she withdrew from the savings account and which she paid to the Fourth National Bank in Wichita to relieve her obligation as guarantor of Kendall’s indebtedness to that bank. The finding and judgment cannot stand. In the first place, the $5,000 was Mrs. Walton’s money, and in tihe second place, as has been determined, the bank had no lien upon it as pledgee.
What has been said disposes of this case, and requires a reversal of the judgment of the district court with directions to enter judgment in favor of the plaintiff for $15,000, plus interest.
APPENDIX A
Loan Guaranty Agreement
For Value Received and to enable_of_, hereinafter designated as “Debtor,” to obtain credit, from time to time, of_, we hereby request said Bank to extend to said Debtor such credit as said Bank may deem proper, and we hereby jointly and severally guarantee the full and prompt payment to said Bank at maturity, and at all times thereafter, and also at the time hereinafter provided, of any and all indebtedness, liabilities and obligations of every nature and kind of said Debtor to said Bank, and every balance and part thereof, whether now owing or due, or which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created or arising or evidenced, to the extent of
_Dollars,
and we jointly and severally also agree to pay in addition thereto, all costs, expenses and reasonable attorney’s fees at any time paid or incurred in endeavoring to collect said indebtedness, liabilities and obligations, and in and about enforcing this instrument.
All diligence in collection, and all presentment for payment, demand, protest, notice of protest, and notice of nonpayment, dishonor and default, and of the acceptance of this guaranty, and of any and all extensions of credit hereunder, are hereby expressly waived.
The granting of credit from time to time by said Bank to said Debtor in excess of the amount of this guaranty and without notice to the undersigned, is hereby authorized and shall in no way affect or impair this guaranty.
Authority and consent are hereby expressly given said Bank from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, indulgences, settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty, including the taking or releasing of security and surrendering of documents.
In case of the death, dissolution, liquidation, failure, insolvency or bankruptcy of said Debtor, all of said indebtedness, liabilities and obligations, to the extent of the amount of this guaranty, shall, at the option of said Bank, become immediately due from, and be forthwith paid by the undersigned to said Bank, the same as though said debts, liabilities and obligations had matured by lapse of time.
This guaranty shall be construed according to the laws of the State of-, in which state it shall be performed by the undersigned.
This guaranty shall be binding upon the undersigned jointly and severally, and upon the heirs, legal representatives and assigns of the undersigned, and each of them, respectively and shall inure to the benefit of said Bank, its successors, legal representatives and assigns.
Signed and Sealed by the undersigned, at _ this --- day of_, 19_..
/s/ Marjorie E. Walton
(Seal)
Witnesses
/s/ Illegible | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from the judgment of the district court, entered on the jury’s verdict for the defendants, in an action to recover damages for personal injury based upon the negligence of the defendants in failing to provide a safe place for the plaintiff to work in the mowing of grass and weeds on their premises. The district court overruled the plaintiff’s motion for a new trial, and he has appealed. He contends the court erroneously submitted to the jury the question of his assumption of risk, and complains of misconduct of counsel for the defendants.
The plaintiff, Theodor W. Popp, is the brother of the defendant Lester Popp, and the defendant Pauline Popp is the mother of both Theodor and Lester. Pauline owned the farm upon which she lived with her unmarried son, Lester, who farmed the premises on a sharecrop basis with his mother.
On Sunday, June 28, 1964, the plaintiff drove to the farm home of Pauline and Lester, at the request of Lester, for the purpose of working for the defendants on June 28, and 29, 1964. The plaintiff was regularly employed by Cities Service Oil Company, but had worked for Lester on the farm on weekends and during his vacation. The plaintiff usually helped Lester during harvest, but in 1964 the harvest had been completed before June 29. Sometimes the plaintiff came to the farm just to visit. Lester had a standing agreement to pay the plaintiff for work he did on the farm. Usually Lester would tell the plaintiff precisely what he wanted done.
On Monday, June 29, 1964, Lester left the farm on an errand without giving the plaintiff any specific work instructions. The plaintiff noticed that the area around the farm house and shop building needed to be mowed and since he had on prior occasions been instructed by Lester to mow that area, he undertook to mow the area with a rotary power mower without any instructions from either defendant. He used a power mower which he, the plaintiff, owned.
While operating the power mower, it struck a piece of galvanized wire which was on the ground, and the wire was propelled into the plaintiff’s leg causing the injury. Lester did not return to the farm until after plaintiff was injured.
The plaintiff’s petition alleged negligence on the part of the defendants in allowing debris such as the piece of galvanized wire to accumulate on their farm premises and failure to provide plaintiff a safe place to work.
The defendants’ answer denied negligence on their part, and alleged the plaintiff was a mere licensee; that he was guilty of contributory negligence, and that he assumed the risk of operating the power mower at the time and place the injury occurred.
Following a pretrial conference and order in which the issues raised in the pleadings were stipulated by the parties, trial was had to a jury which returned a general verdict for the defendants. With full concurrence and the agreement of counsel for both parties, the district court submitted three special questions to the jury, which questions and the jury’s answers are as follows:
“Question No. 1: Do you find that the plaintiff was an employee or a licensee of the defendants?
“Answer:
(a) Employee: Yes
(b) Licensee: . . .
“Question No. 2: If your answer to question No. 1 is that the plaintiff was an employee, then state who was his employer.
“Answer:
(a) Both Lester and Pauline Popp: • Yes
(b) Lester Popp: . . .
(c) Pauline Popp: . . .
“Question No. 3: If you find that the plaintiff was an employee, do you find that the plaintiff assumed the risk involved in his employment?
“Answer:
(a) Yes: Yes.
(b) No: . . .”
In harmony with the jury’s verdict and its answer to special question No. 3, the district court entered judgment in favor of the defendants and each of them and against the plaintiff.
The plaintiff’s motion for a new trial alleged among other grounds, the district court erred in submitting the question of assumption of risk by the plaintiff to the jury, and newly discovered evidence.
Lester Popp was subpoenaed to appear before the district court at the hearing of the motion for a new trial to testify on behalf of the plaintiff. The motion was heard on September 1, 1967, and Lester testified, among other things, that his attorney, Mr. Lee Turner, of the Barton County Bar, had told him that if he did not cooperate with his insurance company in the defense of the lawsuit, and testify favorably for their side of the case, he, Lester, would not be able to get any more insurance. The district court overruled the motion, and the plaintiff perfected this appeal.
The plaintiff first contends the district court erred in submitting the question of the plaintiff’s assumption of risk to the jury, and argues the question was one of law to be determined by the district court. We think the plaintiff may not now complain.
At the conclusion of the evidence, the district court raised the question whether the issue of assumption of risk should be submitted to the jury. Counsel for the parties agreed the question was one to be determined by the jury. No instructions are contained in the record and we must assume the jury was fully and correctly instructed on all questions of law with respect to the issues stated in the pretrial order and as disclosed by the evidence. Likewise, there is nothing in the record to indicate that counsel for the plaintiff objected to any of the instructions given by the district court, or that he requested instructions which were refused.
At the hearing on the motion for a new trial, counsel for the plaintiff argued he was not taking two positions, and stated:
"... I recall the Court asking counsel for the plaintiff if this was a proper thing for determination by the jury and I remember my answer was I thought it probably was. I have come to the conclusion probably it should not ’ have been submitted to the jury, which I realize is a contrary position to what I informed the Court during trial . . .”
It is evident that in this appeal the plaintiff seeks to mend his hold. Having 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. He is precluded from doing so by a well-settled principle of law. Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review. (Manhattan Bible College v. Stritesky, 192 Kan. 287, 387 P. 2d 225.) Parties are bound by stipulation fixing the issues, or eliminating particular issues, or inducing the district court to try an action on a particular theory, or following a particular procedure. In Gilliland v. Kansas Soya Products Co., 189 Kan. 446, 370 P. 2d 78, this court said:
• . . It has long been the rule of this court that where a party induces the trial court to try an action upon his own theory he is not in a position to complain on review that such theory was erroneous. (Citation.) Where counsel for one party causes or invites a particular ruling, such party cannot later argue that such ruling was erroneous. (Citation.) It is elementary that a litigant cannot take contrary positions, one in which he has sought and procured an order, ruling or judgment in the trial court and another in the supreme court in which he complains of such order, ruling or judgment; moreover, a litigant will not be heard on an appeal to complain of any order, ruling or judgment of the trial court which he suffered the trial court to make without objection. (Citation.) One who by his own act invites and leads the court into erroneous action cannot complain of it nor take advantage of the ruling. (Citations.) For other citations see West’s Kansas Digest, Appeal and Error, § 882 (1); 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 440.” (l. c. 451, 452.)
It is next contended that because of threats and coercion made upon Lester by counsel for the defendants that if he did not testify favorably to their side of the case Lester could not procure any more insurance, resulted in false, inconsistent and evasive testimony by Lester at the trial. The question was disposed of at the hearing on the motion for new trial. Counsel for the defendants stated and the district court responded as follows:
“Now, if the Court feels this one statement Mr. Popp made is a material statement—that is, the statement that Mr. Turner told him that he couldn’t get insurance—then I would want the Court to continue the hearing on this so that Mr. Turner’s testimony could be presented on that point.
“The Court: No; I'm not upset about that; I’m a little upset when he believed that Mr. Turner told him he couldn’t get any more insurance, but I know Mr. Turner didn’t tell him he couldn’t get any more insurance. He said, ‘If you don’t cooperate your insurance is not going to be effective because there is a provision in the policy that said you must cooperate in and assist in the defense’, and I’m sure Mr. Turner’s comments to him were correct, but you see what has happened, Mr. Turner was dealing with a layman and he tells him these things and he gets the idea he’s really boxed-in and he’s got to do something. We lawyers are prone to take too much for granted that lay people who listen to us understand us and they don’t, and this is probably a case where this man thought that he couldn’t ever get any insurance if he didn’t cooperate in the case and bring these successful results in this ease. I don’t think there is any doubt—I think he’s about that smart and that isn’t very smart, but I don’t think Mr. Turner did anything wrong in any way except the same thing all lawyers do and just generally we talk our language and understand ourselves and we expect other people to understand and they don’t. That is my concept of what happened. I think the next time he has a case and you have one and Art Hodgson has one and we get this situation, you should explain it to them what it is and then explain it again, and maybe a third time. It might take the third time. What did you do this morning? I noted you asked him a question and he hadn’t the slightest idea what you meant, because you were using the language we use, here. We do that all the time and I don’t blame Mr. Turner. Now that is what has happened.”
The district court heard and saw all that transpired and its observation on the point was that the jury’s verdict was not the result of misconduct of counsel and that the plaintiff’s rights were not prejudicially affected by anything that occurred at the trial. A district court is in a much better position than an appellate court to determine whether a verdict resulted, wholly or in part, from asserted misconduct of counsel, and, generally speaking, its conclusions in the matter will not be disturbed unless, under all the circumstances, it is plainly in error. (Smith v. Cement Co., 86 Kan. 287, 120 Pac. 349; Ely v. Jones, 110 Kan. 10, 202 Pac. 609; Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597.)
We are of the opinion we would not be justified in disturbing the findings of the district court and its conclusion the plaintiff’s motion for a new trial should be overruled.
The record has been fully reviewed and the plaintiff has not affirmatively established that the alleged errors prejudicially affected his substantial rights.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of burglary in the second degree and grand larceny. The offense is claimed to be counseling, aiding or abetting in the actual burglary.
The defendant, James Leonard Johnson, has appealed. He first contends that the evidence was insufficient to connect him with the crime and that a new trial should have been granted. He also contends that as there was no evidence to connect him with the offense it was error to introduce as evidence against him monies which were the fruit of the crime.
A general review of the facts presented will dispose of these contentions.
At approximately one o’clock on the morning of December 23, 1967, an officer of the Overland Park Police Department was on routine patrol in the downtown business district. He observed a man, later identified as DeMancy Joiner, running north in the alley back of the Overland Park Theater.
He arrested the man, placed him in his patrol car and called for assistance. A patrol car with two officers answered the call. As they approached they noticed an automobile parked about 250 feet north of the Overland Park Theater. Seated in the car was the defendant and with him was Virginia Peterson. Gloria Peterson was getting into the car. The officers directed the three to follow them to the car where Joiner was being held. All four were taken to the police station for questioning. While waiting in the squad room Gloria Peterson started to the rest-room but was stopped and as she was being returned several rolls of coins fell from underneath her clothing. She remained seated until the matron arrived. She then stood up and other coins were found where she was seated. All of these coins constitute the State’s exhibit 1 and is subject to the objection noted.
All four of the party were placed under arrest for burglary and larceny after an officer had been dispatched to the theater where it was discovered that the theater had been broken into and money taken. The next day an officer went to the rear of the theater where Joiner had been arrested and a parcel containing $86.00 taken from the theater was found. This parcel of money constituted the State’s exhibit 2 and is also subject to the objection noted. Joiner and Gloria Peterson pled guilty as charged. The charges were dismissed as to Virginia Peterson. The defendant, James Leonard Johnson, was tried and convicted.
We have no hesitancy in concluding there was ample evidence to sustain an inference that the defendant drove the automobile which carried Joiner and Gloria Peterson to the scene of the burglary, waited for them until the burglary was committed and would have carried them away had they not been apprehended. If, from all the facts and circumstances disclosed by the evidence, the jury might have drawn an inference of guilt the verdict will stand. (State v. Roy, 203 Kan. 606, 455 P. 2d 512.)
There was also ample evidence to connect defendant with the crime at the time the spoils of the burglary were introduced.
The appellant next contends that an authenticated copy of the journal entry of his previous conviction of burglary in the second degree was improperly received in evidence because the appellant did not have an opportunity to confront the clerk who made the authentication and cross-examine her.
We find no merit in the contention. The authenticated copy was admitted under the provisions of K. S. A. 60-455 and the trial court properly instructed the jury as to its limited use.
The journal entry, if authentic, spoke for itself. The Clerk of the Circuit Court of Jackson County, Missouri certified that the instrument was a true copy of the judgment and sentence. The judge of the circuit court certified that the clerk was the duly elected quali fied and acting clerk of the court and as such was the custodian of the records and papers thereof. The matter is well covered by K. S. A. 60-465 (3).
The appellant made no objection before the trial court suggesting that the appellant was not the same James Leonard Johnson as appeared in the authenticated copy of the journal entry.
The appellant objects in this court to certain instructions of the trial court. At the trial the appellant neither requested additional instructions nor objected to those given by the trial court. Notwithstanding, we have examined the instructions and find they properly and sufficiently state the law of the case. It would, serve no useful purpose to extend this opinion by including the lengthy instructions. We would suggest to appellant that instruction 19, which was not included in his abstract, answers much of his argument.
An examination of the record discloses no trial errors which would require the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzek, J.:
This is a direct appeal from a judgment and sentence entered on the defendant’s pleas of guilty.
On June 18, 1968, an information was filed in the district court of Sedgwick County, charging the defendant in counts one and three with robbery in the first degree (of Western Auto Store No. 3, and of LaCount’s Market), contrary to the provisions of K. S. A. 21-527, and in counts two and four with unlawful possession of a pistol after conviction of grand larceny and possession of marijuana, contrary to the provisions of K. S. A. 21-2611.
On August 2, 1968, the defendant, with retained counsel present, freely and voluntarily entered pleas of guilty to each count contained in the information.
Upon allocution, the defendant expressly admitted committing each of the crimes with which he was charged, and stated he knew of no reason why he should not be sentenced. Thereupon, sentences were imposed for a period of not less than ten years, nor more than 21 years on each of the counts one and three, and for a period of not less than one year nor more than five years on each of the counts two and four, the sentences to run concurrently.
Notice of appeal was filed by the defendant pro se, setting forth one claim for relief. His contention is supported solely by a letter written to his present counsel after his sentence and incarceration in the Kansas State Penitentiary, in which he states his pleas of guilty were coerced for the reason he was informed by the county attorney that if he did not plead guilty, he would be tried by a jury, and, if found guilty, he would be sentenced under the provisions of the Habitual Criminal Act.
The record discloses no evidence the defendant presented such a complaint to the district court when questioned upon the voluntariness of his pleas of guilty, or during the allocution, or that he moved the court to permit withdrawal of his pleas of guilty, or for other relief.
In disposing of this appeal, we adhere to the rule set forth in State v. Kelly, 204 Kan. 715, 466 P. 2d 350, that an appellate court will not consider questions not presented to the district court. In the opinion it was said:
“A letter to one’s lawyer alleging facts outside a record of trial presents nothing for an appellate court to review. Appellate review of a conviction based upon a plea of guilty is confined to irregularities disclosed by the record and going to jurisdiction or legality of the proceedings.” (l. c. 716.)
The record discloses the district court carefully interrogated the defendant concerning the voluntary character of his pleas of guilty, and was warranted in accepting the pleas entered by the defendant without objection. Under the circumstances, the defendant was properly sentenced. (See State v. Kelly, supra, and cases cited.)
No error appearing, the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
In connection with a highway improvement project the state highway commission brought a condemnation proceeding against the affected landowner.
The award of the appraisers was $12,059.00—from which both parties appealed.
Upon trial—the jury returned a verdict in the amount of $19,000.00. The commission’s motion for a new trial was overruled, and judgment on the verdict was entered in favor of the landowner.
The commission has appealed.
Only three contentions are made.
The first is that the trial court abused its discretion by unduly limiting questions in the voir dire examination of the jury.
A brief answer to this contention is that the record contains none of the voir dire examination and consequently there is nothing before this court for review.
It next is contended the court erroneously permitted the landowner’s witnesses to testify as to separate items of damage resulting from the partial taking.
The point is without merit. K. S. A. 26-513 (c) enumerates a number of factors which may be considered in ascertaining the amount of compensation and damages to be awarded. The testimony in question amounted merely to a breakdown of the various items and factors considered by the witnesses in arriving at their “before and after” values, and was quite properly allowed.
Finally, it is contended the court abused its discretion in permitting the jury to view the premises, and in not allowing the commission to reopen its case and present new evidence.
The date of “taking” was May 20, 1966. Trial of the case was in November 1967. At the pretrial conference the landowner made it clear he was requesting a view of the premises. At the close of the evidence the jury was sent to the scene—under proper instruction by the court. This was a matter within the sound discretion of the court under K. S. A. 60-248 (b).
The commission complains of the fact that because of construction work on the highway project the premises were not in the same “condition” when viewed by the jury as they were on the date of taking—and therefore it should have been allowed to reopen its case for further evidence as to such “changed conditions”.
This contention likewise is without merit. Prior to the introduction of the commission’s evidence it knew that the jury would be sent to the scene. It knew, or should have known, the condition of the premises, and had ample opportunity to present evidence in its case in chief as to the construction work being done. No element of “surprise” has been shown. The court did not abuse its discretion in ordering a view of the premises and, under the circumstances— in denying the request to reopen the case for further evidence.
In conclusion—it should be stated that the verdict was within the “range” of the evidence, and no contention is made with respect to it. No special findings were requested. No instructions were requested, and no objection was made to any of those given. No error being made to appear—the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
Allen C. Davis was the fifth defendant convicted .of kidnapping in the first degree (G. S. 1961 Supp., 21-449, now K. S. A. 21-449) and forcible rape (G. S. 1949, 21-424, now K. S. A. 21-424), arising out of events occurring in Fort Scott, Kansas, on August 20, 1962, in which six men were involved.
A summary of events leading to the petitioner’s conviction in the district court of Bourbon County is contained in State v. Woods, 191 Kan. 433, 381 P. 2d 533, cert. den. 376 U. S. 919, 11 L. Ed. 2d 615, 84 S. Ct. 676. Convictions of three other defendants for the same crimes were affirmed on appeal. (State v. Burnett, 194 Kan. 126, 397 P. 2d 346; State v. Kinnell, 197 Kan. 456, 419 P. 2d 870; State v. Ayers, 198 Kan. 467, 426 P. 2d 21.)
On October 3, 1964, the petitioner entered a plea of guilty to the charge of forcible rape, and on October 3rd, and 4th, he was tried by a jury and found guilty of kidnapping in the first degree. The jury prescribed a sentence of life imprisonment.
On October 31, 1962, the petitioner’s motion for a new trial was argued and overruled, and he was sentenced by the district court.
On April 26, 1963, the petitioner’s appeal from his conviction was filed with the clerk of the supreme court, but on November 8, 1963, the appeal was dismissed on motion by the state. A subsequent motion for reinstatement was denied.
On June 28, 1968, the petitioner filed a motion pursuant to the provisions of K. S. A. 60-1507 to set aside the judgment and sentence.
On November 18, 1968, the district court of Bourbon County held an evidentiary hearing on the motion, die defendant being present in person and represented by court appointed counsel. On November 30, 1968, an order was entered denying petitioner’s motion, and he has appealed.
The petitioner first contends that denial of his motion for a change of venue filed September 19, 1962 (before commencement of his trial on first degree kidnapping), prevented him from having a fair trial.
The appellee argues the denial of a motion for a change of venue is not a proper subject to be raised at a hearing commenced under K. S. A. 60-1507 since such a proceeding cannot ordinarily be used as a substitute for a direct appeal involving mere trial errors, or as a substitute for a second appeal. (Brown v. State, 198 Kan. 527, 426 P. 2d 49; Hanes v. State, 196 Kan. 404, 411 P. 2d 643; Supreme Court Rule No. 121 [c] [4], now 121 [c] [3].)
Such a contention has considerable merit when the question of venue is not one of a constitutional nature, or one arising from exceptional circumstances, within the purview of Rule No. 121, supra.
In the recent case of Baker v. State, 204 Kan. 607, 464 P. 2d 212, it was held:
“A proceeding under K. S. A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors; but if the trial errors affect constitutional rights, they may be raised in the collateral proceeding, even though they could have been raised by direct appeal, provided there were exceptional circumstances excusing the failure to appeal. (Rule No. 121 [c] [3].)” (Syl. ¶ 2.)
In Barnes v. State, 204 Kan. 344, 461 P. 2d 782, it was said:
“. . . To avoid proliferating litigation and give meaningful review in such cases, this court has attempted to consider points raised by persons accused of crime at the first opportunity, where it appears they are entitled to a review. Accordingly, the ‘exceptional circumstances’ affording review in a 1507 proceeding where the errors have not been raised on appeal, have in the past been rather loosely construed. . . .” (l. c. 351.)
See, also, Jackson v. State, 204 Kan. 841, 466 P. 2d 305.
On November 11, 1963, the petitioner’s direct appeal was dismissed in this court for failure to comply with Supreme Court Rule No. 8 (d) and (e). Since that time Rule 8 (d) has been amended to permit an application for an extension of time in which to file papers where the failure to file such application before the time has expired is the result of excusable neglect. In other words, a party is now permitted to show “excusable neglect” when seeking application for additional time, whereas, previous to July 1, 1967, he was not entitled under the rule to make that showing.
Moreover, there is no showing in the record, or elsewhere, that the petitioner intentionally waived his right to perfect his direct appeal and have his case heard by this court on the merits. The record does not show whether petitioner attempted to appeal pro se, or whether counsel was appointed to conduct such appeal pursuant to Supreme Court Prefatory Rule No. 1, promulgated April 16, 1963. (201 Kan. xv.) In any event, he made application to reinstate his appeal, which was denied.
It was also said in Baker v. State, supra:
“As a matter of fundamental fairness we believe that where, as here, a defendant on direct appeal has been precluded from a review of alleged trial errors affecting his constitutional rights because of an appellate procedural rule which has since been abrogated [amended], exceptional circumstances exist within the purview of Rule No. 121 (c) (3) . . .” (l. c. 610, 611.)
For reasons stated above, we are of the opinion there are “exceptional circumstances” existing in this case within the meaning of Rule No. 121 (c) (3), Rules of the Supreme Court, 201 Kan. xxxiii, so as to entitle the petitioner to have review of alleged trial errors having a constitutional basis.
In asserting his claim of error (the denial of his motion for a change of venue) the petitioner contends the district court erred in overlooking “the mood, feeling, and disposition of attitudes within a rather small community of people from which the jury was drawn.” Also, the magnitude of the crime charged and hastiness of the trial date combined to create the “probability of unfairness.”
In support of his contention, the petitioner, at the 1507 hearing, called as witnesses: his attorney whom he had retained at the time of his trial, and his mother, and he testified on his own behalf. His attorney testified he received approximately a dozen hostile and unfriendly telephone calls concerning the case. The petitioner’s mother testified a crowd hostile to Negroes filled the grounds of the courthouse during the preliminary hearing. The petitioner stated, “We were kicked at and spit at as we were changed from the county jail to the courtroom.”
The record contains no affidavits, exhibits, or other evidence supporting the petitioner’s contention, and from the testimony given at the hearing, the district court concluded:
“5. The matter of a change of venue was argued at length in this and the related cases. At the time of petitioner’s arrest and at the time of his preliminary examination on the 28th day of August, 1962, there were hostile, unfriendly and insulting remarks directed toward petitioner, the other defendants, and counsel who then represented them. There was a large attendance at the preliminary examination. This court was aware of the situation at the time the motions for change of venue were presented. Trial was held in October, 1962; the audience section of the courtroom was full during the trial but so far as this court observed at the time of trial and so far as the court is presently informed there were no hostile acts or threats at that time. There was public interest in the trial, and news coverage, as is usual in cases of a similar nature. The number of jurors called was not excessive for a capital case; the spectators were not unruly; and there were no incidents tending to show prejudice at the time of trial. The court concludes that its original ruling on the motion for change of venue did not result in a failure to give petitioner a fair trial.”
Before a change of venue to another county can be granted, it must affirmatively appear that in the county in which the cause is pending there exists such prejudice so as to be reasonably certain of precluding the defendant a fair trial. (State v. Welch, 121 Kan. 369, 247 Pac. 1053; In re Hedrick Appeals, 155 Kan. 165, 123 P. 2d 806; State v. Turner, 193 Kan. 189, 392 P. 2d 863.) And the ruling of the district court on the question will not be disturbed if supported by competent evidence, and there is no showing of prejudice to the substantial rights of the defendant. (State v. Miller, 131 Kan. 36, 289 Pac. 483; State v. Hooper, 140 Kan. 481, 37 P. 2d 52; State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.)
In State v. Poulos, supra, it was said:
“The defendant’s failure to present affirmative evidence that prejudice existed so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue . . .” (l. c. 259.)
Likewise, prejudice must be established “not as a matter of speculation but as a demonstrable reality.” (Woods v. Munns, 347 F. 2d 948; Latham v. Crouse, 330 F. 2d 865, cert. den. 379 U. S. 866, 13 L. Ed. 2d 69, 85 S. Ct. 134.)
The defendant claims that under the doctrine of Estes v. Texas, 381 U. S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628, and Sheppard v. Maxwell, 384 U. S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507, he need not conclusively show prejudice, that is, “identifiable prejudice to the accused need not be shown if . . . the totality of the circumstances raises the probability of prejudice.”
As stated in State v. Ayers, supra:
“The Sheppard case reached the Supreme Court by way of federal habeas corpus. As in Estes, Sheppard’s complaint was denial of due process in receiving a fair trial by reason of the massive, prejudicial publicity that attended upon his prosecution during pretrial proceedings and during the trial itself. In remanding the case to the Federal District Court with instructions to issue the writ unless the state reprosecuted within a reasonable time, the fundamental error of the trial judge was declared to be his failure to supervise his own courtroom. It was stated the trial court failed to invoke procedures, enumerated in the opinion, which would have guaranteed Sheppard a fair trial. The court also noted that the trial court had compounded its fundamental error by holding it lacked power to control the publicity about the trial.” (l. c. 469, 470.)
The adverse feeling and publicity in Bourbon County clearly did not approach the extent of the publicity present in the Sheppard case. We cannot say under the total facts and circumstances of this case that the defendant’s trial was “fatally infected” with an absence of “that fundamental fairness essential to the very concept of justice” alluded to in Lisenba v. California, 314 U. S. 219, 86 L. Ed. 166, 62 S. Ct. 280.
In State v. Woods, supra, involving the same point here urged, it was said:
“The appellant filed a motion for change of venue and argues strongly that feelings ran high against the defendants in the town . . . The trial court took the question seriously, passed upon it and found that there existed no serious threat of violence or feeling against the defendants in general and that a fair trial could be had in Bourbon county. We know of no reason why the court should be reversed on this holding.” (l. c. 435.)
We hold the district court did not err in its conclusion that “its original ruling on the motion for change of venue did not result in a failure to give petitioner a fair trial.”
Secondly, the defendant asserts the crime of kidnapping was not proven; specifically that one element of the crime, asportation, was not present.
The same contention was made in the Woods and Ayers cases which arose from the same events as the present case. The petitioner does not claim to be in a different position than Woods and Ayers, but he does ask us to reconsider our construction of the “kidnap” statute (21-449). We adhere to the construction of the statute as first expressed in State v. Brown, 181 Kan. 375, 312 P. 2d 832. In State v. Ayers, supra, we said:
“. . . In Brown we considered the words of the statute (21-449, supra), as well as common-law language and said ‘kidnap,’ means to take and carry away any person by unlawful force or fraud and against his will. We attached no other requirements such as a minimum distance of asportation. It is the fact, not the distance, of forcible removal of the victim that constitutes kidnapping . . .” (l. c. 471.)
The petitioner’s third and fourth claims of error are that K. S. A. 21-449 is unconstitutional under the provisions of Section Nine of the Bill of Rights of the Constitution of the State of Kansas, and of the Eighth Amendment to the Constitution of the United States because it provides for cruel or unusual punishment.
The petitioner argues that where the duration of a sentence is of such extreme length, the mere fact of life imprisonment for a boy of seventeen years is cruel and unusual. We think that fact is insufficient to vacate the sentence imposed by the district court.
The petitioner cites no authority in support of his position, but to the contrary, cites cases holding that life imprisonment for a person convicted of kidnapping is not so severe as to constitute cruel, unusual and excessive punishment. (Hess v. United States, 254 F. 2d 578; Kelly v. United States, 76 F. 2d 847.) See, also, State v. White, 44 Kan. 514, 25 Pac. 33; State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99.
Nothing appearing in the .record to warrant reversal, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment holding employment in a feedlot exempt from the Workmens Compensation Act.
There does not appear to be any substantial dispute as to the facts. Respondent was a corporation engaged primarily in the commercial feeding of livestock on leased land. During the fiscal year ending January 31, 1967, the respondent corporation fed a total of 14,450 cattle. Of these, 90%, or 13,211, belonged to persons or concerns not connected with respondent and were fed on a contract basis. The remaining 10%, of 1,239 cattle, were owned by principal stockholders in respondent corporation. The respondent itself owned none of the cattle. A large percentage of the cattle being fed on a contract basis were owned by large industrial pack ing houses such as Wilson & Co., Inc., Maurer-Neuer and Swift & Co.
In its feeding operations respondent realized an annual gross income of approximately $1,500,000. The respondent’s feedlot consisted of 35 to 37 feeding pens along with storage facilities, machinery and transportation equipment necessary to store and distribute the feed to the various pens. The number of respondent corporation’s employees varied from 16 to 22 during the time in question.
The claimant was an employee of respondent. His principal duties were to ride through the cattle pens on horseback and separate the cattle that appeared to be in need of medical treatment. The evidence indicates that claimant was performing this duty at the time he fell, or was thrown, from his horse and sustained the injury that gave rise to this action.
Following a claim for compensation under the Workmen’s Compensation Act, the director approved the award of examiner, concluding that the employment was commercial in nature and covered by the act.
The respondent appealed. The journal entry of the district court contained findings of fact and conclusions of law which we quote in part:
“(4) That Respondent had never elected to come within the provisions of the Workmen’s Compensation Act, was not a self-insurer, and throughout the proceedings had denied that it is within the act’s provisions;
“(5) That cattle feeding as carried on by Respondent is not included within the definitions of the hazardous employments named in K. S. A. 44-505 as set out in K. S. A. 1968 Supp. 44-508, nor within the area of any of the other hazardous employment not specifically defined;
“(6) Feeding of livestock for market is an agricultural enterprise within the meaning of the zoning laws and has been declared to be an agricultural pursuit for the purposes of Feedlot Operators Licensing Act of Kansas (Article 15, Chapter 47 K. S. A.);
“(7) That Claimant suffered his injuries in the course of feedlot employment;
“(8) That Respondent does its feeding work on a contractual basis; “and concluded:
“(A) Claimant’s employment was not a hazardous employment within the meaning of the Workmen’s Compensation Act;
“(B) That Claimant’s employment was an agricultural employment specifically exempted from the operation of the Act;”
The district court set aside the award of the examiner as approved by the director and entered judgment for the respondent.
The claimant has appealed to this court.
The claimant filed a very narrow statement of points relied on for appeal. We quote:
“Comes now the Claimant and sets forth the following points upon which he intends to rely in the appeal heretofore noticed herein:
“1. The Court erred in finding that the Claimants employment was an agricultural employment, specifically exempted from the operation of the Workmens Compensation Act.”
It will be noted that the claimant does not designate as a “point relied on” the conclusion of the trial court that “Claimant’s employment was not a hazardous employment within the meaning of the Workmens Compensation Act.”
The appellee contends that the above conclusion determines the issue before the court regardless of the agricultural status of the employment and not having been appealed from there is no remedy this court could order. It suggests that the appeal is, therefore, moot and should be dismissed.
We must conclude that the district court’s finding and conclusion that the feeding of cattle as carried on by respondent is not included within the hazardous employments named in K. S. A. 44-505 dispose of this controversy and therefore renders unnecessary the determination of the question of whether the endeavor was an agricultural pursuit and exempt from the provisions of the act.
The provisions of the Workmen’s Compensation Act (K. S. A. 44-505) expressly state that the act shall apply only to the employment in the hazardous trades or businesses designated in the statute. (Campos v. Garden City Co., 166 Kan. 352, 201 P. 2d 1017.) The first paragraph of the above section states:
“This act shall apply only to employment in the course of the employers trade or business in the following hazardous employments: Railway, motor transportation line, factory, mine or quarry, electric, building or engineering work, laundry, natural-gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein is inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen.” (Emphasis supplied.)
The lower court properly concluded that the claimant’s employment was not one of those trades or businesses expressly designated in the act.
The third paragraph of K. S. A. 44-505 states how an employer not expressly designated by the act may elect to come under its provisions. The fact that the respondent had not elected to come under the act is not disputed.
In Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 21 P. 2d 337, it is stated:
“. . . We think all of both classes, hazardous and nonhazardous, are ‘entitled to come within,’ but they are not all privileged. All the first group are presumptively in or brought in by direct legislation, whether they wanted to be in or not. The nonhazardous are ‘privileged to elect’ and are excepted from the general provision of the section, or the exception clause would be useless and serve no purpose. We must assume the legislature intended to except some parties by the insertion of this exception clause, and since the nonhazardous class is the only class that is privileged, the use of the term ‘employers privileged to elect’ meant all employers in the nonhazardous class just as much as if it had used the term, nonhazardous class.” (p. 577.)
The finding and conclusion that the employment was not included in the hazardous businesses specifically mentioned in the statute coupled with the finding that the respondent had not elected to come within the provisions of the Workmen’s Compensation Act disposes of the controversy regardless of whether the respondent was or was not engaged in an agricultural pursuit and exempt from the act.
Such finding and conclusion not having been appealed from, and not having been mentioned in the statement of points, are conclusive. (Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, 441 P. 2d 881.)
The decision reached renders unnecessary the determination of the question of whether the respondent was engaged in an agricultural pursuit. This court does not determine abstract or academic questions. (Ellis v. Kroger Grocery Co., 159 Kan. 226, 152 P. 2d 869; In re Estate of Lytle, 184 Kan. 304, 336 P. 2d 803.)
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
Marvin Eldon Daugherty pled guilty to first degree robbery in the district court in Sedgwick county. Counsel was appointed to assist him in those proceedings and was present during arraignment, plea and sentencing. After inquiring fully into the facts surrounding the case the judge accepted the plea and sentenced the defendant to the penitentiary at Lansing, Kansas, to be confined for a period of not less than ten years nor more than twenty-one years. (K. S. A. 21-527, 21-530.)
After serving nine months Mr. Daugherty filed proceedings under K. S. A. 60-1507 attacking the sentence. The district court in Sedgwick county examined the records and files in the original case and in a summary proceeding found movant entitled to no relief. Complete findings were made by the court based upon the records and files in the original case.
Mr. Daugherty perfected the present appeal from the order denying relief on his motion. Counsel was appointed to assist in presenting the appeal.
Appellant set forth in his motion three reasons for vacating his sentence. We will consider these three contentions.
After appellant committed the robbery in Sedgwick county he was picked up in Pueblo, Colorado, and held for the Kansas authorities. He stated in his motion to vacate sentence that he was illegally questioned in Colorado while he was under the influence of narcotics and under medical treatment for an infection. The record does not disclose the use of any such statements or admissions.
The trial court found the plea of guilty in Sedgwick county was entirely voluntary and no statements or admissions made in Colorado were used as evidence against him in Kansas. The finding was fully supported by the record covering his arraignment, plea and sentencing.
The appellant cannot complain of statements or admissions made by him which were not used as evidence against him in the trial court. (Fields v. State, 195 Kan. 718, 408 P. 2d 674.)
Appellant complained in his motion that he was allowed to enter the courtroom at one time without an attorney to represent him. The transcript of proceedings shows he was bound over to the district court after a preliminary hearing. When he was brought before the court counsel was appointed to represent him and thereafter was present at arraignment, plea and sentence. This point was not briefed or argued on appeal and, as expressed in King v. State, 200 Kan. 461, 464, 436 P. 2d 855, we therefore assume this point has been abandoned, as well it might be, in view of the record.
Appellant’s final contention is that the trial court erroneously made his sentence to “run concurrently with any other existing sentences which the defendant may be serving and concurrently with any parole revocation which may hereafter be imposed”. (See K. S. A. 62-1512.)
The record discloses appellant was on parole from a federal felony conviction when he committed the robbery in Sedgwick county. Prior to sentence the appellant by his court appointed attorney informed the court of these facts and requested the sentence be made to run concurrently.
Parole and sentencing procedures of a federal court cannot be controlled by state courts. (18 U. S. C. A. § 3231, District Courts.) In the present case the term specified by the sentencing court was proper under our statutes. (K. S. A. 21-527 and 530.) The provision in the journal entry specifying the sentence to run concur rently with other sentences not specified or capable of designation was surplusage which would not vitiate the term of the sentence specified by the sentencing court. This technical error was invited by the appellant.
One who by his own act invites technical error by a court cannot complain of it or take advantage of the ruling. (State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580.)
After appellant was sentenced on the robbery charge the federal authorities lodged a detainer against him. The thrust of the 1507 proceeding was to urge appellant’s release to federal authorities. However, the detainer has now been lifted and a deletion of the provision for concurrent terms would have no effect on appellant’s present sentence. The question raised is moot and this court will not consider abstract questions which cannot have effect on the rights of the parties. (Taylor v. State, 198 Kan. 648, 426 P. 2d 159.)
The trial court’s findings are fully supported by the record before us. The court did not err in refusing an evidentiary hearing. In proceedings under K. S. A. 60-1507 when the files and records of the sentencing court conclusively show the movant is entitled to no relief it is not error to conclude the proceedings by summary hearing in the absence of the movant and without appointing counsel to represent him. (Hensley v. State, 199 Kan. 728, 433 P. 2d 344; Perry v. State, 200 Kan. 690, 438 P. 2d 83.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Billy W. Scogin brought this action against Harold S. Nugen and Carolyn S. Napier for personal injuries received in a vehicular accident. Officer Scogin was a motorcycle policeman pursuing a speeding motorist when the accident occurred. The case was tried to a jury which returned a verdict against the plaintiff, Scogin, and in favor of both defendants. Plaintiff appealed but later dismissed the appeal as to Carolyn S. Napier.
There is little dispute over the facts disclosed by the evidence. The accident occurred on Seneca Street which is a four lane boulevard running north and south in Wichita, Kansas. Officer Scogin was parked on a side street to the east of Seneca and was clocking the speed of motorists. He clocked a motorist exceeding the speed limit, waited for four cars to pass him, then entered Seneca street and headed north. He turned on his siren and red light. He passed two northbound vehicles and attained a speed of 35 miles per hour. He was traveling near the center of the four lane street. The Napier vehicle was ahead of him and travelling north. A vehicle driven by Harold S. Nugen was approaching from the north. Officer Scogin was 50 feet behind the Napier car when he noticed both the Nugen and Napier vehicles were continuing in a straight course. Both of these vehicles were close to the center line. The Napier car was slowing down but neither car was yielding the inside traffic lane. The outside lanes were clear of immediate traffic. Officer Scogin applied the rear brake on his motorcycle, slowed his speed, then elected to go between the two cars. He estimated the clearance to be 36 inches. The handlebars of the motorcycle measured 39 inches from tip to tip.
There was evidence from which it might be reasonably inferred that officer Scogin could have safely passed the Napier vehicle on the outside lane by applying the brakes to both wheels of his motorcycle and turning into the right lane of traffic.
In going between the Nugen and Napier vehicles he intentionally laid his motorcycle into the side of the Napier car. There was evidence his only contact with the Nugen vehicle came when a tire of the Nugen car ran over a tire of the motorcycle. Officer Scogin and motorcycle passed between the cars but both man and cycle were spilled out of control in the street behind the Nugen vehicle. Serious injuries resulted.
Defendant Nugen testified he had no impairment of vision or hearing. At the time of this accident his car windows were up. The car radio was not on. He did not hear the siren or see the red light. He first noticed the officer when he was six feet away and headed right toward him on his left. The motorcycle passed him before he could react. He felt no impact between the motorcycle and his car.
Appellant Scogin contends this evidence discloses as a matter of law that he is entitled to recover damages.
The evidence discloses appellant was the operator of an authorized emergency vehicle as defined in K. S. A. 8-501. It further discloses the defendant Nugen did not yield the right of way as required in K. S. A. 8-554. He did not drive to the right-hand curb and stop to allow the officer to pass. However, the act does not relieve an operator of an emergency vehicle from a duty to use proper care.
K. S. A. 8-505 (e) provides:
“The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his ordinary negligence or reckless disregard for the safety of others.”
Under the pre-trial conference order an issue was raised by defendant as to whether the officer was negligent in a manner which was a direct cause of his injuries. Defendant contended the officer failed to slow up or maneuver in response to other vehicles visible to him in the street so as to avoid the collision. The jury found the officer was negligent in that “he was aware of traffic conditions at the time and did not use proper judgment to avoid impending accident”.
A driver, absent knowledge to the contrary, may assume other vehicles using the highway will obey the rules of the road but he is not permitted to act blindly on that assumption when it is apparent the other driver is continuing on the wrong side of the road. (Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 995; DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527.)
A police officer operating under the privileges and exemptions granted to emergency vehicles may assume other vehicles using the highway will yield the right of way as required by law. However, he is not permitted to act blindly on that assumption if it should be apparent to him in the exercise of reasonable care that the other driver is continuing to occupy the same lane of traffic and has failed to yield the right of way. In such case negligence, contributory negligence and proximate cause remain questions of fact for the jury. (See Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241.)
The trial court excluded evidence that the defendant had pled guilty to a traffic ticket for failing to yield the right of way. The charge arose out of the circumstances of plaintiff’s accident. In excluding this evidence the trial court gave the following reasons for the exclusion:
“The evidence proffered concerning the traffic ticket and fine paid by defendant Nugen is overruled. The Court has heard counsel’s statements on this matter and has received the depositions concerning same and finds that the signature of the defendant Nugen on the back of the traffic ticket was not a genuine admission of guilt of negligence, but what is merely a part of the fine paying process. . . .”
Appellee justifies the exclusion of the plea of guilty on the basis of citations from New York and Ohio. He argues the plea and the •payment of a traffic fine do not constitute admissions when they result from a “cafeteria system” for taking care of minor traffic tickets. He argues the cost and inconvenience of defending against a traffic ticket are the practical motivations for such a plea. Economic factors dictate a plea be entered rather than to have the expense and inconvenience of defending against the ticket.
This may be true and in rebuttal a defendant may so testify. The argument is one affecting the weight of the evidence and might properly be presented to a jury. We cannot say this justifies exclusion of a plea of guilty if it is otherwise admissible under our rules of evidence.
Under our rules of evidence as codified any evidence having a tendency in reason to establish a material fact is relevant and may be admitted in evidence. (See K. S. A. 60-401 et seq.) Some specific exclusions are set forth in the code, such as hearsay, but admissions of a party are proper under K. S. A. 60-460 (g). It reads as follows:
“Admissions by parties. As against himself a statement by a person who is a party to the action in his individual or a representative capacity and if the latter, who was acting in such representative capacity in maldng the statement;”
In Musick v. Enos, 95 Kan. 397, 148 Pac. 624, it was held:
“. . . The record of a plea of guilty by the defendant to a criminal charge for the same assault was properly received in evidence as an admission. . . .” (p. 398)
In Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 193 P. 2d 656, the plea of guilty was distinguished from the plea of nolo contendere and it was pointed out the latter plea, nolo contendere, is limited to the case in which such plea is entered. The reasoning in Cloonan reaffirmed the use of a guilty plea as an admission in any civil suit based on the same happening.
A plea of guilty to a traffic charge growing out of an accident is an admission of the acts which were the basis of the charge. The plea of guilty may be shown in a civil action growing out of the same accident as an admission of the acts charged.
However, exclusion of the plea of guilty in the present case was not prejudicial error. As shown by answers to special questions the jury found that plaintiff had committed negligence which was a direct and contributing cause of the accident. When answers to special questions by a jury indicate the plaintiff committed negligence which was a direct and contributing cause of his injury and a general verdict is rendered in favor of the defendant prejudicial error cannot be predicated on the exclusion of evidence tending to prove defendant was also negligent. ( Turner v. Railway Co., 106 Kan. 591, 189 Pac. 376; Critchfield v. Ernzen, 181 Kan. 284, 310 P. 2d 930; Cope v. Kansas Power & Light Co., 192 Kan. 755, 391 P. 2d 107.)
Appellant next objects to one of the instructions given by the trial court in defining the extent and effect of immunity granted by statute to the driver of an authorized emergency vehicle.
The instruction to which the appellant objects is as follows:
“The police motorcycle in this case was an emergency vehicle as authorized by law.
“As it pertains to this case, the law provides that upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, the driver of every other vehicle shall yield the right-of-way, and shall immediately drive to a position parallel to and as close as possible to the right hand edge or curb of the street, and shall stop and remain in such position until the authorized emergency vehicle has passed.
“The law also provides that a driver, such as the police officer here, when operating any such vehicle in an emergency or in pursuit of a suspected violator of the law, may exceed established speed limits so long as he does not endanger life or property, and may disregard other traffic regulations governing direction of movement or turning in specified direction so long as he does not endanger life or property. These exemptions, or privileges, shall apply only when the driver of such vehicle sounds a siren and the vehicle displays a lighted red lamp visible from the front. (Emphasis added.)
“The foregoing exemptions, or privileges, shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall it protect the driver from the consequences of his ordinary negligence.
“The law also provides that the operators of vehicles, such as the plaintiff officer here, may assume that other drivers using the city streets will observe the law and he is not guilty of contributory negligence for acting on such assumption until he knows or reasonably should have known to the contrary.”
The portion of this instruction criticized is contained in the paragraph emphasized. Criticism relates to that portion of the instruction which states the driver of the emergency vehicle is required to sound a siren and display a lighted red lamp visible from the front.
The appellant correctly points out that, although authorized emergency vehicles are required under K. S. A. 8-505 (d) to use both audible and visual signals, a police vehicle need not be equipped with or display a red light.
However, this apparent error in the instructions did not affect plaintiff’s rights prejudicially. The evidence established the motorcycle was equipped with and displayed a red light. In answer to special questions the jury found plaintiff’s negligence to be, “He was aware of traffic conditions at the time and did not use proper judgment to avoid impending accident”. Negligence • which prevented plaintiff’s recovery was not based upon failure to display a red light.
Appellant further complains that this instruction did not advise the jury of the proper degree of care required of him as the operator of an emergency vehicle. Appellant contends under the statutes he is entitled to recover for the negligence of others unless he has acted in “reckless disregard of the safety of others”.
The wording of these statutes which grant immunities does not appear consistent. The statutes must be construed, if possible, so as to harmonize their various provisions and give reasonable effect to all.
The rule of construction was set forth in Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772 as follows:
“In construing a statute the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. (Citing cases.)” (p. 635.)
The act regulating traffic appears in Chapter 8, Article 5 o£ Kansas Statutes Annotated. This act provides a comprehensive set of rules governing speed, movement and parking of vehicles on streets and highways. The rules apply to the motoring public in general but immunities are granted to certain authorized emergency vehicles. Emergency vehicles may exceed maximum speed limits and disregard rules governing direction of movement. (K. S. A. 8-505 [c].) These statutes relating to emergency vehicles and granting the immunities recite the “provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons”.
K. S. A. 8-505 (e) provides:
“The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his ordinary negligence or reckless disregard for the safety of others.” (Emphasis added.)
K. S. A. 8-536 relating to speed limitations provides:
"The speed limitations set forth in this act shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren or exhaust whistle. This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street or highway, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.”
K. S. A. 8-554 requires other drivers to yield the right of way and includes the following provision:
“(c) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”
The term “ordinary negligence” is included only in K. S. A. 8-505 (e). All three statutes direct that the driver of an emergency vehicle shall not be relieved from the duty to drive with due regard for the safety of all persons. The first two statutes contain the additional statement, “nor shall such provision protect the driver from the consequences of a reckless disregard for the safety of others”.
In construing these various statutes we must determine what standard of care was intended by the legislature. Will ordinary negligence bar recovery by the operator of a police vehicle or is he barred from recovery only on a showing of wantonness or reckless disregard?
In Duran v. Mission Mortuary, supra, we held that recovery against the drivers of authorized emergency vehicles was based upon ordinary negligence, lack of due care. However, the effect of the present statutes was not discussed.
The appellant contends, if we apply the test of ordinary negligence in barring recovery, the immunities granted in these statutes are meaningless because the officer enjoys no immunity if he has an accident. In other words the statutes grant him no protection the ordinary motorist does not enjoy.
We do not agree.
If a motorist drives a motor vehicle at a rate of speed in excess of a speed limit he is violating a statute. The violation is prima facie negligence in that his actions in exceeding the speed limit are not in accord with a statutory standard of due care set for a reasonable prudent motorist. (Barshfield v. Vucklich, 108 Kan. 761, 197 Pac. 205.) In such case if this prima facie showing of negligence is, under the circumstances, a direct cause of the injuries received a prima facie case of actionable negligence is shown. (Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158.) The violation of the law governing the speed of motorists shows a lack of due care and constitutes negligence.
In construing the present statutes granting immunity to drivers of emergency vehicles we must assume the legislature had these basic principles in mind.
K. S. A. 8-505 (c) provides:
“The driver of an authorized emergency vehicle may: (1) Park or stand, irrespective of the provisions of this act. (2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation. (3) Exceed the maximum speed limits so long as he does not endanger life or property. (4) Disregard regulations governing direction of movement or turning in specified directions.”
The legislature enumerated four areas in which the operator of an emergency vehicle is not required to comply with traffic regulations. In those areas of regulation his failure to comply with the law is not a violation of the traffic regulations. It follows that the statutory standard of reasonable speed, etc. does not apply to him. Prima facie negligence cannot be predicated upon a showing he exceeded a set speed limit if he is operating as an emergency vehicle under the statute. However, if he operates his vehicle at such speeds and under such circumstances as to indicate a reckless disregard for the safety of others he may be negligent. He is negligent, not because he exceeded the speed limit, but because he failed to use such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances.
The legislature requires the driver of an authorized emergency vehicle to drive with due regard for the safety of all persons. (K. S. A. 8-505 [e], 536, 554 [c]). The same standard of care must apply regardless of whether the operator sues or is being sued.
The proper standard of care required of the driver of an emergency police vehicle is the standard of care of a prudent man in the discharge of official duties of a like nature under like circumstances. (McKay v. Hargis, 351 Mich. 409, 88 NW 2d 456; Edberg v. Johnson, 149 Minn. 395, 184 NW 12; Heimer v. Salisbury, 108 Conn. 180, 142 A. 749.)
We see no material prejudice to- plaintiff’s substantial rights when the instructions are examined in the light of what has been said. The privileges extended to a police officer under K. S. A. 8-505 (c) as the operator of an authorized emergency vehicle do not relieve him from the duty to drive with due regard for the safety of all persons using the highway. He must use such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances.
Although the instruction given is not a model for clarity or brevity it was sufficient to properly advise the jury on the law under the circumstances of the present case.
A fourth point presented and argued relates to testimony elicited on cross-examination of appellant concerning several other motorcycle accidents.
Specific instances of conduct generally are inadmissible in evidence to prove the quality of conduct on any subsequent occasion. (Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67; See also K. S. A. 60-448 and 60-422 [d].)
On cross-examination officer Scogin was asked concerning specific accidents he had had with his police motorcycle. The motorcycle had been damaged eight times and he had received injuries in at least two instances. No objection to this line of questioning was interposed until he had been questioned as to three separate accidents. At that time counsel made the following objection:
“Your Honor, I’m going to object to this unless there’s some evidence that the officer was injured. Prior accidents or subsequent accidents with the cycle have no relevancy in proving what happened out there on that day. This is—all these officers have accidents with these cycles, but unless there’s something about the injuries it’s not relevant.”
The court ruled:
“This is proper cross-examination for the issues in this case if the proof for these incidents exists, but the proof must exist.”
The officer was further questioned and testified of an injury to his elbow and knee in May 1964 and of wearing a brace in 1965.
K. S. A. 60-404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
The specific ground of the objection in the present case is not clear on the record before us. The first sentence of the objection indicates it is based upon lack of a showing injuries were received in these accidents. The second sentence contains a more general objection that specific instances of conduct are inadmissible to prove the quality of conduct on the present occasion. However, the third sentence again directs the court’s attention to a lack of injuries.
The court’s ruling in admitting the evidence does not show the basis upon which it was admitted.
This evidence of prior injuries received might be relevant on the extent of appellant’s injuries in the present accident. The testimony did show he had previously injured his elbow and knee, had treatment from Dr. Hidaka and wore a brace. His present injuries included damage to his elbow and knee.
K. S. A. 60-406 provides:
“When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”
The appellant made no request to restrict this evidence to its proper scope as required by the foregoing statute.
A verdict should not be set aside and a judgment based thereon should not be reversed by reason of the admission of evidence admissible for a limited purpose only unless there appears of record an objection so stated as to make clear the specific ground of the objection and a request to restrict the evidence to its proper scope. •
No contemporaneous objection was made as to the first two accidents and no request was made to restrict the evidence to its proper scope. Error in such case is held harmless error under K. S. A. 60-261 and judgment on appeal is rendered pursuant to the directions of K. S. A. 60-2105 without regard to technical errors and irregularities.
The final point raised concerns the special questions submitted to the jury. They are as follows:
“1. Did the plaintiff commit negligence?
“Answer: Yes.
“If so, then state of what such negligence consisted. ‘He was aware of traffic conditions at the time and did not use proper judgment to avoid impending accident.’
“2. Did the defendant, Nugen, commit negligence?
“Answer: . . .
‘If so, then state of what such negligence consisted. . . .
“3. Did the defendant, Napier, commit negligence?
“Answer: No.”
The appellant submits these questions were not given under proper instructions.
We have examined the court’s instructions and the special questions. The form and substance of the questions appear proper in light of the instructions given. The number and form of special questions are subject to the control of the trial judge and he should give such explanation or instruction as may be necessary to enable the jury to make answers to the interrogatories and to render a general verdict. (K. S. A. 60-249 (b); McKinley-Winter Livestock Commission Co. v. Fletcher, 185 Kan. 637, 642, 347 P. 2d 248.)
Failure of the court to use the terms “contributory negligence” and “direct cause” in explaining the special questions to the jury is of no consequence when the formal instructions fully cover these matters. (Holt v. Bills, 189 Kan. 14, 16, 366 P. 2d 1009.)
Failure of the jury to answer a special question is not prejudicial error when no request is made to require an answer and the general verdict is consistent with those special questions answered. (Brenneman v. Fleming, 101 Kan. 393, 395, 166 Pac. 482.)
The answers given to the special questions were entirely consistent with the general verdict. The acts of negligence which the jury found to have been committed by plaintiff were within the issues of fact recited in the pre-trial order. They were supported by the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Luckert, J.:
Tyrone Mebane appeals the denial of a motion to correct illegal sentence in which Mebane argued the sentencing judge erred when the judge did not address Mebane personally as required by K.S.A. 22-3424(e) to inquire if Mebane wished to present any evidence in mitigation of punishment. Mebane also appeals the district court’s denial of a motion for a nunc pro tunc order clarifying Mebane’s controlling minimum sentence. Finally, Me-bane argues that the district court erred in summarily denying the motions without appointing counsel and holding an evidentiary hearing in Mebane’s presence. We reject Mebane’s arguments and affirm.
In 1985, a jury convicted Mebane of two counts of aggravated kidnapping, two counts of aggravated sodomy, and one count each of rape and aggravated burglary. Mebane was originally sentenced to life on each aggravated kidnapping conviction, 45 years to life on each aggravated sodomy conviction, 45 years to life on the rape conviction, and 15 to 45 years on the aggravated burglary conviction. Each of the sentences was enhanced pursuant to the Habitual Criminal Act, K.S.A. 21-4504. All sentences were ordered to run consecutive to each other.
On direct appeal, this court affirmed Mebane’s convictions but reversed for resentencing because the district court had failed to order that Mebane’s sentences run consecutive to a sentence from which Mebane was on parole at the time of the offenses. State v. Mebane, No. 59,601, unpublished opinion filed March 27, 1987.
Mebane was resentenced on May 12, 1987. The district court reimposed the same sentences it had originally imposed on Me-bane, except that it ordered all of the sentences to run concurrent with one another but consecutive to sentences imposed in two 1982 cases.
In September 2001, Mebane filed the motions from which this appeal arises: a motion for correction of illegal sentence pursuant to K.S.A. 22-3504, a motion for nunc pro tunc order clarifying his sentence, and an ex parte application for appointment of counsel to assist Mebane in presenting both motions.
The district court summarily denied Mebane’s motion for correction of an illegal sentence and also denied his request for the appointment of counsel to represent him at an evidentiaiy hearing. Mebane timely appealed, and the district court appointed appellate counsel to represent Mebane.
This court temporarily remanded the case to the district court for the purpose of disposing of Mebane’s motion for nunc pro tunc order clarifying his sentence. The district court entered an order denying the motion in January 2003. This court’s jurisdiction is pursuant to K.S.A. 22-3601(b)(l) (defendant convicted of class A felony).
Did the District Court Err In Denying the Motion to Correct an Illegal Sentence Which Alleged That the District Court Failed to Provide Mebane Proper Allocution, as Required by KSA. 22-3424?
In his motion to correct an illegal sentence, Mebane argued that the district court, at both his original sentencing and at his resent-encing, had denied Mebane’s statutory right of allocution by failing to ask him whether he had evidence to present in mitigation of punishment. Mebane argued that he would have introduced evidence that at the time of the offenses, trial, and sentencing, he was “laboring under the effect of a severe mental and/or physical defect/illness.” In this appeal, Mebane limits his argument to the resentencing.
At the resentencing, the district court asked, “So before I pronounce the resentence, is there anything that either the defendant or defense counsel or the prosecutor wish to state at this time to the court?” Defense counsel requested that the court consider'imposing concurrent sentences rather than consecutive sentences. The court then asked, “Mr. Mebane, do you have anything that you wish to say at this time to the court and put on the record?” Mebane responded:
“Well, [your] Honor, I understand the reason I’m here today. And I’m [unreadable steno outline] right at two years now. I have learned a lot since I have been gone. I just ask that — I put myself at the — I just place myself at the mercy of the court and ask that they will, before I be sentenced, go together in this matter.”
After hearing from the prosecutor, the court again asked, “Anything else before I pronounce the resentence?” Defense counsel responded, “Nothing from the defendant, your Honor.” The court then resentenced Mebane to concurrent terms.
Mebane argues that he was deprived of his right to allocution because the district court failed to allow him to present evidence in mitigation of punishment. K.S.A. 22-3424(e)(4) requires the district court, before imposing sentence, to “address tire defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.” (Emphasis added.) This court has held that K.S.A. 22-3424(e) establishes a right of allocution which cannot be waived by the defendant’s silence or by the argument of counsel. State v. Hunt, 257 Kan. 388, 405, 894 P.2d 178 (1995).
Mebane is correct, as the State concedes, that he was denied full allocution at his resentencing because tire district court never asked him whether he wished to present any evidence in mitigation of punishment. The State argues, however, that the denial of allocution was not reversible error.
To begin our analysis of Mebane’s motion we must consider whether a denial of allocution is the type of error subject to correction by a motion to correct an illegal sentence pursuant to K.S.A. 22-3504. An illegal sentence has been defined as “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. [Citations omitted.]” State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997).
Mebane’s sentence was clearly imposed by a court with jurisdiction, and his sentence is unambiguous. His sentence conforms to the statutory provisions regarding class A, B, and C felonies and the Habitual Criminal Act. The district court’s failure to comply with the statute requiring allocution does not mean that Mebane’s sentence “does not conform to the statutory provision, either in the character or the term of the punishment authorized.” Thus, Mebane’s sentence is not an illegal sentence.
This conclusion is supported by the fact that the denial of allo-cution is an error which may be waived by a defendant under certain circumstances. See State v. Bowen, 259 Kan. 798, Syl. ¶ 3,915 P.2d 120 (1996) (defendant waives right to allocution by failing to raise issue in motion to modify sentence). Clearly, an error which may be waived by a defendant if not raised in a timely manner cannot be the equivalent of an illegal sentence which, by statute, may be corrected at any time.
Moreover, a motion to correct an illegal sentence filed more than 10 days after sentencing has been treated as a motion filed pursuant to K.S.A. 60-1507. See State v. Duke, 263 Kan. at 195-96. Proceedings under K.S.A. 60-1507 “cannot ordinarily be used as a substitute for direct appeal involving mere trial errors.” Supreme Court Rule 183 (2003 Kan. Ct. R. Annot. 213).
Mebane filed no direct appeal and instead waited more than 14 years before filing his motion to correct an illegal sentence. The district court correctly denied Mebane’s motion on the ground that the allocution issue should have been raised in a direct appeal from his resentencing. For this same reason, any arguments Mebane asserts regarding his original sentence also fail.
Did the District Court Err in Refusing to Grant a Nunc Pro Tunc Order Clarifying that Mebane’s Controlling Minimum Sentence is Life (with Parole Eligibility after 15 Years) Rather than 45 Years-to-Life?
In his motion for a nunc pro tunc order to clarify his sentence, Mebane requested that the court issue a nunc pro tunc order accurately setting out the date his sentence began, stating the amount of court costs owed, and stating the exact number of times Mebane had been incarcerated. On appeal, Mebane argues that the district court erred in refusing to grant a nunc pro tunc order clarifying his sentence. Specifically, Mebane contends that his controlling minimum sentence is life (with parole eligibility after 15 years) rather than 45 years-to-life (with parole eligibility after 22% years).
In the motion for nunc pro tunc journal entry filed with the district court, Mebane raised different arguments, only one of which was similar to the one he now raises on appeal. In his motion, Mebane requested a nunc pro tunc journal entry accurately setting out the date his sentence began, stating the amount of court costs owed, and stating the exact number of times Mebane had been incarcerated. With regard to his first request, Mebane complained that the parole board had used an incorrect sentence begins date to calculate his parole eligibility; thus, he was not allowed to see the Parole Board until 3 months after he was actually parole eligible.
On this issue, the district court ruled:
“The defendant on issue number one claims that he was prejudiced in being denied a hearing before the Kansas Parole Board. He argues that due to an incorrect computation of his sentence-begin-date [sic] he was eligible for parole consideration as of June 21, 2000, but mistakenly not given an opportunity to appear before the board until September 21, 2000. This court has reviewed the Journal Entry and record herein and determines that the relief prayed for by the defendant relative to this issue is moot in that while even if delayed, the defendant has now, prior to filing this motion, been afforded an appearance before the Kansas Parole Board.”
Mebane then filed a motion for reconsideration, pointing out that, while his motion for nunc pro tunc order was pending with the district court, the Parole Board had changed his controlling sentence to 22% years and refused to grant another parole hearing until 2007.
The State persuasively argues that any complaint regarding the Parole Board’s computation of parole eligibility is not properly brought via a motion for nunc pro tunc order, the purpose of which is to correct actual clerical errors or errors arising from oversight or omission. See State v. Vanwey, 262 Kan. 524, Syl. ¶ 2, 941 P.2d 365 (1997). Rather, Mebane should bring an action pursuant to K.S.A. 2003 Supp. 60-1501 in the county where he is incarcerated. See Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 608, 812 P.2d 761 (1991) (habeas corpus action under 60-1501 is proper means to challenge any decision of the Kansas Parole Board).
Mebane’s argument is also unpersuasive on its merits. His argument involves the interpretation of two different statutes, K.S.A. 2003 Supp. 22-3717 and K.S.A. 21-4608. K.S.A. 2003 Supp. 22-3717 provides in relevant part:
“(a) Except as otherwise provided by this section, K.S.A. 1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638 and amendments thereto, .and K.S.A. 8-1567, and amendments thereto, an inmate, including an inmate sentenced pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for parole after serving the entire minimum sentence imposed by the court, less good time credits.
“(b)(3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its repeal, an inmate sentenced for a class A felony committed before July 1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits.”
K.S.A. 21-4608 provides in relevant part:
“(f) The provisions of this subsection relating to parole eligibility shall be applicable to persons convicted of crimes committed prior to January 1, 1979, but shall be applicable to persons convicted of crimes committed on or after that date only to the extent that the terms of this subsection are not in conflict with the provisions of K.S.A. 22-3717 and amendments thereto. In calculating the time to be served on concurrent and consecutive sentences, the following rules shall apply:
(1) When indeterminate terms run concurrently, the shorter minimum terms merge in and are satisfied by serving the longest minimum term and the shorter maximum terms merge in and are satisfied by conditional release or discharge on the longest maximum term if the terms are imposed on the same date.”
Essentially, Mebane’s argument is that, pursuant to K.S.A. 21-4608(f), his 45-year minimum terms merge into and are satisfied by serving his longest minimum term, which is life. With a controlling sentence of life, Mebane then contends that he is eligible for parole after 15 years pursuant to K.S.A. 2003 Supp. 22-3717(b)(3).
However, Mebane’s life sentences for aggravated kidnapping are not truly indeterminate sentences and they have no minimum or maximum term. See State v. Van Winkle, 256 Kan. 890, 899, 889 P.2d 749 (1995) (term for a class A felony is imprisonment for life, which is not an indeterminate sentence). Therefore, Mebane’s longest minimum terms are his 45-year minimum terms.
As pointed out by the State, the result of Mebane’s argument would be to ignore his 45-year minimum terms for rape and aggravated sodomy. This is an unreasonable and illogical result. Under 22-3717(a), an inmate must serve his “entire minimum sentence” less good time credits before becoming eligible for parole.
Furthermore, K.A.R. 44-6-101(b)(4) defines “controlling sentence” as “the sentence made up of the controlling minimum term and controlling maximum term of any sentence or composite sentence . . . made up of two or more sentences, whether concurrent or consecutive, that results in the longest prison term.”
Mebane must serve a minimum sentence of 45 years.
Did the District Court Abuse its Discretion by Summarily Denying Mebane’s Motions without Granting an Evidentiary Hearing, Requiring Mebane’s Presence, and Appointing CounselP
In summarily denying Mebane’s motion to correct an illegal sentence, the district court found:
“1. That the merits of this motion may be decided based upon the record as it now exists and is before the court;
“2. That no evidentiary hearing would be of benefit to the court;
“3. That the presence of the defendant in Wyandotte County, Kansas is not necessary for a determination of the merits of said motion;
“4. That the defendant’s motion for appointment of attorney to represent him in this matter is not necessary and is therefore denied;
“5. That the defendant’s claim that he was illegally sentenced due to the court’s failure to allow him his right to allocution is without merit.”
K.S.A. 22-3504 provides that a defendant “shall have a right to a hearing, . . . to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” This court has interpreted K.S.A. 22-3504 not to require a full hearing upon the filing of every motion to correct an illegal sentence. Rather, when a defendant files such a motion, the district court has a duty to make a preliminary examination of the motion to determine if substantial issues of law or fact are raised. If there are none, the court may summarily dismiss the motion. Only if the court finds that the motion raises substantial issues of law or fact must the court then hold a hearing in the presence of the defendant with defense counsel. State v. Duke, 263 Kan. at 196.
In State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000), this court held that the State’s alleged violation of a plea agreement did not fall within the definition of “illegal sentence” as contemplated by K.S.A. 22-3504(1); therefore, the defendant’s motion to correct an illegal sentence did not raise a substantial issue and was properly dismissed by the district court. Similarly, in this case the district court correctly determined that Mebane’s motion to correct an illegal sentence did not raise a substantial issue.
Furthermore, K.S.A. 22-3504(2) does not require a hearing and appointment of counsel for motions for nunc pro tunc orders.
Accordingly, under the facts of this case, the district court did not err in deciding Mebane’s motions without holding an eviden-tiary hearing in Mebane’s presence or appointing counsel.
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The opinion of the court was delivered by
Nuss, J.:
In connection with a case brought by Kathy Hallam, Julie Ogden, and Nancy Ragan against Mercy Health Center of Manhattan, Inc., Judge Monti L. Belot of the United States District Court for the District of Kansas certified the following questions for determination by this court, pursuant to K.S.A. 60-3201:
“1. What is the statute of limitations [in Kansas] on a claim for outrage and intentional infliction of emotional distress?”
“2. If the answer to question 1 is 1 year, does this ruling apply retroactively or prospectively?”
We hold that the statute of limitations for a claim of outrage and intentional infliction of emotional distress is 2 years and that the second question is, therefore, moot.
FACTS
The relevant facts set out in Judge Belot’s Memorandum and Order of Certification to the Kansas Supreme Court are as follows:
“Plaintiff Julie Ogden claims to be Edward Ogden’s daughter. The relationship of the other two plaintiffs to Edward is not alleged in the complaint but in their response to defendant’s motion to dismiss, it is stated that they also are daughters. The court will assume that they are.
“Edward, not legally married, died at defendant’s hospital on August 28, 2001. Plaintiffs contend that Amy Chaplin, one of defendant’s employees, obtained consent from Pat Kunz for organ and tissue donation of certain parts of Edward; that Chaplin obtained Kunz’s consent on the basis that Kunz was Ogden’s common law wife, even though no such relationship existed and that Chaplin spoke with Julie, but did not ask her about organ and tissue donation or the marital status of Edward and Kunz. Based upon Kunz’s consent, defendant harvested Edward’s eyes and bone marrow, allegedly for the purpose of monetary gain and compliance with quotas.
“Plaintiffs seek actual damages based upon claims of defendant’s negligent failure to properly train Chaplin, intentional infliction of emotional distress, conversion, fraud and outrage. In addition, plaintiffs seek punitive damages.
“Plaintiffs filed this case on May 23, 2003, approximately 21 months after Edward’s death. Pursuant to Fed. R. Civ. P. 12(b)(6), defendant now moves for dismissal of plaintiffs’ intentional infliction of emotional distress and outrage claims on the basis that they are barred by Kansas’ one year statute of limitation. K.S.A. 60-514(b). Defendant also seeks dismissal of plaintiffs’ fraud and conversion claims on the basis that plaintiffs cannot recover damages on those claims as a matter of law. Finally, defendant asserts that because plaintiffs have no claims upon which they can recover actual damages, their claim for punitive damages also must be dismissed. Defendant does not address plaintiffs’ negligent failure to train claim.
“Plaintiffs respond that the statute of limitation on plaintiffs’ intentional infliction of emotional distress and outrage claims is two years, that plaintiffs had ‘quasi property rights’ in Edward’s body which allow them to recover damages on their fraud and conversion claims and therefore entitle them to maintain their punitive damages claim.”
ANALYSIS
Question 1: What is the statute of limitations in Kansas on a claim for outrage and intentional infliction of emotional distressP
We preliminarily observe that the tort of outrage is the same as the tort of intentional infliction of emotional distress under Kansas law. Dawson v. Prager, 276 Kan. 373, 388, 76 P.3d 1036 (2003). Plaintiffs argue that the applicable statute of limitations for this tort is 2 years. They rely primarily upon K.S.A. 2003 Supp. 60-513(a)(4) and this court’s decision in Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976).
In turn, defendant argues that the statute of limitations is 1 year, relying primarily upon K.S.A. 60-514(b) and the Court of Appeals’ decision in Curts v. Dillard’s, Inc., 30 Kan. App. 2d 814, 48 P.3d 681 (2002).
K.S.A. 2003 Supp. 60-513(a), relied upon by plaintiffs, is the general statute of limitations for tort actions and provides for a 2-year statute of limitation period from the time the cause of action accrues. See v. Hartley, 257 Kan. 813, 820, 896 P.2d 1049 (1995). K.S.A. 2003 Supp. 60-513(a) lists the actions limited to 2 years, stating:
“(a) The following actions shall be brought within two years:
(1) An action for trespass upon real property.
(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
(5) An action for wrongful death.
(6) An action to recover for an ionizing radiation injury as provided in K.S.A. 60-513a, 60-513b and 60-513c, and amendments thereto.
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.” (Emphasis added.)
Plaintiffs assert that subsection 4, as italicized above, applies to the tort in the instant case.
On the other hand, K.S.A. 60-514, relied upon by defendant, lists the actions limited to one year, stating:
“The following actions shall be brought within one year:
(a) An action for libel or slander.
(b) An action for assault, batteiy, malicious prosecution, or false imprisonment.
(c) An action upon statutory penalty or forfeiture.
(d) An action brought pursuant to K.S.A. 43-173. Such action shall be brought within one year from the date of discharge or threat of discharge from employment.”
Among other things, defendant argues that outrageous conduct is similar in nature to the common-law tort of assault, an intentional tort, which is subject to a 1-year limitation pursuant to subpara-graph (b). Plaintiffs respond that some other types of intentional conduct are nevertheless subject to the 2-year limitation pursuant to K.S.A. 2003 Supp. 60-513(a)(4) (injury to the rights of another, not arising on contract, and not herein enumerated). See Resolution Trust Corp. v. Scaletty, 257 Kan. 348, 353, 891 P.2d 1110 (1995) (breach of fiduciary duty); Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 111, 991 P.2d 889 (1999) (retaliatory discharge).
The parties also clash on the applicability of Johnston v. Farmers Alliance Mut. Ins. Co., 218 Kan. 543, where the plaintiff brought suit based upon employment termination. There we considered whether his causes of action against defendants for retaliatory discharge, outrage, and tortious interference with employment contract sounded in tort or contract. As the plaintiffs point out, this court held that all the causes of action sounded in tort, and that the trial court correctly granted defendants’ motions for summary judgment because the plaintiff failed to bring the action within the 2-year statute of limitations — K.S.A. 1975 Supp. 60-513(a)(4). 218 Kan. at 548.
Defendant in the instant case responds that Johnston is not persuasive because it allegedly does not address the specific question certified by Judge Belot in the instant case. Nevertheless, in Lasley v. Hershey Foods Corp., 35 F. Supp. 2d 1319 (D. Kan. 1999), United States District Court Judge John Lungstrum cited Johnston to hold that a claim for intentional infliction of emotional distress was barred by the 2-year statute of limitations set forth in 60-513(a)(4). “Plaintiff does not dispute that her tort claims are governed by 60-513(a)(4) and, indeed, the Kansas Supreme Court has so held.” 35 F. Supp. 2d at 1322.
A number of his federal colleagues have agreed. Desmarteau v. City of Wichita, 64 F. Supp. 2d 1067, 1083 (D. Kan. 1999) (“plaintiff s claim of intentional infliction of emotional distress, which is subject to a two-year limitations period under K.S.A. 60-513[a][4], is also time-barred”); Newell v. Kmart Corp., No. 97-2258-KHV, 1998 WL 230966, at *6 (D. Kan. April 6, 1998) (“Defendant is correct that under K.S.A. 60-513[a][4], a tort action [for outrage] must be filed within two years from the date of the act or conduct relied upon to prove the claim.”); Manning v. Blue Cross & Blue Shield of Kansas, Inc., No. 86-4144-R, 1987 WL 18821, at *1-2 (D. Kan. Aug. 17, 1987) (tort of outrage time-barred by 2-year statute of limitations contained in K.S.A. 60-513).
In addition to arguing purported distinctions in Johnston, the defendant largely relies upon language from a Court of Appeals case decided after Johnston and the federal cases noted above — Curts v. Dillard’s, Inc., 30 Kan. App. 2d 814, 48 P.3d 681 (2002) — and upon a federal case citing Curts. See Moore v. Luther, 291 F. Supp. 2d 1194 (D. Kan. 2003). Defendant’s arguments are unpersuasive for several reasons. First, Curts is inapplicable. Second, and most important, this court’s decision 4 years earlier in P.W.P. v. L.S., 266 Kan. 417, 969 P.2d 896 (1998), clearly answers the certified question.
In P.W.P. v. L.S., this court directly considered whether the statute of limitations had run in a case where a patient sued her therapist and a mental health center for negligence, intentional infliction of emotional distress, and refund of money paid for financial assistance provided to the therapist and her family. The district court held that the patient’s claims for damages against the defendants were tort claims barred by the 2-year statute of limitations. This court affirmed the district court’s summary judgment for defendants, specifically holding, among other things, that the statute of limitations regarding the claims against the therapist was “the period of 2 years as provided under 60-513(a)(4).” 266 Kan. at 423. We also stated that the statute of limitations regarding the claim against the mental health center, as a statutorily-defined health care provider, was the 2 years as provided under 60-513(a)(7). Accordingly, any ambiguity in Johnston, as argued by our defendant, was eliminated 22 years later.
None of the parties on appeal address P.W.P. Instead, they argue about whether Curts is applicable. The arguments are moot since P.W.P., a decision of this court, controls the decision in Curts. See Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998) (Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from that precedent).
Even absent Johnston and P.W.P., however, Curts (and Moore v. Luther which cites Curts) provides no assistance to defendant in the instant case. In Curts, the district court dismissed the plaintiffs claims “for false imprisonment, assault, and negligence per se as barred by the statute of limitations; and the claims of outrage and negligent infliction of emotional distress for failure to state a claim upon which relief can be granted. See K.S.A. 60-212(b)(6).” 30 Kan. App. 2d at 814.
The only issue for resolution by the Curts court was stated as follows at 30 Kan. App. 2d at 814: “Plaintiffs appeal only the dismissal of their claim for negligent infliction of emotional distress, claiming the trial court erred in holding their failure to allege physical injury barred the claim. We disagree and, thus, affirm the trial-court. The issue facing us is narrow . . . .”
Accordingly, after considering the claim of negligent infliction of emotional distress and finding that the plaintiff had not alleged a physical injury and had not alleged that the defendant acted in a willful or wanton manner or with the intent to injure, the court upheld the district court, stating, “The trial court did not err in dismissing plaintiffs’ claim of negligent infliction of emotional distress for failing to allege physical injury.” 30 Kan. App. 2d at 816. The court’s next sentence stated: “The claim was time barred by the 1-year statute of limitations contained in K.S.A. 60-514(b).”
The second sentence is dicta as it was unnecessary for the resolution of the “narrow issue” that was actually before the court, i.e., whether the plaintiff had stated a claim under K.S.A. 60-212(b)(6) when it failed to allege physical injury. Moreover, tire sentence is disapproved given our holdings in Johnston and P.W.P.
As mentioned, defendant also argues that the tort of outrage has roots in the common-law tort of assault, and thus should have the same statute of limitations as the tort of assault, citing the Restatement (Second) of Torts § 46, comment b (1965), which states:
“As indicated in Chapter 47, emotional distress may be an element of damages in many cases where other interests have been invaded, and tort liability has arisen apart from the emotional distress. Because of the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability, the law has been slow to afford independent protection to the interest in freedom from emotional distress standing alone. It is only within recent years that the rule stated in this Section has been fully recognized as a separate and distinct basis of tort liability, without the presence of the elements necessary to any other tort, such as assault, battery, false imprisonment, trespass to land, or the like. This Section may be regarded as an extension of the principle involved in the rules stated in §§ 21-34 as to the tort of assault.” (Emphasis added.)
This argument must also be rejected. As mentioned above, at least twice since this court’s adoption of Section 46 in Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), we have held the statute of limitations for the tort of outrage is 2 years, most recendy in 1998. We do not now retreat from that position. Indeed, our recognition of this 2-year limitation as applied to the medical practitioner’s mishandling of a corpse goes back at least to Alderman v. Ford, 146 Kan. 698, 72 P.2d 981 (1937).
There, a widow sought damages for mental suffering against a surgeon and his assistant for conducting an autopsy on her deceased husband’s body without her consent. The surgeon had cut open the body in order to see whether he would be liable for the husband’s death. The defendants filed motions to dismiss claiming no cause of action was stated; one defendant also claimed that the cause of action was barred by a 1-year statute of limitations. After the trial court granted defendants’ motions, this court held that the petition was sufficient to state a cause of action and that no allegation of physical injury to plaintiff or malice or wantonness was necessary. Regarding the statute of limitations, the court concluded:
“Defendant Ford included in his demurrer the ground that the petition showed on its face that it was barred by the statute of limitations since it shows that it was not brought within one year of the date when the cause of action arose. As will be noted, we have concluded that this action is for any injury to the rights of another and could be maintained within two years of the time when the action arose. (See G.S. 1935, 60-306, third. . . .)” (Emphasis added.) 146 Kan. at 703.
The statute cited is a predecessor to 60-513(a)(4). In fact, since 1868 the law in Kansas has been that “an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated,” is subject to a 2-year statute of limitations. See G.S. 1868, ch. 80, sec. 18.
Defendant directs us to several other states’ court decisions whose holdings we need not address since our position from P.W.P. and other case law is clear. In short, the 1 year limitation under K.S.A. 60-514 does not apply to this claim for outrage and intentional infliction of emotional distress. Instead, under K.S.A. 2003 Supp. 60-513(a)(4), the statute of limitations is 2 years.
Therefore, the answer to the first certified question is: The statute of limitations on a claim of outrage and intentional infliction of emotional distress is 2 years.
Question 2: If the statute of limitations is 1 year, does this ruling apply retroactively or prospectively P
Because we hold that the statute of limitations is 2 years, this question is moot. | [
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The opinion was delivered by
Luckert, J.:
A jury convicted Thomas J. Drennan, Jr., of the first-degree murder of his girlfriend. The trial court sentenced Drennan to a hard 50 life sentence. Drennan appeals his conviction and sentence, arguing the trial court erred in: (1) not giving instructions on lesser included offenses of recldess second-degree murder, voluntary manslaughter, and involuntary manslaughter; (2) admitting evidence of prior bad acts; (3) not suppressing evidence obtained after he was handcuffed, including his statements made before Miranda warnings, and evidence obtained after a war-rantless entry into a home to check the welfare of a possible victim; (4) denying Batson challenges; and (5) imposing a hard 50 sentence.
Facts
At about 2:30 a.m. on August 19, 2002, Jason Levine was awakened by loud banging noises outside his house. Levine saw his neighbor’s boyfriend, Thomas Drennan, outside and confronted him, asking him what was going on. Drennan told Levine to mind his own business and a verbal altercation ensued. While the men were arguing, Levine saw his neighbor, Shelbree Wilson, come out of her house. Shelbree told Drennan to “shut up and get back inside.” Drennan then grabbed Shelbree by the shoulder and neck and pushed her back into the house. Levine heard Shelbree scream, heard “a litde bit of a ruckus,” and then silence. Levine called 911.
Officers Piner and McKee were dispatched to the scene at around 2:50 a.m. for a domestic violence disturbance. Officer Piner had responded to a prior domestic violence disturbance call at the same residence in June 2002, about 2 months earlier. During the investigation of that incident, Shelbree told Officer Piner she was afraid of Drennan and wanted him out of her life and her home but was not sure how to do that. Officer Piner told Shelbree she could apply for a protection from abuse (PFA) order.
When the officers arrived at the home on the night in question, they first spoke with Levine, who described what he had seen and heard. Officer Piner then went to the front door and knocked and rang the doorbell while Officer McKee went around to the side of the garage. Officer Piner received no response to her knocking and heard nothing, so she joined McKee. Through an open exterior door into the garage, the officers then saw Drennan step out of the house and into the garage. The officers asked Drennan to step outside and speak with them, but Drennan was initially unresponsive. He seemed oblivious to the officers’ presence. Drennan appeared very sweaty and was wearing only shorts, no shirt or shoes. When Drennan finally came outside, Officer McKee asked him what was going on and where his wife was. Again, Drennan did not respond. Drennan had a glazed-over look and appeared agitated; he also had an odor of alcohol about him.
Officer McKee asked Drennan to turn around so he could pat him down for weapons. Drennan was not cooperative and tried to pull away, so both officers physically restrained him and placed him in handcuffs. Officer McKee again asked Drennan where his wife was, and Drennan responded, “Fuck you,” and, “I was going to give you some information, but now you’ll just have to wait and see.” When asked what he meant, Drennan said, “It will come out, it’ll come out.”
Officer Piner also asked Drennan where Shelbree was. Drennan told her, “She’s not here.” When the officer asked again, Drennan said he was not going to tell her. Officer Piner then called her sergeant and received permission to enter the house to check on Shelbree’s welfare. She found Shelbree in a bedroom lying face down on the floor. Shelbree was unconscious but still breathing. Officer Piner saw that a cord from a floor fan was wrapped around Shelbree’s neck with the plug end of the cord wrapped up in Shel-bree’s hair. In checking to make sure the cord was not choking her, Officer Piner found that Shelbree’s fingers were wrapped around the cord.
Approximately 14 hours after she was admitted to the hospital, Shelbree was declared brain dead. Forensic pathologist Dr. Mary Dudley, who conducted the autopsy, testified that the cause of death was lack of oxygen to the brain due to strangulation. Shelbree had a variety of abrasions and contusions; some of her more serious injuries included multiple rib fractures, a small laceration of the liver, and hemorrhaging of the neck muscles. The left side of the hyoid bone (the bone above the Adam’s apple) was fractured, a condition seen almost exclusively as a result of manual strangula tion. Shelbree also had bruising on her fingertips consistent with trying to pull a cord or ligature away from her neck. In Dr. Dudley s opinion, Shelbree died as a result of strangulation and that strangulation could have been a combination of ligature and manual strangulation. A ligature alone, however, would not have caused the fracture of the hyoid bone. Also, there were no ligature marks on Shelbree’s neck. Dr. Dudley also testified that it would have taken at least 4 minutes of continuous pressure blocking blood and oxygen from reaching Shelbree’s brain before brain death occurred. After 4 minutes, the damage was irreversible.
At trial, the State introduced evidence drat Shelbree had obtained two prior PFA orders against Drennan in tire months before the murder, although each had been later dismissed. In one of the supporting affidavits, Shelbree had alleged: “Tom Drennan put his hands around my neck to choke me Saturday night. He also told the neighbors that if they saw him walking out of the house with an axe and blood all over him that they were to call 911 because my body would be in the lake.”
The State also called Stacy Barnes, a former girlfriend of Dren-nan’s, who testified about an incident that had occurred when Drennan was living with her. Barnes testified that on January 22, 1999, Drennan attacked her during an argument. Drennan had two broken legs from an auto accident and was in a wheelchair, but he managed to push Barnes down on the bed and lay on top of her putting his hands on her face and neck. He squeezed Barnes’ neck with one hand and covered her mouth and nose with the other so that she could not breathe. Drennan told Barnes over and over that he was going to kill her. He told her, “In about five seconds, you’re going to be dead,” and counted down the seconds. He told her to prepare to die and get ready to take her last breath. After about 5 to 7 minutes, Barnes was finally able to break free after striking Drennan over the head with a cordless phone. As a result of this incident, Drennan pled no contest to disorderly conduct in city court.
On the night of Drennan’s arrest in this case, Drennan was interviewed by police and a videotape of that interview was played for the jury. In his statement to police, Drennan said that he and Shelbree had been arguing and Shelbree had hit his back. Drennan said he and Shelbree began fighting and the fight moved into the bedroom. Drennan grabbed Shelbree around her chest from behind in an attempt to restrain her, and his hold slipped up to her throat area in what Drennan described as a “choke hold.” The two rolled around on the bed, and Shelbree continued to try to hit Drennan. Drennan ran out of the room to get away from Shelbree, and when he went outside, the police had arrived.
At trial, Drennan testified that he could remember nothing of the fight with Shelbree because he was in an alcoholic blackout. Drennan explained that he had been using cocaine regularly, but could not find any cocaine on the day in question, so he drank more alcohol to compensate for the. withdrawal symptoms he was experiencing. Drennan stated that he began drinking in the late afternoon hours and continued until around 1:30 a.m. A friend who gave Drennan a ride to Shelbree’s home at that time described Drennan as extremely intoxicated, unsteady on his feet, and not very coherent.
Did the Trial Court Err in Refusing to Instruct the Jury on the Lesser Included Offenses of Reckless Second-Degree Murder, Voluntary Manslaughter, and Involuntary Manslaughter?
Drennan was charged with first-degree premeditated murder. The trial court instructed the jury on that offense and on the lesser included offense of second-degree intentional murder. The court also instructed the jury that voluntary intoxication could be a defense to either first-degree or second-degree murder if the evidence showed that intoxication impaired Drennan’s mental faculties to the extent he was incapable of forming the necessary state of mind of premeditation or the necessary intent to kill.
Drennan argues that the trial court denied him a fair trial when it refused to instruct on the lesser included offenses of reckless second-degree murder, voluntary manslaughter, and involuntary manslaughter. The record is not clear as to whether Drennan requested an instruction on voluntary manslaughter. During the instruction conference, defense counsel stated, “I’m not going to argue the voluntary manslaughter. We can’t say, I think — based on the evidence that we put forth that there’s any evidence of a sudden quarrel or argument with the exception of, I would say just once again the video taped testimony that said we got into it, then just kind of ended there.”
Where a defendant does not object to the giving of or failure to give a lesser included offense instruction, stating distinctly the matter to which he or she objects and the grounds of the objection, this court will find reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous. See State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001); K.S.A. 2003 Supp. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Evans, 270 Kan. 585, Syl. ¶ 3.
In addition, Drennan’s appellate brief mentions voluntary manslaughter only in the heading of an issue; he does not make any argument as to voluntaiy manslaughter in the substance of the brief. Rather, Drennan focuses on whether there was evidence that his behavior might have been reckless rather than intentional. An issue incidentally raised but not briefed may be considered abandoned. State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003). Thus, Drennan failed to preserve the issue of whether the trial court erred when it did not give a lesser included offense instruction on voluntary manslaughter.
The record does reflect that during the instruction conference Drennan’s counsel clearly requested instructions on the lesser included offenses of reckless second-degree murder and involuntary manslaughter. Drennan’s appellate counsel suggests that trial counsel’s remarks were also sufficient to preserve a request on voluntary manslaughter.
A trial court must instruct the jury on a lesser included offense “where there is some evidence which would reasonably justify a conviction” of the lesser offense. K.S.A. 2003 Supp. 22-3414(3). “If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.” State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, the appellate court views the evidence in the light most favorable to the defendant. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). “However, the duty to so instruct arises only where there is evidence supporting the lesser crime.” State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999). An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. Hoge, 276 Kan. at 805.
Even if we consider counsel’s ambiguous statements at the instruction conference as sufficient to preserve the issue of whether an instruction on voluntary manslaughter should have been given, there was no evidence to support the elements of that crime. At most, Drennan points to evidence that he and Shelbree were involved in some kind of struggle or altercation when she was killed. Voluntary manslaughter includes the intentional killing of a human being upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). However, to constitute voluntary manslaughter, the killing must have resulted from severe provocation. “The test for whether severe provocation exists is objective, and thé provocation must be sufficient to cause an ordinary person to lose control of his or her actions or reason.” State v. Bell, 266 Kan. 896, 918, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). There was no evidence presented that Drennan was severely provoked; thus, the trial court’s failure to instruct the jury on voluntary manslaughter was not error, much less clear error as is the standard since the instruction on voluntaiy manslaughter was not clearly requested.
Drennan did clearly preserve his request for instructions on reckless second-degree murder and involuntary manslaughter. However, the trial court determined there was no factual basis to support the element of recklessness and refused to give instructions on reckless second-degree murder and involuntary manslaughter. Specifically, the trial court ruled:
“On the issues of second degree reckless, involuntary manslaughter, I don’t find that there is any factual basis to submit the issue of recklessness to the jury. On both cases, the evidence of ligature and/or manual strangulation in the time frame given by Dr. Dudley to cause the mechanism of irreversible brain death, I think she said four or more minutes, at least four minutes, in no way could equate to reckless conduct. It had to be more than that. That the conduct is more than reckless conduct.
“In addition, the testimony of Mr. Drennan doesn’t give me any factual foundation upon which to find any basis in the evidence to render to the jury the issue of reckless conduct. On that basis I’m not going to give the defense’s requested instruction of second degree reckless or unintentional. Nor am I going to give the defense’s requested involuntary manslaughter instruction.”
The State relies primarily upon State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999), in support of its argument that the evidence in this case excluded a theory of reckless murder as required for both second-degree murder and involuntaiy manslaughter. See K.S.A. 2003 Supp. 21-3402(b) (defining reckless second-degree murder, or “depraved heart” murder, as the killing of a human being committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life”); K.S.A. 2003 Supp. 21-3404 (defining involuntary manslaughter, as applicable to this case, as the unintentional killing of a human being committed recklessly).
The facts of Jones were similar to the facts in this case. In Jones, the defendant manually strangled the victim to death. The coroner testified it would have taken approximately 4 to 6 minutes for the victim to die. The defendant claimed he did not intend to kill the victim but that he had just “snapped.” 267 Kan. at 633. Jones was charged with premeditated first-degree murder, and the trial court instructed the jury on the lesser included offenses of intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter.
On appeal, Jones argued that the trial court erred in refusing to give an instruction on reckless second-degree murder. The court rejected Jones’ argument, stating:
“When the evidence in this case is viewed in the light most favorable to defendant, as it must be on a question of instructing on lesser included offenses, it does not support an instruction on reckless second-degree murder. Jones told police that he killed Bagby when he threw her to the floor. His statement, however, cannot be reconciled with the autopsy results and the coroner’s conclusion that her death was the result of manual strangulation, which took 4 to 6 minutes. Jones’ self-serving statement is the only evidence that would tend to support an instruction on reckless second-degree murder. In light of all the other evidence, in particular the objective findings of the pathologist, defendant’s statement is insubstantial and insufficient to support a theory of unintentional killing. [Citation omitted.] All the other evidence excludes a theory of reckless second-degree murder. Bagby died when Jones used his hands to grip her neck hard enough to break pliable bone and cartilage structures and long enough — 4 to 6 minutes — to fatally deprive her of oxygen. His actions were intentional and not reckless. Jones’ self-serving statement does not support a reckless second-degree murder instruction. His conduct is indistinguishable from a defendant’s action in pointing a gun at a victim and pulling the trigger, which is intentional rather than reckless conduct. [Citation omitted.] In State v. Rupe, 226 Kan. 474, 477-78, 601 P.2d 675 (1979), where defendant argued that his use of hands was ‘insufficient to prove an intent to kill,’ the court referred to strangulation as ‘a most effective means of killing.’ ” 267 Kan. at 633.
Jones further argued that he was incapable of forming the intent to kill the victim because of his use of alcohol and cocaine. The court rejected this argument as follows:
“What Jones’ argument does not take into account is that an intoxicated defendant’s being incapable of forming the intent to kill does not transform his or her conduct into conduct so reckless in the circumstances as to manifest extreme indifference to the value of human life. In other words, intoxication can eliminate intent to kill so that the killing is unintentional under the law, but it may not supply the extreme recklessness element of unintentional second-degree murder. Thus, evidence of voluntary intoxication alone will not justify an instruction on reckless second-degree murder as a lesser offense of premeditated first-degree murder.” 267 Kan. at 634.
Drennan argues that this case is factually distinguishable from Jones because Jones involved manual strangulation while, in this case, Drennan placed Shelbree in a “choke hold” from behind during a physical confrontation between them. Drennan contends a reasonable juiy could have found that he recklessly choked Shel-bree by attempting to restrain her in too aggressive a manner and by keeping her in the “choke hold” too forcefully and for too long. Drennan also argues a reasonable juiy could have found that his intoxication impaired his judgment and caused him to act recklessly. Instead, because the juiy was instructed only on first-degree premeditated murder and second-degree intentional murder, Drennan contends the juiy was unfairly forced to either convict Drennan of intentional murder or acquit him.
Drennan’s argument ignores some crucial facts, all of which point to intentional rather than reckless behavior. Shelbree was found with an electric cord around her neck; her fingers were bruised from trying to pull that cord away from her neck. Her injuries were consistent with a combination of manual and ligature strangulation. Furthermore, even accepting Drennan’s version of the facts as true, placing someone in a “choke hold” with such force that it breaks the hyoid bone and causes hemorrhaging of the neck muscles and for such a length of time (at least 4-minutes) that blood and oxygen to the brain are cut off cannot be deemed anything but intentional behavior. Drennan’s attempt to differentiate between a “choke hold” and manual strangulation is not convincing. This case cannot be distinguished from Jones. As in Jones, the trial court’s refusal to give instructions based upon reckless rather than intentional behavior was not error.
Did the Trial Court Err in Admitting K S.A. 60-455 Evidence of Drennan s Prior Violent Abuse of a Former Girlfriend?
The State filed a pretrial motion to allow the introduction of K.S.A. 60-455 evidence of Drennan’s prior attack on Stacy Barnes as relevant to prove intent. Although the trial court did not know what Drennan’s defense was going to be, the court noted a possible defense was “that you didn’t intend to strangle. That the strangling did occur, that it might have been something innocent gone bad.” On that basis, the trial court granted the State’s motion, finding that the incident with Barnes “does seem to directly impact on intent and premeditation.” The trial court gave the appropriate limiting instruction, telling the jury it could consider evidence that Drennan had committed prior crimes only for the purpose of proving intent.
To admit other crimes evidence under K.S.A. 60-455, three requirements must be met. First, the evidence must be relevant to prove one of the facts listed in the statute; in this case, intent. Second, that fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudicial effect. “If these requirements are met, tire scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.]” State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002).
When admitting other crimes evidence to prove intent, the crucial distinction is not whether the crime is a specific or general intent crime, but whether the defendant has claimed his or her acts were innocent. “The relevancy of a prior conviction to the offense charged is linked to the similarity of the two offenses. State v. Synoracki, 253 Kan. 59, 71-72, 853 P.2d 24 (1993).” State v. Gibson, 30 Kan. App. 2d 937, 944, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002).
Drennan argues that Stacy Barnes’ testimony should not have been admitted because Drennan’s criminal intent was not in question, evidence of his attack on Barnes had no probative value, and the extreme prejudice of Barnes’ testimony outweighed any possible probative value. Drennan admitted responsibility for his actions which resulted in Shelbree’s death, but claimed he could not remember those actions and was too intoxicated to have formed any intent to kill Shelbree. Thus, Drennan contends he never claimed his actions were innocent and the only contested issue was whether he was too intoxicated to form the intent to kill Shelbree. Drennan also points out that the trial court, in denying his request for lesser included offense instructions on reckless second-degree murder and involuntary manslaughter, determined that his actions could only have been intentional and not reckless; therefore, intent could not have been at issue.
Drennan misapprehends the meaning of the term “innocent” in this context. Drennan’s actions were susceptible to several interpretations: He acted with premeditated intent to kill, with unpremeditated intent to kill, or with neither premeditation nor intent to kill because of his level of intoxication. Under the last interpretation, Drennan’s actions would have been considered “innocent” in that the jury would have acquitted. In other words, by arguing he was incapable of forming the requisite intent due to his intoxication, Drennan placed his intent at issue.
Furthermore, even where there is no question that a murder was committed intentionally, the element of premeditation may still be substantially at issue. For example, in State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977), the victim was murdered in a particularly brutal manner: the killer had slashed her throat back to the spinal cord and stabbed her repeatedly in and around the heart. Based upon this evidence, the court found there was no question of the perpetrator’s intent to kill. Nonetheless, the court found that evidence of a previous knifing incident against a different victim was relevant to show both identity and “prior intent as related to premeditation.” 221 Kan. at 645. Because of the similarity between the current and prior offense, the court found the evidence was admissible. 221 Kan. at 644-45. In the context of relevancy to prove intent, similarity is also important; however, “[p]roving intent does not require as much detailed similarity as proving identity.” State v. Synoracki, 253 Kan. 59, 73, 853 P.2d 24 (1993).
In this case, there were striking similarities between the attack on Stacy Barnes and the murder of Shelbree Wilson. Drennan had been cohabiting with each of the women, each attack was precipitated by an argument, and each attack involved manual strangulation. Drennan’s statements to Barnes that she should get ready to die and prepare to take her last breath showed that Drennan understood that squeezing the woman’s neck could lead to her death. Thus, the evidence of the attack on Barnes was relevant to show Drennan’s intent and premeditation in the murder of Shel-bree Wilson.
Other cases have upheld the admission of prior crimes evidence under similar circumstances. See, e.g., State v. Boorigie, 273 Kan. at 34-36 (evidence that defendant had committed violence against former wives was admissible to prove identity, intent, plan, and absence of mistake where murder victim had been married to defendant and died of manual strangulation and two former wives testified that when defendant became angry he would grab them around the neck and throw them); State v. Lessley, 271 Kan. 780, 793-94, 26 P.3d 620 (2001) (no abuse of discretion in admission of testimony of defendant’s former wife that defendant was verbally abusive to her when angry, and on two occasions was physically abusive to her, as evidence relevant to issues of motive and intent during prosecution in which defendant was charged with murder ing his former girlfriend after she attempted to end their relationship).
The trial court did not abuse its discretion in admitting evidence . of Drennan’s prior attack on Stacy Barnes.
Did the Trial Court Err in Refusing to Suppress Evidence Obtained as the Result of an Illegal Search of Drennan s Home As Well As Drennan’s Statement During InterrogationP
Drennan filed a pretrial motion to suppress any evidence obtained as the result of the allegedly illegal entry into his home, as well as statements he made to police outside the home and before he was read Miranda warnings. For the first time on appeal, Dren-nan also argues that the trial court should have suppressed the statements he made during the interrogation at the police station as “fruit of the poisonous tree.”
Officers Warrantless Entry into Residence
The trial court denied Drennaris motion to suppress, ruling that Officer Piner’s entry into the residence was justified by the emergency doctrine exception to the warrant requirement.
Drennan takes issue with the trial court’s findings. On a motion to suppress evidence, this court reviews the facts underlying the trial court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. Although the court does not reweigh the evidence, the ultimate determination of suppression is a legal question requiring independent determination. State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 (2003).
A search conducted without a warrant is per se unreasonable unless it meets one of several recognized exceptions to the warrant requirement: “ ‘consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses.’ [Citations omitted.]” Mendez, 275 Kan. at 420-21 (quoting State v. Baughman, 29 Kan. App. 2d 812, 814, 32 P.3d 199 [2001]). The rationale of the emergency doctrine exception was explained by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978):
“We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ [Citation omitted].”
In Mendez, this court reiterated the three-part test for determining if the emergency doctrine applies:
“ ‘ “(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“ ‘ “(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“ ‘ “(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” [Citation omitted.]’ ”. Mendez, 275 Kan. at 425 (quoting State v. Jones, 24 Kan. App. 2d 405, 413, 947 P.2d 1030 [1997]).
The State has the burden of satisfying each element. State v. Horn, 278 Kan. 24, 32, 91 P.3d 517 (2004). The reasonableness of the officers belief is determined by an objective standard, i.e., whether there is evidence which would lead a prudent and reasonable officer to see a need to act. Horn, 278 Kan. at 32-33.
In Horn, we applied the three-part test to facts where police responded to a 911 call from a woman who was concerned about the welfare of her 89-year-old neighbor who had not followed her routine for a couple of days. The defendant, who lived with the 89-year-old woman, had also deviated from typical practice by not allowing the neighbors to visit. When police knocked, the defendant responded verbally but refused to open the door. After the defendant stalled for several minutes, the police officers turned the door knob and pushed the door open; which exposed a body to plain view. The court concluded that under these circumstances the three-part test set forth in Mendez was satisfied.
Similarly, the trial court correctly concluded that under the facts of this case the emergency doctrine applied and the evidence obtained upon entry into the home need not be suppressed.
The first factor is whether the officers had reasonable grounds to believe there was an emergency and that Shelbree was in need of their assistance for protection of her welfare. Drennan contends that it was unreasonable for Officer Piner to believe Shelbree was in need of assistance for health and safety reasons when Drennan was already in custody. He also points out that the neighbor did not tell the officers that he had actually seen Shelbree outside the house. According to Drennan, a reasonable person would have called into the house for Shelbree before entering or would have sought a warrant. These arguments are not persuasive.
The officers knew that there was a prior history of domestic violence between Drennan and Shelbree; that Drennan had been involved in a verbal altercation with a neighbor prior to the officers’ arrival; that the same neighbor had heard an argument, a woman’s scream, and then silence; that no one had responded when Officer Piner knocked at the door and rang the doorbell; that Drennan appeared sweaty and agitated and was unresponsive to the officers’ questions; and that Drennan had refused to tell them where Shel-bree was. These facts were sufficient to establish a reasonable belief that there was an emergency and that Shelbree was in need of assistance.
The second factor is whether Officer Piner’s entry into the house was motivated by any intent to arrest or seize evidence. Clearly, it was not. Officer Piner testified that she entered the house because she was concerned for Shelbree’s welfare and that she did not seize anything from the home. Drennan does not contest this point.
The third factor is whether the officers had reasonable grounds to believe Shelbree was located inside the residence. Again, Dren-nan does not contest this point. The officers knew Shelbree lived at the residence, and the neighbor told them he had heard an argument and a woman’s scream inside the home. These facts provided a reasonable basis for the officers to believe Shelbree was located inside the home.
Because Officer Piner’s warrantless entry into the home was permissible under the emergency doctrine, there is no need to address Drennan s argument that his statements to police during the interview at the police station should have been suppressed as fruit of the poisonous tree.
Statements Made to Police Before Miranda Warnings
The trial court also ruled that the officers’ request to pat down Drennan for weapons was reasonable and that Drennan’s evasive maneuvering justified the officers’ placing Drennan in handcuffs to protect their own physical safety. The court found the officers’ questions were investigatory in nature, and even though Drennan was in handcuffs, the situation remained investigatory and not custodial. The court also ruled that Drennan’s pre-Miranda statements to the officers were admissible because the officers’ questions were permissible under the public safety exception outlined in State v. McKessor, 246 Kan. 1, 7, 785 P.2d 1332, cert. denied 495 U.S. 937 (1990).
Drennan argues that he was in custody and that the officers’ questions constituted interrogation; therefore, there is a presumption that his responses to those questions were compelled. However, even assuming that Drennan was in custody, he has failed to address the public safety exception.
In New York v. Quarles, 467 U.S. 649, 655-56, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), the United States Supreme Court held that there is a “ public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved.” Quarles, who had reportedly just raped a woman and was carrying a gun, was pursued by police officers into a supermarket. When officers handcuffed Quarles, they saw that his shoulder holster was empty. Police asked Quarles where the gun was, and Quarles replied “the gun is over there.” 467 U.S. at 652. The trial court excluded that statement, the gun, and subsequent statements because officers had failed to give Miranda warnings before asking Quarles about the gun. The Supreme Court described the situation as a “kaleidoscopic situation . . . where spontaneity rather than adherence to a police manual is necessarily the order of the day,” because the gun, with its actual whereabouts unknown, posed more than one danger to public safety. 467 U.S. at 656.
This court adopted that rationale in McKessor, the case relied upon by the trial court in this case. In McKessor, the defendant was apprehended at a motel. Police believed him to be armed, knew the adjoining motel rooms were occupied, and were told by McKessor that another man was in the bathroom. When officers entered the motel room they asked McKessor the location of his gun. Relying upon Quarles, the court determined the police acted in the interest of public safety when determining the location of weapons in the room. The court stated:
“Certain situations pose a threat to the public safety which outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. Police officers should not be placed in the untenable position of having to consider, often in a [matter] of seconds, whether it best serves society for them to ask the necessary questions with the Miranda warning in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.” 246 Kan. 1, Syl. ¶ 2.
Although the officers’ concern in this case was not for the general public’s safely, as was the situation in Quarles and McKessor, it was for the safety of a possible victim, Shelbree. Several cases have extended Quarles under such circumstances. See United States v. Padilla, 819 F.2d 952 (10th Cir. 1987) (armed suspect’s response to pr e-Miranda questions, stating he “shot someone inside the house,” held admissible); Smith v. State, 646 So. 2d 704, 708 (Ala. Crim. App. 1994) (suspect’s response when officer asked whether suspect had been shot held admissible); State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994), cert. denied 513 U.S. 968 (1994) (suspect’s response to officer’s pre-Miranda questions as to the condition of others at the scene held admissible); Bailey v. State, 763 N.E.2d 998, 1001-02 (Ind. 2002) (suspect’s pre-Miranda statement regarding location of additional victim held admissible); State v. White, 619 A.2d 92, 94 (Me. 1993) (suspect’s response to officer’s pr e-Miranda questions about the location of a victim held admis sible); State v. Orso, 789 S.W.2d 177, 180, 184-85 (Mo. App. 1990), cert. denied 499 U.S. 951 (1991) (suspect’s response to ^pre-Mir-anda question as to the location of a potential victim held admissible). In this case, where the officers had a reasonable belief that Shelbree might be in danger and in need of their assistance, they were justified in . asking Drennan about Shelbree’s whereabouts before reading him his Miranda rights. The trial court did not err in denying Drennan’s motion to suppress.
Did the Trial Court Err in Overruling Drennan s Objection When the State Struck an African-American From the Jury Panel in Violation of Batson v. Kentucky ?
Drennan objected to the State’s peremptory strike of an African-American woman from the jury panel. The trial court asked the State for a race-neutral explanation for the strike and found that explanation to be satisfactory. At that time, Drennan also informed the court that the State had already struck the only other two minority members of the jury panel. The trial court initially found that Drennan had waived his objections to those two previous strikes by failing to object, but after trial upon Drennan’s motion for a directed verdict, the trial court reconsidered its decision and ruled that Drennan had not waived his objections. The trial court then conducted the hearing required by Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Although the court found that Drennan had failed to make a prima facie showing that the State had made the strikes of two of the panel members on the basis of race, the court allowed the State to give a race-neutral explanation for the strikes. The court then found that Dren-nan had failed to carry his burden of establishing purposeful discrimination.
The standard of review where a Batson challenge is involved was recently stated in State v. Washington, 275 Kan. 644, Syl. ¶ ¶ 1-3, 68 P.3d 134 (2003):
“In reviewing a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, (1986), concerning the State’s use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally per missible. Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court.”
“The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.”
“On appeal, the reviewing court is required to accept as true the statements of fact given by the prosecutor for purposes of determining whether the prosecutor gave race-neutral reasons for the strike if the defendant failed to object to the statement.”
Where, as here, the trial court has ruled on the ultimate question of discrimination, the preliminary issue of whether the defendant made a prima facie showing of discrimination becomes moot. See State v. Douglas, 274 Kan. 96, 102, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003).
The State explained its peremptory strikes on the basis that one person, a widow and Cessna worker, frowned during the entire jury selection process. The second person was an instrument technician at Mid-Continent Instrument, which as the prosecutor explained, is “a profession that required precision, and those types of professions are sometimes difficult for the State, and in moving forward in a case where we are looking at reasonable doubt as opposed to a hundred percent accuracy. And he was struck on that basis.” As to the last of the three panel members at issue, the State gave the following explanation:
“[T]he State did ask [the panel member] questions concerning her use of alcohol, and the responses, her body language and her response required her, indicated to us that she might be somewhat protective of an individual who was a drinker or an enabler, and for that reason, for that reading made by the State, it was why we struck her.”
The record reflects that, when asked about having experience with persons who are alcoholics, the panel member responded, “I hang around with my family, but they drink and I don’t — I just — Tm their chauffeur. I don’t like them drinking. If they drink, I like to protect them so I go with them where ever they have to go.”
With regard to the second step of the Batson analysis, the State’s race-neutral explanation need not be persuasive or even plausible, it need only be facially valid. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. Washington, 275 Kan. at 654.
There is no discriminatory intent inherent in the State’s explanations for striking the three minority persons from the jury panel. While some of the explanations do not seem particularly compelling, that is not the test. The State’s explanations were at least facially valid; thus, the trial court did not abuse its discretion in finding that Drennan failed to prove purposeful discrimination.
Did Cumulative Errors Deny Drennan a Fair Trial?
Drennan argues that the cumulative effect of multiple errors denied him a fair trial. Multiple trial errors may require reversal of a defendant’s conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him or her a fair trial. State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992). However, since we have found no error, there is no merit to this issue.
Did the Trial Court Err in Sentencing Drennan to a Hard SO Life Sentence?
Drennan next challenges the trial court’s imposition of a hard 50 life sentence. Drennan contends that the district court erred in finding the existence of the aggravating circumstance that the killing was committed in an especially heinous, atrocious, or cruel manner; in finding that Drennan’s alcoholism and the information in a report prepared by a mitigation expert and relating to Dren-nan’s social histoiy, his family’s histoiy of alcoholism, and Dren-nan’s alcoholism (hereinafter referred to as “alcohol statement”) were not mitigating circumstances; and in failing to find that the mitigating circumstances outweighed the aggravating circumstances.
As relevant to this case, K.S.A. 2003 Supp. 21-4636(f) provides, for purposes of the hard 50 sentencing scheme, one aggravating circumstance is that “[t]he defendant committed the crime in an especially heinous, atrocious or cruel manner.” K.S.A. 2003 Supp. 21-4636(f)(l), (3), and (5), list the following conduct by the defendant as sufficient to establish an aggravating circumstance: prior stalking of or criminal threats to the victim; infliction of mental anguish or physical abuse before the victim’s death; or continuous acts of violence begun before or continuing after the lulling.
In support of its decision to impose a hard 50 life sentence, the trial court made the following findings:
“The Court finds pursuant to K.S.A. 21-4636, Mr. Drennan committed this crime in an especially heinous, atrocious and cruel manner.
“1. Under 21-4636(f)(l), two (2) P.F.A. cases were filed as shown by State’s Exhibits 41 and 42 which were produced by evidence during the trial. The affidavit in case 2002D3089 dated 6/18/02 and case 2020D3651 dated 7/18/02 and the testimony to support those statements at trial from other witnesses establish prior stalking of or criminal threats to the victim under 21-4626(f)(l).
“2. Under 21-4636(f)(3), the Court finds by a preponderance of the evidence that the evidence at trial shows infliction of physical abuse before Shelbree Wilson’s death on August 19, 2002. The extent of the physical injuries, bruises, cuts, scrapes, lacerations, broken ribs and injuries to the fingers did not occur in a moment’s time. Those occurred over a period of time. The Court also finds that relative to 21-4636(f)(3) these acts caused infliction of mental anguish on Shelbree Wilson by Thomas Drennan.
“3. Under 21-4636(f)(5), the Court finds there were continuous acts of violence begun before the killing of Shelbree Wilson on August 19, 2002, by Thomas Drennan. The Court finds the evidence establishes, specifically through Dr. Dudley’s testimony, that strangulation took four minutes and by the evidence of the placement of the electrical cord to the fan as testified to by Officer Piner, that Shelbree Wilson was aware of her fate and aware of her impending death. The Court also finds by a preponderance of the evidence that on August 19, 2002, Shelbree Wilson [experienced] conscious pain and suffering as a result of the physical trauma that resulted in her ultimate death.
“The Court finds all three aggravating factors as alleged by the State have been met and have been supported by substantial evidence. The Court does not find defendant’s alcoholism or alcohol statement as a mitigating circumstance. The Court considers the criminal history and efforts at rehabilitation of the defendant. The Court finds that the aggravating factors are not outweighed by the mitigating factors.”
Aggravating Circumstances
First, Drennan contends the trial court erred in finding the existence of the aggravating circumstance that Drennan killed Shel-bree in an especially heinous, atrocious, or cruel manner. Where a defendant challenges the sufficiency of the evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is “ ‘whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence/ [Citations omitted.]” State v. Boldridge, 274 Kan. 795, 808, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003).
The trial court found that Drennan s prior stalking of and criminal threats to Shelbree were established through evidence of two prior protection from abuse (PFA) orders obtained by Shelbree against Drennan. In the petitions for those PFA orders, Shelbree alleged that Drennan had intentionally caused her physical harm or attempted to do so, that Drennan had placed her in fear of imminent bodily harm by physical threat, and that Drennan had constantly threatened to “ ‘throw me under the bus’ ” and take possession of her new house. In the supporting affidavits for the PFA orders, Shelbree alleged that Drennan had put his hands around her neck and tried to choke her; that Drennan had told the neighbors if they saw him walking out of the house with an axé and blood all over him, they should call 911 because Shelbree’s body would be in the lake; that Drennan had lied to police about Shel-bree scratching him, which resulted in her arrest; that Drennan had blackmailed Shelbree into dropping the first PFA order by saying he would not tell the truth at court; that Drennan had locked Shelbree out of her house at 3 a.m. when she was in her nightgown; and that Shelbree was in fear for her life.
Drennan argues these facts were insufficient to establish that he stalked or made criminal threats to Shelbree because he made the comments about throwing Shelbree’s body in the lake to the neighbors and not directly to Shelbree. Drennan ignores the remaining facts contained in the PFA documents. When viewed in the light most favorable to the State, a reasonable factfinder could have found by a preponderance of the evidence that Drennan stalked or made criminal threats to Shelbree.
The trial court also found that Drennan inflicted mental anguish or physical abuse on Shelbree before her death. Dr. Dudley testified that Shelbree suffered a variety of injuries including blunt trauma to her head, chest, and abdomen; multiple rib. fractures; a laceration' of the liver; and bruising of the upper and lower extremities. The left side of Shelbree’s hyoid bone was fractured, and she had bruising on her fingertips consistent with trying to pull a cord or ligature away from her neck. The trial court noted that all of these injuries could not have been inflicted in an instant, and must have occurred over a period of time before Shelbree actually died.
Finally, the trial court found there were continuous acts of violence begun before the killing of Shelbree, as evidenced by Dr. Dudley s testimony that it would have taken at least 4 minutes of continuous pressure on Shelbree’s neck before she experienced brain death- and the fact that an electric cord had been wrapped around her neck. The court also found Shelbree experienced conscious pain and suffering during these events.
Drennan admits that he killed Shelbree in a heinous, atrocious, or cruel manner but argues that he did not kill her in an especially heinous, atrocious, or cruel manner as required by K.S.A. 2003 Supp. 21-4636(f). This argument is not convincing. The trial court’s findings that Drennan inflicted mental anguish and physical abuse on Shelbree through continuous acts of violence before killing her are amply supported by the record. A rational factfinder could easily have made the same findings as did the trial court based upon a preponderance of the evidence.
Mitigating Circumstances
Next, Drennan argues the trial court erred in finding that his alcoholism and alcohol statement were not mitigating circumstances. Where a defendant challenges a trial court’s refusal to find a mitigating circumstance, the standard of review is “ whether, after a review of all the evidence, viewed in a fight most favorable to the defendant, a rational factfinder could have found by a pre ponderance of the evidence the existence of the mitigating circumstance.’ [Citation omitted.]” Boldridge, 274 Kan. at 809. However, where a mitigating circumstance is not enumerated in the statute, a trial court’s decision that such a circumstance is not truly a mitigating circumstance is within the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Livingston, 272 Kan. 853, 858, 35 P.3d 918 (2001).
At his sentencing hearing, Drennan argued several factors as mitigating circumstances: that his defense was not without merit; that he was impaired from drinking at the time of the incident and had no memory of it; that he suffered from alcoholism and drug abuse; that he had reaffirmed his religious faith and was making efforts toward rehabilitation; that he had expressed remorse; and that he had no significant criminal history. Drennan also provided the trial court with a lengthy mitigation report detailing his family’s history of alcoholism and addiction and how his own alcoholism and addiction had affected his life and contributed to his murder of Shelbree.
With regard to his abuse of alcohol, Drennan argued his intoxication on the night of the murder fell under K.S.A. 21-4637(b) and (f), relating to a defendant’s being under the influence of extreme mental or emotional disturbance and a defendant’s capacity to appreciate the criminality of his or her conduct.
The trial court made the following findings regarding the mitigating circumstances argued by Drennan:
“Concerning the mitigating factors argued by the defense, one of the arguments is that Mr. Drennan does not have a significant criminal history. He has nine prior convictions. Five of them involve alcohol or four of them concern alcohol, one concerns drugs. Three are disorderly conducts. It is not much of a stretch of imagination with Mr. Drennan’s history, especially concerning the information provided in the mitigation report, to believe that every one of those incidents resulted from an excess of either drugs and/or alcohol. Mr. Drennan has a history documented in both the testimony at trial and by documentation provided to me in the mitigation report of having a history of using alcohol and/or drugs or the combination of both to excess. And that he has a history, he claims, of blackouts. And that during these periods of blackout in his history, he’s done things he does not remember. Some of those things have been violent, some of those things have been inappropriate.
“The history of Mr. Drennan is replete with these types of incidents and I must say that despite the fact you have had repeated incidents of drinking to extreme where you claimed to have a blackout and then do things which you do not remember, you continued that pattern of behavior. Claims that you did not know what you were doing on August 19 of 2002, belies the entire history leading up to that point where time and time and time again, you’ve had that type of conduct where you consumed alcohol and were doing something to excess, claimed to have such blackouts. You have done things that you are sorry that you have done, and yet you repeat that behavior time and time and time again over the course of your life therein.
“The contention — I cannot find your alcoholism or your alcohol statement, to whatever degree it may have actually existed on August 19, 2002, as a — as a mitigating circumstance. The jury was presented with instructions on both offenses with which you were charged. The defense or the instruction of voluntary intoxication, by virtue of the jury’s verdict of guilty of premeditated first-degree murder, they discounted the testimony, they discounted that argument, they discounted that defense.”
The court went on to note that Drennan’s efforts at rehabilitation had all taken place since he had been in jail, thus the court took those efforts “with a grain of salt.” The court concluded, “For whatever effect these mitigating factors and circumstances have, I find that the aggravating factors are not outweighed by the mitigating factors.”
On appeal, Drennan argues no reasonable person could have concluded that his alcoholism and alcohol statement did not constitute mitigating circumstances. However, Drennan does not argue that his alcoholism or alcohol statement fall under any of the mitigating circumstances listed at K.S.A. 21-4637. Where a mitigating circumstance is not listed in the statute, this court reviews a trial court’s refusal to find such a mitigating circumstance under an abuse of discretion standard. See State v. Livingston, 272 Kan. at 858.
A review of the sentencing transcript shows that, while the trial court stated it could not find Drennan’s alcoholism or alcohol statement to be a mitigating circumstance, the trial court did consider Drennan’s evidence relating to alcohol abuse; it simply did not find Drennan’s argument on this point to be persuasive. The trial court discussed Drennan’s histoiy of alcohol abuse and alcohol-related criminal convictions as evidence that, in spite of many previous problems as a result of alcohol, Drennan had failed to change his behavior. Furthermore, the fact that Drennan had no memory of his crime due to an alcoholic blackout seems a weak mitigating factor in comparison to the aggravating factors found to exist in this case. Drennan has failed to establish that the trial court abused its discretion in failing to find his alcoholism and alcohol report as mitigating circumstances.
On the other hand, Drennan’s alcohol statement encompasses the argument that his intoxication on the night of the murder was a mitigating factor, and Drennan’s intoxication could theoretically be construed as falling under K.S.A. 21-4637(b) (defendant under influence of extreme mental or emotional disturbance) or (f) (defendant lacked capacity to appreciate the criminality of his or her conduct). See State v. Murillo, 269 Kan. 281, 289, 7 P.3d 264 (2000) (recognizing that evidence a defendant was under the influence of crack cocaine could constitute mitigating circumstances of extreme mental or emotional disturbance and lack of capacity to understand the criminality of one’s conduct, but finding this mitigating factors were outweighed by aggravating factor of previous felony conviction involving infliction of great bodily harm).
After examining the evidence in the light most favorable to Drennan, it is difficult to conclude that a rational factfinder could have found by a preponderance of the evidence that, because of his intoxication, Drennan was under the influence of an extreme mental or emotional disturbance or that he lacked the capacity to understand the criminality of his conduct. See Boldridge, 274 Kan. at 809. As noted by the trial court, the jury had already rejected Drennan’s voluntary intoxication defense and found that Dren-nan’s intoxication did not render him incapable of premeditating or forming the requisite intent to kill Shelbree. Thus, the trial court did not err in refusing to consider Drennan’s intoxication as a mitigating circumstance.
Weighing of Aggravating and Mitigating Factors
Drennan also argues that the trial court erred in failing to find that the mitigating circumstances outweighed the aggravating circumstances. The trial court’s weighing of aggravating and mitigat ing circumstances is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Lopez, 271 Kan. 119, 141-42, 22 P.3d 1040 (2001).
As discussed above, the trial court gave a thorough explanation on the record of its consideration of the aggravating and mitigating circumstances. Although the court considered Drennan’s alcohol-related arguments, it did not find them persuasive given Drennan’s long history of failing to address his alcohol-related problems. The trial court’s reasoning does not reflect an abuse of discretion. Dren-nan’s argument to the contrary is rejected.
Is the Kansas Hard 50 Sentencing Scheme Unconstitutional Because it Allows a Defendant’s Sentence to be Increased Beyond the Maximum Guidelines Penalty Based Upon Facts not Proven to a Jury Beyond a Reasonable Doubt?
Drennan’s final argument is that the Kansas hard 50 sentencing scheme is unconstitutional because it does not afford criminal defendants their right to have a jury determine beyond a reasonable doubt all facts which might increase the maximum penalty for first-degree murder. Drennan recognizes that this court has already rejected this argument but raises the issue to preserve it for federal review.
This court held that the hard 50 sentencing scheme is constitutional in State v. Douglas, 274 Kan. 96, 111, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003). The court reaffirmed that ruling in Boldridge, 274 Kan. 795, and State v. Hebert, 277 Kan. 61, 82 P.3d 470 (2004). Drennan has cited no new authority postdating those cases which might convince this court to alter its position. In State v. Hurt, 278 Kan. 676, 101 P.3d 1249 (2004), we have considered the impact of the recent United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), and determined that decision does not affect this court’s analysis that exposing a defendant to a later parole eligibility based upon a judge’s factual finding only limits the lower end of the sentence and is not the equivalent of exposing a defendant to an increased maximum penalty.
Affirmed.
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The opinion was delivered by
Luckert, J.:
Theresa Barnes pled guilty to aiding and abetting the manufacture of methamphetamine, possession of methamphetamine, possession of methamphetamine with intent to sell, possession of drug paraphernalia, and endangering a child. In State v. Barnes, No. 89,628, unpublished opinion filed November 7, 2003, the Court of Appeals upheld her sentences, holding in part that there was no error in sentencing Barnes for aiding and abetting the manufacture of methamphetamine as a drug severity level 1 felony pursuant to K.S.A. 65-4159(a) rather than as a drug severity level 3 felony pursuant to K.S.A. 65-4161(a). This court granted Barnes’ petition for review on the sole issue of whether State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), applies.
Facts
In December 2001, Barnes was arrested for various drug-related offenses following the execution of a search warrant at her home. Pursuant to a plea agreement in which other charges were dismissed, Barnes pled guilty and was sentenced to a controlling term of 146 months’ imprisonment based upon her most serious conviction of aiding and abetting the manufacture of methamphetamine; all other sentences were ordered to run concurrently.
On direct appeal, Barnes raised several sentencing issues. The Court of Appeals held that although the offenses of manufacture of methamphetamine under K.S.A. 65-4159(a) and compounding a stimulant under K.S.A. 65-4161 contained identical elements, the sentencing court correctly sentenced Barnes for a drug severity level 1 felony under K.S.A. 65-4159(a) as the more specific provision. The Court of Appeals also held that the lesser misdemeanor penalty under K.S.A. 65-4127c did not apply and that the sentencing court did not err in imposing a drug severity level 4 felony sentence for Barnes’ conviction of possession of drug paraphernalia.
This court granted Barnes’ petition for review as to the first issue only and directed the State to show cause why McAdam, 277 Kan. 136, should not apply to Barnes’ case. Both the State and Barnes responded to the show cause order; their arguments will be discussed below.
Does McAdam Require that Barnes he Resentenced for a Drug . Severity Level 3 Felony for her Conviction of Aiding and Abetting the Manufacture of Methamphetamine?
In McAdam, the defendant was convicted of conspiracy to unlawfully manufacture methamphetamine and was sentenced for a drug severity level 1 felony pursuant' to K.S.A. 65-4159(a). This court compared K.S.A. 65-4159(a), which makes manufacturing methamphetamine a drug severity level 1 felony, with K.S.A. 65-4161(a), which makes compounding a stimulant a drug severity level 3 felony. The court found the offenses were identical under the facts of the case; therefore, the defendant could be sentenced only under the lesser penalty provisions of K.S.A. 65-4161(a). 277 Kan. at 142-47.
The State contends that McAdam does not control Barnes’ case because Barnes received the benefit of a favorable plea agreement.
Barnes argues that her guilty plea is of no significance because, under McAdam, the imposition of a drug severity level 1 felony sentence was an illegal sentence. She argues that an illegal sentence must be vacated even when entered following a guilty plea, citing State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003), and State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003). However, the sentences in Santos-Garza and Cullen were illegal because they were based on an unconstitutional sentencing scheme. See Santos-Garza, 276 Kan. 27, Syl.; Cullen, 275 Kan. 56, Syl. ¶ 1. The sentence in McAdam was not unconstitutional. See United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (when defendant sentenced under statute with greater penalty even though same conduct violated similar statute with lesser penalty, no violations of Equal Protection or Due Process Clauses of United States Constitution). Rather, the problem when two statutes have identical elements but carry different penalties is that “ ‘ “the decision as to which penalty to seek cannot be a matter of prosecu-torial whimsy in charging.” ’ ” McAdam, 277 Kan. at 145 (quoting State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 [1987]).
Like Barnes, McAdam failed to raise the sentencing issue before the trial court. While the Court of Appeals chose to address the issue based upon McAdam’s assertion that his sentence was illegal, on petition for review this court did not address the illegal sentence issue, merely stating that we were reviewing the Court of Appeals’ decision. 277 Kan. at 142. See Supreme Court Rule 8.03(g)(1) (2003 Kan. Ct. Rules Annot. 58).
McAdam is grounded upon Clements and State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989). Nunn, 244 Kan. at 229, adopts the holding in Clements that “ ‘[a]s to identical offenses, a defendant can only be sentenced under the lesser penalty.’ 241 Kan. at 83.” Neither case holds the underlying sentence to be illegal.
Thus, we must examine our prior interpretation of the term “illegal sentence” as that phrase is used in K.S.A. 22-3504(1) which allows correction of an illegal sentence at any time:
“We have defined an illegal sentence as 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 [Citations omitted.]” State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997).
There is no question that the district court had jurisdiction to find Barnes guilty and impose sentence. Further, Barnes’ sentence conformed to K.S.A. 65-4159 as to both its character and term of punishment. Her sentence was not ambiguous in the time or manner in which it was to be served. Thus, Barnes’ sentence was not “illegal.”
The conclusion that Barnes’ sentence was not illegal does not, however, deprive this court of jurisdiction to hear Barnes’ appeal because K.S.A. 21-4721(e) provides: “In any appeal, the appellate court may review a claim that ... (3) the sentencing court erred in ranking the crime severity level of the current crime.”
Nor does the conclusion that the sentence is not illegal end our analysis of whether Barnes is entitled to relief. Barnes argues that McAdam should apply to any appeal pending at the time of the decision. In support, she cites State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987). Hood applied the new constitutional rule from Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), to the defendant’s case which was pending on direct appeal and remanded for the trial court to determine whether the Batson factors were met. 242 Kan. at 117-23. See also State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) (applying new constitutional sentencing rule to cases pending on direct appeal). However, as mentioned above, McAdam did not involve a constitutional rule.
Another theory for applying McAdam is the rule that overruling decisions are applied retroactively to all similar cases pending at the time of the decision. State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991) (expanding application of State v. Hall, 246 Kan. 728, 793 P.2d 737 [1990], analysis regarding claims of defective information to all cases pending on date of Hall opinion).
However, this court has refused to apply this general rule when the prior decision was not an “overruling” decision. In State v. Alford, 257 Kan. 830, 839-40, 896 P.2d 1059 (1995), the defendant sought to have the ruling in State v. Willis, 254 Kan. 119, 130-31, 864 P.2d 1198 (1993), apply because his case was pending on direct appeal when Willis was decided. Willis added a clarifying phrase to the PIK Crim. 3d 56.01-B sentencing instruction regarding whether a crime is committed in an especially heinous, atrocious, or cruel manner. Willis stated that the new instruction should be used in all cases on appeal of the date of the opinion where the vagueness of the instruction had been raised as an issue on appeal. However, State v. Duke, 256 Kan. 703, 717, 887 P.2d 110 (1994), modified the statement in Willis and held that the new instruction should be used only in cases where the vagueness of the instruction had been raised in both the trial court and as an issue on appeal. See Alford, 257 Kan. at 839. The Alford court found that Willis was not an overruling decision because it merely supplemented the existing sentencing instruction. Since the defendant had failed to raise the vagueness of the instruction before the trial court, the Alford court refused to consider the defendant’s argument on appeal. 257 Kan. at 840.
Similarly, McAdam is not an overruling decision in the sense that it did not expressly overrule prior case law and did not hold any law unconstitutional. While McAdam did reverse the relevant portion of the Court of Appeals’ earlier decision, since that decision never became final as a result of the petition for review being granted, it cannot be said that the Court of Appeals was overruled. There were also several unpublished Court of Appeals decisions which reached a different result. See State v. Scott, No. 89,945, unpublished opinion filed Januaiy 16, 2004, and State v. Ramsey, No. 89,856, unpublished opinion filed January 9, 2004. However, petitions for review are pending in those cases. Thus, Bames is not entitled to relief under the theory that overruling cases are retroactively applied to all similar cases pending on appeal.
The State argues it would be an improper retroactive application of McAdam to apply it in this case and asks us to follow the analysis regarding retroactivity that was adopted in Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003). Wilson involved a collateral proceeding under K.S.A. 60-1507 in which the defendant asked the Court of Appeals to retroactively apply its earlier decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). Frazier held that possession of ephedrine and possession of drug paraphernalia were identical offenses; thus, the defendant could be sentenced only under the lesser penalty. 30 Kan. App. 2d at 405-06. The Wilson court declined to apply Frazier retroactively in a collateral attack on a conviction where the defendant had received the benefit of a favorable plea bargain and had failed to raise the sentencing issue in a direct appeal. Wilson, 31 Kan. App. 2d at 734.
The Wilson court considered the approach taken in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), and Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994), cases where the defendants were convicted of a general sex crime rather than the more specific crime of aggravated incest which carried a lesser penalty. Williams held that where a defendant is related to the victim, the defendant must be charged with the more specific crime of aggravated incest rather than the general crime of indecent liberties with a child. 250 Kan. at 736-37. While Williams addressed the issue in the context of a direct appeal, Carmichael was a collateral attack. The Carmichael court held that the defendant’s rape sentences must be vacated and that he should be resentenced for aggravated incest. 255 Kan. at 19-20.
The Wilson court distinguished Carmichael because it involved specific versus general crimes rather than identical crimes. We note that this same distinction applies when considering LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994), which was not considered by the Wilson court but involved the same issue as Williams and Carmichael. In LaBona, this court held that by pleading guilty to two counts of indecent liberties with a child, the defendant waived the right to challenge the State’s failure to charge the specific offense of aggravated incest and acquiesced in his convictions. 255 Kan. at 69-70.
The Wilson court chose to rely on Easterwood v. State, 273 Kan. 361, 383, 44 P.3d 1209 (2002), a case holding that intervening appellate decisions interpreting the felony-murder statute did not apply retroactively to a defendant’s collateral attack on his felony-murder conviction. Wilson, 31 Kan. App. 2d at 732-34.
There are two important distinctions between Wilson and this case, the first being that Wilson involved a collateral attack rather than a direct appeal. Barnes’ case was pending on direct appeal when McAdam was decided. The second distinction is related to the first. While in Wilson the defendant failed to raise the sentencing issue on direct appeal, Barnes has raised the sentencing issue on direct appeal, although she admittedly did not raise the issue before the trial court. Because this case is not a collateral attack, much of the Wilson court’s analysis is inapplicable here. The question presented in this case is not whether the McAdam rule can be asserted in a collateral attack.
The analysis which is more applicable to this case is that found in State v. Chandler, 17 Kan. App. 2d 512, 515, 839 P.2d 551 (1992). In Chandler, the defendant was convicted of aggravated incest, indecent liberties with a child, and aggravated criminal sodomy. The victim of all three offenses was the defendant’s 13-year-old daughter. While Chandler’s direct appeal was pending, this court filed its opinion in Williams, 250 Kan. at 736-37, holding that where a defendant is related to the victim, the State must charge the defendant with the more specific crime of aggravated incest rather than the general crime of indecent liberties.
The Chandler court held that under Williams, the defendant’s convictions for indecent liberties and aggravated criminal sodomy must be reversed because the defendant could only be convicted of the more specific crime of aggravated incest. 17 Kan. App. 2d at 514. The court rejected the State’s argument that Williams should not apply and that it would be a retroactive application, ruling that Williams merely applied a longstanding principle (general versus specific statutes) to circumstances not previously addressed in other cases. No new law had been pronounced; thus, the application of Williams did not truly constitute retroactive application of case law. 17 Kan. App. 2d at 515.
Similarly, McAdam does not establish a “new rule of law” but is rather a case applying the principles enunciated in Nunn and Clements to existing statutes. Thus, the McAdam rale should apply to this case which was a direct appeal pending as of the date of the McAdam decision.
Finally, we must consider the State’s position that Barnes should not be allowed relief from her sentence because she pled guilty to the offense while McAdam was found guilty after a trial. As part of Barnes’ plea agreement, several counts were dismissed. Although it involved a different substantive issue, the procedural history recounted in another case, State v. Heywood, 245 Kan. 615, 783 P.2d 890 (1989), is enlightening. Heywood pled guilty to aggravated criminal sodomy. While his appeal was pending, this court decided Clements, 241 Kan. 77, which held that the elements of aggravated criminal sodomy, a class B felony, were identical to the elements of indecent liberties with a child, a class C felony; thus, the defendant could only be sentenced under the lesser penalty. Without a hearing, this court remanded Heywood’s case for re-sentencing in light of Clements even though Heywood had pled guilty. After resentencing, Heywood raised the substantive issue of whether the district court abused its discretion in resentencing Heywood. See Heywood, 245 Kan. at 616-22. The same situation arises in this case and, under Heywood, the appropriate disposition would be to remand for resentencing.
One other issue was raised at oral argument by the State when it requested us to consider the application of Substitute for House Bill 2777, which at the time of argument had not been signed into law. Subsequently, the Governor signed the legislation and it became effective on May 20, 2004, upon publication in the Kansas Register. See 23 Kan. Reg. 720 (2004). The legislation deletes the phrase “or compound” from K.S.A. 65-4161(a) and K.S.A. 65-4163(a) so that they no longer charge the crime defined in K.S.A. 65-4159. Obviously, this provision was not in effect on the date Barnes committed the crime or even at the time of conviction, sentence, or appeal. “Criminal statutes and penalties in effect at the time of the criminal act are controlling. [Citation omitted].” State v. Martin, 270 Kan. 603, 605, 17 P.3d 344 (2001).
However, the legislature included a retroactive provision, stating:
“New Sec. 3. On or before the effective date of this act, any person violating the provisions of K.S.A. 65-4159, and amendments thereto, upon conviction, is guilty of a drug severity level 1 felony. Such sentence shall not be reduced to violating the provisions of K.S.A. 65-4161 or 65-4163, and amendments thereto, because prior to this act, such statutes prohibited the identical conduct.” Substitute for House Bill 2777.
Despite this statement of legislative intent, there are limitations upon the retroactivity of legislation. The Ex Post Facto Clause of the United States Constitution forbids legislative enactments which impose a punishment for an act which was not punishable when it was committed or which impose additional punishments to those then prescribed. A law is ex post facto if two critical elements are present: the law must be retrospective and it must change the definition of criminal conduct or increase the penalty for the criminal conduct. Sammons v. Simmons, 267 Kan. 155, 162, 976 P.2d 505 (1999).
In this situation, Substitute for House Bill 2777 increases the penalty to which Barnes would be subject if the legislation is applied to her. Without the legislation she must be sentenced for a drug severity level 3 felony under the McAdam decision; if the legislation is effective as to her, she would be sentenced for a drug severity level 1 felony. Therefore, the retroactivity provision cannot be constitutionally applied to Barnes.
Consistent with our past treatment of cases in similar circumstances where the issue was identical crimes with differing penalties, we hold that the decision in McAdam should be applied to Barnes’ case since it was pending on appeal at the time of the decision in McAdam.
Was McAdam Wrongly Decided?
The State also contends that McAdam was wrongly decided because it did not take into account the legislative history behind K.S.A. 65-4159(a), which shows that the legislature intended to enhance the penalty for persons who manufacture methamphetamine. Barnes counters that questions of legislative intent are irrelevant where the statutes involved are clear and unambiguous. See State v. Thrash, 267 Kan. 715, 716-17, 987 P.2d 345 (1999) (“When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.”)
The McAdam court characterized legislative intent as “the critical issue” in the case. 277 Kan. at 143. However, the court considered the wording of the statutes involved as evidence of legislative intent rather than looking at legislative history. 277 Kan. at 144. “The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State v. Brown, 272 Kan. 843, 846, 35 P.3d 910 (2001).
Whatever the legislature may have intended (which they have not clarified with Substitute for House Bill 2777), the end result was that it created two statutes which, under the facts presented in McAdam and this case, contained identical elements but provided different penalties. As a result, under the rule stated in Nunn, Clements, and now McAdam, a defendant can only be sentenced to the lesser penalty.
The State has failed to establish why McAdam should not apply to this appeal. Barnes’ sentence for aiding and abetting the manufacture of methamphetamine is vacated and the case is remanded for resentencing consistent with McAdam.
Sentence vacated and case remanded for resentencing consistent with this opinion. | [
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The opinion of the court was delivered by
Beier, J.:
The State brings these appeals to challenge the district court’s suppression of evidence and its resulting dismissals of its prosecutions of Jerri Huff and Jack Kelley for possession of methamphetamine.
The facts that led to the suppression are as follows:
The Salina Police Department received an anonymous tip regarding loud music and the smell of marijuana coming from an apartment. Two officers were dispatched to the scene. The officers testified that as they approached the apartment, they did not hear music or smell marijuana. They also could not see inside the apartment.
One of the officers knocked on the door, and the resident, Bobbie Rogers, came out of the apartment and shut the door behind her. As she exited, the officers detected the smell of burnt marijuana but still did not hear loud music or see inside the apartment.
The officers asked Rogers for consent to search the apartment. Rogers refused and asked the officers to get a search warrant before entering. The officers did not ask Rogers if there were other people inside the apartment, and Rogers made no gestures or noise to indicate that there were other occupants. The officers heard no noise coming from inside. They nevertheless indicated they were going to enter the apartment and, when Rogers protested, they arrested her for obstruction.
Inside, the officers found defendants among the apartment’s occupants.
Because Kelley had a marijuana pipe cupped in his hand, he was arrested and searched. One of the officers then found marijuana and methamphetamine in Kelley’s pocket.
Huff and others were allowed to leave the apartment. The officers then obtained a search warrant and did a thorough search of the apartment. When that search turned up a silver container holding syringes, methamphetamine residue, and a slip of paper with Huff s name written on it, Huff also was arrested.
One officer testified that his reasonable belief that drugs were inside the apartment meant he could legally enter to secure it, but he did not have enough probable cause to search without a warrant. The officer believed it was necessary to secure the residence to prevent destruction of evidence, despite the lack of any objective evidence that the apartment was inhabited by anyone other than Rogers. “Securing the residence,” according to the officer, included entering, requesting consent to search persons inside before they were permitted to leave, viewing of any items in plain view, and walking through the apartment to ensure no one remained inside.
The district judge granted the defendants’ motions to suppress, finding the officers’ entry into the apartment unsupported by an articulable suspicion that there was anyone inside. The judge then asked the State if it had any additional evidence against defendants. When the prosecutor said there was no additional evidence, the judge immediately dismissed the case sua sponte.
Before we can reach the merits of the district judge’s rulings on the motions to suppress, we must address appellate jurisdiction.
Huff and Kelley correctly observe that the State’s notices of appeal cited K.S.A. 2003 Supp. 22-3602(b)(l), which authorizes the prosecution to appeal dismissal of a criminal case as a matter of right. The State’s brief nevertheless relied upon arguments that the defendants’ motions to suppress were granted in error. K.S.A. 22-3603, rather than K.S.A. 2003 Supp. 22-3602(b)(l), permits appeals from district court decisions to suppress evidence.
‘Whether appellate jurisdiction exists is a question of law over which the appellate court’s scope of review is unlimited.” State v. Hurla, 274 Kan. 725, Syl. ¶ 1, 56 P.3d 252 (2002).
We agree with defendants that “[i]t is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.” State v. Walker, 260 Kan. 803, Syl. ¶ 1, 926 P.2d 218 (1996).
In this case, the district court heard and decided the defendants’ motions to suppress and immediately dismissed the cases sua sponte on June 3, 2003. The State filed its notices of appeal on June 5, 2003, stating in each that it was appealing “the decision of the District Court . . . entered on June 3, 2003.” The journal entries memorializing the district judge’s June 3 actions were not filed until June 12, 2003, and June 19, 2003. Thus the notices of appeal became effective on those dates. See Supreme Court Rule 2.03 (2003 Kan. Ct. R. Annot. 9) (advance filing of notice of appeal “shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment”).
The defendants rely on State v. Kerby, 259 Kan. 104, 910 P.2d 836 (1996), to argue that we lack jurisdiction.
In Kerby, the district court granted defendants’ motions to dismiss. The State filed notices of appeal under 22-3603, the interlocutory appeal statute, even though the notices recited that the appeals were taken “from the final decision of the District Court.” 259 Kan. at 105. (Emphasis added.) This court issued an order to show cause why the appeals should not be dismissed for lack of jurisdiction. Despite this clue, the State did not attempt to amend its notices, and it did not respond to the order to show cause until after the time to amend the notices had expired. 259 Kan. at 104-OS. We dismissed the State’s appeal for want of jurisdiction, following this court’s earlier decision in State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995).
In G.W.A., the State’s notice of appeal had “referred solely to an appeal from the judgment of acquittal. It contained no general reference which could be liberally construed to include an appeal on a question reserved.” 258 Kan. at 707. Such a “limited and specific” notice of appeal could not be read to include an appeal on a question reserved despite its general citation to 22-3602, which contains a subsection permitting State appeals on such questions. We said:
“The State did not respond in its brief to the defendant’s argument that the appeal should be dismissed for lack of jurisdiction. We can only presume that the State’s argument would be as follows: In its notice of appeal, the State contends it is appealing directly to the Supreme Court pursuant to K.S.A. 1994 Supp. 22-3602. K.S.A. 1994 Supp. 22-3602(b)(3), allowing the State to appeal a question reserved, is the only section of 22-3602 which would permit a direct appeal to the Supreme Court. Thus, if the court did independent research and read the record, we could conclude that the State was appealing a question reserved. We think the State must give more guidance in its notice of appeal than that given in this case.” 258 Kan. at 707.
We are not persuaded that these cases should follow Kerby and G.W.A. Here, the district judge dismissed the cases immediately after suppressing the evidence, without seeking or entertaining any further argument by either side. For all practical purposes, the district court’s decision to dismiss and its decision to grant defen dants’ suppression motions were one and the same. Thus the State’s citation of the statute authorizing an appeal from the dismissals was sufficient to preserve its right to challenge the basis of the dismissal decisions, i.e., the suppression of the evidence gathered after the apartment was entered. It was not required to move for reconsideration of the dismissal orders and attempt to convince the district judge that he should instead stay the proceedings pending interlocutory appeals under 22-3603. Rather, the State’s recitation in each of its notices of appeal that it was seeking review of the district court’s “decision” from June 3 was general enough to include the basis of the dismissal and to put the defendants on notice that the suppression would be addressed.
We now turn to a discussion of the suppression.
“ “When analyzing a district court’s suppression of evidence, an appellate court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.’ ” State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 (2000).
The State defends the officers’ entry into Rogers’ apartment by asserting that they merely conducted a protective sweep to maintain the status quo and prevent the destruction of evidence. It asserts that the entry was consistent with Salina Police Department policy. Because, in the State’s view, no search was conducted until after a warrant was obtained, the officers’ behavior need not have met one of Kansas’ recognized exceptions to the warrant requirement.
We cannot agree that a warrantless entry of a residence is excusable when a warrantless search of the residence would be unconstitutional. As the United States Court of Appeals for the Tenth Circuit has observed: “ ‘[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.’ ” United States v. Anderson, 981 F. 2d 1560, 1567 (10th Cir. 1992) (quoting Payton v. New York, 445 U.S. 573, 590, 63 L. Ed. 2d 639, 100 S. Ct. 1371 [1980]).
And our Kansas Court of Appeals has noted:
“The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights have been found to give special deference to the sanctity of privacy in an individual’s home. The viewing by police into an area where an individual has a subjective expectation of privacy that society accepts as reasonable constitutes a search.” State v. Blair, 31 Kan. App. 2d 202, Syl. ¶ 2, 62 P.3d 661 (2002).
In the present case, Rogers had a reasonable, subjective expectation of privacy in her home. See State v. Morris, 27 Kan. App. 2d 155, 157, 999 P.2d 283, rev. denied 269 Kan. 938 (2000). As social guests, defendants had standing to assert that expectation. State v. Rice, 264 Kan. 232, 239, 955 P.2d 1258 (1998); State v. Vandiver, 257 Kan. 53, Syl. ¶ ¶ 2, 3, 891 P.2d 350 (1995); State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004). The officers’ protective sweep of the apartment constituted a search. See Anderson, 981 F.2d at 1567; Blair, 31 Kan. App. 2d 202; Morris, 27 Kan. App. 2d 157.
We must therefore consider whether any valid exception to the warrant requirement existed. The only potentially applicable exception is that which “allows a warrantless search where there is probable cause for the search and exigent circumstances justify an immediate search.” State v. Weas, 26 Kan. App. 2d 598, 600, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000).
Our courts have relied upon the following nonexclusive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied sub nom. Goldsmith v. United States, 439 U.S. 913 (1978), to determine whether this exception applies.
“ ‘(1) [T]he gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry. It is also recognized that the possible loss or destruction of evidence is a factor to be considered. [Citations omitted.]’ [Citation omitted.]” Weas, 26 Kan. App. 2d at 601.
These factors do not justify the entry into Rogers’ apartment. Loud music and the smell of marijuana do not indicate that any suspect is likely to be charged with a violent offense. There was nothing about the tip, the officer’s own observations, or Rogers’ behavior that would have led the officers to expect an armed confrontation. Probable cause was weak, if it existed at all. Once Rogers came outside, the officers had no evidence that even one other person remained in the apartment or was likely to escape. Although apparently peaceful, the officers’ entry disregarded Rogers’ explicit denial of consent and protest. The absence of evidence that someone remained inside also meant the officers had no reason to worry about evidence destruction.
We hold that the factual underpinnings of the district judge’s decisions were amply supported by substantial competent evidence and that his legal reasoning was sound.
In the alternative, the State asserts that the doctrine of inevitable discovery should have been applied to save its cases from dismissal.
Under the inevitable discovery doctrine, evidence will not be suppressed, despite a constitutional violation in the way it was discovered or obtained, if the same evidence could have come to the attention of law enforcement independent of the violation. See State v. Canaan, 265 Kan. 835, 964 P.2d 681 (1998).
Application of the inevitable discovery doctrine would be inappropriate here. The constitutional violation was the entry into the apartment during the time when the defendants were inside. It was not inevitable that they would remain there, even if the officers had stood guard outside. They could have left and shut the door behind them, as Rogers did, with no adverse consequences.
In addition, absent the fruits of the illegal entry, the officers’ ability to obtain a search warrant was not a foregone conclusion. The officers would have been left with no evidence beyond the smell of marijuana they detected when Rogers came outside. There is nothing in the record to demonstrate that the odor came from the apartment rather than Rogers herself. Moreover, few jurisdictions have held that the smell of marijuana emanating from a private residence alone is sufficient to establish probable cause to support a search warrant. See State v. Becken, 7 Neb. App. 438, 444-49, 585 N.W.2d 865 (1998); State v. Rein, 324 Or. 178, 182, 923 P.2d 639 (1996). Generally something more than “plain smell” is required. See United States v. Kerr, 876 F.2d 1440, 1442-45 (9th Cir. 1989); United States v. Carr, 92 F. Supp. 2d 1137, 1140-42 (D. Kan. 2000); Lustig v. State, 36 P.3d 731, 731-33 (Alaska App. 2001); State v. Caldwell, 20 Ariz. App. 331, 332-35, 512 P.2d 863 (1973); Barocio v. State, 117 S.W.3d 19, 21-24 (Tex. Crim. App. 2003). Because this question is unsettled in Kansas, the officers’ statements that they smelled burnt marijuana would not have guaranteed issuance of a warrant.
Finally, although its brief is not completely clear, the State also appears to argue that Rogers’ arrest erased any expectation of privacy in the apartment. This suggestion is preposterous. Regardless of whether a person is in custody and regardless of whether a person happens to be inside his or her residence, he or she has a right to deny law enforcement entiy absent probable cause and either a warrant or a valid exception. Fourth Amendment protection for one’s home does not melt away every time one runs to the grocery store or takes a vacation — or even every time one is taken into police custody. And, as previously mentioned, social guests have standing to challenge the warrantless search of a home. See, e.g., Rice, 264 Kan. at 239; Vandiver, 257 Kan. 53, Syl. ¶ ¶ 2, 3; Gonzalez, 32 Kan. App. 2d at 593.
Affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
Burlington Northern Railroad Company (railroad) conveyed property to U.S.D. No. 222 (school district). The adjacent landowners Gary and Danielle Stone (Stones) were granted partial summary judgment based upon the trial court’s ruling that the land reverted to the Stones when its use for a right-of-way was abandoned. The trial court concluded that notwithstanding the railroad’s fee simple interest by original deed, the land was used for a right-of-way limiting the railroad’s interest to a right-of-way easement only. The Court of Appeals affirmed in Stone v. U.S.D. No. 222, 31 Kan. App. 2d 1063, 77 P.3d 509 (2003). We granted the school district’s petition for review, and reverse and remand with directions.
Facts
On November 7,1883, Hugh and E.J. Little conveyed real estate in Washington County, Kansas, to The Chicago, Iowa & Kansas Railroad Company by warranty deed recorded on December 4, 1883:
“This Indenture, Made this 7th day of November A.D. 1883, between Hugh Litde and E.J. Little, husband & wife, of Washington County, in the State of Kansas of the first part; and The Chicago Iowa and Kansas Railroad Company - of County in the State_ of the second part:
‘Witnesseth, That the said part[y] of the first part, in consideration of the sum of Five hundred and Seventy Three and 65/100 (573 65/100) Dollars, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell and convey unto said party of the second part, its successors and assigns, all the following described REAL ESTATE, situated in the County of Washington, and State of Kansas, to-wit:
“Commencing at a point twenty (20) rods north of the South East corner of the North East quarter of Section two (2) in Town 3 S of R 3 E in Washington County State of Kansas Thence West 235 feet Thence North 15 rods thence east 235 feet Thence South 15 rods to the place of beginning.
“To have and hold the same, Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever:
“And said Hugh W. Little and E.J. Little for themselves and their heirs, executors or administrators, do hereby covenant, promise and agree to and with said party of the second part, that at the delivery of these presents they are lawfully seized in their own right, of an absolute and indefeasible estate of inheritance) 'in fee simple, of an in all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged and un[e]ncumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and [e]ncumbrances of what nature or kind soever; and that they will WARRANT AND FOREVER DEFEND the same unto said party of the second part, its successors and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
Six months later, by deed dated May 16, 1884, The Chicago, Iowa & Kansas Railroad Company conveyed a portion of this real estate to F.M. Cox and W.H. Emery:
“This deed is intended to convey to the said F.M. Cox and W.H. Emery all the land lying south of a line drawn fifty (50) feet' south of, and parallel with, the railroad of the said Chicago, Iowa & Kansas Railroad Company; said land.háving been conveyed to said Railroad Company by a deed from Hugh Little and wife, dated November 7th 1983, and recorded December 7, 1883 . . .
The deed described the property as follows:
“Commencing at a point twenty (20) rods north of the southeast comer of the northeast quarter of Section two (2), in Township three (3) South, Range three (3) East of the Sixth (6th) principal meridian; thence west two hundred and thirty-five (235) feet; thence north one hundred and thirty (130) feet; thence north sixty-seven (67) degrees east magnetic for two hundred and forty (240) feet; thence south one hundred and eighty-one (181) feet to place of beginning; and also the small brick house now standing on the right of way immediately north of the above described tract.”
After the conveyance to Cox and Emery, the railroad owned a trapezoid-shaped piece of land measuring 117.5 feet on the west, 235 feet on the north, 66.5 feet on the east, and 240 feet along the south border (subject property). Upon this subject property the railroad laid tracks and the property was used for well over 100 years as its right-of-way. Although the deeds are not in the record on appeal, we note that the district court found that surrounding landowners granted the railroad right-of-ways in their land in 1883 and 1884. The railroad line was eventually abandoned, but when this occurred is not clear from the record.
The Chicago, Iowa & Kansas Railroad Company’s successor in interest, the Burlington Northern Railroad Company, conveyed the subject property to the school district by quitclaim deed dated February 25, 1986, recorded on March 14, 1986, which described the land as:
“All that portion of Burlington Northern Railroad Company’s right-of-way and station ground property at Washington, Kansas on the Odell, Nebraska to Con-cordia, Kansas Branch Line right-of-way August 15, 2003, now discontinued, varying in width on each side of the main track centerline, as originally located and constructed upon, over and across a part of the S % of the NE Vz of Section 2, Township 3 South, Range 3 East, lying Easterly of the West line of ‘E’ Street in the Town of Washington, Washington County, Kansas.”
During the spring and summer of 2001, the school district directed defendant Gaiy Haddan, d/b/a/ Haddan Wrecker & Excavating (Haddan), to secure fill dirt from the subject property to backfill a hole left when a school was razed. As adjacent landowners to the subject property, the Stones filed a petition for damages based on trespass against the school district and Haddan. The Stones claimed the removal of this dirt damaged the remainder of their property by removing valuable vegetation, altering the flow of rain water, causing flooding and channel formation, and soot and dirt relocation, which has reduced the value of their property.
Both parties filed motions for partial summary judgment on the issue of ownership of the subject property. The Stones argued that the subject property reverted to them because the railroad had only obtained a right-of-way that had been since abandoned. The school district argued that the subject property did not revert to the Stones because the railroad held the subject property in fee simple absolute and conveyed it to the school district by quitclaim deed.
Ruling in favor of the Stones, the district court found that the deeds in the chain of title showed that the property was acquired by the predecessor railroad for railroad purposes (construction and maintenance), and that the railroad held a right-of-way only because of the use for which the property was acquired. Thus, the property reverted to the Stones as the adjoining landowners on abandonment of the right-of-way. The school district filed a timely interlocutory appeal and the Court of Appeals affirmed the district court’s ruling.
On petition for review, the school district argues the Court of Appeals erred in affirming the district court’s order granting partial summary judgment in favor of the Stones. The school district argues the railroad was granted fee simple title in the original warranty deed and the railroad conveyed the same to the school district. The Stones argue that the railroad only had an easement in the subject property which was used as a railroad right-of-way, and the property reverted to them as adjacent landowners upon abandonment.
The question we must answer is whether the railroad’s interest in the subject property was limited to a right-of-way or if it was a fee simple absolute interest. The answer to the question lies in Kansas statutoiy law and the past appellate decisions of Kansas. After identifying the governing statute, we will review those key past appellate decisions bearing upon the question. We will then discuss the Court of Appeals’ resolution of the question. Finally, we will resolve the question presented.
Relevant Kansas Authority
A railroad may acquire an interest in real property by eminent domain, by purchase, or by voluntary grant. Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, 207, 675 P.2d 375 (1984). K.S.A. 66-501 provides that every railway corporation has the power:
“Second. To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accom modation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance and accommodation of its railway.” (Emphasis added.)
“Third. To lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road; and also such land as may be deemed necessary for side tracks, depots, workshops and water stations
“If a railroad owns the land under its tracks in fee simple, the abandonment of rail service does not affect its property right at all.” 65 Am. Jur. 2d, Railroads § 62. However, in Kansas, railroads take only an easement in strips taken for railroad right-of-ways regardless of whether taken by condemnation or deed. Upon abandonment, the strip reverts back to the original landowners. Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 542, 370 P.2d 419 (1962).
In Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208 (1905), the railroad company was about to begin construction of a railroad and purchased a strip of land 100 feet wide running through a quarter section of land from Simmons. The conveyance was made in a general warranty deed which described the property as “ ‘all the land in the southwest quarter of section fifteen (15), township nine (9) south, of range seven (7) west, lying within fifty feet of the center line of the main track of said railroad, and containing six and twenty-three hundredths (6.23) acres, more or less/ ” 71 Kan. at 539. Although the railroad recorded a map and profile of the track route on the land, the railroad track was never graded or constructed. Simmons and his successors continued to cultivate the land, but the railroad company paid the taxes on the strip of land for nearly 12 years until it conveyed the land to Abercrombie. Ab-ercrombie asserted ownership of the land, arguing that the railroad acquired absolute title to the land and nothing less had been conveyed to him. 71 Kan. at 539-40.
In considering if the railroad’s interest acquired by the deed was one that it could convey to Abercrombie, the court first reviewed G. S. 1901, § 1316 (now K.S.A. 66-501), the statute establishing the limitations on holding voluntary grants, purchasing, and obtaining real estate by eminent domain:
“The statutes recognize that land for a right of way may be acquired by purchase as well as by compulsory proceedings. When so purchased for that purpose does the railroad company hold a higher or better right than where it is acquired by virtue of eminent domain? May a railroad company purchase a strip of land extending a great distance through the country and over many farms, abandon the enterprise, and then sell the strip to those who will put it to a wholly different use — one that might be both obnoxious and menacing to the adjoining owners? Where an absolute and unqualified fee-simple title is acquired by a railroad company it may of course, in the absence of express or implied restrictions, be conveyed to another.” 71 Kan. at 542.
After stating this rule, the court noted:
“ ‘But where there is an implied restriction, as is often die case in regard to the right of way, or the like, of a railroad company, the grant does not ordinarily vest a fee in the company, but vests such an estate, usually an easement, as is requisite to effect the purpose for which the property is required. Where the grant is of “surplus real estate,” as it is often called, that is of real estate not forming part of the railroad or its appendages, a deed effective to vest a fee in a natural person will vest that estate in a railroad company.’ (2 Ell. Rail. § 400.)”
“The fact that the deed contains covenants of warranty, or that the right acquired is designated as a fee, is not necessarily controlling.” 71 Kan. at 542-43.
The court analyzed cases from several jurisdictions before concluding:
“Now, as we have seen, the deed and those things to which we may look in its interpretation plainly show that the strip was sold on the one part, and purchased on the other, as and for a right of way for a railroad. This use, being within the contemplation of the parties, is to be considered as an element in the contract, and limits the interest that the railroad acquired. It took the strip for a specific purpose, and could hold it so long as it was devoted to that purpose. Whether the right of way purchased should be designated as an easement or as a qualified or determinable fee, may not be very important. A right of way, although commonly designated as an easement, is an interest in land of a special and exclusive nature, and of a high character.. . .
‘Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned.
“We are not called upon to decide, nor do toe intend to express an opinion, as to the rule applicable where lands are purchased or obtained without regard to the use to be made of them, or where there is nothing in the contract or conveyance indicating that they have been purchased for a right of way. Lands may be ac quired by donation or by voluntary grant for aid in the building of railroads, and railroad companies may doubtless acquire lands for various uses in connection with railroad business which could not be taken by virtue of eminent domain, and as to these different rules may apply. It is intended to confine the decision to cases where the contract or conveyance shows that it was sold and received for use as a right of way for a railroad.” (Emphasis added.) 71 Kan. at 546.
The court concluded that Abercrombie acquired no interest in the land conveyed to him by the railroad and that upon abandonment of the right-of-way use, the property reverted to the original owners and their successors in interest. 71 Kan. at 547.
Danielson v. Woestemeyer, 131 Kan. 796, 293 Pac. 507 (1930), was an ejectment action in which the abutting landowners on the north side of an abandoned railroad right-of-way sought to recover from the defendants a 200-foot wide tract of land, which had been conveyed to the railroad by a single deed describing the land in two 100-foot wide strips. The boundaries of the southern 100-foot strip were described as being a right-of-way and being “fifty feet equisdistant [sic] from the center of the main railroad track,” but no mention of the purpose of the northern strip of land was described in the deed. 131 Kan. at 803. The plaintiffs insisted that the entire 200-foot strip was a right-of-way, but the evidence showed that the northern strip was used for other railroad purposes, as it contained a section house used by the railroad foreman or renters, a well, and a highway which was often used to reach the depot on the southern strip. 131 Kan. at 798. On appeal this court held that:
“Where the owners of land claiming to be abutting owners on an abandoned railroad right of way whose land is separated from the real right of way or right of way proper by a strip of land to which the railroad company acquired the fee title and used it for railroad purposes other than right of way and later conveyed the same before discontinuing operations, such separation is held to deprive the first-mentioned owners of their claim or right as abutting owners in and to the right of way proper, and also in and to the intervening strip.” 131 Kan. 796, Syl. ¶ 3.
In affirming, this court distinguished Danielson from Abercrombie and Barker v. Lashbrook, 128 Kan. 595, 279 Pac. 12 (1929), because the land in those cases was only 100 feet wide and the parties did not question whether the strip of land involved was a right-of-way. Danielson, 131 Kan. at 800-01. The court concluded that no doubt existed that the parties to the deed intended the southern strip to be the only part conveyed for a right-of-way and the northern strip was not for right-of-way but was for other railroad purposes, and “[n]eifher can there be any question about the instrument conveying a fee title to all of it subject, of course, to the usual rule as to right of way being only an easement regardless of the language of the deed.” 131 Kan. at 803-04. Applying the usual rules of construction to the deed, the court concluded that the southern strip was conveyed as a right-of-way and the northern strip was conveyed for fee purposes veiy much the same as was done in Bowers v. Atchison, T. & S.F. Rly. Co., 119 Kan. 202, 237 Pac. 913 (1925). 131 Kan. at 804.
In Nott v. Beightel, 155 Kan. 94, 122 P.2d 747 (1942), two town lots were conveyed to the railroad in fee title by warranty deed without any reversion clause and without mentioning the use of the property. The lots had been used for right-of-way purposes, but the railroad had since removed its tracks from the lots. An ownership dispute arose as the railroad conveyed the land to the plaintiff, the lessee of a scale house on the land, by quitclaim deed, and the original owners of the land claimed that the land had reverted to them upon abandonment. The district court ruled in favor of the plaintiff.
The Nott court distinguished this case from Abercrombie because the land was purchased without regard to its use or being designated as a right-of-way. Noting it would be contrary to public policy for someone to whom the railroad had conveyed in fee a narrow strip of land such as a right-of-way running through farms and cities not to receive the land when it was no longer used for railroad purposes, Nott was distinguishable in that entire lots had been conveyed and only part of the lots were used for railroad purposes. The court noted the general rule that “ ‘[w]here land is conveyed to the railroad company in fee without qualification, its title thereto is not lost by [nonuse] or abandonment,’ ” citing a California case applying this rule. 155 Kan. at 97. In concluding that the trial court correctly quieted the plaintiff s title, the court cited the above-quoted language from Danielson, 131 Kan. 796, Syl. ¶ 3.
In Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 537, 370 P.2d 419 (1962), the railroad and its oil and gas lessees (plaintiffs), sought to quiet title to a narrow strip of land, including the underlying minerals, running across the defendant’s farm, and the defendants cross-petitioned to quiet title to the entire section of land containing the strips, conceding that a right-of-way easement existed. The original deed granted the railroad a strip of land 150 feet wide (75 feet from the center of the surveyed railway line) to be used for the purpose of building or constructing its roadbed or railway and trimming its cuts and fills and for all other purposes for the building, constructing, or maintaining of the railroad. 189 Kan. at 538. The trial court ruled that the deed clearly conveyed only an easement for railroad right-of-way purposes, that plaintiffs were not the owners of the minerals on the land, and that title should be quieted in the defendant’s favor. 189 Kan. at 539-40.
On appeal, the plaintiffs argued that Abercrombie’s holding that regardless of the language and form of the deed, a railroad cannot take a fee simple absolute or a fee simple determinable title in land that is to be used for right-of-way purposes, should be overruled, and the court should now hold that a railroad may acquire by grant or deed a fee simple absolute or a fee simple determinable estate in land purchased for right-of-way purposes. The court declined to overrule Abercrombie, reasoning in relevant part:
“We have held that when land is devoted to railroad purposes it is immaterial whether the railway company acquired it by virtue of an easement, by condemnation, right-of-way deed, or other conveyance. If or when it ceases to be used for railway purposes, the land concerned returns to its prior status as an integral part of the freehold to which it belonged prior to its subjection to use for railway purposes. (Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 792, 89 P.2d 838.) This court has uniformly held that railroads do not own fee titles to narrow strips taken as right-of-way, regardless of whether they are taken by condemnation or right-of-way deed. The rule is in conformity with this state’s long-standing public policy and gives full effect to the intent of the parties who execute right-of-way deeds rather than going through lengthy and expensive condemnation proceedings. [Citations omitted.]
“For many years it lias been the established law of this state that railroads receive easements only in strips taken as rights-of-way, regardless of whether they are taken by condemnation or deed. The rule is based on long-standing public policy. The Abercrombie case was decided in 1905. For more than a half century the public has been informed as to the rights granted by such a deed. Lawyers have repeatedly examined and passed titles based upon this court’s construction of such a deed. Valuable property rights have been acquired, sold and warranted based upon the knowledge that under our law such a deed conveys only an easement for right-of-way purposes.” 189 Kan. at 541-43.
The Harvest Queen court concluded that the deed conveyed nothing more than an easement to the railroad, and the fee title to the property and the underlying minerals reverted to the defendants upon abandonment of the right-of-way. 189 Kan. at 543-44.
In Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, the railroad acquired by condemnation a 100-foot right-of-away covering three tracts of land. The railroad received a warranty deed which included in the granting clause the strip previously condemned, the three tracts of land, and other real estate. A subsequent property dispute arose between the railroad’s as-signee, the plaintiff, and the defendant who purchased the disputed property and claimed a right to it through adverse possession. The trial court found the plaintiff possessed a fee simple title to the disputed property, which was located outside the original 100-foot right-of-way, and the defendants’ continued occupation of the property might be found to have been adverse. 9 Kan. App. 2d at 207.
The Court of Appeals examined the deed, which included a notation that stated “ ‘Station Grounds at Laird or Challacombe,’ ” but contained no other limitation on the use of the property or provisions for reversion. 9 Kan. App. 2d at 208. The panel found the notation indicated that portions of the lands conveyed were intended for use as railroad station grounds, and no evidence was presented that the plaintiff had abandoned the purposes for which its interests in the property were acquired. Applying Harvest Queen and Harvey v. Railroad Co., 111 Kan. 371, 207 Pac. 761 (1922), the court concluded that the deed did not vest fee simple title in the named grantee but rather was for railroad purposes only, and the defendant’s use was thus not adverse to the plaintiff s interest. 9 Kan. App. 2d at 210.
In Schoenberger v. Missouri Pacific RR Co., 29 Kan. App. 2d 245, 26 P.3d 700 (2000), rev. denied 270 Kan. 899 (2001), an 1887 order condemned a strip of land for a railroad track. One month later, an individual conveyed a quarter section of land to Memphis & Denver Town Company with mineral rights. Several months later, the company conveyed a 500-foot wide strip of land to the railroad, and then subsequently conveyed several other lots to the railroad. The railroad executed an oil and gas lease to Schoenber-ger, and the ownership of the land on which an oil well was situated came into issue. The trial court ruled that the preceding deeds conveyed only an easement and declared the prior leases void.
On appeal, the panel interpreted K.S.A. 66-501 Second to “clearly mandate that a railroad may purchase land in fee simple absolute (to hold with power to convey).” 29 Kan. App. 2d at 246. It noted that the 1887 deed conveyed the property to “ ‘Have and to Hold the Same Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining forever ” and the grantor warranted it was “ ‘lawfully seized in [its] own right of an absolute and indefeasible estate.’ ” 29 Kan. App. 2d at 246. Likewise, the 1888 deed provided that the grantor conveyed the property “ ‘to have and to hold the same together with all and singular the tenements hereditaments and appurtenances thereunto belonging or in anywise appertaining forever’ ” and warranted it was “lawfully seized in its own right of an absolute and indefeasible estate of inheritance in fee simple.” 29 Kan. App. 2d at 246.
The panel acknowledged that Kansas cases reach differing results, but noted that Nott and Danielson held a fee title is conveyed where the warranty deeds are void of any use limitations. The 1887 deed did not contain a reversion clause, and the 1888 deed did not contain any expressed use restriction. Despite the small size of the land conveyed in the deeds, the lack of any express or implied use restriction required the panel to conclude that both deeds conveyed fee title. 29 Kan. App. 2d at 247.
Court of Appeals Decision
In this case, Stone v. U.S.D. No. 222, 31 Kan. App. 2d 1063, 77 P.3d 509 (2003), the Court of Appeals reviewed Abercrombie, Nott, and Danielson and concluded that “the ‘use it or lose if rule of Abercrombie, as was hinted at in Abercrombie, does not apply when the land is not mainly used as a right of way.” 31 Kan. App. 2d at 1069. The court found that the subject property fit the factors set out in Abercrombie except that the conveyance did not specifically mention the use being for a right-of-way, and the land was to be used for railroad purposes. Based on the language in Abercrombie, which the court found was not restricted to cases where use for a right-of-way was specifically stated or implied in the conveyance, the court applied the rule to this case in concluding the land should revert.
The Court of Appeals distinguished this case from Harvest Queen because the purpose of the conveyance to the railroad was clearly for a right-of-way, causing the railroad’s right to be only an easement. Humberg was distinguishable because it dealt with property obtained for railroad purposes by condemnation, and even though it was not for a right-of-way, its abandonment led to a reversion. Schoenberger was “not on point with the instant case where another issue, namely, the use to which the property was put, is paramount,” and the construction of the conveyance was held not to be of critical importance in the case. 31 Kan. App. 2d at 1070. The court concluded:
“We find that since the land in question was obtained by purchase for a railroad right of way, and other railroad uses, and that easement was abandoned, the trial court was correct in ruling that the land reverted to the original grantors.
“As in other cases cited above, this ruling is applicable to relatively small portions of land. We are not called upon to rule on the effect of abandonment for railroad uses of large portions of land.” 31 Kan. App. 2d at 1070.
Resolution
The trial court’s granting of summaiy judgment, based on undisputed facts, is a ruling of law and this court’s standard of review is de novo. Ekan Properties v. Wilhm, 262 Kan. 495, 501, 939 P.2d 918 (1997). Likewise, the interpretation and legal effect of written instruments are matters of law over which this court has unlimited review. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996).
The school district argues that the language of the original deed controls the type of interest the railroad obtained and could convey in the subject property. It contends the Court of Appeals opinion erroneously applied Abercrombie to this case, misinterpreted or ignored Danielson, Nott, and Schoenberger, and erroneously based its decision on the small size of the subject land.
In contrast, the Stones argue the language of the original deed is largely irrelevant and the use to which the property was put, i.e., as a right-of-way, is paramount. The Stones rely primarily upon Abercrombie, Harvest Queen, and an unpublished Court of Appeals’ opinion, Board of Riley County Comm'rs v. Chicago Pacific Corp., No. 66,232, filed August 30, 1991, in arguing that the railroad did not own a fee title to the land used for right-of-way purposes and that Kansas public policy forbids railroads from owning narrow strips of right-of-way property in fee simple and transferring them to owners who will put that land to a use that is obnoxious to the adjoining landowners.
Although both parties believe Abercrombie supports their position, the school district has the stronger argument. In support of the Stones’ position, the parties do not dispute that the subject property was used as a railroad right-of-way, and the Abercrombie court seems emphatic that land used for railroad right-of-ways are mere easements, regardless of the language utilized in the deed. Moreover, the court looked at extrinsic evidence in construing the deed, which in this case would clearly demonstrate the subject property was intended to be used as a right-of-way. Finally, the Court of Appeals felt that Abercrombie did not restrict its ruling to cases where use for a right-of-way was specifically stated or implied in the conveyance.
In support of the school district’s position, this case is clearly distinguishable from Abercrombie in that the language of the original deed is void of any use restrictions. The absence of any language designating the land for use as a right-of-way or for other railroad purposes seems to put this case squarely within the Ab- ercrombie exception: “We are not called upon to decide . . . the rule applicable where lands are purchased or obtained without regard to the use to be made of them, or where there is nothing in the contract or conveyance indicating that they have been purchased for a right of way.” 71 Kan. at 546.
Although the Abercrombie court was willing to ignore language in the deed regarding the type of the conveyance (fee simple, easement, fee simple determinable) intended by the parties, it was dealing with a deed that described the property in a manner that could be construed as a right-of-way, although it was ambiguous in that it referenced a railroad track which was never constructed. This ambiguity permits a court to look beyond the four comers of the deed to parol evidence which existed at the time the deed was made. See Heyen v. Hartnett, 235 Kan. 117, 122, 679 P.2d 1152 (1984).
When the language of tire original warranty deed conveying land in fee simple absolute is unambiguous, courts thus may not use parol evidence to determine whether the land was conveyed for right-of-way purposes. In this case, the unambiguous language of the original conveyance for a section of land which was 330' x 235' x 247.5' x 235' does not suggest that it is to be used as a right-of-way. Only by using parol evidence, i.e., the subsequent deeds referring to a right-of-way, is it possible to determine that a portion of land originally conveyed was going to be used as a right-of-way. As no ambiguity existed in the original deed, the trial court and the Court of Appeals in this case should not have looked to this extrinsic evidence in concluding that the subject property was used for right-of-way and other railroad purposes.
The general rule is that deeds purporting to convey to railroads a strip, piece, parcel, or tract of land which do not describe or refer to its use or purpose or directly or indirectly limit the estate conveyed are generally construed as passing an estate in fee. Annot., 6 A.L.R.3d 973, 979. The cases discussed above essentially follow this general rale.
In Abercrombie, Harvest Queen, and Humberg, all of the deeds referred to the land being used as a right-of-way or for some other railroad purpose, and all of the cases found that the land had been conveyed as an easement. In contrast, Danielson, Nott, and Schoen-berger all found that property which was conveyed by deed that did not limit the use of the land to right-of-way purposes had been conveyed in fee simple. This was true despite the fact that the land in Nott and Danielson was used for railroad purposes, and the land in Danielson and Schoenberger was, in both cases, small in size. Although the size of the land described may help the court determine whether a right-of-way was intended in construing an ambiguous deed, the small size of the land is clearly not determinative of the issue.
After reviewing this case law, we believe this case is most analogous to Nott. In both cases, relatively large portions of land were conveyed to the railroad, the deed was void of any use restrictions, and portions of the land were used for right-of-ways which were subsequently abandoned. In Nott, the fact that portions of the land were used for right-of-way and railroad purposes did not prevent the court from finding that entire tracts were held in fee simple. In this case, the only distinction is that a portion of the original conveyance was subsequently sold by the railroad, leaving a smaller piece of property when the right-of-way was abandoned. We do not believe that this subsequent conveyance changed the fee title held in the subject land.
The Stones’ public policy argument also is without merit. Although the end result in this case is that the railroad owned a small piece of land which had been used as a right-of-way in fee simple, as noted in Nott, the initial conveyance in fee simple was for a much larger piece of land which was not designated for right-of-way purposes. The small size of the subject land in this case is only the result of the railroad’s subsequent decision to sell a portion of the land it received in the initial conveyance. Had the railroad kept all of the initial conveyance, it would have been able to convey the land in fee simple anyway. As such, this is not the type of situation that the public policy was designed to protect against.
We conclude that the Court of Appeals erred in affirming the trial court’s grant of partial summary judgment in favor of the Stones. The original unambiguous deed did not contain any use restriction or reversion clause and, thus, granted the railroad title to the land in fee simple absolute. The railroad sold off a portion of that land but retained a fee simple interest in the subject land. The fact that the subject land was later used for a right-of-way and then abandoned did not prevent the railroad from conveying the property'to the school district in fee simple absolute. As the subject property did not revert to the Stones upon abandonment, the Court of Appeals decision must be reversed and the case remanded to the trial court with instructions to enter a partial summary judgment in favor of U.S.D. No. 222.
Reversed and remanded with directions. | [
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Fer Curiam-.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinaiy Administrator against respondent, Brenda M. Jordan, Kansas attorney registration No. 16585, whose last registration address with the Clerk of the Appellate courts of Kansas is Manhattan, Kansas. The respondent was admitted to the practice of law in the state of Kansas in September 1994.
The alleged misconduct arises from two complaints, DA8730 and DA8879. Both complaints regard possible misconduct stemming from respondent’s actions while serving in the Riley County Attorney’s office in separate prosecutions of Eric Moore and Kenton Dean.
The formal complaint filed by the Disciplinary Administrator’s office alleged that respondent violated KRPC 3.3(a) (2003 Kan. Ct. R. Annot. 424) (candor toward tribunal); KRPC 3.4(a) and (d) (2003 Kan. Ct. R. Annot. 429) (fairness to opposing party); KRPC 3.8(d) and (e) (2003 Kan. Ct. R. Annot. 439) (duties of a prosecutor); and 8.4(a) and (d) (2003 Kan. Ct. R. Annot. 464) (misconduct). A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on January 22, 2004, and later prepared a report containing its findings of fact, conclusions of law, and recommendations for discipline. Respondent filed no exceptions to the hearing panel’s report. The underlying facts found by the panel concerning these violations are summarized as follows:
FINDINGS OF FACT
Eric Moore Case
The respondent was assigned to prosecute a case entitled State v. Eric Moore. Moore was charged with robbery and was represented by Jeff Elder. In addition to Moore, two other individuals were also charged with having participated in the robbery, one of whom was Sloam Johnson.
Following Johnson’s preliminary hearing, the Riley County Attorney’s office dismissed the charges against Johnson. The prosecutors intended to file the robbery charge against Johnson again following the trial of Moore.
Prior to Moore’s trial, the respondent knew that Johnson was a suspect in a forgery case in Pottawatomie County, Kansas. The respondent also knew that Johnson was scheduled to testily on behalf of Moore at the trial.
Moore’s trial commenced on June 5,2002. After the trial began, the respondent became aware that the law enforcement officers were planning on arresting Johnson if he appeared at the courthouse, either on a warrant or for probable cause, related to the Pottawatomie County forgery case.
The respondent failed to inform the court or Elder of Johnson’s impending arrest.
The respondent had conversations with law enforcement officers from Riley County and Pottawatomie County regarding Johnson. The respondent told Officer Deaun France that she wanted Johnson arrested pursuant to a warrant prior to giving testimony in Moore’s trial to discredit his testimony and for “psychological reasons.” The respondent also told Officer France that she would prefer to have Johnson testify for the defense wearing jail clothing.
The respondent told Officer France and Officer Ryan Runyan to inform Johnson during his arrest that the Riley County robbeiy charge that had been dismissed would be refiled against him and he would be also be arrested on that charge.
During the lunch break of the second day of the trial, the respondent sent an electronic mail message to Barry Wilkerson, Pottawatomie County Attorney, regarding Johnson. The message provided:
“You have been brought an affidavit for a warrant for forgery on this guy. You might want to tell the judge he is from out of state, and suspected of multiple robberies, but a slick willy. I anticipate him coming into my trial and testifying for Eric Moore as they were both named as accomplices. Any chance justice could be swift in the review of the warrant request? (Pott. County officers have told RCPD to arrest on PC but thought you might want information for bond)”
Later on June 6, 2002, the Pottawatomie County District Court issued a warrant for the arrest of Johnson for one count of forgery.
On June 7, 2002, while outside the courtroom, waiting to testify in behalf of Moore, law enforcement officers from Pottawatomie County arrested Johnson. By arresting Johnson in Riley County, officers from Pottawatomie County deviated from the standard practice.
After learning that Johnson had been arrested, the court held proceedings outside the presence of the jury. During that discussion, the respondent made the following statements:
“I think Mr. Elder ought to check his information a little further before he makes some allegations.
“The warrant that Mr. Johnson was arrested on this morning was for Pottawatomie County. It had nothing to do with the Riley County Attorney’s office. . . .
“I would advise the Court there was a communication with Mr. Wilkerson on my behalf simply asking what information if any I might have about this person that he could advise his judge for bond information.. . .
“I didn’t have any knowledge of the fact that there was any investigation going on in Pott County; in fact I didn’t know until yesterday afternoon, when the detective showed up here — other detective on that case showed up here with the Pott County sheriff s deputy saying, “We’ve been advised to arrest him on PC.’ ”
After a recess, Elder made a motion for a mistrial. The court conducted a hearing on the motion. During the hearing, the respondent told the court:
“I would agree, Your Honor. As I’ve stated previously, I think I’ve told Mr. Elder this, I acknowledge my mistake. When I talked to Officer Fronce yesterday I related to her if he’s arrested and transported, he’s got to be brought back. I was operating under the understanding that — belief at that point that it would be yesterday, and I knew I had enough witnesses left he would not be testifying yesterday.
“I made an error obviously in not telling you or telling Mr. Elder, and secondly, in not clarifying to Officer France that I’m talking about today he’s not going to be a witness because of how many witnesses I had left. We got busy in trial, never even thought about it. Started this morning and did not even think to tell them, ‘Don’t do this, this morning.’ ”
At the conclusion of the hearing on the defendant’s motion for mistrial, the court sustained the motion. The Riley County Attorney’s office did not seek to retry Moore. Thereafter, the Riley County Attorney’s office filed a motion to dismiss the robbery case pending against Moore without prejudice. The Riley County Attorney’s office did not refile the robbery case against Johnson.
Later, the Pottawatomie County forgery case filed against Johnson was also dismissed.
Kenton Dean Case
On May 8, 2002, the Riley County Attorney’s office charged Kenton Dean with two counts of aggravated criminal sodomy and two counts of aggravated criminal restraint. The events which led to the charges occurred on January 6, 2002. The victims of the crimes were C.Y. and E.S. The respondent was assigned to prosecute the case.
On the day after the crimes occurred, C.Y. and E.S. submitted to a rape kit examination. During the examination, blood samples of C.Y. and E.S. were taken. The blood samples were analyzed by Larry Mann, a chemist with the Kansas Rureau of Investigation. Mann determined that, at the time of the examination, C.Y. and E.S. had cocaine in their systems.
C.Y. and E.S. told the respondent that, prior to the crimes, they had not used cocaine. Because C.Y. and E.S. denied using cocaine prior to the crimes, the prosecution’s theory was that, unbeknownst to C.Y. and E.S., Dean put cocaine in their alcoholic drinks and then sodomized them.
Prior to the preliminary hearing, C.Y. and E.S. told the respondent that approximately 1 month after the crimes, they had used cocaine for the first time. It appears that the respondent did not inform C.Y. and E.S. that they had cocaine in their systems at the time of the examination. The respondent discussed with her fellow assistant county attorneys and with William Kennedy, Riley County Attorney, whether she needed to disclose C.Y.’s and E.S.’s cocaine usage after the crimes to counsel for Dean. Kennedy and the assistant county attorneys agreed that the evidence was not exculpatory and she was not obligated to disclose the information.
During the preliminary hearing, counsel for Dean asked one of the victims whether she had used “street drugs" prior to the offense. The respondent objected and argued that evidence of the victim’s drug use was not relevant. The court agreed and the objection was sustained.
Following the preliminary hearing, the respondent amended the complaint and charged Dean with one count of aggravated criminal sodomy and two counts of criminal restraint. The complaint alleged that Dean sodomized E.S. while she was “unconscious or physically powerless and/or incapable of giving consent due to tire effect of an alcoholic, narcotic, drug or other substance, which condition was known or reasonably apparent to the said Defendant.”
Because Wilkerson had a similar case pending against Dean in Pottawatomie County, Wilkerson agreed to assist the respondent in trying the case. In preparing for trial, Wilkerson contacted Mann. Mann told Wilkerson that he would be able to calculate E.S.’s blood alcohol concentration at the time the crimes occurred, based upon her blood alcohol concentration at the time of the examination using regression analysis. Wilkerson informed the respondent that Mann would be able to make such calculations. Neither Wilkerson nor the respondent informed counsel for Dean that Mann would be testifying to the calculation during trial.
Shortly before trial, counsel for Dean objected to Wilkerson’s participation in the trial. The court refused to allow Wilkerson to assist the respondent in the trial.
During the respondent’s opening statement, the respondent referred to Mann’s expected testimony regarding the victim’s blood alcohol concentration at the time of the crime. Counsel for Dean objected because the respondent was to have provided all scientific tests, reports, or experiments and had not provided any information about such regression analysis. The court sustained the objection, admonished the jmy to disregard the comments, and prohibited the respondent from introducing such evidence.
On a break during the trial, counsel for Dean warned the respondent that he would file an ethical complaint if she called a particular witness to testify. Counsel for Dean told the respondent that he believed that the witness would testify falsely. After being warned that counsel for Dean would file an ethical complaint, the respondent went through everything in her file to make sure that counsel for Dean had all the information that he was entitled to have. The respondent recalled that she had not disclosed C.Y.’s and E.S.’s cocaine usage that occurred approximately 1 month after the crimes. Although she had previously concluded that that information did not amount to exculpatory evidence, because counsel for Dean was threatening to file an ethical complaint, the respondent decided to disclose that information to counsel for Dean.
Prior to the start of the next day of trial, the respondent informed counsel for Dean that approximately 1 month after the crimes, the victim used cocaine. After learning that the victim had used cocaine approximately 1 month after the crimes, counsel for Dean moved for a mistrial. The court agreed that evidence that the victim used cocaine 1 month after the crimes may be exculpatory and because the defense did not know about the victim’s cocaine use, the defense was not permitted to explore or develop any leads or strategy concerning the credibility of the victim. However, the court denied the motion for mistrial. The court issued a second curative instruction to the jury, admonishing the jury to ignore all references to cocaine. The court prohibited the respondent from mentioning cocaine during the trial.
Later, the court directed the respondent to have the victim refrain from testifying that she felt “numb.” Additionally, the court prohibited the respondent from asking the victim to compare her level of intoxication on the night of the crimes with other occasions when she had been intoxicated. Thereafter, the respondent asked the victim the following series of questions:
“Q. How were you feeling?
“A. I felt numb and just sick to my stomach. My head was spinning.
“Q. Have you drank similar amounts of alcohol before?
“A. Yes.
“Q. Can you compare how you felt this morning to other times after you had drank someone else’s alcohol?
“A. It wasn’t the same.
“Q. In what respect?
“A. “I had never felt like I had to throw up, but I couldn’t. I’ve only thrown up once since I have drank. My head was spinning. I felt numb.”
Because the court had previously issued two curative instructions and because of this series of questions, counsel for Dean again moved for a mistrial. In response to the motion for mistrial, the respondent argued that she did not understand that the court ordered her to refrain from asking such questions. The court granted Dean’s motion for mistrial, stating:
“[T]he Court finds that this falls under [K.S.A.] 22-3423(l)(c), prejudicial conduct, in or outside the courtroom, making it impossible to proceed with the trial without an injustice to either the defendant or the prosecution. In this particular instance to the defendant. I’m going to grant the motion for mistrial on that basis. The question then is the effect. Defense urges prosecutorial misconduct with jeopardy having attached, and the effect being that the matter is dismissed with prejudice. The law on that point is, as is with many things, not altogether uncomplicated .... It is my finding that the conduct that was here from the State which has caused the Court to grant the mistrial, although intentional I can not find and I have nothing that would indicate this, and I recognize that this is a subjective judgment, I don’t think that it was done to provoke a motion for mistrial. I think it does fall into the category of (probably to obtain a conviction) as the court notes parenthetically there. That is the law as I read it as stated by our Supreme Court, those are the findings that I think that I have to make.”
Thereafter, the Riley County Attorney’s office dismissed the case against Dean.
PANEL’S CONCLUSIONS OF LAW
Based upon the above uncontested facts, the panel concluded, as a matter of law, that the respondent violated KRPC 3.3, KRPC 3.4, KRPC 3.8, and KRPC 8.4, as detailed below.
KRPC 3.3
Attorneys must be honest and truthful with the court. “A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” KRPC 3.3(a)(1). When the respondent told the court that the warrant issued from Pottawatomie County “had nothing to do with the Riley County Attorney’s office,” the respondent made a false statement of material fact to the court. As such, the hearing panel concludes that the respondent violated KRPC 3.3(a)(1).
KRPC 3.4
KRPC 3.4 provides, in pertinent part, as follows:
“A lawyer shall not:
(d) in pretrial procedure, malee a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”
The respondent violated KRPC 3.4(d) when she failed to inform counsel for Dean that she expected Mann to testify regarding a calculation of the victim’s blood alcohol concentration at the time of the crime. Accordingly, the hearing panel concludes that the respondent violated KRPC 3.4(d).
KRPC 3.8
Prosecutors have special responsibilities which can be found at KRPC 3.8. Specifically, prosecutors shall:
“make timely disclosure to tire defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
In State v. Dean, the respondent should have disclosed that the victim had used cocaine approximately 1 month following the crimes. Because she failed to do so, the hearing panel concludes that the respondent violated KRPC 3.8(d).
KRPC 8.4
“It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” KRPC 8.4(d). In this case, as a result of the respondent’s misconduct, two jury trials ended in mistrials and the cases were ultimately dis missed. Clearly, the respondent’s misconduct resulted in prejudice to the administration of criminal justice in Riley County, Kansas. The hearing panel therefore concludes that the respondent violated KRPC 8.4(d).
PANEL’S RECOMMENDATION
In making its recommendation for discipline, the panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
On the subjects of Duty Violated and Mental State, the respondent recklessly violated her duty to the legal system to refrain from interfering with the administration of justice. On the subject of Injury, as a result of the respondent’s misconduct, the court declared a mistrial in two cases. Later, the respondent dismissed the criminal cases regarding Moore and Dean. Additionally, the respondent opted not to refile the robbery case against Johnson.
On the subject of Aggravating Factors, several were present. In regard to Pattern of Misconduct and Multiple Offenses, included in this case are two complaints. The complaints involve similar misconduct. Accordingly, the respondent engaged in a pattern of misconduct. The respondent violated KRPC 3.3, KRPC 3.4, KRPC 3.8, and KRPC 8.4. As such, the respondent committed multiple offenses. Regarding the aggravating factor of Vulnerability of Victims, the victims of the respondent’s misconduct included the individuals who were the victims of the underlying criminal cases. They were extremely vulnerable to the respondent’s misconduct. Regarding the aggravating factor of Substantial Experience in the Practice of Law, the Kansas Supreme Court admitted the respondent to practice of law in 1994. At the time the respondent engaged in misconduct, the respondent had been practicing law for a period of 8 years. Accordingly, the hearing panel concludes that the respondent had substantial experience in the practice of law at the time she engaged in the misconduct.
On the subject of Mitigating Circumstances, several were present. For the mitigating factor of Absence of a Prior Disciplinary Record, the respondent has not previously been disciplined. Regarding the mitigating factor of Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct, in an attempt to rectify the consequences of her misconduct on the criminal defendants, after the mistrials were declared, the respondent dismissed the criminal actions pending against Moore and Dean. Additionally, the respondent did not refile the robbeiy charge against Johnson. Regarding the mitigating factor of the Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the respondent’s Acknowledgment of the Transgressions, the respondent fully cooperated in the disciplinary process as exhibited by her acknowledgment of the misconduct. Regarding the mitigating factor of Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney, the respondent is an active and productive member of the bar in Manhattan, Kansas. She enjoys the respect of her peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. Regarding the mitigating factor of Remorse, at the hearing on the formal complaint, the respondent expressed genuine remorse.
In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: “Reprimand is generally appropriate when a lawyer in an official or governmental position negligently fails to follow proper procedures or rules, and causes injury or potential injuiy to a party or to the integrity of the legal process.” Standard 5.23.
“Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and cause injuiy or potential injuiy to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” Standard 6.13.
“Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injuiy or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.” Standard 6.23.
Based upon the findings of fact, conclusions of law, and the Standards listed above, the panel unanimously recommended that the respondent be censured by the Kansas Supreme Court, but that the censure not be published in the Kansas Reports. Additionally, the panel concluded that costs should be assessed against the respondent in an amount to be certified by the office of the Disciplinary Administrator.
DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2003 Kan. Ct. R. Annot. 265); In re Rathburn, 275 Kan. 920, 929, 69 P.3d 537 (2003). A hearing panel’s report is deemed admitted under Rule 212 (c) and (d) (2003 Kan. Ct. R. Annot. 271) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003). In the case at hand, since respondent filed no exceptions to the panel’s report, we conclude that the panel’s findings of fact are supported by clear and convincing evidence and that the facts established support the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions, but not its recommended discipline.
The panel recommended unpublished censure, and the Deputy Disciplinary Administrator recommended a published censure. We conclude that because some of respondent’s misconduct was intentional, a discipline greater than unpublished censure is warranted.
It Is Therefore Ordered that Brenda M. Jordan be and is hereby disciplined by censure in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for her violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Beier, J.:
Plaintiff Roland Whye filed this lawsuit against the City of Topeka (the City) and former Topeka Mayor Joan Wagnon, claiming wrongful termination. The district court granted the defendants’ motion to dismiss on statute of limitations grounds. The Kansas Court of Appeals affirmed, although it differed from the district judge on the cause of action’s precise accrual date. We granted review.
The relevant facts are undisputed. Whye was a major with the Topeka Police Department. He had served for nearly 30 years and was third in command under Chief Dean Forster. Whye and Forster were close friends as well as fellow officers.
In July 2000, Whye was arrested and charged with battery and criminal restraint. He was suspended without pay for 10 days. Ac cording to Whye, his arrest displeased then Mayor Wagnon. She demanded Forster terminate Whye or jeopardize his own position.
Whye decided to pursue early retirement, and on August 24, 2000, Forster sent a memorandum to the City’s chief administrative officer regarding Whye’s plan to retire. The memo read in pertinent part:
“I have met with Major Roland Whye and his attorney Doug Wells concerning Major Whye retiring from the Police Dept. Major Whye is willing to take his retirement after the third quarter of 2000, which would put his last day of employment as 9/15/2000.
“Major Whye is willing to remain on vacation until 9/15/2000 if he is reimbursed for his vacation for the first three quarters of 2000.”
The police department agreed with Whye’s plan to retire early and paid Whye for his vacation time on August 25, 2000. Whye’s retirement became effective September 15, 2000.
Whye was acquitted of the criminal charges against him on June 20, 2001, and he filed this suit on August 30, 2002. Whye claimed denial of due process under 42 U.S.C. § 1983 (2000) and constructive discharge in violation of state public policy.
The district court ruled Whye’s claims were time barred because the applicable 2-year statute of limitations began running August 24, 2000, i.e., the date the City responded to the news of Whye’s retirement plan. See K.S.A. 2003 Supp. 60-513(a)(4).
On appeal Whye did not dispute that the 2-year statute set out in K.S.A. 2003 Supp. 60-513(a)(4) governed his federal and state claims. He argued, however, that neither claim accrued until the effective date of his retirement, September 15, 2000. Before that point, the defendants could have reversed their position and he could have continued working. Thus his lawsuit was timely filed.
The Court of Appeals panel, exercising the unlimited appellate review appropriate when a motion to dismiss or motion for summary judgment has been granted in the district court, rejected Whye’s reasoning and relied on Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976), stating: “[A] cause of action for wrongful discharge accrues when the plaintiff knows or is certain about the termination.” In the panel’s view, Whye became certain of his termination when the department responded to Forster s memorandum on August 25, 2000, and the August 30, 2002, lawsuit was therefore time barred. It affirmed the district court despite the 1-day difference in its analysis of the facts. Whye v. City Council for the City of Topeka, No. 90,762, unpublished opinion filed March 5, 2004.
We have not previously ruled on how to determine the date that triggers the statute of limitations for a constructive discharge claim or a § 1983 claim based upon it. We also have not addressed this issue in a situation where the plaintiff elected to take early retirement. At least three possible accrual dates are worthy of consideration: (1) the date the employee notifies the employer of his or her intention to retire; (2) the date the employer accepts the employee’s offer to retire; and (3) the effective date of the retirement. Resolution of this question requires interpretation of the statute of limitations, and interpretation of a statute raises a question of law. We therefore have unlimited review. See Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1027, 58 P.3d 1284 (2002).
Defendants argue and we agree that accrual of Whye’s §1983 claim and accrual of his state law constructive discharge claim must be analyzed separately.
Whye’s § 1983 claim accrued when he knew or should have known that his constitutional rights had been violated. See Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999) (citing Smith v. City of Enid, 149 F.3d 1151, 1154 [10th Cir. 1988]).
Whye alleged in his petition that Wagnon summoned Forster into her office and demanded that he fire Whye. When Forster reported this demand to Whye, Whye saw “that putting up a fight against Mayor Wagnon’s decision would cause the resignation or termination of a dear and respected friend,” and thus he “had no choice but to end his [own] employment and accept early retirement.” On these facts, we agree with the district judge that any alleged deprivation of due process had been committed and was known to Whye no later than August 24, 2000, when Whye communicated through Forster that he intended to take what he viewed as a forced retirement.
With regard to accrual of Whye’s constructive discharge claim under state law, K.S.A. 2003 Supp. 60-513(b) controls. It states:
“[T]he causes of action listed . . . shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.”
This court has defined constructive discharge to mean “ ‘[q]uitting as a reasonable response to illegal treatment.’ ” Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 Kan. 484, 494, 961 P.2d 696 (1998) (quoting Player, Employment Discrimination Law § 5.60 [1988]). Whye asserts that he suffered no injury or damages until his retirement became effective and criticizes the 30-year-old Johnston case relied on by the Court of Appeals as outdated and factually distinct.
In Johnston, plaintiff Stanton Johnston was a longtime employee of Farmers Alliance Mutual Insurance (Alliance). Johnston claimed he was terminated on March 3, 1972, in retaliation for reporting missing money to his superiors. Although Alliance paid him through May 31, 1972, he had found other employment on May 25, 1972. Johnston filed his lawsuit on May 31, 1974, and Alliance moved for summary judgment, claiming his claim for retaliatory discharge was barred by the 2-year statute of limitations. Johnston, 218 Kan. at 543-44.
This court determined that, in the words of 60-513(b), the act giving rise to Johnston’s claim first caused substantial injury when he received notice of his termination on March 3, 1972. This was true, “[ajlthough some damages to the plaintiff may not have accrued under the accounting principles until installments of salary had ceased .’’Johnston, 218 Kan. at 548.
Whye’s criticism of Johnston is unpersuasive. The notice of termination that marked accrual of Johnston’s cause of action for retaliatory discharge is legally indistinguishable from Whye’s communication of his plan to pursue retirement here. Although each act predated the ultimate cessation of pay, it signaled that the cessation had become inevitable. If we accept Whye’s version of the facts as true, as we must on this review, he felt he had no choice and was forced to take early retirement; in other words, he had already been shown the door just as convincingly as Johnston had. The statute of limitations began to run on August 24, 2000, and Whye’s lawsuit was time barred.
Our review of other jurisdictions’ constructive discharge cases lends support to our decision.
The New York Supreme Court held in Clark v. State, 302 App. Div. 2d 942, 754 N.Y.S.2d 814 (2003), that Nancy Clark’s claim for constructive discharge was filed too late: 3 years and 1 day after submitting her letter of resignation. The letter was submitted October 4, 1985, to be effective October 7, 1985. The court held Clark’s claim accrued when she tendered her letter of resignation on October 4, 1985, “not when her resignation became effective.” Clark, 302 App. Div. 2d at 944.
In Daniels v. Mutual Life Ins. Co., 340 N.J. Super. 11, 773 A.2d 718 (2001), the New Jersey court opted for a bright-line accrual test, holding that the period of limitations for constructive discharge cases “begins to run on the date that the resignation is tendered.” 340 N.J. Super, at 13. The plaintiff, who had tendered her resignation on December 4, 1995, was persuaded to stay through the end of the week, making her last day of employment December 8. She filed suit 1 year from her last day, i.e., 1 year and 4 days after resigning. The court said:
“The harm has been done when the employee feels compelled to resign. In short, in an actual termination situation, the retaliatory action which starts the running of the period of limitations is the separation from work. In a constructive discharge situation, the retaliatory action is the creation of intolerable conditions which a reasonable employee cannot accept. The conditions become intolerable when the employee tenders his or her resignation. Thus, by definition, the act of discrimination cannot occur any later than the date of resignation.” 340 N.J. Super, at 17-18.
In University of Texas Medical Branch v. Hohman, 6 S.W.3d 767, 773-74 (Tex. App. 1999), the Texas Court of Appeals rejected the employer’s argument that nurses claiming constructive discharge had to file suit within 90 days of when retaliatory conduct began, rather than within 90 days of their eventual resignation. Hohman, 6 S.W.3d at 773-74. Moreover, the court stated, “[r]egardless of when the nurses actually left the employment of [the University], we hold that their constructive discharge claims accrued on the dates they submitted their resignations. By those dates, they were aware that conditions had become intolerable and that they felt compelled to resign.” Hohman, 6 S.W.3d at 774.
In Hancock v. Bureau of National Affairs, Inc., 645 A.2d 588 (D.C. 1994), the District of Columbia Court of Appeals reviewed a fact situation very similar to the one presented here.
Plaintiff James Hancock had submitted his letter of resignation on June 20, 1991, which was also his last day of work. The letter stated Hancock was retiring early because of the defendant employer s discriminatory conduct toward him, and he would take 7 weeks of accrued vacation, starting the next day. Hancock and the employer then continued discussions on the amount of salary and commission owed to Hancock, and the employer eventually sent a letter to Hancock on August 16, 1991, stating that July 31, 1991, was his official retirement date. Hancock brought suit on July 20, 1992. Hancock, 645 A.2d at 589.
The employer argued Hancock’s case was time barred by the applicable one-year statute of limitations; Hancock argued that the statute had not begun to run until his official retirement date. Like Whye, Hancock said that, until he was officially retired, he and the employer could have worked out their differences and he could have abandoned his plan to retire. Hancock, 645 A.2d at 590.
The court sided with the employer, relying on cases from Illinois, Washington, and the federal District of Kansas. Hancock, 645 A.2d at 590 (citing Lowell v. Glidden-Durkee, Div. of SCM Corp., 529 F. Supp. 17, 19 [N.D. Ill. 1981]; Lange v. Cigna Individual Financial Serv. Co., 766 F. Supp. 1001, 1004 [D. Kan. 1991]; Douchette v. Bethel School Dist. No. 403, 117 Wash. 2d 805, 815, 818 P.2d 1362 [1991]). It observed that some courts “focused their inquiry upon identifying the last possible date on which an unlawful employment practice could have occurred,’ ’’while others rejected the argument that the effective date of resignation or retirement should serve as the statute of limitations trigger; those jurisdictions instead found that the accrual date was the date of the allegedly forced announcement of resignation. 645 A.2d at 590 (quoting Lowell, 529 F. Supp. at 19). Specifically with regard to Hancock, “No discriminatoiy act supporting a claim of constructive discharge could occur after the last day that an employee was physically at work.” Hancock, 645 A.2d at 590 n.l.
In line with these authorities and the language of K.S.A. 2003 Supp. 60-513(b), and consistent with the nature of a claim for constructive discharge, i.e., that the plaintiff has been forced to leave an intolerable workplace, we hold that the cause of action accrues and the statute of limitations begins to run when the plaintiff tenders his or her resignation or announces a plan to retire. For Whye, this was August 24, 2000. See Flaherty v. Metromail Corporation, 235 F.3d 133, 136-39 (3d Cir. 2000); Hancock, 645 A.2d at 590 n.1; Johnston, 218 Kan. at 548. We agree with the Daniels court’s practical bright-line approach. See Daniels, 340 N.J. Super, at 13, 19.
Finally, at oral argument Whye asserted that the tolling provision of K.S.A. 12-105b(d) somehow excused the late filing of his lawsuit. This issue was not pursued in the district court at the hearing on defendants’ motion to dismiss. Nor did it appear in Whye’s brief to the Court of Appeals or his petition for review to this court. We therefore deem this issue was not preserved and is abandoned. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
The district court is affirmed. The Court of Appeals is affirmed as right for the wrong reason. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (decision will be upheld even though wrong ground relied upon if result was correct). | [
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The opinion of the court was delivered by
Davis, J.:
The defendant, Charles R. Shelton, was charged with several drug offenses based upon evidence seized in an inventory search of the van he was operating. We granted his petition for review on the question of whether the district court erred in not suppressing evidence resulting from the inventory search. More specifically, we consider whether the impoundment of the van was lawful where officers did not ask the defendant as to disposition of the van and whether the search was pretextual based upon officers’ failure to include all valuables in the inventory. We affirm.
Facts
On March 12, 2002, the Saline County Sheriff s office received a report that a van, surrounded by coolers, was sitting in the road in a rural area near Simpson and Assaria Roads. Several people ran away from the area when the reporting caller drove by. Deputies James Fletcher and Glenn Gathers were dispatched to the scene around 6:13 a.m.
As the officers approached the intersection, Deputy Fletcher observed a van parked in the middle to right-hand side of the road near a stop sign. He could see the van from about a half mile away. Fletcher Found the defendant asleep in the driver’s seat, and he knocked on the window to wake him. He asked for a driver’s license and the defendant gave him a Kansas identification card. After running his name through the dispatch center, Fletcher arrested the defendant for operating a vehicle while his license was revoked.
The defendant told Fletcher that he was from Carlton, Kansas. Fletcher did not recall asking the defendant if there was anyone in the area that could move the van for him, and the defendant testified that he was not consulted. When asked if the defendant was of right mind and capable of making a decision regarding the disposition of the van, Fletcher replied, “Possibly.” As department policy dictated that the vehicle be impounded if an individual was arrested and someone was not immediately available to retrieve the vehicle, the officers contacted a towing company to take the van out of the intersection.
The officers began an inventoiy search of the van. Fletcher got into the van and wrote down the odometer readings the make of the van, and the license tag number. He noticed a drinking cup with a syringe in it between the driver and passenger seats. He asked the defendant if he was a diabetic and the defendant responded in the negative. Fletcher gave the inventoiy sheet to Deputy Gathers who listed the personal property in the van as a CD case, miscellaneous pictures, a Kansas tag, miscellaneous clothing, and videotapes.
Fletcher testified that he understood department policy was to list all items of value in an inventoiy search so that if something later turns up missing the officers can refer to the impound sheet. Fletcher admitted that there were items in the van that were not listed, including the items seized as evidence. Evidence taken from the van included the syringe, a duffel bag, an address book, and an “owe sheet” in the bag. At the preliminary hearing, Fletcher testified that he found two backpacks in the passenger area which contained baggies of marijuana, methamphetamine, and electronic scales.
Aaron Dennett, the van’s owner, picked up the van from the impoundment location the next day. The defendant examined the van at Dennett’s home 3 days after his arrest and took pictures of the inside of the van which were admitted at the suppression hearing. The defendant explained that he took the pictures because he did not get a copy of the impound inventoiy. The pictures showed a CD case and CDs, glasses, a CD player installed in the van, two 1888 and 1898 silver dollars, tools and toolboxes, an old tape deck, an electrical connector box, a first-aid kit, a jack, a laundry basket with sheets, a bag of dog food, and other things “that probably should never have been in the van.”
The defendant was charged with possession of methamphetamine with intent to sell, possession of marijuana with intent to sell, possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, and driving while his license was revoked. He moved to suppress all evidence found in the van, arguing that his van was unlawfully impounded and that the subsequent inventory search was a subterfuge by law enforcement officers to conduct a warrantless search.
The district court denied the motion after a suppression hearing. The court first found that probable cause existed to arrest the defendant for driving while his license was revoked. Second, the court found the impoundment was legal, reasoning that no one was at the scene to take charge of the van, the defendant was not capable of driving the van, no evidence was presented that the deputy could have legally parked it alongside a country road, officers do not have to summon someone from outside the immediate vicinity and the location of the van was a “pretty long ways” from the town where the defendant claimed he resided, and no obligation existed to leave an officer with the van until its owner could be contacted.
Finally, the court found that the officer was required to conduct an impoundment search, regardless of whether it turned out to be a full and complete search. It reasoned that Fletcher began the search as a lawful inventory search and had no reason to suspect anything until he saw the syringe in the cup in plain view. The court concluded that this case does not run afoul of either State v. Teeter, 249 Kan. 548, 819 P.2d 651 (1991), or State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), as a search incident to arrest.
The defendant was tried on stipulated facts, reserving his right to appeal the court’s ruling on the motion to suppress, and he was convicted of felony possession of methamphetamine with intent to sell, felony possession of marijuana with intent to sell, felony possession of drug paraphernalia, and driving while license revoked.
The defendant appealed the court’s ruling on the motion to suppress to the Court of Appeals, arguing the inventory search was illegal because it was a cover for an investigatory search by the officers and because the officers failed to give the defendant the option of having someone else retrieve the van before immediately having it towed and impounded.
In affirming the district court, the Court of Appeals found the impoundment was legal. The court distinguished this case from the unlawful impoundment in Teeter where the defendant was parked in a private area, the defendant was not arrested prior to tire im-poundment, and the defendant was instructed to drive the vehicle to the impoundment area. The court found that Teeter more generally applied the guidance of State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984), and State v. Foster, 217 Kan. 618, 539 P.2d 294 (1975), and did not merely decide the case based on lack of consultation. State v. Shelton, No. 89,610, unpublished opinion filed Nov. 26, 2003.
The court concluded that the facts of this case were most similar to State v. Bornholdt, 261 Kan. 644, 657-58, 932 P.2d 964 (1997), where the court endorsed the Fortune and Boster criteria by upholding an impoundment where tire defendant was arrested and left his vehicle unattended, the vehicle was stopped in a lane of traffic, and the record did not indicate whether the defendant attempted to make any disposition of the vehicle. The Court of Appeals reasoned that the defendant testified that he was unaware of anyone being around, the defendant was lawfully arrested, the defendant’s van was parked in the middle of a rural roadway, and the record did not indicate that the defendant objected to the im-poundment or suggested any practical alternatives, nor did he on appeal, and so the impoundment was legal.
The Court of Appeals also rejected the defendant’s argument that the inventory search was a ruse for an investigatory search, noting that the inventory search was conducted pursuant to department policy and that the only evidence that the search was a ruse was that some items in the van, arguably of value, were not listed on the inventory sheet. As Fletcher testified that he had done previous inventory searches and his practice was to list only those items of value, the court declined “to invalidate the search based solely on Fletcher’s discretionary determination of what was a val uable item according to the standards of the department,” citing Florida v. Wells, 495 U.S. 1, 4, 109 L. Ed. 2d 1, 110 S. Ct. 1632 (1990). The court concluded that Fletcher s listing of items from the search, coupled with his testimony which the district court found credible, was substantial competent evidence that Fletcher engaged in a reasonable inventory search.
Inventory Search
The defendant contends that all evidence obtained by the police from the inventory search of the vehicle he was operating should have been suppressed for two reasons: (1) He was not asked by the police as to the disposition of the vehicle and (2) the search was a cover for an investigatory search by the officers. The first contention deals with the impoundment of the vehicle and the second questions the search itself.
Our standard of review on both questions is the same primarily because both questions involve factual determinations by the trial court as well as a legal determination based on those findings of fact and, thus, the resolution of both contentions is a mixed question of fact and law:
“On a motion to suppress evidence, this court reviews the facts underlying the trial court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. In this case there is no dispute as to the facts; therefore, the ultimate determination of suppression is a legal question requiring this court’s independent constitutional appraisal of the effects of those facts.” State v. Morris, 276 Kan. 11, 15, 72 P.3d 570 (2003).
“When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure.” State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
(1) Suppression of Evidence
The prosecution’s case depended upon the admission of evidence seized during the search of the van the defendant was operating. Before any consideration of the search itself, the impoundment of the van by the police must meet the requirements of the Fourth Amendment to the United States Constitution. Inventory searches are recognized as exceptions to the probable cause war rant requirements of the Fourth Amendment. When the defendant claims that the vehicle in his possession was unlawfully impounded by the police, the prosecution has the burden of proving that the impoundment was reasonable under the totality of circumstances.
In this case, the defendant was capable of making a determination as to the disposition of the van he was driving. However, it is undisputed that die officer did not make any inquiry of the defendant before impounding the van. The first question arising is whether under the Fourth Amendment, a police officer must give a driver who is competent of making a rational disposition of the vehicle, the opportunity to make that disposition in order to justify impoundment. The answer to this question is no. What is required under the Fourth Amendment is that the impoundment be reasonable under the totality of circumstances. The officer’s inquiry of the driver regarding disposition is but one of the circumstances that is considered in the court’s determination of whether the im-poundment is reasonable.
The Fourth Amendment does not require police to allow an arrested person to arrange for the disposal or removal of his or her vehicle to avoid impoundment. See Colorado v. Bertine, 479 U.S. 367, 373-74, 93 L. Ed. 2d 739, 107 S. Ct. 738 (1987) (“[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means”).
The examination of Kansas case law supports the above conclusion. In Teeter, a policeman noticed Teeter during the early morning hours parked in a bowling alley parking lot with his foot sticking out of a window of the car. The officer approached and asked Teeter for his driver’s license and proof of vehicle registration. His driver’s license had expired, and the registration showed he was the owner of the vehicle. The officer had Teeter lock his vehicle, and Teeter accompanied the officer to the Hiawatha Police Department. At the station it was determined that Teeter had no insurance for his vehicle, and arrangements were made for Teeter to spend the night at a local motel. An officer later returned to the motel and obtained the keys to Teeter’s vehicle. The chief of police authorized the impoundment of the vehicle on the basis that Teeter had no driver s license or liability insurance and did not know anyone in Hiawatha who could drive the car for him. No inquiry was made of Teeter as to the disposition of his vehicle.
An inventory search of the vehicle revealed illegal drugs for which defendant was arrested the next morning. On appeal this court outlined the well-delineated exception to the probable cause warrant requirement of the Fourth Amendment and set forth the reasons for the exception.
“Under the Fourth Amendment to the U.S. Constitution, a search and seizure of evidence obtained without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to few specifically established and well-delineated exceptions.’ [Citation omitted.] Inventory searches of vehicles lawfully impounded have been recognized as one of these few exceptions. [Citation omitted.] Inventory searches of vehicles serve three purposes: the protection of the owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger. [Citation omitted.]” 249 Kan. at 550.
Teeter noted that for the exception to apply, the impoundment must be reasonable:
“It is a well-known rule of law that an inventory search of a vehicle cannot be valid unless the police first obtain lawful possession of the vehicle. The police must have authorization by statute or ordinance to lawfully impound a vehicle, whether at the station house or other place of safekeeping. If the police do not have express authority to impound a vehicle, they may still take lawful custody of a vehicle when there are ‘reasonable grounds’ for impoundment. [Citation omitted.]” (Emphasis added.) 249 Kan. at 550-51.
The Teeter court quoted from Boster, 217 Kan. at 624, which set forth six examples of situations which give rise to reasonable grounds for impoundment:
“ ‘ “(1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver, (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in tire case of forfeiture.” ’ ” 249 Kan. at 552.
The Teeter court also sought guidance from Fortune, 236 Kan. at 257, by quoting the following pertinent portion of the opinion:
“ ‘If the owner, operator or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person’s custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable [as in the instant case] or unwilling to instruct the arresting officers as to the vehicle’s disposition or some other legal reason justifying impoundment exists should the officers assume control over the vehicle.’ 236 Kan. at 257.” 249 Kan. at 551-52.
Relying upon Foster and Fortune, the Teeter court concluded that all evidence must be suppressed, reasoning that Teeter was in his car, parked in a private area when he was first approached, and “[although Teeter was capable of making decisions about whether to leave his car parked or to arrange for someone else to move or tow it, he was not consulted.” 249 Kan. at 552.
The ultimate decision in Teeter may have created some confusion regarding the requirements of the Fourth Amendment. We believe that all previous cases relied upon by Teeter as well as Teeter itself resolved the issue concerning impoundment by considering the totality of circumstances to determine whether im-poundment was reasonable. However, we note that at least one jurisdiction concluded that Kansas had elevated the need to consult with a capable driver as to disposition of his or her vehicle to a Fourth Amendment constitutional requirement. See Benson v. State, 342 Ark. 684, 690 n.1., 30 S.W.3d 731 (2000) (“[T]he Supreme Court of Kansas seemed to find a Fourth Amendment right to have an opportunity to dispose of the vehicle rather than submit to its impoundment, but there is no reference to Bertine, [479 U.S. at 373-74] and little discussion other than reference back to earlier Kansas cases. State v. Teeter, 249 Kan. 548, 819 P.2d 651 [1991].”).
Perhaps our court has placed too much rebanee upon the opportunity of a driver to dispose of the vehicle rather than submit to its impoundment. However, a careful reading of Teeter as well as other decisions by this court on the subject establish that im- poundment is lawful if there are “reasonable grounds” for im-poundment. Those earlier decisions from this court do not create a Fourth Amendment right to a police consultation regarding the disposition of the vehicle before impoundment may be lawful. Consultation is but one factor, although an important factor to be considered among the totality of the circumstances in the determination of whether impoundment is reasonable.
One of our more recent cases has recognized this principle. In Bornholdt, 261 Kan. 644, the police were searching for the defendant in connection with a murder investigation. An officer saw him driving his vehicle on the street and stopped him. The officer took him to the police station for questioning and impounded his vehicle. The defendant was arrested at the station and the police conducted an inventory search of his vehicle. The Bornholdt court reviewed Boster, Fortune, and Teeter before concluding:
“[I]n this case the record indicates Bomholdt’s car was stopped in a lane of traffic and had to be moved to a private driveway in order to prevent it from obstructing traffic. There is no factual basis in the record indicating Bornholdt attempted to make any disposition of the vehicle. The police were clearly obligated to take custody of it, have it impounded, and, ultimately, have it properly and lawfully inventoried.” 261 Kan. at 657-58.
The court found the facts were similar to Fortune because the defendant was taken away from his vehicle by the police and his vehicle was left unattended. The court concluded that the facts showed no indication that the vehicle was unlawfully impounded. 261 Kan. at 658.
As stated above and as demonstrated in Bornholdt, the determination of whether an impoundment is lawful in a case such as the one we now consider is not dependent upon consultation with the defendant about disposition, rather, the law in Kansas is and has been that such a determination is based upon the totality of the circumstances of the given case.
The facts of this case establish that reasonable grounds for im-poundment existed. The van was illegally parked in a rural intersection and the defendant’s lawful arrest left the vehicle unattended. Department policy dictated that the vehicle be impounded under this situation. The location of the vehicle, a rural intersec tion, did not render itself to an immediate lawful disposition of the van. The defendant told officers that no one was around and he lived in another city. Although the defendant was “readily available” and may have been able to suggest an alternative disposition, he did not object or offer any alternatives. As reasonable grounds existed for impoundment, officers were not required to consult the defendant about an alternative disposition. The district court properly denied the motion to suppress on this ground.
Before leaving this issue, we note that additional statutory grounds existed for the impoundment of the van the defendant was driving. On April 22, 2004, this court issued an order instructing the parties in this case to discuss the effect of K.S.A. 8-1569 and K.S.A. 8-1570 on this issue, as neither the parties nor the Court of Appeals relied upon this authority in their arguments or analysis.
K.S.A. 8-1569(a) provides in relevant part:
“Outside a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in eveiy event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway.”
In this case, the defendant clearly violated K.S.A. 8-1569 when officers discovered him sleeping in the van parked near the middle of the road at a rural intersection. Although not discussed at the suppression hearing, Deputy Fletcher testified at the preliminary hearing that the van was idling in drive when he first discovered the defendant. The court, thus, needs to determine whether this violation of K.S.A. 8-1569 provided the officers with express statutory authority to impound the van under K.S.A. 8-1570.
K.S.A. 8-1570 provides:
“(a) Whenever any police officer finds a vehicle in violation of any of the provisions of K.S.A. 8-1569, such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the roadway.
“(b) Any police officer is hereby authorized to remove or cause to be removed to a place of safety any unattended vehicle illegally left standing upon any highway, bridge, causeway, or in any tunnel, in such position or under such circumstances as to obstruct the normal movement of traffic.
“(c) Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:
(1) Report has been made that such vehicle has been stolen or taken without the consent of its owner;
(2) The person or persons in charge of such vehicle are unable to provide for its custody or removal; or
(3) When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to talce the person arrested before a judge of the district court without unnecessary delay.”
Subsections (a) and (b) of this statute apply to the facts in this case. Subsection (a) authorizes the officer to choose between three options to move the vehicle off of the roadway: (1) The officer is authorized to move such vehicle, (2) the officer may require the driver to move the vehicle, or (3) the officer may require some other person in charge of the vehicle to move the vehicle to a position off the roadway. It does not provide that the officer must consult with the driver or other person in charge of the vehicle before choosing to move the vehicle himself.
As the officer did not have to consult with tire defendant under this subsection, the question tiren becomes whether authority to move the vehicle “off the roadway” includes allowing an officer to impound the van rather than just moving it to the side of the road. The other subsections of 8-1570 provide the officer with the authority to move the vehicle to “a place of safety” or “to the nearest garage or other place of safety.” K.S.A. 8-1570(b), (c).
Regardless of this difference in language among the subsections, Deputy Fletcher testified that the rural intersection involved in this case was made up of gravel roads, with fields on all four corners, and the district court concluded that no evidence was presented that the deputy could have legally parked it alongside a country road. Based on this evidence, Deputy Fletcher had no choice but to have the vehicle towed away in order to move it “off the roadway.”
Subsection (b) provides the officer with authority to move an unattended vehicle illegally left standing on a highway. The vehicle in this case was illegally sitting in the middle of the intersection pursuant to K.S.A. 8-1569. As discussed above, the defendant’s arrest effectively rendered the van unattended. As such, the officer had authority to impound the vehicle under this subsection as well. While it is true that the officer did not rely upon the above statutory authority, the above statutory provisions serve as additional authority for the lawful impoundment of the defendant’s van.
(2) The Search
The defendant contends that the search was somewhat of a ruse based upon the way the inventory was conducted. However, inventory searches conducted pursuant to standard police procedures are reasonable. South Dakota v. Opperman, 428 U.S. 364, 372, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Still, the search must be for the purpose of establishing an inventory:
“[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime.’ [Citation omitted.]
“But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical ‘all or nothing’ fashion. ‘[I]nventoiy procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.’ . . . The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.” Florida v. Wells, 495 U.S. 1, 4,109 L. Ed. 2d 1, 110 S. Ct. 1632 (1990).
The defendant argues the inventory search in this case was simply a pretext to conduct an investigatory search because the officer did not list every item of value in the van (tools, CDs, glasses, two silver dollars, CD player, tape deck, speakers), and he did not give the defendant any alternative options regarding the disposition of the vehicle. It was correctly noted by the trial court that there is no evidence in the record suggesting that the officers had a hidden agenda as to the search. The officers had never come into contact with the defendant, did not recognize the van, and had no reason to suspect the defendant of hiding contraband in the van.
The deputy contacted the towing company and performed the inventory search pursuant to department procedure. He testified that he had conducted previous inventory searches and it was his practice to only list those items of value. The inside of the van was very cluttered making it possible that some items of value were overlooked.
Officers are permitted to exercise judgment in conducting an inventory search and it does not have to be conducted in an all or nothing fashion. The officers properly used their discretion in listing a CD case, miscellaneous pictures, a Kansas tag, miscellaneous clothing, and videotapes. The district court, who was in the best position to judge credibility, found the deputy’s testimony credible. The Court of Appeals correctly declined to invalidate the search based on the deputy’s discretionary determination of what constituted a valuable item. As such, the defendant has not established that the inventory search was a ruse for an investigatory search.
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The opinion of the court was delivered by
Luckert, J.:
After Eric Conn was stopped for a traffic violation, he was arrested for driving without having a proper driver s license and failing to provide proof of insurance. Conn provided the arresting officer with a name and date of birth and stated that he had a valid drivers license issued by the State of Texas. When dispatch advised there was no record of a license issued in the name Conn had provided, officers conducted a search of the automobile in an effort to locate proof of identification. Officers also found methamphetamine and various items of drug paraphernalia. After being transported to jail, Conn was given an implied consent advisory and asked to consent to a urine test. The sample tested positive for methamphetamine. Conn filed a motion to suppress the evidence seized in the search of the car and a motion in limine to prohibit introduction of evidence regarding the urine test results. Both motions were denied by the trial court.
On direct appeal, the Court of Appeals, in an unpublished opinion, determined the evidence should have been suppressed and reversed Conn’s drug convictions. State v. Conn, No. 89,008, filed August 29, 2003. We granted the State’s petition for review. Conn did not cross-petition for review of the Court of Appeals’ determination of an issue related to jury instructions.
Upon review, we conclude that the search of the automobile was lawful as a warrantless search because probable cause existed to believe the crime of obstruction of official duty had occurred and exigent circumstances allowed the immediate, warrantless search of the automobile for evidence that would establish that the name initially provided by Conn was false. Therefore, we affirm the trial court and reverse the Court of Appeals on this issue. However, we agree with the Court of Appeals that Conn’s consent to the urinalysis was coerced.
With one exception not relevant to our analysis, the parties accept these facts regarding the search set forth in the Court of Appeals majority opinion:
“Trooper Phelps of the Kansas Highway Patrol stopped a vehicle because one of its headlights was inoperable. Conn was driving; the vehicle contained one passenger. Conn told the trooper that he did not have his driver’s license with him and provided expired insurance documents.
“Sitting in the patrol car, Conn gave Trooper Phelps a false name and date of birth, stating that he had a valid Texas driver’s license. After the dispatcher was unable to verily Conn’s information, Phelps advised Conn that he was under arrest for driving without a license and having no proof of insurance. Phelps returned to Conn’s vehicle to ask the passenger for the driver’s name. After the passenger responded that she only knew that the driver’s first name was Brian, the trooper returned to the patrol car, handcuffed Conn, and gave him the Miranda warnings.
“After waiving his rights, Conn gave his correct name and date of birth, as well as advising the trooper that he had a Colorado driver’s license. A computer check verified the information and disclosed that Conn had an outstanding felony warrant.
“Trooper Phelps asked Trooper Tucker, who had responded to Phelps’ call for assistance, to look for information on Conn’s identity around the driver’s area in the vehicle. Tucker ordered the passenger to exit the vehicle, obtained her identification, and advised her that he was going to search for information on the driver’s identity. As Tucker entered the vehicle, the passenger pushed the trooper aside and grabbed a box that was situated between the driver’s and passenger’s seats. As the passenger tried to throw the box into the back of the vehicle, Trooper Tucker arrested her.
“The box contained drug paraphernalia and methamphetamine residue. Trooper Tucker continued the search, locating Conn’s Colorado driver’s license in a wallet behind the driver’s seat. The search also uncovered drugs and items that are commonly used for the manufacture and ingestion of methamphetamine.”
Conn filed a pretrial motion to suppress the evidence seized during the search. The parties stipulated that the trial court could base its decision on the transcript of the preliminary hearing. The trial court denied the motion to suppress. In making oral findings after the hearing on the motion to suppress, the trial judge stated: “I am convinced from the evidence that this is a search incident to arrest . . . .” Conn and the Court of Appeals focus upon this statement. However, in addition, the written journal entry contains a different reason for upholding the search which does not refer to a “search incident to arrest.” The journal entiy states:
“[T]he Court finds that the search of the vehicle operated by the defendant [Conn] was conducted at least in part because of die defendant’s obstruction of the official duty performed by Trooper Elwood Phelps by falsely identifying himself, and that the search of the passenger’s compartment of the vehicle for proof of the defendant’s [identity] and driving status and which led to the discovery of illegal contraband was justified under the Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights to the Kansas Constitution.”
A jury convicted Conn of attempted manufacture of methamphetamine, possession of pseudoephedrine as a precursor to methamphetamine, possession of methamphetamine, possession of marijuana, felony possession of drug paraphernalia, misdemeanor possession of drug paraphernalia, obstruction of official duty, and driving without insurance. The jury acquitted Conn of driving without a driver s license. The trial court granted Conn’s motion for judgment of acquittal on the charges of attempted manufacture of methamphetamine and felony possession of drug paraphernalia.
Conn was sentenced to a controlling term of 44 months’ imprisonment. He timely appealed.
Did the Court of Appeals Err in Ruling That Evidence Discovered During the Search of Conns Vehicle Should Have Been Suppressed?
When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Section 15 of the Kansas Constitution Bill of Rights proscribe all unreasonable searches and seizures. Searches conducted without a valid search warrant are deemed per se unreasonable unless a specifically established and well-delineated exception to the warrant requirement applies. Boyd, 275 Kan. at 273. Generally recognized exceptions include: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses. State v. Mendez, 275 Kan. 412, 66 P.3d 811 (2003).
In this case, the trial court, in oral findings, determined that the search was valid as a search incident to arrest and in written findings made broad statements, without reference to a search incident to arrest, regarding the search being justified because of Conn’s obstruction of official duty.
Search Incident to Arrest
In Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by statute. State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). K.S.A. 22-2501 provides:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
In Anderson, this court rejected the view that case law applying the Fourth Amendment, in particular New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981), meant that a search of an automobile could automatically be conducted when an occupant was arrested, noting that K.S.A. 22-2501 “may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.” 259 Kan. at 22. Anderson was stopped for a traffic offense and arrested for driving on a suspended license and for an outstanding traffic warrant. The officer then searched the car for drugs. This court held that the search was purely a search incident to arrest and was improper because it was not conducted for any of the purposes listed in K.S.A. 22-2501. 259 Kan. at 24. Specifically, the court found the officer was not concerned for his personal safety, nor was he looking for evi dence of the crimes for which the defendant was arrested. 259 Kan. at 19.
Similarly, the trooper in this case did not indicate any concern for safety. The trooper’s testimony was that the purpose of the search was to look for Conn’s identification. Under those circumstances the Court of Appeals rejected the State’s argument that the search for identification could be justified as a search incident to arrest, stating:
“Conn was arrested for driving without a valid driver’s license in his possession and for failing to provide proof of insurance. Both infractions involve the failure of the driver to produce documentation. The trooper did not need to search the vehicle to prove a negative, i.e., that Conn did not, in fact, have a driver’s license with him. We do not read K.S.A. 22-2501(c) as permitting a warrantless automobile search for the purpose of discovering a valid driver’s license to disprove the crime for which the driver was arrested.” Slip op. at 7.
We agree with this analysis. See United States v. Santangelo, 411 F. Supp. 1248 (S.D. N.Y. 1975); People v. Harold Williams, 63 Mich. App. 398, 234 N.W.2d 541 (1975); State v. Webber, 141 N.H. 817, 694 A.2d 970 (1997). We conclude that K.S.A. 22-2501(c) does not permit a warrantless automobile search for the purpose of discovering a valid driver’s license or proof of insurance when the driver has been arrested for driving without a valid license or insurance.
In asking this court to reverse the Court of Appeals, the State argues the majority erred in its analysis of the State’s argument that the seizure of the evidence was legitimate as a search incident to arrest for the offense of obstruction of official duty based upon • Conn giving false information to the trooper. Because the trooper had probable cause to arrest Conn for obstruction before the search was conducted, the State argues the trooper had probable cause to search Conn’s vehicle for evidence of that crime, even though he had not yet been arrested for that particular offense, only for driving without a valid license and without insurance.
The Court of Appeals majority rejected this argument that the search incident to arrest exception to the warrant requirement permits “an automobile search for evidence of any crime for which the law enforcement officer subsequently perceives he or she could have arrested the driver.” Slip op. at 6. The Court of Appeals also reasoned:
“Taking some liberty with traditional categorical syllogism form, the analysis may be deductively summarized as follows: K.S.A. 22-2501(c) was statutory authority for a warrantless search of Conn’s automobile to discover evidence of the crimes for which Conn was arrested; Conn was not arrested for the crime of obstruction of official duty; therefore, K.S.A. 22-2501(c) was not statutory authority for a warrantless search of Conn’s automobile to discover evidence of the crime of obstruction of official duty.” Slip op. at 7.
In reaching this holding, the majority cited Anderson, 259 Kan. 16, as limiting the application of K.S.A. 22-2501(c) to situations where the arrest has been made.
In its petition for review, the State cites State v. Barnes, 220 Kan. 25, 551 P.2d 815 (1976), where this court held that officers who had probable cause to arrest a defendant for robbery could conduct a search incident to arrest before the actual arrest, if the events closely followed each other. The court cited K.S.A. 22-2501 as well as out-of-state authorities as support for the holding. 220 Kan. at 28-29.
The view in Barnes is consistent with the general principle that, for Fourth Amendment purposes, “[a] warrantless search preceding an arrest is a legitimate ‘search incident to arrest’ as long as (1) a legitimate basis for the arrest existed before the search, and (2) the arrest followed shortly after the search.” United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998); see Rawlings v. Kentucky, 448 U.S. 98, 111, 65 L. Ed. 2d-633, 100 S. Ct. 2556 (1980) (stating that where the arrest was justified before the search and the arrest “followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa”).
Conn, although not directly addressing the holding in Barnes, emphasizes the language of K.S.A. 22-2501 which applies “[w]hen a lawful arrest is effected.” Conn argues that, although he was charged with obstruction, he was never arrested for obstruction. The State has not cited any portion of the record which establishes that Conn was arrested for obstruction. We find nothing in the evidence presented at the preliminary hearing, upon which the trial court based its suppression decision, or at the trial which establishes that Conn was arrested for obstruction of legal duty. Our independent review of other portions of the record reveals that Conn was booked into jail on the offense of obstruction, but that occurred approximately 3 hours after the search. Barnes requires that the arrest follow shortly after the search, and that did not happen here. See Barnes, 220 Kan. at 29.
We agree with the Court of Appeals majority that, under the circumstances of this case, the search cannot be justified as a search incident to arrest.
Probable Cause and Exigent Circumstances
The Court of Appeals analysis was singularly focused upon the oral findings of the trial court and interpreted those findings as being based upon a search incident to arrest. The Court of Appeals did not discuss the broader conclusion contained in the journal entry, a finding which does not include the words “search incident to arrest.” This is understandable since Conn focuses his argument upon search incident to arrest and the State responds in kind. However, the written finding of the trial court and the State’s arguments are sufficiently broad to enable unlimited review of this legal question: whether the search of the passenger compartment of an automobile the defendant had been driving was permissible as a war-rantless search based on probable cause that the crime of obstruction of official duty had occurred and the existence of exigent circumstances.
The search of an automobile may be justified on the basis of probable cause that a crime has been committed even though it is not justified as a search incident to arrest. State v. Tygart, 215 Kan. 409, Syl. ¶ 3, 412-13, 524 P.2d 753 (1974). The Tygart court noted that the search incident to arrest statute, K.S.A. 22-2501, “refers only to a search incident to a lawful arrest. It does not refer to a search which is otherwise reasonable and lawful such as one based on probable cause.” 215 Kan. at 412. Compare Anderson, 259 Kan. at 19, 24 (search of automobile not justified on any basis other than as a search incident to arrest).
In addition to the existence of probable cause there must also be exigent circumstances justifying an immediate search before a warrantless search can be conducted. A commonly applied exigent circumstance is the “automobile exception” which allows the war-rantless search of a vehicle when probable cause has been established to justify a search. State v. Boyd, 275 Kan. 271, 273-74, 64 P.3d 419 (2003) (citing Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 [1925]; State v. Jaso, 231 Kan. 614, Syl. ¶ 2, 648 P.2d 1 [1982]).
In an automobile search, the exigency arises because of the mobility of the vehicle. See State v. Tucker, 19 Kan. App. 2d 920, 923-24, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994). In addition, it has been recognized that the exception “may also be justified because the expectation of privacy, with respect to one’s automobile, is significantly less than the privacy expectation relating to one’s home. [Citation omitted.] Automobile searches may be upheld if there is probable cause to believe there is evidence of crime in the automobile. [Citation omitted.]” State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 477, 799 P.2d 1043 (1990).
Trooper Phelps testified he had probable cause to believe Conn had committed the offense of obstruction of legal duty. At the time of the search, the officers knew that the defendant had falsely provided information regarding having a valid Texas driver’s license in the name of Brian A. Trebbe. Although not clear from the Court of Appeals’ statement of facts, Trooper Phelps testified he had not yet verified Conn’s true identity when he asked Trooper Tucker to search the vehicle for Conn’s identification. Under these circumstances, Conn’s identification would constitute evidence of obstruction because it would provide proof that Conn had provided a false name or names. See State v. Latimer, 9 Kan. App. 2d 728, 733, 687 P.2d 648 (1984) (defendant’s false identification of himself impeded the officer’s investigation in violation of K.S.A. 21-3808).
Other jurisdictions have upheld a search for identification when there is probable cause to believe that the individual had obstructed legal duty by providing a false name even though the court would not allow a search based solely upon the failure of the in dividual to present identification when requested. For example, in State v. Scheer, 99 Or. App. 80, 83-84, 781 P.2d 859 (1989), the court rejected the State’s argument that an officer may search for a driver’s license where the officer only had probable cause to believe that the defendant had committed the crime of failure to display a driver’s license. However, in State v. Banks, 103 Or. App. 312, 315, 797 P.2d 383 (1990), the court distinguished the situation, in Scheer and held that where there is probable cause that the defendant has given a false name, the search could be conducted because evidence of identity was relevant to the offense of providing false information to a police officer. See State v. Fesler, 68 Or. App. 609, 685 P.2d 1014 (1984).
This distinction is valid. The discovery of identification was evidence that the name of Brian A. Trebbe was a false name and, therefore, was evidence of obstruction. Thus, under the circumstances of this case, the search was valid under the probable cause with exigent circumstances exception.
Because we find the search was valid as a search based upon probable cause with exigent circumstances we do not address the other exceptions considered and rejected by the Court of Appeals.
Did the Court of Appeals Err in Ruling That Evidence of Conn’s Urinalysis Results Should Have Been Excluded?
Trooper Phelps read Conn an implied consent advisory form and asked him to take a urine test. The advisory form stated that Conn’s driver’s license would be suspended if he refused to take the test. Conn agreed to take the test.
Conn filed a pretrial motion in limine to exclude the urinalysis results on the ground that the trooper was not authorized to request the test pursuant to K.S.A. 8-1001. The trial court ordered that the State refrain from mentioning the urinalysis until it introduced evidence that Conn had voluntarily consented to take the test. When the State called a forensic scientist to testify about the urinalysis results, Conn renewed his motion in limine and the trial court held a hearing outside the presence of the jury. The court allowed Conn to proffer testimony about the circumstances surrounding the urine test.
Conn testified that the trooper told him his driver s license would be suspended for 2 years if he refused to take the test. Conn stated, “I told him I didn’t have anything to worry about taking a UA anyway because I wasn’t under the influence, so I told him I didn’t have a problem with it.” Conn admitted that he freely and voluntarily consented to take the test. However, upon redirect, he clarified that he consented as a result of the threat of license suspension, stating, “I wouldn’t have given [a sample] at that time if I didn’t think I was going to lose my driving privileges.”
The trial court ruled that the implied consent advisory contained in K.S.A. 8-1001 did'not apply. However, the court also ruled that Conn’s consent was freely and voluntarily given, despite his testimony to the contrary on redirect. The court allowed the scientist to testify that Conn’s urine sample tested positive for methamphetamine.
K.S.A. 8-1001 provides in relevant part:
“(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. . . .
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . ; and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both . . . ; or (2) the person has been involved in a vehicle accident or collision resulting in property damage, personal injury or death.”
The statute also requires that, before a test is administered,- the person must be given notice of a list of matters commonly referred to as implied consent warnings. K.S.A. 8-1001(f).
The majority found that the implied consent warnings were not applicable to Conn because none of the prerequisites of K.S.A. 8-1001(b) were met. In other words, the troopers lacked reasonable grounds to believe that Conn was operating a vehicle under the influence of drugs or alcohol. The majority stated that “law en forcement candidly said that the urine sample was requested to aid in the drug possession investigation.” Slip op. at 12. The dissent characterized the evidence differently, claiming that “[t]he troopers determined that the defendant seemed to be under the influence of alcohol or drugs.” Slip op. at 20.
Neither version is an entirely accurate reflection of die record. When asked whether he believed alcohol or drugs were involved in the traffic stop, Trooper Phelps responded, “No, as far as at first look, no.” Defense counsel then asked, “And the fact that you found what you suspected as narcotics, is that the reason for the urine test?” Trooper Phelps answered, “Well, we found drug paraphernalia in the vehicle with residue inside of the paraphernalia.” Trooper Phelps had not detected any odor of marijuana.
One could infer from Trooper Phelps’ testimony that his eventual discovery of drug paraphernalia in the vehicle gave him reason to believe that Conn had been driving under the influence of drugs. However, Conn was never charged with driving under the influence, despite testing positive for methamphetamine use. Also, no evidence was presented that the troopers believed Conn was driving erratically or exhibiting signs of being under the influence of drugs.
In any event, the State does not contest the majority’s finding that the troopers lacked reasonable grounds to believe that Conn was under the influence of drugs or alcohol. Rather, the State contends that the dissent correctly found that Conn’s consent was freely and voluntarily given; therefore, the evidence of his urine test was properly admitted.
The State contends that the Court of Appeals majority should have given deference to the trial court’s factual finding that Conn freely and voluntarily consented to give a urine sample. The majority recognized that the appellate court is not to decide credibility issues, reweigh conflicting evidence, or redetermine questions of fact, citing State v. Lewis, 27 Kan. App. 2d 380, 387, 5 P.3d 531 (2000). However, the majority essentially found that Conn’s consent was coerced as a matter of law because of the trooper’s unauthorized threat of license suspension. Slip op. at 13.
The majority’s reasoning finds some support in State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973), disapproved in part on other grounds by State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001). In Brunner, the defendant was involved in a traffic accident and was taken to the hospital. An officer interviewed the defendant there and asked if he would submit to a blood alcohol test. When the defendant asked what would happen if he refused, the officer told him his driver’s license would be suspended. The defendant then consented to the test.
This court held that, under an earlier version of K.S.A. 8-1001, because the defendant had not been arrested, his license could not be suspended for refusing a blood test. Despite the trial court’s finding that the defendant’s consent was voluntary, this court held:
“The result here is that Brunner s purported consent must be regarded as involuntary because coerced by the unfounded threat of suspension. The search (i.e., the blood test) must therefore be tested constitutionally as a warrantless search of the person made without consent. Constitutionally it would be valid under [Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966)] only if incidental to a valid arrest. Since there was no arrest at all, the search and its fruits must fall under the Fourth Amendment axe.” 211 Kan. at 605.
While Murry overruled Brunner in part, it left undisturbed Brunners holding that a defendant’s consent to a blood test is not voluntary where it was coerced by the unfounded threat of license suspension. Based upon Brunner, the majority correctly concluded that Conn’s consent was coerced as a matter of law where the trooper was not authorized to threaten that Conn’s license would be suspended if he refused the test. The State does not offer an alternative basis as a justification for the testing. We, therefore, conclude the resulting search was constitutionally invalid.
However, even errors of constitutional magnitude may be 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. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001).
The most important and damning evidence in this case was the evidence seized during the stop of Conn’s vehicle. However, evi dence of the urinalysis results was also important to demonstrate that Conn had knowledge of and intent to control the drugs and drug paraphernalia sufficient to establish possession. During closing argument, the State highlighted the fact that Conn’s urine tested positive for methamphetamine and argued that this was evidence that Conn had possessed methamphetamine. Defense counsel countered that the jury could not find that the defendant possessed methamphetamine based solely upon the urine test because the jury had no way of knowing when or how the methamphetamine was ingested. Interestingly, defense counsel also argued the fact that Conn’s urine did not test positive for marijuana created a reasonable doubt that Conn was in possession of the marijuana found in the vehicle. During rebuttal the State again mentioned the urinalysis evidence as showing that Conn was in possession of the drugs and drug paraphernalia in the car, even if he and the passenger shared joint possession.
In this case, where the passenger was the owner of the vehicle and she admitted to methamphetamine use, evidence that Conn had also used methamphetamine was an important part of the State’s evidence that Conn was in possession of the drugs and drug paraphernalia found in the vehicle. Under these circumstances, it cannot be said beyond a reasonable doubt that the introduction of the urinalysis evidence had little if any likelihood of changing the result of the trial. The erroneous admission of the evidence therefore justifies reversal.
The decision of the Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded for a new trial.
Beier, J., not participating.
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In a letter dated December 1, 2004, addressed to the Clerk of the Appellate Courts, respondent Richard D. Laird, Sr., of Topeka, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281).
At the time the respondent surrendered his license, a panel hearing was pending on a formal complaint in accordance with Supreme Court Rule 211 (2003 Kan. Ct. R. Annot. 264). The formal complaint concerned allegations of misconduct that he violated a court order and made an improper ex parte communication with the court in a pending matter, and instances of improper conduct with individuals.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Richard D. Laird, Sr., be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Richard D. Laird, Sr., from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
Dated this 6th day of December, 2004. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for an injunction. At the time the petition was filed the district court issued a temporary injunction, but later, on hearing of a proper motion therefor, the temporary injunction was dissolved. The plaintiff appeals from that order.
Omitting formal allegations, it was alleged in the petition filed May 1, 1938, that the city of Byers, under date of November 1, 1919, issued electric light bonds totaling $7,500 due November 1, 1939, and that under date of November 1, 1925, it issued electric light transmission bonds totaling $9,000, due serially; that plaintiff was the owner of thirteen bonds totaling $6,500 of the first issue, and of seven bonds due serially from February 1, 1938, to February 1, 1944, both inclusive, totaling $3,500 of the second issue; that these bonds constituted a statutory lien on all real property in the city of Byers, no part had been paid and all constituted legally outstanding obligations. It was further alleged that the total sinking fund for the retirement of the bonds was $-, the amount being left blank; that the assessed valuation of the city for 1938 was $67,214, and from information obtained from the county clerk of the county plaintiff believed it would be less for 1939; that the city had a population of 186 persons and for some years certain buildings and improvements had been moved out of the city and consequently assessed values had been shrinking, and that the removals had reached such proportions plaintiff’s investment had become jeopardized and would be further jeopardized by the threatened removal of the dwelling house referred to later; that defendant Birney had recently purchased two described lots on which there was located a dwelling house of the value of $1,500 or more, and that the lots and improvements had been assessed as of March 1, 1939, on which assessment a levy would be made for payment of the principal and interest on the bonds; that Birney and others had commenced to remove the house to some location outside the city, and that the removal would reduce the property within the city liable for taxation, and that if the defendants were not restrained they would remove the house, to the irreparable damage of plaintiff. This petition was amended to show that there were 208 separate tract valuations in the city and that there were unpaid taxes on 169 of the tracts, many of the unpaid taxes running back as far as 1917 to 1920; that taxes of past years and one-half of the 1938 taxes were paid on twenty-three of the tracts and all taxes were fully paid on sixteen of the tracts. Statements with reference to personal-property tax will not be repeated here.. The record does not disclose that any evidence was taken either when the temporary injunction was issued or when the motion to dissolve it was heard, and the cause is before us on the allegations of the petition only. .
The appellant recognizes the real question is whether the petition states a cause of action. In consideration of that question we note there is no allegation that interest on all bonds outstanding has not been fully paid, no allegation that any demand was made for payment of the principal of the two bonds which the allegations show to have matured when the present action was filed; no allegation that any proceedings had been brought to reduce to judgment any claim on account of matured bonds; no allegation that the amount in the sinking fund was not sufficient to retire such bonds as were matured; no allegation as to the assessed value of the particular dwelling house involved, either separately as an improvement or in connection with the real estate on which it stood, nor any allegation that the taxes on the lots and house owned by defendant Birney were not fully paid. Owing to the manner in which the appeal is presented and to the further fact the record does not disclose any reason the trial court may have assigned for its ruling, we shall not treat separately the effect of the lacking allegations, contenting ourselves with mentioning some of them in the treatment of other matters involved.
In its brief appellant states it has not been able to refer to any precedents directly in point. It argues by analogy and directs our attention to a statute providing that bonds of any county or township shall be a lien upon the real estate of the county or township (G. S. 1935, 10-1001) and to the case of Comm'rs of Sedgwick Co. v. Bunker, 16 Kan. 498, 504, wherein it was said that when a debt against a county is created, the taxable property becomes liable to pay the same and that the real estate is permanently liable. Our attention is also directed to G. S. 1935, 10-112, which provides that all municipal bonds shall be a general obligation of the municipality issuing the same, and it is contended that this statute in effect makes the same rule apply to cities as by statute expressly applies to counties and townships. If the above be fully correct, it does not provide such a measure that, without more, it may be said the county, township or city, much less a bondholder, may prevent an owner of two tracts of land from removing improvements on one tract and placing them on the other. If the analogy and the implications made were literally true, an owner could not tear down any building owned by him or any part of it, nor could he do anything with it which the county, township, city or municipality conceived might make the real estate less valuable. In theory they, or any of them, could prevent waste of any sort; they could keep prop erty in a static situation from the time the bonds were issued until they were paid. If that is to be the law the legislature should positively so declare.
It requires no review of our statutes to show that plaintiff’s bonds are to be paid out of taxes; that after the bonds were issued, the proper officers were by statute enjoined to provide a sinking fund to pay the principal and to make appropriate levies to pay the interest. Neither need we go into detail to show that if the officers were negligent and the sinking fund was not provided, or was for any reason insufficient, the bondholder might reduce his claim to judgment and compel the making of a levy to pay it. In any event the bonds must be paid from taxes. Waiving for present purposes any discussion of the lack of pertinent and necessary allegations in plaintiff’s petition, the burden of its complaint was the removal of the house in question would cause it irreparable injury because taxes in the city have been allowed to remain delinquent, and it is to be inferred nothing had been done about it, and that continuance of that condition was such that, coupled with the threatened removal of the house from real estate, on which so far as the records show the taxes were fully paid, plaintiff’s investment had been and was jeopardized.
Assuming sufficiency of the petition, it discloses a situation somewhat comparable to that considered in Crawford County Comm’rs v. Kurent, 138 Kan. 556, 27 P. 2d 226, when the county attempted to enjoin the defendant from mining coal upon lands which had been sold for delinquent taxes, the claim being that the mining operations destroyed the value of the lands. In discussing the county’s right, attention was directed to the rule stated in Ness County v. Light & Ice Co., 110 Kan. 501, 503, 204 Pac. 536, that:
“The entire subject of taxation is statutory; the method prescribed for the recovery of delinquent taxes is statutory, and it does not exist apart from the statute.” (Syl. U 2.)
After calling attention to statutory rights of the county to enforce its tax lien and to acquire title and right to possession, it was said:
“As it is, the county has neither title nor right to possession such as is necessary to support a suit against the owner to enjoin acts impairing or destroying the value o’f real property. (Warner v. Pile, 105 Kan. 724, 185 Pac. 1041; Douglass, Guardian, v. Dickson, 31 Kan. 310, 1 Pac. 541; 40 Cyc. 525.)” (Crawford County Comm’rs v. Kurent, 138 Kan. 556, 557.)
It may be observed that the rule there relied upon has been approved in the more recent cases of Sarver v. Sarver Oil Co., 141 Kan. 246, 248, 40 P. 2d 394, and Bachman-Wise Motor Co. v. Comanche County, 143 Kan. 346, 349, 54 P. 2d 965.
The Crawford county case presented a situation much stronger from that plaintiff’s standpoint than does the one we are now considering. There the plaintiff was the one charged with the duty of levying and collecting taxes, here the plaintiff can benefit only from the performance of such duties; there the taxes were delinquent and the property had been sold, here there is no showing that the taxes on the particular property have not been fully paid.
So far as the record discloses, at the time the petition was filed the bondholders had received every cent of interest that was due them; two bonds were due, but there was no showing that any demand for their payment was made, or that if they had been presented for payment there was not plenty of money in the sinking fund to pay them, or if not, that any effort had been' made to reduce them to judgment to form the basis for a judgment levy. Insofar as collecting bonds then matured is concerned, plaintiff had a plain and adequate remedy. As far as the outstanding, unmatured bonds are concerned, plaintiff pleads the bold conclusion that its security will be jeopardized by the removal of an improvement from one tract of the 208 tracts in the city. This conclusion is not supported by any allegation of fact — the assessed value of the improvement is not shown, nor is the assessed value of the improvement and the real estate upon which it stands. Assuming that under any circumstances plaintiff could maintain an action to prevent waste, the petition now before us fails to show any right to relief.
The order of the trial court dissolving the temporary injunction is sustained, and its judgment affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages. The defendant demurred to the petition of plaintiff. That demurrer was overruled. Defendant appeals.
The petition alleged that the defendant was a corporation authorized to do business in Kansas City; that it was engaged in the dairy business; that in the operation of its business it operated a place of amusement and entertainment consisting of a confectionary, restaurant and ice-cream parlor in Kansas City, Kan.; that a license is required of such business by the municipal authorities of Kansas City, Kan.; that this place was open to the general public and was equipped with a radio, tables, chairs and counters for the accommodation of its customers to whom it served ice cream, coffee, sandwiches, meals and soft drinks. The plaintiff further alleges that about July 30, 1938, she sat down at a table in this place and asked to be served a dish of ice cream; that the servant of defendant told plaintiff that she would not serve Negroes in the place and said “I have orders from the boss and manager not to serve colored people.” The petition alleged further that the defendant by this conduct discriminated against plaintiff on account of her color, race and previous condition of servitude and that these acts were a violation of G. S. 1935, 21-2424. The petition further alleged that she had a right to the enjoyment of the privileges, conveniences and accommodation of this place and in like circumstances with the general public, and the defendant deprived her of the full and equal privileges afforded other patrons of that place; and that thereby she was discriminated against on account of her race and color; that her feelings were hurt; she suffered humiliation, disgrace, chagrin and mental anguish; that she was compelled to hire a taxicab to go home at the cost of money in the amount of fifteen cents; that altogether she suffered actual damages in the sum of five thousand dollars; that the defendant’s refusal to serve her on account of her race was wanton and malicious conduct on the part of defendant and she suffered punitive damages in. the sum of five thousand dollars.
Judgment was prayed for that amount.
To this petition the defendant interposed a general demurrer for the reason that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant. This demurrer was overruled, hence this appeal.
The action is based upon G. S. 1935, 21-2424. That section reads as follows:
“That if any of the regents or trustees of any state university, college', or other school of public instruction, or the state superintendent, or the owner or owners, agents, trustees or managers in charge of any inn, hotel or boardinghouse, or any place of entertainment or amusement for which a license is required by any of the municipal authorities of this state, or the owner or owners or person or persons in charge of any steamboat, railroad, stagecoach, omnibus, streetcar, or any other means of public carriage for persons or freight within the state, shall make any distinction on account of race, color, or previous condition of servitude, the person so* offending shall be deeme'd guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction shall be fined in any sum not less than ten nor more than one thousand dollars, and shall also be liable to damages in any court of competent jurisdiction to the person or persons injured thereby.”
The argument of plaintiff is that the place in question was a place of entertainment or amusement for which a license was required by the municipal authorities of the state and that a discrimination was made on account of her race, color or previous condition of servitude. This court considered a similar situation in State v. Brown, 112 Kan. 814, 212 Pac. 663. In that case the state charged that one Gerald Brown unlawfully made a discrimination against a colored man by refusing to serve him lunch in his restaurant or lunchroom, for the operation of which Brown was duly licensed. A motion to quash the information was sustained and the state appealed. The state argued that a restaurant or lunchroom was the same as a hotel or inn or boarding house, which is referred to in the statute. The court reviewed the various definitions that were given for the words “hotel” “inn” or “boardinghouse” and said:
“While in some cases a greater liberality of construction might be justified, the specific mention of inns, hotels and boardinghouses, without words extending their meaning, in the definition of a public offense, too strongly suggests the exclusion of restaurants to allow their inclusion by construction.” (p. 815.)
This court also said that it might be suggested that the action was good by virtue of the allegations; that the defendant was licensed to serve the general public meals and lunches; that it might be said that a restaurant was in one sense a place of amusement. On this point this court said:
“We regard the context, however, as associating the word entertainment,with amusement, so that what is meant is that the prohibition besides covering on the one hand inns, hotels and boardinghouses, irrespective of any question of license, covers on the other hand places of diversion (such for instance as shows of any kind) for which a local license is exacted. Under a statute enacted in 1913, a state license is necessary for the conduct of a restaurant (Gen. Stat. 1915, sec. 5086), but we think this is not the character of license indicated by the phrase, 'required by any municipal authorities of this state.’ ” (p. 816.)
Since this is a penal statute it should be strictly construed. (See Bagley Investment Co. v. Merrick, 122 Kan. 734, 253 Pac. 562; State v. Rhodes, 77 Kan. 202, 93 Pac. 610.) While the petition states that the place in question was a place of amusement and entertainment the plaintiff does not bring herself within the provisions of the statute by her bare statement that such is the case. The outcome of the case depends upon whether under the allegations of the petition the place actually is a place of amusement and entertainment, as provided in the statute.
We are unable to distinguish the ice-cream parlor as described in this case from an ordinary restaurant or lunchroom as described in the case of State v. Brown, supra. What is meant by the words “place of entertainment or amusement” is, in the ordinary use of those terms, a place to which people resort for the purpose primarily of being entertained or amused. The fact that a radio is maintained in an ice-cream parlor does not constitute it a place of entertainment or amusement within the meaning of this statute.
The judgment of the lower court is reversed with directions to sustain the demurrer of defendant to the petition of plaintiff. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a soldiers compensation case. The questions involved are the validity of chapter 280, Laws 1939, and if valid, whether it is applicable in this case. Chapter 280, Laws 1939, effective February 21, 1939, amends and repeals G. S. 1935, 73-102, which originally was section 1, chapter 200, Laws 1923, as amended by chapter 5, Laws 1923, Special Session. As we print it here, the part not within the brackets and not italicized was the original section. The portion within the brackets was inserted by the amendment in 1923, and the italicized portion was added by the amendment in 1939:
“The state of Kansas acknowledges its indebtedness to, and promises to pay to each person, who was a resident of the state of Kansas at the time of entering the service, and who served in the World War in any branch of the army, navy or marine corps of the United States prior to November 11, 1918, and who was honorably discharged thereform, the sum of one dollar per day for each day of his or her entire service [during the emergency created by the World War which for the purposes of this act shall be construed as commencing April 6, 1917, and ending June 30, 1919], which compensation shall be in addition to all pay and allowances made by the United States government: Provided, That no payment shall be made under the provisions of this section to any person who has received a bonus, gratuity or compensation, of a nature similar to that provided for in this act, from any other state in the United States. The term ‘resident of the state of Kansas,’ as used in this section, means any individual who gave the state of Kansas, or any specific place in this state, as his or her place of residence at the time of entering the military or naval forces of the United States, for such period, without regard to the place of enlistment, commission, or induction. The proof of such residence shall be the official records on file in the war and navy departments of the United States: Provided further, That the provisions of this act shall apply to claims now pending before the Kansas soldiers compensation board of the state of Kansas.”
The claimant, Samuel Richardson, filed his claim for compensation with the Kansas soldiers’ compensation board, in which he stated, among other things, that he was born December 28, 1896; that on April 7, 1916, he enlisted in company G of the third Missouri infantry; that he was mustered into service of the United States April 12, 1917, and served until May 6, 1919, when he was honorably discharged, and that he had made application for a soldier’s bonus to the state of Missouri and had received the same; that his parents, whose names were given, resided at a stated address in Kansas City, Kan., which place was his home, and that he was in fact a resident of Kansas City, Kan., at the time of entering the service. The compensation board considered his claim and disallowed it October 3,1938, stating as the reason therefor:
“You gave Kansas City, Mo., as your residence when you enlisted and have failed to prove your claim to Kansas as your residence at the time you entered the service.”
He appealed from this ruling to the district court of Wyandotte county, where a trial was had May 11, 1939. The court found:
“That the claimant, Samuel Richardson, enlisted in the United States army on the 7th day of April, 1916, and was mustered into federal service on the 12th day of April, 1917, and was honorably discharged from that service on the 6th day of May, 1919. That the said Samuel Richardson at the time of his enlistmeent and entry into the federal service in the United States army was, and had been, a bona fide resident of Kansas City, Kan.”
It was further found that he was entitled to compensation, and judgment was rendered accordingly. In doing so the court declined to apply chapter 280, Laws 1939. The compensation board has appealed.
Appellant concedes there was parol evidence sufficient to sustain the finding of the trial court if no attention is to be paid to chapter 280, Laws 1939, but it is argued the statute is applicable and that under it the claim should have been disallowed.
In support of the judgment of the trial court it is argued on behalf of appellee that chapter 280, Laws 1939, “was an ineffective effort to abrogate the rights of this appellee (1) by attempting to bar his recovery of soldiers compensation by reason of his having received a bonus or bounty (not compensation) from another state; and (2) by attempting to invade the powers of the judicial branch-of the government by an arbitrary definition of residence.” (3) It is further contended that in any event the statute is not applicable to this case for the reason that his claim was not “pending before the Kansas Soldiers’ Compensation Board” at the time of the effective date of the act.
A brief history of our soldiers compensation act, its amendments and interpretations, may help us to understand the purpose of our legislature in enacting chapter 280, Laws 1939. More than 80,000 residents of Kansas served in the World War. When they returned home, in recognition of their valued and patriotic services to the state as well as to the federal government, the relatively nominal monetary consideration they had received compared with civilian workers, and the difficulty many of them had in getting readjusted in industry, the state regarded itself as indebted to each of them in the sum of one dollar per day for the time served. Since this was an extraordinary'expenditure, and would create a debt in excess of the sum the legislature alone was authorized to create, the proposition was submitted to a vote of the electors of the state (Laws 1921, ch. 255; G. S. 1935, 73-101). At the general election in November, 1922, the vote was more than two to one in favor of the proposition, and the legislature which met in January, 1923, enacted the statute (Laws 1923, ch. 200), as it had been submitted to the electors. It contained four short sections and another fixing the effective date. The first section was as printed above (without the parts in brackets or italics). The second authorized certain state officers to issue bonds of the state to the amount of $25,000,000 to pay the debt recognized by section 1 of the act, and fixed the terms and maturity dates of the bonds. The third levied upon all the taxable property of the state an annual tax sufficient to pay the semiannual interest and the bonds as they matured, and appropriated the proceeds of such tax to that purpose. The fourth section set up a board to administer the payments under the act and prescribed its duties.
Promptly an action in quo warranto was brought in this court which questioned the validity of the act on many constitutional grounds and also upon the ground that the act was indefinite and uncertain. The court considered all the questions raised (State, ex rel., v. Davis, 113 Kan. 4, 213 Pac. 171) and held that under-sections 5, 6 and 7 of article 11 of our constitution, the state had power to contract the debt for the purpose of paying Kansas soldiers and sailors for their services in the World War; that the debt was contracted for a public purpose. It further held that if the act “is uncertain or indefinite in any particular, that uncertainty and indefiniteness can be removed by subsequent legislation not inconsistent with that act.” The decision of the court was announced on February 16, 1923, and the opinion was written and filed March 5, 1923. Concerning questions of uncertainty, it was said in the opinion:
“The plaintiff contends that the law is uncertain and indefinite and therefore invalid, and further contends that if it does not include those who died in the service or since, it is invalid. These contentions are not good, for the reason that if there is any indefiniteness concerning who are beneficiaries under the law or if the law is uncertain in any particular, it can be made certain and definite by subsequent legislation not inconsistent with the law approved by the people. The law was enacted by the people of this state, acting in their sovereign capacity, and must be upheld unless it clearly violates some constitutional provision.” (p. 10.)
At the time this decision was announced the legislature was in session and it promptly passed several statutes relating to this subject. In one of them (Laws 1923, ch. 202) it was declared to have •been the intention of the legislature in enacting chapter 255, Laws 1921, and chapter 200, Laws 1923, “to include by the terms therein used any person, otherwise qualified, who served honorably but died before receiving a discharge.” Chapter 201, Laws 1923, amended section 4 of chapter 200, Laws 1923, by creating a new board to administer the act and prescribing its duties. Chapter 203 provided for the appointment of a director and examiners of compensation for veterans and prescribed their duties and fixed their salaries and tenure of office. Chapter 205 provided a court procedure upon the disallowance of claims by the compensation board. Chapters 206, 207, 209 and 210 pertained to various features of the same subject.
The validity of these several acts was questioned in an original proceeding in quo warranto (State, ex rel., v. Davis, 113 Kan. 584, 217 Pac. 903) on the grounds they had not been submitted to a vote of the electors, and modified the act so submitted, and for various other reasons, all of which were considered, and the acts were held to be valid.
In State, ex rel., v. Davis, 114 Kan. 270, 217 Pac. 905, questions were raised and determined as to the rights of several classes of persons who served in some branch of the army, navy or marine corps, to receive compensation under the act. Some duties and powers of the board to administer the act were raised and determined. It was also held that one entitled to compensation might draw the same to the date of the proclamation of peace, July 2, 1921, if he served that long. By that time, in July, 1923, it appears to have been determined that the 125,000,000 mentioned in section 2 of chapter 200, Laws 1923, would be inadequate to pay all the claims that might properly be allowed under the act, in which event the court held the funds on hand would have to be prorated among the claimants. Upon a rehearing of that case (114 Kan. 283, 217 Pac. 905, opinion filed August 4, 1923), it was held that the legislature might issue additional bonds to raise the funds necessary to make the payments provided for by section 1 of the act. The validity of chapter 209, Laws 1923, was sustained. At a special session of the legislature in August, 1923, section 1 of chapter 200 of the Laws of 1923 was amended by inserting the part in brackets, as printed earlier in this opinion. This fixed the date of July 30,1919, as the latest date on which compensation would be paid. In Dew v. Davis et al., 115 Kan. 219, 222 Pac. 750, the validity of that act was questioned on the ground that it was an invalid limitation upon the debt the state had acknowledged and agreed to pay contained in section 1 of the act submitted to and adopted by the electors. The court considered this and other objections made and held the act to be valid, for the reason, as stated in the opinion:
“In a practical sense the war may fairly be said to have been over at some indefinite date — a date, which for purpose of adjusted compensation for the soldiers of this state, the legislature could make definite.” (p. 225.) (See, also, Goebel v. Davis et al., 115 Kan. 226, 222 Pac. 754.)
The legislature at the special session of 1923 passed an act (ch. 6) authorizing the issue of an additional $7,000,000 in bonds, if necessary, to carry out the provisions of chapter 200, Laws 1923. This was sustained in State, ex rel., v. Davis, 115 Kan. 10, 221 Pac; 895. It also passed an act (ch. 7) relating to exemptions of the sums paid and making more definite the persons to whom payment might be made. This was approved in In re Appeal of Ralph W. Oman, Administrator, 115 Kan. 232, 222 Pac. 895. It also passed an act (ch. 8) fixing June 1, 1924, as the last date for filing claims for compensation. The authority of the legislature to do this was sustained in Waddell v. Soldiers’ Compensation Board, 117 Kan. 149, 150, 230 Pac. 77. This time has. been extended repeatedly by subsequent acts of the legislature.
This resume is sufficient to demonstrate the fact that the original soldiers’ compensation act, as submitted by chapter 255, Laws 1921, adopted by a vote of the electors and enacted by chapter 200, Laws 1923, has been amended and supplemented by numerous acts of the legislature, all of which have been sustained by this court when questioned. None of them, however, changed the primary obligation and purpose of the act, namely, for the state “to pay to each person, who was a resident of the state of Kansas at the time of entering the service, and who served in the World War in any branch of the army, navy or marine corps of the United State prior to November 11, 1918, and who was honorably discharged therefrom, the sum of one dollar per day for each day of his or her entire service.” It was argued that chapter 5, Laws 1923, Special Session, which named June 30, 1919, as the latest date to which compensation could be computed, was a restriction and limitation upon the fundamental provisions of the compensation act; but as we have seen, that contention was denied and the statute was upheld. (Dew v. Davis et al., supra.) It was contended that chapter 8, Laws 1923, Special Session, which fixed January 1, 1924, as the last date for filing claims, was a restriction upon the fundamental purpose of the compensation act; but that contention was denied and the act was sustained. (Waddell v. Soldiers’ Compensation Board, supra.)
We turn now to chapter 280, Laws 1939, to consider the purpose the legislature had in mind in enacting this statute. In the administration of the soldiers compensation act perhaps the question which most frequently has given rise to controversy is whether the claimant was “a resident of the state of Kansas at the time of his entering the service.” Naturally, when the records of the state or federal government showed the claimant to have been a resident'of Kansas at the time he entered the service, which was true in most instances, there was no trouble about it. But a relatively few cases, though numerous enough to cause a lot of trouble, have arisen in which the records kept by this state did not show the claimant to have been a resident of the state at the time he entered the service, and the records of the federal government show him to have been a resident of some other state at that time, which state was given credit for his services. In some instances the claimant had presented a claim for a similar payment under the laws of that state, which required a showing on his part that he was a resident of that state when he entered the service, which claim had been allowed and paid. The following cases have reached this court involving the question of whether the claimant was a resident of the state at the time he entered the service: In re Soldiers’ Compensation Appeals, 116 Kan. 601, 677, 227 Pac. 1117, 229 Pac. 355; (see Molinar v. Board, p. 678; Doniphan v. Davis, p. 680); Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, 230 Pac. 82; Parrish v. Soldiers’ Compensation Board, 117 Kan. 301, 231 Pac. 332; Cault v. Soldiers’ Compensation Board, 118 Kan. 589, 235 Pac. 850; Beamer v. Soldiers’ Compensation Board, 119 Kan. 476, 239 Pac. 764; Jella v. Soldiers’ Compensation Board, 121 Kan. 360, 246 Pac. 521; Modest v. Soldiers’ Compensation Board, 121 Kan. 681, 249 Pac. 588; Deckwa v. Soldiers’ Compensation Board, 121 Kan. 858, 250 Pac. 322; Allen v. Soldiers’ Compensation Board, 123 Kan. 308, 255 Pac. 76; Knuth v. Kansas Compensation Board, 137 Kan. 392, 20 P. 2d 471; Kaiser v. Soldiers’ Compensation Board, 142 Kan. 295, 46 Pac. 2d 883; Hipchen v. Soldiers’ Compensation Board, 144 Kan. 517, 61 P. 2d 878; Vennum v. Soldiers’ Compensation Board, 147 Kan. 639, 77 P. 2d 980.
Perhaps this list is not complete. In the absence of a statutory rule respecting the evidence to be received and considered in determining the question, the court, in the cases cited, has applied the general rule that the question of whether a person was a resident of a particular place at a specified time is a question of fact to be determined by the trial court upon the evidence presented at the trial, and in reviewing the decision of the trial court in such a case this court has followed the general rule that it will not disturb the finding of the trial court on that question when the record'shows it is supported by substantial competent evidence. In the instances where there was record evidence tending to show that the claimant was a resident of some other state when he entered the service, that has sometimes been explained or controverted, or actually overthrown, by parol evidence, until the question has come to be regarded as simply an ordinary question of fact to be determined by the trial court on the evidence adduced. The legislature might well have thought that this has led to hardships, and in instances to unjust results. It is now more than twenty years since anyone who could claim compensation under our soldiers’ compensation act entered the service. The parol testimony that claimant was a resident at the time he entered the service sufficient to explain or overthrow documentary evidence to the contrary ordinarily comes from near relatives or immediate friends of the claimant and is, at least in a sense, self serving. The compensation board is practically helpless as against an improper claim of that kind. It has no facilities for investigating the facts as they might be shown by parol evidence, and if it had investigators for that purpose the possibility of finding such evidence is remote. Some of the cases tend to show that the hunting up of the questionable residence claims has developed into an industry. (See Sharer v. Soldiers’ Compensation Board, 132 Kan. 572, 296 Pac. 729.) The legislature may well have thought that the state was being imposed upon.
The purpose of the legislature obviously was to make a statutory rule of evidence on the subject. It has done this in two parts, by providing, first—
“That no payment shall be made under the provisions of this section to any person who has received a bonus, gratuity or compensation, of a nature similar to that provided for in this act, from any other state in the United States.” (Laws 1939, ch. 280.)
Appellee contends that this fixes an arbitrary rule not having a fundamentally reasonable basis, and as such, that it invalidly infringes upon the function of the judiciary. In two of the cases which reached this court (Parrish v. Soldiers’ Compensation Board, supra, and Knuth v. Kansas Compensation Board, supra), because of the peculiar facts, it appears the claimant was able to make a claim in each state without making conflicting representations. When a provision in a statute can be construed so that it is valid, that construction will be given to it, although it is open to a construction which would render it invalid. Construing this provision of the statute in that light, it seems clear that what the legislature had in mind was that applying for and receiving a bonus, gratuity or compensation similar to that here being considered, from another state would defeat his claim here only when he had to make a showing in the other state, in order to receive payment, that he was a resident of that state at the time he entered the service. So construed we regard it as a fair and valid provision.
The legislature then provided:
“The term ‘resident of the state of Kansas,’ as used in this section, means any individual who gave the state of Kansas, or any specific place in this state, as his or her place of residence at the time of entering the military or naval forces of the United States, for such period, without regard to the place of enlistment, commission, or induction.” (Laws 1939, ch.. 280.)
We see nothing wrong with that provision. The statute continues:
“The proof of such residence shall be the official records on file in the war and navy departments of the United States.”
The original act provided for paying those “who served in the World War in any branch of the army, navy or marine corps of the United States.” It is a well-known fact, of which the court will take judicial notice, that the army and navy keep official records of those who served in those departments. We think it would not have been an unreasonable construction to have given the statute, in the first instance, that the records of those departments should be the guide as to the residence of the soldiers, sailors and .marines who served from Kansas. At any rate, it is not an unreasonable thing for the legislature to place that interpretation upon the term “resident of the state of Kansas.” We recognize that, generally speaking, it is the function of a legislature to enact laws and the function of the judiciary to interpret them; but when a legislature, by an act duly passed, states its interpretation of language then used, or previously used, in the statute, that interpretation is entitled to great weight. This has been so declared in the construction of the soldiers’ compensation act and the statutes amendatory and supplemental thereto. (Dew v. Davis et al., 115 Kan. 219, 222 Pac. 750; Kinyon v. Soldiers’ Compensation Board, 118 Kan. 367, 234 Pac. 949.) Our conclusion is that the statute questioned is valid.
Appellee calls attention to the last proviso, which reads:
“That the provisions of this act shall apply to claims now pending before the Kansas soldiers’ compensation board of the state of Kansas.” (Laws 1939, ch. 280.) ■
And contends that in any event the 'statute cannot apply to this case because it was not pending before the Kansas compensation board at the effective date of the act. The claim had been disallowed and an appeal had been taken to the district court of Wyandotte county. There is reason, however, to say that a claim is pending before the soldiers’ compensation board until it is finally paid. (See Jella v. Soldiers’ Compensation Board, 121 Kan. 360, 246 Pac. 521.) But we do not care to rest our decision upon this point alone. The wording of the statute is not that it shall apply only to claims then pending before the compensation board. Irrespective of this provision the statute would have applied to any claim pending in court. It is a statute changing the rule of evidence. Unless the rule of evidence is one expressly sanctioned by the constitution . . the legislature has the power to alter or create any rule of evidence. This is so for reasons inherent in the nature of legislative functions. . . . There can be no vested right in a rule of evidence. Those rules are merely methods for ascertaining facts. It must be supposed that a change of the law merely makes it more likely that the facts will be truly ascertained.” (Wigmore on Evidence, 2d ed., § 7. See, also, 12 C. J. 1233; Jones v. Hickey, 80 Kan. 109, 114, 102 Pac. 247; Reitler v. Harris, 80 Kan. 148, 102 Pac. 249, affirmed 223 U. S. 437, 32 S. C. 248; and State, ex rel., v. Public Service Comm., 135 Kan. 491, 495, 11 P. 2d 999.) Since no one has a vested right in a rule of evidence a statute changing such a rule is effective immediately to all pending cases as well as future cases which may arise. (State v. Marshall, 95 Kan. 628, 148 Pac. 675.) We think the statute would have applied to cases then pending before the Kansas soldiers’ compensation board if this clause had not been inserted in the statute. Apparently it was inserted there out of an abundance of caution. It does not destroy the application of the statute to cases then pending before the compensation board or the courts, as well as those which may arise in the future.
The soldiers’ compensation board denied appellee’s claim for the reason that he gave Kansas City, Mo., as his residence when he enlisted. In the record brought to us there is nothing to dispute that fact. It is conceded that the .claimant previously had presented a claim for a bonus to the state of Missouri, and that the same has been allowed and paid. In doing so he was required to make a showing that he was “a bona fide resident of the state of Missouri at least during the twelve months prior to the sixth day' of April, nineteen hundred and seventeen.” (Art. IV, § 44b, Const. of Mo., Laws of Mo. 1921, Second Extra Session, p. 7.) It would seem that much of the language used in Molinar v. Board, -supra, would be applicable here.
The trial court did not regard this statute as applicable to the case. This position was erroneous and requires a reversal of the judgment. The soldiers’ compensation board disallowed the claim on the ground that when the claimant entered the service he gave Kansas City, Mo., as his place of residence, and that fact is not controverted from anything that appears in the record. It is conceded claimant applied for and received a bonus from the state of Missouri. In doing so he was compelled to show that he was a bona fide resident of the state of Missouri at the time he enlisted and to within a few days of the time he was called into active service. It is clear that, applying the statute, his claim should be disallowed. It will serve no useful purpose, therefore, to direct a new trial, and judgment should be ordered on the authority of G. S. 1935, 60-3317. (Prudential Ins. Co. v. Foster, 139 Kan. 112, 30 P. 2d 104; J. I. Case Co. v. Bodecker, 141 Kan. 637, 640, 42 P. 2d 571; Majors v. Seaton, 142 Kan. 274, 46 P. 2d 34.)
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The opinion of the court was delivered by
Wedell, J.:
Three actions are consolidated in this appeal. None of the actions has been tried. The appeals are from various rulings on motions and demurrers. Petitions in all three actions were deposited with the clerk of the district court of Sedgwick county, for filing on the same day and at the same time. The rulings were not all made by the same trial judge, as the actions were assigned to two divisions of that court, as authorized by G. S. 1935, 20-602.
Plaintiff is the only daughter of G. Á. Wilson and Josephine Tanton Wilson. Both of her parents are now deceased. The mother died first, and the father, within three years, married his nurse and housekeeper, who is the defendant Bertha Wilson, also known as Bertha V. Wilson. No children were born during her father’s second marriage. The stepmother, Bertha Wilson, is the only defendant in two of these actions. Those actions are: Number 34,422, which is an action to set aside a deed transferring various tracts of real estate from the father to the stepmother, Bertha Wilson; and number 34,423, which is an action for damages against the stepmother for malicious interference with plaintiff’s alleged right of inheritance. Case number 34,339 is an action to contest the will of plaintiff's father, and was instituted against both Bertha Wilson, and Bertha V. Wilson, executrix of the estate of G. A. Wilson, deceased.
In case number 34,422, which is the action to set aside the deed, plaintiff is the appellant. The appeal is from the order overruling plaintiff’s demurrer to defendant’s cross petition. By the cross petition defendant sought to quiet her title to the lands described in the deed, which is the deed plaintiff sought to set aside. The alleged defect in the cross petition, upon which the demurrer was grounded, was the absence of an allegation that defendant was in possession of the lands, in person or by tenant, as required in an ordinary quiet-title action under provisions of G. S. 1935, 60-1801. That, in an ordinary action to quiet title, an allegation of plaintiff’s possession in person or by tenant is necessary under the statute and decisions, is conceded. Defendant first contends the cross petition, when fairly interpreted, contains the necessary allegation. It did not contain the direct allegation, but in substance alleged: She was the owner of both the legal and equitable estate and title in the lands described in the deed, and that she was entitled to the quiet and exclusive possession of the same. Defendant also contends the cross petition stated a cause of action in equity to quiet title and that the cross petition was aided by the prayer contained in plaintiff’s amended petition. In the latter petition plaintiff had pleaded facts designed to state a cause of action for the cancellation of the deed and to bar defendant of all claim to the land. She prayed that the recorded deed be vacated and set aside as void, and that any claim or claims of the defendant to the land be vacated and set aside, and “for such other and further relief as may be just and equitable.” Defendant’s answer denied all claims of plaintiff to the land in question. It is unnecessary to discuss the contentions as made. The issue of defendant’s right to make any claim to the land was therefore joined by the allegation contained in the amended petition and answer. That included the claimed right of possession. If plaintiff succeeds in obtaining the relief she seeks under her amended petition she will be declared the owner and holder of both the legal and equitable title and to have the right of possession. Under these circumstances the court did not err in overruling the demurrer.
Case No. 34,339 was an action to contest the alleged will and codicil of decedent. The appeal in this action is by defendants Bertha Wilson and Bertha V. Wilson, as executrix of the estate of G. A. Wilson, deceased. The errors complained of are reflected by questions appellants present on appeal, which are:
1. Did the district court err in overruling defendant’s motion to abate and dismiss this action for the reason that it was filed subsequent to the damage action, in which damage action the plaintiff assumed the validity of the will and codicil in question?
2. Did the district court err in overruling the defendant’s motion in the alternative to require the defendant to elect in event the motion to abate and dismiss was denied?
3. Did the district court err in overruling the defendant’s demurrers to plaintiff’s amended petition?
4. Did the district court err in overruling a certain portion of the defendant’s motion to strike parts of the petition?
5. Did the district court err in overruling a certain portion of defendant’s motion to make the petition definite and certain?
We shall first dispose of the fourth and fifth questions together. Motions to strike and to make definite and certain rest in the sound discretion of the court, and rulings thereon are ordinarily not appealable. Unless they affect a substantial right and in effect determine the action, they are not appealable. (Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469.) Such showing is not disclosed by the record. Moreover, in the instant action it is sufficient to say the motions complained of were directed to the original petition, which has been superseded by an amended petition upon which the action is now pending. The result is, if the rulings ever constituted appeal-able orders, they are not properly here on appeal now.
Touching question number one, we are advised the action to contest the will was not filed by plaintiff subsequent to the action for damages, but that the petitions in all three actions were deposited with the clerk for filing at exactly the same time. The clerk was, of course, obliged to docket each action separately. They were docketed and numbered as follows: The deed case was No. 100,150; the damage case was No. 100,151, and the will contest case was No. 100,152.
It has been held that where one action is instituted about one-half hour before the other, the law does not take account of such minutiae, and holds both actions to have been brought in parity of time. (Avery v. Title Guarantee & Trust Co., 245 N. Y. S. 362, 230 App. Div. 519.) Then, too, an action is not deemed commenced until the summons is served on the defendant (G. S. 1935, 60-308), upon which latter matter the record is silent. So far as we know, the summons in the will contest case may have been served first. We might, under some circumstances, desire to hold that one action was filed subsequent to another, although the time between filing of the actions was very brief. Under all the circumstances in the instant case, however, we shall consider the actions as having been filed at the same time. Obviously, the damage action, if it lies, should be tried last. On the motion to abate and dismiss, the instant action to contest the will it is also well to remember that it constitutes an action in rem and that the damage action is one in personam, and that Bertha V. Wilson, as executrix of the last will and testament of G. A. Wilson, deceased, is not a party to the damage action. In 1 Am. Jur., Abatement and Revival, § 34, it is stated:
“Proceedings in rem and in personam do not necessarily conflict with each other until satisfaction is obtained in one, and the rule that, the pendency of an action between the same parties may be set up as a defense in abatement of a subsequent action does not in general apply where one action is a proceeding in rem and the other an action in personam.”
We think the court did not err in overruling the motion to abate and dismiss the action to contest the will. The action for damages will be considered later.
Th.is brings us to the second question. Appellants contend that when the court overruled their motion to abate and dismiss the action to contest the will it should have required plaintiff to elect whether she would stand on the damage action, which they claim affirmed both the will and deed, or whether she would stand on the action to contest the will. In other words, they insist the damage action is inconsistent with the action to contest the will and plaintiff should have been required to elect whether she would stand on the action to contest the will or on the action for damages. These were separate and independent actions. On the subject of election of remedies it must always be remembered that an election can exist only where there is a choice between two or more inconsistent remedies which actually exist at the same time the election is made. In other words, the two or more inconsistent remedies, in fact, must be open to the party asserting them. (20 C. J., Election of Remedies, § 17.) In the damage action the defendant Bertha Wilson contends the damage action does not, in fact, lie. If that be true, thep the pursuit of the remedy in damages, which plaintiff supposed she had, but which in fact she did not have, would not constitute an election between remedies, but a mistake as to the remedy she actually had. (McKim v. Carre, 72 Kan. 461, 464, 83 Pac. 1105; Kasper v. Railway Co., 115 Kan. 610, 612, 223 Pac. 1106; Toner v. Conqueror Trust Co., 126 Kan. 554, 560, 268 Pac. 810; Bonesteel v. White, 127 Kan. 843, 845, 275 Pac. 163.) If she was mistaken in the belief that she had an action for damages, then, obviously, there was no occasion to require an election between two remedies. On the other hand, she was entitled to have the question, whether she also actually had an action in damages, determined before she was required to make an election in the action to contest the will. The trial court did not determine that question until later, namely, on April 7,1939, when it sustained a demurrer to plaintiff’s petition in the damage suit. Whether plaintiff had a remedy in damages for the particular damages she sought will be decided in the damage action. We think the motion to require plaintiff to elect, under the instant circumstances, was properly overruled.
What about question number three? Did plaintiff’s amended' petition state a cause of action to contest the will? The grounds of the separate demurrer of Bertha Wilson were that the amended petition did not state a cause of action on the theory of either mental incompetency or undue influence, and that another action, namely, the damage action, was pending between the same parties.
In view of what has been said previously, it is unnecessary to dwell further on the last stated ground. Touching the particular objections to the alleged insufficiency of the amended petition, it is enough to say the petition in substance pleaded facts directly or from which it properly could be inferred that decedent was mentally incompetent and wholly unable to understand the content or legal effect of the will and codicil on the date he executed them and long prior thereto; during the state of such mental incompetency decedent possessed no independent action or mind, but was completely under the influence, control and domination of the defendant, Bertha Wilson; he did all things requested and demanded of him by defendant in relation to his property; had he not-been mentally incompetent and under the complete domination, influence and control of defendant he would not have executed the will and codicil in question.
Thereafter the petition alleged that by reason of the foregoing facts decedent—
“Was not possessed of sound mind and disposing memory, and was so insane, dominated and controlled by the said defendant, Bertha Wilson, as to be incapable of understanding the natural objects of his bounty, and did not possess the sound mind and disposing memory' required by the statutes and laws of the state of Kansas, in attempting to execute and make a last will and testament, and that he was under the complete control and dominance of the said defendant, Bertha Wilson, and that he was unable to resist the will and wishes of the said defendant. That by reason of all the facts hereinbefore alleged, the making and signing of the alleged purported will and testament, and codicil hereinbefore referred to as exhibit ‘A,’ is not the will, in truth and in fact, of the said O. A. Wilson, deceased, and that by reason thereof, said instrument or instruments purporting to be the last will and testament of the said G. A. Wilson, deceased, are not, in fact, his last will and testament and codicil thereto, and should be set aside and held for naught.” (Italics ours.)
The demurrer was properly overruled. (Black v. Black, 131 Kan. 154, 289 Pac. 480; Protheroe v. Davies, 149 Kan. 720, 730, 89 Pac. 890, and cases therein cited.)
This brings us to the last of the three cases, No. 34,423, which was an action to recover damages for malicious interference with plaintiff’s alleged right of inheritance. The malicious interference relied upon consisted in the alleged fraud and undue influence practiced by the defendant stepmother, Bertha Wilson, in procuring the execution and delivery of a certain deed from decedent, the father of plaintiff, by which numerous tracts of land were conveyed by decedent to the defendant. Substantially, if not exactly, the same fraud and undue influence of defendant was alleged to have induced decedent to execute a will and codicil under the terms of which defendant received all property of decedent, real, personal and mixed, except the sum of $50 which was bequeathed to plaintiff under the codicil.
A demurrer was sustained to plaintiff’s amended petition, and from that ruling she appeals. Defendant cross-appeals from three rulings involving motions directed against the original petition and from the overruling of her motion to abate and dismiss the damage action. The latter motion was upon the ground two other actions were then pending, which were the action to cancel and set aside the deed, and the action to contest the will and codicil. It alleged the facts pleaded in the other pending actions were identical with those pleaded in the instant damage action and that the relief obtainable in those actions would afford plaintiff all the relief obtainable in this particular damage action. We need not concern ourselves with the first three motions for several reasons. One sufficient reason is that they were not leveled against the amended petition on which this action is now pending, but against the original petition. The motion to abate and dismiss the damage action was, however, filed and overruled after the amended petition was filed, and it will receive our attention, if necessary, after we have disposed of the principal appeal by plaintiff.
Defendant’s demurrer to plaintiff’s amended petition asserted: .(1) No cause of action was alleged upon the grounds of fraud, undue influence or mental incompetency; (2) two other actions were pending between the same parties, for the same cause; (3) the petition failed to state sufficient facts to constitute any cause of action in favor of plaintiff and against defendant.
The demurrer was sustained generally. The first question which naturally presents itself is whether an action by a daughter for damages for malicious interference with her alleged right of inheritance actually lies. In this state the father, of course, had the absolute right to completely disinherit her, if he chose to do so. It is true the amended petition, in addition to pleading the mental incompetency of decedent, and the fraud and undue influence practiced upon him by defendant, also in substance alleged facts which disclosed: The existence of an affectionate relationship between plaintiff and her father prior to defendant’s alleged fraudulent acts, influence and malicious conduct; a breach of that relationship between plaintiff and her father resulting from defendant’s malicious conduct; defendant’s conduct was expressly designed to and resulted in cheating and defrauding plaintiff out of her natural, logical and expected right of inheritance.
That the authoritiés are divided on the general question whether such an action lies, must be conceded. The following decisions support or tend to support the doctrine that such action lies under some circumstances. (Morton v. Petitt, 124 Ohio St. 241, 177 N. E. 591, in which Petitt v. Morton, 38 Ohio App. 348, 176 N. E. 494, was affirmed ) A forged will was there involved. (Bohannon v. Trust Co., 210 N. C. 679, 188 S. E. 390; Bohannon v. Trotman, 214 N. C. 706, 200 S. E. 852; Creek v. Laski, 248 Mich. 425, 227 N. W. 817; Dulin v. Bailey, 172 N. C. 608, 90 S. E. 689.)
The following cases contain dicta supporting or tending to support the doctrine that such an action may lie under certain circumstances. (Lewis v. Corbin, 195 Mass. 520, 81 N. E. 248; Kelly v. Kelly, 61 La. [10 La. Ann.] 622; Heirs of Blanchard v. Heirs of Blanchard, 32 Vt. 62; Gains v. Gains, 2 A. K. Marsh. [Ky.] 190, 12 Am. Dec. 375; Card v. Grinman, 5 Conn. 164, 169.)
The following authorities denounce the doctrine as unsound on the theory that no legal or enforceable right has been invaded or legal duty breached where the testator has no legal duty or obligation to devise or bequeath any portion of his estate to an heir. (Hutchins v. Hutchins, 7 Hill [N. Y.] 104; Hall v. Hall, 91 Conn. 514, 100 Atl. 441. For a discussion of both viewpoints see 27 Yale Law Journal 263; Kent et al. v. Mahaffey et al. 10 Ohio St. 204; Cunningham v. Edwards, 52 Ohio App. 61; 3 N. E. [2d] 58, 1916.) The two Ohio cases were cases involving fraud. See, also, case of Broderick’s Will, 88 U. S. 503, 22 L. Ed 599, holding a constructive trust could not be established because of laches, and containing dictum to the effect that a court of equity will not intervene when plaintiff may obtain relief in the probate court or by suit to contest the will, but that it may grant relief where time for such action has elapsed if plaintiff has not been guilty of laches or other fault. The above list of authorities is not submitted as complete on either view, but comprises only decisions cited in the respective briefs, and such as our limited time for research has disclosed. While the general question whether such an action, or a somewhat similar action, may lie under some circumstances is indeed an interesting one, the question is not controlling in this particular case. That is especially true in view of our- own decisions which bear upon the actual turning point in this particular case.
What is the exact question now presented? It is highly important to bear in mind that the instant action is not one to recover damages in the nature of expenditures or costs, or damages of similar char acter, occasioned by a successful effort to contest the will. Nor is it an action to recover damages in the nature of costs and expenditures resulting from a successful effort to probate a will which had been spoliated by another, as were allowed in the early case of Taylor v. Samuel J. and William K. Bennett, 1 Ohio Cir. Dec. 57. Nor is this an action to recover damages for fraudulent and malicious interference with one’s right of inheritance where the alleged fraud, in the exercise of diligence, is not and could not have been discovered by the heir until it was too late to contest the will. Nor is it an action to recover damages of any character, other than the loss of her alleged part of the corpus of the estate which plaintiff could recover in a successful action to contest the will, which actually might have been suffered by reason of the tortious act. This is an action to recover the value of the identical property which plaintiff claims she would have received and which she will receive if she succeeds in her action to contest the will. The latter action is now pending and was filed in time. The instant action, according to the averments of the amended petition, was brought for the specific purpose above stated and to recover no other damages whatsoever. That is, therefore, the only kind of action for damages with which we are now concerned. After pleading all facts touching decedent’s mental incompetency and defendant's alleged fraud and undue influence, plaintiff expressly alleged:
“That the real and personal property of the said G. A. Wilson of which this plaintiff would naturally have received if it had not been for the fraud, undue influence and other wrongful acts of this defendant, is of the reasonable value of one hundred thousand dollars {8100,000).’’ (Italics ours.)
Obviously, we cannot convert the instant action into one of an entirely different character. Her prayer also is for that identical damage. R reads:
“Wherefore, this plaintiff prays for judgment against the defendant, Bertha Wilson, for the sum of one hundred thousand dollars ($100,000) and for such other and further relief as to the court may seem just and proper, and for the costs of this action.”
Plaintiff’s proof, upon trial, would go to the exact subject of the value of the property she would have received, except for the will, and to nothing else. In no event would she be entitled to recover a greater amount than the value of the property she would have received had decedent died intestate. Nor could she recover damages of any other character, assuming she actually had suffered other damages. On the other hand, if plaintiff succeeds in the action to contest the will she will receive that same identical value in property. The damage action, for all practical purposes, is therefore an effort to impair the ultimate effect of the will and to render nugatory the apparent rights of defendant under the will. Manifestly the will would be of no value to defendant if she were permitted to take the property under the terms of the will and then be obliged forthwith to pay to plaintiff the exact value of that property. The precise question, under existing circumstances is, therefore, How may she impair the effect of the will when it is not too late to contest the will and when an action to contest the will is actually pending? This court has repeatedly and upon deliberate consideration ruled that an action which in effect contests the will is a will contest action and must be brought as such under the contest statute or not at all. (Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586.) For rehearings, see 123 Kan. 414, 255 Pac. 979, and 124 Kan. 31, 257 Pac. 939. (Mayer v. Taylor, 142 Kan. 54, 45 P. 2d 858; Kunze v. Kunze, 145 Kan. 72, 64 P. 2d 558; Koch v. Wolf, 146 Kan. 247, 62 P. 2d 1088.) To the same effect see, also, Stowe v. Stowe, 140 Mo. 594, 41 S. W. 951. It should be borne in mind these decisions deny plaintiff no legal right, but simply determine her remedy. The very purpose of a will contest action is to establish the invalidity of the will. The grounds of contest are not limited or specified by the statute. The cause of action may be anything which may be urged as destroying the validity of the will. (Rishel v. McPherson County, supra, p. 753.) Plaintiff insists the damage action does not attack the will itself, but permits it to stand. That very contention was made in some of the above cases. This is an action at law, and this court, even in equity cases, has refused to impress property with a constructive trust in favor of an heir where the property had been devised under a probated will and the heir contended the will, which cut her off, was procured by fraud. In the Rishel case, supra, it was held:
“The action was an ordinary action by an heir to recover property, on the ground a will which cut her of!, if valid, was procured by fraud. Held, her remedy was by action to contest the will, and not to establish a constructive trust.” (Syl. f 4.)
In that case this court readily recognized the fact that some courts held otherwise, but said:
“There are numerous cases holding that under certain circumstances the beneficiary of a will may be charged as a trustee ex maleficio of property received by virtue of the will. The cases need not be reviewed here. It is sufficient to say that fraud and undue influence practiced on a testator are grounds for contesting his will; and to apply the constructive trust doctrine to the ordinary case of an heir suing to recover property on the ground a will which cuts him off if valid, was procured by fraud, would make waste paper of the statute of wills.” (p. 753.)
In the Rishel case it was also said:
“The result is, whoever seeks to impair the effect of a will to vest title to the testator’s property in his legatees or devisees, by denying its validity, finds both his right and his remedy in the statute, or not at all.” (p. 752.)
The decision in the Rishel case has been adhered to consistently, and repeatedly has been cited in subsequent decisions of this court. In the Mayer case, supra, in which a will had been probated, a party sought specific performance of an alleged oral contract more than one year after the date of the admission of the will to probate. The relief was denied, following the Rishel case, and this court 'again said:
“Counsel for plaintiff, however, make the contention that this action is not one to contest the will — that such a contest would only be concerned with its formalities, the capacity of the testators, and possible questions of undue influence, with none of which matters plaintiff is concerned. However, the statute which authorizes the contest of a will does not confine the grounds of such contest within such narrow limits. Any cause of action which a pleader can set down on paper which, if established, would necessarily render a will nugatory, is a contest of the will and must'be brought within the time allowed by the statute above quoted. All this is stare decisis in this jurisdiction, since it was authoritatively and deliberately so declared in the thoroughly contested case of Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586; id., 123 Kan. 414, 255 Pac. 979; id., 124 Kan. 31, 257 Pac. 939. Pertinent excerpts from the main opinion in that case read:
“ ‘There was no pretense that the will might- stand as a valid instrument, and that plaintiff might nevertheless recover. She was obliged to get rid of the mil, . . . Therefore, it is a mere play on words for plaintiff to say she is not contesting the will.’ (p. 751).” (p. 57.) (Italics ours.)
The Kunze case, supra, was an ejectment action in which plaintiff claimed under the will and defendant claimed under an alleged performed oral contract with the testator and her husband for services. It was held the defense was barred by the one-year statute of limitations, if such defense attacked the validity of the will directly or indirectly by attempting to render nugatory the apparent rights of the plaintiff under the will. (Syl.) After again reviewing our own decisions, the court remarked:
“We think it is unnecessary to cite other decisions or authorities on this feature of the case and have no hesitancy in holding that the defense of Lawrence Kunze, raised by his answer and met by the reply pleading the statute of limitations, under the agreed statement of facts, amounts to a contest of the mil of his mother and is barred by the one-year statute of limitations.” (pp. 76-77.) (Italics ours.)
The Koch case, supra, involved another claim, under an alleged performed oral contract, to a portion of the testator’s estate. In following the previous decisions herein cited, the Koch case was disposed of as follows:
“We conclude that the oral contract set out in the petition of the plaintiff was such as, if successfully established, would nullify the effect of the mil mid was therefore a contest of the will in question, and the action was barred by the statute of limitations as to contests of wills, and the fact that it' only affected one-third of the property of the deceased would not make it any the less a contest of the will.” (p. 251.) (Italics ours.)
We think the instant action for damages, if successful, would render nugatory the apparent rights of defendant under the will and would nullify the apparent intended effect of the will just as effectually as the contentions in the cases cited, had those contentions been sustained. We therefore conclude plaintiff’s remedy to obtain the particular relief sought does not lie in an action for damages, but in her action to contest the will.
This brings us to the deed feature of the action. Does the amended petition state a cause of action to recover damages resulting from the alleged fraudulent procurement of the deed? Appellee contends it does not, and that the amended petition discloses on its face such cause of action, if any existed, is bai’red. The interest in the real estate which plaintiff claims she lost under the fraudulent deed and for which loss she seeks damages, is the same real estate which would pass to defendant under the will if the deed is in fact void. The real estate, according to the averments of the amended petition, was transferred to defendant by a deed dated May 1, 1930. The deed was recorded May 2, 1934. The damage action, as the other two actions, was commenced February 16, 1938. The action sounds in tort and is predicated on fraud. Whether the action be regarded as one to recover for injuries to the rights of plaintiff or as an action for relief on the specific ground of fraud, the action was barred two years after the cause of action accrued. (G. S. 1935, 60-306, third.) On the theory of fraud the action accrued when plaintiff, in the exercise of diligence, could have discovered the fraud. The record ing of the deed was constructive notice of the alleged fraud and started the running of the statute of limitations. (In re Estate of McFarland, 118 Kan. 534, 235 Pac. 832; Malone v. Young, 148 Kan. 250, 264, 91 P. 2d 23.) Moreover, so long as the will stands, plaintiff could not be damaged by the execution of the deed. That obviously follows, as the will devised to defendant all of the real estate. Before plaintiff could be damaged by reason of the deed, under facts in the instant case, she would be required to set aside the will. We think the demurrer to the amended petition was properly sustained. In view of this conclusion it is unnecessary to consider defendant’s cross-appeal. In closing it may be well to remind the reader the three actions here involved were all filed prior to the enactment of the 1939 probate code, and while there existed express statutory authorization for contesting wills after probate by an independent action in the district court. (G. S. 1935, 22-223.) The judgment of the trial court in each of the respective actions, namely, cases numbered 34,339, 34,422 and 34,423, is affirmed.
Allen, J., concurs in Nos. 34,422 and 34,339, and in the result in No. 34,423. | [
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The opinion of the court was delivered by
Akn, J.:
This is an appeal from an order of the district court setting aside a release of a judgment upon the ground of fraud. Although we are not here concerned with the proceedings resulting in that district court judgment, it may be well to state that the action was commenced December 21, 1943, by Ellen Carrigg, the appellee here, and on March 29, 1948, she obtained a judgment restoring to her the title to certain real property and granting her a money judgment in the net amount of $1,213. No appeal was taken and that judgment became final. The defendants and judgment debtors in that case were E. V. Anderson and Virginia Anderson, appellants here. For clarity in summarizing the facts, we shall refer to the litigants as plaintiff and defendants, as they appeared in the court below.
On May 28, 1948, approximately sixty days after the aforementioned judgment, the defendant E. V. Anderson called upon the plaintiff Ellen Carrigg, a woman eighty-eight years of age, and obtained her signature to two instruments. The first instrument was a “release” purporting to release defendants from the judgment against them for a consideration of $500. Later in the day, and without additional consideration, defendants obtained from plaintiff a “release of judgment” designed to quitclaim the title to said real property to the defendants. The total value of the property and money judgment purported to be released for the consideration of $500 was in the approximate sum of $4,700. On June 4, 1948, plaintiff filed in the district court in the original case, a motion to set aside the “release” and the “release of judgment,” and prayed for a restraining order against the clerk of the district court and the register of deeds restraining them from accepting for filing the purported release of judgment and quitclaim deed. This motion was supported by a somewhat detailed affidavit of plaintiff. At the same time plaintiff paid into court the sum of $500 for return to defendants. No summons was issued in connection with the filing of the motion, but notice of hearing of the motion and a copy of the motion were-served upon defendants by registered mail at Hartsburg, Mo., and upon their Kansas City, Kan., counsel. On June 24, defendants filed their motion to strike from the docket plaintiff’s motion for the reason that the court had no jurisdiction to hear it, that it was not a proper pleading, and that it failed to state a cause of action. The district court overruled this motion and set for hearing on July 6 the plaintiff’s motion to set aside the release of judgment. At this hearing, oral evidence was taken over defendant’s objection. The hearing was by the court without a jury. The district court made findings of fact and conclusions of law and rendered judgment setting aside the release of judgment and quitclaim deed, and made permanent the restraining orders enjoining the clerk of the district court and the register of deeds from acceping either of the instruments for filing. A motion for rehearing and new trial was subsequently overruled and the defendants have appealed.
On their appeal to this court they contend: (1) The district court did not have jurisdiction of the proceedings upon a motion to set aside the release of judgment. (2) The motion which constituted the basic pleading of such proceeding did not state a cause of action. (3) The evidence adduced at the hearing upon the motion was not sufficient to sustain the court’s judgment of fraud. (4) The defendants were entitled to a trial- by jury. (5) The defendants were denied due process of law.
In challenging the jurisdiction of the district court in the instant proceeding, appellants argue that this is an attempt to substitute “a motion” in an old case for “a petition” in a new one; and an attempt to substitute a summary proceeding for an action. Undoubtedly, plaintiff could have brought a separate action based upon a petition stating a new cause of action in equity to set aside the release of judgment had she elected to do so. But she did not so elect — and the question now is whether the procedure which she did elect to follow is a proper procedure. Appellants refer to nu merous sections of the code of civil procedure and cite Sherman v. Cron, 165 Kan. 138, 193 P. 2d 206, as authority for their contention that if a motion is not provided for by our code of civil procedure, it is ineffective as a basis for an appeal. The Sherman case doesn’t go quite that far. The gist of that opinion is that the motion to set aside the order of dismissal and to reinstate the cause is not such a motion as is provided for in the code and cannot have the effect of extending the time for appeal; that Sherman did not appeal from the order of dismissal and such order not having been appealed from became a finality.
Under our practice there are filed many different motions of various denominations which are not mentioned by name in the code — but whether the ruling upon such motions is appealable depends upon whether or not the ruling amounts to a final order. In the case of Sherman v. Cron, supra, the final order was the trial court’s order dismissing plaintiff’s action for want of prosecution and from that order plaintiff did not appeal. In the instant case, the fact that the code does not specifically mention or provide for a “motion to set aside a release of judgment” does not mean that such a pleading is improper. We can think of many pleadings of various denominations which are not specifically mentioned in the code-but which are well recognized as necessary pleadings in the courts of this state. We cannot say, therefore, that merely because such a motion is not mentioned in the code, it has no place in our pleading and practice. The first and principal contention made by appellants simply raises the question as to whether in a case such as this the parties claiming fraud in the execution of the release of judgment may resort to a motion in the case in which the judgment was rendered, instead of being left to a separate action in equity.
In most jurisdictions, procedure by motion such as was resorted to here is approved. However, some of these jurisdictions hold that where the evidence upon questions of fact raised by the motion is conflicting, such questions of fact cannot be determined by ex parte affidavits. Chapman v. Blakeman, 31 Kan. 684, 3 Pac. 277, involved a question identical to the instant case and this court said:
“The first question presented in this ease for determination is: Did the court below err in proceeding to hear the matter before it on motion? The practice of granting relief, in cases of this nature, by summary application upon motion is fully established. (McDonald v. Falvey, 18 Wis. 599, and cases were cited; Wilson v. Stilwell, 14 Ohio St. 464; McGregor v. Comstock, 28 N. Y. 237.) In many of the courts, however, it is held that where the evidence is conflicting upon material questions of fact arising upon the motion, the party seeldng relief should be left to an action, provided it can be obtained in that form, rather than determine the question upon ex parte affidavits. (McDonald v. Falvey, supra; Hill v. Herman, 59 N. Y. 396.) In this case the latter authorities do not apply, as every question of fact was heard upon oral evidence in open court, and the witnesses subjected to cross-examination.” (p. 686.)
r
It is conceded that in the case at bar a full and complete hearing was had upon every question of fact by oral evidence in open court where all witnesses were .subjected to cross-examination. Neither in the instant case nor in Chapman v. Blaheman, supra, was the court required to determine the conflicting issues from ex parte affidavits.
In McNeal v. Hunt, 6 Kan. App. 670, it was held that where a satisfaction of judgment was given by mistake, the proper procedure to correct the mistake was by motion filed in the same case; and that a new action was not the only remedy.
Bogle v. Bloom, 36 Kan. 512, 13 Pac. 793, involved a somewhat similar situation, and this court said:
“The pretended release and satisfaction of the judgment thus obtained was presented to the clerk of the district court to' be entered of record, but the clerk refused to make the entry, when Bogle wrote an entry of satisfaction upon the record, to which he signed the name of Bloom. The motion made by the plaintiff to quash the execution required an investigation of the claim that the judgment had been satisfied, and a determination of the effect of the pretended .satisfaction. The testimony amply sustained the finding made by the court, that the pretended satisfaction was obtained by misrepresentation and fraud, and is a nullity.” (p. 514.)
Syllabus paragraph 1 of the case stated:
“The court has control over its process, and where a motion is made to-quash an execution upon the ground that it has been released and satisfied by the judgment creditor, the court may, in a summary manner, investigate whether the judgment has been assigned, and whether the release or satisfaction is void by reason of having been obtained by fraud and misrepresentation; and finding that to be the case, may declare the pretended satisfaction to be a nullity, and direct the officer to proceed and execute the judgment.”
Although Bowersock v. Wickery, 61 Kan. 632, 60 Pac. 317, involved no factual controversy, Chapman v. Blakeman, supra, is there cited as authority for setting aside a release or satisfaction of judgment by motion filed in the case in which the judgment was rendered.
While the early decisions of this court seem to sufficiently cover this question, the subject has been treated in the texts, and there have been many other similar decisions from the courts of the several states. In the Encyclopedia of Pleading and Practice, Vol. 19, page 140, under the heading “Vacating Entry of Satisfaction”:
“Form op Application — Bill in Equity — A court of equity has jurisdiction to vacate an entry of satisfaction on application by ordinary bill. . . .
“Motion — The usual remedy, however, is by motion in the original action for an order cancelling the entry or return of satisfaction, and directing execution to issue for so much of the judgment as remains unpaid. . . .
“When Action Necessary or Proper — It is only where damages are claimed, or equitable relief which cannot be had on motion, that an action is necessary. But where the evidence is conflicting upon the material questions of fact arising upon the'motion, the party seeking relief should be left to an action, rather than have the court determine questions upon ex parte affidavits.”
The last paragraph of the above quotation refers (as do some other texts) to a proceeding in equity as distinguished from one at law. In Kansas all such distinctions have been abolished (G. S. 1935, 60-201) and there is no reason to refuse equitable relief upon proper motion in a civil action.
31 Am. Jur. 382, § 922, under the title “By Motion or Independent Proceeding,” makes this statement:
“Ordinarily, the vacation of an entry of satisfaction of a judgment is made ' on motion. Sometimes, however, an independent proceeding for the vacation of an entry of satisfaction of a judgment is authorized. This may, in effect, be done by a court of chancery, especially where other equitable relief is required.”
C. J. S. discusses the matter thus (49 C. J. S. 1069,1070, § 584c):
“An application to set' aside a satisfaction of judgment ordinarily is made by motion in the original action for an order canceling the entry or return of satisfaction, and directing execution to issue for so much of the judgment as remains unpaid.
“While a satisfaction of a judgment may be set aside by an action or suit in equity brought for that purpose, and sometimes scire facias or an action on the judgment is deemed an appropriate remedy, yet ordinarily the application to set aside is by motion in the original action for an order canceling the entry or return of satisfaction, and directing execution to issue for as much of the judgment as remains unpaid. A motion to set aside the satisfaction is properly made in the court in which the judgment is of record; but, except in some jurisdictions, an action or suit for this purpose may be brought in another court. . . .
“A motion to vacate an entry of satisfaction may be heard and determined on affidavits or depositions, if the court in the exercise of its discretion chooses to do so. Where, however, the evidence is conflicting on the material ques tions of fact arising on the motion, the party seeking relief should be remitted to an action, or to a court of equity, or an issue should be directed for a jury.”
Where the evidence is conflicting upon the material question of fact, a court should not attempt to determine the issue in a summary proceeding by ex parte affidavits, and indeed that was not done by the trial court in the instant case. There was notice to the parties, both parties appeared and had a full hearing in open court, oral testimony was given by all witnesses and each witness was subjected to cross-examination. -
Appellants cite no authority to support their argument that under such circumstances the trial court should have stricken plaintiff’s “motion to set aside the release of judgment” and required plaintiff to institute a new and separate action in equity — and our diligent search has produced no such authority. On the other hand, there are many cases from other jurisdictions to support the procedure which the court below followed in this case. (Knaak v. Brown, 115 Neb. 260, 212 N. W. 431, 51 A. L. R. 237; Lambert v. Hill, 121 Okla. 225, 73 P. 2d 124; Argue v. Wilson, 3 Cal. App. 2d 645, 40 P. 2d 297; Legum v. Farmer’s Natl. Bank, 180 Md. 356, 24 A. 2d 281; Simon v. Lecker, 231 Wis. 106, 285 N. W. 406; Hays v. Sheffield Ice Co., 282 Mo. 446, 221 S. W. 705; The People v. Parker, 231 Ill. 478, 83 N. E. 282; Leonard v. Ross et. al., 56 Okla. 118, 155 Pac. 885; Kinnison v. Guaranty Liquidating Corp., 18 C. 2d 256, 115 P. 2d 450; Com. for Use & Benefit of Bates v. Hall, 251 Ky. 280, 64 S. W. 2d 585.)
In the last cited case a release of judgment was obtained by fraud on the part of the judgment debtor, and the Kentucky Court of Appeals said:
“We deem it unneedful to further extend this opinion by further quotation or citation of authorities in support of what appears to be the rule as quoted and clearly established by the authorities, that the satisfaction of a judgment is no more than a receipt, given in evidence of payment, and where made upon the record by mistake or fraud, the court where the record is, has the undoubted right upon proof of the facts, or notice to the parties, to strike off such improper entries. The Knott county court is by the express provision of the statute above quoted required to keep a record book showing the date of all its judgments and the date of the satisfaction of said judgments. The court, having thus imposed upon it such supervision and control of its judgments and their satisfaction, must, it would follow, likewise be vested with all the powers necessary to the proper and complete exercise of such supervision and control thereof and with the power, thus clearly jurisdictional with it to correct and purge from its records errors found by it to exist therein.” (p. 285.)
Appellants next contend that the “motion to set aside the release of judgment” did not state a cause of action. It is true the motion itself omits most of the detail — but in support of it there was an affidavit of the plaintiff which spared no detail. Perhaps we need not here determine whether such a motion must withstand the test as to sufficiency of a petition, but from our careful examination of the motion and affidavit taken together, they seem to do so. The trial court did not err in overruling what defendants interchangeably refer to as “Motion to Strike” or “demurrer.”
The next error claimed by appellants is that the court’s finding and judgment of fraud were not sustained by the evidence. We have examined the record before us and there appears to be sufficient testimony to support the trial court’s finding which is in part as follows:
“and that at the time of the execution of said instruments the plaintiff did not have knowledge of the judgment or its terms which she had released, and defendants knew this and did have knowledge of said judgment and were acting upon their own convictions and the advice of their attorneys. The Court further finds that none of the witnesses to the several instruments had information or knowledge of said judgment and could not give plaintiff information on same; that said instrument purporting to release said judgment is a fraud, void and of no effect and the parties did not deal on an equal basis.”
Appellants also complain that timely demand for a trial by jury was made and the request was erroneously overruled by the trial court. In Leonard v. Ross, supra, the judgment debtor contended he was entitled to have a jury determine the issues presented by the motion to set aside the release and satisfaction of judgment, and the supreme court of Oklahoma said:
“The rule is there announced [Poff v. Lockridge, 22 Okla. 462, 98 Pac. 427] that a party resisting an application to vacate a judgment, or an order to strike a paper from the files, or to vacate the satisfaction of a judgment, is not entitled to a trial by jury, on the issues of fact arising from such application, but that the same must be tried by the court. It necessarily follows that it is not important whether such application be made by motion or by an action, since the court tries the issues in any event. There is no reason why the jurisdiction of the court may not be invoked by motion as well as by action in all cases wherein the statute does not specifically provide for bringing an action. In the instant case the parties were in court and were given an opportunity to be heard, and every element of jurisdiction was .present, and it seems to have been properly exercised.
“Since every defense was available to complainants upon the motion that would have been upon a trial after issue joined in an action, they had their day in court at the hearing of the motion, and have no ground of complaint on that score.” (p. 123.)
In the instant case the question before the court was whether the release of judgment should be set aside because it had been obtained by defendants from the plaintiff through fraud. By its very nature the proceeding was one for equitable relief. Had plaintiff elected to file a separate equitable action to accomplish this purpose, the defendants would not have been entitled to a jury as a matter of right. It was the prerogative of the trial court to determine the issues raised by the evidence without the aid of a jury.
The last specification of error argued by appellants is that defendants were denied due process of law. The fundamental requisite of due process is notice and an opportunity for a full and complete hearing. In the instant case defendants and their attorneys had notice, they appeared in court at every step of the proceedings, they had a full and complete hearing, they offered all of their evidence by oral testimony and had the opportunity to cross-examine each of plaintiff’s witnesses. There is no merit to appellants’ contention that they were denied due process of law.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the father from an adverse ruling in a habeas corpus proceeding whereby he sought to obtain possession of two minor daughters from his former wife who had remarried. Respondent prevailed and the petitioner appeals.
This is the second chapter of the same case in this court. We need not repeat the facts disclosed in the former opinion but refer to it as a full disclosure of facts and circumstances upon which it is based. (Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167.) On September 12,1946, this petitioner had obtained a decree of divorce and the custody of the children in the state of Missouri. Within twenty-four days after the final decree of the Missouri court, entered on the hearing of the motion for a new trial, the petitioner filed a habeas corpus proceeding in Kansas to obtain possession of the children. Touching the final decree of the Missouri court we held on the first appeal in the habeas corpus case:
“A wife and mother living in a foreign jurisdiction brought an action there for a divorce and custody of her children. Her husband was granted a divorce on a cross petition and she was granted custody of the children and permitted to bring them to Kansas. A new trial was granted by the court of foreign jurisdiction and custody of the children was given therein to the husband, who, thereafter brought a habeas corpus proceeding in Kansas to recover possession of them from their mother. Held, the final decree of the foreign court was entitled to full faith and credit and the mother, having invoked its jurisdiction for the purpose of having the custody of the children determined by such court, cannot assert that such foreign court lost jurisdiction of the children by reason of their having been brought to Kansas prior to the issuance of the final custody decree by the foreign court. (Following Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356.)” (Syl.)
On the previous appeal we reversed the order of the district court sustaining the wife’s demurrer to the husband’s evidence. We remanded the case and ordered the trial court to hear any proper evidence of the respective parties relative to conditions which might have changed after September 12, 1946, the date of the Missouri decree, and to consider all evidence which pertained to the best interests of the children insofar as their present and future welfare was concerned.
The case was retried. The trial court made findings of fact and conclusions of law on March 12, 1948, denied the petition for the writ and committed the children, two daughters then four and threé years of age, to the respondent, Marjorie Ailworth, subject to the further orders of the court. On the same date the court likewise indicated the need for further orders pertaining to the right of visitation by petitioner and related matters as the parties might agree upon or as the court might make. Absent full agreement by the parties the court subsequently and on August 10, 1948, made its own supplemental orders touching the subjects mentioned.
On March 15, 1948, and in time, petitioner filed his first motion for a new trial on the ground, among others, the decision denying him the custody of the children was contrary to the evidence. The motion was considered and overruled August 10, 1948. On August 13 petitioner filed his motion for a rehearing on the supplemental order. That motion was overruled August 27, 1948.
On August 20, 1948, petitioner had appealed from the decision of March 12, 1948, and from the order and decision “overruling petitioner’s motion for a new trial, rendered and decided by said court on August 10, 1948.” No appeal was taken from the supplemental order filed August 10,1948, or from the order overruling the motion for a new trial pertaining thereto. It follows matters covered by the supplemental order are not reviewable.
Touching a review of the appealable order petitioner contends respondent’s evidence did not establish changed conditions after the decree of the Missouri court rendered September 12, 1946, which warranted a change in the custody of the children.
The trial court found the conditions had changed materially. Although the findings are all important we need not set forth all of them. They narrate the history and detailed facts and circumstances of the case. Some of them touching particularly the changed conditions will be noted. The court found:
“10. If the petitioner is given custody of his children, they will be cared for by his mother. Mr. and Mrs. Moloney, the parents of petitioner, are in the neighborhood of fifty years of age and are apparently in good health except for Mr. Moloney has some diabetic trouble. He has been engaged in various lines of work at different times and is now sales manager of two corporations which manufacture and sell electronic devices. Both of the parents of the petitioner are intelligent and respectable in appearance and show strong affection for the children in this case. Prior to the divorce, the children were left with Mrs. Moloney almost every week-end and also several times when the respondent was ill.
“12. As shown by the testimony of many witnesses having various degrees of contact with her, the respondent has at this time a good reputation in the community in which she resides. Judged by her appearance in the court room, there is nothing in respondent’s manner to suggest coarseness and instability. Rather, her demeanor is that of serious and thoughtful dignity and refinement. This attitude does not appear to be simulated and is in sharp contrast with her conduct as found by the divorce decree of September 12, 1946.
“13. James Ailworth, the present husband of respondent, lived in St. Louis, Mo., before coming to Council Grove in the spring of 1946. Since coming to Council Grove he has established a good reputation in that community, as being industrious, ambitious and energetic. He now operates a produce business in Council Grove, from which he has an income of about $200.00 per month. After business hours he spends considerable time and effort in improveing the appearance of his home and working in the family garden. He is thoughtful and considerate in his relations with the Moloney children, giving part of his spare time to playing with and amusing them. The children get along well with him and enjoy his attentions.
“16. Although given the best medical attention while they resided in St. Louis, the children in question suffered from various minor ailments, the most serious being a nervous tendency shown by Andrea Jeanne. These difficulties may have been somewhat due to the conditions of life in a city of the size and climate of St. Louis. All these ailments have been overcome since the children have lived in Council Grove, and they are now active, robust and hearty in appearance.
“16. The circumstances and conditions affecting the welfare of said children have materially changed for the better since September 12, 1946, in that their health has been substantially benefited by the change of climate and living conditions; in that respondent now has a sufficient and satisfactory home of her own for herself and her children, and adequate means of support; and, in that the attitude and conduct of respondent at this time is materially bettered and improved than that found to exist by the decree of September 12, 1946.
“17. I find that the respondent is now a fit and proper person to have the care and custody of the children in question, and that because of their tender years, the best interests and welfare of said children require that they remain in the care and custody of their mother, the respondent herein.”
Counsel for petitioner argue earnestly the evidence did not justify the findings or judgment. Among the factors stressed is one that the Missouri court had granted the divorce to the petitioner and after having originally awarded custody of the children to respondent changed that order and gave the custody to petitioner. Special emphasis is also placed upon evidence that respondent’s present husband broke up petitioner’s home and married his former wife almost immediately after the Missouri judgment of divorce and before the. Missouri court passed on the motion for a new trial. That he did so marry her without legal sanction is conceded. That he was responsible for the marital discord is not at all clear.
It must, however, be admitted these facts cannot be, and they have not been, lightly regarded by this court in its review of the record. A studious review of the evidence and the extensive and detailed findings of the trial court, however, also convinces us that court gave careful and patient consideration to all these facts and circumstances in determining not the wishes and feelings of the parents only but the best present and future interests of the children. Moreover clarity of thinking requires it be recognized the custody of the children was not awarded to Mr. Moloney but to the mother of the children.
The trial court had the additional and highly important advantage over this court, which we have so often been compelled to recognize and state, of seeing the parties, observing their demeanor, assessing their character, weighing their testimony and considering the best interests of the children under all the circumstances. We have only the cold narrative of printed facts before us. It alone cannot possibly adequately portray the whole picture as witnessed by an able and discerning trial judge, the trier of the facts.
In order to reverse the trial court we would be obliged to say that notwithstanding the highly important advantage the trial court had over this court, we believe that court acted arbitrarily and not in the exercise of sound judicial discretion. If the record indicated such action we should not, and would not, hesitate to reverse the judgment. Careful analysis and a fair consideration of the entire record does not permit us to so conclude. This is particularly true in view of the tender age of these two girls, four and about three, at the time of trial.
One of the most difficult, trying and unpleasant tasks for any court to perform is the duty of taking little children from one parent and awarding their custody to the other. Such an order is seldom, if ever, entirely satisfactory to both parties. That is especially true where, as here, both parents really have genuine affection and love for their children. Yet some order must be made when the relationship between the parents compels it. We cannot properly say the evidence did not warrant the findings made.
Counsel for petitioner next contend the district court of Kansas lacked jurisdiction to determine whether conditions had changed so as to warrant a transfer of custody. They remind us that on the former appeal we gave full faith and credit to the final Missouri decree which awarded the custody of the children to the petitioner under facts existing as of September 12, 1946. They argue the Missouri court alone had jurisdiction to change the custody decree for the reason the domicile of both petitioner and the children was in that state. They insist the district court of Kansas had no jurisdiction in the premises unless it appeared this state, by virtue of its police power, had an interest in the protection and safety of the children owing to the unfitness of the father and that the trial court did not find such unfitness existed. It is true the court did not make such a finding. In support of the foregoing legal contentions relied upon by counsel for petitioner they cite Restatement, Conflict of Laws, §§ 32, 47, 147, 148; 81 Univ. of Pa. Law Rev., p. 971; White v. White, 160 Kan. 32, 44, 159 P. 2d 461.
Tested by the statement of law contained in the syllabus of the White case, supra, it appears the contentions are probably somewhat too broad. It must, however, be admitted there is substantial authority to support petitioner’s contentions. The conflict of authority touching jurisdiction has been recognized by this court in a number of cases. Some of them are Wear v. Wear, 130 Kan. 205, 285 Pac. 606; White v. White, supra, and others cited in both opinions.
Our decisions, as indicated in the Wear and White cases, and others which might be cited, are to the general effect that ordinary judgments of foreign courts receive full faith and credit in this state in accordance with the federal constitutional provision (art. 4, § 1); that rule is limited as to orders or judgments of foreign courts pertaining to the custody of minor children; such a custody order does not import finality but is subject to modification depending upon changed conditions; a custody order or judgment of a foreign court in res adjudicata only as to matters determined by the foreign decree in that case, and as of the time it was rendered. We have also held a foreign custody decree is not controlling as against the state in its relation of parens patriae in considering the welfare of children in a subsequent hearing involving that subject. (In re Bort, Petitioner, &c., 25 Kan. 308.) But it appears the statement of that rule was more accurately guarded in the later Wear case, supra, where it was held:
“In a habeas corpus proceeding brought by one of the parents against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the state as parens patriae has to promote the best interests of the child.” (Syl.113.)
In any event on the first appeal, as previously stated, we directed the trial court to hear evidence of changed conditions since the final Missouri decree of custody. No contention was then made that the pleadings were not sufficiently broad to show this state had - proper interest in the welfare of the children who were within its borders pursuant to consent of the Missouri court under its first order which awarded custody to the respondent.
In fairness to present counsel for petitioner, and without intent to reflect in any manner on petitioner’s previous counsel, it should be stated they did not represent the petitioner in the original case or on the first appeal. When the case was remanded the trial court heard evidence touching changed conditions as this court directed. In view of the circumstances we think the judgment should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Appellant was charged in the district court of Shawnee county by an information in due form of murder in the first degree of Trinidad Alejos. A trial by jury found him guilty of murder in the second degree. His motion for a new trial was overruled, he was sentenced to imprisonment for ten years, and he has appealed.
The evidence offered by the state, which the jury were authorized to believe, may be summarized as follows: Trinidad Alejos, a Mexican, twenty years of age, was married, his family consisting of his wife and one child. Jose Aguirre, also a Mexican, was a single man, forty-seven years old, who made his home with his mother and stepfather. They and other Mexicans lived in the vicinity of the Santa Fe shops, where the men were employed. The Spanish Village is located at the northwest corner of First and Jefferson streets in Topeka. It is a stucco building, about twenty feet wide and thirty-six feet long. It is a beer parlor where persons of Mexican extraction congregate to drink beer, visit and find entertainment. The front was well lighted. On Saturday, January 31, 1948, the ground was covered with snow. Trinidad Alejos did not work that day, as it was his day off. He spent the day with his family and on various errands. He went to the Spanish Village early in the evening, but soon left and returned about 11:00 p. m. His uncle, Louis Alejos, worked that day until about 9:00 p.m., when he left in order to complete plans for a birthday surprise party for his wife to be held the next morning. He visited the Spanish Village at various times to invite some of his friends whom he knew he would find there. He returned to the Spanish Village about 11:00 p. m. John Torrez early that evening had met Aguirre at a beer tavern known as the Paradise Inn and at the request of Aguirre went with him in his truck to a place on California Avenue where Aguirre wished to purchase a hunting license. The place was closed and they returned to the Paradise Inn. From there Torrez, driving his own automobile, went to the Spanish Village about 11:00 p. m. and parked his car on the west side of Jefferson street a short distance south of the Spanish Village. At that time'there were perhaps twenty or thirty persons in the Spanish Village. About 11:30 p. m. Aguirre arrived at the Spanish Village and joined a group of men who were drinking beer at the bar near the north end of the building. In the group near Aguirre were Torrez, Refugio Granada and Trinidad Alejos. All the men there were drinking beer. None of them was drunk. Louis Alejos was in a booth on the west side of the building with Jose Sanchez and his wife, talking about the party he was to give the following morning. The men near the bar were buying beer for their friends and Louis Alejos went to the bar to get a beer someone had purchased for him. He noticed Aguirre standing near the bar. His back was to Louis Alejos. As Louis reached for his beer Aguirre turned toward him and said: “I am not afraid of'nobody.” Louis Alejos said to Aguirre, “That is all right.” Aguirre then said: “If I go home and come back I will .show you.” Louis Alejos replied: “That is all right, too.” Neither ■of them appeared to be angry. There had been no arguments, •threats or fights, or other disturbances in the Spanish Village that •evening and no one had abused or attacked Aguirre. There had been no display of weapons of any kind. Aguirre left the Spanish Village about 11:40. None of the men standing near the bar with whom he had been drinking left at that time, nor did anyone follow him out of the building after he left. Aguirre lived on the east •side of Jefferson street a short distance north of the Spanish Village, perhaps 150 feet away. After Aguirre left the Spanish Village Torrez, Granada, Trinidad and Louis Alejos continued to drink their beer, but about midnight Torrez agreed to drive the group to Oakland, in the northeast part of Topeka, in order that Louis Alejos could engage some musicians to play at his party the following morning. Shortly after midnight the four men left the Spanish Village to enter the Torrez car. Torrez was the first to leave the Spanish Village, followed by Trinidad Alejos, Granada and Louis Alejos, in that order. They proceeded east onto the parking and then south toward the car. As Louis Alejos was leaving the Spanish Village and was on the steps leading to the sidewalk Aguirre was seen approaching from the direction of his home toward the Spanish Village. He called and said something about having “it” now. What this referred to is not shown. At that time Aguirre was about fifteen feet northeast of the door of the Spanish Village and was walking rapidly toward it. As Louis Alejos continued down the steps onto the sidewalk he noticed Aguirre had taken a gun from his pocket and had it in his right hand, and he said to Aguirre, “Wait a minute,” and took a step toward Aguirre, who said, “Stop or I’ll burn you.” Louis Alejos took another step toward Aguirre, at which time Aguirre started shooting. Aguirre was then fifteen to twenty-five feet north of Louis Alejos and approximately the same distance from the other three men — Granada, Torrez and Trinidad Alejos. Aguirre shot three times in rapid succession at Louis Alejos, each shot taking effect, but none of them produced a serious in jury. Aguirre then turned his gun to the east and shot Trinidad Alejos twice. During the few seconds of the shooting all the men were standing still. Upon being shot Trinidad Alejos fell immediately and soon thereafter died from the gunshot wound received. Louis Alejos said to Aguirre: “See what you did to my nephew,” and started walking slowly toward Aguirre, who turned the gun back on Louis Alejos, but the gun did not fire. Louis Alejos continued in a slow walk until he reached Aguirre and reached for the gun, but missed it. Aguirre hit Louis Alejos several times over the head with the gun. Louis Alejos grappled with Aguirre and both men fell to the ground, struggling for the gun, which Louis Alejos finally took away from Aguirre, and while on top of him struck Aguirre on the head three or four times. While this was being done the gun fired and the bullet entered the bony region near the mastoid in the back of the head of Aguirre. Aguirre and Trinidad Alejos were taken away from the scene in ambulances, Aguirre to Christ’s Hospital, where Louis Alejos was taken later by the police. At the hospital both men received treatment from Dr. Charles Joss, who was on emergency call at the hospital.
The next morning, about 9:00 o’clock, Jerome Brown, a detective of the police department, went to the hospital and talked to Louis Alejos and Aguirre. He then contacted the county' attorney and requested him to come to the hospital. The county attorney called an official court reporter of the district court and about 10:00' o’clock a. m. he, the reporter and Brown, after talking to the nurse in charge, went to the room of Aguirre and found that he was awake. The county attorney introduced himself, the reporter and Brown,' and asked Aguirre in regard to the happenings of the previous night. The questions were asked in English and the answers made in English. Defendant had no trouble understanding the questions or making answers because of the use of English. In answer to questions defendant told of the events of the preceding night and contended that he shot because of being attacked by the men in front of the Spanish Village. Briefly stated, it was a story of self defense. After talking to Aguirre the county attorney also talked to Louis Alejos in regard to the happenings of the preceding night. Later that day the injured men were transferred to the Santa Fe Hospital.
At the trial the defendant took the stand and testified in his own behalf. His testimony was in support of the theory of self defense, and perhaps tended to indicate that the shooting of Trinidad .Alejos was untintentional. In some details his testimony differed from his statements at the hospital on February 1. For example, there he stated that after his talk with Louis Alejos at the Spanish Village he went home and got his gun and put it in his pocket and came back. In his testimony in court he said that he didn’t go home for his gun, but that he had had the gun in his pocket before he left the Spanish Village shortly before midnight. In other details his story differed. On cross-examination the county attorney called his attention to those differences and asked him if he had not stated differently at the time he was questioned at the hospital. Defendant objected to the reference to his statement at the hospital upon the ground that the statement at the hospital was in the nature of a confession or admission against interests and upon the ground that defendant was unconscious at the time and did not even realize he was in the hospital. The court then excused the jury and both the state and defendant introduced witnesses to show the condition of defendant at the time the statements were made.
The county attorney, the court reporter, Mr. Brown, Doctor Joss, the nurse and the priest who saw Aguirre about 3:00 or 3:30 o’clock in the'morning, gave testimony before the court in the absence of the jury, which testimony pertained to the physical and mental condition of Aguirre, particularly at the time the statement was taken in the hospital on February 1. The county attorney made it clear to the court that his questions pertaining to that statement were asked for the purpose of impeachment. The court held the evidence to be competent. The jury was called and the cross-examination of the defendant proceeded. In the course of that the county attorney asked defendant if he had not made certain statements when questioned at the hospital which differed in some respects from the testimony he had given on the trial. His answers in each case were that he did not remember, or that he did not know whether the question was asked, and perhaps in some instances he positively denied that he had made the statements. The county attorney then planned to offer that portion of the statement concerning which the witness had been questioned. In doing so he advised the court that counsel for defendant insisted that if any part of the statement went in that it should all go in. Counsel for defendant confirmed that without waiving his original objections, and the statement was admitted in evidence.
The principal questions relied upon by appellant for reversal pertain to the statement made by defendant at the hospital on February 1, 1948. Appellant contends the court erred in admitting the statement in evidence. As previously noted, the state introduced the statement in evidence only upon the insistence of counsel for defendant after certain questions and answers therein had been called to the attention of the defendant for the purpose of impeaching or discrediting his testimony. Hence, counsel for appellant cannot blame the state for introducing the entire statement in evidence. In urging that be done counsel-for defendant did so without waiving their objections previously made to the particular statements therein. The objection previously made was upon the ground that defendant was unconscious at the time the statement was made. This ground of objection appears to have been thoroughly disproved. Counsel for appellant here do not contend the defendant was unconscious at that time.
Appellant contends the court erred in treating the statement as a confession. The difficulty with that contention is that there is nothing in the record to indicate that the court treated the statement as a confession. Clearly it was not a confession, but on the other hand it was exculpatory in character and was a statement tending to show the shooting was prompted or necessitated for the defense of defendant’s own person and would be generally classified as showing self-defense. The record indicates it was substantially the same as the testimony of the witness in chief when testifying in his own defense. It differed from his testimony only in certain details. There is no more reason to characterize it as a confession than to so characterize his testimony in chief when he was a witness. (See State v. Smiley, ante, p. 261; State v. Myers, 154 Kan. 648, 121 P. 2d 286, citing State v. Campbell, 73 Kan. 688, 85 Pac. 784; State v. Turner, 82 Kan. 787, 109 Pac. 654, and other authorities. See, also, Wigmore on Evidence, § 821; 22 C. J. S. 1420, 1422; 20 Am. Jur. 417, and cases there cited.)
The case is unlike State v. Seward, 163 Kan. 136, 181 P. 2d 478, cited and relied upon by appellant. In that case -there had been a definite confession of guilt. In State v. Hayes, 106 Kan. 253, 187 Pac. 675, cited by appellant, there was a written confession and the question was whether it was voluntarily made. The trial court held it was so made, and this court affirmed.
It is well settled, of course, that where the defendant in a criminal case testifies in his own behalf he may be cross-examined upon statements previously made by him respecting the matter concerning which he had testified for the purpose of impeachment or of testing his credibility.
Complaint is made of the refusal of the court to give a requested instruction as to how the jury should consider the statement made by defendant on February 1 at the hospital. We see no occasion for a particular instruction upon that question, and the wording of the one requested might very well have been construed less favorably to the defendant than his counsel desired. Counsel cite no authority in support of the view that their particular instruction should have been given. The statement had been referred to by the county attorney only for the purpose of tending to impeach the witness. The court specifically instructed the jury with reference to how to consider impeaching testimony and stated to the jury:
. . it is your province to determine to what extent that fact tends to impeach . . . the credibilty of the witness ... or to detract from the weight to be given to his testimony.”
There was no objection to instructions given, but we have examined them with care and find that they fairly presented the issues to the jury and in all instances placed the burden of proof, beyond a reasonable doubt, upon the state. The jury was specifically told that if the state failed to prove the various elements necessary for a conviction to their satisfaction and beyond a reasonable doubt they should acquit the defendant. In view of what we have said about the instruction requested and in view of the instructions given we feel compelled to hold that the court did not err by refusing to give the particular instruction requested.
Doctor Joss was called as a witness in rebuttal and testified that he was on emergency call when appellant was brought to the hospital and to the emergency room, and attended him on that occasion; that it was his duty to take care of any patient who came into the hospital for emergency treatment who did not have a physician of his own or was in such condition that he could not call a physician; that he observed appellant on that occasion and observed the smell of liquor upon his breath; that the appellant vomited and the witness observed that the vomit smelled very strongly of alcohol. This testimony was objected to upon the ground that it was privileged. The objection was overruled and complaint is made of that ruling. Appellant argues that the admission of this testimony was in violation of our statute (G. S. 1935, 60-2805, Sixth). We had the same question.before us in State v. Townsend, 146 Kan. 982, 73 P. 2d 1124, where it was held:
“Our statute (G. S. 1935, 60-2805) relating to the privilege of the testimony of one’s physician pertains to matters germane to the physician’s diagnosis and treatment of the patients.” (Syl.)
That case was a prosecution for fourth degree manslaughter by culpable negligence in driving a car so that another person was killed. The defendant and his wife were injured in the collision and were taken to a hospital, where the doctor treated both of them, for which treatment he presented a bill, which was paid. It was held this “did not render the doctor or his nurse incompetent to testify, over appellant’s objection, that they observed him while he was at the office and that in their opinion he was under the influence of intoxicating liquor.” The authorities supporting the court’s decision are set out in that opinion and the same are referred to here as supporting our conclusion in this case. The Townsend case, with others, is cited in 58 Am. Jur. 243, in support of the text stating the general rule in harmony with our decision. Counsel for appellant cite and rely upon Linscott v. Hughbanks, 140 Kan. 353, 37 P. 2d 26; but in that case the physician’s evidence sought to be introduced clearly related to diagnosis and treatment. That was so ruled in the Townsend case, swpra (p. 986).
Belatedly, in their brief (not in their abstract) counsel for appellant assigned as error the alleged abuse of discretion of the trial court in permitting the county attorney to continue as an attorney in the case after he had testified before the court (not in the presence of the jury) concerning the circumstances under which the statement was made at the hospital on February 1. When the trial of the case was resumed before the jury no objection was made to the county attorney continuing to appear in the case on behalf of the prosecution. Neither was the question raised in any other manner in the trial court. Hence, counsel for appellant are not in position to have it considered now. More than that, counsel for defendant had questioned the propriety of the county attorney taking the statement. Under the circumstances it was appropriate for the county attorney, either by his testimony or by a statement before the court, to explain the circumstances under which this statement was made. There was no objection to his doing so. There is but little, if any, excuse for injecting this question into the record here.
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
Parker, J.:
This is an original habeas corpus proceeding in which it is claimed petitioner is illegally confined in the state penitentiary.
The record discloses the following factual situation: On the 9th day of June, 1939, petitioner was convicted in the district court of Pratt county of the crime of grand larceny of an automobile and sentenced to the Kansas state industrial reformatory for a term of from five to fifteen years; a month later he was transferred to the state penitentiary by order of the board of administration; June 1, 1943, he was paroled; October 21, 1943, he became delinquent by failing to make monthly reports to the penitentiary officials as required by the terms of his parole; he was declared a delinquent parolee and his parole was revoked by the prison board on May 3, 1946; on July 18, 1946, while still at liberty, he was convicted of the offenses of burglary in the second degree and grand larceny and sentenced to the reformatory, this time by the district court of Scott county, for respective concurrent terms of not less than five nor more than ten years and not to exceed five years; shortly after his delivery to the reformatory on these last two sentences the prison board by written order, dated January 15, 1947, again transferred petitioner to the penitentiary where he was rebooked upon the Pratt county sentence and is now being required to first complete the unexpired term of that sentence before being given credit for time served on the Scott county sentence.
Strange as it may seem this petitioner does not contend his convictions or sentences on either Pratt or Scott counties are illegal. His principal complaint is that incarceration in the penitentiary is not authorized under the judgments rendered by the district courts wherein he was convicted.
In support of his position petitioner first asserts that he was sentenced to the reformatory and hence cannot be lawfully confined in the penitentiary under any of his sentences. This claim cannot be upheld. Petitioner was transferred to the penitentiary on each of the occasions heretofore mentioned under and in conformity with G. S. 1935, 76-2314. This court has repeatedly held such section of the statute is constitutional and that it expressly authorizes the very action of which he complains. (See Kanive v. Hudspeth, 165 Kan. 658, 661, 198 P. 2d 162; Moffett v. Hudspeth, 165 Kan. 656, 198 P. 2d 153; Willey v. Hudspeth, 162 Kan. 516, 518, 178 P. 2d 246; Martin v. Amrine, 156 Kan. 384, 386, 133 P. 2d 582, certiorari denied 319 U. S. 745, 87 L. Ed. 1701, 63 S. Ct. 1029.)
The second contention advanced by petitioner as a ground for his release is that when he was received at the penitentiary the last time he was improperly rebooked upon his first sentence. Boiled down his claim is that he should now be receiving credit for time served on both of his sentences. With respect to this point it must be remembered petitioner was properly an inmate of the penitentiary at the time his parole was granted and on the date it was revoked. Therefore when he was returned to such institution he came within the provisions of G. S. 1935 62-1528, and was required to serve his second sentence after the completion of his first. See In re Graves, 154 Kan. 407, 118 P. 2d 542, which holds:
“When a convict is permitted to be at large on parole and violates its terms he has the status of an escaped prisoner, and when he is afterwards returned to the penitentiary on a judgment and sentence for a subsequent crime, he is properly rebooked to serve the balance of his first sentence, and the term of imprisonment for his second sentence does not begin until his first term is completed, as prescribed by G. S. 1935, 62-1528.” (Syl. 112.)
In leaving this point it should perhaps be added that under our decisions (Kanive v. Hudspeth, supra; Beck v. Fetters, 137 Kan. 750, 22 P. 2d 479, and State v. Finch, 75 Kan. 582, 89 P. 2d 922), G. S. 1935, 62-1512 also requires the conclusion petitioner’s Scott county sentences do not commence to run until the date on which his Pratt county sentence expires.
Finally petitioner contends that prior to his delivery to the authorities at the reformatory he was temporarily confined in a jail other than the one designated by the trial court. Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner’s uncorroborated statement, has long since ended and its legality is not now subject to consideration in a habeas corpus proceeding.
One further question, not argued but nevertheless presented by our examination of the briefs, requires attention. Respondent’s evidence discloses no declaration of petitioner’s delinquency as a parolee until May 3, 1946, the date on which the parole was revoked. Even so he claims petitioner owes time on his first sentence from October 21, 1943, when he first became delinquent by failing to report to the prison officials. This claim is erroneous. While it is true G. S. 1935, 62-1528, provides that time served from the date of a parolee’s declared delinquency until the date of his arrest shall not be counted as any portion or part of time served, such provision does not,become operative until there has been an actual declaration of that fact. Inasmuch as the record disclosed no such action in this case prior to the date of actual revocation of petitioner’s parole he is entitled to credit for time served on his first sentence from October 21,1943, to May 3,1946.
The writ is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original petition for habeas corpus. The respondent filed his return, whereupon the parties stipulated that the facts as set out in the petition and the return were the actual facts. The case was submitted for final determination on the petition for a writ and the respondent’s return.
Petitioner, Robert Dean Seibert, was born May 7, 1934. At the time the events with which we are interested transpired he was fourteen years of age. He was found to be a juvenile delinquent in the juvenile court of Sherman county, Kansas, on August 4, 1948, and on that date was committed to the Boys’ Industrial School at Topeka, to which he was admitted August 12, 1948. He remained at that school until October 15,1948. On October 15,1948, he escaped from the Boys’ Industrial School and together with three other inmates rode a freight train to Kansas City, Kan.; in the railroad yards there the next morning he, together with his companions, was taken into custody by the police; they admitted they had escaped from the Boys’ Industrial School the day before, whereupon the police delivered them to the custody of the probation officer of the probate court of Wyandotte county early in the morning of October 16, 1948. The probation officer advised the superintendent of the school by phone, was told that these boys had escaped, and the probation officer told the superintendent they would be held in the custody of that officer until Monday or Tuesday of the following week, when they would be returned to the school. Sometime during October 17, 1948, one Gertrude Hutchison, the matron of the detention home, where petitioner was being held, was murdered by being strangled with a scarf. On October 18 a complaint charging petitioner with the crime of murder was filed in the city court of Kansas City, Kan., by the county attorney of Wyandotte county. A warrant was duly issued for the arrest of petitioner and he was arrested. He was arraigned in the city court and ordered held without bond and at the same time an order appointing two reputable attorneys, members of the bar of Wyandotte county, were appointed by the court to defend him. He was ordered held in the custody of the jailer of Wyandotte county, Kansas, until discharged by due course of law. On October 26, his preliminary hearing was continued until November 9, 1948. On that date the judge of the city court of Kansas City, Division No. 2, ordered him held for trial for the crime charged in the warrant and complaint without bond, these orders being made after his attorneys had announced in open court they desired to waive a preliminary hearing. The commitment was thereupon issued directing the jailer of Wyandotte county jail to hold petitioner in his custody until discharged by law. On November 18 an information was filed in the district court of Wyandotte county, Kansas, charging petitioner with murder in the first degree. On November 24, the case was continued until the December, 1948, term upon request of counsel for petitioner. On December 7, 1948, the district court appointed the same two attorneys who had represented petitioner at the preliminary hearing to represent him in district court, pursuant to G. S. 1947 Supp. 62-1304. On December 18, 1948, counsel for petitioner filed a motion in the district court chal lenging the jurisdiction of that court to try the cause and asking the court to remand it to the juvenile court for determination. On December 30, 1948, the judge of the district court, before whom the case was pending, denied this motion and continued the case to the March, 1949, term. March 4, 1949, an amended information was filed by the county attorney of Wyandotte county, Kansas, and on March 7, 1949, the case was set for trial. The answer of respondent sets out some details as to the circumstances surrounding the murder of Gertrude Hutchison. We are not concerned with those details here since the only question with which we are concerned is the jurisdiction of the district court to try petitioner and that turns altogether upon our construction of the statutes.
Counsel for petitioner filed this petition for a writ. On account of the youth of petitioner we entertained the, petition for a writ rather than permit the trial to proceed and leave the question of jurisdiction to be raised on appeal.
Counsel for petitioner argue that on account of the age of the petitioner the only tribunal before which he could be tried is the juvenile court of Wyandotte county. They base this argument upon the provisions of what is known as our juvenile court law, being G. S. 1935, 38-401 to 38-432, inc. This chapter inaugurated a new policy in Kansas as to the manner with which juvenile delinquents should be dealt. We considered the general purpose of the act in Burris v. Board of Administration, 156 Kan. 600, 134 P. 2d 649. There we said:
“This state has long been among the leaders in humanitarian approach to the problems of juvenile delinquents. Nor is this to say that there are not, perhaps, other forward steps which might well be taken. In 1879 the legislature provided for the erection of a ‘state reform school’ building (Laws 1879, ch. 170). In 1881 was enacted the first organic act relating to this ‘state reform school’ (Laws 1881, ch. 129). Though'the name of the school was subsequently changed to ‘Boys’ Industrial School’ fundamental provisions of the original act have been retained. The institution is fundamentally parental and educational in character. Boys are committed to it who are under sixteen years of age and who have committed offenses or found to be incorrigible (G. S. 1935, 76-2104, 76-2105). Boys so committed remain until they are twenty-one years old, unless sooner discharged as provided by statute (G. S. 1935, 76-2109). A similar institution for girls — Girls’ Industrial School — was established in 1889. At these schools every characteristic of penal institutions is avoided as far as possible. There are no stout enclosures, no armed guards, no provisions for control by force. To set up those instrumentalities would destroy the very atmosphere and spirit with which the state seeks to surround the boys. Schooling, including occupational and trade courses, and other helpful training is provided. Most of the boys prove amenable to its care and discipline and the school is justly proud of the many fine citizens who received constructive training within its walls and on its campus.” (p. 604.)
The first section of the act, chapter 190, Laws 1905, now G. S. 1935, 38-401, made the judge of the probate court in each county the juvenile court judge in that county and gave him jurisdiction over all cases concerning “dependent, neglected and delinquent” children. The second section, G. S. 1935, 38-402, defined “dependent” child and “neglected” child and amongst these definitions we find it provided that the word “delinquent” child should include “any child under the age of sixteen years of age who violates any law of this state or any city, town or village ordinance.” The third section, G. S. 1935, 38-403, provided for the appointment of probation officers and defined their authority. The fourth section, G. S. 1935, 38-404, provided for the filing of petitions calling the court’s attention to any “delinquent” or “dependent” child. The fifth section, G. S. 1935, 38-405, provided for a hearing and for notice. The sixth section, G. S. 1935, 38-406, provided for a continuance of the hearing and for the child being held in the custody of some person other than the jailer.' The seventh section, G. S. 1935, 38-407, provided for awarding the custody of the child to some reputable citizen or industrial school as provided by law. The eighth section, G. S. 1935, 38-408, provided that where the child be awarded to the care of any association or individual it should become a ward and subject to the guardianship of the association or individual. The ninth section, G. S. 1935, 38-409, provided the case might be continued from time to time and the child held in the control of the probation officer or permitted to remain at home. This section also provided in part as follows:
“Or the court may commit the child to a suitable institution, for the care of delinquent children: Provided, That no child under the age of sixteen years shall be committed to the state reformatory, and in no case shall the child be committed beyond his or her minority.”
The tenth section, G. S. 1935, 38-410, provided for the court causing a child who has been committed to an institution or individual to be brought before it from time to time. The eleventh section, G. S. 1935, 38-411, provided that when a child under the age of sixteen was arrested instead of being taken before a justice of the peace or police magistrate or judge heretofore having jurisdiction of the offense he must be taken before the juvenile court or if he has been taken before a magistrate that magistrate must transfer the case to the juvenile court. The twelfth section, G. S. 1935, 38-412, provided for children appealing from any order of commitment to the district court. The thirteenth section, G. S. 1935, 38-413, made it the duty of the county attorneys to aid the probation officers in the performance of their duties. The fourteenth section, G. S. 1935, 38-414, as follows:
“All punishments and penalties imposed by law upon persons for the commission of offenses against the laws of the state, or .imposed by city ordinances for the violation of such ordinances, in the case of delinquent children under the age of sixteen years, shall rest in the discretion of the judge of the juvenile court, and execution of any sentence may be suspended or remitted by said court.”
The fifteenth section, G. S. 1935, 38-415, provided that the act should be liberally construed. The sixteenth section provided that all acts in conflict with that act or inconsistent therewith should be repealed. Petitioner pointed to the language of that chapter, especially that which has been quoted, and argues that under its provisions on account of the fact that he was only fourteen years of age when he is alleged to have murdered Mrs. Hutchison neither the city court of Kansas City, Kan., nor the district court of Wyandotte county had any jurisdiction to try him and the only tribunal which did have such jurisdiction was the juvenile court of Wyandotte county. He asks us to so hold by granting this writ. At the outset of the consideration of this argument we will take note o.f a provision in G. S. 1935, 38-402, being section 2 of chapter 190 of the Laws of 1905. That provision is—
“This act shall apply only to children, under the age of sixteen years, not now or hereinafter inmates of any state institution or any industrial school for boys or industrial school for girls.”
Counsel for respondent realizes the possible effect of this provision. They state in their brief as follows:-
“It would appear from the foregoing statutes that the only tribunal to try said petitioner for said offense is the juvenile court of Wyandotte comity, Kansas, unless it be held under section 38-101 of the juvenile court act that at the time of the commission of the offense he was an inmate of a state institution or industrial school for boys.”
They then proceed to argue petitioner was not an inmate of the Boys’ Industrial School when he is charged to have committed the crime of murder because he had escaped from that institution. They couple this with an argument based on G. S. 1935, 21-2001, a statute that provides for trial in district court and punishment of persons confined in the State Reform School, the name once borne by the Boys’ Industrial School. G. S. 1935, 21-2001, provides as follows:
“Any person confined in the state industrial school for boys or in the state industrial school for girls, who shall attempt to set fire to any building belonging to either of such institutions, or to any combustible matter for the purpose of setting fire to any such building, or who shall wilfully and forcibly resist the lawful authority of any officer of either of such institutions or shall incite or attempt to incite others to do so, or shall by gross or habitual misconduct exert a dangerous and pernicious influence over other persons confined in either of such institutions, or shall commit a felonious assault upon any officer, attendant, employee or inmate of either of such institutions, or shall in any manner wilfully burn or otherwise destroy property of the value of more than twenty dollars belonging to either of such institutions, or shall run away or escape from either of such institutions or from the lawful authorities thereof, shall be deemed guilty of a felony, and upon conviction thereof in the district court of the county wherein such offense shall have been committed shall be punished as follows: If the person so convicted is confined in the state industrial school for boys, he shall be sentenced and committed to the Kansas State Industrial Reformatory for a term of not less than one year nor more than three years; and if the person so convicted is confined in the state industrial school for girls, such person shall be sentenced and committed to the state penitentiary for a term of not less than one year nor more than three years: Provided, That for running away or escaping from either of such institutions the person so offending shall be deemed guilty of a violation of this act only upon the second or any subsequent offense.”
The above with a change in the name of the institution is section 1 of chapter 172 of the Laws of 1901. It will be noted it provides that any person confined in either the state reform school, which is now the Boys’ Industrial School, and the state industrial school for girls, should be punished by trial in the district court where the offense was committed for certain offenses, that is, setting fire to a building, resisting authority of an officer, by conduct exercising a dangerous or pernicious influence over other persons, felonious assault upon an officer, destruction of property and running away from the institution. We construed that statute in Burris v. Board of Administration, supra.
In that case a boy fourteen years old had been committed to the Boys’ Industrial School. While there he escaped several times and while at large committed other crimes. He was finally tried and convicted of escaping, in violation of G. S. 1935, 21-2001, and sentenced to be confined at the State Reformatory at Hutchinson. While there he filed a petition for a writ of habeas corpus alleging that under the provisions of G. S. 1935, 38-401 to 38-432, he on account of his age could not be regarded as a criminal but only as a delinquent child. He relied strongly on G. S. 1935, 38-409, where it is provided, in part, that — •
“No child under the age of sixteen years shall be committed to the state reformatory.”
We referred to the portion of G. S. 1935, 38-402, which has already been quoted in this opinion, where it is provided that—
“This act shall apply only to children under the age of sixteen years, not now or hereafter inmates of any state institution or any industrial school for boys.”
We held that the section meant what it said and the petitioner had been an inmate when he escaped and the juvenile court act did not apply to him and he could be prosecuted in district court for a violation of G. S. 1935, 21-2001. In the syllabus we said:
“The classification established by section 38-402 (G. S. 1935) whereby the juvenile court act is made inapplicable to inmates of certain institutions is valid insofar, at least, as it relates to inmates of the Boys' Industrial School.”
. To meet this situation petitioner argues that at the time of the commission of the offense with which he is charged he was not an inmate of the Boys’ Industrial School on account of the fact that he had escaped therefrom and that he was not “confined” in the Boys’ Industrial School, as contemplated by G. S. 1935, 21-2001, for the same reason — hence neither of the provisions of the above statutes, that is, G. S. 1935, 21-2001, nor the exception in G. S. 1935, 38-402, applies to him.
We find it unnecessary to decide whether petitioner at the time the crime with which he is charged was committed was “confined” in the Boys’ Industrial School since he is not charged with a violation of G. S. 1935, 21-2001, but is charged with murder, as provided in the general crimes act, murder not being one of the crimes covered by G. S. 1935, 21-2001. We must, however, give attention to his argument that he was not at the time of the commission of the offense with which he was charged an “inmate” of the Boys’ Industrial School. We hold by escaping from the school he did not cease to be an inmate of it. This wrongful act of escape subjected him to be punished under the provisions of G. S. 1935, 21-2001, as well as the general crimes act. Furthermore, under the terms of G. S. 1935, 76-2111, any sheriff, constable or policeman had the power to arrest petitioner and return him to the school. As a matter of fact, upon his arrest in Kansas City the superintendent of the school had been advised of his arrest and the superintendent asked the authorities in Kansas City to hold him for the officers from the school. He was actually in the custody of the school at the time he is charged with the commission of the crime though the probation officer of Kansas City, Kan., was exercising the actual physical restraint. To hold otherwise would be to hold that when a group of these boys from the Boys’ Industrial School are taken some distance from the school for the purpose of taking part in some athletic event or some other function while they are away from the grounds immediately surrounding the school they are not inmates thereof. Such was not the intention of the legislature. The general rule-is stated at 18 C. J. S., p. 109, par. 9, as follows:
“The legislature has full power to pass statutes relative to the custody, care, and control of persons convicted of crime. When a convict is serving a penal sentence, he is in the custody of the state or its authorities, and he remains constructively in such custody even though he may be released on parole. ... A person convicted of felony and sentenced to confinement in the state prison is in contemplation of law in prison until he serves his term or is pardoned, although he may have been hired out to work for a contractor for convict labor, for the state cannot surrender its police power over convicts. A prisoner who has been convicted of a crime by a federal court and is confined in a state prison, with the consent of the state is deemed to be in the custody of the federal authorities.”
Once we have arrived at the conclusion that petitioner never ceased to be an inmate of the Boys’ Industrial School from the time he escaped we have then only to consider the effect of the exception in G. S. 1935, 38-402. It provides, in part, that the act, that is, the juvenile court act, shall apply only to children under the age of sixteen not then or thereafter inmates of any industrial school for boys. The question is settled against the argument of the petitioner by Burris v. Board of Administration, supra. Up to the time of the passage of that act in 1905 boys under sixteen could be prosecuted under the provisions of G. S. 1935, 76-2104. That section was formerly section 3 of chapter 129 of the Laws of 1881. It provides, as follows:
“Whenever any boy under the age of sixteen years shall be convicted of any offense known to the laws of this state, and punishable by imprisonment, the court or justice, as the case may be, before whom such conviction shall be had, may at its discretion sentence such boy to the state industrial school for boys, or to such punishment as is now provided by law for the same offense; and if the sentence shall be to the state industrial school for boys, then it shall be in the alternative to the state industrial school for boys, or to such punishment as would have been awarded if this act had not been passed.”
It will be noted the section provides for boys under the age of sixteen and that they may be sentenced under the general crimes act or in the discretion of the court to the state industrial school for boys.
It also gave the courts before which he should be arraigned, which would include at that time the district court, the power with the consent of the accused to arrest any proceedings and commit the boy to the reform school, now the industrial school. The provision with which we are concerned is that any court before whom the boy was arraigned had the discretion to sentence the boy to be an inmate of the industrial school for boys or to the punishment provided in the general crimes act. It was a matter of discretion for the court. It was our first step in the handling of what we now term juvenile delinquents, that is, a more intelligent, enlightened method than formerly followed of sentencing boys of tender years to a penal institution.
It has been brought to our attention that G. S. 1935, 21-117, provides that when any person under the age of sixteen years shall be convicted of any felony he shall be sentenced to imprisonment in a county jail not exceeding one year instead of confinement and hard labor, as prescribed by the preceding sections of the crime act. The section has been in our statute books ever since 1868. At the time it was enacted there were only county jails and the penitentiary at Lansing. It is suggested that the section was the one the legislature had reference to in enacting G. S. 1935, 76-2104, and the district court would in this case only have authority to sentence petitioner to serve a year in the county jail of Wyandotte county for a year or to the Boys’ Industrial School. We have considered this section and the other sections, to which reference is made in this opinion, and hold that G. S. 1935, 21-117, has been repealed by implication and is no longer in effect. In this connection we have considered what we held in State v. Hewes, 60 Kan. 765, 57 Pac. 959. If petitioner should be found guilty under the information filed against him he may be given an indeterminate sentence to the state industrial reformatory at Hutchinson, pursuant to G. S. 1935, 76-2306.
We have in 1901 the act we have just discussed providing for boys confined in the Boys’ Industrial School being sentenced to the reformatory at Hutchinson for the commission of certain offenses having to do with the institution. Then we see in 1905 the juvenile court act being passed, which has come down from that time to this, just about intact for the further intelligent handling of the affairs of juvenile delinquents, both boys and girls, with the proviso, however, that it should not apply to children who are inmates of an institution at the time they commit the cfime with which they were charged.
Petitioner cites and relies on Swehla v. Malone, 114 Kan. 712, 220 Pac. 299; State v. Dubray, 121 Kan. 886, 250 Pac. 316; State v. O’Keith, 136 Kan. 283, 15 P. 2d 443. In all these cases we held generally that offenses committed by children under sixteen years of age were under the exclusive jurisdiction. In none of them, however, did we consider a case where the child charged with the offense was an inmate of the industrial school for boys or some other institution at the time the offense with which he was charged was committed.
The conclusion seems inescapable that the proviso was intended by the legislature to make it possible for boys or girls who had shown themselves to be so incorrigible that they violated some state statute, to be dealt with as criminals and not as mere juvenile delinquents as they had been up to the time of the commission of their crime. This must be so. The Boys’ Industrial School and the industrial school for girls at Beloit are neither one of them penal institutions. The social ideas of the state have progressed from year to year in this connection. Much effort has been made to bring it about that these two schools shall be utterly devoid of the atmosphere of a penal institution. To do this there must be an absence of restraint, no walls, no high fences, no barred windows, no armed guards. The whole theme of the institution is that of education and rehabilitation. It must be so because a mere neglected child is there side by side with one who has violated a state statute, usually a minor statute, such as petit larceny or some kindred offense, but still a state statute. Now if we are going to insist that boys who once inmates there have shown themselves unfit subjects for that type of influence and treatment by committing some serious crime, such as murder, then we would utterly break down the whole philosophy of the school. For the benefit of the other inmates of these institutions that should not be the law as the legislature evidently intended.
The writ is denied. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for the specific performance of an oral contract. Plaintiff prevailed and defendant, The Southwest Grease and Oil Company, a corporation, appeals. The general nature of the transaction and plaintiff’s theory of his action may be briefly stated as follows:
The defendant corporation is located in Wichita and is engaged in the sale of oil and greases; it desired to manufacture and sell an hydraulic lubricant to Ford dealers; it discovered a man by the name of Jack Reed had a special lubricant of a particular character which was in great demand and that Reed was doing an extensive business in that field; defendant was unable to make sales to numerous prospective customers for the reason they insisted upon using only the lubricant sold by Reed; plaintiff, Hatcher E. Scott, was an intimate personal friend of Reed; defendant through its president, Harold A. Mayor, consulted the plaintiff late in 1939, or the early part of 1940, and expressed to plaintiff the desire to have Reed brought into defendant’s business; the defendant through its president, contracted orally to compensate plaintiff in the form of a specified commission for every gallon of the lubricant defendant sold if he, plaintiff, succeeded in persuading Reed to quit his own business and to come into defendant’s employment; the commission was to commence whenever Reed accepted such employment; plaintiff performed'his part of the agreement; Reed entered defendant’s employment in the year 1940; Reed’s formula for the lubricant was adopted by defendant and the lubricant was sold in extensive quantities and with substantial profits; Mayor insisted the commission agreed upon to be paid to plaintiff was not to b.e made known to Reed; plaintiff was paid the agreed compensation regularly on a quarterly basis in March, June, September and December of each year until and including the month of March, 1945; in 1945 defendant breached the contract and informed plaintiff his commission would be discontinued.
Other details are covered by the findings made by the trial court which tried the action without a jury.
It was defendant’s principal contention the contract relied upon by plaintiff was not made but that plaintiff was employed only as a correspondent and advertising manager for defendant without any-stated duration.
There was sharp conflict in much of the testimony. The trial court resolved all issues of fact in favor of the plaintiff. It made findings of fact and conclusions of law which are appended to this opinion and made a part hereof. There is ample evidence in the record to support the findings of fact and they can, therefore, not be disturbed.
The findings of fact and conclusions of law were incorporated into and made a part of the journal entry of judgment. The findings of fact and conclusions of law were made on February 1, 1948. A money judgment was rendered against the defendant corporation for amounts found due at installment payment periods except as to one period for which the accounting was not complete. The court retained jurisdiction for the purpose of determining any question of accounting that might arise subsequent to the judgment.
A general demurrer of the individual defendant, Harold A. Mayor, to plaintiff’s evidence was sustained and the general demurrer of the defendant corporation was overruled. The latter defendant alone appeals. We shall continue to refer to the parties on .appeal as plaintiff and defendant.
We shall not burden the opinion with a narrative of the conflicting testimony. On demurrer we are, of course, concerned only with plaintiff’s evidence which is favorable to him.
Applying this rule a review of the testimony offered on behalf of plaintiff compels us to conclude: Defendant was exceedingly anxious to obtain the services of Reed and to benefit by his extensive connections, reputation and good will in the lubrication trade; its president saw fit to contact the plaintiff, an intimate friend of Reed, and to obtain plaintiff’s services for the purpose of inducing Reed to leave his own business and to join the defendant company; an oral contract was entered into by and between plaintiff and the defendant through its president, Mayor, whereby defendant agreed to compensate plaintiff for his services in accordance with the findings of the trial court; plaintiff was paid by defendant in accordance with the agreement beginning in 1940 and ending in 1945 when defendant breached the contract; the quarterly payments to plaintiff by the defendant in accordance with the commission agreed upon confirmed the contract made by its president if the contract was not previously valid and binding on the defendant; the contract benefited the de fendant; the contract required defendant to pay the commission to plaintiff so long as the product was sold by defendant; defendant had benefited substantially by increased trade and profits due to plaintiff’s performance of his agreement to persuade Reed to join defendant’s business; defendant would continue to profit as a result of plaintiff’s performance; it was not inequitable to require defendant to compensate plaintiff in accordance with its agreement so long as it sold the product.
The record in this case discloses not only that Mayor was president of the defendant corporation but that he was in fact and in reality its active business manager. In the absence of any showing of lack of authority it cannot be said that Mayor was not acting within the apparent scope of his authority. (Petroleum Co. v. Gas & Fuel Co., 112 Kan. 73, 76, 209 Pac. 826.) The payment to plaintiff of the commissions for a period of years by the corporation constituted ratification of the contract. Furthermore, having accepted the benefits of plaintiff’s performance of the contract the defendant cannot repudiate its obligations thereunder. (El Dorado Nat’l Bank v. Coca-Cola Bottling Co., 129 Kan. 272, 282 Pac. 579.)
With respect to the equities of the transaction it also should be observed defendant makes no contention plaintiff was guilty of any fraud or overreaching. It constitutes no defense to specific performance that plaintiff will reap a substantial income if defendant complies with its agreement. Defendant has profited substantially and stands to continue to do so as a result of plaintiff’s performance.
The compensation agreed upon did not require defendant to pay plaintiff a fixed and inequitable amount irrespective of the value of his services to defendant. The extent of plaintiff’s total compensation, under the agreement, rested entirely on the amount of lubricant sold. The success of the venture determined its value to both plaintiff and defendant. Such a contract will not be defeated on the ground it is inequitable. (Alexander v. Capital Paint Co., 136 Md. 658, 111 A. 140.) In that case it was aptly said:
“The appellee wanted the introduction, it was willing and expected to pay for it, and if instead of paying a definite sum for something which might prove to be of no value to it, it preferred to make the compensation contingent upon success and proportioned to the benefit it might derive from it, there was no reason why it could not do so.” (p. 668.)
Unless the consideration is so greatly disproportionate to value as to offend against fair dealing equitable relief will not be denied. (Greenwood v. Greenwood, 96 Kan. 591, 595, 152 Pac. 657.) See, also, Dent v. Morgan, 148 Kan. 97, 102-105, 79 P. 2d 875; 49 Am. Jur., Specific Performance, § 65. Moreover, defendant apparently did not consider the contract inequitable when it was made or long thereafter. ■
The record further discloses plaintiff rendered valuable services during his evening hours when not occupied with his own business in aiding Reed with correspondence and advertising matters, all of which were designed to increase the sale volume of the product. These were services he was not required to perform under the contract of employment which the trial court found had been made.
Defendant argues the duration of the contract was not specific. We think it was probably as specific as the inherent nature and character of the transaction permitted. The commission was based on a specific amount for each can of lubricant sold. The right to the commission, therefore, of necessity continued so long as the product was sold. It cannot be said the duration of the contract, under these circumstances, was not established by evidence which was definite, clear and convincing.
Plaintiff had no adequate remedy at law. Defendant breached the contract. How could any jury estimate with any degree of accuracy the damages plaintiff would suffer in the future by virtue of the breach? How could a jury know how many cans of the product would be sold in the future? Manifestly it could not. Then, too, multiplicity of suits involving constant expense to plaintiff would be required if he were obliged to bring an action at law at the end of each quarter when the payments were due or within the period of limitations. Furthermore, in order to determine the amount due an accounting would be required at the end of each period for which an action was filed.
It is always difficult to formulate a definite rule which will constitute a sufficient guide in all cases for determining whether an adequate remedy at law exists. The mere fact a party can avail himself of some relief at law does not preclude or defeat the jurisdiction of equity to decree specific performance. In order to defeat the jurisdiction of equity to decree specific performance of a contract, it is well established that the remedy afforded at law must be as plain, adequate, complete and efficient as the remedy of specific performance, and not circuitous or doubtful. (49 Am. Jur. 20, Specific Performance, § 11.) We think plaintiff quite properly enlisted the aid of equity.
We have carefully examined the record in this case relative to defendant’s contention that plaintiff cannot prevail for the reason he has not come into equity with clean hands. It would add nothing of importance to the opinion to narrate the testimony. Briefly stated defendant’s contention is plaintiff tried to persuade Reed to leave defendant’s business. Here again we are confronted with an exceedingly sharp conflict in the evidence. The trial court apparently was not impressed with defendant’s evidence on this or any other factual issue. (See, especially, findings 9, 13.) Furthermore, the fact remains that if plaintiff did make such an attempt he did not succeed and defendant was not damaged thereby. It has been held that where a defendant is not damaged or prejudiced by such an attempt the maxim of unclean hands may not be invoked as a defense. (19 Am. Jur. 328, Equity, § 474; 30 C. J. S., 491, Equity, § 98c; Eresch v. Braecklein, 133 F. 2d 12, 14.)
Defendant further contends, first, the only agreement made was to hire plaintiff as an advertising manager and, second, that such contract was terminable at the will of either party. Before treating the second point we must determine the first contention. The trouble with it is there was ample testimony to show that was not the contract under which plaintiff was hired or under which he had received his commission over a period of years and until it was breached by defendant. (See findings of fact.)
We come finally to defendant’s contention the court should have granted a new trial. Evidence was offered on the hearing for a new trial to show the contract on which plaintiff relied was executed after Reed had commenced his employment with defendant. The defendant asserts that evidence proved the testimony of plaintiff and Jehle, his partner in another business, pertaining to the contract on which plaintiff relied, was false and impossible, constituted perjury and ground for a new trial. (G. S. 1935, 60-3001, Sixth.)
If a trial court is convinced on evidence adduced on the hearing of a motion for new trial that perjury has been committed concerning material facts, a new trial should be granted even though by the exercise of due diligence the newly discovered evidence might have been produced at the trial. (Boxberger v. Texas Company, 156 Kan. 471, 134 P. 2d 644.) Defendant leans heavily on that case. It is true the trial court in the instant case did state, among other things, that the evidence denominated “newly discovered” was offered for the purpose of discrediting some testimony in the trial; that in its general character it was cumulative and impeaching but was accessible at the time of trial and with reasonable diligence could have been produced.
Defendant insists the motion for a new trial was overruled solely by reason of the fact the evidence was not produced at the trial. We think the contention is too broad. In the Boxberger case the trial court expressly found plaintiff and one of his principal witnesses had testified falsely concerning material facts. There is no similar finding in the instant case. Nor can it be inferred from anything contained in the instant record.
As previously indicated in this opinion the trial court clearly placed little or no credence on the testimony of defendant’s witnesses at the trial. Undoubtedly the court considered the testimony offered on the motion for a new trial as well as the contradictory testimony adduced at the trial. Having done so the court would not have been obliged to grant a new trial, if it did not believe plaintiff’s evidence was false, even if the case had been tried by a jury. This would be true unless the court were convinced the verdict was wrong in whole or in some material part. (G. S. 1935, 60-3004; King v. Consolidated Products Co., 159 Kan. 608, 157 P. 2d 541, 158 A. L. R. 1248.) A fortiori that is true where, as here, the original trial was by the court without a jury. (Pittman Co. v. Hayes, 98 Kan. 273, 157 Pac. 1193; Dinsmoor v. Hill, 164 Kan. 12,19,187 P. 2d 338.)
As previously stated the evidence adduced on the hearing of the motion for new trial was designed to show the contract on which plaintiff relied, if made, was not made until after Reed had joined defendant’s business and that plaintiff’s evidence on the trial therefore constituted perjury. There was ample testimony offered at the trial in conflict with that theory. For example, plaintiff’s evidence on the trial disclosed: Mayor had insisted that when Reed joined the business he should not be informed concerning the amount of plaintiff’s commission; plaintiff did not tell Reed; plaintiff had been receiving his commission regularly since sometime in 1940; in 1942 or 1943 Mayor informed plaintiff he had a talk with Reed; that Reed told him he thought plaintiff should be asked to help with correspondence and the advertising of the lubricant and should be paid for his services; Mayor then called plaintiff and told him the matter of his, plaintiff’s, commission was “all out in the open” now and he, plaintiff, should act as correspondent and advertising manager; plaintiff did so during evenings, after his own business hours; plaintiff continued to transact his own separate business as before; his commission under his original agreement with Mayor was continued and paid by defendant as before until June 19, 1945, when defendant breached the contract.
Of course, whatever plaintiff was willing to do to assist in bringing about an increase in the sales inured to his benefit. The trial court was required to consider this and other evidence offered at the trial on the question whether the contract relied on by plaintiff was made prior to Reed’s connection with defendant’s business and whether the correspondence and advertising work plaintiff was willing to undertake formed any part of the consideration for the original contract. (See finding No. 6.)
In view of all the testimony showing, or tending to show, plaintiff’s employment prior to Reed’s joining defendant’s business we cannot say the trial court abused sound judicial discretion in overruling the motion for a new trial.
Plaintiff directs attention to. some other reasons for not granting a new trial but we do not deem it necessary to treat them.
The numerous cases cited in the brief of counsel for defendant have been examined with care. They do not, in our opinion, require a reversal of the judgment or the granting of a new trial.
The judgment is affirmed.
“FINDINGS OF FACT AND CONCLUSIONS OF LAW
“1. In 1940, and for many years prior thereto, one Jack Reed had been engaged in the business of marketing a special lubricant for use in the hydraulic lift on Ford tractors. His connection with officials of the Ford Company and with a large number of the distributors and dealers enabled him to practically control the market of this special lubricant.
“2. In 1940 the defendant company, of which Harold Mayor was president and a substantial stockholder, was operating a small business which manufactured and sold oil and greases. This company attempted to manufacture and sell a hydraulic lubricant to Ford dealers but found Jack Reed had a virtual monopoly on that business in that dealers would purchase only such lubricants as Jack Reed recommended.
“3. Sometime in the year 1940, Mayor, having ascertained that the plaintiff Scott had been for many years an intimate friend of Jack Reed, requested Scott to attempt to persuade Jack Reed to come to Wichita and go to work for the defendant company. After preliminary negotiations an oral agreement was entered into between Scott and Mayor, acting for and on behalf of the defendant company, that if Scott would persuade Jack Reed to come to Wichita and go to work for the defendant company, the defendant company would pay Scott one-fourth of a cent per pound (or ten cents per can) upon all sales of the special lubricant, later known as Trac-Tr-Lube, which the defendant company thereafter made.
“4. Pursuant to said agreement, the plaintiff Scott exerted considerable time and efforts, including telephone calls and letters, and arranged introductions and meetings between Jack Reed and Mayor. As a result of the efforts of the plaintiff Scott, Jack Reed entered into an oral agreement with the defendant company under which that company was to manufacture the product thereafter known as Trac-Tr-Lube and Reed was to sell the same for the defendant company; defendant was given the formula or process and the right to manufacture the product, and was to receive the cost of all materials plus one cent a pound for overhead and one cent a pound profit. Reed was to have full charge of all sales for defendant company, and was to receive all profits above the amounts paid to defendant company as aforesaid.
“5. Under the agreement between Reed and the defendant, 7,000 pounds of Trac-Tr-Lube were manufactured and sold by defendant in 1940; sales increased year by year until in the 11 months of 1947 sales volume of the product amounted to 4,628,040 pounds, or at the rate of 5,013,710 pounds a year. Dollar sales value was $530 in 1940 and approximately $447,000 in 1947. Profits accruing to defendant corporation as the result of the agreement have exceeded $120,000 since 1940.
“6. Sometime after Jack Reed went to work for the defendant company, he inquired as to what Scott was receiving for his part in the venture. Mayor and Scott had previously agreed to keep their arrangement for payment secret from Reed, and Reed at that time had no knowledge of the oral contract between plaintiff and defendant company. Reed insisted that Scott be compensated, and at a meeting between Reed, Mayor, and other officers of the defendant company, it was agreed that plaintiff should be paid one-fourth of a cent a pound or ten cents per can upon all sales of Trac-Tr-Lube made by the defendant company. In addition, plaintiff Scott had heretofore assisted Jack Reed in certain advertising and sales letters in connection with Reed’s effort to promote sales for the defendant of Trac-Tr-Lube, and it was further agreed at this meeting that Scott should be asked by Reed to continue such services during his off hours from his regular employment. The result of this meeting was communicated to Scott. Thereafter Scott handled such correspondence as was referred to him to the entire satisfaction of Reed. In this connection the Court finds that the part-time employment of Scott to handle advertising and correspondence functions was a mere incidental matter and that Scott’s performance of such services formed no part of the consideration — namely, the procuring of Jack Reed to work for defendant company — for which he was to be paid one-fourth cent a pound upon all sales of Trac-Tr-Lube by defendant.
“7. During the period from December 31, 1940, to and including April 1, 1945, defendant paid Scott at the rate of ten cents per can on all Trac-Tr-Lube sold, payments being made by defendant to Scott quarterly.
“8. From the inception of his employment and arrangement with the defendant company, Jack Reed worked under an oral contract until April 5, 1945, when defendant company secured a written contract from Jack Reed. This contract was not introduced in evidence by the defendant company.
“9. In March or April, 1945, Jack Reed requested Scott to contribute two and one-half cents per can on Trac-Tr-Lube sold, to the salary and expenses of a salesman whom Reed and defendant desired to employ to cover additional territory, and Scott agreed to do so. However, on June 30, 1945, at the end of the second quarter of 1945, Mayor tendered Scott a check for the preceding quarter computed upon the basis of only two and one-half cents per can of Trac-Tr-Lube sold by the defendant during that quarter. In addition, Mayoh then notified Scott that his services and royalty payments were discontinued as of that date, giving as defendant’s reason for such action that Scott was trying to take business away from the defendant. The Court finds, however, that this was not the reason for defendant’s action, and that in fact said action was entirely unjustifiable.
“10. Due demand was made upon defendant by plaintiff for the performance of the oral contract between plaintiff and defendant, and, such demand being refused, the present suit followed.
“11. The oral contract between plaintiff and defendant is not indefinite or uncertain. In this connection the Court finds that the actual understanding and agreement of the parties was that defendant would pay the plaintff Scott one-fourth of a cent per pound for Trac-Tr-Lube sold by defendant at any time thereafter. Moreover, even if the contract were construed as being silent as to the period, during which such compensation was payable to plaintiff, the law presumes a contract of the character of the instant one and under the facts and circumstances of this case to be permanent and perpetual.
“12. Plaintiff’s remedy at law is inadequate, and specific performance for the enforcement of the oral contract is proper and should be decreed.
“13. The Court finds generally in favor of the plaintiff and against the defendant upon all questions and issues involved in this case, whether questions of fact or of law or mixed questions of fact and law.
“14. The Court specifically finds that plaintiff is entitled to recover from defendant:
“(a) Five cents per can on all cans of Trac-Tr-Lube sold by defendant between April 1, 1945, and July 1st, 1945.
“(b) Seven and one-half cents per can on all cans of Trac-Tr-Lube sold by defendant from and after 1 July, 1945', and to and including the date of this judgment.
“The Court further finds that the oral agreement of the parties as modified should be specifically enforced, and defendant should hereafter account for and pay to plaintiff seven and one-half cents per can (or 3i/16th cents per pound) on all Trac-Tr-Lube sold by the defendant in the future.” | [
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The opinion of the court was delivered by
Thiele, J.:
This was a proceeding commenced by Sonny Brown to establish a demand against the estate of Nannie Nicholson, deceased. From a judgment in his favor, her executrix appeals.
Nannie Nicholson died in August, 1945. At a date not disclosed by the abstracts, her will was admitted to probate and an executrix was appointed. On September 18, 1946, Sonny Brown, on occasion referred to as Sam Brown, filed his claim in the amount of $3,600 for labor performed and materials furnished from April 8, 1943, to July 31, 1945, in making improvements on premises owned by the deceased, described as 631 Winona avenue, Kansas City, Kan., and for two years taxes paid, under an oral contract with the deceased to reimburse him. The result in the probate court is not disclosed but there was an appeal to the district court. In that court the executrix filed an answer containing a general denial, and allegations that Brown 'married the daughter of the decedent on May 6, 1943, and immediately moved into the home of Nannie Nicholson and lived with her and her daughter as a member of the family during the life of Nannie Nicholson, who died August 1, 1945, and an allegation the claim was barred by the statute of limitations. The matter was tried by a jury. At the conclusion of the evidence the executrix moved for an order requiring the claimant to elect whether he relied upon an express or implied contract, and claimant elected to stand on an express contract. Under instructions, of which no complaint is made, the jury returned a verdict in favor of the claimant for $1,350 and answered five special questions as follows:
“1. Did Sam Brown pay any taxes on the property owned by Nannie Nicholson at 631 Winona Avenue, Kansas City, Kansas? A. Yes.
“2. After the marriage of Sam Brown and Ella Richards on May 6, 1943, did Nannie Nicholson request him not to buy a place? A. Yes.
“3. Was the house and buildings on the property known as 631 Winona Avenue, at the time of the marriage of Ella Richards, daughter of Nannie Nicholson, to Sam Brown, in need of repair? A. Yes.
“4. Was there an agreement between Nannie Nicholson, deceased, and the claimant, Sam Brown, that Sam Brown was to furnish money and material in making improvements on the property owned by Nannie Nicholson, deceased? A. Yes.
“5. If you answer the preceding question ‘yes,’ then state if said agreement provided that Sam Brown was to receive compensation out of the property owned by Nannie Nicholson or her estate for all money and anything furnished by him in making said improvements? A. Yes.”
No motion was made to set aside any of the above answers. The executrix did, however, file her motion for judgment in her favor and against claimant, notwithstanding the verdict of the jury, and her motion for a new trial. Both of these motions were denied and she appealed to this court.
Thereafter the parties entered into a stipulation “for the purpose of saving expense in transcript and abstract on this appeal” as follows, it then being stated that claimant produced evidence as to labor performed and materials furnished in the total amount of $3,512.89, that all was used in making improvements on the premises owned by deceased between May 1, 1943, and May 1, 1945, “and during all of said time the said Minnie (Nannie) Nicholson lived in said premises and said labor was performed and material furnished with her knowledge and consent by claimant.” That Sam (Sonny) Brown resided in said premises from May 6, 1943, until after the death of Nannie Nicholson, and that the stipulation, together with evidence shown by the transcript is all of the evidence necessary to determine the issues raised on the appeal.
Appellant’s specifications of error are indefinite in nature, and are not followed out in her brief, which is confined solely to a discussion whether the appellee’s evidence was sufficient to prove an enforceable contract. Ignoring any rule that judgment having been rendered in favor of appellee, any conflicts in the evidence are to be resolved in his favor, or any rule that the answers returned by the jury to special questions must stand in the absence of any attack thereon, and also the post-trial stipulation mentioned above, appellant states the facts in such manner that all conflicts are resolved in her favor. In her argument she comments on the fact there must be two parties to a contract, and that it must be certain in its terms, and supported by a consideration, and then argues that Nannie Nicholson did not agree to pay Brown anything; that Brown did not agree to do anything, and that the consideration, if there was one, was for things done in the past and there was no evidence the contract was to be retroactive in effect. The basis for this last contention is that the contract was not made until May, 1945. It is true one witness, at one time, did fix that as the date of a conversation with Nannie Nicholson. The same witness stated at other times the date was May, 1943, but it might have been 1943 or 1944. The husband of this witness fixed the date positively as May, 1944. Appellant directs our attention to Griffith v. Robertson, 73 Kan. 666, 84 Pac. 748, where it was said that in compliance with a public policy to protect and preserve the relations which belong to a home and the family fireside, the law presumes services rendered by one member to another to be from considerations of filial affection and duty. That case further holds, however, that such a presumption of fact may be overcome and a contract, if any existed, may be proved by any competent evidence; that it is not essential that there be formal offer and acceptance, but in the absence of more direct evidence, the fact may be established by circumstances. It may here be remarked the above is not an isolated statement of the law applicable. See Logston v. Needham, 138 Kan. 439, 26 P. 2d 443; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006; and Nelson v. Peterson, 147 Kan. 507, 78 P. 2d 20, and cases cited. In the last cited case it was said:
“In order to recover for the services, the plaintiff must affirmatively show either an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as exhibited a reasonable and proper expectation that there would be compensation (citing cases).” (1. c. 510.)
In view of the stipulation above made as to what the evidence showed, we shall make only a brief reference to the evidence. A. W. Spiller, a minister, testified as to the condition of the house and the improvements made on it by Sonny Brown, and that in May, 1944, he had a conversation with Nannie Nicholson in which she said that Sonny was talking about buying a house and she prevailed on him not to do so; that he spent money on her house and she wanted him to stay there and enjoy himself and if anything happened to her the house would be his. Mrs. Spiller, testifying to what was probably the same conversation, stated that Nannie Nicholson, Sonny Brown and Ella Brown were at her house for dinner and that Mrs. Nicholson spoke about Sonny Brown’s fixing up the house; that he was talking about buying a home and that she didn’t want him to; and “I want you to stay here and live it out, and get your pay out of this, and if I die this home is yours and Ella’s, and I do want you to get some of your money out of it.” Mrs. Nicholson also told the witness that she was behind with her taxes and that Brown paid them.
Under the test fixed by our decisions, the evidence supported the jury’s answers to special questions, and its general verdict, and the judgment of the trial court.
No error appearing, 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 originally commenced against Jack N. Sugg, Neal 0. Williams, J. S. Bacon and C. W. Bacon, to recover possession of an automobile hereafter referred to as the Ford car. Sugg is said to be a fugitive from justice, and the abstract does not disclose that any service of summons was had upon him. If Bacon and Bacon filed any pleadings or made any defense, the same are not shown. Before trial Williams died and the action was revived against the administrator of his estate and his heirs, and they answered and defended the action and are hereafter referred to as the defendants.
We need not review the pleadings. The action was tried on an agreed statement of facts, which for our purposes is summarized.
One Sexton, then a resident of Joplin, Mo., and the owner of the Ford car, on March 12, 1947, applied for and received a certificate of title thereto from the proper official in Missouri; on August 25, 1947, Sexton, for a valuable consideration, sold and delivered the Ford car to one Lyster, a registered used motor vehicle dealer at Galena, Kan., and at that time delivered to Lyster the certificate of title to the car, the same being assigned in blank; at that time Sexton called a notary public of Jasper county, Missouri, who took the oath of Sexton to the execution and signing of the assignment of the certificate of title, but through oversight not then noticed by either Sexton or Lyster, the notary public failed to sign his name or attach his official seal; on August 26, 1947, Lyster sold and delivered the Ford car to the plaintiff Felts for the sum of $1,150 and delivered the certificate of title endorsed in blank to Felts, who was a registered used motor vehicle dealér at Pittsburg, Kan.; on September 19, 1947, Felts had the Ford car parked at his place of business at Pittsburg, with a “For Sale” sign on it, and a man representing himself to be Sugg came into Felts’ place of business and stated he was a registered used car dealer at Eureka, Kan., and that he had been at an auction sale at Joplin, Mo., and had purchased a Chevrolet car; that he had a buyer for a Ford car like that of Felts and after some dealing agreed to buy the Felts Ford car for $1,250, but that he had the money in the bank and would have to give a check which would be paid when presented. Details need not be stated, but Felts showed Sugg his certificate of title, and it was agreed that Sugg should give a check, and that the check with the certificate of title should be sent to the bank, the certificate of title to be delivered to Sugg by the bank when the check was paid; at that time Felts delivered the Ford car to Sugg who tied it to the rear of his Chevrolet and drove away; in due course the check, with certificate of title attached, reached the bank in Eureka on which it was drawn, and on September 22, 1947, the check was protested and payment refused because of insufficient funds of Sugg, and the check and certificate of title were ultimately returned to Felts who has never received any consideration from Sugg or anyone else for the Ford car; that at all times since August 26, 1947, ex cept while in transit to the banks, the certificate of title has been in possession of Felts, and.neither he nor anyone for him ever delivered to Sugg any bill of sale or any certificate of title or any assignment of either; that on September 20, 1947, Sugg came to El Dorado to the place of business of Neal 0. Williams, having in his possession the Ford car and at that time offered to Williams a list of six automobiles at prices noted which he offered to sell to Williams; at that time Sugg had one other automobile with him; on that date Williams agreed to purchase the Ford car for $1,050 and gave Sugg a check therefor; at that time Sugg exhibited some certificates of title to Williams and his son and to another named person, but none were able to state that any certificate of title was to the Ford car; Sugg retained the certificate of title exhibited to Williams and told Williams he would have it reissued and would then assign or transfer it to Williams; neither Sugg nor anyone for him has furnished Williams with a certificate of title or bill of sale to the Ford car. Sugg cashed Williams’ check for $1,050.
At the trial the court heard evidence as well as the agreed facts and on October 27, 1948; found that at the time demand was made on defendants, plaintiff was the owner and entitled to the immediate possession of the Ford car; that when demand was made the car was worth $1,200 but that there had been a general decrease in values and that on the day of the trial it was worth $1,150; that the fair and reasonable value of the use of the car from date of demand to date of trial, 390 days, was one dollar per day, and that after plaintiff took the car under his replevin order, the defendants had given a redelivery bond and at all times since had had the use and possession of the car, and it rendered judgment that plaintiff was entitled to the immediate possession of the Ford car and to the sum of $440 and interest from October 27, 1948, and the further sum of one dollar per day after October 27, 1948, until possession was returned to the plaintiff, and for costs. Defendants’ motion for a new trial was overruled and in due time they perfected their appeal to this court.
In their brief defendants state that the crux of their case is: Can a plaintiff who obtained possession of an automobile to which he had not received either legal or equitable title, successfully prosecute an action in replevin against a subsequent possessor who has no title, either legal or equitable, but who, for value, obtains the automobile from the person to whom the plaintiff relinquished possession?
In their argument on that question the defendants direct our attention to G. S. 1947 Supp. 8-135 (c) (6) that it shall be unlawful for any person to buy or sell any vehicle required to be registered unless there shall pass a certificate of title, with an assignment, and so forth, as provided in the statute, and to G. S. 1947 Supp. 8-129 (b) pertaining to “specially constructed, reconstructed or foreign” vehicles, and to our decisions interpreting the statutes, viz., Sims v. Sugg, 165 Kan. 489, 196.P. 2d 191; Farmers & Merchants State Bank v. Hunter, 166 Kan. 52, 199 P. 2d 196; Bankers Investment Co. v. Meeker, 166 Kan. 209, 201 P. 2d 117; and stressing language therein that the sale of an automobile, unaccompanied by delivery of a certificate of title and an assignment in accord with the statutes is fraudulent and void and that a purchaser under such a sale obtains no title either legal or equitable, they contend that plaintiff may not maintain replevin for the reason that under the statute (G. S. 1935, 60-1002) he is not the owner of the property nor has he any special ownership or interest therein; that considering the transaction by which he obtained possession of the Ford car as.fraudulent and void, he was not the owner of the automobile; and that plaintiff never, at any time, had more than a right of possession and he had that right only as long as he retained possession.
It is correct to say that a party may not maintain an action in replevin unless he plead and prove that he is the owner or has a special ownership or interest therein, and the primary question is, did the proof so show. It is likewise true that in the cases cited above there is language that the sale of a motor vehicle, unaccompanied by delivery of a certificate of title and an assignment, as provided by statute, is fraudulent and void, and that a purchaser under such a sale obtains no title either legal or equitable. Without reciting the facts of those cases or reviewing them to show why the statements were so made, we are of opinion that if the statements there made are to be given universal application they are too broad and should not be followed, for even though the sale be declared fraudulent and void, equitable considerations may enter into any controversy which may arise out of any such transaction, and be considered if necessary to a complete determination of the rights of various claimants.
Where a buyer for value purchases a motor vehicle from a seller .and the vehicle is delivered to him with a certificate of title and ■an assignment thereof, even though the certificate of title and the assignment thereof are incomplete and defective, he does acquire •an interest in the vehicle, which, under proper circumstances, he •can protect. For instance, in such case he may compel the seller to furnish and deliver to him a certificate of title and an assignment thereof that fully complies with statutory requirements. The motor vehicle having been delivered to him, he would have such an interest that he could resist any action by his seller to recover possession if the seller relied solely on the ground that no sufficient ■certificate of title and assignment had been delivered to the buyer. The buyer would also have such an interest that he could maintain his right of possession against anyone not having a better title, ■otherwise he could not recover possession from one who borrowed the motor vehicle, or from a trespasser or from a thief. There is mothing in the statutes that because a sale between individuals of .a motor vehicle without compliance is fraudulent and void, it is to be interpreted as applying to any persons other than the parties to the transaction or those in privity with them.
In the instant case plaintiff paid full value for the Ford car and received the car and a defective certificate of title and an assignment. He lost possession of the car through the fraudulent acts of .Sugg, but he never surrendered to Sugg any certificate of title or .assignment, and certainly as against Sugg he could have maintained an action to recover possession. Defendants recognize they .are in no better position than Sugg, and that they have no right, title or interest in the Ford car — their contention is merely that plaintiff has no right, title or interest therein and therefore cannot maintain his action in replevin against them. That contention ■cannot be sustained.
Defendants also make some contention that in his petition plaintiff pleaded only that he was the owner and not that he had a •special ownership, and that, for reasons above noted, he is not the •owner and cannot rely upon any special ownership, and our attention is directed to authorities as to the sufficiency of proof in actions in replevin.
The plaintiff objects to any consideration of the above contention, asserting it was not raised in the trial court, where he might have amended to conform to proof (see G. S. 1935, 60-759, and cases cited in annotations) and that the contention is made too late. We'shall not place our conclusion on that ground, however, but on the ground, also urged, that although the pleadings may have been defective or insufficient, the case having been submitted on an agreed statement of facts, the trial court could render such a judgment as those facts warranted. See Reynolds v. Reynolds, 30 Kan. 91, 1 Pac. 388; and Peters v. Bank, 106 Kan. 1, 185 Pac. 892.
Defendants also contend that even if it be admitted that plaintiff obtained some minute form of interest in the Eord car when he obtained it from Lyster, he voluntarily surrendered possession to Sugg and thus permitted Sugg to defraud Williams; that he is not in court with “clean hands” and the rule should be applied that when one of two innocent persons must lose through the misdeeds of others, the one whose act or omission permits the loss to occur must stand the consequences (Wiseman v. Richardson, 154 Kan. 245, 118 P. 2d 605). Defendants argue that plaintiff Felts and Williams were equally at fault and that each should have known better than to perform as he did — plaintiff by purchasing the Ford car and accepting a defective certificate of title and assignment thereof — Williams by purchasing without receiving any certificate of title whatever. We fail to see where the parties are equally innocent or equally at fault. It is true that plaintiff was at least remiss in not procuring a fully sufficient certificate of title and assignment thereof, but that he did receive a certificate and assignment stands forth. Under it possession of the car was given to him and that possession he retained until it was taken away by the fraudulent act of Sugg. When Williams got the Ford car from Sugg he knew that Sugg had no certificate of title and there is no pretense Sugg or anyone for him ever delivered to Williams any documentary evidence of title of any kind or character. It will not do to say that the failure of Lyster, plaintiff’s vendor, to give a sufficient certificate of title and assignment thereof to plaintiff was such an act or omission that Williams was an innocent person along with plaintiff and that plaintiff’s act caused Williams’ loss. Williams’ act in buying from Sugg and not requiring a certificate of title and assignment, even though defective, was in legal effect about the same as though he had purchased a stolen car. The defendants’ contention cannot be sustained.
And finally, defendants contend that in any event the trial court erred in that part,, of its judgment allowing recovery for the unlawful detention of the Ford car in the amount of $440 for the reason that that sum exceeds the amount of damages pleaded. Reference to the record shows that plaintiff alleged he had sustained damages of $250 by reason of unlawful detention of the car. The record does not disclose that plaintiff ever sought to amend his petition to cover damages accruing after the filing of his petition or to conform to proof. The general rule is that a judgment for more than the pleadings show the plaintiff is entitled to recover is erroneous (Loper v. The State, 48 Kan. 540, 29 Pac. 687) and has been followed in actions and judgments in replevin (Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379). See, also, Pratt v. Brockett, 20 Kan. 201; Atchison T. & S. F. R. Co. v. Combs, 25 Kan. 729; and Kansas City L. & S. R. Co. v. Richolson, 31 Kan. 28, 1 Pac. 138; all to the effect that a judgment in excess of the amount claimed is erroneous to the extent of the excess. It follows that the judgment should have been for the sum of $250 and no more.
In view of what has been said we do not find it necessary to discuss plaintiff’s contentions that under the statutes pertaining to sales of motor vehicles, registered used car dealers are relieved from registering cars and obtaining and delivering certificates of titles and assignments to the same extent as is required of other persons.
The judgment of the trial court is modified by reducing the amount of the money judgment to $250 and, as modified, is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to enjoin the defendant from operating a café, and for damages. The trial court overruled defendant’s demurrer to plaintiffs’ petition. Defendant has appealed.
The petition alleged the residence of the parties at Coffeyville and that plaintiffs were the joint owners of a restaurant in Coffey-ville, which they had purchased from defendant. It alleged that a restaurant had been in operation at the same address in Coffeyville for over forty years and for fifteen years had been commonly known as “Earl’s Café”; that the same employees had worked for the defendant at that restaurant for some seventeen or eighteen years; that defendant offered to sell the business and good will to the plaintiffs and represented that in addition to being the sole owner of Earl’s Café he was a silent partner in the Alvin Café; that he took no active part in the operation of this business; that his health made it necessary for him to retire from the active operation of the restaurant. The petition also alleged that on May 3, 1948, relying on these representations, plaintiffs purchased Earl’s Café from defendant for $10,500 and defendant signed a sales contract, in which he agreed as a part of the consideration not to engage in the café or eating business in Coffeyville for a period of five years except for his interest in the Alvin Café. (A copy of the written contract was attached.) The petition also alleged that prior to the payment of the purchase price plaintiffs and defendant talked with defendant’s employees and they were all willing to continue working for the plaintiffs as they had been working for the defendant; that plaintiffs took possession of the restaurant and had been operating it ever since until the filing of the action. The petition further alleged that on and until about June 7, 1948, plaintiffs enjoyed the business and good will purchased from the defendant and the regular employees continued to work for them as they had for the defendant and that this condition would have continued except for the acts of defendant alleged. The petition further alleged that immediately after the sale to the plaintiffs the defendant in violation of the terms of the contract bought the interests of the other owners in the Alvin Café; took over its complete ownership and management and induced employees who were working for plaintiffs and had previously worked for the defendant at Earl’s Café to leave plaintiffs’ place of business and work for the defendant; that he had offered these employees increases in wages and represented that plaintiffs would be forced to close in a short time on account of the defendant’s taking the business away from them. The petition further alleged that the acts of defendant in violation of the sales agreement in operating a café in competition with the plaintiffs and hiring plaintiffs’ employees had caused plaintiffs great damage and that since June 7, 1948, plaintiffs had been damaged in the sum of $125 per week on account of these violations and the defendant had continued to violate the agreement and was continuing to cause plaintiffs further damage, for which plaintiffs could not be compensated and for which they did not have an adequate remedy at law. The petition alleged further that as a result of defendant’s breach of his contract that plaintiffs have been damaged and are entitled to the sum of $2,375 up to October 18, 1948, and were entitled to recover the additional sum of $125 per week until defendant ceased to violate the contract and in addition plaintiffs are entitled to an injunction for a period of five years from May 3,1948, enjoining the defendant or anyone acting in his behalf from hiring employees who were working for him in the business sold to the plaintiffs and from operating the café purchased by him or from doing any acts which prevented the plaintiffs from enjoying the benefits and good will of the business purchased by them to the same extent as were enjoyed by the defendant prior to the sale to the plaintiffs. The prayer was for the damages alleged and for an injunction.
The sales contract is short and will be set out verbatim, as follows:
Exhibit A
“Sales Contract
“Dated at Coffeyville, Kansas, this 3rd day of May 1948.
“I, Earl Hackney, of Coffeyville, Kansas, warrant that I am the sole owner of all equipment, dishes and other operating equipment of a place of business popularly known as ‘Earl’s Café’, but also known under the name of Earl Hackney Café, located at 910 Walnut Street, Coffeyville, Kansas. I war rant that all equipment, dishes, and other operating equipment are debt free, and, will agree to reimburse the purchasers to be named later for any unpaid bills for the above named items.
“I, Earl Hackney, do hereby sell, assign, and warrant all of the above equipment located at 910 Walnut Street, Coffeyville, Kansas, under the Kansas Bulk Sales Law to Maurice and Ruth Barton of Coffeyville, Kansas, for the sum of $10,500.00 (Ten Thousand Five Hundred Dollars).
“I, Earl Hackney, do hereby further agree that I will not actively engage in the café or eating business in Coffeyville for a period of 5 (Five) years, excepting for my interest in the Alvin Café located in Coffeyville, Kansas, and, as has been fully explained to Maurice and Ruth Barton prior to the date of this sale.”
The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiffs and against the defendant. The court overruled this demurrer and defendant has appealed.
The assignments of error are that the trial court erred in overruling the demurrer of defendant to plaintiffs’ petition: First, because by the terms of the written contract the defendant'reserved the right to operate the Alvin Café and that the contract could not be varied by parol agreements alleged by plaintiffs in their petition; second, that part of the written contract that purported to prohibit the defendant from engaging in the café or eating business in the City of Coffeyville was without consideration; and third, that the written contract between the parties, if construed according to the contention of the plaintiffs, was in violation of G. S. 1935, 50-112, and is void as being in restraint of trade and free competition.
On the first point defendant argues that the “words excepting for my interest in the Alvin Café” took out of the promise, not to actively engage in the café business in Coffeyville for five years, any activity in which he might engage with reference to the Alvin Café, that is, construing the contract as written he argues he made no promise not to operate the Alvin Café, as has been fully explained to Maurice and Ruth Barton prior to the date of this sale. He realizes the plaintiffs pleaded in their petition that defendant represented to them at the time the sale was made that he was a silent partner in the Alvin Café and owned only a small interest in it and took no active part in its operation. He argues, however, that plaintiffs cannot prove these and similar allegations because to permit them to do so would be to permit them to vary the express terms of a written contract. He cites many authorities where we have held that this cannot be done. There is no doubt about that being the rule. We must examine this record, however, to ascertain whether this evidence would vary the terms of the contract. Defendant promised not to engage in the eating business in Coffeyville for five years except for his interest in the Alvin Café. What was that interest? Evidently the parties had discussed it because the written contract speaks of an explanation. Under such circumstances, parol evidence is admissible to show an oral contract made at the same time the written contract was entered into where the oral contract did not vary the terms of the written contract.
In Weeks v. Medler, 20 Kan. 57, the action was to collect a note given for the purchase of a sewing machine. The note was given in connection with a written contract of sale. One defense pleaded was that at the time the written contract was entered into the payee of the note agreed to furnish the defendant all the material necessary for the manufacture of quilts at a specified price sufficient to pay for the machine and that payment of the notes was to be demanded only in case of a failure of the defendant to manufacture the material furnished into quilts and the plaintiff had refused to deliver the material, even though the defendant had demanded it. The answer further pleaded that the foregoing was an oral contract. The trial court rejected all evidence of this contract on the ground that to admit it would be to vary the terms of a written contract. We held this was error and said:
“It may be conceded that some of the allegations in this defense are of matters conflicting with the terms of the written contract; but still we think it is distinctly averred that there was a cotemporaneous contract for work, a contract separate and independent from the contract evidenced by the note, and in no respects contradictory and conflicting with its terms.”
Rice v. Rice, 101 Kan. 20, 165 Pac. 799, was an action on a note and to foreclose a mortgage. The defense pleaded was the property actually was a gift to the mortgagor and his wife and the note and mortgage was given as an accommodation to the mortgagee. The trial court permitted this defense to be proved and gave judgment in favor of the defendants. On appeal the plaintiff argued that the trial court erred in permitting the defense to be proved because it had the effect of varying the terms of the note and mortgage. We said:
“The evidence, however, was not offered for that purpose. The defendants concede that the instruments are precisely what the maker and the payee in tended them to be — a note and mortgage, which in the hands of a holder in due course would be enforceable against the maker and against the property described in the mortgage.”
See, also, Home Hardware & Imp. Co. v. Denniston, 136 Kan. 838, 18 P. 2d 135.
Aside from the foregoing authorities, there is a rule to the effect that where a contract shows on its face that it is incomplete or ambiguous parol evidence may be received not to vary or contradict its terms but to show the complete or actual agreement. (See Loflin v. Ault, 149 Kan. 340, 87 P. 2d 524.)
In Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703, the action involved an interpretation of an escrow agreement and a written contract for the purchase of an assignment of an oil and gas lease. The trial court admitted oral testimony as to the time when the assignment was to be furnished. On appeal it was argued that this was error. We said:
“It is well established that when a written contract is silent as to a particular matter discussed and agreed upon between the parties, parol evidence may be offered on that matter without varying the written contract.”
The reasoning of that opinion and of those cited by the court in support of it is apropos here. The contract in question spoke of the interest of defendant in the Alvin Café. It would be impossible to know what that interest was, so that the contract might be enforced without oral testimony.
See, also, Kanzius v. Jenkins, 98 Kan. 94, 157 Pac. 417.
It is clear that proof of the matter pleaded in the petition would not vary the terms of the written contract.
Defendant next argues that his demurrer should have been sustained because there was no consideration for his contract to stay out of the restaurant business. He argues that the only consideration mentioned in the contract was $10,500 paid by plaintiffs for the restaurant and that this consideration was for the equipment in the restaurant and nothing else. An examination of this contract discloses that the agreement of defendant to stay out of the restaurant business was a part of the contract of sale. Under such, circumstances everything to which plaintiffs claim they were entitled was part of the consideration for which the $10,500 was paid. The whole transaction is all part of one indivisible contract.
Defendant next argues that the contract is unenforceable because it is in violation of G. S. 1935, 50-112. That section provides as follows:
“That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys’ or doctors’ fees, and all arrangements, contracts, agreements, trusts" or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void.”
This point is not good. That statute was not passed with the intention of prohibiting such a contract as this made in connection with the sale of a business. We dealt with a similar situation in Mills v. Cleveland, 87 Kan. 549, 125 Pac. 58. The statute was in effect at that time. A doctor used formulas prepared by himself in the treatment of patients. He sold his interests in the practice to Thompson and agreed not to practice or attempt to practice the treatment of these diseases except for certain reservations. He maintained his office with another doctor and pretended he was treating diseases other than those he had agreed not to treat. The buyer brought an action to enjoin him and his partner from doing any act which prevented the buyer from enjoying the benefits of such influence and good will as he had purchased to the same extent as they had enjoyed there before the sale. We said:
“This court has taken the view that contracts in general restraint of that natural rivalry which ordinarily exists in trade and other business pursuits are inimical to the public welfare, and that the decisive test of the validity of less restrictive contracts is the resulting injury to the public.”
In that opinion we distinguished such a contract and one that stifled competition between public service and like corporations. We held that the enforceability of such a contract was to be determined by the reasonableness of its provisions under all the surrounding facts and circumstances.
See, also, Pohlman v. Dawson, 63 Kan. 471, 65 Pac. 689; also Fox v. Barbee, 94 Kan. 212, 146 Pac. 364. In Heckard v. Park, 164 Kan. 216, 188 P. 2d 926, we again reasserted the rule that such contracts are to be examined with the idea of ascertaining whether the restraint involved is reasonable under all the facts and circumstances. In that case a young singer had signed a contract with a trainer and teacher wherein she agreed:
“(A) Not to employ or accept tutelage from any musical instructor without plaintiff’s written consent.
“(B) To engage plaintiff’s services as defendant’s exclusive manager and agent, with authority to contract for all performances to be rendered by defendant; and in this connection, to give such performances and auditions as plaintiff might request and to refrain from giving performances without plaintiff’s written consent; to entrust all publicity to plaintiff and not to solicit or procure publicity without the written approval of plaintiff.
“(C) To conduct herself properly and with fitting decorum, avoiding all unfavorable publicity and notoriety.”
It was argued that this agreement was in violation of G. S. 1935, 50-112. We said in Heckard v. Park, supra:
“The old rule as to limitations of time and space has given way to that of reasonableness. (Fox v. Barbee, 94 Kan. 212, 146 Pac. 364.) The question of reasonableness of a contract of this character frequently depends upon fundamental elements of common fairness in view of the facts and circumstances of the parties.”
We see nothing unreasonable about the interpretation put on the contract by plaintiffs in this petition.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for divorce, custody of a minor child and allowance of doctor bills and hospital expenses incurred in connection with the birth of a child.
The court found both parties were guilty of extreme cruelty towards each other and it granted a divorce to each of them from the other on that ground. No question is raised relative to the validity of that part of the judgment. On September 15, 1948, the court made conclusions of fact and law, as follows:
“Conclusions of Fact
“1. The plaintiff and defendant were lawfully married at White City, Kansas, on the 19th day of March, 1940, and since said time have continued to be wife and husband.
“2. Some time after their marriage plaintiff was employed, at Ft. Riley, Kansas, as a civilian employee, commuting each day from their farm home in Morris County, to and from Ft. Riley, which continued about 3 years.
“3. During the time from the date of their marriage up to the latter part of 1945 or early in 1946, plaintiff and defendant continued to live together in peace and harmony, but beginning from the latter time difficulties arose between them, which culminated in their separation in the middle of December, 1946, when plaintiff left their farm home and moved to Junction City, Kansas.
“4. On the 28th day of January, 1947, the plaintiff and defendant entered into a property settlement whereby plaintiff received the sum of $1,000.00 and relinquished all rights to the real estate owned by the defendant and also the household goods and farm machinery. ' -
“5. Sometime in March, 1947, the plaintiff returned to the home of the defendant and remained for several^days, ostensibly in an effort to effect a reconciliation with him, but after a few days she again left the home and returned to Junction City.
“6. Some time in April, 1947, the plaintiff was informed by Dr. Bowers, of White City, Kansas, with whom she had been consulting for some little time, that she was pregnant with child but she did not inform plaintiff of that fact until some time the latter part of May, 1947.
“7. On the 10th day of May, 1947, plaintiff and defendant entered into an additional stipulation of property settlement by which plaintiff received an additional sum of $1,696.00 in addition to the $1,000.00 she had received under the settlement of January 28, 1947, and in addition thereto certain household goods enumerated in the agreement.
“8. On December 9, 1947, the plaintiff gave birth to a child, to whom she gave the name of Gayla Loree Anderson.
“9. Talcing into consideration the mortgages and other outstanding indebtedness of the defendant, the plaintiff in the two settlements of January 28, and May 10, 1947, has received substantially more than half of the net worth of the defendant.
“10. Substantial and corroborated evidence has been received in evidence that the defendant has been guilty of extreme cruelty toward the plaintiff, and the plaintiff is therefore entitled to a divorce from the defendant.
“11. Substantial and corroborated evidence has been received in evidence that the plaintiff has been guilty of extreme cruelty and gross neglect of duty toward the defendant and that by reason thereof the defendant is entitled to a divorce from the plaintiff.
“conclusions op law
“1. The child, Gayla Loree Anderson, having been born in lawful wedlock, is the legitimate child of the plaintiff and defendant.
“2. A decree of divorce should be issued to each party; divorcing each party from the other.
“3. The settlement of May 10, 1947, is adjudged to be a final settlement between the parties, fairly entered into, and in full contemplation of the impending birth of the said child, and was intended to recompense the plaintiff for all expenses, incident to the birth of said child, and for the support of the said child.”
On September 17, 1948, plaintiff, appellant, filed her motion for a new trial in which she requested the court to vacate and set aside conclusion of law- No. 3 on the ground that portion of the judgment was contrary to the evidence and that a new trial be granted as to that portion of the decision. On September 18 appellant filed her supplemental motion for a new trial, challenging conclusions of fact No. 2, 5, 6, 8 and 9 for the reason they were contrary to the evidence. On October 7,1948, the former motions came on for hearing. The trial court reconsidered them and amended conclusions of fact No. 2 and 8. (The amended findings are those previously set out.) Otherwise the motions were overruled. On October 21, 1948, appellant perfected her appeal from the order of October 7 overruling her motion to vacate conclusion of fact No. 9 and conclusion of law No. 3.
Appellee, the husband, first argues the appeal is not in time and should be dismissed. The contention is based on the theory the appeal is solely from the order overruling appellant’s motion for a new trial and in no respect from the conclusions of fact or law made on September 15, 1948. We cannot agree. Both motions for a new trial, filed in time, challenged both conclusions of fact and law. The court reexamined the record and reconsidered the evidence in response "to the motions for new trial which challenged the conclusions of fact as well as the conclusions of law. Pursuant to such reexamination and reconsideration it amended certain conclusions of fact on October 7, 1948, and in other respects overruled the motion. Under these circumstances we have not only a reexamination and reconsideration of the facts but amendments touching such facts. Under these circumstances the appeal on October 21 from the challenged conclusions of fact and law and the overruling of the motions for a new trial entitles appellant to a review of both conclusions of law and fact. (In re Estate of Harris, 166 Kan. 368, 370, 201 P. 2d 1062.)
There is an apparent clerical error in conclusion of fact No. 6 as appellant’s own evidence clearly discloses she notified appellee she was pregnant on May 10, the date the second contract was signed.
Appellant complains conclusion of law No. 3 is incorrect in that it is predicated on the erroneous fact the contract of May 10 was made in contemplation of the impending birth of the child. We cannot agree. There is ample testimony that contract was made in contemplation of the birth of the child and in contemplation of added expenses incident to its birth. The contract was entered into after it was definitely understood appellant was pregnant. The increased allowances to appellant under that contract, in addition to the amounts allowed her under the previous contract of January 28, were made in view of the impending birth of the child and the expenses to be incurred in connection therewith.
Appellee had previously refused to defray the expenses incident to the birth of the child. In view of the record before us he may well have had ample moral, if not legal, reason for his refusal to do so. At any rate we think the trial court understood that situation quite thoroughly and was justified in concluding the last contract was intended to recompense appellant for all expenses incident to the birth of the child.
This brings us to a consideration of the contract of May 10 insofar as provision for the support of the child is concerned. It may well be that this, too, was contemplated in the agreement as the trial court concluded. Our difficulty with the point is, first, that insofar as the contract constitutes an agreement between the parents it does not relieve the father from his statutory duty to support the child. The court found the child was born in wedlock. The second difficulty is that the law requires the trial court, when a divorce is granted, to make provision for the support of minor children. G. S. 1935, 60-1510, provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
Neither the agreement of the parties, approved by the court, nor a separate order of the court made such provision. The statute is mandatory. Appellee argues the wife, in addition to amounts allowed her under the contract of May 10, is earning a substantial salary and that she, as well as the husband, has a duty with respect to the support of the child. We need not pursue that contention now. Of course, in determining the nature of the support order the court had, and will continue to have, the power to take into consideration all proper facts and circumstances in the premises. Just what that order should be in view of all the circumstances of this particular case is not a question now before us and manifestly we will not pass on it. Our present concern is with the mandatory provision of the law which requires a court order for the support of children when a divorce is granted.
The case is remanded with directions to the trial court to make an order for the support of the child pursuant to the requirements of G. S. 1935, 60-1510. In all other respects the judgment of the trial court is affirmed. | [
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Opinion by
Simpson, C.:
The defendant was charged by information with the illegal sale of intoxicating liquor. The information contained 10 counts, and at the April term, 1891, he was convicted on the first and second counts, sentenced to confinement in the county jail for 30 days on each count, and to pay a fine of $350 on each count, and to pay the costs of prosecution. From this judgment of conviction he appeals. Many errors are assigned, and we will notice the principal ones.
I. The first serious question occurs on the motion to quash the warrant. This motion is based upon these contentions: First, that the information is verified by the county attorney on information and belief only; second, that the sworn statements of the witnesses taken by the county attorney under ¶ 2543, General Statutes of 1889, were not filed “together” with this information; third, assuming that the sworn statements and information were filed “together,” there is no oath or affirmation of any person that the defendant “had no permit to sell,” and this is a necessary element of the offense and an indispensable allegation. The information is so verified, but the county attorney states in his verification that “ this information is based upon the affidavits filed herewith.” The precise facts disclosed by the record as to the filing of the sworn statements are as follows: The county attorney produced before the court certain documents in writing, in the nature of records of the examination of witnesses by said county attorney, and the county attorney informed the court orally, (and his statement is accepted as true by the defendant,) that these documents, so far as they refer to the defendant, were the oaths intended to support the information. Said documents were filed on the same date as the information. At the time said documents were filed the county attorney took them into the office of the clerk of the district court, and, after swearing to the information and belief, he said to the clerk, “I file these affidavits with the information.” He then, within a few minutes, filed other informations, against other persons, saying to the clerk, “I file each of these affidavits [being the identical documents above referred to] with each of these informations” [referring to the above-described affidavits], and said clerk entered each of said affidavits on the appearance docket of said court in each of said causes as filed therein. The first of these affidavits contains the evidence of one Mitchell, accusing the defendant’s father of making two illegal sales of intoxicating liquor. The second is the affidavit of one Barnes, who accuses one Hayslip of illegal sales. These affidavits are indorsed “The State v. Benjamin Tuchman, The State v. Al. Hayslip.” The third is the affidavit of G. W. Long, who charges Bernstine Bros, with two sales and this defendant with one sale. This is indorsed, “The State v. Bernstine, The State v. Benj. Tuchman, The State v. Sicher.” Some 10 or 11 affidavits were filed, showing violations of the law by this defendant, by Bernstine, Hayslip, Rahrer, and others, all certified to by the county attorney as being taken in pursuance of the statute authorizing these proceedings. These statements were indorsed as above described and filed with the clerk. We do not understand that it is claimed that they were inclosed in the same envelope or cover that contained the information, nor were they numbered corresponding with the number of the criminal case upon the appearance docket. The language of the statute is, that “such statement must be filed together with the complaint or information.”
Prom this state of facts it is contended, that there was no proper filing of the statements, and hence that the information is unsupported by an oath or affirmation. It is said also, in support of the motion to quash the information, that, assuming the sworn statements were filed together with the information, still, as they did not charge that the defendant had no permit, but were entirely silent on that subject, that a material allegation was not supported by oath. The court is of opinion, however, that as the defendant, before filing his motion to quash the warrant, filed a petition to remove the cause to the circuit court of the United States for the district of Kansas, which petition was verified by the oath of the defendant, and in which he states—
“That it is the equal civil right of all persons within the jurisdiction of the United States to sell, barter, and give away, in any state of these United States, intoxicating liquor in the original package in which the same shall have been imported into any such state from another state, and was so at the date of said alleged acts in the information charged; that said equal civil right is secured by law, to wit, the constitution of the United States, the supreme law of the land. And your petitioner avows upon his oath that he has not at any time sold, bartered or given away intoxicating liquor at said county and state except in the original packages, as aforesaid, in which the same was imported into the state of Kansas from the state of Missouri, and then only as the agent in Kansas for parties resident and doing business in the state of Missouri. And he alleges that he has a clear right to do this, which right was and is guaranteed to him by the constitution of the United States as aforesaid; that said right is denied him by the law of said state of Kansas, and he cannot enforce said right, and the same is denied to him in the judicial tribunals of the state of Kansas; that the supreme court of said state of Kansas has upheld and sustained said statute of Kansas, wherein by its terms it denies to petitioner his said right so secured to him by the constitution of the United States; that this court, to wit, the district court of Sháwnee county, is bound by the said decision of the supreme court of Kansas, and thus your petitioner is denied and cannot enforce in the judicial tribunals of the state of Kansas his said right.
“Wherefore he prays that this cause be removed for trial into the next circuit court of the United States for the district of Kansas, to wit, at the June, 1891, term thereof, at Leavenworth, Kansas, and he demands that upon the filing of this, his petition, ali further proceedings in this cause in this honorable court shall cease.”
That his motion to quash the warrant was not in time, however strong the reasons for sustaining said motion may be.
In the case of The State v. Blackman, 32 Kas. 615, this court says:
“An information or complaint under the prohibitory liquor law, verified in accordance with § 12 of such law, (now ¶ 2543, Gen. Stat. of 1889,) is, so far as the verification is concerned, sufficient for every purpose except merely for the purpose of issuing a warrant for the arrest of the defendant. Such an information thus verified may properly be filed by the county attorney; a trial may be properly had thereon; a conviction may properly follow the trial; and the defendant may properly be sentenced upon such conviction. Of course, before a warrant is issued for the arrest of the defendant, an oath or affirmation within the meaning of §15 of the bill of rights should be made, showing probable cause to believe the defendant guilty; but if no such oath or affirmation is made or filed, but nevertheless the defendant without objection pleads to the merits of the action and goes to trial, he waives all irregularities in the verification of the information, and cannot afterward be heard to question the regularity or validity of any proceeding in the case, if he urges no other objection than that such verification is insufficient.”
In the two cases of The State v. Bjorkland and The State v. Iseman, 34 Kas. 377, motions were made to set aside the warrants on the ground that they were improvidently issued, but this court says:
“At the time these motions were made the warrants had spent their force. So to speak, each warrant was functus officio. Before the filing of these motions, each of the appellants had entered into a recognizance to personally be and appear before the district court to answer the charges contained in the information filed against him, and had also waived arraignment and pleaded not guilty to the said charges. Thereby each of the appellants submitted to the jurisdiction of the court, and answered the information on file against him. It is true that subsequently the court permitted the appellants to withdraw their pleas of not guilty, and thereafter motions were made to quash the warrants and discharge the appellants; but these motions were too late, because, when made, the parties were no longer held upon the warrants.”
In the case of The State v. Longton, 35 Kas. 375, one feature of the same question that we are discussing was presented. The information was "verified by the county attorney on information and belief, and by the positive affidavit of another person, filed with the information, of all the material allegations, except that the defendant made the unlawful sales com plained of “without first taking out and having a permit therefor.” On the day of the arrest the defendant entered into a recognizance for his appearance at court to answer the charge. When the case was called for trial, the defendant filed a motion to set aside and quash the warrant for the reason above stated. The defendant was then arraigned but refused to plead, and the plea “Not guilty” was entered for him. At the trial he was found guilty on one count of the information, and not guilty as to the other. On this state of facts this court says, in reviewing the case on appeal:
“We think when the defendant entered into a recognizance for his appearance at court, without making any objection to the sufficiency of the warrant, or the sufficiency of the information, or the sufficiency of the verification thereof, he waived the supposed defects in the verification of the information and the irregularity in issuing the warrant without a sufficient verification.”
The only respect in which the case we are considering differs from that of The State v. Longton is, that in this a petition for removal was filed before the motion attacking the warrant was made, and in the reported case a recognizance was given before a similar motion was filed. It would seem, however, that a petition for removal sworn to by the appellant, in which he recites acts that, beyond all question, show him to have been guilty of the offenses with which he is charged in the information, is a much stronger and more conclusive waiver of the supposed defects in the verification of the information than entering into a recognizance for his appearance at court. The statements of guilt made in the petition for removal, being under oath, are abundantly sufficient of themselves to support a warrant. They not only show probable cause, but for such purposes are as conclusive of guilt as a formal plea of guilty on an arraignment. It must be held that his voluntary appearance, and his filing of a petition for removal, and the statements of his guilt contained in that petition, verified by himself, cure any supposed defect ,in the issuance of the warrant, and that after these things had oc curred it was too late to raise the question of the sufficiency of the warrant by a motion to quash. This view disposes of all contention about the filing of the statements of witnesses, or about the verification of the information, and renders it unnecessary to consider the constitutionality of those sections of the law that authorize the county attorney to subpoena witnesses and take their testimony.
II. Another important questiqn is discussed under the showing in the record. This cause was submitted to the court for trial on an agreed statement of facts, which reads as follows:
“Comes now the plaintiff by R. B. Welch, county attorney of Shawnee county, and the defendant, Bernard Tuchman, in person and by David Overmyer, his attorney, and in open court waive a jury in said cause, and agree that this cause be tried and determined upon the following agreed statement of facts, to wit:
“ 1. Said defendant was the proprietor of the place kept in the basement of the building No. 525, and situated on lot No. 169, Kansas avenue, in the city of Topeka, in said county and state, during the month of October, 1890.
“2. As such proprietor he sold intoxicating liquors in the original packages in which they were shipped to him as agent of the Anheuser-Busch Brewing Association, of St. Louis, Mo., a corporation, as charged in the first and second counts in the information filed herein.
“ 3. Said defendant sold said original packages as charged in the first and second counts of this information as the agent of said non-resident importer of the same, and in no other way, and said non-resident importer was at all times the owner of the intoxicating liquors kept in said place, and so as aforesaid sold, until they were sold as alleged herein by this defendant, as agent, and said liquors were sold in the original packages in which the same were imported into the state, and not otherwise.
“4. Neither the defendant nor his principal held a druggist’s or other permit to sell intoxicating liquors from the probate judge of Shawnee county, and was not engaged in the drug business; but said defendant had paid his government license tax to the United States.”
This agreed statement of facts was read to the court by the county attorney, who then moved that the court find the de fendant guilty thereon, as charged in the first and second counts in the information; and then the appellant moved the court to require the county attorney to elect. upon what sales of liquor he will ask a conviction upon the first and second counts of the information. This motion was overruled by the court, and the defendant saved proper exceptions. But if this ruling of the court is an error, it is one that occurred at the trial, and the trial court must be asked to review it on the motion for a new trial. Turning to the motion for a new trial, as contained in this record, we find that the only two causes assigned in the motion are, that the findings of the court are not sustained by sufficient evidence and are contrary to the evidence, and that the findings of the court are contrary to law. This being the condition of the record, we are not authorized to pass upon the question so ably discussed, because it is familiar law that such questions must be raised by a motion for a new trial.
It follows that we must recommend that the judgment of conviction be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam:
The case of The State of Kansas v. Carl Jockheck is similar in all respects to the case of The State v. Tuchman, just decided, every question raised and discussed in the one being involved in the other. In fact, it is agreed in the briefs and on the argument that the decision in one is to stand for both.
For the reasons given in the Tuchman case, the judgment of conviction in this case will be affirmed. | [
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Per Curiam:
This was an action brought in the district court of Crawford county, by William Goff and Charlotte H. Goff, husband and wife, against School District No. 54, Crawford county, Kansas, and C. Beck, Johh Pauley, and Frederick Russell, the officers of such school district, to perpetually enjoin them from removing a certain building situated on the homestead of the plaintiffs and their children, which building had previously been occupied as a schoolhouse. A trial was had before the court and a jury, and the jury made special findings of fact, and the court found generally in favor of the plaintiffs and against the defendants, and upon the special findings of the jury and the general finding of the court, the court rendered judgment in favor of the plaintiffs and against the defendants, perpetually enjoining the defendants from removing said building; and the defendants, as plaintiffs in error, bring the case to this court for review.
Within the authority of the decision in the case of Mullaney v. Humes, just decided, the judgment of the court below in the present case must be affirmed, as none of the evidence nor any of thev instructions of the court to the jury are contained in the case made, or presented to this court in any other proper manner. It is true that it is claimed that the petition below and the findings are not sufficient to sustain the judgment rendered, but it is so clear that they are, that we do not think that the question of their sufficiency requires any comment.
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Elliott, J.;
At issue in this case is whether the exclusive remedy provision of the Workers Compensation Act bars a civil suit against an employer and coemployees for the negligent treatment of a heart attack, even though the heart attack itself is not compensable under workers compensation. The district court found that workers compensation was the exclusive remedy, and we affirm.
Gary Scott suffered a heart attack while working at Wolf Creek Nuclear Power Plant (Wolf Creek) and died a short time later. Before his death, Scott was treated by Stephen Hoch and Keith Clements, physician’s assistants who were employed by Wolf Creek to provide first aid and other immediate care to Wolf Creek employees for both occupational and nonoccupational illnesses and injuries arising during the workday.
Scott’s estate and heirs filed a medical malpractice action against Wolf Creek, Hoch, Clements, and their supervising physician, Nelson White, M.D., alleging that Scott lost a chance of surviving the heart attack because of the negligent treatment he received from Hoch and Clements. White was later dismissed from the suit without prejudice by stipulátion of the parties. The district court granted summary judgment in favor of the remaining defendants, ruling that plaintiffs’ suit was barred by the exclusive remedy provision of the Workers Compensation Act.
On appeal, plaintiffs argue that the district court erred in granting summary judgment (1) because the original injury was non compensable under K.S.A. 44-501(e), commonly referred to as the heart amendment; (2) because, under a dual capacity theory, defendants were not acting in their capacities as employer and coemployees but were acting as health care providers; therefore, they were not immune from tort liability; and (3) because defendants were estopped from claiming that workers compensation was plaintiffs’ exclusive remedy when Wolf Creek previously told Scott’s widow that she was not entitled to workers compensation benefits for her husband’s death.
Under the exclusive remedy provision of the Workers Compensation Act, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer or coemployee. K.S.A. 44-501(b). Thus, the pivotal question to be resolved is whether plaintiffs’ claim is compensable under the Act. In order to recover workers compensation, a claimant must show that he or she suffered “personal injury by accident arising out of and in the course of employment.” K.S.A. 44-501(a). The heart amendment, however, specifically precludes coverage for “coronary or coronary artery disease” unless caused by exertion which was “more than the employee’s usual work in the course of the employee’s regular employment.” K.S.A. 44-501(e).
Here, the parties stipulated that Scott’s heart attack was not causally connected to his exertion at work. Plaintiffs argue that their claim is noncompensable under the heart amendment; therefore, the exclusive remedy provision does not apply. Defendants respond that the heart amendment does not apply because plaintiffs’ claim involved the loss of chance of survival, not the heart attack itself.
We agree with defendants that there is an important distinction between a claim based upon a heart attack and a claim based upon a loss of chance of surviving a heart attack due to negligent treatment. Had plaintiffs sought compensation for the heart attack itself, the heart amendment would likely have barred their claim. Instead, plaintiffs’ petition claimed that defendants’ negligence caused or contributed to Scott’s death by reducing his chance of surviving the heart attack This type of claim is not barred by the heart amendment.
The next issue, then, is whether the negligent treatment of Scott’s heart attack arose out of and in the course of his employment with Wolf Creek. To arise “out of” employment, there must be some causal connection between the injury and the employment. An injury arises out of employment where it arises out of the nature, conditions, and incidents of employment and does not arise from a hazard to which the worker would have been equally exposed apart from the employment. Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 299, 615 P.2d 168 (1980).
Defendants cite two recent decisions of this court in support of their argument that Scott’s loss of chance of survival arose out of his employment. In Bennett v. Wichita Fence Co., 16 Kan. App. 2d 458, 824 P.2d 1001, rev. denied 250 Kan. 804 (1992), the claimant was injured when he suffered an epileptic seizure while driving a company vehicle to make a delivery and ran into a tree. We held that the conditions of the claimant’s employment placed him in a position of increased risk which created the necessary causal connection between the injuiy and the employment; therefore, the injury arose out of claimant’s employment and was covered by workers compensation. 16 Kan. App. 2d at 460.
We cited Bennett in deciding Baggett v. B & G Construction, 21 Kan. App. 2d 347, 900 P.2d 857 (1995). Baggett involved a claimant who was injured when he was assaulted by a coemployee and fell into an open hole on the job site. The Baggett court noted that in Bennett, we looked at the injury and whether it was exacerbated by employment conditions. The Baggett court held that because the concurrence of the assault and the employment hazard caused claimant’s injury, the injury was compensable. 21 Kan. App. 2d at 350. In discussing the causal connection between the injury and the employment, we stated:
“[T]his assault was clearly not precipitated by a work-related matter. However, bke Bennett, Baggett’s injury was partly the result of work-related circumstances. Bennett may not have crashed into a tree during an epileptic seizure had he not been working. Likewise, Baggett would not have sustained a serious head injury and broken clavicle during a pushing match had he not been on the job site, which contained an open hole.” 21 Kan. App. 2d at 350.
We hold that there is a causal connection between Scott’s employment at Wolf Creek and his receiving negligent medical treatment. Even though the treatment was for a nonwork-related injury, Scott received treatment because he was an employee of Wolf Creek. The physician’s assistants who treated Scott were employees of Wolf Creek whose purpose was to provide medical treatment to Wolf Creek employees for both occupational and nonoccupational diseases and injuries. In other words, Scott would not have been equally exposed to the risk of negligent medical treatment by Wolf Creek physician’s assistants apart from his employment at Wolf Creek. His injury, the loss of chance of survival, might not have occurred had he not been at work and treated by Wolf Creek physician’s assistants.
Our decision is also supported by Professor Larson’s workers compensation treatise. He states:
“[W]hen the employer’s participation in the episode goes beyond mere examination and extends to some kind of active conduct or attempted treatment by the employer or his employees aggravating the noncompensable condition, this has usually been held to be sufficient to endow the matter with compensable character and hence bar a damage suit.” 2A Larson’s Workmen’s Compensation Law § 68.35 (1996).
We are not persuaded by plaintiffs’ analysis of Wright v. United States, 717 F.2d 254 (6th Cir. 1983), and other federal cases. Wright involved a secretary at a hospital who suffered a ruptured tubal pregnancy while performing her duties. Although she was not entitled to treatment, the hospital undertook to treat her. The Sixth Circuit Court of Appeals ruled that Wright’s later civil suit against the hospital for negligent treatment was not barred because there was no causal connection between her tubal pregnancy and her employment as a secretary; thus, her claim was not compensable under the Federal Employees Compensation Act. 717 F.2d at 258-59.
Plaintiffs contend that the dispositive factor in Wright, and cases like it, is that claimant’s original injury was not work related. We find the distinguishing fact to be that Wright’s employer was a health care provider who undertook to treat her on the same terms as any other private patient. Again, Professor Larson’s treatise supports this view. He explains that where an employer undertakes to treat an employee as a private patient and “the case involves a purely private relation with no employment involvement, suit is usually not barred.” The result may be different, however, where “it is the employer’s policy to provide first aid or other care for even nonoccupational illnesses appearing during the workday.” 2A Larson, § 72.88.
Plaintiffs’ next argument is that, under the dual capacity doctrine, an employer or coemployee who provides medical treatment to an employee should not be immune from tort liability because that employer or coemployee is acting in a second capacity as a health care provider.
Kansas first recognized the dual capacity doctrine in Kimzey v. Interpace Corp., 10 Kan. App. 2d 165, 167, 694 P.2d 907, rev. denied 237 Kan. 887 (1985):
“According to the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become Hable to his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer. It is in this second capacity that liability to an employee may be imposed.”
In Kimzey, an employee was injured while operating a pyramid roll machine in the course of his employment with Interpace. The machine was designed and manufactured by Lock Joint. Lock Joint later dissolved and eventually merged into Interpace. As part of the merger agreement, Interpace agreed to assume all of Lock Joint’s obligations and liabilities. The injured employee brought a products liability suit against Interpace, alleging that Interpace, as corporate successor to Lock Joint, was liable for product defects and negligence. 10 Kan. App. 2d at 165-66.
The trial court granted summary judgment in favor of Interpace on the ground that plaintiff’s exclusive remedy was workers compensation. This court reversed. The Kimzey court discussed the dual capacity doctrine and found that it applied to the facts of that case. The court noted:
“The doctrine should not be used for the purpose of simply evading the exclusivity provision of the Workmen’s Compensation Act. When properly applied, it will be limited to those exceptional situations where the employer-employee relationship is not involved because the employer is acting as a second persona unrelated to his status as an employer, that confers upon him obligations independent of those imposed upon him as an employer.” 10 Kan. App. 2d at 170.
Utilizing the dual capacity doctrine, the court held that Interpace had stepped into the shoes of Lock Joint with respect to the liability question; therefore, the suit was not barred by the exclusive remedy provision of the Workers Compensation Act. 10 Kan. App. 2d at 170.
Kansas courts have not yet extended the dual capacity doctrine to factual situations other fhan the one described in Kimzey. Plaintiffs argue that the doctrine should be applied to the instant factual situation.
There appears to be a split of authority on the issue of whether the dual capacity doctrine should apply where a company doctor treats a fellow employee. The majority of states which have considered the issue have concluded that a malpractice action against a company doctor is barred by the coemployee immunity provisions of workers compensation statutes. 73 A.L.R.4th 115. Again, Professor Larson agrees with the majority view, as do we. Larson explains:
“The fallacy ... is simply that the company doctor does not have two capacities. He has only one: company doctor. That is the entire extent of his relation to his coemployees. All he does, all day long, is perform in this single capacity in relation to his coemployees. By contrast, the employer-physician has the entire array of employer-employee duties and obligations, which are utterly unrelated to his medical activities, and which quantitatively are a thousand times as great.” 2A Larson, §72.61(b).
We decline to extend the dual capacity doctrine beyond the factual situation described in Kimzey.
Plaintiffs’ final argument on appeal is that defendants were es-topped from asserting the exclusive remedy provision of the Workers Compensation Act because Wolf Creek previously told Scott’s widow that workers compensation benefits were not available for her husband’s death. The district court ruled that estoppel would be available to plaintiffs in workers compensation proceedings and the issue should be resolved in that forum. We agree. Furthermore, any determination by the workers compensation hearing officer and appeals board regarding plaintiffs’ estoppel argument will be subject to appeal.
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Lewis, J.:
This is the type of dispute which can and has destroyed the integrity of a once close family unit. The cause of such a dispute is generally the death of a parent and the struggle over his or her estate. This case carries such a factual premise.
Johnnie L. Giefer (decedent) had a small farm in Kingman County. His wife predeceased him, and at the time of his death his family consisted of one grown son and six grown daughters. Shortly before and certainly after his death, his son and at least one of his daughters had differences which have grown into what is now probably an irreconcilable family feud. This lawsuit pits one daughter, Rosella Swenton, and her husband Joe against the rest of the family.
At issue in this case is whether the decedent died owning the family farm or deeded it away prior to his death. On September 20, 1990, the decedent executed a deed, absolute on its face, conveying the 320 acres, known as the “home place,” which conveyed a Yr interest in the real estate to each of his children as tenants in common. He executed a will (first will) on the same date. He held this deed until March 5, 1993, when he instructed his daughter Bernice Beall to record it. On August 8, 1993, he executed a last will and testament (second will) which contained provisions inconsistent with the deed. Like the first will, the second will left the home place to aft seven of his children but provided that his son Francis was to have the absolute right to buy the property from the sisters for $400 per acre. On August 28, 1993, the decedent died.
After his death, all of the sisters but Rosella sold their interest in the home place to Francis. Francis now owns an undivided Yr interest in the 320 acres. The decedent’s last will and testament was not offered for probate, was not admitted to probate, and has not been offered or admitted to this day.
After a passage of time, Francis sued Rosella, asking for declaratory judgment and what amounts to specific performance of the provision of the decedent’s second unprobated will. Rosella counterclaimed, alleging she owned an undivided Yr interest in the home place by reason of the deed and asked for an accounting of her share of the rents and profits and for partition. The trial court held that the decedent did not intend to convey a present interest in the real estate by the deed which was recorded March 5, 1993, and canceled the deed. The court then enforced the provisions of the decedent’s second will and ordered Rosella and her husband to deed their interest in the property to Francis upon the tendering by Francis of payment under the terms of the second will. The court also denied Rosella’s prayer for an accounting and for partition. Rosella appeals from the trial court’s decision.
After careful review, we conclude the trial court erred and reverse and remand.
DEED RECORDED MARCH 5, 1993
We first deal with the deed which was recorded on March 5, 1993. The trial court found that this deed should be canceled because the decedent did not intend that it vest a present interest in the grantees. We conclude this finding is contrary to the evidence and must be reversed.
The legal issue presented is whether the deed was properly delivered. “It is elementaiy law that before a deed can be operative as a valid transfer of tide it must be effectively delivered during the grantor’s life.” Agrelius v. Mohesky, 208 Kan. 790, 795, 494 P.2d 1095 (1972).
‘We have said that delivery is largely a matter of the grantor’s intention to divest himself of tide as evidenced by all the facts and circumstances surrounding the transaction and whether there has been a delivery is ordinarily a question of fact.” 208 Kan. at 795-96. However, under certain circumstances, the issue can become a question of law:
“The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law, and when the facts have been fully tried, leaving only questions of law to be decided, this court may direct the entry of a proper judgment— following Worth v. Butler, 83 Kan. 513, 112 Pac. 111.” Hoard v. Jones, 119 Kan. 138, Syl. ¶ 9, 237 Pac. 888 (1925).
The deed in question was executed in 1990 and recorded at the express direction of the decedent in 1993. It was never manually delivered to the grantees, although the record indicates that most of them knew about it prior to the decedent’s death. After its recording, the decedent kept it in his possession. It is apparent from these facts that there was no outright manual delivery of the deed in question from the grantor to the grantees. However:
“Defendant further contends that inasmuch as she retained possession of the recorded deed, there was no delivery. We stated in Fooshee v. Kasenberg, [152 Kan. 100, 103, 102 P.2d 995 (1940)]:
‘It is well settled that the recording of a deed constitutes delivery to the grantee. (Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Carver v. Main, 146 Kan. 251, 257, 69 P.2d 681). Where the deed is intentionally recorded by the grantor manual delivery of the deed thereafter is not necessary to make it effectual. (Turner v. Close, 125 Kan. 485, 264 Pac. 1047.) In the absence of express disclaimer acceptance by the grantee is presumed. (Wuester v Folin, 60 Kan. 334, 56 Pac. 490; Miller v. Miller, 91 Kan. 1, 136 Pac. 953.)'
“It seems to be a well-settled rule of law in this state that the recording of a deed constitutes delivery to the grantee, and where the deed is intentionally recorded by the grantor, the manual delivery of the deed thereafter is not necessary to make it effectual. In the absence of express disclaimer, acceptance by the grantee is presumed. [Citations omitted.]” Hansen v. Walker, 175 Kan. 121, 124, 259 P.2d 242 (1953).
In Staats v. Staats, 148 Kan. 808, Syl. ¶ 3, 84 P.2d 842 (1938), the Supreme Court held: “The recording of a deed is presumptive evidence of its delivery, but such presumption can be overcome by other competent evidence.” (Emphasis added.) See Thom v. Thom, 171 Kan. 651, 653, 237 P.2d 250 (1951); Turner v. Close, 125 Kan. 485, Syl. ¶ 2, 264 Pac. 1047 (1928); Conner v. Cole, 112 Kan. 517, Syl. ¶ 2, 211 Pac. 615 (1923).
Further, the Kansas courts have held that “where a transfer of property is made without consideration, the inference is that a gift was intended, not that the grantee was to hold the property for the benefit of the grantor. (Fooshee v. Kasenberg, 152 Kan. 100, 102 P.2d 995.)” Hansen v. Walker, 175 Kan. at 123. In Miller v. Miller, 91 Kan. 1, Syl. ¶ 5, 136 Pac. 953 (1913), the court said: “The recording of the deed by the grantor made it effective as to all persons benefited by it who did not dissent.”
On the surface, therefore, this is a case in which there is a presumption of delivery and one in which none of the grantees has stepped forward to reject any gift bestowed upon them by the decedent.
As we read the Kansas cases, most of the instances in which a presumption of delivery by recording was overcome were cases in which die deed was not recorded by or at the direction of the grantor. Indeed, in these decisions, cases to the contrary are distinguished because in those cases, the grantor himself had recorded the deed. See, e.g., Staats v. Staats, 148 Kan. at 812; Turner v. Close, 125 Kan. at 489. In those cases, where a deed absolute on its face was recorded by or at the direction of the grantor, the presumption of delivery was upheld. Hansen v. Walker, 175 Kan. 121; Thom v. Thom, 171 Kan. 651; Conner v. Cole, 112 Kan. 517.
In this case, the evidence shows, beyond any doubt, that the deed was recorded at the express direction of the grantor. The only witness as to the actual intention of the decedent in executing and recording the deed was his daughter Bernice, who testified concerning the recording as follows:
“Q. All right. And what were the circumstances surrounding the recording of that deed?
“A. I went out to my dad’s place. He was very sick. He had a lot of back trouble, pain, feeling bad and I took him to the heart doctor that day in Wichita and we discussed it the day that I went out there about taking care of his business. And daddy gave me the deed that he signed and told me to go record it at the courthouse, that he thought that that would be the appropriate thing to do because he knew that he wasn’t feeling good.” (Emphasis added.)
We conclude from the undisputed evidence in this case that the deed was recorded at the express direction of the grantor and the recording raised a presumption of delivery.
How can the presumption of delivery be overcome? Obviously, there must be evidence that despite the recording of the deed, the grantor had no intention to deliver it. In 23 Am. Jur. 2d, Deeds § 124, p. 159, we find: ‘When the evidence establishes that the property owner does not intend to pass a present interest in the property, then as between the parties there is no binding delivery even though the deed is recorded.”
We think that such a rule is a common-sense approach to the issue, and we adopt it for application in this case. It appears to us that in order to overcome the presumption of delivery in this case, it must be shown that the grantor intended to die vested of an ownership interest in the property. In this case, the deed contains no reservations or qualifications, so it was either a fee simple grant or the grantor intended to die vested of ownership in the property despite having executed and recorded the deed.
The trial court found that “[o]n March 5, 1993, Johnnie Giefer clearly did not intend to vest a fee simple interest in and to the home place in his seven children.” We conclude that this finding is not only contrary to the evidence but that it is contraiy to a portion of the court’s conclusion of law No. 4. In conclusion of law No. 4, the trial court said: “The Court further concludes that the sole purpose of Johnnie Giefer’s execution of the September 20, 1990, deed and his authorization to place it of record in March, 1993, was to avoid probate and give effect to Francis Giefer s first right to purchase the home place pursuant to the September 20, 1990, will.” (Emphasis added.)
With all due respect to the trial judge in this case, we are unable to determine how an individual can intend to avoid probate by executing and recording a deed to all of the real estate he owns and not have that deed convey his interest to the grantees. If the deed does not convey a present interest, then it does not avoid probate. The only conceivable manner of upholding the decedent’s intent to avoid probate is to find that he intended to convey a fee simple interest to his children by the deed recorded in March 1993. The decision of the trial court to cancel the deed because defendant did not intend to vest a present interest in his children is contrary to the trial court’s conclusion that the deed was recorded pursuant to decedent’s intention to avoid probate. The trial court cures that oversight by giving full force and effect to an unprobated will. As will be pointed out later, this is simply not possible. In addition, the recording of the deed was, if anything, counterproductive to Francis’ first right to purchase under the will. All the decedent had to do to give Francis the first right to purchase the home place was to own the real estate when he died. He apparently chose not to do so. We hold the trial court’s finding of fact that decedent did not intend to vest a present interest in his children is contrary to its conclusion that the deed was recorded to avoid probate.
The next question for us to determine is what the intent of the decedent was in recording the deed on March 5, 1993. Before we can answer that question, we must determine the proper method of approaching it.
At one time in this state, a conversation with a decedent was not admissible into evidence. If that were the case in the instant matter, the decision would be relatively easy. The only evidence of the decedent’s true intent comes from conversations he had with his daughter Bernice. It is true there is the usual general evidence that he always intended for Francis to be able to purchase the home place. However, the conversations with Bernice are quite specific as to the subject at hand. Those conversations would not have been admissible at one time in this state, and there would be no evidence other than the deed as to the decedent’s intent.
The decision in Thom v. Thom, 171 Kan. 651, offers us some difficulties in resolving this issue. In that case, the Supreme Court appears to limit the determination of the grantor’s intention to an examination of the instrument in question.
“Thus, since we have said that in the construction of deeds the intention of the grantor as gathered from an examination of the instrument in its entirety is controlling (See Epperson v. Bennett, 161 Kan. 298, 167 P.2d 606, Bennett v. Humphreys, 159 Kan. 416, 155 P.2d 431, and Howe v. Howe, 94 Kan. 67, 145 Pac. 873), it clearly appears our primary concern is with the contents of the instrument in question and our duty is to examine them for the purpose of ascertaining whether the trial court was correct in concluding they disclose an intent on the part of the grantor to pass a present interest in the lands therein described.” (Emphasis added.) 171 Kan. at 653.
The court went on to conclude that it was the intent of the grantor to convey a present interest: “[W]e . . . hold there is nothing in the wording of the defendant’s deed warranting a conclusion that instrument was intended to be testamentary in character and that it must be construed as a deed conveying him a present interest in the land therein described.” 171 Kan. at 656.
If this case were to follow the precedent of the Thom decision and determine the intent of the decedent from an examination of the deed, it would be relatively simple to conclude that the deed vested a present interest in the grantees. As we have said before, there are no reservations or qualifications of any kind in the deed. It is an outright grant of an undivided ¥i interest to each of the decedent’s seven children as tenants in common.
It appears to us that the decision in Thorn is consistent with the then-prevailing rule that prohibited the admission of a conversation with the decedent into evidence. Under that rule, there was not much else to look at other than the form of the instrument itself. We do not believe that Thom should exclude from the evidence in this case conversations with the decedent when those conversations are plentiful and were admissible. We believe, however, that an examination of the deed and the search for a grantors intent remains one of the pieces of the puzzle that must be considered. In this case, that factor clearly points to an intent to vest a present title in the grantees.
The trial judge in this case construed the deed along with two unprobated wills executed by the decedent. In doing so, he said:
“It is well settled that where two or more instruments are executed by the same parties contemporaneously or at different times in the course of the same transaction concerning the same subject matter, they will be read and construed to-' gefher so far as determining the respective interests of the parties, even though the documents do not refer to each other. Harder v. Wagler, 17 Kan. App. 2d 403, 838 P.2d 366 (1992) and Hollenbeck v. Household Bank, 250 Kan. 747, 829 P.2d 903 (1992). This Court specifically concludes that the first will of September 20, 1990, the deed of September 20,1990, and the second will of August 8,1993, are all part of the same transaction (i.e. Johnnie Giefer expressing his desires as to the disposition of the home place) and concern the same subject matter (i.e. the disposition of the home place).”
We conclude the trial court erred in this method of construction. The decisions of Hollenbeck v. Household Bank, 250 Kan. 747, 829 P.2d 903 (1992), and Harder v. Wagler, 17 Kan. App. 2d 403, 838 P.2d 366, rev. denied 251 Kan. 938 (1992), stand for the proposition that two or more instruments executed in the course of the same transaction concerning the same subject matter may be construed together. However, the instruments in Hollenbeck and Harder were all intended to operate immediately. In this case, the trial court attempted to construe a deed, which was intended to take effect immediately, along with two unprobated wills executed by the decedent. We consider this to be mixing apples and oranges. A will is a testamentary disposition which has no application until after the testator is deceased and it has been admitted to probate. We do not believe that it is reasonable to construe the intention of the testator in executing a deed which is an inter vivos document conveying a present interest in real estate with contrary provisions in decedent’s two unprobated wills. These documents are so divergent that we believe they should not be construed together.
In the final analysis, however, this case is controlled by the testimony of Bernice Beall. Bernice was a real estate broker in Oklahoma City, and she was h'er father’s legal advisor and confidante. Bernice discussed estate planning with her father, how he could avoid probate, etc. Her advice certainly may not have been accurate. However, her testimony is persuasive on the intention of the decedent in executing the two wills and recording the deed in question.
Bernice testified on the intent of her father as follows:
“Q. And what was the purpose or your thinking with respect to the deed?
“A. The deed — He wanted — Tm sorry, repeat the purpose.
“Q. I just was wondering the deed — why the Will and the deed together?
“A. Okay. The deed — the purpose of the deed was to convey it to all seven of the children—
“Q. Uh-huh.
“A. —with the Will to back up my dad’s wishes of what he wanted done with this Will because my dad was a smart man and he wanted to avoid a lot of extra expenses. And him and I sit down and discussed this together and he understood with me that biydoing the deed that his kids would avoid a lot of extra cost and by drawing the Will up to go with it he explained in the Will what he wanted us to abide by in the deed by giving us each Vrth portion of it.” (Emphasis added.)
Later, she testified:
“Q. Okay. You understand that — Do you think your father had a problem with Rosella owning part of that farm?
“A. No. He intended for her to have her Vrih."
She also testified:
“Q. Okay. Now, why was this — -Were you responsible or have any impact in the recording of that deed in March die 5Ü1 of 1993?
“A. I had a discussion with my dad and this is what my dad’s wishes was. He asked me to go record the deed.
“Q. Okay. So what was your understanding as to why that — this deed was to be recorded?
“A. To avoid probate, to avoid the family a lot of unnecessary charges and to allow us each to have ownership — to allow us to have ownership of the property. Make — To make it a legal — of legal record.
“Q. Okay. So you understand that that gave each of the children a legal ownership in the property; is that correct?
“A. Yes, I did.
“Q. Okay. And had you explained that to your father?
“A. Yes, I did.
“Q. So he understood that that gave everyone a Vrih interest in that; is that correct?
“A. Yes.” (Emphasis added.)
At some point shortly before his death, the decedent sold a 160-acre tract to Francis. As consideration, he took back a note for $85,000 payable to each of his six daughters and a mortgage on the 160-acre tract. Bernice explained this transaction as follows:
“Q. Okay. What did he want done with that — that 160 acres where the deed was prepared?
“A. He had something else in mind.
“Q. Okay. Did he have in mind for each child to receive Vrth of that 160 acres?
“A. He had in mind what was specified in the Will that he wanted each child to receive Vrth of the 85,000, that he wanted Francis to have the farm.
Q. Okay. But he did not want — he did not want that property, that 160 acres, to go to anybody else other than Francis then, is that what you’re saying?
“A. He definitely wanted it to go to Francis, yes.
“Q. Okay. But why — So why was — In your estimation why was not that deed recorded?
“A. My dad never did sign that deed. He never did want that deed. He never wanted that one done like that. He wanted to do it another way.
“Q. Okay. He wanted the — to do the first piece of property we talked about, he wanted to convey it Vrth [to] each [child], right?
"A. Right.
“Q. The other one, 160 acres, he wanted it to go now — how now?
“A. He did not want it conveyed the same as the 360 acres. He chose to do it another way.
“Q. As a matter of fact, he sold it to his son while he was alive and took a mortgage on it, correct?
“Q. Yes.
“A. Okay. And he could have done that with the other property, couldn’t he, if he wanted to?
“A. It was his decision.
“Q. Sure. Sure. But he decided he wanted to handle that a different way, correct?
“A. Right.
“Q. Okay. So one piece of property he wanted to be divided Vrth to all the children, the other piece of property he wanted sold to his son with a mortgage and that mortgage to be divided amongst the seven children; is that correct?
“A. Correct.”
At one point, Bernice indicated she did not understand why her father wanted a second will.
“Q. Did you express to Mr. Wetta that there would have been a deed conveying that property?
“A. I expressed to him that the property has already been conveyed.” (Emphasis added.)
As to whether the decedent understood the nature and purpose of the deed which was recorded, Bernice testified:
“Q. Okay. So it’s your understanding that he understood the significance of a deed and what it did?
“A. I explained it to him and he did understand it at the time that he did sign it.
“Q. Okay. He understood that it conveyed the property to the children?
“A. Right.
“Q. Do you understand the term fee simpleP “A. Yes, I do.
“Q. Okay. Was it conveyed fee simple?
“A. Yes." (Emphasis added.)
One interesting question on the subject of decedent’s intent is whether he understood that he no longer owned the property after the deed was recorded. Bernice testified that he fully understood this:
“Q. With respect to both pieces of property now, the 320 acres and the 160, what was his understanding as far as you knew with respect to the control of the property? Did he have control of the property?
“A. He understood that he no longer owned the property but at the same time that he had all the rights and would receive all the income from the property and would continue to live on the property, that nothing would change in his way of living there or controlling the crops. It would still be all the same, just that we was protecting him upon his death.’’ (Emphasis added.)
Bernice later testified on her father s intent as follows:
“A. Because that’s what he told me that he wanted to do at that time. He wanted that deed recorded on — You talking about the 360 acres, right?
“Q. Yeah. Because he said he wanted it recorded, right?
“A. Right.
“Q. And that’s exactly what you did, right?
“A. Yes.
“Q. And it conveyed the property to him, right, to the seven children?
“A. Right.
“Q. So that’s what you are saying was his intent that the children to have a y7th interest?
“A. Right.....
“Q. His intent was to have each child to have a Vida, subject to the right of Francis to purchase, correct?
“A. Correct.”
Delores Hughes, one of the daughters of the decedent, testified that she knew that she did not have to convey her interest in the property to Francis but that she did so because that is what her father wanted. It is interesting to note that Delores and her husband, however, in their deed to Francis reserved their interest in the minerals for a period of 17 years. This indicates that Delores and her husband certainly believed they received a present interest in the real estate at the time the deed was recorded.
Bernice was finally called as a witness for the defendants and, when asked about her concern over why the second will was being executed, testified:
“A. I — In thinking about it, I voiced a concern that he drew up another Will because daddy already did a Will and the deeds and actually owned no property at that time that he drew that Will up.” (Emphasis added.)
It is perfectly clear that the decedent knew what he wanted to do when it came to deeding the home place. For instance, the decedent knew how to convey the 160-acre tract to Francis and take back from Francis a mortgage and a note payable to his daughters. In this manner, he avoided owning the real estate at the time of his death and saw to it that the note and mortgage would not be included in his estate and would not be subject to probate. Bernice also testified that she prepared a deed for the decedent in which he would deed the 320 acres to the seven children and reserve a life estate. However, she indicated that the decedent refused to sign this deed and refused to take that option because he “wanted to do it another way.” There appears to us to be overwhelming evidence that the decedent knew exactly what he wanted to do. He did not want to die owning this real estate, and he did not want this real estate to be subject to probate. In order to avoid that, he deeded it and prepared a contrary will. It is true that from the time decedent recorded the deed to the home place until the time of his death, he continued to act as if he owned the home place. We do not consider this to be significant evidence that he did not intend for the deed to convey a present interest in the home place to his children. It simply indicates that he was an individual who usually got his way as far as his children were concerned and who made eveiy effort to avoid probate and still control the devolution of title to his property.
The evidence in this case is overwhelming to the effect that the decedent intended to deed a present interest in the home place to his children. There was virtually no solid evidence to the contrary. The form of the deed and the fact that decedent instructed Bernice to record it, along with Bernice’s testimony that her father intended to convey a fee simple title to his children, are all contrary to the trial court’s finding that the decedent did not intend to convey a present interest in the real estate. We hold that, as a matter of law, the evidence establishes that decedent intended to convey the home place to his children by the deed recorded March 5, 1993. The trial court’s conclusion to the contrary is reversed.
It appears to us that the decedent was motivated by a desire to avoid probate and attorney fees. He avoided probate by deeding all of his real estate to his children prior to his death. He left a written statement directing that all of his machinery, cattle, monies, etc., be divided equally among his children. He wanted his son to be able to buy the home place. He attempted to do this by executing a will which was contrary to the deed and which contained these instructions. The problem, as Bernice noted, was that he owned no property on which the will could operate. The decedent wanted to avoid probate, give away his property, and still control its devolution after his death. This is not possible.
We think it admirable that five of the daughters sold their share to Francis, even though they knew they did not have to. Perhaps this is what the decedent believed would happen. Rosella, however, was no more obligated to comply with the terms of the decedent’s unprobated will than the others, and she chose not to do so. She still owns an undivided ¥i interest in the home place and is entitled to an accounting of her share of the rents and profits. She is also entitled to partition the real estate if she has properly invoked that remedy. Whether she has must be determined on remand.
THE UNPROBATED WILL
The trial court gave effect to the unprobated second will and ordered Rosella to comply with its terms. That decision is clearly erroneous and is reversed.
The trial court concluded: “[I]t makes no sense to require a formal probate of the second will in order to give life to paragraph SIXTH of said will.”
It may not make sense, but it is the law of this state. K.S.A. 59-616 provides: “No will shall be effectual to pass real or personal property unless it shall have been duly admitted to probate.” This statute is clear and unambiguous, and we will not nullify its effect simply because it makes “no sense” to comply with it.
The trial court erred in giving effect to decedent’s unprobated will, and all orders based on that document are reversed.
Our decision on the delivery of the deed in question should nullify any need to probate the will of the decedent. However, if probate should become necessary, questions relating to that procedure are left for future determination.
The decision of the trial court is reversed, and the matter is remanded with instructions to: (1) order and supervise an accounting by Francis to Rosella of her share of the rents and profits of the 320-acre home place; and (2) determine if Rosella has properly asked for partition and, if so, order that partition.
In closing, we feel compelled to note that Francis owns an undivided 6/i interest in the real estate in question. His percentage of ownership in the real estate should intimidate other bidders at a partition sale. The probable outcome of a partition action is obvious, and it will come at great expense to the family.
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Pierron,, J.:
Appellant John L. Vakas filed an application with the Kansas State Board of Healing Arts (Board) for reinstatement of his license to practice medicine. The Board denied the application, and appeflant appeals the district court’s order upholding the Board’s decision. We affirm.
Appellant was granted a license to practice medicine in 1966. In 1985, the Board issued an emergency order prohibiting him from selling, dispensing, administering, or prescribing controlled substances. In 1988, the Board revoked appellant’s license to practice medicine and surgery. He did not appeal the revocation. In 1989, appellant filed an application for reinstatement of his license to practice medicine. The Board’s denial of the application was upheld by the district court, and then the Kansas Supreme Court in Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 608, 808 P.2d 1355 (1991).
Appellant filed another application for reinstatement of his license in 1992, which is the subject of this appeal. The hearing officer issued an initial order recommending that appellant’s license be reinstated upon his successful completion of the SPEX examination (which tests medical knowledge) and that he not be permitted to prescribe controlled substances upon reinstatement. Appellant petitioned for the Board to review this order. The Board’s final order denied the application for reinstatement, and appellant requested judicial review of the final order. The district court affirmed the decision of the Board.
One of the eight factors to be considered in determining whether to reinstate a medical license is “the nature and seriousness of the original misconduct.” Vakas, 248 Kan. 589, Syl. ¶ 2. Appellant appears to argue that this allows for an essentially de novo review of the underlying decision.
The final order revoking appellant’s license was issued on May 6, 1988, and he did not appeal from the revocation order. Therefore, the Board’s findings of fact with respect to the revocation became'final and conclusive and must be accepted as true. See Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 728, 783 P.2d 900 (1989); Palmer v. State, 10 Kan. App. 2d 656, 657, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985).
The actions constituting the original misconduct were determined in the 1988 revocation order. In considering the nature and seriousness of the original misconduct, the factual conclusions of the order must be accepted as what occurred and was proven in the hearing. The question of what misconduct was established cannot be relitigated. It would not be appropriate for any hearing officer or court to review the original transcript and make contrary conclusions or findings.
Appellant emphasizes that this appeal may be his only opportunity to have the revocation hearing transcript reviewed. Any opportunity for complete review of that transcript and subsequent findings has passed. The only opportunity for a thorough review of that transcript would have been in a direct appeal from the revocation order.
The majority of appellant’s arguments are attempts to challenge the sufficiency of the evidence in the revocation proceeding. This is improper. The findings of fact made at the time are final and binding. There is no necessity for the original transcript or the testimony of witnesses at that hearing to be reviewed and completely reevaluated in connection with this proceeding.
The next issue we must address is whether the Board acted improperly in refusing to grant appellant’s application for reinstatement.
This case involves judicial review of an agency action. The scope of review is limited by K.S.A. 77-621. Appellant does not clearly identify the basis of his claim that the Board improperly refused to reinstate his license, but his brief indicates he is relying on K.S.A. 77-621(c)(7) and (8). These provisions permit the court to reverse an agency action when the action is not supported by substantial evidence when viewed in light of the record as a whole, or when the agency action is otherwise unreasonable, arbitrary, or capricious.
In Vakas, 248 Kan. 589, Syl. ¶ 2, the Kansas Supreme Court listed eight factors to be included when considering whether a license to practice medicine should be reinstated. These are (1) the present moral fitness of the petitioner; (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (3) the extent of petitioner s rehabilitation; (4) the nature and seriousness of the original misconduct; (5) the conduct subsequent to discipline; (6) the time elapsed since the original discipline; (7) the petitioner’s character, maturity, and experience at the time of the original revocation; and (8) the petitioner’s present competence in medical skills.
The Vakas opinion also states the applicable standard of review. The agency’s findings are presumed valid on review. In determining whether substantial evidence supports the agency action, the reviewing court, may not set aside an agency order merely because it would have reached a different conclusion if it had been the trier of fact. Instead, the evidence must show that the agency’s determination was so wide of the mark as to be outside of the realm of fair debate. 248 Kan. at 603. In determining whether the action was unreasonable, arbitrary, or capricious, the court must consider whether the agency acted without regard to the benefit or harm to all interested parties, or whether a particular action is justified or was done without foundation in fact. 248 Kan. at 604.
The burden of proving that the Board erred in denying reinstatement is on appellant. See 248 Kan. at 602. He also has the burden of proving by clear and convincing evidence that he is sufficiently rehabilitated to justify reinstatement of his license. See K.S.A. 65-2844.
In his brief, appellant discusses the evidence from the revocation hearing and concludes there was no serious misconduct shown. He then uses his belief that the original revocation was unjustified to argue summarily that most of the other seven factors are not relevant.
Appellant’s attitude toward the reinstatement process is evident in a transcript from a Board meeting held on April 21, 1992. His application for reinstatement had just been deemed complete, and there was a discussion on how to proceed. The Board noted that some of the letters provided by appellant’s doctors indicated he might not have the physical ability to practice medicine, and some letters stated he had a depressive mood disorder. The question of whether appellant was current in his medical knowledge was also raised.
The Board said it needed to resolve these issues and needed more information before it could evaluate the application. It requested that appellant be evaluated by a doctor designated by the Board, undergo a psychiatric evaluation, take the SPEX test to verify that his medical knowledge was current, and either take a test to determine whether he was physically capable of practicing medicine or get clearance from his treating physician that he was physically able to practice. Appellant refused to consider any of these, stating they were more stumbling blocks from the people who had persecuted and destroyed him.
Appellant appears unwilling to take reasonable steps to affirmatively establish his current knowledge and abilities. He did not meet his burden of showing he was sufficiently rehabilitated to justify reinstatement of his license. The Board’s decision to deny his application is supported by substantial evidence and is not unreasonable, arbitrary, or capricious. No basis for reversing the agency action has been shown.
Appellant also contends the Board lacks the authority to impose conditions or restrictions on reinstatement of a medical license. The specific areas addressed by him are whether the Board can restrict his license by prohibiting him from prescribing controlled substances and whether the Board can condition reinstatement on his taking the SPEX examination and testifying before the Board. These issues are not properly before this court.
The Board denied appellant’s application for reinstatement. It did not attach conditions or restrictions to the reinstatement of the license. There is no actual controversy regarding these matters before the court, and this court does not render advisory opinions. See Shanks v. Nelson, 258 Kan. 688, 907 P.2d 882 (1995); Carr v. Diamond, 192 Kan. 377, 380, 388 P.2d 591 (1964).
The Board’s decision does refer to the SPEX examination, but does not make the taking of the examination mandatory. K.S.A. 65-2844 provides that if the Board determines that a license shall not be reinstated, the person shall not be eligible to reapply for reinstatement for 3 years. In its order, the Board offered appellant relief from this 3-year waiting period. If he obtained a sufficient score on the SPEX examination and was willing to testify before the Board about his rehabilitation and ability to practice medicine, then the Board would consider an application for reinstatement prior to the expiration of 3 years. However, this was. not a condition to reinstatement. Appellant is free to wait 3 years and to reapply without doing the things recommended by the Board.
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Elliott, J.:
Daniel C. Sullivan, Jr., appeals the trial court’s denial of his request for injunctive relief from a condemnation proceeding. The City of Ulysses (City) is attempting to condemn surface and water rights in Grant County for its municipal water supply.
We affirm.
In 1989, Marie Coffey, who owned the property at the time, contracted with the City for the sale of water. The agreement did not provide for the transfer or lease of water rights; rather, the contract treated the water as personalty. The City then filed an application with the Division of Water Resources (Division) for approval to change the place of use, point of diversion, and use made of the water from irrigation to municipal purposes.
The Division informed the City that it could not lawfully drill a well without a permit. The City, however, constructed a well on the property and started pumping water for municipal purposes. The City administrator testified that the well is located less than 5 miles from the city limits.
To complicate matters, Marie and Richard Coffey conveyed the property by warranty deed in 1991 to Sullivan without expressly excepting the water rights. The Coffeys apparently believed they still owned the water rights because, in 1994, they sued Sullivan and a bank, seeking to reform the deed so they could retain the water rights. Neither the City nor the chief engineer was named in that suit.
Sullivan then told the City it was illegally converting water contrary to the Kansas Water Appropriation Act, K.S.A. 82a-701 et seq. The City felt Sullivan’s demand was premature due to the lawsuit pending between Sullivan and the Coffeys. After briefs were filed in the present appeal, a district court found that Sullivan owned the water rights. The Coffeys have appealed that decision, which appeal is now pending as Coffey v. Sullivan, No. 77,661.
Meanwhile, the City’s application to change the water’s use was returned several times for lack of necessary information and, apparently, that application still pends before the chief engineer after some 6 years.
While the Division never sent the City a formal cease and desist order, the City eventually stopped pumping water from the well and stopped making payments to the Coffeys under their contract.
Finally, the City filed its condemnation proceeding, alleging the taking was necessary to provide a reliable public water supply and a location to dispose of waste water. Sullivan responded by filing a separate action against the City and the chief engineer, seeking to permanently enjoin the condemnation of the property. Sullivan also sought damages, a declaratory judgment, and an order in mandamus.
In September 1995, a temporary injunction was issued and the matter was rescheduled for hearing on October 12,1995, at which time the trial court indicated the temporary injunction would be dissolved and either a permanent injunction would issue or the condemnation would be allowed to proceed. After hearing evidence at the October hearing, the trial court denied Sullivan’s request for a permanent injunction and subsequently stayed the condemnation proceeding pending resolution of this appeal.
Sullivan first contends the trial court erred in finding the City had complied with statutory procedures to condemn the property and water rights. This argument raises a question of law, and our scope of review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The trial court found that K.S.A. 12-694 specifically granted the City the power to condemn the property in question. The State has inherent powers of eminent domain, which the legislature may delegate to any public authority. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 226, 523 P.2d 755 (1974).
K.S.A. 12-694 provides that a city may acquire, by exercising its eminent domain powers in accordance with the Eminent Domain Procedure Act (K.S.A. 26-501 et seq.), all lands necessary to establish a public well within 5 miles of the city limits, or within 20 miles of the city where it is necessary in order to obtain an adequate water supply.
Sullivan argues K.S.A. 12-694 does not permit the condemnation of water rights because the statute does not specifically mention water rights. Relying on K.S.A. 1995 Supp. 77-201 Eighth and K.S.A. 82a-701(g), Sullivan argues that because condemnation involves an involuntary transfer, an appurtenant water right cannot pass with the land unless the eminent domain statutes expressly confer the authority to condemn water rights. We disagree.
Sullivan’s interpretation would simply nullify those statutes which grant public authorities eminent domain power in order to acquire water rights. See Peck & Weatherby, Condemnation of Water and Water Rights in Kansas, 42 Kan. L. Rev. 827, 832 (1994). Further, to read K.S.A. 82a-701(g) as limiting the power of eminent domain to acquire a water supply would be contrary to the legislature’s intent to grant cities the power to obtain a viable water source through condemnation.
K.S.A. 1995 Supp. 77-201 Eighth states that “land” includes all legal and equitable interests in real property. The legislature has deemed water rights to be real property rights, see K.S.A. 82a-701(g); therefore, these rights would clearly be interests in real property. Accordingly, we hold a water right is included within the definition of “land” under K.S.A. 1995 Supp. 77-201 Eighth and, thus, is subject to condemnation pursuant to K.S.A. 12-694.
Sullivan also wants us to interpret the 5-mile requirement in K.S.A. 12-694 to mean the length of the required pipeline rather than the linear distance the well is located from the city limits. We think the statute clearly means the linear distance from where the well is established to the city boundary.
Given our reading of K.S.A. 12-694, questions of whether other statutes also grant the City condemnation powers become moot. We further note we express no thoughts about the current ownership of the water rights here involved; that matter will be decided in Coffey v. Sullivan, No. 77,661.
Sullivan also contends the City must obtain the Division’s approval to change the use of water from irrigation to municipal purpose before it can actually condemn those water rights. K.S.A. 1995 Supp. 82a-708b requires the owner of a water right to obtain the Division’s approval.
We think 82a-708b should be interpreted to permit a city with the power of eminent domain to apply for a change in use as an “owner” because the city will become die “owner” after complying with the Eminent Domain Procedure Act. See Peck & Weatherby, 42 Kan. L. Rev. at 834; accord Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974).
A city with the power of eminent domain is not barred from filing an application to change the water’s usage under 82a-708b before acquiring that water right. K.S.A. 12-694 gives no indication that 82a-708b must be complied with before initiating condemnation proceedings. If the legislature had wanted to impose such a condition on a city, it could easily have done so.
Sullivan also wants us to determine whether the application currendy pending before the chief engineer is valid and whether the City violated various provisions of the Water Appropriation Act. Neither the chief engineer nor the trial court has made any definitive rulings on these issues. Issues associated with the pending application are neither ripe nor properly before us for review. See Stone v. Kansas State High School Activities Ass’n, Inc., 13 Kan. App. 2d 71, 79, 761 P.2d 1255 (1988).
Sullivan also argues that any water right acquired for a change of use after acquiring the property would be subordinate to the existing property right. Suffice it to say, .the City is condemning both the surface and the water rights on the property. Accordingly, the person or persons ultimately found to currently own the water rights in the other pending appeal will no longer have .water rights after condemnation. They will only be entitled to just compensation for the water rights and surface béing condemned.
Sullivan further claims the trial court erred in failing to enjoin the condemnation proceedings based on the City’s fraud and bad faith. The City is vested with reasonable discretion to determine what property is necessary for municipal purposes, and the exercise of that discretion will not be disturbed absent fraud, bad faith, or an abuse of discretion. See Steele v. Missouri Pacific R.R. Co., 232 Kan. 855, 861, 659 P.2d 217 (1983). Because public officials are presumed to perform their public functions properly, the burden rests with the party raising those allegations. Bowers v. City of Kansas City, 202 Kan. 268, 271, 448 P.2d 6 (1968). And in reviewing Sullivan’s allegations, the conditions existing at the time of the condemnation are to be considered. See Soden v. State Highway Commission, 192 Kan. 241, 245-46, 387 P.2d 182 (1963).
Here, the trial court ruled that Sullivan failed to carry his burden to establish any fraudulent, bad faith, or abusive action by the City. These rulings are negative findings which we will not disturb absent a showing of an arbitrary disregard of undisputed evidence or of bias, passion, or prejudice. Duncan v. City of Osage City, 13 Kan. App. 2d 364, 369, 770 P.2d 843, rev. denied 245 Kan. 783 (1989).
Fraud
The record shows the City believed it was executing a valid contract with the Coffeys. Given that belief, it naturally follows the City would have the agreement and easements recorded to notify the public of the City’s interest in the property. In addition, the City did not attempt to obtain Sullivan’s signature on the application to change use because the assistant city administrator did not know Sullivan claimed to own the water rights. Since the issue of who currently owns the water rights is still pending in litigation, it cannot be said the City knowingly deceived Sullivan by failing to obtain his signature on the application.
The trial court properly ruled that Sullivan failed in his burden to establish fraud on the part of the City.
Bad faith
The record clearly demonstrates the City did attempt to negotiate with Sullivan to purchase the water rights, but Sullivan revoked his offer to the City after the Coffeys filed suit against him to resolve ownership of the water rights. The City then waited for almost a year before instituting the condemnation proceedings. The trial court did not err in finding Sullivan failed to cany his burden on the bad faith issue.
Abuse of discretion and unlawful purpose
The trial court found it to be obvious from the evidence presented that the City was in need of the water supply it sought to obtain and that “taking of the land by condemnation with its water right will not exceed what is necessary for the City to operate.”
The record reveals that at the time the City adopted the condemnation resolution, it had before it population growth studies, its water records, and the recommendation of its water superintendent. It cannot be said the City did not adequately determine its need for a new water source justified the taking at issue, and the trial court did not err in finding Sullivan failed to carry his burden on this issue.
Finally, Sullivan claims his procedural due process rights were violated by the trial court’s failure to inform him that the October 12, 1995, hearing would resolve the issue of the permanent injunction. We cannot find in the record any indication that Sullivan raised this claim in the trial court. See In re M.M.L., 258 Kan. 254, 900 P.2d 813 (1995).
Even assuming this issue is properly before us, it lacks merit. A hearing for a temporary injunction may be consolidated with a trial on the merits for a permanent injunction so long as the parties are not prejudiced. Omni Outdoor Advertising of Missouri, Inc. v. City of Topeka, 241 Kan. 132, 138, 734 P.2d 1133 (1987).
On September 11,1995, the trial court granted Sullivan’s motion for temporary restraint until a hearing could be held on October 12, 1995. The trial court clearly stated the temporary injunction would be dissolved at that time and either a permanent injunction would issue or the condemnation would be allowed to go forward. Also, the trial court specifically asked Sullivan if he had anything further to add. Clearly, Sullivan received sufficient notice to apprise him that the October hearing would include the permanent injunction issue. Sullivan received procedural due process. See In re Kershner, 250 Kan. 383, 386, 827 P.2d 1189 (1992).
The trial court also refused to admit some depositions taken in the case in which the City and the chief engineer were not parties and were, therefore, not afforded cross-examination privileges. The trial court did not abuse its discretion in refusing to admit those prior depositions, and no prejudice has been established by Sullivan.
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Gernon, J.:
This is an appeal by David McKune and other officials of the Lansing Correctional Facility (LCF) from an order granting part of Lafe Gilmore’s petition for writ of habeas corpus in which he challenged his placement in a newly created classification/status.
The district court ruled that the policy memorandum which created and defined an “unassigned for cause" status was invalid because the filing and publication requirements under K.S.A. 77-415 et seq. for rules and regulations were not fulfilled.
The parties agree on the facts. McKune, the warden of the LCF, issued a policy memorandum dated June 12,1995, which was designated to serve as a temporary inclusion to the facility’s General Order 19,103. The policy memorandum states, in part:
“Effective immediately, Inmates shall be considered as Unassigned for Cause under the following provisions and for the periods specified.
“Unassigned for Cause (UAC) shall be defined as those inmates found guilty of a Disciplinary Report that involved any of the following: an upgrade in their security custody classification resulting in transfer to a higher custody housing unit, those that are separated from employment or programming due to placement in segregation, or removal from employment/programming that was related to that assignment. This shall include those inmates who have refused to accept employment assignments or required programming.
“Those inmates assigned UAC status related to employment or programming shall remain in said status for a minimum period of 90 days. All other inmates assigned this status shall remain UAC for a minimum of 30 days. This shall be monitored by the Unit Team. Said status shall begin upon the assigning of UAC status at time of transfer or upon a guilty finding of an applicable Disciplinary Report or release from Disciplinary Segregation status.
“Inmates on UAC status shall not be eligible for any assignment to employment or programming during this period. As such, they shall not be entitled to receive any incentive pay. Inmates assigned UAC status are considered to be eligible for all privileges provided to the inmate population except those specifically prohibited by other [Internal Management Policies and Procedures], General Orders or Policy Statements.”
Gilmore, an inmate at LCF, was housed in the medium security section of the facility. Gilmore was offered but refused to participate in basic education and sex offender treatment programs. As a result of his refusal and the implementation of the new policy, Gilmore was assigned UAC status. He was also moved to different housing at LCF pursuant to another policy change which required mandatory rehousing for inmates who refused to participate in programming.
Gilmore filed a petition for writ of habeas corpus pursuant to K.S.A. 60-1501, in which he challenged his removal from the medium security unit and his changed classification. The district court rejected Gilmore’s arguments concerning his mandatory transfer from the medium security unit to different housing. However, the court granted that portion of Gilmore’s petition which challenged the June 12, 1995, policy memorandum.
The district court found the memorandum constituted a rule or regulation as defined by K.S.A. 1996 Supp. 77-415(4) and, therefore, was invalid since the filing and publication requirements under K.S.A. 77-415 et seq. had not been met. The officials at LCF timely appeal from this ruling.
LCF argues the district court erred in finding that the policy memorandum was a rule or regulation as defined by K.S.A. 1996 Supp. 77-415(4). LCF contends the policy memorandum was an order issued by the warden of LCF pursuant to K.S.A. 1996 Supp. 75-5256 and is exempt from the filing and publication requirements of K.S.A. 77-415 et seq.
Gilmore contends the legal theories LCF raises on appeal are not properly before this court because they were never presented to the district court. See Sharp v. State, 245 Kan. 749, 753, 783 P.2d 343 (1989) (“A legal theory may not be asserted for the first time on appeal.”), cert. denied 498 U.S. 822 (1990). Gilmore recognizes diere is an exception to this general principle where the new theory involves only a question of law that may be decided on established facts but maintains the present situation does not fall within this exception. See Jones v. Hansen, 254 Kan. 499, 501-02, 867 P.2d 303 (1994).
We conclude that LCF’s contentions do fit within this exception because they concern questions of law and may be decided on the facts presented at trial. Gilmore maintains there is no evidence showing the reason for the policy or the authority which the warden relied upon in implementing the UAC policy. This type of evidence, while helpful, is not determinative of the legal issues raised in this case. Moreover, Gilmore was given a full and fair opportu nity to brief and argue the issues before this court. Accordingly, LCF’s contentions can be entertained on appeal.
At the outset, we note that the policy or order at issue in this case does not raise a constitutionally protected right, but rather appears to involve the administrative function necessaiy for the day-to-day management of LCF. See Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 429-30, 115 S. Ct. 2293 (1995). Since courts should refrain from reviewing prison officials’ decisions regarding these type of matters, the district court and this court could have summarily dismissed Gilmore’s contention on that basis. See Lile v. Simmons, 23 Kan. App. 2d 1, 3-4, 929 P.2d 171 (1996). However, since the law regarding the issuance of a policy or order of the nature in question needs further clarification, we will address the merits of LCF’s appeal.
Resolving this issue requires this court to review the trial court’s conclusion of law and its interpretation of several statutes. These determinations involve questions of law over which this court has unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). “When determining a question of law, [an appellate] court is not bound by the decision of the district court.” Memorial Hospital Assn, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The district court found the policy memorandum fell within the definition of a rule or regulation under K.S.A. 1996 Supp. 77-415(4) and concluded that it was an improper attempt to issue a temporary rule under K.S.A. 77-422. The court stated:
“The only argument made by the respondent on this issue is ‘the unassigned for cause status and the housing of UAC inmates policies were published by their placement in the General Orders after approval by the principal administrator allegations are without merit [sic].’ (resp. brief p. 10) The Court has not been provided with any authority that indicates that placement in General Orders after approval by the principal administrator satisfies the requirements of filing and publication set forth in K.S.A. 77-415 through 77-437. Therefore], the Court finds that the memorandum of June 12,1995 should be set aside until such time as the filing and publication requirements are met.”
K.S.A. 1996 Supp. 77-415(4) states, in part:
“ ‘Rule and regulation,’ ‘rule,’ ‘regulation’ and words of like effect mean a standard, statement of policy or general order . . . of general application and having the effect of law, issued or adopted by a state agency to implement or interpret legislation enforced or administered by such state agency or to govern the organization or procedure of such state agency. Every rule and regulation adopted by a state agency to govern its enforcement or administration of legislation shall be adopted by the state agency and filed as a rule and regulation as provided in this act. The fact that a statement of policy or an interpretation of a statute is made in the decision of a case or in a state agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render the same a rule and regulation within the meaning of the foregoing definition, nor shall it constitute specific adoption thereof by the state agency so as to be required to be filed. A rule and regulation as herein defined shall not include any rule and regulation which: (a) Relates to the internal management or organization of the agency and does not affect private rights or interest; (b) is an order directed to specifically named persons or to a group which does not constitute a general class and the order is served on the person or persons to whom it is directed by appropriate means.” (Emphasis added.)
In Bruns v. Kansas State Bd. of Technical Professions, 19 Kan. App. 2d 83, 864 P.2d 1212 (1993), aff’d 255 Kan. 728, 877 P.2d 391 (1994), this court considered whether an internal policy of a state board constituted a rule or regulation under 77-415(4). In Bruns, the Board of Technical Professions (BTP) denied Bruns’ application for a professional engineering license based on reciprocity and waiver of the examination. The BTP based its decision on a written internal policy which denied a license by reciprocity when the applicant’s license from the state of original licensure was no longer valid. Bruns appealed to the district court, which affirmed the BTP’s decision.
On appeal to this court, Bruns argued the written policy was a regulation which was invalid because it was not filed and published. This court recognized that 77-415(4) defines a rule or regulation as a statement of policy of general application that has the effect of law. Applying this definition to the policy in question, we stated:
“The ‘policy’ under consideration here has general application to all persons applying for a professional engineering license by reciprocity or comity. We see this application as being broad enough to satisfy the requirement of ‘general application.’ Under its policy, the BTP denies, in a summary fashion, any application for licensure by comity with another state if the original license has been permitted to lapse. The BTP certainly treats its internal policy as having the effect of law, and we conclude that it does have the effect of law under the circumstances shown.
“In addition, the statute defines a ‘rule’ or ‘regulation’ as a ‘statement of policy’ issued to ‘interpret legislation enforced or administered by [a] state agency.’ It specifically provides that ‘[ejvery rule and regulation adopted by a state agency to govern its enforcement or administration of legislation shall be adopted by the state agency and filed as a rule and regulation as provided in this act.’ Under the facts shown, we conclude that the written policy in this case was passed by the BTP and utilized by the BTP to ‘govern its enforcement or administration of legislation.’ Indeed, in this case, the BTP argues that it passed the policy in question to implement or interpret the provisions of K.S.A. 74-7024(a).” 19 Kan. App. 2d at 87.
This court held the policy was a rule or regulation, as defined by statute which had to be filed and published to have any force and effect. 19 Kan. App. 2d at 87-88. This court then reversed the district court, since the policy had not been filed or published as required by law.
A rule or regulation is a standard, policy statement, or general order of general application, which has the effect of law, adopted or issued by a state agency to interpret legislation enforced or administered by that agency. K.S.A. 1996 Supp. 77-415(4).
Here, the policy memorandum states that an inmate is assigned UAC status after being found guilty in a disciplinary report for the following: refusing to accept employment or required programming, being separated from employment or programming due to placement in segregation, changing security classification which results in a transfer to a higher custody housing unit, or being terminated from employment or programming. This policy is generally applied to all inmates at LCF. In our view, the policy’s application is not broad enough to cover the requirement of “general application” and, thus, distinguishes this case from Bruns.
There is no indication from the record that other correctional facilities under the Department of Corrections (DOC) have implemented or are required to implement the policy in question. Gilmore points out that the corrections manager at LCF testified that UAC status falls under both the DOC’s Internal Management Policies and Procedures (IMPP) and the general orders of the facility. However, the corrections manager clarified that each insti tution has discretion in adopting the UAC policy because each facility determines the manner in which inmates are housed.
We, therefore, find that the policy at LCF does not fulfill the “general application” requirement under K.S.A. 1996 Supp. 77-415(4) because it does not apply to all inmates in the custody of the DOC. Therefore, the district court erred in concluding the policy was a rule or regulation under 77-415(4).
LCF argues the policy memorandum is an order under K.S.A. 1996 Supp. 75-5256, which provides:
“(a) The warden of each correctional institution may issue orders subject to the provisions of law and the rules and regulations adopted by the secretary of corrections, as the warden may deem necessary for the government of the correctional institution and the enforcement of discipline therein.
“(b) All rules and regulations or orders for the government of a correctional institution and the enforcement of discipline therein adopted or issued by the secretary of corrections and all orders issued by the warden of the correctional institution shall be published and made available to all inmates, other than rules and regulations and orders relating to emergency or security procedures. Every order issued by the warden of a correctional institution shall be effective until rescinded or amended by the warden or until disapproved by the secretary.”
In this case, the policy memorandum was issued by LCF’s warden and expressly states that it is to serve as an addition to a facility general order until the order is revised. Additionally, the UAC policy was adopted to encourage inmates to participate in employment ■ assignments and programs. Implied within these policies is the fact that LCF finds this policy necessary for the proper management and enforcement of discipline at the facility. Therefore, we conclude that the policy memorandum falls within the definition of an order issued by the warden of a correctional facility under 75-5256.
Under K.S.A. 77-421a, orders issued by the director of a correctional facility are not subject to the filing and publication requirements of K.S.A. 77-415 et seq. before taking effect. However, K.S.A. 1996 Supp. 75~5256(b) requires that the warden’s orders, other than those relating to emergency or security procedures, be published and made available to all inmates. These orders are then effective until rescinded or amended by the warden or disapproved by the Secretary of Corrections. Here, there is no dispute that the memorandum in question was issued and pub lished with the general orders throughout LCF. Thus, the policy in question became effective when published and made available to the inmates at LCF.
Gilmore contends the policy in question is unlawful because it conflicts with K.A.R. 44-5-105(c)(l) by imposing a penalty for those inmates who refuse programming. K.A.R. 44-5-105(c)(l) states:
“Any inmate may elect not to participate in a formal program plan. In such an event, that inmate shall not be prohibited from participating in any programs as are available, but the inmate shall first obtain the recommendation and approval of the unit team. The unit team may recommend the inmate for parole eligibility based on the inmate’s rehabilitation progress accomplished by the inmate’s own initiative. The inmate shall not be penalized for refusal to participate in a formal program plan. The inmate shall nevertheless be subject to all the regulations of the secretary and the orders of the principal administrator, and shall be required to participate in any work assignments which are made by the unit team.” (Emphasis added.)
Generally, an agency may not disregard its own rules and regulations, and where it fails to follow the rules which it has promulgated, its orders are unlawful. Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 100, 697 P.2d 1279 (1985). As Gilmore notes, the corrections manager at LCF testified that assignment to UAC imposes a penalty on an inmate for refusing programming by preventing him from obtaining employment or programs for a certain time period.
“In its plain ordinary sense ‘penalty’ means to be put to a disadvantage, loss or hardship due to some action, such as a transgression or error.” State v. Finley, 199 Kan. 615, 620,433 P.2d 414 (1967).
The loss of employment and programming which results from being assigned UAC status does suggest that the policy is such a penalty which contravenes K.A.R. 44-5-105(c)(l). However, since the operation of penal institutions is solely an executive function, the policy Gilmore challenges must clearly show an infringement of a constitutional right, shock the general conscience, or be intolerable to fundamental fairness before the judicial branch will interfere. See Swisher v. Hamilton, 12 Kan. App. 2d 183, 184, 740 P.2d 95, rev. denied 242 Kan. 905 (1987).
As the district court recognized, the DOC is given broad discretion in housing and classifying inmates. See K.S.A. 1996 Supp. 75-5210. Moreover, an inmate does not have a constitutionally protected liberty interest in housing, classifications, or employment. Moody v. Daggett, 429 U.S. 78, 88 n.9, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976) (inmates do not have a right in classification or eligibility for rehabilitative programs); Meachum v. Fano, 427 U.S. 215, 224, 228-29, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976) (inmates do not have a liberty interest in not being transferred to a different facility); Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994) (inmates do not have a right to employment in absence of statute authorizing such right).
Furthermore, the restrictions imposed by being assigned UAC status do not violate due process because these restrictions do not impose a significant and atypical hardship on a prisoner not contemplated in his original sentence. See Amos v. Nelson, 260 Kan. 652, 666, 923 P.2d 1014 (1996); Murphy v. Nelson, 260 Kan. 589, 601-02, 921 P.2d 1225 (1996); Davis v. Finney, 21 Kan. App. 2d 547, 558-59, 902 P.2d 498 (1995). Thus, the policy does not violate K.A.R. 44-5-105(c)(l) by unduly penalizing an inmate who refuses programming.
Given our findings that the policy in question is not a rule or a regulation, it is not necessary to address the other issue raised by LCF.
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TOBUREN, J.:
Richard E. Keithley appeals the district court’s ruling that his unemployment compensation appeal to the Kansas Employment Security Board of Review (Board) was untimely and that he was not entitled to unemployment benefits even if his appeal was timely.
The district court first found that the appeal to the Board was not filed within the 16-day period provided by K.S.A. 44-709. The “Decision Mailed” date stamped on the referee’s decision is August 23, 1994. Keithley mailed his notice of appeal to the Board on September 9, 1994. He argues that the K.S.A. 60-206(e) 3-day additional time rule applies, because he was served with notice of the referee’s decision by mail.
The resolution of the issue as to whether Keithley’s appeal to the Board was timely filed turns on the interpretation of K.S.A. 44-701 et seq., the Kansas Employment Security Law, and K.S.A. 60-206, the time computation rule found in the Kansas Code of Civil Procedure. Interpretation of statutes are questions of law and this court’s scope of review is unlimited. City of Lakin v. Kansas Employment Security Bd. of Review, 19 Kan. App. 2d 188, 189, 865 P.2d 223 (1993).
K.S.A. 44-709 reads in relevant part:
“(b) Determination. . . .
“(3) Notwithstanding the provisions of any other statute, a decision of an examiner or special examiner shall be final unless the claimant or the most recent employing unit of the claimant files an appeal from the decision as provided in subsection (c). The appeal must be filed within 16 calendar days after the mailing of notice to the last known addresses of the claimant and employing unit or, if notice is not by mail, within 16 calendar days after the delivery of the notice to the parties.
“(c) Appeals. Unless the appeal is withdrawn, a referee, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the examiner or special examiner. The parties shall be duly notified of the referee’s decision, together with the reasons for the decision. The decision shall be final, notwithstanding the provisions of any other statute, unless a further appeal to the board of review is filed within 16 calendar days after the mailing of the decision to the parties’ last known addresses or, if notice is not by mail, within 16 calendar days after the delivery of the decision.
“(e) Time, computation and extension. In computing the period of time for an employing unit response or for appeals under this section from the examiner’s or the special examiner’s determination or from the referee’s decision, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.”
K.A.R. 48-4-1 reads in relevant part:
“A notice of appeal when filed by mail shall be considered filed on the date postmarked. If the postmark on the envelope is illegible or is missing, the appeal filed by mail shall be considered filed as of the date received by the agency less a calculated time reasonably expected to elapse enroute between the place of mailing and the place of delivery, in no case less than three (3) days.”
The referee’s decision contained the following statement:
“"NOTICE: Appeal rights if you disagree with this decision: You have 16 days after the ’’Decision Mailed" date to file an appeal to the Employment Security Board of Review. You may file either in writing at your Department of Human Resources local office or by letter postmarked within 16 days and mailed to the Employment Security Board of Review, 1430 SW Topeka Blvd, Topeka, KS 66612. The Board will affirm or reverse this decision after reviewing the evidence presented at the referee’s hearing.”
K.S.A. 60-206 reads in relevant part:
“The following provisions shall govern the computation and extension of time:
“(a) Computation; legal holiday defined. In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. ’’Legal holiday" includes any day designated as a holiday by the congress of the United States, or by the legislature of this state. When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.
“(e) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.”
By its terms, K.S.A. 60-206(a) is to be applied when the method for computing time is not otherwise specifically provided under any law of this state or any rule or regulation lawfully promulgated thereunder. K.S.A. 44-709 and K.A.R. 48-4-1 provide the method for computing the appeal time applicable to this case. K.S.A. 44-709(c) provides that the referee’s decision is final, notwithstanding the provisions of any other statute, unless an appeal to the board of review is filed within 16 calendar days after the mailing of the decision. K.S.A. 44-709(e) provides that the date of the act from which the period of time begins to run shall not be counted but that the last day of the period shall be included, unless it is a weekend or legal holiday, in which event the period is extended to the next day that is not a weekend or legal holiday. K.A.R. 48-4-1 provides that when filed by mail a notice of appeal shall be considered filed on the date postmarked. There is no contention made in this record that the postmark on the envelope was missing or illegible. The 16th day after the referee’s decision was mailed was September 8, 1994. September 8, 1994, was not a weekend or a legal holiday. Keithley’s appeal mailed September 9, 1994, was not timely.
Keithley cites Quivira Falls Community Ass’n v. Johnson County, 230 Kan. 350, 634 P.2d 1115 (1981); Wheat State Telephone Co. v. State Corporation Commission, 195 Kan. 268, 403 P.2d 1019 (1965); and In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 753 P.2d 304, rev. denied 243 Kan. 779 (1988), in support of his contention that the 3-day mail rule should be applied in this case. They are not on point.
Quivira Falls involved a Board of Tax Appeals order. The relevant issue was whether an appeal was timely filed within the 30-day period provided in K.S.A. 1978 Supp. 74-2426 where the 30th day fell on Sunday and the following Monday was a legal holiday. At that time there was no procedure provided within the applicable statutes or regulations for calculating appeal times and the court applied K.S.A. 60-206(a). By the time of Newton Country Club, the legislature had made the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 1987 Supp. 77-601 et seq., applicable to Board of Tax Appeals and K.S.A. 1987 Supp. 77-613(d) of that act mirrored the 3-day mail time language of K.S.A. 60-206(e). However, the statute did not provide guidance when the last day to appeal fell on a weekend or legal holiday and the court again applied K.S.A. 60-206(a) to determine when the appeal began to run in the event the last day fell on a weekend or legal holiday. In Wheat State, the Kansas Corporation Commission had, by rule and regulation, specifically adopted the provisions of the Code of Civil Procedure providing for 3 additional days where service was made by mail.
“ ‘The time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal to an appeal.’ ” State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1072, 880 P.2d 783 (1994). Keithley’s appeal from the referee’s decision to the Board was not timely, and the decision of the referee became final at that time.
The decision of the district court finding that the appeal was not timely filed is affirmed. The remaining issues are moot.
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Gernon, J.:
Radke Oil Company, Inc., (Radke) appealed the Kansas Department of Health and Environment’s (KDHE) order assessing civil penalties against Radke. The district court, on its own motion, ruled that KDHE lacked jurisdiction to assess a civil penalty under K.S.A. 65-34,113(a) without first convicting Radke of a criminal offense under K.S.A. 65-34,109. The district court voided KDHE’s order for lack of jurisdiction. KDHE appeals the district court’s ruling and its interpretation of K.S.A. 65-34,113(a).
On May 12, 1994, KDHE issued a civil penalty order against Radke. The civil penalty order was issued due to a KDHE environmental scientist’s inspection of the Zip-In convenience store on August 24, 1993. The scientist reported that the Zip-In did not have valid operating permits as required by K.S.A. 65-34,109. At the time of the inspection, the old permits had expired. Invoices supplied to the scientist showed that Radke had delivered gasoline on two separate days when clearly the storage tank permits had expired. The invoices were falsely marked to show that the facility had a valid permit on August 7, 1993.
KDHE assessed a civil penalty of $2,000 for the violations stated in the civil penalty order against Radke. Radke appealed the order on May 24, 1994. A hearing officer upheld the $2,000 penalty. Radke then filed a petition for review with the Secretary of KDHE. The Secretary issued a final order which upheld the $2,000 penalty. Radke then filed a petition for judicial review with the district court.
The district court concluded:
“I’m finding that an administrative agency cannot assess civil penalties for violating a criminal law unless the criminal law violation has been proved with the appropriate burden of proof and attendant protection of the constitutional rights guaranteed in criminal cases, such as trial by jury, providing counsel, due process, beyond a reasonable doubt burden of proof. I think that these statutes under discussion [, K.S.A. 65-34,109; 65-34,113(a),] in this case are clear, and I think they’re unambiguous, and they only require a clear and careful reading. Therefore, and on the basis of that decision, I am finding that this Court does not have jurisdiction to hear the appeal. And further, that the Secretary of [KDHE] did not have the jurisdiction and authority to assess the initial penalties that were appealed, from which this appeal emanated.” (Emphasis added.)
However, in the journal entry filed, the district court changed its decision on the issue of its subject matter jurisdiction. In regard to jurisdiction, the district court held:
“1. This Court has jurisdiction of the parties and of the subject matter.
“5. Under K.S.A. 71-609(a), this Court has jurisdiction ofRadke’s ‘Petition for Judicial Review of Agency Action.’
“10. Radke was never criminally convicted of a violation of K.S.A. 65-34,109(a); therefore KDHE lacked jurisdiction to impose a civil penalty upon Radke under K.S.A. 65-34,113 by reason of a supposed violation of K.S.A. 65-34,109(a).
“11. The ‘Final Order’ was entered without jurisdiction and is therefore void.” (Emphasis added.)
The court voided KDHE’s order as a matter of law and neither heard evidence nor made findings of fact as to the merits ofRadke’s administrative appeal, in which Radke claimed that it had not violated K.S.A. 65-34,109(a).
This is an issue of statutory construction.
K.S.A. 65-34,109 states:
“(a) It shall be unlawful for any person to:
(1) Deposit, store or dispense, or permit any person to deposit, store or dispense, any regulated substance into any storage tank which does not comply with the provisions of this act, the rules and regulations promulgated hereunder, or any order of the secretary;
“(b) Any person who violates any provision of subsection (a) shall be guilty of a class A misdemeanor and, upon conviction thereof, shall be punished as provided by law.”
K.S.A. 65-34,113 states in part:
“(a) Any person who violates any provisions of K.S.A. 65-34,109 or 65-34,110, and amendments thereto, shall incur, in addition to any other penalty provided by law, a civil penalty in an amount of up to $10,000 for every such violation, and in case of a continuing violation, every day such violation continues shall be deemed a separate violation.” (Emphasis added.)
KDHE asks this court to reverse the district court’s order and find that K.S.A. 65-34,109 and K.S.A. 65-34,113(a) provide two separate procedures for punishment and are not interdependent upon each other.
In reviewing KDHE’s argument, this court should grant KDHE deference if its interpretation is supported by a rational basis. See National Council on Compensation Ins. v. Todd, 258 Kan. 535, 539, 905 P.2d 114 (1995). However, KDHE’s interpretation is not binding on this court. If KDHE is mistaken as to the interpretation of these statutes, which is a question of law, this court has an obligation to cure the agency’s action. See 258 Kan. at 539.
K.S.A. 65-34,109 is a strict liability criminal statute. A violation of K.S.A. 65-34,109(a) is a class A misdemeanor. K.S.A. 1996 Supp. 21-4502(l)(a) and K.S.A. 1996 Supp. 21-4503a(b)(l) provide that any person convicted of a class A misdemeanor may be sentenced to confinement for a term not to exceed 1 year and, in addition to or instead of, may be assessed a fine not to exceed $2,500. Additionally, K.S.A. 65-34,113(a) assesses a civil penalty for violating K.S.A. 65-34,109.
The question before this court is whether KDHE must prosecute and convict Radke under K.S.A. 65-34,109 before assessing a civil penalty under K.S.A. 65-34,113(a).
“Generally, environmental statutes are given a broad, liberal interpretation in order to afford the full protection of the act which is being construed.” 3A Sutherland, Statutory Construction § 75.06, p. 430 (5th ed. 1992). However, “[a] penalty provision in a statute should be strictly construed in favor of the person being penalized.” 3A Sutherland, § 75.06, p. 431. See Attorney General v. Biewer Co., 140 Mich. App. 1, 9, 363 N.W.2d 712 (1985).
The argument that Radke relies upon to support the district court’s interpretation is that the language, “in addition to any other penalty provided by law,” (K.S.A. 65-34,113[a]) requires another penalty to be asserted before the assessment of a civil penalty under K.S.A. 65-34,113. The term “in addition to,” by itself, does not require that another penalty be asserted. Rather, the legislature’s use of the term “in addition to” suggests that the legislature either contemplated or intended that parties would be liable for both civil and criminal penalties for violation of K.S.A. 65-34,109(a). How ever, “in addition to” does not, by itself, create a condition precedent.
We are persuaded that the holding in a New York case which interpreted a similar statue is correct and conclude that given our reliance on the reasoning of that case, this case must be reversed.
New York interpreted its statute in City of New York v. Carolla, 48 Misc. 2d 140, 264 N.Y.S.2d 408 (1965). The facts of Carolla involved a civil penalty brought against Carolla under § 692f-1.0 (subd. f, par. b) of the Administrative Code of the City of New York. 48 Misc. 2d at 141. Section 692f-1.0 (subd. f, par. a) “subjects ‘[a]ny person’ who obstructs the roadway beyond the permitted area during construction to a fine or imprisonment.” 48 Misc. 2d at 141. Additionally, § 692f-1.0 (subd. f, par. b) provided: “ ‘In addition, any person who violates the provisions of this section shall be subject to a civil penalty in the sum of one hundred dollars for each and every day the violation exists.’ ” 48 Misc. 2d at 141. (Emphasis added.)
In Carolla, the New York court stated:
“The Legislature obviously intended to provide both criminal sanctions and civil penalties. The use of the words ‘in addition’ appears to intend that the penalties might be cumulative, although there is no apparent intention to preclude the city from proceeding either criminally or civilly. Generally, the courts have refused to impose cumulative penalties in the absence of a clear and definite legislative intent to so provide. [Citation omitted.] However, there is no requirement that the remedies be cumulative. See People v. Briggs (114 N. Y. 56) where the statute made its violation a misdemeanor and also provided for a civil penalty.” 48 Misc. at 142.
The New York court held that Carolla’s acquittal under Section 692f-1.0 (subd. f, par. a), requiring proof beyond a reasonable doubt, did not bar a civil action under Section 692f-1.0 (subd. f, par. b), requiring only a fair preponderance of the evidence. 48 Misc. 2d at 142.
Radke points to the fact that other jurisdictions have held that the term “in addition to” does not mean “in lieu of.” Radke’s argument is that the absence of “in the alternative” or “in lieu of” language shows the legislature intended that a criminal conviction serve as a prerequisite to a civil penalty. Radke emphasizes that both K.S.A. 65-34,109 and K.S.A. 65-34,113(a) are penal in nature, and, therefore, this court must construe them strictly against the State and in favor of the accused. See State v. Schlein, 253 Kan. 205, 209, 854 P.2d 296 (1993).
Our rules of statutory construction are longstanding and often repeated. We look to the plain language of the statute and the overall purpose of the Kansas Storage Tank Act (KSTA), K.S.A. 65-34,100 et seq., to detect the legislative intent behind K.S.A. 65-34,109 and 65-34,113. The KSTA was introduced by the Senate Committee on Ways and Means on April 26,1989, and was passed on April 27,1989, with no documented discussion. Therefore, this court is without documented legislative history on which to draw. Additionally, there is no case law interpreting either of these two statutes.
Of significance is a similarly worded statute, K.S.A. 82a-1216. K.S.A. 82a-1216(a) states: “Any person who violates any provision of the Kansas groundwater exploration and protection act, any rules and regulations adopted thereunder or any order issued by the secretary thereunder shall incur in addition to other penalties provided by law, a civil penalty not to exceed $5,000 for each violation.” (Emphasis added.) This statute refers to K.S.A. 82a-1214, which makes it a class B misdemeanor to willfully violate any lawful rule or regulation relating to water wells. However, the procedural applicability of assessing a civil penalty before a criminal conviction has not been adjudicated under K.S.A. 82a-1216.
The purposes of the KSTA are to “preserve, protect and maintain the waters and other natural resources of this state, and ... to provide for the prompt investigation and cleanup of sites contaminated by a release from a storage tank.” K.S.A. 65-34,105.
By changing K.S.A. 65-34,109(a) to a strict liability crime, the legislature lessened the burden on KDHE to establish, beyond a reasonable doubt, that an accused violated K.S.A. 65-34,109. The legislative history is silent as to why K.S.A. 65-34,109(a) was changed to a strict liability crime. However, it is clear that the Kansas Legislature chose to make it easier to prosecute crimes included in K.S.A. 65-34,109(a) and broadened the class of persons who could be convicted under K.S.A. 65-34,109(a).
In 1989, the Kansas Legislature enacted the KSTA, authorizing the use of environmental plans and programs relating to storage tanks. L. 1989, ch. 186, § 1. In 1984, the federal government enacted the Hazardous and Solid Waste Amendments, requiring the Environmental Protection Agency to promulgate rules and regulations governing underground storage tanks containing petroleum and other hazardous materials. See 42 U.S.C. § 6991 et seq. (1994).
One interpretation of the applicable federal law is that civil penalties are the preferred or presumptive penalty to be imposed. Under this theoiy, K.S.A. 65-34,113(a) should be interpreted in a way that is consistent with a preference toward imposing civil penalties rather than imposing criminal penalties.
KDHE complains that if the district court’s interpretation of K.S.A. 65-34,113(a) is adopted, double jeopardy would prevent KDHE from ever assessing civil penalties against violators of K.S.A. 65-34,109.
A case which illustrates the authority to charge and convict a defendant of a criminal offense and then subsequently assess civil penalties for the same offense is Helvering v. Mitchell, 303 U.S. 391, 82 L. Ed 917, 58 S. Ct. 630 (1938). KDHE relies on Helvering to support its proposition that 65-34,113(a) imposes a civil penalty and, therefore, requires a lower burden of proof than 65-34, 109. KDHE argues that 65-34,113(a) must have a lower burden of proof to withstand double jeopardy or res judicata effects. K.S.A. 65-34,113(a) appears to have a lower burden of proof. However, if a conviction is always a prerequisite to K.S.A. 65-34,113, then a party acquitted on a reasonable doubt standard of proof could never be tried under a clear and convincing evidence standard of proof.
In Helvering, the United States Supreme Court held:
“The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata. The acquittal was ‘merely ... an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ [Citation omitted.] It did not determine that Mitchell had not wilfully attempted to evade the tax. That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled. [Citations omitted.]” 303 U.S. at 397.
Here, if we adopted the district court’s interpretation of K.S.A. 65-34,113(a), an acquittal under K.S.A. 65-34,109 would always be a bar to assessing a civil penalty. However, a conviction under K.S.A. 65-34,109 would allow KDHE to bring a civil action under K.S.A. 65-34,113(a) against the defendant. Therefore, double jeopardy would not prevent the application of K.S.A. 65-34,113(a) against an acquitted defendant; however, the result would be the same.
Radke complains that KDHE can use K.S.A. 65-34,113(a) to impose a harsher penalty fine than it could under K.S.A. 65-34,109. Under K.S.A. 65-34,113(a), KDHE can impose a fine, not to exceed $10,000 per day, by merely meeting a clear and convincing evidence standard of proof. Under K.S.A. 65-34,109, KDHE would have to meet a beyond a reasonable doubt standard of proof to obtain a maximum $2,500 fine. Therefore, Radke complains that it is always in KDHE’s best interest to impose K.S.A. 65-34,113(a). The potential problems are: (1) Defendants are being denied their constitutional protections under the law, and (2) K.S.A. 65-34,109(b) may become surplusage.
Radke makes a valid argument as to the imposition of fines. However, the simple fact that K.S.A. 65-34,109(b) provides that a penalty of confinement may be imposed prevents this statute from becoming surplusage. See K.S.A. 1996 Supp. 21-4502(a); K.S.A. 65-34,109(b).
KDHE’s argument that the district court lacked jurisdiction to hear this appeal is based on the fact that the district court stated in its oral ruling from the bench that it lacked jurisdiction to hear the appeal. However, KDHE fails to note that the district court clarified or corrected itself in the journal entry.
Here, the parties do not dispute the fact that Radke exhausted all of his administrative remedies and filed a timely notice of appeal to the district court. Moreover, there has been no evidence presented to this court that would suggest that the district court did not have jurisdiction to hear Radke’s appeal.
One could reasonably interpret the district court’s statement that it lacked jurisdiction to hear the appeal as a statement that it lacked jurisdiction to hear the merits of the appeal. This interpretation is supported by: (1) The district court raised KDHE’s lack of jurisdiction on its own motion, and it was not originally part of Radke’s appeal; (2) the district court did not dismiss the case upon finding that it lacked jurisdiction, rather the district court voided KDHE’s order; and (3) the district court clearly stated that it did have jurisdiction to hear Radke’s appeal in the journal entry.
The district court’s findings of fact and conclusions of law set forth in the journal entry control over the original oral pronouncement. K.S.A. 60-258 states: “No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.” Under K.S.A. 60-258, the journal entry filed with the clerk of the court is the effective judgment rather than the district court’s oral pronouncement. Therefore, KDHE should have requested the district court to enter a nunc pro tunc order to conform the journal entry to the district court’s oral pronouncement. However, KDHE has not, done this, nor has it argued on appeal that the journal entry is invalid. Moreover, KDHE is limited by its notice of appeal filed in this case.
KDHE’s notice of appeal states:
“Notice is hereby given that the Kansas Department of Health and Environment and James J. O’Connell as Secretary of the Kansas Department of Health and Environment, pursuant to Supreme Court Rule 2.02, appeals from the Journal Entry of the district court of McPherson County, Kansas, to the Court of Appeals of the State of Kansas.” (Emphasis added.)
This notice of appeal could be read to limit the judicial review of the district court’s decisions to those put forth in its journal entry. In the journal entry, the district court clearly states that it had jurisdiction to hear this case. Neither party has presented any evidence, nor does the record reveal, that the district court was in fact without jurisdiction. Therefore, KDHE’s reliance upon the district court’s oral pronouncement stating that it was without jurisdiction to hear this appeal is without merit.
The district court did not hear any evidence or make any factual findings as to KDHE’s final order. KDHE’s final order was voided solely on the issue of lack of jurisdiction. Therefore, this issue is not ripe for appeal.
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Pierron, J.:
MLK, Inc., d/b/a Metro Construction Association (Metro) appeals the district court’s granting of summary judgment in favor of the University of Kansas and the State of Kansas (collectively referred to as “KU”), in this breach of construction contract case. Metro argues the district court: (1) improperly applied the statutes, rules, and standards governing summary judgment; (2) granted summaiy judgment on an issue of fact of its damages; and (3) erred in finding that Metro breached the contract.
On March 6, 1991, KU and Metro entered into a construction contract for the renovation of the Pearson Scholarship Hall (Pearson Hall) on the KU campus in Lawrence, Kansas. The contract price was $497,532. The contract expressly provided that Metro understood and agreed to “the date of beginning and the time for completion as specified in the Contract of the work to be done hereunder are ESSENTIAL CONDITIONS of this Contract.” General construction was to begin on May 17, 1991, and be substantially complete by August 10,1991. Construction on an elevator and elevator shaft was to commence on April 8, 1991, and be substantially completed on or before September 25, 1991.
Marc McFarland, vice-president and shareholder of Metro, testified that Metro subcontracted nearly 90% of the work. With regard to Metro’s responsibilities, he said it was in change of demolition, rough carpentry, finish carpentry, exterior concrete, clean up, installation of doors, frames and hardware, installation of signage, mirrors, toilet partitions, and toilet accessories.
The Manual of Policies and Procedures (manual) published by the State’s Division of Architectural Services was applicable to the project. Metro states that despite a list of requirements in the manual, the Project Manager, Jim Modig, did not perform the required tasks. Modig testified in his deposition he delegated the on-site details of the construction to Doug Riat, whom Modig supervised and who brought project progress changes and documents to Mo-dig’s attention. Riat was the construction manager for KU and had a Bachelor of Science degree in architectural engineering from Kansas State University.
In a letter dated May 1, 1991, Metro applied for a rain delay claiming they had lost 16 out of the last 23 days due to rain. Riat responded to Metro in a letter dated May 7,1991. The letter stated Riat had checked with the KU weather service and accounted for 5 rain days with an additional day having a trace of rain. Riat also explained to Metro that any request for an extension of contract time must be made on a monthly basis and must itemize the dates in which the delay occurred. .The claim would then be reviewed and either approved or denied. Riat also expressed concern over Metro’s progress on the project.
The construction contract stated: “The Contractor shall submit with his proposal his request for time extension or reduction (if any) and shall include sufficient information and dates to substantiate such claim.” The construction contract also provided in section 17D:
“Provided, further, that the Contractor shall, within ten (10) days from the beginning of such delay, unless the Architect/Engineer shall grant a further period of time prior to the date of final settlement of the Contract, notify the Owner, in writing, of the causes of the delay, who shall ascertain the facts and extent of the delay and notify the Contractor within a reasonable time of his decision in the matter.”
Riat stated in his deposition that he gave no extension for rain days because the 5 days documented with the KU weather service did not exceed the 5-year average for the month of April in the area. He also stated that if there were causes for delay beyond Metro’s control, he needed to discuss any extensions with the KU Housing Department.
On July 10, 1991, Metro wrote a letter to Riat explaining Metro had received the schedule from KU for the project. Metro indicated their scheduling firm examined the progress of the project and Metro in turn informed KU the basement of Pearson Hall would be the only part of the project running past the August 10, 1991, deadline and that would only be by several days. Metro expressed confidence it would be able to meet the contract deadline.
On July 18, 1991, Metro changed its position with regard to the completion date. Metro stated that from May'17, 1991, through July 15, 1991, it received 31 requests for proposed changes to the original scope of the project. Metro admitted many of the changes were minor, but the fire dampers for example, affected the completion schedule. Metro requested a 12-day extension for completion claiming it was not the party requesting changes and any delays were due to unforeseeable causes beyond their control. Metro also requested additional monies for the extended time period.
On July 25, 1991, Riat rejected Metro’s request for a 12-day extension. Riat stated the changes in the project were mostly field directives to simplify Metro’s work and the work had proceeded immediately. He stated that until Metro could show that KU’s changes alone delayed the project, time extensions would be rejected. KU eventually approved 12 changes found in change orders No. 3 & 4. KU did not extend the completion time based on the fact that the changes did not affect the overall project schedule. In a letter dated August 5,1991, Riat again explained to Metro it must definitively show how each individual proposal delayed the project otherwise any time extension would be rejected.
On August 5, 1991, Metro submitted Application No. 4 for payment in die amount of $105,228.72. KU did not immediately process this application and terminated the construction contract with Metro on or about August 15, 1991, for not having the project substantially completed by August 10,1991. Metro signed over the remainder of its contract balances on the project to Metro’s bonding company, American Bonding Company. KU reduced Application No. 4 to $53,359.29 and paid American Bonding on or about January 2, 1992.
KU paid Metro on three out of four applications for payment, and according to McFarland, Metro kept at least $60,000 paid by KU which Metro owed its subcontractors.
On March 2, 1992, Metro filed a petition for damages against KU and the State of Kansas alleging claims of breach of contract (Count I), quantum meruit (Count II), and restitution (Count III). Metro claimed KU wrongfully terminated it from the contract and KU had in fact breached the contract by: (1) providing deficient and defective plan specifications; (2) not paying Metro for performance of extra work; (3) failing to recognize and compensate Metro for differing site conditions; (4) not granting time extensions for excusable delays; and (5) fading to pay Metro for labor and materials furnished to the project.
Metro claimed damages in the following amounts: (1) breach of contract — $281,810.21 plus consequential damages for loss of bonding capacity and loss of profits; (2) quantum meruit— $322,018.85 for the cost of Metro’s work and profit from the beginning of project through August 30, 1991; (3) restitution— $292,071.10 for Metro’s work from the beginning of the project through August 30, 1991.
The largest controversy and main source of confusion and complexity in this case revolves around Metro’s claim for loss of profits as a result of being terminated from the Pearson Hall project. In an amended answer to interrogatories, Metro claimed loss of profits in the amount of $431,000 per year for the time period of 4 months in 1991, all of 1992 and 1993, and 10 months of 1994, plus $36,417 per month for 42 months for the 3.5 years of rebuilding necessary to restore Metro’s reputation. Metro also claimed damages in an Internal Revenue Service (IRS) debt of approximately $70,000, a default on a Small Business Administration (SBA) loan for $109,750, and reimbursement for all payments made to its surety, American Bonding. The total damages claimed by Metro was $3,587,816.81.
Marvin Bimbaum, Metro’s accountant and damages expert, testified in his deposition as to Metro’s loss of profits. Bimbaum estimated Metro would require 3.5 years to rebuild itself in the construction community because of the Pearson Hall fiasco. He stated Metro’s termination destroyed its ability to obtain future surety bonds, which are obtained based upon a contractor’s financial position.
Bimbaum testified he estimated Metro’s lost profits at approximately $437,000 each year since August of 1991 after the Pearson Hall project. He based his opinion on projections of growth since the outset of Metro’s business and what profits would have been had the growth continued during the period of Metro’s rebuilding. However, Bimbaum testified he was not aware Metro had indemnity obligations with American Bonding in an amount close to $480,000, of which $100,000 had nothing to do with the project. Additionally, lie also testified the $437,000 figure probably represented gross profits with operating expenses or administrative expenses and taxes still coming out of that figure in order to represent net profit.
In an accountant’s review report, Bimbaum’s statements show a net profit of $30,493.64 for 1989. However, in a financial report on final review, Bimbaum’s statements show a profit of $25,553.64 for 1989. Yet, McFarland’s income tax statements show a business loss for 1989 of $13,296.00. Bimbaum testified the reason for the discrepancies in the 1989 statements and McFarland’s tax declaration was computation of profits on an accrual basis verses a cash basis. Bimbaum used an accrual basis to figure the financial statement amount, which represented income Metro had earned but not received money for yet. On the other hand, he used a cash basis to figure the tax statement, which depicted only the income Metro had actually received money for. He said this wiped out the accounts receivable and accounts payable.
McFarland testified Metro did $300,000 worth of business at a 17% to 18% profit margin in 1989; $900,000 worth of business at a 26% profit margin in 1990; and prior to termination in 1991, Metro had done $1.4 million in business. He estimated $437,000 gross profit per year after 1991 and after taxes he estimated a net profit of $300,000 to $350,000. McFarland conceded he had not taken his general administrative expenses, approximately 7% to 8%, out of the $437,000. He based his $437,000 gross profit figure on the financial statements of 1989-1991. He stated the financial statements for 1989 and 1990 showed a trend of growth and profitability and the financial statement for August 1991 demonstrated $437,000 in profit.
An accountant hired by KU, James Clinkinbeard, reviewed Metro’s lost profit figures and testified a more realistic number for Metro’s profits in 1991 could be obtained by using the end of the year gross and net profit figures, showing a gross profit of 11.8% and net profit of 3.6%.
In an exhaustive decision, the district court granted summary judgment in favor of KU. In addressing Metro’s proof of damages, the court held Metro provided so many different calculations that it was virtually impossible to determine which figures actually represented Metro’s projected loss of future profits following the Pearson Hall project. The court found Metro’s evidence of damages to be problematic, speculative and not shown with any degree of reasonable certainty.
More importantly, the district court also concluded any loss of future profits due to Metro’s inability to obtain surety for future construction contracts did not arise, in the usual course of things, solely from Metro’s termination from the Pearson Hall project. The court found Metro had indemnity obligations to both American Bonding Company and TransAmerica Insurance Company as a result of projects unrelated to the Pearson Hall project, and TransAmerica had even refused to bond Metro because of those unrelated obligations.
Therefore, Metro’s failure to obtain bonding due to KU’s action could not be proved with reasonable certainty and, hence, the failure of Metro’s business was not a foreseeable consequence of a possible breach of contract in the Pearson Hall project which the parties contemplated when entering the contract.
The district court also denied Metro’s claim of consequential damages for past due tax withholdings for failure to pay the IRS and a SBA loan accepted after Metro was no longer bidding for any new work. The court found a release of levy indicated Metro was no longer hable for the IRS debt and Metro had ample opportunity to avoid liability for the SBA loan, but failed to do so.
The district court also found that even if Metro could have proven its damages with reasonable certainty, it was undisputed that Metro clearly breached the contract prior to its termination from the Pearson Hall project. The court found the contract expressly stated the completion date was an essential condition of the contract because the students would need to occupy the Hall before classes started. The court found Metro was not in a position, almost from the beginning, to complete the contract by the required date and did not follow the proper procedures required by die contract for requesting time extensions. Therefore, as a result of its own breach, Metro could not hold KU or the State liable for any damages resulting from the termination.
Metro first argues the district court improperly applied the statutes, rules, and standards governing summary judgment.
Our standard of review for cases decided on summary judgment is well established:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Sum-. mary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact ánd that the moving party is entitled to judgment as a matter of law. 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 rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
The first summary judgment procedural error claimed by Metro is that KU and the State did not file any pleadings, depositions, answers to interrogatories or affidavits to support their joint motion for summary judgment. Instead, Metro claims KU furnished the district court, in chambers but not filed with the clerk of the district court, with a volume entitled “Depositions and Exhibits” which the court subsequently relied upon in granting the summary judgment motion. Metro argues the “Deposition and Exhibits” volume was not on file as required by K.S.A. 60-256(c) and Supreme Court Rule 141 (1996 Kan. Ct. R. Annot. 162), and the district court erred in relying on same.
The appellate record contains a volume entitled, “Deposition Transcripts and Exhibits.” It is assumed this is the same volume Metro takes issue with, which it has called “Depositions and Exhibits,” since Metro provides no cites to the appellate record in support of its argument.
The record indicates the volume entitled “Deposition Transcripts and Exhibits” was file-stamped in Shawnee County District Court, Division 11, on December 9, 1994, at 3:21 p.m. The case appearance docket also indicates both a motion for summary judg ment and a memorandum in support thereof with attachments were filed on December 9, 1994. Metro provides no authority to the contrary. Metro’s argument fails.
The next procedural error claimed by Metro is the district court’s decision that Metro, not KU, breached the contract and therefore Metro was not entitled to claim any damages.
Metro acknowledges the well-recognized authority permitting the district court to dispose of a case on summary judgment by its own motion. In Phillips v. Carson, 240 Kan. 462, Syl. ¶ 3, 731 P.2d 820 (1987), the court stated:
“A trial court has the inherent authority to summarily dispose of a matter on its own motion where there remains no genuine issue as to any material fact, and, giving the benefit of all reasonable inferences that may be drawn from the evidence, judgment must be for one of the parties as a matter of law.”
Metro also cites Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 816, 676 P.2d 113 (1984), and Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 789-90, 420 P.2d 1019 (1966), as demonstrating the district court’s authority. However, Metro argues these three cases are distinguishable because the case at hand presented no confession of any issue (Phillips — plaintiff confessed judgment for the amount owed), no hearing on the motion for summary judgment (Missouri Medical Ins. — verbal motion for summaiy judgment at trial), and no pretrial conference (Green — summary judgment logically followed pretrial conference where no disputed facts).
Metro contends it prepared its memorandum in opposition to defendant’s motion for summary judgment solely in response to KU’s motion for summary judgment which was expressly limited to damage issues. Very telling is KU’s limiting statement in its memorandum in support of summary judgment: “However, for purposes of summary judgment defendants only present uncontroverted facts on the issue of damages as the issue ... is most amenable to judgment as a matter of law.”
KU does not even address its limiting statement in its briefs on appeal. It appears KU attempted to limit the scope of its summary judgment motion to damages, but since the district court went ahead and found Metro breached the contract, KU did not object.
KU directs the court’s attention to nine uncontroverted facts in its motion for summary judgment which concerns Metro’s breach of contract. KU also points out Metro’s response sets forth 23 pages of controverted statements of how these nine facts were disputed. KU insists Metro denied its own breach and tried to characterize KU as the breaching party. In any event, KU argues the district court was entitled to raise the issue of breach of contract on its own motion based on the evidence presented by the parties.
In addressing the breach of contract issue, Metro argues the district court must not have considered its contentions of incomplete plans and specifications, KU’s noncompliance with the manual of policies and procedures, KU’s failure to make payment pursuant to the contract, and KU’s inflexible position to not extend the contract completion date for any reason.
We find that this portion of the district court’s decision cannot stand. Not only did KU not raise this issue in its summary judgment motion, there appear to be disputed material facts. Therefore, the portion of the decision finding Metro breached the contract, and KU did not, must be reversed.
We do believe the court correctly ruled on the issue of the consequential damages.
KU cites several authorities on the issue of proving lost profit damages with reasonable certainty. See Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974) (damagedpart)'' must not only show injuiy sustained, but also must show with reasonable certainty the amount of damages suffered from breach). “The issue of damages should not be submitted to the jury if no evidence has been presented to support an award of damages. [Citation omitted.]” Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 740, 822 P.2d 617 (1991).
KU has properly set forth a three-part test, established through fundamental contract principles and lost profit caselaw, in order to allow a party to recover lost profit damages. First, the lost profits must have been contemplated at the time of contracting. Second, the lost profits must proximately result from a breach or termination of the contract. Third, the lost profits must be shown with a reasonable degree of certainty. KU argues Metro cites no cases supporting its compliance with these three requirements and, therefore, the district court correctly granted summary judgment in its favor.
Applying these requirements, KU first states that in order to allow loss of profit damages, the court must find that when KU signed the Pearson Hall contract, they contemplated the possibility of paying approximately $3.5 million in damages to Metro and that $3.5 million in lost future profits “naturally flowed” from Metro’s termination from the Pearson Hall project. KU argues the.Pearson Hall contract does not provide for such damages and Metro has provided no evidence to the contrary. Metro argues the district court erred when it considered the foreseeability of consequential damages at the time of contracting rather than at the time of breach.
Kansas courts have long followed the rule of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145, 5 Eng. Rul. Cas. 502 (1854), which states breach of contract damages “are limited to those damages which may fairly be considered as arising in the usual course of things, from the breach itself, or as may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach.” Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 27, 563 P.2d 414 (1977).
In the case at bar, the district court set forth the Restatement (Second) of Contracts § 351 (1979) to address the natural flow of damages. It provides:
Ҥ 351. Unforeseeability and Related Limitations on Damages
"(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.
“(2) Loss may be foreseeable as a probable result of a breach because it follows from the breach
(a) in the ordinary course of events, or
(b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.
“(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.”
KU argues § 351 reemphasizes the established principle that lost profits must be foreseeable to the parties at the time of contracting and that Metro’s $437,000 in lost profits would give Metro “disproportionate compensation.”
In granting summary judgment, the district court correctly held Metro’s failure to get bonding after the Pearson Hall project and the subsequent failure of Metro’s business were not foreseeable consequences of a possible breach of the construction contract.
There is considerable doubt whether Metro’s termination from the Pearson Hall project resulted in the loss of its surety contracts or its future bonding capabilities. The district court correctly recognized this causation problem with Metro’s lost profit damage claim.
The court in Apperson v. Security State Bank, 215 Kan. 724, Syl. ¶ 7, 528 P.2d 1211 (1974), stated: “Damages claimed which were not the proximate result of the breach of contract and those which are remote, contingent and speculative in character cannot serve to support a judgment.” This court in Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399, 409, 870 P.2d 686 (1994) stated: “Reliance damages, as with any other type of damages, must be the proximate result of the breach of contract, and damages which are remote, contingent, and speculative in character cannot serve to support a judgment. [Citation omitted.]”
McFarland conceded Metro had been sued and its bond terminated by TransAmerica Insurance Company on projects preceding and unrelated to the Pearson Hall project. Furthermore, American Bonding submitted claims to Metro for payments on four other projects on which the owners had filed claims with. American Bonding for Metro’s defective work. The district court held Metro’s claim of damages for failing to obtain future bonding did not arise, in the usual course of things, solely from Metro’s termination from the Pearson Hall project. We agree.
The district court also ruled correctly in regard to Metro’s claims for damages for the SBA loan and the IRS hen. Metro is no longer hable on the IRS tax lien as evidenced by the release of levy. Additionally, the record supports the district court’s finding that the SBA loan was accepted by Metro in November 1991, after Metro was no longer bidding for any new work. In the SBA action in U.S. District Court, the court found it uncontroverted that Metro “[o]n or about November 15, 1991, . . . executed and delivered to the North Plaza State Bank a promissory note whereby defendant agreed to pay the bank the sum of Eighty-Five thousand and no/ 100 Dollars ($85,000) with interest at the rate of Ten (10%) per annum on the unpaid balance until paid.”
The district court held Metro had ample opportunity to avoid assuming liability for the SBA loan and failed to do so. The court cited First Nat’l Bank v. Milford, 239 Kan. 151, 158, 718 P. 2d 1291 (1986), which stated: “[Rjecovery will not be allowed for damages that a party should have foreseen and could have avoided by reasonable effort without undue risk, expense or humiliation.”
Affirmed in part, reversed in part, and remanded for further proceedings consistant with this opinion. | [
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Gernon, J.:
Kimberly R. Cox appeals from a jury verdict in favor of Dr. Paul Lesko in a medical malpractice action.
The jury found 70% of the fault attributable to Cox and 30% attributable to Dr. Lesko. Cox contends on appeal that the trial court erred in allowing the jury to consider her failure to attend physical therapy as evidence of comparative fault. She also argues that the trial court erred in limiting the cross-examination of one of Dr. Lesko’s expert witnesses.
After suffering a shoulder injury at work, Cox was referred to Dr. Lesko, who diagnosed her as suffering from traumatic posterior subluxation in the left shoulder. Dr. Lesko performed surgery to repair Cox’s shoulder in January 1991.
One of the issues at trial was Cox’s attendance, or lack thereof, at physical therapy sessions following the surgery. Cox was instructed to attend physical therapy three times per week. However, from April 10 to June 6,1991, she only met with a physical therapist three times..Over the next several months, she continued to miss the majority of her physical therapy sessions. Several doctors testified that physical therapy was essential for rehabilitation.
Cox argues that the trial court erred in instructing the jury on comparative fault. She maintains that the failure to attend some of the physical therapy sessions is relevant to the issue of mitigation of damages rather than comparative fault. She further contends that there was insufficient evidénce to support the instruction. We agree.
During the jury instructions conference, Cox objected to any instructions on comparative fault. Cox argued the real issue was a failure to mitigate damages and not comparative fault. She maintained that once Dr. Lesko committed the negligent act of surgery, everything that happened subsequently did not contribute to the negligence but, instead, to the failure to mitigate damages. The court overruled the objection and instructed the jury that Dr. Lesko claimed Cox was at fault for failing to follow his instructions and for not complying with the physical therapy treatments and appointments.
Cox argues that any fault on the patient’s part which is subsequent to a doctor’s fault and merely aggravates an injury caused by the doctor only affects the amount of damages the patient is to recover and is not to be used as a comparative fault matter. Cox cites numerous cases, including Blair v. Eblen, 461 S.W.2d 370, 372 (Ky. 1970), and Halverson v. Zimmerman, 60 N.D. 113, 119, 232 N.W. 754 (1930), to support her assertion. In short, she maintains that her failure to attend some of the physical therapy sessions only affects the amount of damages she is entitled to recover and, therefore, it was reversible error for the trial court to instruct the jury on comparative negligence.
Dr. Lesko argues that a patient’s negligence which contributes to the harm or injury does not have to occur concurrent with the doctor’s negligence before comparative fault principles apply. He primarily relies upon Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988).
In Wisker, Wisker was injured in a three-wheel motorcycle accident and subsequently was examined by Dr. Hart. Dr. Hart diagnosed him as suffering from a fractured rib that had punctured his liver, causing internal bleeding. After the examination did not reveal any further internal bleeding, Dr. Hart concluded that the injury had stabilized. Another doctor, Dr. Davis, instructed Wisker not to perform any strenuous activities or work or lift anything over 15 pounds because rebleeding could occur. Both doctors told Wisker to contact them if his condition changed. Despite these instructions, Wisker returned to work and reinjured himself. Wisker immediately experienced discomfort and left work. When Wisker arrived home, he was visibly in distress but refused to contact a doctor. He later collapsed and died from internal bleeding.
Wisker s wife sued the treating physicians, alleging their negligence caused Wisker’s death. The jury was instructed on comparative fault and returned' a verdict finding 60% of the fault was attributable to Wisker and 40% was due to medical malpractice. On appeal, the Supreme Court held that sufficient evidence was present to support the verdict. It noted that Wisker had disregarded the advice of his physicians by engaging in strenuous physical labor after suffering a serious injury. The court also noted that Wisker’s failure to seek medical attention after being instructed to do so if his condition changed had a significant impact on his chance of survival. 244 Kan. at 40-41.
Dr. Lesko’s reliance upon Wisker is misplaced. In Wisker, the event which caused Wisker’s eventual death and which precipitated the lawsuit was Wisker’s failure to heed the advice of physicians. Therefore, the jury concluded that the death could hardly have been attributed to any active negligence on behalf of the defendant physicians which was more than 50 percent of the cause of death. In addition, in Wisker, there is no reference to any attempt to have the issue framed in terms of mitigation of damages. Therefore, that issue was not addressed by the Kansas Supreme Court.
It has been stated that “a patient’s failure to follow instructions does not defeat an action for malpractice where the alleged im proper professional treatment occurred prior to the patient’s own negligence.” 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 303, p. 451. See LeMons v. Regents of University of California, 21 Cal. 3d 869, 148 Cal. Rptr. 355, 582 P.2d 946 (1978); Dunn v. Catholic Med. Center of Brooklyn & Queens, 55 App. Div. 2d 597, 389 N.Y.S.2d 123 (1976); Heller v. Medine, 50 App. Div. 2d 831, 377 N.Y.S.2d 100 (1975).
22 Am. Jur. 2d, Damages § 497, pp. 580-81, states in part:
“The doctrine of avoidable consequences is to be distinguished from the doctrine of contributory negligence. Generally, the consequences of contributorynegligence and avoidable consequences occur — if at all — at different times. Contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant. On the other hand, the avoidable consequences generally arise after the wrongful act of the defendant. Damages may flow from the wrongful act or omission of the defendant, and if some of those damages could reasonably have been avoided by the plaintiff, then the doctrine of avoidable consequences prevents the avoidable damages from being added to the amount of damages recoverable.”
The doctrine of avoidable consequences applies to the situation we have before us. The wrongful act was allegedly committed by Dr. Lesko, either with the diagnosis and treatment before or at the time of surgery on Cox’s shoulder. Any damage alleged occurred at those times. We conclude that Cox’s failure to attend physical therapy, under the facts stated here, was not an issue of comparative fault, but was rather a consideration on the issue of mitigation of damages — whether she could have mitigated the consequences of Dr. Lesko’s alleged negligence by attending physical therapy.
This matter is reversed and remanded for a new trial based on the trial court’s allowance of Cox’s failure to attend physical therapy to be considered as having a causal relation to her injuries and the giving of a comparative fault instruction.
Cox next argues that the trial court erred in unduly restricting her from cross-examining Dr. Lesko’s expert, Dr. Rockwood, on his preferred method of treatment. Given our ruling above, this issue is moot. However, we will address this issue in the interest of avoiding a further appeal if the question arises upon remand.
Cox claims the testimony she wanted to elicit from Dr. Rock-wood was relevant in establishing the standard of care in treating the. type of injury she sustained. Dr. Lesko contends that Cox failed to preserve fhis issue on appeal because she did not raise an objection when Dr. Rockwood’s evidentiary deposition was presented to the jury. Dr. Lesko further claims that the trial court properly excluded the testimony because an expert’s personal method of treatment is irrelevant to the standard of care.
Unfortunately, Cox has failed to designate a record on appeal sufficient to establish the claimed error. Neither the transcript of the hearing on the motion in limine regarding this matter, nor the testimony from Dr. Rockwood’s discovery deposition which addressed his preferred method of treatment, is included in the record on appeal. See McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994).
In any event, Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P.2d 190 (1973), is directly on point to the issue raised by Cox. In Karrigan, the plaintiff brought a medical malpractice action based, in part, on the physician’s post-operative care and introduced another doctor, who testified concerning how the second doctor attended to his patients after surgery. The court held the doctor’s testimony on his personal method of treatment was insufficient to establish the accepted norms of reasonable care. The court noted that “[generally, ‘[ejvidence is not admissible to show what another would have done under the circumstances, or that he would have treated the patient in some other way, or to show how the defendant’s treatment of like cases differed from that of other physicians.’ [Citations omitted.]” 212 Kan. at 50.
Kansas courts have recognized that the practice of medicine is not an exact science and, in most instances, there is more than one acceptable approach to treatment. The mere fact that one doctor prefers one method over another does not, by itself, mean that approach is better or preferable to the other. See Delaney v. Cade, 255 Kan. 199, 219, 873 P.2d 175 (1994) (noting this distinction when applying the theory of loss of chance for a better recovery in medical malpractice cases).
To allow Cox to cross-examine Dr. Rockwood on how he preferred to treat these types of shoulder injuries would unduly emphasize one approach over another and was not relevant in determining whether Dr. Lesko deviated from the appropriate standard of care.
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Brazil, C.J.:
Mary F. Kinnett died intestate on March 15,1995. Warren F. Kinnett and Doris J. Palmberg are her surviving heirs (heirs). Mary’s estate consists solely of a $10,000 contract right. During her lifetime, the Kansas Department of Social and Rehabilitation Services (SRS) provided Mary with medical assistance in the amount of $31,106.39. On September 15, 1995, SRS claimed an interest in Mary’s estate and filed a creditor’s petition for an order refusing to grant letters of administration. The same day, the court set the matter for a hearing.
The court found the petition timely, holding that to commence a probate action, the petition must be filed and be set for a hearing within 6 months, but the hearing need not take place within that time period. The court also held that no separate petition for allowance of a demand need be filed where a petition for refusal of letters has been filed. The heirs appeal.
1. Petition for Allowance of Demand
The heirs contend that the court erred in concluding that no separate petition for allowance of a demand is required. In In re Estate of Jones, 3 Kan. App. 2d 63, 65, 588 P.2d 960 (1979), this court held that the appointment of an administrator and the allowance of a demand are separate proceedings which require specific separate petitions.
We conclude that the court correctly reasoned that Jones did not apply to a petition for refusal of letters because such a petition is part of an abbreviated procedure intended to address smaller, non-complex estates. K.S.A. 59-2287 authorizes a district court to refuse to grant letters of administration in certain cases, typically.where the estate of the deceased is relatively uncomplicated. K.S.A. 59-2287(a)(2) allows a creditor to petition for refusal of letters by giving a bond at least equal to the value of the estate and by assuming the obligation to pay the debts of the decedent and distribute the balance of the estate to those legally entitled to receive it. In such a situation, where the creditor controls the distribution of the estate, there is no need for a separate petition for allowance of that creditor’s demand.
Further, in this case the issue is moot because SRS filed a separate petition for allowance of demand. A case is moot where any judgment of the court would be without effect. See Allenbrand v. Contractor, 253 Kan. 315, Syl. ¶ 1, 855 P.2d 926 (1993). K.S.A. 59-2239(1) requires that a petition for allowance of a demand be filed within 4 months after the date of the first published notice to creditors. Notice of SRS’s petition was first published on September 20, 1995, and SRS timely filed a petition for allowance of its demand on January 19, 1996.
2. Commencement of Action
The heirs contend that SRS did not timely commence this ac tion. The heirs rely on In re Estate of Dumback, 154 Kan. 501, 119 P.2d 476 (1941), where the relevant statute provided that no creditor shall have a claim against an estate unless an administrator has been appointed within 1 year after the death of the decedent. The creditor filed his petition seeking an administrator only 1 week before the 1-year period expired, and the court found that the timing of the petition prevented the timely appointment of an administrator. The court held the fact that proceedings to appoint an administrator had commenced within the time period was insufficient to satisfy the statute and provide standing to the creditor. 154 Kan. at 503-04.
Dumback is clearly distinguishable. Under current law, to timely commence an action a creditor must, within 6 months, file a petition and cause it to be set for hearing. K.S.A. 59-2204; K.S.A. 59-2239; In re Estate of Reed, 157 Kan. 602, 612-13, 142 P.2d 824 (1943). The version of K.S.A. 59-2239 interpreted in Dumback, which required the judicial act of appointing an administrator, is no longer in effect. See L. 1976, ch. 245, § 5. The heirs’ argument that some judicial action is needed to commence an action is based on the outdated law of Dumback and lacks merit.
K.S.A. 59-2239 provides that a petition must be filed within 6 months of the death of the decedent. The court found that SRS complied with the time requirement of the statute, and the heirs do not contend that chronologically SRS failed to file its petition within 6 months. After rehearing the matter, the court commented that the method of calculating time was not at issue in the case. Nevertheless, SRS devotes three pages of its appellate brief to time calculation arguments. We need not consider those contentions.
3. KS.A. 59-2239
The heirs argue that the refusal to issue letters procedure does not qualify as an administration under K.S.A. 59-2239. SRS correctly points out that the heirs took the opposite position before the trial court. In response to the trial court’s letter, the heirs stated their belief that a petition for the refusal to grant letters was a “substitute for or the equivalent of 'administration’ and would be in compliance” with K.S.A. 59-2239. “[A] party may not invite error and then complain of that error on appeal.” Manley v. Wichita Business College, 237 Kan. 427, 438, 701 P.2d 893 (1985).
Moreover, the nature of the refusal to grant letters procedure indicates it is a method of administering the estate. See K.S.A. 59-2287. “The basic purpose of 59-2287 is to provide an inexpensive, expeditious method of administering estates that are shown to be within its scope.” In re Estate of Teichgraeber, 217 Kan. 373, 387, 537 P.2d 174 (1975). K.S.A. 59-2239(1) requires “a petition ... for the administration of the decedent’s estate pursuant to K.S.A. 59-2219,” which provides that a petition for administration must state certain information. In this case, the petition for refusal to grant letters includes all the information required by K.S.A. 59-2219 for a valid petition for administration. We conclude that SRS’s petition for refusal to grant letters constitutes a petition for administration sufficient to toll the time requirements of K.S.A. 59-2239.
The heirs also ask this court to determine the effect of the last clause of K.S.A. 59-2287(a)(2):
“[R]eal estate sold in accordance with this section shall be deemed to have marketable title as ordered by the court, and no creditor, heir or other person shall be deemed to have an interest after passage of six months following the date of death.” (Emphasis added.)
The heirs postulate that if no estate proceedings take place within 6 months, the last portion of this clause might act as a universal bar to all creditors’ claims. First, this theory ignores the express language of the statute which by its own terms is limited to marketable title for any real estate sold in accordance with a petition for refusal to grant letters. Second, the heirs did not raise this argument at the trial court level and cannot raise it for the first time on appeal. See University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 356, 887 P.2d 1147 (1995).
4. Standing
The heirs contend that a judicial finding is necessary in order to commence an action and achieve standing. Their argument is based on an alleged conflict between In re Estate of Dumback, 154 Kan. 501, and In re Estate of Reed, 157 Kan. 602. Dumback held that merely filing a petition seeking an administrator was insufficient to satisfy the statute requiring appointment of an administrator within 1 year after the death of the decedent. Reed, on the other hand, held that the timely commencement of an action required both the filing of a petition and the setting of a hearing date.
No conflict is apparent between the two cases. Again, the heirs ignore the fact that the version of K.S.A. 59-2239 addressed in Dumback is no longer in effect. As previously noted, the legislature removed the requirement of appointment of an administrator and instead required the fifing of a petition. The argument that a judicial action or finding is a prerequisite to the valid commencement of an action is based on the obsolete law interpreted in Dumback. The heirs’ contention is unfounded.
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Lewis, J.:
Claimant was an employee of the Boeing Company (Boeing) when he suffered certain work-related injuries. Claimant instituted workers compensation proceedings to recover benefits due to him as a result of these injuries. The parties stipulated to an award in favor of claimant, which decided all of the issues insofar as claimant was concerned. Claimant, as a result, is not a party to this appeal and is no longer interested in the outcome of this action.
One byproduct of the workers compensation action was that Boeing and its insurance carrier, Aetna Casualty & Surety Company, who are the appellants, paid for claimant’s medical treatment, including bills incurred for various pain medications. The issue being litigated is whether the Workers Compensation Fund (Fund) must reimburse appellants for the medications for which they paid.
During the time claimant was being treated by Dr. H. Richard Kuhns, it appears that he began to abuse certain pain medications. Based on the opinions of Dr. Earnest R. Schlachter and Dr. Kenneth D. Zimmerman, appellants argued that a significant amount of narcotic pain medications taken by claimant and paid for by appellants were medically unnecessary. After hearing the evidence on this issue, the Administrative Law Judge (ALJ) held that all narcotic medications prescribed for claimant after August 25,1992, were unnecessary and that the Fund was liable to reimburse the employer and its insurance carrier for the cost of the unnecessary medications.
The Fund appealed this order to the Workers Compensation Board (Board). It is our understanding that the Fund contends that even if some of the medications paid for were unnecessary, substantial fault for this rests with appellants and, accordingly, the Fund should not be responsible. At the time the appeal was taken to the Board, apparently no exact figure as to the amount paid for unnecessary medications had been determined. Although the ALJ determined that all medications prescribed after August 25,1992, were unnecessary, the amount of reimbursement remains an issue on appeal, and the Fund is of the opinion that the finding by the ALJ was erroneous.
The parties were not permitted to litigate the merits of the reimbursement issue. The Board cut the process short by holding:
“The Appeals Board agrees that K.S.A. 44-534a provides authority for requiring the Workers Compensation Fund to reimburse respondent for medical expenses on a claim found not to be compensable. The Appeals Board does not agree, however, that the same provisions authorize retrospective utilization review re lating to the specific medications, procedures or other specific treatment recommended. Utilization review shall be accomplished according to procedures established in accordance with K.S.A. 44-510. The treatment in this case was from an authorized treating physician for a compensable injury. The Appeals Board does not consider K.S.A. 44-534a(2)(b) [sic] to provide authority for ordering the Kansas Workers Compensation Fund to reimburse these expenses.”.
The effect of this ruling by the Board was to terminate the litigation over the unnecessary medications without ever reaching the merits. The Board decided that appellant should have followed K.S.A. 44-510 instead of K.S.A. 44-534a(b), which the Board concluded did not provide any authority for ordering the Fund to pay the expenses in question. On appeal, appellants argue that 44-534a was the proper statute to be followed in seeking reimbursement of unnecessary medical expenses. There is no issue on appeal as to whether certain medications prescribed by Dr. Kuhns were unnecessary. It is conceded by the parties that certain medications may have been medically unnecessary and unreasonable. The question we must resolve is whether the Board was correct in deciding that 44-534a did not provide authority for ordering the Fund to reimburse the expenses in question. A corollary to this issue is whether the Board was correct in determining that relief was available under 44-510. In essence, the only issue we deal with on appeal is what procedure was available to appellants to recover unnecessary medical payments. The exact amount of any such recovery is, as of yet, undetermined.
K.S.A. 44-534a
The procedure followed by appellants is that provided by K.S.A. 44-534a. The Board held this statute did not apply and that it provided no authority for ordering the Fund to reimburse appellants. It was the opinion of the Board that appellants should have sought their recovery through the peer review procedures provided by K.S.A. 44-510.
We begin our analysis with the proposition that under the Workers Compensation Act, it is the duty of the employer to provide an injured worker with the services of a health care provider. K.S.A. 44-510(a).
Under the system established, the health care provider bills the employer and its insurance carrier for the medical costs of caring for and treating an injured employee. The employer pays those expenses, sometimes voluntarily and sometimes pursuant to an award. The Act provides no effective method of litigating the question of whether the medical expenses being billed and paid are necessary and reasonable until after the claim has been disposed of. This is obviously designed to assure that in the first instance treatment for an injured worker takes priority while the claim is in progress.
K.S.A. 44-534a(b) provides:
“If compensation in the form of medical benefits or temporary total disability benefits has been paid by the employer or the employers insurance carrier either voluntarily or pursuant to an award entered under this section or pursuant to an interlocutory order entered by a benefit review officer under K.S.A. 44-5,114 and amendments thereto and, upon a full hearing on the claim, the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed, the employer and the employer’s insurance carrier shall be reimbursed from the workers compensation fund established in K S.A. 44-S66a and amendments thereto, for all amounts of compensation so paid which are in excess of the amount of compensation the emplotjee is entitled to as determined in the full hearing on the claim. The director shall determine the amount of compensation paid by the employer or insurance carrier which is to be reimbursed under this subsection, and the director shall certify to the commissioner of insurance the amount so determined. Upon receipt of such certification, the commissioner of insurance shall cause payment to be made to the employer or the employer’s insurance carrier in accordance therewith.” (Emphasis added.)
As we read the statute, it requires the Fund to reimburse an employer and its insurance carrier for all amounts of compensation paid “in excess of the amount of compensation the employee is entitled to as determined in the full hearing on the claim.” The statute further specifically states that the compensation in question may be “in the form of medical benefits.” As we read the statute, it clearly provides to appellants the remedy they sought and were entitled to once the ALJ determined that all narcotic medications after August 25,1992, were unreasonable. It would seem to require no explanation that unnecessary, unreasonable medical treatments represent compensation under 44-534a to which the claimant was not entitled. Since that compensation had already been paid either to or on behalf of claimant, die statute provides that the Fund shall reimburse the employer and its insurance carrier for any medical compensation deemed to be unnecessary or unreasonable.
Although the Board was not specific, we can only assume that it must have decided that the procedures under K.S.A. 44-510 were more specific and, therefore, those procedures took precedence over the remedy provided by 44-534a.
This is a question of statutory interpretation over which we have unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). We also recognize that an agency ruling within its area of expertise is entided to some deference. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). “However, if the reviewing court finds fiiat the administrative body’s interpretation of a question of law is erroneous as a matter of law, the court should take corrective steps.” Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 379, 892 P.2d 507 (1995). We conclude that the Board’s interpretation of the law was erroneous as a matter of law, and we reverse its decision.
We hold that 44-534a(b) provides a vehicle under which an employer and its insurance carrier may seek reimbursement from the Fund for medical expenses paid on behalf of claimant which have been held to have been unreasonable or unnecessary at the full hearing on the claim.
Our decision is that the remedy provided by 44-534a is one to which appellants were entitled. We are not deciding whether the remedy provided by 44-534a is or could be supplanted by 44-510 because that issue is not before us.
K.S.A. 44-510
The Board concluded that in this case appellants should have pursued “utilization review” in accordance with K.S.A. 44-510.
The following sections of 44-510 deal with peer and utilization review and would appear to be relevant to the matter under discussion.
K.S.A. 44-510(a) states in part:
“(6) The director shall have jurisdiction to hear and determine all disputes as to such charges [for medical treatment] and interest due thereon and shall prescribe procedural rules to be followed by the parties to such disputes.
“(7) If die director finds, after utilization review and peer review, that a provider or facility has made excessive charges or provided or ordered unjustified treatment, services, hospitalization or visits, the provider or facility shall not receive payment pursuant to this section from an insurance carrier, employer or employee for the excessive fees or unjustified treatment, services, hospitalization or visits and such provider or facility shall repay any fees or charges collected therefor.
“(8) Not later than December 31, 1993, the director shall develop and implement, or contract with a qualified entity to develop and implement, utilization review and peer review procedures relating to the services rendered by providers and facilities, which services are paid for in whole or in part pursuant to the workers compensation act. The director may contract with one or more private foundations or organizations to provide utilization review, as appropriate, of entities providing health care services or vocational rehabilitation services, or both, pursuant to the workers compensation act.”
K.S.A. 44-508 states in part:
“(m) ‘Utilization review’ means the initial evaluation of appropriateness in terms of both the level and the quality of health care and health services provided a patient, based on accepted standards of the health care profession involved. Such evaluation is accomplished by means of a system which identifies the utilization of health care services above the usual range of utilization for such services, which is based on accepted standards of the health care profession involved, and which refers instances of possible inappropriate utilization to the director for referral to a peer review committee.
“(n) ‘Peer review’ means an evaluation by a peer review committee of the appropriateness, quality and cost of health care and health services provided a patient, which is based on accepted standards of the health care profession involved and which is conducted in conjunction with utilization review.
“(o) ‘Peer review committee’ means a committee composed of health care providers licensed to practice the same health care profession as the health care provider who rendered the health care services being reviewed.”
We agree that these portions of K.S.A. 44-510 and 44-508 appear to have more specific application to the reimbursement question presented on this appeal. From that vantage point, they may very well become controlling over the remedy provided by K.S.A. 44-534a(b) in cases of this nature. “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
A casual reading of 44-534a indicates that it is the more general of the statutes. It applies to any excess compensation paid and provides a remedy for reimbursement. It would not only apply to medical benefits paid but also to temporary total disability benefits paid. K.S.A. 44-510(a)(7), on the other hand, specifically applies to excessive or unjustified medical treatment or services. It does not simply require Fund reimbursement but provides that the provider of the unnecessary medical services shall be involved in the review and shall be required to repay any fees or charges which he, she, or it collected for medical treatment deemed to be unnecessary or unreasonable.
While it appears that 44-510 may be the more specific procedure, that procedure is not available at the present time. The Director of Workers Compensation was charged by the legislature with prescribing “procedural rules to be followed by the parties to such disputes.” K.S.A. 44-510(a)(6). As near as we can tell, the Director has not done so. We have searched rather diligently and have been unable to find such “procedural rules,” if those, in fact, exist.
K.S.A. 44-510(a)(8) requires the Director to develop and implement utilization and peer review procedures “[n]ot later than December 31,1993.” We do not know whether the Director has done so. What we do know is that we can find no such procedures, and counsel for both parties to this appeal advised us that they are unaware of any such procedures having been developed by the Director.
We conclude that until such time as the Director has complied with the charge made upon him by the legislature, the peer review procedures in 44-510 will remain inactive and ineffective.
At the present time, an attempt to use 44-510 as a vehicle for reimbursement of unnecessary medical expenses paid is a bit like taking a street that dead ends on 5th Street in an attempt to get to 6th Street. The fact is, there just is no way to get there from here. The outline of the procedures by 44-510 appear tempting, but there is no way to access them.
It is apparent to us that the legislature did not intend for the procedures set forth in 44-510 to become effective until the Director developed peer and utilization review procedures as required by 44-510(a)(8). As we have pointed out, to the best of our knowledge, this has not happened. There are no procedures of which we are aware whereby a party can make use of the peer utilization review process. Until such procedures are developed and published, that statute is in a state of limbo and will remain quiescent and ineffective. We hold that the Board erred in directing appellants to utilize a procedure which is not currently available.
In summary, we have an employer and its insurance carrier who appear to have the absolute right to be reimbursed for unnecessary medical expenditures. K.S.A. 44-534a at present provides the only practical method by which this issue can be tried and put to rest. The procedure the Board concluded should have been used does not exist. Under the circumstances, we hold that 44-534a is controlling and may be utilized by an employer and its insurance carrier to recover medical benefits paid on behalf of a claimant which have been determined to be unnecessary and unreasonable. The Board’s order to the contrary is reversed.
This matter is remanded with direction to try on the merits the question of how much, if any, the Fund is required to reimburse appellants for unnecessary medical benefits paid on behalf of the claimant in this case. K.S.A. 44-534a will control the proceedings on remand.
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Green, J.:
This is a workers compensation case. The hearing officer found that the claimant, Linette J. Garrison, had a 14 percent general bodily disability. Because she continued to earn the same wage, the hearing officer found that she had no work disa bility (K.S.A. 1991 Supp. 44-510e[a]). Although Garrison did not appeal this finding, she later filed for review and modification of the award. The hearing officer then modified the award to reflect a partial work disability of 16 percent. Next, Garrison petitioned the Workers Compensation Board (Board) for review of the findings from the review and modification. The Board found that Garrison had sustained a 40 percent work disability. Her employer, Beech Aircraft Corporation, appeals.
The facts of this case are not in dispute. Garrison worked for Beech from September 1978 to February 1994. Garrison developed problems in her wrists and hands beginning in 1991. On February 24, 1994, the Administrative Law Judge (ALJ) granted Garrison workers compensation benefits based upon a 14 percent functional impairment to the body for work-related injuries to the upper extremities. In that award, the ALJ specifically found that Garrison was not entitled to work disability because she continued to work for Beech in a new position which accommodated her work restrictions and paid a comparable wage
Garrison terminated her employment with Beech in April 1994 and filed a request to review and modify the award. On October 12,1994, the ALJ modified the initial award to reflect that Garrison was entitled to a 16 percent “partial work disability.”
The Board later found that the ALJ’s award should be modified. The Board found that the new position provided by Beech for Garrison in Februaiy 1994 was inappropriate and did not accommodate Garrison’s work restrictions. The Board, therefore, found that the presumption of no work disability contained in K.S.A. 1991 Supp. 44-510e was overcome. The Board ruled that Garrison was entitled to a 40 percent permanent partial general disability.
Beech argues that the Board acted improperly in modifying Garrison’s award. Specifically, Beech contends that an award may only be modified where the claimant’s disability has improved or worsened, necessitating review and adjustment. On the other hand, Garrison argues that there were substantial changes in her circumstances which mandated review and modification of the ALJ’s award. She claims that the most significant change was her new position in February 1994 which exacerbated her injury, causing her to resign.
Review of the Board’s decision is now by the appellate courts in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 44-556.
Under K.S.A. 77-621 of the Act, appellate review is explicitly limited to questions of law. See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995). K.S.A. 77-621 states, in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(4) the agency has erroneously interpreted or applied the law;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . ; or
"(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Beech contends that the Board did not have jurisdiction to determine that Garrison had a work disability because when Garrison failed to appeal the hearing officer’s finding of no work disability, this issue became res judicata. Therefore, we must determine whether the hearing officer’s finding that the claimant had no work disability (K.S.A. 1991 Supp. 44-510e[a]) is subject to review and modification under K.S.A. 1991 Supp. 44-528. Whether the Board acted within or exceeded the authority granted in K.S.A. 1991 Supp. 44-528 is a question of statutory interpretation specifically contemplated in K.S.A. 77-621(c)(4).
Beech argues that the Board’s finding that the new position which Beech provided for Garrison was inappropriate and did not accommodate her work restrictions (30 minutes on and 30 minutes off the computer) as well as the Board’s subsequent finding that Garrison had overcome the presumption of no work disability contained in K.S.A. 1991 Supp. 44-510e is violative of the doctrine of res judicata. Essentially, Beech argues that the ALJ made final findings regarding issues that were not subject to relitigation by the Board. This argument is premised upon Beech’s contention that the facts presented to the Board were the same as those presented to the ALJ. In its brief, Beech states:
“[T]he Appeals Board erroneously determined that the claimant had overcome the presumption, utilizing the very same facts concerning claimant’s condition and restrictions that were presented, considered and rejected by Judge Krysl when she issued the original award. In essence, the Appeals Board chose to relitigate the work restriction and work disability issues on review and modification, despite the fact that nothing had changed with respect to claimant’s condition.”
For support Beech cites Randall v. Pepsi-Cola Bottling Co., Inc., 212 Kan. 392, 510 P.2d 1190 (1973). In Randall, the claimant sustained injury to her arm. At the hearing on her workers compensation claim, Randall offered evidence of emotional injury as well. The examiner awarded compensation for the partial loss of use of Randall’s arm but determined Randall’s neurosis had not been caused by the job. Randall filed for review and modification of the award. The Director concluded that he did not have jurisdiction to hear the application for review because the examiner specifically rejected a finding that the neurosis was caused by work. This finding was upheld by the trial court who also ruled that Randall’s claims with regard to neurosis could not be considered upon review and was barred by the doctrine of res judicata. In agreeing with the Director and the trial court, our Supreme Court stated:
“Where a finding by the district court that claimant’s neurotic condition was not a natural consequence of her injury while employed by the respondent becomes final for want of an appeal from the decision thereon, the doctrine of res judicata applies and the claimant is foreclosed from seeking a director’s review and modification under K.S.A. 1969 Supp. 44-528 on the issue of causation. Such finding on the issue of causation is a finding of a past fact which existed at the time of the original hearing. A change in the claimant’s condition of neuroses subsequent to the original hearing will in no way affect a finding that the claimant’s condition of neuroses was not the result of the injury claimant sustained on the job.” 212 Kan. at 396.
However, the Randall court limited its holding as follows: “This is not necessarily true of findings relating to the extent of claimant’s disability. The extent of a claimant’s disability resulting from an accidental injury, where the causal connection is established, at any given time must be based on evidence of the claimant’s condition at that particular time.” 212 Kan. at 396-97.
Here, the Board had evidence concerning Garrison’s position as a schedule compliance clerk and its effect upon her condition. Garrison began the schedule compliance position in February 1994. The ALJ rendered her initial award February 24, 1994. Both Garrison and Beech filed submission letters in February 1994. Beech had a terminal date of February 3, 1994. Because the ALJ emphatically stated that she would not consider evidence submitted after the terminal dates, the ALJ did not consider Garrison’s schedule compliance position or its affect upon Garrison’s injury before rendering her initial award. In its findings of fact, the Board stated:
“Because of a brain tumor, claimant temporarily left work in November 1993. After recuperating from brain surgery claimant returned to work for respondent in February 1994 and was assigned to the position of schedule compliance. In this position, claimant used a computer to determine shortages of parts and then telephoned suppliers to expedite the delivery of needed items. Although claimant spent approximately one-half of her time on the telephone, the job also required significant use of the computer keyboard which aggravated her overuse symptoms. Claimant testified her symptoms increased while performing this job and that she advised her supervisor and respondent’s first aid department that she could not perform the job without violating her medical restrictions. Claimant also advised her group manager of her physical problems and was told no other jobs were available. Because of the increased symptomatology in her upper extremities, in April 1994 claimant gave respondent two (2) weeks notice of her termination.”
Because the Board necessarily considered evidence of Garrison’s position and the exacerbation of Garrison’s injury that took place after the initial award, Randall is distinguishable. The Board’s determination that the schedule compliance position was not appropriate and did not accommodate Garrison’s work restrictions was based upon new evidence which was not presented to the ALJ.
Moreover, K.S.A. 1991 Supp. 44-528 specifically provides for review where there is a change in the claimant’s “work disability.” “Work disability is: (a) The extent to which the ability of the employee to perform work in the open labor market has been reduced, and, (b) the extent to which the ability of the worker to earn comparable wages has been reduced.” Hughes v. Inland Container Corp., 247 Kan. 407, 417, 799 P.2d 1011 (1990). Therefore, the Board’s findings with regard to Garrison’s ability to earn a comparable wage are precisely those contemplated by the statute.
Beech next argues that review and modification of an award are improper unless the claimant’s medical condition is changed. Beech maintains that “[i]n a workers compensation review and modification proceeding, the issue before the court ‘is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based.’ Brandt [v. Kansas Workers Compensation Fund], 19 Kan. App. 2d [1098,] 1101, [880 P.2d 796, rev. denied 256 Kan. 994 (1994),] citing to 3 Larson, The Law of Workmen’s Compensation § 81-32(a) (1993).”
In Brandt, on which Beech heavily relies, this court held that a worker who has a preexisting injury and has settled with his employer may not seek review and modification of his award with regard to the Workers Compensation Fund alone. The Brandt court reasoned that the Fund’s liability, which is a percentage of the employer’s liability, is necessarily predicated upon findings regarding the employer’s liability. Therefore, where the employer can have no new or increased liability due to settlement, the Fund, likewise, cannot sustain new or increased liability. Although the Brandt court commented upon the propriety of issues raised for review and modification, it did not address the issue before this court. Therefore, Beech’s reliance upon Brandt is misplaced.
Moreover, this court has expressly stated that “K.S.A. 1991 Supp. 44-528(a) does not require that the disability of the worker change for an award to be modified.” Redgate v. City of Wichita, 17 Kan. App. 2d 253, 263, 836 P.2d 1205 (1992). Garrison’s brief emphasizes that 44-528(a) uses the disjunctive “or” and provides for modification under several circumstances. The relevant portions of K.S.A. 1991 Supp. 44-528(a) provide:
“Any award or modification thereof agreed upon by the parties, except lump-sum settlements approved by the director or administrative law judge, whether the award provides for compensation into the future or whether it does not, may be reviewed by the director for good cause shown upon the application of the employee, employer, dependent, insurance carrier or any other interested party. . . . [I]f the director finds that the award . . . is excessive or inadequate or that the functional impairment or work disability of the employee has increased or diminished, the director may modify such award, . . . upon such terms as may be just, by increasing or diminishing the compensation subject to the limitations provided in the workers compensation act.” (Emphasis added.)
See also Morris v. Kansas City Bd. of Public Util., 3 Kan. App. 2d 527, 531-32, 598 P.2d 544 (1979) (where there was a specific finding that claimant’s disability was no different at the time of hearing on request for modification and review than at the time of the original order, court found that disjunctive language of K.S.A. 1978 Supp. 44-528[a] refuted employer’s contention that the statute could support modification of award only when there was a finding that the disability of the workman had changed).
Finally, Beech’s argument that review and modification are improper in this case is problematic as Beech argued in its submission letter that Garrison was protected by the review and modification statute. Beech argued:
“Claimant is also protected from any potential work disability by K.S.A. 44-528, the review and modification statute.. . .
“Claimant does not presently have a work disability since she is still working at Beech earning a higher wage. If the claimant is forced to leave her employment at Beech at some point in the future, the claimant may then file an application for review and modification and be awarded compensation for an actual work disability.”
Consequently, Beech’s argument that the Board erred in applying K.S.A. 1991 Supp. 44-510e must fail.
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Ice, J.:
This appeal by a witness at an inquisition results from findings by the district court following the death of 16-month-old T.H. in Wyandotte County.
The following questions are presented: (1) Did the district court err in refusing to allow the witness to assert a blanket Fifth Amendment right to silence at the inquisition; (2) did the district court use the correct standard to determine whether the witness could properly invoke the Fifth Amendment right in response to the questions asked by the assistant district attorney; (3) did the district court err in determining that the witness did not have a reasonable cause to apprehend danger from a direct answer to the two disputed questions; (4) did the district court err in refusing to quash the subpoena of the witness; (5) is an assistant district attorney authorized to conduct an inquisition; (6) did the district court err in closing the inquisition to the public, secluding the court file and records, and allowing police detectives to remain in attendance at the inquisition; (7) did the district court err in holding the contempt proceedings without a public hearing; and (8) did the district court err in allowing the assistant district attorney to question the witness on matters outside the homicide investigation?
Blanket Fifth Amendment Right to Silence
The witness argues the district court should have allowed a blanket Fifth Amendment right to be asserted in order for the witness to remain totally silent at the inquisition. Further, the witness contends this court should find K.S.A. 22-3101 etseq. violates the Fifth Amendment to the United States Constitution, the Fourteenth Amendment to the United States Constitution, and § 10 of the Kansas Constitution Bill of Rights. In the alternative, the witness requests that this court instruct the district court to allow an as sertion of a blanket right of silence unless the witness is given an unconditional grant of immunity from prosecution for any matter about which the witness testifies.
Interpretation of the inquisition statute is a question of law upon which this court has unlimited review. See State v. Williams, 20 Kan. App. 2d 185, 190, 884 P.2d 755 (1994).
K.S.A. 22-3102 provides:
“No person called as a witness at an inquisition shall be required to make any statement which will incriminate him. The attorney general, assistant attorney general or county attorney may, on behalf of the state, grant any person called as a witness at an inquisition immunity from prosecution or punishment on account of any transaction or matter about which such person shall be compelled to testify and such testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him.”
K.S.A. 22-3104 provides:
“(1) Any person called to testify at an inquisition must be informed that he has a right to be advised by counsel and that he may not be required to make any statement which will incriminate him. Upon a request by such person for counsel, no further examination of the witness shall take place until counsel is present. . . .
“(2) Counsel for any witness shall be present while the witness is testifying and may interpose objections on behalf of the witness. He shall not be permitted to examine or cross-examine his client or any other witness at the inquisition.”
Inquisitions are used for gathering information to determine whether probable cause exists to support a criminal prosecution. An inquisition may also be used, however, to obtain sworn testimony following an indictment. This court, in fact, has previously held that an inquisition can be used to obtain testimony whenever an individual is believed to have information concerning criminal activity. State v. Brewer, 11 Kan. App. 2d 655, 656, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
“An inquisition is in effect a one-person grand jury which provides the attorney general, his assistant, or any county or district attorney with authority to inquire into alleged violations of the law.” State v. Cathey, 241 Kan. 715, 723, 741 P.2d 738 (1987).
K.S.A. 60-407(b) provides: “[N]o person has a privilege to refuse to be a witness.” One of the exceptions to this general rule is the constitutional guarantee of the right against self-incrimination contained in the Fifth Amendment to the United States Constitution, which is echoed in the Kansas Constitution and set forth in K.S.A. 60-425.
The Fifth Amendment privilege “ ‘can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory [citations omitted], and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used/ ” State v. Lekas, 201 Kan. 579, 589, 442 P.2d 11 (1968) (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 94, 12 L. Ed. 2d 678, 84 S. Ct. 1594 [1964] [White, J., concurring.]).
The object of the Fifth Amendment is “ ‘to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime/ ” Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973) (quoting Counselman v. Hitchcock, 142 U.S. 547, 562, 35 L. Ed. 1110, 12 S. Ct. 195 [1892]). The privilege is founded on “ ‘our unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury or contempt/ ” Doe v. United States, 487 U.S. 201, 212, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988) (quoting Murphy v. Waterfront Comm’n, 378 U.S. at 55).
An accused in a criminal case cannot be required to testify. K.S.A. 60-423; State v. Nott, 234 Kan. 34, 36, 669 P.2d 660 (1983). Similarly, a person who is the subject of a custodial interrogation by law enforcement officials has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); State v. Lewis, 258 Kan. 24, 31, 899 P.2d 1027 (1995). These protections are absolute, and a person may claim a blanket privilege. “In a criminal trial, a defendant has the absolute right not to be called as a witness.” Nott, 234 Kan. at 36. The witness in this appeal argues a similar blanket privilege should apply to a witness in an inquisition. This issue has not been directly addressed by any published Kansas appellate opinion, and this opinion is intended to clarify that issue.
The first sentence of K.S.A. 22-3102 provides: “No person called as a witness at an inquisition shall be required to make any statement which will incriminate him.” Thus, the inquisition statute contemplates that a person who might make incriminating statements may be called as a witness; it does, however, protect the witness from being required to make incriminating statements. K.S.A. 22-3102 does not expressly protect a witness from being required to answer nonincriminating questions.
The Kansas Supreme Court, in State v. Cathey, 241 Kan. at 722, held that a Miranda warning is not required before a witness is questioned at an inquisition because the warning provided by K.S.A. 22-3104 is adequate. The court held that the district court did not err in refusing to suppress the defendant’s inquisition statement given after the statutory warnings, stating:
“Although the witness’ presence at the inquisition is compelled, the witness’ self-incriminating statements are not. Nor are there any physical restraints on the witness’ freedom. An individual who fails to appear after being summoned or refuses to give a non-incriminating statement is subject to civil contempt, not criminal punishment. Under such circumstances, a warning under Miranda is not constitutionally required. K.S.A. 22-3104’s statutory safeguards are fully adequate to protect an inquisition witness’ constitutional rights, even where that witness is subsequently accused of committing the crime under investigation.” 241 Kan. at 721-22.
Importantly, in Cathey, the court notes the presence of a witness at an inquisition is required, and the failure to give a nonincriminating statement is subject to civil contempt.
Based on the statutory language and the interpretive case law which is available, this court finds that a person called as a witness in an inquisition under K.S.A. 22-3101 et seq. is not provided blanket immunity from answering questions, and the district court correctly required the witness to assert a Fifth Amendment right on a question-by-question basis.
The witness’ argument that Miranda is effectively overruled if the witness does not have a constitutional right to remain silent in an inquisition ignores the distinction made by the Kansas Supreme Court between custodial interrogations and investigatory proceedings. In Cathey, 241 Kan. at 721, the court noted that the Kansas inquisition procedure is an investigatory tool and discussed the distinction between custodial interrogation and investigatory interrogation:
“Custodial interrogation is the questioning of persons by law enforcement officers, initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way. Investigatory interrogation is the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. [Citation omitted.]”
The court concluded that an inquisition “equates with routine questioning of witnesses by law enforcement officers during an investigation of a possible crime.” 241 Kan. at 721. The inquisition procedures simply govern a different sphere of interrogation. Thus, K.S.A. 22-3101 et seq. does not effectively overrule the United States Supreme Court decision in Miranda.
Use of Correct Standard
The witness argues that the district court did not apply the correct standard in evaluating whether the Fifth Amendment right could be invoked in response to the questions asked by the assistant district attorney.
This issue raises a question of law upon which this court has unlimited review. See Williams, 20 Kan. App. 2d at 190.
The protection of the Fifth Amendment applies where “the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). In Hoffman, the witness was convicted of criminal contempt for failure to answer questions before a federal grand jury. The United States Supreme Court discussed the difficult line that must be drawn by the trial court:
“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. [Citation omitted.] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. [Citation omitted.] The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, [citation omitted], and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ [Citation omitted.] However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman, 341 U.S. at 486-87.
The above standard was quoted by the Kansas Supreme Court in State v. Durrant, 244 Kan. 522, 529, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). The court also noted:
“Even if direct use of the compelled testimony itself would not be incriminating, the Fifth Amendment may be invoked if the compelled testimony would lead to the discovery of incriminating evidence. Doe, 487 U.S. at 208 n.6, and case cited therein. Thus, the Fifth Amendment protection applies not only to the potential direct use of the compelled statements, but also applies if such statements might reasonably lead to other incriminating evidence.” 244 Kan. at 528.
The guarantees of the Fifth Amendment are enforced against the States through the Fourteenth Amendment, which holds the States to the same standards that protect those personal rights against federal encroachment. Malloy v. Hogan, 378 U.S. 1, 3, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964); State v. Talsma, 2 Kan. App. 2d 551, 552, 584 P.2d 145 (1978).
In State v. Green, 254 Kan. 669, 679, 867 P.2d 366 (1994), the court noted: “The Fifth Amendment operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose the witness to a criminal charge.”
In this case, the witness argues the case should be remanded for the district court to apply the standard of whether the witness has reasonable apprehension that the answer could be used in a criminal prosecution or could lead to other evidence that might be so used. In essence, the witness argues that the district court should apply the standard announced in Hoffman, 341 U.S. at 486-87. The district court in this case agreed and stated the standard was “that it must be [an] instance where the witness has reasonable cause to apprehend danger from a direct answer.” The witness’ argument that the district court applied the wrong standard lacks merit.
Apprehension of Danger
The witness next contends the district court erred in determining that she did not have a reasonable cause to apprehend danger from a direct answer to the two disputed questions. The witness argues that her apprehension of danger from the two disputed questions is reasonable and that the Fifth Amendment right should apply.
“The standard of review for an order of contempt is abuse of discretion.” Williams, 20 Kan. App. 2d at 187. The issue of whether a question requires an incriminating answer, however, is a question of law subject to unlimited review. 20 Kan. App. 2d at 189-90.
“Fifth Amendment protection applies not only to the potential direct use of the compelled statements, but also applies if such statements might reasonably lead to other incriminating evidence.” Durrant, 244 Kan. at 528. “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman, 341 U.S. at 486-87.
The Hoffman Court stated that the clause of the Fifth Amendment guaranteeing the right to be free from self-incrimination should be liberally construed. 341 U.S. at 486; see State v. Finch, 71 Kan. 793, 796, 81 Pac. 494 (1905). As noted above, the inquisition procedures may be used by law enforcement officials to compel testimony by the target of an investigation where the target might otherwise be able to claim an absolute right to silence. In light of the possibility that the inquisition may be used to circumvent the broader application of the Fifth Amendment in other-contexts, district courts determining whether a question posed at an inquisition is properly within the scope of the Fifth Amendment right should take a broad view of what may result in an injurious disclosure.
The setting of the inquisition certainly gave the witness in this case reason to be cautious. The application for the inquisition states that an autopsy ruled that the death was a homicide. An autopsy report, however, was not provided to the district court nor defense counsel. The application states that the victim’s grandmother “told doctors that the injuries were received at the home.” The application also states that the grandparents and the mother, the witness, have refused to cooperate with the police investigation. It is reasonable for the witness to assume that she is a potential target of the investigation.
Some imagination is required to construct a situation where the first question, “Who is the natural father of [the victim]?” falls within the witness’ Fifth Amendment right against self-incrimination. The district attorney granted immunity from any sex offenses that might have arisen from the conception of the victim. During the inquisition, however, counsel for the witness argued that this question might provide evidence of motive or psychological background that could lead to incriminating evidence. Because the right to be free from compelled self-incrimination should be construed broadly in this context, this court concludes that the witness properly asserted a Fifth Amendment right to this question.
The second question was, “Could you tell me [in] the two weeks prior to [the victim’s] death, who would have had an opportunity to have contact with [the victim]?” This question could lead to incriminating evidence or links in the chain of incriminating evidence. If no one other than the witness had contact with the victim and the autopsy indicates a homicide, this is certainly incriminating evidence. This court concludes that the witness properly asserted a Fifth Amendment right to this question.
In looking behind the witness’ claim of a Fifth Amendment right of refusal to answer specific questions, the court was placing the witness in the position of having to explain why the answer might be incriminating, which, in and of itself, defeats the Fifth Amendment protection.
Refusal to Quash Subpoena
The witness filed a motion to quash the subpoena for her attendance at the inquisition. The district court denied the motion to quash, and the witness argues this was error.
In State ex rel. Cranford v. Bishop, 230 Kan. 799, 801, 640 P.2d 1271 (1982), the court held that a district court has the inherent power and discretion to refuse to issue subpoenas under K.S.A. 22-3101 to avoid abuse of judicial process. In filing the motion to quash, the witness was requesting that the district exercise this discretionary power on her behalf. This court will not reverse the district court’s decision absent a showing of abuse of discretion. See In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995). Discretion is abused if no reasonable person would take the view adopted by the district court. State ex rel. Wolgast v. Schurle, 11 Kan. App. 2d 390, 395, 722 P.2d 585 (1986).
K.S.A. 22-3101(1) provides:
“If the attorney general, an assistant attorney general, the county attorney or the district attorney of any county is informed or has knowledge of any alleged violation of the laws of Kansas, such person may apply to a district judge to conduct an inquisition. An application for an inquisition shall be in writing, verified under oath, setting forth die alleged violation of law. Upon the filing of the application, the judge with whom it is filed, on the written praecipe of such attorney, shall issue a subpoena for the witnesses named in such praecipe commanding them to appear and testily concerning the matters under investigation. Such subpoenas shall be served and returned as subpoenas for witnesses in criminal cases in the district court.”
In State v. Cathey, 241 Kan. at 723, the court stated: “If, after reviewing the application for an inquisition, the district judge determines that the application is legally defective, to avoid abuse of judicial process, the district judge has the authority to refuse to issue subpoenas.” There is no other statement in Kansas statutes or case law elaborating on the standard that a district court should use in evaluating subpoenas issued in an inquisition.
Generally speaking, the district court has the power to quash a subpoena if it is “unreasonable or oppressive.” K.S.A. 60-245(b); Collingwood, 257 Kan. at 256. Subpoenas issued in administrative investigations are subject to less strict relevancy requirements than subpoenas in aid of civil or criminal litigation. Collingwood, 257 Kan. at 254-55. “[I]n light of agencies’ investigatory duties, the test of relevancy requires satisfaction of only three elements: (1) that the inquiry be one which the agency demanding production is authorized to make; (2) that the demand not be too indefinite; and (3) that the information sought be reasonably relevant.” Schurle, 11 Kan. App. 2d at 394.
Because an inquisition involves investigatory duties, this court concludes that the agency investigation standard should be used by district courts in evaluating subpoenas issued in an inquisition.
The witness argues that the district court should evaluate an application for an inquisition under the standard that is used to evaluate the application for a search warrant. See State v. Probst, 247 Kan. 196, 200-01, 795 P.2d 393 (1990). This argument ignores the law relevant to subpoenas and is not persuasive. This argument also ignores the distinction between the State’s broad power to compel its citizen’s testimony and the citizen’s right to be free from unreasonable searches and seizures.
The witness argues that the subpoena should be quashed because the application for the inquisition is based upon an autopsy, and the autopsy has not been provided to the district court. It would have been reasonable for the district court to require the assistant district attorney to produce the autopsy report upon which the application was based. The district attorney, however, filed an affidavit swearing that the contents of the application were “true and correct to the best of his knowledge and belief.” If the district court believes that the district attorney’s application and affidavit are sufficient to issue the subpoenas in the inquisition, this court is not inclined to find that belief unreasonable.
Authorization of Assistant District Attorney to Conduct Inquisition
The witness argues that the assistant district attorney is not authorized to conduct this inquisition. The witness requests that this court remand the case with instructions requiring that the district attorney or county attorney conduct the inquisition.
K.S.A. 22-3101(1) authorizes “the attorney general, an assistant attorney general, the county attorney or the district attorney of any county” to apply to the district court to conduct an inquisition if the official “is informed or has knowledge of any alleged violation of the laws of Kansas.” K.S.A. 22-3101(2) additionally authorizes a “designated assistant county or district attorney” to issue subpoenas for inquisitions involving “gambling, intoxicating liquors, criminal syndicalism, racketeering, bribery, tampering with a sports contest, narcotic or dangerous drugs or any violation of any law where the accused is a fugitive from justice.”
The witness notes the distinction between the two subsections and argues that an assistant district attorney may only conduct certain facets of inquisitions involving the specified offenses.
In State v. Cathey, 241 Kan. at 720, the court noted: “The Kansas inquisition procedure is an investigatory tool available only to the attorney general, his assistant, or the county or district attorney.”
In this case, the district attorney filed the application for the inquisition, but the questioning was conducted by an assistant district attorney.
The witness relies on the concurring opinion in State ex rel. Cranford v. Bishop, 230 Kan. at 801-03, where Justice Miller, joined by Justices Prager and McFarland, noted that a deputy county attorney is not authorized to commence an inquisition. Conversely, “the legislature intended to restrict the power to commence these proceedings to the principal prosecuting attorneys of this state and its counties.” 230 Kan. at 803. Justice Miller applied this rule to the facts of Bishop:
“There is no indication in any of these proceedings that the county attorney of Cowley County at any time authorized or was made aware of the commencement of the inquisition proceedings or of this mandamus action. His name is singularly absent, not only from the original district court proceedings, but from the mandamus action commenced in this court. For the reasons stated, I do not believe that the statute authorizes a deputy county attorney to commence inquisition proceedings; such power is specifically reserved to the county attorney, the attorney general and assistant attorneys general. Since the inquisition was not commenced by an authorized official, relief in this mandamus proceeding must be denied.” 230 Kan. at 803.
In this case, the district attorney signed the affidavit applying for the inquisition. Thus, the district attorney commenced the proceedings. The district court cited the Bishop case and noted that the district attorney commenced this inquisition. The district court ruled that the requirements of K.S.A. 22-3101(1) were satisfied and that the assistant district attorney could question the witness. A rule requiring the elected district attorney or county attorney exclusively to conduct all of the questioning during an inquisition would place some offices at a huge disadvantage in utilizing the inquisition process. It is the decision of this court that if the district attorney or county attorney commences the inquisition, the intent of the legislature is served, and an assistant district or county attorney may question witnesses.
Closing Inquisition to Public
The witness argues that the district court erred in closing the inquisition hearings to the public, secluding the court file and records, and allowing police detectives to remain in attendance at the inquisition.
The district court closed the inquisition to the public because the investigation dealt with confidential and family matters that the district court concluded were not appropriately open to the public at the time of the investigation.
The State notes that grand jury proceedings are secret, and disclosures may only be made under specified circumstances. K.S.A. 22-3012. In Cathey, 241 Kan. at 723, the court likened the inquisition to a “one-person grand jury.” The witness cites no on point authority for the proposition that inquisition hearings must be public. The district court’s reasons for closing the inquisition hearing to the public were sound.
Counsel for the witness complains that the civil clerks and the district court judge denied him access to the record on appeal. The record indicates that while counsel for the witness was initially denied access to the records, the district court allowed counsel for the witness access to the complete record on appeal with the exception of the testimony of two other witnesses. The portion that was excluded from counsel’s review was included in the record sent to this court. There is nothing in that portion of the record that is relevant to the witness’ appeal. The district court did not err in its treatment of the record.
The district court allowed two police detectives to attend the inquisition questioning of the witness. The district court reasoned that the inquisition statute was designed to assist the State in investigations. The district court instructed the detectives that sanctions would be imposed if they communicated the information to the public or newspapers.
Inquisitions are used to investigate criminal activity. Brewer, 11 Kan. App. 2d at 656. Prohibiting the attendance of police at inquisitions would ignore that purpose. The district court did not err in allowing the detectives to attend the inquisition.
Holding Contempt Proceedings Without a Public Hearing
By earlier rulings in this opinion, this court has found that the witness should not have been found in contempt for refusing to answer the two propounded questions. However, because of the lack of precedence in this particular area of the law, this court deems it appropriate to address the issue of the constitutionality of contempt proceedings arising from an inquisition that are conducted in private without a public hearing.
The United States Supreme Court has specifically held that contempt proceedings arising from an inquisition in Kansas and held in secret violate the Fourteenth Amendment Due Process Clause. Courtney, et al. v. Schroeder, 348 U.S. 933, 99 L. Ed. 732, 75 S. Ct. 355 (1955), reversing In re Ferris, 175 Kan. 704, 267 P.2d 190 (1954).
In In re Oliver, 333 U.S. 257, 272-73, 92 L. Ed. 682, 68 S. Ct. 499 (1948), the Court held that a defendant charged with contempt arising from Michigan’s “one-man grand jury” had to be afforded a public hearing on the contempt charge. The Court did not pass on the validity of the secret one-man grand juiy proceedings. Instead, the Court distinguished the witness’ rights in the grand jury proceedings from his rights as a defendant in the contempt proceedings. Although the Michigan one-man grand jury differed from the Kansas inquisition statute, the Court in Schroeder held that the same rule applied to the Kansas inquisition. 348 U.S. 933; see Comment, The Inquisition in Kansas — Its Use, Disuse, and Abuse, 6 Kan. L. Rev. 452, 459-61 (1958). The important point to be drawn from these cases is that contempt proceedings arising from an inquisition and held in secret violate the Fourteenth Amendment Due Process Clause.
District courts conducting inquisitions should be aware that contempt proceedings held in conjunction with inquisitions should be conducted publicly. If the secrecy of the investigation is paramount, the contempt proceedings may be delayed.
Matters Outside the Homicide Investigation
The witness argues the assistant district attorney should not have been allowed to question her on matters outside the homicide investigation, contending the district court should have sustained her counsel’s relevancy objections.
As noted by the witness, K.S.A. 22-3101(3) provides: “Each witness shall be sworn to make true answers to all questions propounded to such witness touching the matters under investigation.” Additionally, the witness notes that K.S.A 22-3104(2) provides that counsel for any witness shall be present and may object on behalf of the witness.
During the proceedings in the inquisition, the district court stated:
“I concur with your objection, counsel, although, as I have indicated, I do believe it is a fishing expedition sanctioned by the statute and I am giving counsel some leeway. I will concur with you that I’m not sure . . . where this particular line of questions [is] going and I would suggest that we might want to move into another area.”
“The admission of evidence is governed by its relevancy to the issue in question, and the exclusion of evidence is within the discretion of the district court.” State v. Knighten, 260 Kan. 47, 53, 917 P.2d 1324 (1996). The relevancy requirements during an inquisition are relaxed because of the investigatory nature of an inquisition proceeding. This relaxation does not defeat the purpose of having counsel present for the witness during an inquisition. Numerous objections were sustained, and the district court even urged the State to move on based upon relevancy. The district court did not, however, abuse its discretion in overruling the relevancy objections made by the witness’ counsel. ■ • ,
The order of contempt is reversed, based on the witness’ Fifth Amendment right not to incriminate herself on-specific questions. All other issues are affirmed.
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ELLIOTT, J.:
Frito-Lay, Inc., appeals an order of the Workers Compensation Board (Board) finding the Workers Compensation Fund (Fund) was liable for only 40% of the award to Jeffrey Sims for a second injury. Frito-Lay argues the administrative law judge’s prior determination of 70% Fund liability should be reinstated. The narrow question presented by Frito-Lay is whether the Board erred in ruling the administrative law judge improperly considered the portion of the report of an independent medical examiner regarding Fund liability without the doctor’s supporting testimony.
We affirm.
The parties agree the Fund’s liability is either 40% or 70%. The administrative law judge appointed Dr. Bieri as an independent medical examiner pursuant to K.S.A. 44-510e(a), asking for an evaluation and disability rating of claimant Jeffrey Sims. Dr. Bieri prepared a report containing the requested information, as well as his opinion on liability apportionment. The opinion as to liability apportionment, although requested by someone, was gratuitous to the administrative law judge’s request. Neither party deposed Dr. Bieri. Dr. Bieri thought the current injury would not have been suffered but for the prior injury.
Dr. Wertzberger, who was deposed, stated the prior injury accounted for 40% of the present injury. The administrative law judge averaged the two opinions (100% and 40%) and concluded the Fund should bear 70% of the liability.
In reversing, the Board ruled the administrative law judge improperly considered Dr. Bieri’s opinion regarding liability apportionment, noting the administrative law judge had not requested any opinion on that subject. The Board ruled:
“Once the parties, [not the Fund], rather than the Administrative Law Judge, made inquiry of the doctor regarding issues extraneous to those the Administrative Law Judge desired the doctor to address, Dr. Bieri’s function changed from that of providing an independent medical evaluation for the Administrative Law Judge to that of providing expert witness testimony for one or more of the parties.”
This case involves the interpretation of K.S.A. 44-510e(a) and K.S.A. 44-519. Our review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The administrative law judge requested Dr. Bieri’s evaluation pursuant to K.S.A. 44-510e(a) and limited the request in accordance with that statute. K.S.A. 44-510(e) provides:
“If the employer and the employee are unable to agree upon the employee’s functional impairment, such matter shall be referred by the administrative law judge to an independent health care provider who shall be selected by the administrative law judge from a list of health care providers maintained by the director. The health care provider selected by the director pursuant to this section shall issue an opinion regarding the employee’s functional impairment which shall be considered by the administrative law judge in making the final determination.”
K.S.A. 44-519 provides:
“No report of any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
The Board, in another case, ruled that K.S.A. 44-510e(a) supersedes K.S.A. 44-519. See McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 771, 921 P.2d 257 (1996). In our view, that statement is overly broad. Rather, it appears to us that K.S.A. 44-510e(a) merely creates a narrow exception to the general rules of K.S.A. 44-519. While a medical report must normally be supported by a health care provider’s testimony, the administrative law judge may consider the report of an independent health care provider regarding a claimant’s functional impairment without the health care provider’s supporting testimony. See McKinney, 22 Kan. App. 2d at 772.
However, the plain language of K.S.A. 44-510e(a) does not allow an administrative law judge to routinely consider an independent health care provider’s opinion on issues beyond that of functional impairment without supporting testimony. The Board properly ruled the administrative law judge should not have considered Dr. Bieri’s opinion regarding liability apportionment.
Like the Board, we express no opinion as to whether the administrative law judge, pursuant to K.S.A. 44-510e(a), may specifically request an independent health care provider to state an opinion on matters beyond functional impairment and consider that opinion without the supporting testimony of the independent health care provider.
Frito-Lay argues the Fund waived any objection to the administrative law judge’s consideration of the entirety of Dr. Bieri’s report by not objecting to the administrative law judge. But under our reading of the statutes, no one could have introduced the entirety of Dr. Bieri’s report without supporting testimony. The Fund became aware of the administrative law judge’s misreading of the statutes only after the administrative law judge rendered his opinion. The Fund has not waived its position.
Under the facts of this case, that portion of Dr. Bieri’s report which went beyond functional impairment was “inadmissible” under specific workers compensation statutes without his supporting testimony.
Affirmed. | [
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Prager, C.J.:
Anthony D. Houze appeals his convictions of possession of cocaine with intent to sell and possession of a controlled substance without a tax stamp affixed.
On the basis of a confidential informant’s tip, the police stopped Houze as he walked from his parked car towards a residence. They searched him without a warrant, discovered cocaine in his possession, and arrested him. Houze filed a motion to suppress the evidence found during the search, and the district court denied it. He was then tried by the court on stipulated facts, found guilty, and sentenced to a controlling period of 15 months and a 26-month period of postrelease supervision. He appeals the denial of his motion to suppress and the postrelease supervision provision of his sentences.
The first issue to be determined is whether the trial court erred in denying Houze’s motion to suppress the evidence found during the warrantless search of his person.
In determining whether a district court erred in not suppressing evidence during a warrantless search, an appellate court normally gives great deference to the factual findings of the district court. However, the ultimate issue of whether the evidence should have been suppressed is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).
On a motion to suppress evidence, the State bears the burden of proving the lawfulness of a search and seizure. Searches conducted without a warrant issued on probable cause are per se unreasonable under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, subject only to a few specially established and well-delineated circumstances. State v. Flatten, 225 Kan. 764, Syl. ¶ 3, 594 P.2d 201 (1979).
The exception relied upon by the State in this case is the exception which allows a warrantless search where there is probable cause for the search and exigent circumstances which justify an immediate search. Probable cause to justify a warrantless search exists where “the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” State v. Hays, 221 Kan. 126, Syl. ¶ 1, 557 P.2d 1275 (1976).
Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered. See 79 C.J.S., Searches and Seizures § 63, and the many cases cited therein.
The use of informants can be an acceptable method of establishing probable cause. See Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). Courts should use a totality of the circumstances test in evaluating whether there is probable cause based on an informant’s tip. In this case, an analysis of the facts indicates that the officers had probable cause for the search. They had personal knowledge that the confidential informant had proven to be accurate in at least 5 prior investigations. They had no reason to believes this time would be any different. This informant had predicted with great accuracy the motel where Houze would be later in the evening, the car and license tag number of the car he would be driving, and the time he would be there. The police independently verified each of the aspects of the informant’s tip. The informant’s accuracy in predicting these details indicated the informant was privy to accurate information about Houze and his activities, allowing a reasonable belief that the informant’s assertions that Houze dealt in drugs and would be in possession of drugs that evening would also be true. It should also be noted the informant advised the police that he had had contact with Houze on that day and had observed him with drugs.
In Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959), the Supreme Court addressed a situation where a federal narcotics agent conducted a warrantless arrest of a subject on the basis of an informant’s tip. The informant gave a description of a person who would be arriving on a train during a certain time period in possession of a quantity of heroin, but gave no indication of the basis for the information. The Court found probable cause for the arrest and search, noting the informant had proven reliable on previous occasions and had given a detailed description of the subject and predicted his whereabouts at a particular time, all of which had been independently verified by the investigating agent. The court stated that, surely, with every bit of the information being thus personally verified, the agent had reasonable grounds to believe that the remaining unverified bit of information — that defendant would have the heroin with him — was likewise true.
The circumstances in this case are analogous to those in Draper. In both cases, the informant had a history of reliability and accu rately predicted the time and place where the subject would show up. The subject in Draper was going to be one of many other passengers disembarking from a train. If he was to be identified at all, it would be by how he was dressed and how he looked. In the present case, the detailed description of the car which Houze always drove and which he would be driving on the evening of July 5, 1994, and the fact that he was to be in the area of the Villager Lodge, enabled the officers to identify the subject with far greater accuracy than the mere description of a man would have given. Moreover, unlike in Draper, the Houze informant was able to provide a personal basis for his knowledge that Houze would be in possession of drugs on the day in question. Under the circumstances, we hold the trial court did not err in finding the police officers in this case had probable cause to search Houze without a warrant.
We turn now to the question of whether exigent circumstances existed in this case sufficient to justify an immediate search without a search warrant. In holding that exigent circumstances existed in this case, the district court found the evidence, the drugs, would most likely have been lost or destroyed had Houze been able to proceed to his destination in the building, and it would not have been reasonable to require the officers to seek a search warrant under the circumstances facing them on the street.
The most common example of a warrantless search based on exigent circumstances is the search of a vehicle. The United States Supreme Court and the Kansas Supreme Court have both recognized that exigent circumstances may allow the warrantless search of a vehicle when probable cause has been established to justify a search. Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925); State v. Jaso, 231 Kan. 614, Syl. ¶ 2, 648 P.2d 1 (1982). The courts reasoned that the fact evidence is located in an easily movable vehicle may justify a search which would not be allowed if a house or an office were involved. State v. Harrington, 2 Kan. App. 2d 592, Syl. ¶ 2, 585 P.2d 618 (1978). It was reasonable for the trial court in this case to believe that the fact the evidence might be located on the person of a suspect who had just removed himself from a vehicle compounded the probable loss of evidence and made it more imperative that a warrantless search be conducted.
In this case the officers had probable cause to search the car and its driver, Houze, through their investigation of the information supplied by a reliable informant. Had the officers been able to stop Houze’s car prior to his voluntarily stopping the car and exiting, a clear Carroll situation would have existed. The car and occupant could have been searched based on the information within the knowledge of the officers.
In this case, the officers tried, but were unable, to get a marked police vehicle to follow and stop Houze’s car. The officers’ car followed Houze’s car until it stopped at a building. They immediately parked behind Houze, which should have been obvious to him. Houze and a passenger then exited the car, walked toward the building, and were not far from the car when the officers made contact with them. The officers identified themselves as law enforcement officers. They advised Houze why he had been stopped, asked him to step back to the car, and searched him. In Houze’s left front pocket the officer found a plastic baggy containing cocaine. Officer Jackson testified he had probable cause to believe Houze was in possession of crack cocaine, and due to the circumstances Houze was searched.
The officers testified that safety concerns were important in determining that Houze should be immediately searched. In addition to the possibility that he might be armed based upon the officer’s prior experience with drug crimes, a group of people had come out of the residence to inquire of the officers regarding their detention of Houze. The officers felt it was, therefore, imperative they control the situation by taking Houze into custody as soon as possible. Only by doing this could the officers then turn their attention to the group of persons approaching them from the house.
In its memorandum decision denying the motion to suppress, the trial court found the officers had probable cause to search Houze due to exigent circumstances. The court stated that from the facts, the evidence would most likely have been lost or destroyed had Houze been able to proceed to his destination and it would not have been reasonable to require the officers to seek a search warrant under the circumstances facing them on the street. We have concluded the trial court correctly decided this issue, and its decision is affirmed.
In his second claim of error, Houze complains that in sentencing him, the trial court erred in ordering a 36-month period of postrelief supervision without making appropriate findings and stating compelling reasons for departing from the 24-month presumptive period designated for severity level 3 drug crimes under K.S.A. 1993 Supp. 22-3717(d)(l)(A). The State agrees a mistake was made in this regard in the presentence report.
In its brief, the State agreed to file in district court a motion to correct the sentence and an amended journal entry. It is directed to do so.
Convictions affirmed, sentences vacated, and case remanded for resentencing. | [
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Brazil, C.J.:
William F. Griffin, plaintiffiappellant, appeals from the entry of summary judgment in favor of his former employer, defendant Dodge City Cooperative Exchange, on his claim of retaliatory discharge and intentional infliction of emotional distress. We affirm.
Griffin began working for Dodge City Cooperative Exchange (Exchange) in October 1985. His job was as an equipment operator whose main duty was to operate a big rig which sprayed herbicides and pesticides on farm fields. During the winter months, Griffin performed various maintenance duties. He testified that he spent 75% to 90% of his time operating equipment and the remaining 10% to 25% performing maintenance on equipment.
In 1991, Griffin sustained an injury while driving a sprayer. He hurt his knee, thigh, elbow, and back. Griffin returned to work the next day and continued working for about a month, when the pain from his injuries became severe. Griffin consulted a physician, and he was ultimately diagnosed with degenerative disc disease which was made symptomatic by the accident.
He was released to return to work in November 1991, with significant physical restrictions limiting lifting, sweeping, stooping, bending, crawling, and driving. Griffin reported to the Ensign grain elevator, where he was assigned to clean the elevator with an air hose; he had performed this job for 3Vz days when a supervisor at Exchange sent him home because of his physical restrictions. The record indicates that this was not a job that someone performed every day and was not a permanent position.
In March 1992, Griffin was released from his doctor s care, but permanent restrictions were imposed. Those restrictions were “[djriving about 2 [hours] at a time, with frequent breaks, no sweeping or shoveling, lifting up to 50 [pounds], limited bending and stooping. No driving on rough terrain, no bumpy roads, no driving heavy equipment.” Griffin admitted that if he obeyed his doctor’s restrictions, he could not operate and maintain the big rigs he worked on prior to his injury. By his own estimate, Griffin could perform only 5% to 10% of the job duties he was performing prior to his injury.
There was evidence that in April and May 1992, Griffin discussed the possibility of performing other work for Exchange at a Farm and Home store and then at a service station (referred to as the Cardtrol position). The job at the Farm and Home store required the stocking of shelves, dusting off products, picking up trash, cleaning the parking lot, and washing store windows. Griffin admitted that some of those duties could not be performed within his job restrictions. In his workers compensation deposition, Griffin testified he was offered this job, but could not take it because of the medical restrictions. Griffin also discussed the duties of a Cardtrol service station attendant, but he admitted he could not perform all of the duties in that position because of his restrictions. Griffin was terminated by Exchange on May 31, 1992.
At some point in time, Griffin filed a workers compensation claim, asserting that he had sustained a permanent disability, and sought benefits for a work disability rather than a functional disability. Exchange contested the claim by asserting that Griffin’s degenerative disc disease was not work-related and not permanent. The claim was apparently vigorously litigated by the parties.
We have little information about the workers compensation claim. However, our records contain the decision of the administrative law judge (ALJ) and the district court. The ALJ issued a decision finding that Griffin was entitled to workers compensation benefits based upon a 46% permanent partial general disability as a result of a 46% work disability.
Exchange appealed that determination to the district court, arguing, in part, that Griffin’s injury preceded the work accident in question and that there was no permanent impairment. On review, the district court upheld the ALJ’s decision in its entirety. The district court made the specific finding that “[claimant did not return to his former job and was unable to work in Respondent’s retail store or Cardtrol gas station.”
Exchange appealed the district court’s decision to this court, which was docketed as case No. 70,595. Griffin did not file any cross-appeal. The appeal was voluntarily dismissed by Exchange on April 20, 1994, because the case had been resolved with Griffin. Griffin testified that he received a lump sum settlement for $45,000 as part of that settlement. There is no indication that the district court’s judgment was modified or vacated as a result of the settlement.
On May 23, 1994, Griffin filed the present action, asserting that Exchange terminated his employment in retaliation for his pursuing a workers compensation claim, and also asserted a claim for the tort of intentional infliction of emotional distress. In its answer, Exchange denied Griffin’s claims. Exchange asserted that Griffin’s claims were barred by the statute of limitations, as well as by an accord and satisfaction, waiver, and estoppel as a result of his workers compensation claim.
After the close of discovery, Exchange filed a motion for summary judgment on both of Griffin’s claims. Griffin filed a response controverting portions of three of Exchange’s paragraphs of uncontroverted facts. Replies and surreplies were filed by both parties. Following a hearing, the district court entered an order granting Exchange’s motion in its entirety. The findings of fact set forth in the court’s order were identical to the statement of uncontroverted facts set forth in Exchange’s motion. The district court found (1) plaintiff could not perform the position he held prior to his injury; (2) assuming Kansas law required Exchange to attempt to find another position for Griffin, no such work was available which Griffin could perform; (3) Exchange had bona fide business reasons for terminating Griffin’s employment; and (4) Griffin had failed to present sufficient evidence to meet the threshold requirement of an intentional infliction of emotional distress claim. Griffin then filed a timely notice of appeal.
On appeal, Griffin argues that summary judgment was improper because he was “ready, willing and able” to resume his job of driving the chemical sprayer. Griffin concedes that his doctor’s physical restrictions precluded him from performing most of the duties of that position. However, Griffin cites to his 1994 deposition testimony where he indicated that he did not know whether he could perform his old job because he never tried. Based upon this testimony, Griffin argues that he was “willing and capable of working beyond his restrictions.” Griffin also argues that “the final analyst of his/her ability to work is the individual employee.”
Griffin’s argument is unacceptable for several reasons. First, Griffin did not raise this argument before the district court. In his response to Exchange’s summary judgment motion, Griffin only argued that he was “ready, willing and able” to perform the Cardtrol job and the Farm and Home job, and to work at the Ensign facility (cleaning the elevator). Nor was such an argument raised in Griffin’s surreply to the summary judgment motion. “’A point not presented to the trial court will not be considered for the first time on appeal.’ [Citation omitted.]” In re Marriage of Ray, 21 Kan. App. 2d 615, 620, 905 P.2d 692 (1995).
In addition, Griffin’s argument, at best, stretches the limited deposition testimony he gave on this point. Griffin only testified that he did not try to return to his old job and that he did not know if he could do it. This is a far cry from establishing that he ever advised Exchange that he was “ready, willing and able” to do the job or that Exchange refused to allow him to return to that job.
Plaintiff argues that he should have been allowed to return to his former job (assuming that he ever asked to be allowed to return), notwithstanding that the job required activity clearly in violation of his doctor’s physical restrictions. This argument is made even though Griffin testified that he understood that Exchange was bound by his doctor’s restrictions. Griffin even contacted his doctor’s office about lifting or changing those restrictions. Nothing in the record shows that the doctor changed or was willing to change those restrictions.
Griffin relies on K.S.A. 44-510c(b)(2) to support his argument that an employee should be allowed to decide whether to return to a job beyond his restrictions. K.S.A. 1992 Supp. 44-510c(b), which was in effect at the time of Griffin’s injury, stated, in relevant part:
“(2) Temporary total disability exists when the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. A release issued btj a health care provider with temporary medical limitations for an employee may or may not be determinative of the employee’s actual ability to be engaged in any type of substantial and gainful employment.” (Emphasis added.)
Griffin relies on the last sentence to establish that he “had a legal right to work beyond his restrictions if he was capable of doing so.” This statutory language, however, is clearly limited to the purpose of determining whether an employee has a “[temporary total disability” for purposes of receiving benefits, i.e., whether he is capable of “engaging in any type of substantial and gainful employment.” K.S.A. 1992 Supp. 44-510c(b)(2). Under this provision, the fact that a physician has released the employee with restrictions does not automatically establish that the employee is or is not capable of engaging in any type of employment.
Nothing in the statute indicates that an employer can force an employee, or an employee can elect, to return to a position beyond his or her medical restrictions. Both parties have the option of seeking medical evaluation by a neutral physician if they believe that the treating doctor’s restrictions or treatment is inappropriate. K.S.A. 1992 Supp. 44-516.
Griffin cites to nothing in the Workers Compensation Act which requires an employer to return an employee to work clearly beyond his medical restrictions. To do so would require the employer to expose the employee to a situation which may well likely exacerbate his or her injury and open the employer (and/or the workers compensation fund) to additional liability. Moreover, it would not be unreasonable to assume that permitting an employee to work beyond his or her restrictions might lead to more serious injuries which would totally incapacitate the employee for an extended period or for the rest of his or her life. Such a contention is inconsistent with the purposes of the Workers Compensation Act.
Griffin next argues that Kansas law prohibits an employer from firing an employee with a work-related injury unless the employee is “incapable of performing the duties of any jobs available to him based upon his physical restrictions.” Griffin contends that he could work at the Farm and Home store, at the Cardtrol station, and at the Ensign facility.
Because Griffin admitted that he could do only portions of the various positions in question, he is essentially arguing that the Exchange was required to modify one or more jobs to accommodate his limitations.
Exchange argues that Kansas law does not require the employer to retain an employee who, because of a work-related injury, cannot do his or her regular job. Further, Exchange argues that requiring employers to attempt to accommodate all injured workers or face a retaliatory discharge claim would force employers “to ‘featherbed’ its work force with uneconomical ‘make work’ jobs or deny positions to qualified individuals to allow for workers compensation veterans not able to do the job.”
Both parties rely on Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819 (1988). In Rowland, the plaintiff sustained a work-related injury which prevented him from returning to the position he held at the time of the injury. At the time, the employer did not have any light duty jobs available and the employee remained off work. The employer had a company policy of termi nating all employees who were gone for any reason for more than 6 months. Defendant gave plaintiff notice that his 6 months were about up and he needed to return to his old job. When he did not, the company terminated his employment. 13 Kan. App. 2d at 150.
Rowland sued, claiming that die defendant had terminated him in retaliation for asserting his rights under the Workers Compensation Act. After discovery closed, the district court granted the employer’s motion for summary judgment because the employer had no duty to retain “an employee who cannot do the work the employer has available.” 13 Kan. App. 2d at 151. Throughout the opinion in Rowland, however, the court alternates between discussing “his or her work” and “available work.”
The confusion regarding the issue of whether there is a duty to determine if other positions are available arises primarily from two parts of the Rowland opinion. The syllabus states:
“When a discharged employee is not capable of performing the duties of his or her job because of a work-related injuiy and the termination of that employee's workers’ compensation claim is not a condition of his or her reemployment, but another position cannot be found which the employee can fill, the employee does not have a tort action for retaliatory discharge against his or her former employer.” (Emphasis added.) 13 Kan. App. 2d 149, Syl. ¶ 4.
The language in Rowland referencing the availability of other positions with the employer was a reference to the facts in that particular case where it appeared the employer considered Rowland for light duty work but no positions were available. We do not read this language to require an employer to look for alternative work or create a position before terminating an injured employee who clearly cannot return to his prior position. While efforts to reemploy or retain injured workers should be encouraged, the Workers Compensation Act does not impose such an obligation on an employer. Likewise, our reading of Murphy and Coleman reinforce the view that an employee who cannot return to his or her former position does not have a retaliatory discharge claim.
Some of the Kansas federal district courts have interpreted Rowland broadly. Their broad interpretation of Rowland finds that the public policy under the Workers Compensation Act requires that an employer may be held liable for retaliatory discharge — regard less of whether the employee can perform his or her original job— unless the employer “reasonably” attempts to accommodate the employee to an extent similar to that now required under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (1994) (ADA) and the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq. (KAAD). We note that the ADA did not go into effect for large employers until July 26, 1992, shortly after Griffin’s termination. Smith v. Midland Brake, Inc., 911 F. Supp. 1351, 1361 (D. Kan. 1995).
The KAAD provisions requiring “reasonable accommodations” to employees with disabilities went into effect on July 1,1991, prior to Griffin’s termination. L. 1991, ch. 147, §§ 2, 23. Although the KAAD amendments were in effect at the time Griffin was terminated, nothing in the record indicates that Griffin filed any charge of discrimination with the Kansas Human Rights Commission as required by K.S.A. 1992 Supp. 44-1005(a).
We must determine whether Kansas public policy, as derived from the Workers Compensation Act, requires employers to attempt to find alternative employment and/or modify job functions to accommodate workers injured on the job before terminating them. Kansas appellate courts have recognized that the Workers Compensation Act is structured to provide an incentive for employers “to rehabilitate the worker or accommodate the worker’s disabilities.” Hughes v. Inland Container Corp., 247 Kan. 407, 416, 799 P.2d 1011 (1990). The second injury fund was created, in part, to encourage employers to hire and retain employees who previously sustained injuries or had disabilities. Miller v. Miller, 13 Kan. App. 2d 262, 265, 768 P.2d 308 (1989).
Likewise, an employer who accommodates an injured employee, especially if the accommodated position pays comparable wages, can benefit under the Workers Compensation Act. This benefit arises not only by retaining an experienced employee, but also by the potential that the employer’s liability for workers compensation benefits can be reduced. For example, an employee placed in an accommodated position with a comparable wage must overcome the statutory presumption that he or she has no work disability under K.S.A. 44-510e(a) and would generally be limited to benefits based upon his or her functional disability. See, e.g., Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995); Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995); Elliff v. Derr Constr. Co., 19 Kan. App. 2d 509, 875 P.2d 983 (1993).
However, the fact that the Workers Compensation Act encourages employers to rehabilitate and accommodate injured employees does not alone impose a legal duty on the employer to make such an accommodation or be subjected to a tort action for wrongful discharge. Had the legislature intended to mandate that employers accommodate injured employees, it could easily have included language similar to that now contained in the KAAD and the ADA into the Workers Compensation Act.
Moreover, if a duty to accommodate is made part of the public policy which supported the creation of the tort of retaliatoiy discharge, the policies under the KAAD would be undermined. Under the KAAD, employees claiming unlawful employment practices are required to file charges of discrimination with the KHRC. K.S.A. 1995 Supp. 44-1005(a). Those claims are then investigated by the agency, and if probable cause is found, the agency attempts to resolve the dispute by conference and conciliation. K.S.A. 1995 Supp. 44-1005(c)-(e). Exhaustion of administrative remedies under the KAAD is mandatory prior to bringing a civil action for claims of unlawful employment discrimination. Simmons v. Vliets Farmers Co-op Ass’n, 19 Kan. App. 2d 1, 4, 861 P.2d 1345, rev. denied 253 Kan. 861 (1993). The entire structure of the KAAD would be bypassed if a worker can make a failure to accommodate claim in a retaliatory discharge case instead of complying with the requirements of the KAAD.
This case is an example of the problem in interpreting Rowland broadly. Such an interpretation, to some extent, encourages employees to pursue substantial workers compensation awards and then file a tort claim based upon retaliatoiy discharge. The unfairness of this “double recovery” was recognized in Rowland.
For these reasons, we would construe the ruling in Rowland to state that the public policy creating the tort of retaliatory discharge does not require employers to consider or find alternative employ ment for an injured employee who is unable to return to his or her former position. While the Workers Compensation Act is designed to encourage employers to make such accommodations, an employer cannot be sued for retaliatory discharge simply because it failed to consider another position or to modify a job to accommodate an injured employee.
If an employee seeks to pursue a claim for failure to accommodate, he or she should pursue that claim under the KAAD or the ADA and exhaust the administrative remedies under those statutory schemes.
Finally, Griffin argues that Exchange is collaterally estopped from taking the position that he was unable to perform work for it. He argues that Exchange took a contrary position in two administrative proceedings — an unemployment compensation case and the workers compensation case. Exchange contends that “if any party should be tied to its litigation position in the workers compensation case, that party is Griffin” and that the principle of collateral estoppel is “more readily and appropriately applied against plaintiff.”
The record reflects that Exchange contested Griffin’s claim for unemployment compensation and workers compensation. In responding to Griffin’s apparent claim for unemployment compensation, Exchange indicated that it had made a job offer to Griffin on May 5,1992, for the service station job and that Griffin refused the job because “[h]is doctor would not lift his physical restrictions.” The Farm and Home store also submitted a document indicating that it had offered Griffin a position of stocking clerk on April 20, 1992, and that he refused the position because of the doctor’s physical restrictions. However, there is no information in the file to determine the outcome of the unemployment compensation proceeding. Therefore, it is unclear whether the Department of Human Resources accepted or rejected Exchange’s position on this matter.
As discussed above, Exchange also contested Griffin’s workers compensation claim. In its brief before this court, Exchange argued that the evidence did not establish that Griffin’s injury and disability “[arose] out of and in the course of” his employment with Exchange and that Griffin’s injury was only temporary. As indicated above, however, both the ALJ and the-district court ruled in Griffins favor in assessing a 46% work disability. The district court specifically found that Griffin could not perform any of the available positions at Exchange.
“ ‘ “The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown: (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 are the same or in privity; and (3) the issue was actually determined and was necessary to support the judgment.” ’ ” Gigot v. Cities Service Oil Co., 241 Kan. 304, 311, 737 P.2d 18 (1987).
In this case, the parties do not dispute that they are the same or in privity with the parties in the workers compensation case and the unemployment compensation case. Griffin fails to discuss the remaining two elements of collateral estoppel as to these prior proceedings. Nothing in the record reflects that the issue of Griffin’s ability to work was ever determined in the unemployment compensation proceeding. Therefore, there is no basis to find that the issue is subject to collateral estoppel as a result of that litigation.
The issue of collateral estoppel is clearer in connection with the workers compensation proceeding. Our records include the judgments entered by the ALJ and the district court in that proceeding. Those orders indicate that both the district court and the ALJ addressed the issue of Griffin’s ability to perform the alternative jobs at the Farm and Home store and at the Cardtrol station was litigated and decided. The final judgment of record in that case — the decision of the district court — specifically found that “[Griffin] did not return to his former job and was unable to work in Respondent’s retail store or Cardtrol gas station.” Griffin did not appeal from that finding. Therefore, there is a final judgment on the issue.
Finally, the issue of Griffin’s capacity to work those jobs was necessarily decided as part of the workers compensation claim. Griffin was apparently claiming permanent partial disability as a result of his work-related injury and was asking that his claim be based upon a work disability rather than a functional disability. The provisions of the Workers Compensation Act in effect at the time of his injury determined the extent of benefits for permanent partial general disability as follows:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence. There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.” K.S.A. 1992 Supp. 44-510e(a).
Under this provision, an injured worker is presumed to be entitled only to compensation based upon his or her functional impairment unless he or she establishes a work disability. If an employee engages in, or is capable of engaging in any work for comparable wages, there is a presumption of no work disability. Foulk, v. Colonial Terrace, 20 Kan. App. 2d at 284. Based upon the standards set forth in K.S.A. 1992 Supp. 44-510e(a), the district court’s finding that Griffin was incapable of performing any of the positions at Exchange was a significant and necessary finding to support the substantial work disability award given to him.
Griffin’s estoppel arguments are more based on the concept of judicial estoppel. The concept of judicial estoppel was discussed in McClintock v. McCall, 214 Kan. 764, 522 P.2d 343 (1974). “The general theory of judicial estoppel or estoppel by oath ... is that a party is bound by his judicial declarations and may not contradict them in a subsequent action involving the same parties if one party has changed position in reliance on such declarations. [Citation omitted.]” (Emphasis added.) 214 Kan. at 766. Judicial estoppel is not applicable in this case, however, because Griffin did not present any evidence that he changed his position in reliance on Exchange’s arguments in the prior proceedings. Because Griffin prevailed in the prior proceeding, it is incongruous for him to assert that he somehow changed his position to his detriment.
A type of judicial estoppel or collateral estoppel has been applied in retaliatory discharge cases against employees who make inconsistent claims. For example, in Smith v. Midland Brake, Inc., 911 F. Supp. at 1355, a terminated employee sued his former employer for handicap discrimination and retaliatory discharge. After his termination, the plaintiff applied for and ultimately received social security disability benefits. His receipt of such benefits was based upon a determination that he was unable to “ ‘engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.’ ” 911F. Supp at 1359. Based upon this finding, the district court granted summary judgment to the employer on all the claims. 911 F. Supp. at 1362-63. Cf. Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 555-56 (D. Kan. 1995) (employee who claimed and received long-term disability and social security benefits could not prevail on ADA claim by arguing she could perform her job despite her disability).
For these reasons, Griffin’s argument that Exchange was collaterally or judicially estopped from alleging he could not perform the positions in question must be rejected. Moreover, the record before this court shows that a final judgment was entered in the workers compensation case which included judicial findings of fact which are contrary to Griffin’s position in this case. If collateral/ judicial estoppel applies to anyone, it should bar Griffin from re-litigating, the “ability to work” issue.
In granting summary judgment to Exchange, the district court found that Griffin had failed to present sufficient evidence to meet the threshold requirement of a claim of intentional infliction of emotional distress. Griffin does not address this claim in his brief. Therefore, this issue is deemed abandoned. See Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992); In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, 146, 913 P.2d 213 (1996).
For these reasons, we affirm the district court’s ruling that Griffin could not return to his regular position at Exchange and, therefore, had no claim for retaliatoiy discharge. Likewise, the district court correctly rejected Griffin’s estoppel arguments.
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Pierron, J.:
Jerome Windom appeals the denial of his motion for downward departure and the district court’s order requiring him to pay $75 per month child support as a condition of his probation. We affirm.
Windom entered a Brady plea to a charge of possession of cocaine, a severity level 4 drug felony, in violation of K.S.A. 1994 Supp. 65-4160. In exchange for his plea, the State agreed to recommend the minimum sentence in the appropriate grid box and to not oppose Windom’s motion for downward departure.
Prior to sentencing, Windom filed a motion for durational departure and a pleading entitled “Proposed Findings of Fact and Conclusions of Law.” He sought a departure of his sentence from 10 months to 6 months and a placement on probation for 24 months.
At sentencing, the parties agreed Windom’s criminal history was category “H”. Windom argued and based his motion for departure on the minimal amount of cocaine involved in the case. The court denied the motion, finding the amount of cocaine had already been contemplated in the sentencing grid. Windom was sentenced to the lowest prison sentence in drug grid box 4-H, 12 months’ incarceration followed by 12 months’ postrelease supervision. The court then placed him on probation under the supervision of Court Services for 24 months.
As one of the conditions of probation, the court ordered Windom to pay $75 per month in child support and/or provide receipts to the court services officer verifying expenditures in an equivalent amount. Windom appeals this probation condition and any conditions related thereto as well as the court’s order denying his motion for downward departure. The district court subsequently revoked Windom’s probation, but it is unclear from the record which probation condition he violated.
First, Windom argues his sentence resulted from the prejudice of the district court.
Windom recognizes this court’s authority regarding a sentence that falls within the presumptive range of the Kansas Sentencing Guidelines Act (KSGA) for the crime committed. In State v. Clark, 21 Kan. App. 2d 697, 699-700, 907 P.2d 898 (1995), rev. denied 259 Kan. 928 (1996), the court stated:
“A sentence within the sentencing guidelines will not be disturbed on appeal if it is within a trial court’s discretion and not a result of partiality, prejudice, oppression or corrupt motive. See State v. Starks, 20 Kan. App. 2d 179, 181, 885 P.2d 387 (1994). The party claiming error in sentencing has the burden to show that the sentence was the result of partiality, prejudice, oppression, or corrupt motive. State v. Starks, 20 Kan. App. 2d at 183. When the defendant is sentenced to a presumptive sentence, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression or corrupt motive. 20 Kan. App. 2d at 184.”
In K.S.A. 1994 Supp. 21-4721(e)(l), which is applicable to defendant’s appeal, the Kansas Legislature gave this court the juris diction to review a claim that: “(1) [t]he sentence resulted from partiality, prejudice, oppression or corrupt motive.” However, we note that in 1995, K.S.A. 1994 Supp. 21-4721(e) was amended to state as follows: “In any appeal, the appellate court may review a claim that: (1) [a] sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive.” L. 1995, ch. 251, § 17. See State v. Favela, 259 Kan. 215, 239, 911 P.2d 792 (1996). The legislature’s amendment in 1995 expresses a clear indication that sentences within the presumptive range for that crime are not reviewable.
Windom argues that although a sentencing court is not compelled to impose a departure sentence, it is compelled to look for substantial and compelling reasons for departure. He argues the court’s obligation is found within the purpose of the KSGA to reserve prison space for seriousMolent offenders and also within the language of four Kansas statutes: (1) K.S.A. 21-4716(a) — the judge shall impose a presumptive sentence unless the judge finds substantial and compelling reasons to impose a departure; (2) K.S.A. 21-4718(a)(l) — upon proper motion, the district court shall hold a hearing to consider imposition of a departure sentence; (3) K.S.A. 21-4719(a) — when a departure sentence is appropriate, the sentencing judge may depart; and (4) K.S.A. 21-4728 — the sentencing court should consider a range of alternatives in all cases.
Windom argues the district court did not look for substantial and compelling reasons for departure and the court’s failure violates the language and intent of the KSGA. He argues the district court failed to take into consideration the facts set forth in his proposed findings of fact and conclusions of law. Some of these facts were that Windom committed a victimless crime, he cooperated fully with police, and he did not use a weapon.
Under the KSGA, when a sentencing court does not depart from a presumptive sentence, the court is not required to state its reasons for refusing to depart. State v. Marble, 21 Kan. App. 2d 509, Syl. ¶ 15, 901 P.2d 521, rev. denied 258 Kan. 861 (1995).
Windom’s argument rests on the court’s limited comment at the sentencing hearing that the amount of cocaine had already been taken into account in the sentence grids. However, Windom fails to mention the only departure factor he raised at the sentencing hearing was the fact that the crime only involved a minimal amount of cocaine. The sentencing court’s limited response was a natural response to the single departure factor raised by defense counsel.
We are not persuaded by Windom’s argument that the district court did not seriously consider the mitigating factors raised in his proposed findings of facts and conclusions of law. The court stated at the sentencing hearing that it had a copy of the proposed findings of facts and conclusions of law and sentenced Windom to a presumptive sentence. He does not produce sufficient evidence to overcome the strong legislative presumption that the sentence was not the result of partiality, prejudice, oppression, or corrupt motive.
Next, Windom argues the district court acted with prejudice in ordering him to pay $75 per month in child support as a condition of his probation. Windom claims the district court did not have the authority to determine the exact amount of child support due each month.
Kansas courts have consistently recognized that probation is a privilege granted by the sentencing court and the court has broad power and authority in imposing conditions of probation so long as such conditions do not violate statutory law or constitute an abuse of discretion by the court. See State v. Walbridge, 248 Kan. 65, 68, 805 P.2d 15 (1991). The court in State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986), stated: “Probation from serving a sentence is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The judge, when granting probation, has broad powers to impose conditions designed to serve the accused and the community.”
Although the imposition of the KSGA has curbed the district court’s discretion in awarding prison or nonimprisonment sentences, if probation is granted, the district court’s discretion in imposing conditions along with the probation has remained the same. See K.S.A. 21-4610(c).
In the case at bar, the probation condition at issue imposed by the district court is statutory. K.S.A. 21-4610(c) provides:
“The court may impose any conditions of probation, suspension of sentence or assignment to a community correctional services program that the court deems proper, including but not limited to requiring that the defendant:
(8) support the defendant’s dependents.”
Windom does not challenge the constitutionality of K.S.A. 21-4610(c)(8). He concedes the district court has the authority to impose terms and conditions upon the granting of probation and that supporting a person’s dependents is a valid condition. Instead, Windom’s claim of prejudice is that the district court made child support a condition of his probation without sufficient knowledge of the situation. He takes issue with two comments made by the district court:
“Now, I would prefer that there eventually be . . . a court hearing, a paternity action or something that says that you’re the father where another judge looks at your income and the mother of your child’s income and decides what’s fair to pay for child support; but I’m not going to order you to go out and hire a lawyer so that this can be done, because I know that can be expensive. I think it would be better for you in the long run if you did that.”
“I certainly would prefer to have information regarding her income so that an adequate child support work sheet can be prepared; but in the criminal action, I don’t have any authority over her. I don’t have any ability to order her to produce any income records. That’s why I’ve encouraged your client to initiate a paternity action so that those things can be resolved. And certainly my order regarding child support would take second — would take a backseat to whatever the domestic court would order, because that would be more appropriate.”
Windom states the district court acted without knowledge of his income and the child’s mother’s income in determining the $75 per month child support payment. He also directs the court’s attention to the fact that the district court was not restating an already determined amount of child support or an obligation under a valid child support order. Windom indicates that even though the district court recognized the expense in hiring an attorney for a paternity action, he will need to do exactly that in order to determine if the amount of child support ordered was correct.
The State argues the district court did not attempt to determine the amount of child support due under the Kansas Child Support Guidelines. Rather, the condition was an order for Windom to support his dependent with a reasonable initial sum attached. The thrust of the State’s argument is that Windom did not and does not claim the amount set by the district court created an unreasonable burden or financial hardship.
The State also argues K.S.A. 21-4610(c)(8) speaks for itself. The statute does not contain a requirement that a prior judicial determination of child support have been made before the court can utilize this provision as a probation condition. If the legislature did not intend for the district court to determine what “support” the defendant would be required to provide, then K.S.A. 21-4610(c)(8) would be a hollow probation condition. “ ‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
K.S.A. 21-4610(c)(8) provides the authority for the district court to order support of the defendant’s dependents as a condition of probation. There are no prerequisites or qualifications for the use of this probation condition. Furthermore, there are no restrictions on what “support” the district court can order. “When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995).
The district court did not abuse its discretion in ordering Windom to pay $75 per month in child support. The district court determined Windom had a job. Windom conceded the child was his. Furthermore, as the State points out, Windom did not object at the sentencing hearing that $75 per month was excessive or placed him in financial hardship.
Of course, the $75 a month order was only meant to be an interim order for purposes of establishing Windom’s probation order. There apparently was no child support worksheet completed by the court. In fact, the underlying parentage and support issues were not before the court for determination.
This is not fatal to the probation order as entered. The court is empowered under K.S.A. 21-4601(c)(8) to include support of dependents as a condition of probation. We believe that requires only that the court make a reasonable order based on the situation presented. Considering what was before the court at the time, we find the probation condition was justified and reasonable.
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Worden, J.:
Evelyn Holmes Spriggs, trustee and income beneficiary of the B. E. (Earl) Holmes Testamentary Trust, appeals the district court’s order requiring her to return to the trust all the money that she had received from the sale of stock which had been a part of the trust corpus. The district court’s order arose from an action that was brought by Tanua Smith, one of the remaindermen and Evelyn’s daughter, to set aside the disbursement that Evelyn had made to herself.
Earl Holmes executed his last will and testament on January 23, 1965. Holmes died on July 4,1965. Holmes’ will passed a life estate in his 3,480-acre ranch first to his nephew, Elmer Holmes, then upon Elmer’s death to Elmer’s daughter, Evelyn Wolkins (now Spriggs), and upon Evelyn’s death to Evelyn’s issue per stirpes in fee simple. All intangible personal property was transferred to Chester B. Fullerton, president of the First National Bank of Medicine Lodge, Kansas, (Bank) to be held in trust with the income therefrom to go to Elmer for life, then to Evelyn for life, and upon Evelyn’s death, the principal of the trust to be divided among Evelyn’s issue per stirpes.
As set out in Holmes’ will, the trust provided that in the event of the original trustee’s death, the then-president or managing officer of the Bank and the then-income beneficiary of the trust would serve as successor trustees. Elmer Holmes died in 1977, and the original trustee died in 1987. Thereafter, the then-president of the Bank, the successor co-trustee, declined to serve, and Evelyn became the sole trustee in 1988.
The 1965 inventory and appraisement included 29.4 shares of stock in the Bank and 135.55 shares of stock in United Accumulative Fund (Fund). At that time, the Bank stock had a value of $8,820. In 1978, the Fund stock was sold and all proceeds from the sale went into the trust. In 1981, the Bank stock was exchanged for 147 shares of stock in First Medicine Lodge Bancshares, Inc. (Bancshares). In 1992, the Bank again changed hands and the new owners wanted to redeem all of the stock, offering $285,297.45 for the trust’s 147 shares of Bancshares stock. Upon the advice of her attorney and the approval of the district court, Evelyn sold the trust’s 147 shares of stock.
Evelyn then sought advice from her attorney on how to handle the proceeds from the sale of the stock. Evelyn’s attorney interpreted the trust as giving the trustee broad discretion in allocation of receipts and advised Evelyn to return the original basis of the stock, $8,820, to the trust corpus, and to distribute the remaining $276,477.45, minus attorney fees, to herself as the income beneficiary. Evelyn obtained an ex parte order from the district court which affirmed this distribution.
Upon discovering these events, Smith brought a motion to set aside the district court’s ex parte order for lack of notice. After a hearing on this motion, a magistrate judge ordered Evelyn to return the sum of $275,727.45 to the trust.
On August 25, 1995, the district court issued a memorandum decision upholding the magistrate’s order. The district court found that the trustee’s allocation of the Bank stock receipts of $8,820 to principal and the balance to income was an abuse of discretion. The district court ruled that the trustee had a fiduciary duty when allocating receipts as expressed by K.S.A. 58-903(a)(3). The district court found further that when stock increases in value while being held in trust, although the increase reflects undistributed corporate earnings, the increase becomes part of the corpus. The trust provided for invasion of the corpus solely for unusual medical expenses. The express authority to invade the corpus for a specific purpose combined with the absence of express authority as a power of appointment gave further support to the district court’s conclusion. Finally, the district court found that the creation of successive life interests was compatible with an intent to pass wealth as far down the family tree as possible with a minimum of estate taxes and that broad powers of allocation would be contrary to this intent.
Evelyn argues that the will granted the trustee broad powers of discretion to dispose of and allocate property between income and corpus. Smith argues that such an interpretation would contravene Holmes’ intent and would be contrary to Evelyn’s fiduciaiy duty to the remaindermen.
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. [Citation omitted.] Where a court, either trial or appellate, is called upon to determine the force and effect to be given terms of a will, the court’s first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require employment or rules of judicial construction to determine its force and effect. [Citations omitted.] Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator. [Citation omitted.] In the interpretation of wills, the primary function of the court is to ascertain the testator’s intent from the four comers of the will and to carry out that intent if possible and not contrary to law or public policy. [Citation omitted.]” In re Estate of Cline, 258 Kan. 196, 199, 898 P.2d 643 (1995).
The district court found that the will was not ambiguous and, therefore, the intent of the testator should be determined from the four comers of the will. The district court also found that the will neither provided broad general powers of appointment nor granted the trustee power to invade the corpus for anything except unusual medical expenses.
Article IX of Holmes’ will sets forth the trustee powers as follows:
“B. [The Trustees] shall determine the allocation of receipts between corpus and income, and shall not be required to make any provision on account of increase or decrease in value, or on account of any depreciation or amortization of any of the property of the estate or trust. [The Trustees] shall determine the manner in which expenses incurred in the administration of the Estate or Trust shall be apportioned between corpus and income.
“C. In the event either Elmer Holmes or Evelyn Wolkins needs [assistance] during the existence of the Trust to meet unusual medical expenses for themselves or members of their respective immediate families, then the Trustees shall have authority to invade the corpus to the extent they deem necessary or advisable to furnish such assistance.
“D. [The Trustees] may make distributions in the administration of the estate or trust wholly or partly in cash or kind.
“E. It is my suggestion that the principal of the Trust be invested in good, interest bearing securities or savings accounts, but the [Trustees] shall be entitled to use their own discretion in the matter of investment or reinvestment of the Trust property.”
The district court held that Article IX.B. of the will merely relieved the trustee of any responsibility for fluctuations in the value of the trust corpus.
All the parties agree that the will is unambiguous. Evelyn maintains that the will demonstrates that Holmes intended to pass his estate with a minimum of estate taxes without rendering the will invalid by reason of the rule against perpetuities, to keep the ranch intact, and to properly care for Elmer and Evelyn. Smith supports the trial court’s conclusion that broad allocation powers contravene a testator’s intent to pass property as far down the family line as possible and, therefore, a trustee has a fiduciary duty to maintain the corpus for the remaindermen.
It is a longstanding rule that the testator’s intent controls. In re Estate of Egy, 205 Kan. 303, Syl. ¶ 1, 469 P.2d 319 (1970). Under Article IX.C. of the will, the trustee had the power to invade the corpus only for unusual medical expenses.
There is no language in the trust which grants additional powers other than those authorized by the Kansas Uniform Principal and Income Act, K.S.A. 58-901 et seq., which was last amended in 1965. The will does not grant the trustee the power to take part of the corpus and designate it as income. Such action on the part of the trustee is an invasion of the corpus for purposes other than allowed by the trust document.
K.S.A. 58-904 addresses the right to and the apportionment of income. K.S.A. 58-903 designates what is to be considered as income and what is to be classified as principal. K.S.A. 58-903(b) provides in part:
“Principal is the property which has been set aside by the owner or the person legally empowered so that it is held in trust eventually to be delivered to a remainderman while the return or use of the principal is in the meantime taken or received by or held for accumulation for an income beneficiary. Principal includes (1) consideration received by the trustee on the sale or other transfer of principal or on repayment of a loan or as a refund or replacement or change in the form of principal;
(4) stock dividends, receipts on liquidation of a corporation, and other corporate distributions as provided in K.S.A. 58-905;
(8) any profit resulting from any change in the form of principal except as provided in K.S.A. 58-911.”
The sale of the Bancshares stock was a total liquidation of a trust asset, which produced a much greater amount than the original purchase price. Therefore, the sale falls squarely within K.S.A. 58-903(b)(8).
The question of a trustee’s duty and the allocation of a gain or loss from the sale of capital assets was addressed in Jennings v. Speaker, Executrix, 1 Kan. App. 2d 610, 571 P.2d 358 (1977).
Jennings, as in this case, involved a trustee who was also a remainderman, although here the trustee is the income beneficiary. In Jennings, 1 Kan. App. 2d 610, Syl. ¶¶ 2, 6, the court held:
“Where a trustee is also the remainderman of a trust he has a conflict of interest with the income beneficiaiy requiring scrupulous fairness and impartiality in allocating receipts between principal and income.”
“Gains and losses from the sale of capital assets owned by a trust are allocable to the principal account.”
In Gaskill v. United States, 238 Kan. 238, 708 P.2d 552 (1985), the Kansas Supreme Court answered a certified question from the Tenth Circuit Court of Appeals concerning the powers and rights of a life tenant. The question posed to our Supreme Court was:
“Does a life tenant of property given to her in a will which authorizes her to dispose of the property as provided in Articles III [of the Gaskill will] have a right under Kansas law to consume the corpus where Article IV of the [Gaskill] will gives the remainder ‘subject to the life estate’?” 238 Kan. at 238.
The Kansas Supreme Court answered as follows:
“Where there are no clear provisions governing disposition of the proceeds of a sale by a life tenant in the will, the proceeds of a sale or disposition by a life tenant take die place of the property sold, so that title thereto is in the remaindermen, subject to such rights of possession, user, investment, reinvestment, expenditure, or consumption as may have been given the life tenant under the will. Annot., 47 A.L.R.3d 1078,1082.” 238 Kan. at 241.
We hold that gains or losses from the sale of all or part of the trust corpus are allocable to the corpus and do not become income unless there is specific language in the trust document granting the trustee broad power to invade the corpus for that purpose. The proceeds from the sale of the Bancshares stock should be returned to the trust corpus as provided for in K.S.A. 58-903(b).
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Royse, J.:
Wade L. Patterson appeals his conviction for felony possession of marijuana, contrary to K.S.A. 1994 Supp. 65-4162(a).
Following a bench trial, the district court found Patterson guilty of possessing marijuana after a prior conviction. The district court relied upon the fact that Patterson had previously been convicted in municipal court on a charge of possession of marijuana. The district court sentenced Patterson to a term of 37 months in prison, followed by 12 months of post release supervision. Patterson’s prison term was ordered to run consecutive to a prior sentence of 133 months imposed in an earlier case.
Patterson argues for the first time on appeal that his conviction in municipal court for possession of marijuana cannot be used as a prior conviction for purposes of 65-4162(a). Ordinarily, appellate courts will not consider an issue which the parties do not raise in the district court. There is an exception to this general rule, however, in exceptional circumstances, where consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995).
Resolution of the issue Patterson now raises will determine whether his conviction stands as a felony or a misdemeanor, with a substantial impact on his period of incarceration. Thus, consideration of the issue in this case is consistent with the criteria listed in Bell.
Whether a municipal conviction may be used as a prior conviction under 65-4162(a) is a matter of statutory interpretation. Statutory interpretation is a question of law. State v. Donlay, 253 Kan. 132, 133, 853 P.2d 680 (1993).
K.S.A. 1994 Supp. 65-4162(a) provides in pertinent part:
“Except as otherwise provided, any person who violates this subsection shall be guilty of a class A nonperson misdemeanor. If any person has a prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then such person shall be guilty of a drug severity level 4 felony.”
The following rules of statutory interpretation provide guidance in interpreting 65-4162(a). “ Tt 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.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). “[T]he legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results.” Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992).
In 1995, 65-4162(a) was amended to read, in part:
“Except as otherwise provided, any person who violates this subsection shall be guilty of a class A nonperson misdemeanor. If any person has a prior conviction under this section, a conviction for a substantially similar offense from another jurisdiction or a conviction of a violation of an ordinance of any city or resolution of any county for a substantially similar offense . . . , then such person shall be guilty of a drug severity level 4 felony.” (Emphasis added.) L. 1995, ch. 218, § 2.
After this 1995 amendment, a municipal conviction is clearly included. “When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). “Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose to change its effect.” In re Marriage of Schuhs, 20 Kan. App. 2d 98, 99, 883 P.2d 1225 (1994), rev. denied 257 Kan. 1092 (1995). These statutory interpretation rules support Patterson’s argument that municipal convictions were not included under K.S.A. 1994 Supp. 654162(a).
In State v. Dunn, 21 Kan. App. 2d 359, 364, 900 P.2d 245 (1995), this court held that municipal convictions may not be used in computing the criminal history of a defendant under the provisions of Kansas Sentencing Guidelines Act then in effect. The statute at issue in Dunn, K.S.A. 1993 Supp. 21-4711(a), provided: “Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.” In determining defendant’s criminal history, K.S.A. 1993 Supp. 21-4701(d)(7) did not authorize the use of municipal convictions. In 1994, that statute was amended to specifically include municipal violations which are comparable to state misdemeanors.
The Dunn court analyzed the amendment as follows:
“It is dear that in 1993 the statute did not expressly indude municipal convictions in detailing what misdemeanors should be considered and scored. In order to indude municipal convictions, we would be required to construe the statute as saying something which it does not dearly and expressly state. Such a construction would be contrary to the rule of strict construction which we are to apply in cases of this nature. Our criminal statutes are to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993).” 21 Kan. App. 2d at 361.
In State v. Floyd, 218 Kan. 764, 768, 544 P.2d 1380 (1976), the court determined that K.S.A. 1974 Supp. 65-4127b(a) (now codified as 65-4162) did not allow a previous municipal possession of marijuana conviction to enhance a subsequent district court conviction for possession of marijuana, so as to make the subsequent offense a felony rather than a misdemeanor. K.S.A. 1974 Supp. 65-4127b(a) provided: “Any person who violates this subsection shall be guilty of a class A misdemeanor, except that upon conviction for a second or subsequent offense, such person shall be guilty of a class D felony.” 218 Kan. at 765. The Floyd court indicated that “[i]n the absence of clear statutory language a prior conviction un der a city ordinance does not support a charge of a subsequent offense under a state statute.” 218 Kan. 764, Syl. ¶ 2.
For all the foregoing reasons, we conclude the district court erred in using Patterson’s municipal conviction to classify his conviction as a felony rather than a misdemeanor.
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Brazil, C.J.:
Western Video Collectors, L.P., et al. (Western), appeals the trial court’s order granting summary judgment to Mercantile Bank of Kansas (Mercantile). Western argues that a choice of law provision in its contract with Mercantile required the district court to apply Missouri procedural law, which contains a more lengthy statute of limitations. In the alternative, Western.contends its action was timely under the Kansas statute of limitations. Western also argues genuine issues of material fact existed to preclude summary judgment. We affirm.
Western was in the business of selling old western films on videocassettes through television advertising. In November 1988, Western opened two business accounts at Galleria Bank (Galleria), Mercantile’s predecessor. The accounts enabled Western to process credit card orders placed by its customers. One account served as the business checking account, and the other was a reserve account from which customer refunds, or charge-backs, were paid. Western and Galleria executed a written “Merchant Agreement” governing the processing of the credit card transactions.
In January 1989, Galleria notified Western’s president, Ken Heard, that it was closing Western’s accounts. In February 1989, Galleria informed Heard that it was freezing the funds in the accounts. Without access to the funds in the accounts, Western was unable to purchase its product from its suppliers, and by March 1989, customer complaints began increasing because Western was not filling its orders. Heard opened new accounts at another bank in April 1989.
The Merchant Agreement states: “This agreement shall be governed by the laws of the State of Missouri.” Western urges this court to construe this provision to mean the parties agreed that Missouri procedural law would govern any lawsuit based on the agreement. Western contends that the provision is ambiguous because it does not speak to the issue of whether Missouri is intended as the forum state, and therefore must be strictly construed against the drafter of the agreement, Mercantile. We disagree.
The fact that something is not specifically provided for in a contract does not, by itself, make the contract ambiguous. See Quenzer v. Quenzer, 225 Kan. 83, 85-86, 587 P.2d 880 (1978). Likewise, in this case, the fact that the provision does not address whether Missouri should be the forum state does not render the agreement ambiguous. Moreover, the provision is not ambiguous on its face; the language used in the provision is clear and cannot reasonably be understood to have multiple meanings. It requires no construction by the court, and thus the strict construction rule is inapplicable. See Thomas v. Thomas, 250 Kan. 235, Syl. ¶ 3, 824 P.2d 971 (1992).
Western also makes an unsupported allegation that the individuals who entered into the contract were laymen who may have had a different understanding of the choice of law provision. Western argues it was error to grant summary judgment without receiving testimonial evidence regarding the parties’ intent. However, Kansas law provides that “[w]hen a contract is plain and unambiguous, the parties’ intent should be determined from the instrument.” Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 662, 876 P.2d 1362 (1994). Moreover, to avoid summary judgment, Western has the burden of producing evidence sufficient to establish a genuine issue of material fact concerning the parties’ intent. See Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). No such evidence appears in the record. Western’s argument fails.
“ ‘The general rule in respect to limitation of actions is that the law of the forum governs.’ ” Muzingo v. Vaught, 18 Kan. App. 2d 823, 825, 859 P.2d 977 (1993). Statutes of limitation are procedural in nature. See Sun Oil Co. v. Wortman, 486 U.S. 717, 722-26, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988); Muzingo v. Vaught, 18 Kan. App. 2d at 828. In conflict of laws situations, matters of procedure are usually considered to be subject to the law of the forum. Annot, 78 A.L.R.3d 639, 647.
Mercantile cites Chilson v. Capital Bank of Miami, 10 Kan. App. 2d 111, 692 P.2d 406 (1984), aff’d 237 Kan. 442, 701 P.2d 903 (1985), for the proposition that general choice of law provisions relate only to substantive and not to procedural law. Chilson argued that Florida law provided the governing statute of limitations. Chilson based his argument on a provision in the Kansas Uniform Commercial Code, K.S.A. 84-4-102(2), which stated that in an action for mishandling a negotiable item, “liability ... is governed by the law of the place where the bank is located.” Although basing its decision in the case on other grounds, the court noted in passing that Chilson’s contention lacked merit. The court held: “The choice of law provision included in K.S.A. 84-4-102(2) relates only to the rules regarding liability in handling a negotiable item and not to the procedural restrictions on a lawsuit which vary in every state.” 10 Kan. App. 2d at 115.
The Chilson decision, while not directly on point with the facts of the case at bar, provides support for Mercantile’s position. The Chilson court interpreted a general choice of law provision and concluded that it did not affect procedural law, such as a statute of limitations.
Although Kansas courts have not addressed this precise question, the prevailing authority indicates that, unless the parties expressly agree to apply the statute of limitations of another state, general choice of law provisions in contracts incorporate only sub stantive law and do not displace the procedural law of the forum state. See Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir. 1994); Gluck v. Unisys Corp., 960 F.2d 1168, 1179-80 (3d Cir. 1992); Federal Deposit Ins. Corp. v. Petersen, 770 F.2d 141, 142-43 (10th Cir. 1985); Des Brisay v. Goldfield Corp., 637 F.2d 680, 682 (9th Cir. 1981). Western cites no authority to the contrary.
In the present case, the Merchant Agreement does not contain an express agreement to apply the Missouri statute of limitations. In accordance with the cited authority, we conclude that the choice of law provision in the Merchant Agreement does not displace Kansas procedural law. Therefore, the district court did not err in applying the Kansas statute of limitations.
Western contends that its action was timely filed under Kansas law. “The district court’s interpretation of the statute of limitations for contract actions is a conclusion of law. This court’s review of conclusions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).” Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d 1087, 1090, 880 P.2d 789 (1994).
K.S.A. 60-511(1) provides a 5-year statute of limitations for a cause of action based on a written contract. “The period for filing suit begins to run when the cause of action accrues.” Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d at 1089; see K.S.A. 60-510.
Western filed its petition on July 26,1994. For Western’s action to be timely, the 5-year statute of limitations must not have started running before July 26, 1989. The question is whether Western possessed a right to maintain a legal action before July 26, 1989, or whether the right of action did not arise until after July 26,1989.
Western’s petition states the basis for its cause of action. Western alleged that by freezing the bank accounts, Galleria prevented Western from being able to obtain merchandise and fill customer orders. Western also alleged that as a result of the frozen accounts, it could not pay its business expenses in a timely manner. These problems, which form the gravamen of Western’s complaint, occurred in February and March 1989. In fact, by April 1989, Western had found another bank and established new accounts to re place the ones at Galleria. Clearly, Western’s right to maintain a legal action arose before July 26, 1989.
Western points out that Galleria processed customer charge-backs through August 1989. In its petition, Western charged Galleria with failing to provide notice of customer charge-backs and complaints. Western alleged that Galleria should have afforded it the opportunity to address these customer problems.
Neither the Merchant Agreement nor the specific account agreements contain a provision requiring Galleria to give notice of customer charge-backs or complaints. Western admits that the obligation to notify was implied in its agreements with Galleria Bank. K.S.A. 60-512 provides a 3-year statute of limitations for actions based on implied contract obligations. See Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, 740-45, 894 P.2d 881, rev. denied 257 Kan. 1096 (1995).
The last customer charge-back occurred in August 1989, over 3 years prior to the date the action was filed. Therefore, K.S.A. 60-512 bars Western’s implied contract claims. It is well established that a trial court decision which reaches the right result will be upheld even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision. In re Estate of Murdock, 20 Kan. App. 2d 170, 175, 884 P.2d 749 (1994). Accordingly, the district court did not err in holding the statute of limitations barred Western’s claims.
Western argues that because the reserve account remained open until December 1989, Galleria did not breach the contract until the account was actually closed. Western characterizes its contract with Galleria as a “continuous service contract” and cites In re Estate of Moe, 240 Kan. 242, 729 P.2d 447 (1986), for the proposition that where a continuous service contract is involved, the statute of limitations does not start to run until the services have ended. Contrary to Western’s assertion, however, Moe does not establish such a broad rule.
The Moe court explained the general contract rule that once performance has begun and prevention of further performance takes place by repudiation or otherwise, a breach exists. 240 Kan. at 245. The court then noted that an exception to the general rule exists:
“[W]here if there is a single hiring and the term of service of the employee and also the time when his compensation shall become due are not fixed by agreement, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of the evidence of a general custom or usage, may be deemed continuous. Under such circumstances, the statute of limitations will not begin to run against a claim for compensation until the services have ended.” 240 Kan. at 245.
By its own terms, the exception explained in Moe applies to employment situations, usually involving one party who promises to provide services to another in exchange for a promise to make payment or leave property at death. See In re Estate of Moe, 240 Kan. at 245-48 (discussing three similar cases). The case at bar does not involve such an employment situation, and therefore the exception set forth in Moe is inapplicable.
In a related argument, Western cites Jarnagin v. Ditus, 198 Kan. 413, 418, 424 P.2d 265 (1967), where the court held that voluntary and deliberate partial payment on a debt will toll the statute of limitations on a action to recover the debt. Western points out that by processing customer charge-backs and keeping the reserve account open, Galleria continued to perform under the Merchant Agreement. Western compares this continued performance to a partial payment on a debt and argues that the statute of limitations should be tolled.
Western’s comparison is ill-founded. The Jamagin court explained why partial payment tolls the statute of limitations: “The principle upon which part payment extends the running of the statute is that the debtor intended by such payment to acknowledge and admit the greater debt to be due, and from which the trier of facts would be warranted in finding an implied promise to pay.” 198 Kan. at 418. In the case at bar, one cannot reasonably infer that Galleria acknowledged any greater obligation by its continued account activity. Western fails to explain its comparison, and the Jamagin case differs significantly from the instant matter.
Finally, Western cites Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d 1087, where the court considered when a cause of action accrues for breach of a construction contract. The court noted that several jurisdictions had adopted a special rule governing complex construction contracts and under that rule the statute of limitations does not begin to run until the contract is completed. The court held that the rule and the reasons supporting it were in accordance with Kansas law regarding statutes of limitation. The court concluded that in the case before it, the plaintiff could not have successfully maintained an action following a technical breach of the contract, because the ramifications of the technical breach were unknown. The court held that the cause of action did not accrue until the contract was completed and the demand for incentive payments rejected. 19 Kan. App. 2d at 1090-93.
Kraemer is distinguishable from the present case. Here, unlike in Kraemer, the ramifications of Galleria’s breach were known in February and March 1989, when Western’s business suffered as a result of the frozen accounts. The fact that the contract was not technically complete until Galleria closed the reserve account in December 1989 does not compel a finding that Western could not maintain a cause of action prior to July 26, 1989. Western’s argument fails.
Summary judgment is appropriate when the documents on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Boulanger v. Pol, 258 Kan. 289, 295, 900 P.2d 823 (1995). The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party opposing the motion. Boulanger v. Pol, 258 Kan. at 295. Similarly, “[i]n reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion.” Morriss v. Coleman Co., 241 Kan. 501, 502, 738 P.2d 841 (1987).
Western contends four material issues of fact existed to preclude summary judgment. First, Western contends Galleria continued to process customer charge-backs without notifying Western or giving Western the opportunity to settle the disputes directly with the customers. Mercantile, however, does not dispute these facts. The only real issue is whether an implied contract obligation exists requiring Mercantile to refer customer charge-backs and complaints to Western. The existence of an implied contract is: a question of law, see Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d at 737, and does not present a material fact issue. Moreover, as previously discussed, Western’s implied contract claim is subject to a 3-year statute of limitations and is therefore untimely.
Second, Western asserts that Galleria failed to give written notice' of its intent to close the accounts. The Merchant Agreement states that “EITHER MERCHANT OR BANK MAY TERMINATE THIS AGREEMENT UPON RECEIPT OF WRITTEN NOTICE BY THE OTHER.” It is undisputed that Mercantile did not provide written notice of its intent to close the accounts and terminate the Merchant Agreement. Western argues that the district court should have inferred from this fact that the accounts were not closed in January 1989. However, the parties agree that the accounts were not actually closed until June and December 1989. Further, the district court could not reasonably infer from a lack of written notice that Galleria did not freeze the accounts and ultimately force Western to replace the accounts at another bank. Western’s argument is not persuasive.
Third, Western contends a material issue of fact existed concerning whether Galleria breached Credit Systems, Inc.’s (CSI) rules and regulations. Western was unable to obtain a copy of the CSI rules and regulations prior to the entry of summary judgment. Western contends the district court acted prematurely and should have allowed Western to procure the CSI rules and regulations.
When opposing a motion for summary judgment, the adverse party must come forward with evidence to establish a dispute as to a material fact. Mitzner v. State Dept. of SRS, 257 Kan. at 260; see K.S.A. 60-256(e). Western did not produce the CSI rules and regulations which it claimed Galleria violated. The only evidence Western produced is Heard’s affidavit stating that he was attempting to obtain a copy of the CSI rules and regulations. This evidence is not sufficient to establish a dispute of material fact so as to preclude summary judgment.
Finally, Western argues that a material factual issue existed regarding Galleria’s actions in keeping the reserve account open. Western points out that Galleria continued to process customer charge-backs, charge service fees, award interest, and provide monthly statements. However, Mercantile does not controvert these facts. Western asks the court to infer from Galleria’s actions that Galleria was still performing the contract after July 26, 1989. This issue does not present a question of material fact. Further, even though Galleria continued to perform some of its contractual obligations, Galleria breached the Merchant Agreement by freezing the accounts in early 1989. As previously discussed, Western could have maintained an action based on Galleria’s actions in freezing the accounts, and the continued performance of other contractual obligations does not toll the statute of limitations. Cf. Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d at 1092-93. Western’s argument fails.
The district court did not err in granting summary judgment.
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Knudson, J.:
This is a breach of contract action brought by Toshiba Master Lease, Ltd., (Toshiba) against Ottawa University (Ottawa) to collect lease payments under a written lease entered into between the parties for copier equipment. The litigation proceeded to a bench trial, with the district court concluding that Toshiba was equitably estopped from enforcement of the agreement. Toshiba has filed this appeal, contending that the district court improperly applied the doctrine of equitable estoppel. We affirm the judgment of the district court.
Toshiba finances business transactions between suppliers and their customers. In this case, the supplier is John Pappert, who owned a company named Century Office Products, Inc. (COPI). Pappert had previously supplied copier equipment to Ottawa and was again its supplier in the underlying transaction. The three-sided transaction appeared to work as follows: Pappert was an independent vendor who secured customers for leases to be financed by Toshiba as the lessor.
From Toshiba’s perspective, there are two legal documents executed by Toshiba as lessor and Ottawa as lessee that detail rights, obligations, and liabilities: (1) the equipment acceptance purchase authorization and (2) the lease agreement.
The equipment acceptance purchase authorization was executed by Ottawa on October 26, 1989. The authorization certified that the copier equipment had been delivered, and received and that Ottawa had accepted it. Ottawa also acknowledged that Toshiba would purchase the copier equipment from COPI. Ottawa further acknowledged that it selected COPI as its supplier and also selected the copier equipment Toshiba was to purchase. The authorization concluded by stating:
“LESSEE ACKNOWLEDGES THAT . . . THE SUPPLIER ... [IS NOT] AN AGENT OR REPRESENTATIVE OF LESSOR, AND . . . [IS NOT] AUTHORIZED TO WAIVE OR CHANGE ANY TERM, PROVISIONS, OR CON DITION OF THIS LEASE OR MAKE ANY REPRESENTATION OR WARRANTY ABOUT THIS LEASE OR THE EQUIPMENT.”
Ottawa signed the written lease agreement on October 26,1989, and sent the document, along with the equipment acceptance purchase authorization, to Toshiba. On October 31, 1989, Toshiba executed the lease agreement. The lease agreement required 60 monthly payments of $1,594.54, contained explicit language that it was noncancellable, and iterated that the supplier had no authority to make any representations inconsistent with the terms of the written lease. The language used in both documents, which primarily protected Toshiba, is referred to in the leasing industry as “hell or high water” clauses.
In accordance with the documents, Toshiba believed that Pap-pert was providing Ottawa with new copiers. However, Pappert had previously supplied. Ottawa with the copiers under an older lease with another lessor. When Pappert solicited the Toshiba lease with Ottawa, he represented that the old lease would be paid off, and apparently it was. Just how that was accomplished is not clear from the evidence.
In February 1991, Pappert again negotiated a lease for copier equipment with Ottawa and secured financing through a company other than Toshiba. Under this new lease, Ottawa received one or two new copiers; the other four or five copiers were provided by Toshiba. Pappert again explained to Ottawa’s representatives that the Toshiba lease would be paid off. Relying on Pappert’s representations, Ottawa made its last payment to Toshiba in April 1991. Significantly, Toshiba quit sending monthly invoices to Ottawa. This was more than mere coincidence.
In the early part of 1991, Toshiba learned that Pappert had misrepresented to several lessees that their leases had been paid off. Toshiba chose not to notify its lessees; instead, Toshiba began negotiating with Pappert for payment of the leases. Ultimately, Pap-pert signed two promissory notes which obligated him and his company for the payment of the various lease obligations. In May 1991, Toshiba received a letter from Pappert’s attorney stating that Ottawa’s lease obligation should be included as an additional lease to be paid by Pappert. Toshiba discontinued sending invoices to Ottawa, did not contact Ottawa and inform them of Pappert’s fraudulent scheme, and continued to receive lease payments from Pap-pert under the promissory notes that initially distributed his payments to the various leases on a pro rata basis.
Pappert soon became delinquent in his payments to Toshiba: As a result of Pappert’s nonpayments, Ottawa was invoiced in June and July 1991. When Ottawa’s business manager received the June 1991 invoice, she telephoned Pappert, who assured her that it was a billing error and that he would take care of it. When Ottawa’s business manager received the July 1991 invoice, she again telephoned Pappert; he told her to let Toshiba know that the lease had been paid. Subsequently, the business manager returned the July 1991 invoice to Toshiba with a handwritten note which stated that the lease had been paid off and that Toshiba should correct its records. Although Toshiba did not respond to the handwritten note, Ottawa received no further invoices.
Michael McGinley, the collections manager for Toshiba, testified that he could not say with certainty whether he received the returned July invoice with the note from Ottawa. However, McGinley indicated that the established practice and custom within the company would ensure that the note would reach his desk. McGinley testified that, in any event, he would not have contacted Ottawa upon receipt of the note since Pappert was making payments. McGinley confirmed that Toshiba never notified Ottawa that Pappert was making payments under promissory notes with the proceeds being applied to their lease.
In January 1992, Toshiba quit applying Pappert’s note payments on a pro rata basis to the various leases and started applying them to an individual lease selected by Toshiba until that particular lease was paid off. Ultimately, Pappert defaulted and filed bankruptcy before Ottawa’s lease was paid. Toshiba never at any time resumed sending invoices to Ottawa; however, in March 1994, Toshiba filed this lawsuit for the balance of the unpaid lease payments.
In granting judgment to Ottawa, the district court stated in its memorandum of decision:
“19. [Ottawa], in asserting equitable estoppel, must show that Toshiba, by its acts, representations, admissions, or silence when it had a duty to speak, induced [Ottawa] to believe certain facts existed that [Ottawa] rightfully relied and acted upon to its prejudice. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382, 855 P.2d 929 (1993).
“20. Actual fraud, bad faith, or an attempt to mislead or deceive on the part of Toshiba is not essential to a successful claim of equitable estoppel. Potucek v. Potucek, 11 Kan. App. 2d 254, 719 P.2d 14 (1986).
“21. The facts of this case are undisputed that [Ottawa] faithfully made the required monthly payments under the 1989 lease as it received invoices from Toshiba. When Mr. Pappert negotiated a new lease with [Ottawa] and represented to [Ottawa] that the 1989 lease had been satisfied and paid, the invoices from Toshiba to [Ottawa] stopped for three (3) or four (4) months until ... an invoice generated by Toshiba requesting payments due in July and August, 1991, was received by [Ottawa].
“22. At this point, [Ottawa’s] business manager, Marsha Denniston, wrote Michael McGinley, Toshiba’s National Collections Manager, advising him that the 1989 lease had been paid off and asking him to correct his records.
“23. Mr. McGinley never responded and testified 1 didn’t call her because (Toshiba) had agreed with Pappert that Pappert would pay off the [Ottawa] debt.’
“24. Toshiba was silent when it had a duty to speak. It had a duty to speak based on the written terms of its own invoices to [Ottawa] .... Those invoices invited [Ottawa], as Toshiba’s customer, to contact Toshiba regarding the status of [Ottawa’s] account. That is exactly what Marsha Denniston attempted to do. Further, all contracts imply an obligation of good faith in their performance or enforcement. . . .
“25. Because of Toshiba’s silence and the manner in which it generated invoices to [Ottawa], Toshiba induced [Ottawa] to believe that in fact the 1989 lease had been satisfied and paid in full.
“26. [Ottawa] rightfully relied upon this belief and acted upon it to its prejudice.
“27. Toshiba argues that there was no prejudice to [Ottawa] because in negotiating the promissory note with John Pappert, Toshiba collected money to be applied to [Ottawa’s] obligation. However, this Court finds that [Ottawa] was prejudiced because it was induced to take no action to protect its rights or pursue its own remedies against Mr. Pappert. Had [Ottawa] known of Pappert’s fraudulent activity in July of 1991, when Marsha Denniston requested information from Toshiba, [Ottawa] could have pursued Pappert at a time when he had funds and assets to satisfy the [Ottawa] obligation in its entirety.
“28. Instead, [Ottawa] was induced by the silence of Toshiba and Toshiba’s affirmative action in generating the invoices, to do nothing to protect its rights.
“29. [Ottawa] has met its burden of proving all of the essential elements of equitable estoppel.
“30. The defense of equitable estoppel is, in this case, a complete bar to plaintiff’s claim.”
On appeal, Toshiba contends that equitable estoppel is not applicable under the law and the evidence. Toshiba argues that it did not have a duty to advise Ottawa of its settlement agreements with Pappert, that Toshiba did not have actual or constructive notice that Ottawa thought the lease had been paid off, that Ottawa did not rightfully rely on the silence of Toshiba, and that Ottawa was not prejudiced by the conduct of Toshiba.
Our standard of review is as follows:
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993)'
The Duty To Speak
Toshiba first contends that, as a matter of law, it had no duty to advise Ottawa of Toshiba’s settlement agreements with Pappert. We find this contention to be without merit.
“Equitable estoppel is the effect of the voluntary conduct of a party whereby it is precluded, both at law and in equity, from asserting rights against another person relying on such conduct.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). In Tucker v. Hugoton Energy Corp., 253 Kan. at 383, the court stated:
“A party seeking to invoke equitable estoppel must show that the acts ... or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction. Gillespie v. Seymour, 250 Kan. 123, 129-30, 823 P.2d 782 (1991); Ram Co. v. Estate of Kobbeman, 236 Kan. 751, 766, 696 P.2d 936 (1985).”
Toshiba contends that the “duty to speak” may only arise as a result of disparate bargaining power or expertise where parties are contracting or if there is an underlying fiduciary relationship. Toshiba cites as authority Eckholt v. American Business Information, Inc., 873 F. Supp. 510 (D. Kan. 1994), and Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152 (10th Cir. 1994). Toshiba’s contention is without merit. Eckholt and Flight Concepts both address fraud by silence, not equitable estoppel. More importantly, the cases do not support the conclusion advocated by Toshiba.
Kansas law is very clear — equitable estoppel does not arise out of contract but is based upon concepts of morality and justice. “Each case where the doctrine is raised as a defense must depend on its own facts.” Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 436, 65 P.2d 584 (1937).
Other jurisdictions also have concluded that equitable estoppel is not constrained by the law of contracts or the existence of a fiduciary relationship. See, e.g., Seguin et al. v. Maloney-Chambers, 198 Or. 272, 287, 253 P.2d 252, reh. denied 198 Or. 288 (1953), and In re Ellison Associates, 63 Bankr. 756 (S.D.N.Y. 1983).
Thus, the issue becomes whether Toshiba had a duty to speak under the evidence presented in this litigation. We believe that it did. Toshiba, Ottawa, and Pappert had a business relationship with one another that led to the written lease agreement for the copier equipment. The lease agreement gave rise to a duty of cooperation by the parties and implied good faith and fair dealing. See Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987).
Toshiba entered into a side pocket agreement with Pappert for payment of tens of thousands of dollars which resulted from Pap-pert’s scheme to defraud Ottawa and other Toshiba lessees. Then, without any explanation to Ottawa, Toshiba stopped sending monthly invoices for lease payments in response to Pappert’s request that Toshiba not bill other Toshiba customers whom he was defrauding. Obviously, if Toshiba had continued billing Ottawa, Pappert’s duplicity would have been unmasked. When Toshiba temporarily resumed invoicing Ottawa in June and July 1991, the invoices again stopped after Pappert resumed payments. Also, at that time, Ottawa had returned an invoice with a handwritten note which reminded Toshiba that the lease had been paid off and that Toshiba’s records should be corrected. Significantly, although Toshiba did not respond to Ottawa’s note, it never invoiced Ottawa again.
Under the above circumstances, we believe that the trial court correctly determined that Toshiba breached a duty owed to Ottawa to speak and inform Ottawa (1) of Pappert’s fraud, (2) of Toshiba’s agreement with Pappert, and (3) of Toshiba’s position that the lease had not been paid off.
Actual or Constructive Notice
Toshiba next argues that the trial court erred in finding it received actual or constructive notice that Ottawa believed the lease had been paid off. Whether Toshiba received notice is a question of fact.
There is substantial competent evidence in the record to support the trial court’s determination. Ottawa’s business manager testified that her office mailed the invoice to Toshiba with the note advising that the lease had been paid. Moreover, Toshiba knew that Ottawa had been defrauded by Pappert and discontinued its billings to Ottawa after receiving the handwritten note that the lease had been paid off. Toshiba’s contention is without merit.
Ottawa’s Reliance
Toshiba first argues that Ottawa was not receiving new copiers as provided in the lease agreement; therefore, Ottawa was not an innocent party. Toshiba’s argument has no bearing on the issue before the court and nothing whatsoever to do with Toshiba’s negotiations with Pappert and the circumstances that we have already noted.
Toshiba next argues that the “hell and high water” clauses in the written lease agreement and equipment acceptance purchase authorization should have put Ottawa on notice that the lease had not been paid. Certainly, this was an important circumstance, but not one that we conclude would prohibit Ottawa from relying upon estoppel. The evidence at the trial revealed that Toshiba had allowed leases to be paid off. In fact, Toshiba’s agreement with Pap-pert to conceal his fraud included acquiescence by Toshiba that the compromised leases would be paid off without the lessees ever being told by either of these parties what had occurred.
Toshiba also argues that the trial court’s ruling is tantamount to permitting recision of the contract by Ottawa. We disagree. Ottawa has not sought to rescind its contract with Toshiba; rather, as was recognized by the trial court, Ottawa asked that Toshiba be es-topped by its subsequent conduct from relying on an otherwise enforceable agreement.
We conclude that the trial court did not err in its determination that Ottawa reasonably relied upon Toshiba’s silence.
Whether Prejudice to Ottawa Has Been Shown
Toshiba argues that there is insufficient evidence to support the trial court’s finding that Ottawa was prejudiced by its silence. Whether Ottawa was prejudiced is a question of fact.
The trial court found that if Toshiba had made appropriate and timely disclosures in the summer of 1991, Ottawa would have been able to protect its rights by taking action against Pappert while he was solvent. Toshiba argues that the trial court engaged in raw speculation that Ottawa would have protected its rights and pursued Pappert. In its written brief on appeal, Toshiba argues the “record is utterly devoid of any reference to [Pappert’s] financial ability at any time to repay Ottawa or any evidence of any willingness to so pursue Pappert.” We disagree. Contrary to Toshiba’s contentions, the record contains more than sufficient evidence that Pappert was financially able to repay Ottawa. It is uncontested that Ottawa’s obligation to Toshiba under the lease was $60,327.82. Additionally, the evidence shows that over the course of the next 3 years, during which Ottawa was unaware the lease had not been paid off, Pappert made sufficient payments to Toshiba to satisfy Ottawa’s obligation. It is more probable than not that if Ottawa had been promptly and properly advised, Ottawa would have pursued recovery from Pappert.
In addition, the trial court was justified in using its common sense and making the reasonable inference that Ottawa would have pursued Pappert had Ottawa known (1) of Pappert’s deceit, (2) of Toshiba’s agreements with Pappert, and (3) of Toshiba’s undeclared position that the lease was not paid off.
We conclude that there was sufficient evidence to support the trial court’s finding of prejudice to Ottawa.
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Marquardt, J.:
Cherri Q. Christensen appeals from the denial of her motion to withdraw her guilty pleas and the sentences subsequently imposed on three drug convictions in two cases.
On October 10,1995, Christensen pled guilty in case No. 94 CR 465 to possession of methamphetamines with intent to sell or distribute, a drug severity level 3 felony, and in case No. 95 CR 230 to possession of methamphetamines, a drug severity level 4 felony, and to possession of marijuana, a class A nonperson misdemeanor.
On December 4, 1995, Christensen filed a motion to withdraw her guilty pleas. Christensen alleged that at the time of the plea hearing, she was unaware that the district court was required to order the sentences to run consecutively. On December 6, 1995, the district court denied the motion and proceeded to sentencing.
At sentencing, the State made the following remarks:
“[THE STATE:] In 95 CR 230, the guidelines call for a presumption of probation, the recommendation if the Court follows that, is for community corrections. But, as a practical matter I don’t know how the defendant could report to community corrections or comply with any terms of community corrections if she’s incarcerated on the other case. And I believe the guidelines allow the Court, if one case has a presumption of prison and one doesn't, to impose prison on both of them and not be considered a departure, and so that would be our recommendation in that case.’’ (Emphasis added.)
Christensen filed a motion for downward departure in both cases based on her medical problems and the drug-related nature of the crimes. The State informed the district court that the two felony sentences should be served consecutively.
The district court sentenced Christensen to 22 months in prison in 94 CR 465 and 15 months in prison for possession of methamphetamines in 95 CR 230, ordering that these sentences be served consecutively. The district court also sentenced Christensen to 12 months in jail for possession of marijuana and ordered that this sentence run concurrent with the felony crimes.
Plea Withdrawal
Christensen argues that the district court abused its discretion by denying her motion to withdraw her guilty pleas.
A district court’s denial of a motion to withdraw a plea will be reversed only if the district court abused its discretion. See State v. Johnson, 258 Kan. 607, 610, 907 P.2d 140 (1995).
Christensen moved to withdraw her pleas before sentences were imposed. “To justify a motion to withdraw the plea prior to sentencing, the motion should allege that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea .’’Johnson, 258 Kan. at 610-11.
In determining whether a defendant should be allowed to withdraw a plea, the district court should consider whether the defendant was represented throughout by competent counsel; whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and whether the plea was freely, fairly, and understandingly made. State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).
K.S.A. 22-3210(3) requires the district court to address a defendant personally and determine that the guilty plea is being made voluntarily and with an understanding of the nature of the charge and the consequences of the plea. See generally State v. Shaw, 259 Kan. 3, 10-11, 910 P.2d 809 (1996).
Christensen argues that at the time of the plea, the district court did not adequately inquire about her mental state after she informed the court that she was taking prescription medications. Christensen also argues that the district court did not adequately ascertain that her guilty pleas were made voluntarily and with an understanding of the charges and the consequences.
At the plea hearing, the district court asked Christensen if she was presently under the influence of any intoxicating liquors or drugs, to which Christensen replied, “No, just prescription drugs.” Christensen does not allege that any of the drugs she had been taking possessed intoxicating or mind-altering effects. The district court did not make any further inquiry into the effect of the prescription medications on Christensen.
Christensen cites U.S. v. Cole, 813 F.2d 43, 46 (3d Cir. 1987), as support for her position that her pleas were not voluntary. However, Cole is distinguishable in that Cole claimed that he had ingested a substantial amount of heroin and cocaine the night prior to and through the early morning hours of the day of his plea hearing.
Christensen also cites U.S. v. Rossillo, 853 F.2d 1062, 1065-67 (2d Cir. 1988), where the district court asked Rossillo if he was under the influence of any drug, alcohol, or other intoxicants. Rossillo did not personally answer the question or address the district court in any way. The federal court of appeals held that the failure to make an on-the-record determination whether Rossillo was under the influence of any medication and whether his plea was voluntarily and knowingly entered constituted reversible error. 853 F.2d at 1067.
Christensen argues that because she had been taking prescription medications and had been suffering from severe emotional problems, she did not understand that her sentences might run consecutively. We hold that a defendant who is taking prescription drugs, and who informs the court that he or she is not under the influence of any intoxicating drugs, is able to make a voluntary plea. The district court asked Christensen if she understood that in 95 CR 230 the court would order her sentence to run consecutive to her sentence for 94 CR 465, and Christensen responded, 'Tes, sir.”
The record indicates that Christensen was represented by counsel throughout the plea hearing, that she did not allege in her motion to withdraw her pleas that she was not guilty, and that she understood the district court would order her sentences to be served consecutively. The district court did not abuse its discretion. in denying Christensen’s motion to withdraw her pleas. See State v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553 (1991).
Mandatory Consecutive Sentencing
Christensen argues that the district court erred in concluding that consecutive sentencing was mandatory because Christensen had committed the offense in 95 CR 230 while she was on bond in 94 CR 465. Christensen also argues that the sentences are illegal because the district court imposed sentence based on an erroneous view of the law.
The other issues raised by Christensen require this court to interpret the Kansas statutes governing sentencing in multiple conviction cases. Interpretation of a statute is a question of law subject to unlimited appellate review. Blomeyer v. State, 22 Kan. App. 2d 382, 384, 915 P.2d 790, rev. denied 260 Kan. 991 (1996).
At both the plea hearing and sentencing, the State informed the district court that because Christensen was out on bond when she committed the second offense, the law required that the sentences run consecutively. The district court ordered the two felony sentences to be served consecutively without stating on the record that it was exercising its discretion in doing so.
In State v. LaGrange, 21 Kan. App. 2d 477, 901 P.2d 44, rev. denied 258 Kan. 861 (1995), this court addressed a nearly identical situation. In LaGrange, the district court found that it was required by law to impose consecutive sentences because the defendant was on bond in the first case when he committed the offense in the second case. Following State v. Owens, 19 Kan. App. 2d 773, 875 P.2d 1007 (1994), the LaGrange court held that K.S.A. 21-4608(a) “provides that when a defendant is sentenced for separate crimes on the same date, the court has discretion to run the sentences concurrently or consecutively.” 21 Kan. App. 2d at 484. The district court must exercise that discretion on the record, and a sentence imposed under the mistaken belief that consecutive sentences are mandatory must be vacated and remanded for resentencing. 21 Kan. App. 2d at 484-85.
The State does not address whether LaGrange controls this issue. Rather, the State argues that Christensen cannot appeal the sentence because it had recommended the sentence provided in the plea agreement and that was the sentence that she received. See K.S.A. 21-4721(c)(2). These parties had not agreed to a sentence in a plea agreement that was subsequently approved by the sentencing court. Cf. State v. Starks, 20 Kan. App. 2d 179, 180, 885 P.2d 387 (1994) (applying K.S.A. 21-4721[c][2] where the defendant and the State requested the district court to impose a séntence agreed upon in a plea agreement and the district court imposed the requested sentence.)
The sentences are vacated, and the case is remanded for re-sentencing. On remand, if the district court orders the sentences to be served consecutively, it should clearly indicate on the record that it is exercising its discretion.
Dispositional Departure
Christensen argues that the district court erred by imposing a dispositional departure in 95 CR 230 without making findings of substantial and compelling reasons for the departure. The crucial question is whether K.S.A. 21-4720(b)(6) applies so that the sentence is not a dispositional departure.
Christensen’s conviction for possession of methamphetamines in 95 CR 230 was a drug severity level 4, and the parties agreed that her criminal history was a G. The sentencing range for drug offenses provides for presumptive probation. See K.S.A. 21-4705. At sentencing, the State argued that the imposition of a prison sentence would not be considered a departure because 94 CR 465 carried a presumptive prison sentence. The district court imposed a prison sentence without stating that it was making a departure or its substantial and compelling reasons for a departure. Neither counsel nor the court cited or discussed any relevant legal authority on this point.
The district court filed a separate journal entry in each case, applying a criminal history of G to each offense and sentence.
The parties discuss two possible justifications for a prison sentence being given in 95 CR 230 which would not constitute a de parture: (1) Christensen was on bond pending trial in 94 CR 465 when she committed the later felony; and (2) the district court was sentencing Christensen in a multiple conviction case where the sentence for the primary crime was a prison term.
On Bond
The State argues that when a defendant is sentenced for a crime committed on felony probation or other felony nonprison status, the district court may sentence the defendant to prison for the new offense even if that offense otherwise presumes a nonprison sentence and that this is not considered a departure. See K.S.A. 21-4603d(a).
In State v. Arculeo, 261 Kan. 286, 293, 933 P.2d 122 (1997), the court held that the statutory provision in K.S.A. 21-4603d, which authorizes a court to sentence an offender to imprisonment for a new conviction even when the new crime of conviction otherwise presumes a nonprison sentence, does not apply to a defendant who committed a new felony while on bond pending sentence in a prior felony case. Under Arculeo, Christensen’s on bond status does not authorize the imposition of a prison sentence in a presumptive probation case without a departure.
Multiple Conviction Cases
K.S.A. 21-4720 addresses sentencing in multiple conviction cases and provides in part:
“(b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases .... In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:
“(4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice die base sentence. . . .
“(6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.” (Emphasis added.)
Christensen argues that subsection (b)(6) only applies to cases where the crimes arise in a single case with multiple counts; since the relevant crimes were charged in two separate cases and arose from separate events, this subsection does not apply.
In State v. Fields, 22 Kan. App. 2d 148, 150, 912 P.2d 774 (1996), this court noted that K.S.A. 1993 Supp. 21-4720(b) (the statute in effect at the time of the crime) limited the length of consecutive sentences that could be imposed in multiple conviction cases and held that the statute applied when sentencing a defendant for multiple counts from more than one information. The Fields court noted that K.S.A. 1993 Supp. 21-4703(c) defined “conviction event” as “ ‘one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.’ ” 22 Kan. App. 2d at 149. The Fields court also noted: “K.S.A. 1993 Supp. 21-4720(b)(4) refers to a ‘conviction event.’ Therefore, Fields’ sentencing would be included as a ‘multiple conviction case’ and would be subject to the limitations of K. S.A. 1993 Supp. 21-4720(b).” (Emphasis added.) 22 Kan. App. 2d at 149.
In 1994, the legislature removed the term “conviction event” from K.S.A. 1993 Supp. 21-4703(c) and K.S.A. 1993 Supp. 21-4720(b)(4). L. 1994, ch. 291, § 49; L. 1994, ch. 291, § 59.
In State v. Roderick, 259 Kan. 107, Syl. ¶ 3, 911 P.2d 159 (1996), the court stated that the version of 21-4720(b) that became effective on July 1, 1994, “applies to multiple convictions arising from multiple counts within an information, complaint, or indictment and not to multiple convictions entered on the same date in different cases.” (Emphasis added.) The Roderick court specifically held that the “double rule” contained in K.S.A. 21-4720(b)(4), which provides that the total prison sentence in a multiple conviction case cannot exceed twice the base sentence, only limits the sentence for multiple convictions arising from a single complaint, information, or indictment. 259 Kan. at 114. Stated conversely, Roderick held that the double rule of K.S.A. 21-4720(b)(4) does not limit the sentence imposed where the multiple crimes arise from different charging documents. The Roderick court noted that the intent behind the 1994 legislative changes was to limit “ ‘application of the “double rule” limit for consecutive sentence[s] to multiple [counts] in the same case rather than all counts for which the defendant was convicted at one time, regardless of whether from different cases.’ ” 259 Kan. at 114 (quoting Kansas Report on Legislative Interim Studies, p. 116 [1994]).
Here, Christensen’s two relevant offenses arose from-separate informations and were charged in separate cases. The question is whether the rule announced in Roderick should apply to limit the application of all provisions of K:S.A. 21-4720(b) or whether Roderick only limits the application of the double rule contained in K.S.A. 21-4720(b)(4).
The issue in Roderick was the scope of application of the double rule contained in K.S.A. 21-4720(b)(4). 259 Kan. at 114. Thus, the actual issue decided in Roderick, 259 Kan. 107, Syl. ¶ 3, is distinguishable from this case. See State v. Sims, 254 Kan. 1, 7, 862 P.2d 359 (1993) (noting that the syllabus points “shall be confined to points of law arising from the facts in the case”); Steck v. City of Wichita, 182 Kan. 206, 209, 319 P.2d 852 (1958) (“What is said in an opinion or the syllabus thereof always is to be read and interpreted in the light of the facts and questions present in the case.”).
The statutory language relied on in Roderick, 259 Kan. at 113-14, to limit the application of K.S.A. 21-4720(b) to cases arising from a single charging document only appears in subsection (b)(4). Thus, the application of this language is logically confined to subsection (b)(4). This court holds that K.S.A. 21-4720(b)(6) applies to sentencing in multiple conviction cases regardless of whether the crimes were charged in one document or in several. When a defendant is sentenced for multiple crimes and the sentence for the primary crime is a prison term, all consecutive sentences will be served in prison. The district court did not impose a departure sentence.
This court also holds that all of the provisions of K.S.A. 21-4720(b), except for subsection (b)(4), apply when sentencing a defendant for multiple crimes arising from different charging documents. The district court should apply all of these provisions on remand. For example, if the district court sentences Christensen to consecutive sentences, it must use a criminal history of I for the nonbase sentence. See K.S.A. 21-4720(b)(5).
In sum, the sentence given in 95 CR 230 was not a dispositional departure; however, the district court erred by imposing consecutive sentences without stating on the record that it was exercising its discretion.
The convictions are affirmed, the sentences are vacated, and the case is remanded for resentencing. | [
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Knudson, J.:
William W. Harlin appeals the trial court’s denial of his motion for conversion of his sentences filed pursuant to K.S.A. 21-4724(d)(l).
On July 20, 1994, the Department of Corrections (DOC) issued a sentencing guidelines report which concluded Harlin was ineligible for conversion of his sentences. On June 6,1995, Harlin filed the present motion with the district court. The district court denied Harlin’s motion because it was filed more than 30 days after the sentencing guidelines report was issued by DOC.
Harlin argues, and the State agrees, that his motion should be construed as a motion pursuant to K.S.A. 60-1507. Both parties contend that the trial court erred in dismissing for lack of jurisdiction, citing State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995). Randall is distinguishable from the case on appeal. Randall provides that a prisoner who receives a notification of findings in lieu of an actual sentencing guidelines report may appeal such a finding although K.S.A. 21-4724(d)(l) refers only to appeals from a guidelines report. The Randall court noted if it were to be held other wise, an ineligible inmate in such circumstance would be left without access to the district court. 257 Kan. at 485.
Harlin acknowledges receiving a guidelines report and his subsequent failure to file within 30 days thereafter his motion for conversion. Contrary to Randall’s dilemma, Harlin was statutorily given 30 days to file a motion for conversion with the district court under K.S.A. 21-4724(d)(l) and simply did not do so in a timely manner.
Consequently, we are confronted with a jurisdictional issue that must be addressed in spite of both litigants assuming jurisdiction exists and requesting remand to the district court for hearing. See City of Overland Park v. Barron, 234 Kan. 522, Syl. ¶ 1, 672 P.2d 1100 (1983).
The issue is whether the provisions of K.S.A. 21-4724(d)(l) are mandatory and, therefore, the district court lacks jurisdiction over Harlin’s motion. Separate panels of this court have reached opposite conclusions on this issue in unpublished opinions.
K.S.A. 21-4724 provides in material part:
“(d)(1) Within 30 days of the issuance of [the sentencing report], the person who committed the crime and the prosecution officer shall have the right to request a hearing by filing a motion with the sentencing court, regarding conversion to a sentence under the Kansas sentencing guidelines act to be held in the jurisdiction where the original criminal case was filed. . . .
“(2) In the event a hearing is requested and held, the court shall determine the applicable sentence as prescribed by the Kansas sentencing‘guidelines act.
“(3) In the event a hearing is requested, the court shall schedule and hold the hearing within 60 days after it was requested and shall rule on the issues raised by the parties within 30 days after the hearing.”
We first turn to State v. Porting, 20 Kan. App. 2d 869, 892 P.2d 915, rev. denied 257 Kan. 1095 (1995), where this court considered whether the time requirements imposed upon the district court in K.S.A. 21-4724(d)(3) were directory or mandatory. Despite the presence of the word “shall,” the court held the provision to be directory. 20 Kan. App. 2d at 871. In explanation, the court noted “the provision fixes a mode of proceeding and a time within which an official act is to be done, thereby securing order, system, and dispatch of the public business, namely conversion of sentences under the sentencing guidelines.” 20 Kan. App. 2d at 872.
Clearly, Porting is distinguishable from the case at bar. The Porting court was interpreting 21-4724(d)(3), not 21-4724(d)(l). Nevertheless, textual integrity of a statute tends to suggest a consistent definition of the verb “shall” would be appropriate. We also believe it unseemly to conclude that an inmate’s motion for access to the district court should be denied because “shall” means “shall,” but the same verb means only “should” when applied to the court.
As noted by the Supreme Court in Randall, in interpreting K.S.A. 21-4724(d), the technical distinction between a sentencing guidelines report and a notification of findings has been largely ignored insofar as affording inmates with access to the courts for consideration of sentence conversion. We are not persuaded there is any compelling reason to circumvent Harlin’s access by a construction of 21-4724(d)(l) that is facially at odds with the construction of 21-4724(d)(3).
We conclude that the district court incorrectly dismissed for lack of jurisdiction. Harlin’s motion is to be construed as one under K.S.A. 60-1507.
Reversed and remanded. | [
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Ice, J.:
The defendant, Nathaniel Mitchell, appeals his conviction of unintentional second-degree murder, contrary to K.S.A. 21-3402(b), after a jury trial on September 2, 1994.
Briefly stated, defendant, Linda Dodson, and the victim, Josey Hunter, were traveling to a destination near the University of Kansas Medical Center. Defendant was in the passenger seat, Hunter was in the back seat, and Dodson was driving. An argument arose over defendant’s purchase of stolen baby clothes from Hunter, who wanted payment from defendant immediately. Defendant refused to give Hunter the money.
Defendant testified that during the trip, Hunter snatched money out of his hands, and he reached over the back seat, grabbed the money back, and pushed Hunter back. Thereupon, Hunter began to kick defendant and grabbed the steering wheel, causing the car to crash into a pole. Defendant testified that his head hit the windshield. He then got out of the car, feeling dazed and dizzy, while Hunter continued to kick at him. Defendant further testified that he began to move away from the car but returned to help Dodson, and, as he reached into the car, he saw Hunter getting up from the back seat pointing a gun at him. Defendant testified he was afraid for his life and thought he was going to be shot, whereupon he pulled out his own gun, closed his eyes, and began shooting.
Hunter died the next day from the gunshot wound. Defendant’s gun was the only one found at the scene. It had three casings in it. However, four witnesses testified they heard at least four shots. Defendant further testified that Hunter did not have a gun when she got into the car but that Dodson carried a gun in her purse. Defendant further testified that Dodson had told him the gun had been in her purse and that it was the gun that Hunter had used. He also testified that Dodson removed the gun from the scene because having it would have been a parole violation, and she feared losing her children.
Defendant testified he shut his eyes while shooting and did not know whether he shot Hunter. He left the scene to protect himself from both Hunter and the police and was later apprehended near the scene. Other witnesses testified they saw defendant get out of the wrecked car, move away, and then turn around to retrace his steps and fire into the car.
At the instruction conference, the district court determined that instructions on first-degree murder and the lesser included offenses of intentional second-degree murder, unintentional second-degree murder, and voluntaiy manslaughter should be given. The district court denied defense counsel’s request for an instruction on involuntary manslaughter.
At the motion for a new trial, defense counsel renewed his objections to the instructions and claimed the definition of unintentional second-degree murder was unconstitutionally vague. This motion was denied by the district court.
I. Did the district court commit reversible error in failing to give a lesser included offense instruction for involuntary manslaughter?
When considering the refusal of the district court to give a specific instruction requested by a defendant, the evidence must be viewed by the appellate court in the light most favorable to the defendant. State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992).
If there is substantial evidence upon which the defendant might reasonably have been convicted of a lesser offense, an instruction on the lesser included offense is required. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995). Evidence supporting the instruction of a lesser included offense may be presented either by the defendant or by the State. State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993). Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the district court to so instruct. State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993). The failure to give a lesser included offense instruction on involuntary manslaughter when the evidence supports the request is reversible error. See State v. Warren, 5 Kan. App. 2d 754, 758, 624 P.2d 476, rev. denied 229 Kan. 671 (1981).
Involuntary manslaughter is the unintentional killing of a human being committed during the commission of a lawful act in an unlawful manner. K.S.A. 21-3404(c).
As in this case, in State v. Clark, 218 Kan. 18, 23, 542 P.2d 291 (1975), the defendant testified that he was confronted by the victim pointing a gun at him. The defendant’s reaction in both cases was to shoot back. In Clark, the Supreme Court considered whether an involuntary manslaughter instruction should have been given and answered in the affirmative, finding that a jury could find the defendant justified in pointing a gun in self-defense but that the discharge of the weapon was the result of unlawful or wanton conduct. A similar finding was made in State v. Griblin, 12 Kan. App. 2d 677, 678-79, 753 P.2d 843 (1988). Under the facts in the instant case, there was also evidence of an unexplained fourth gunshot.
A jury could have found that Hunter, not defendant, was the initial aggressor. The evidence presented in the instant case supports the giving of an instruction on involuntary manslaughter. The trial court’s failure to give this instruction constitutes reversible error.
II. Did the district court abuse its discretion in denying defendant’s motion for a new trial?
A. Is K.S.A. 21-3402(b) unconstitutional?
Defendant argues that the phrase “extreme indifference to the value of human life” in K.S.A. 21-3402(b) is unconstitutionally vague. He further contends that due to that vagueness, the statute is nearly indistinguishable from language defining involuntary manslaughter.
The constitutionality of a statute is a question of law, and appellate review is unlimited. See State v. Dorsey, 13 Kan. App. 2d 286, 287, 769 P.2d 38, rev. denied 244 Kan. 739 (1989).
K.S.A. 21-3402(b) defines second-degree “depravedheart” murder as follows: “Murder in the second degree is the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”
K.S.A. 21-3404(a) defines involuntary manslaughter as “the unintentional killing of a human being committed . . . [rjeddessly.”
K.S.A. 21-3201(c) provides: “Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.”
The test to determine whether a statute is void for vagueness is
“ ‘whether [the statute’s] language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ ” State v. Adams, 254 Kan. 436, 439, 866 P.2d 1017 (1994) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]).
The Adams court noted that another appropriate inquiry is “whether the [statute] adequately guards against arbitraiy and discriminatoiy enforcement.” ’ ” 254 Kan. at 439 (quoting City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 [1990]).
A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the appellate court must do so. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992). An appellate court has a duty to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
The issue of the constitutionality of the Kansas depraved heart murder statute has not previously been decided by a Kansas ap pellate court. However, several other jurisdictions have addressed the identical question. No jurisdiction has found a depraved heart murder statute unconstitutional. The New Hampshire Supreme Court addressed this issue in State v. Dow, 126 N.H. 205, 489 A.2d 650 (1985). The Dow court ruled that New Hampshire’s depraved heart murder statute, which uses the identical language at issue in the present case, was not unconstitutionally vague. The Dow court’s decision is well-reasoned:
“We now turn to the defendant’s claim that the phrase ‘extreme indifference to the value of human life’ is unconstitutionally vague. ‘A criminal statute is void for vagueness if it “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” State v. Chaisson, 123 N.H. 17, 26, 458 A.2d 95, 100 (1983) (quoting State v. Albers, 113 N.H. 132, 133, 303 A.2d 197, 199 (1973)). Mathematical exactness is not required in a penal statute, nor is a law invalid merely because it could have been drafted with greater precision. State v. Hewitt, 116 N.H. 711, 713, 366 A.2d 487, 488 (1976).
“The words ‘extreme indifference to the value of human life’ are easily understood. They are the equivalent of what is sometimes referred to as ‘depraved heart murder,’ which has long been part of the law. See Report of Comm, to Recommend Codification of Criminal Laws, comments to § 575:1 (murder) (1969); Model Penal Code § 210.2, comment 4, at 22 (1980).
“Both the second degree murder statute, RSA 630:l-b, 1(b), and the manslaughter statute, RSA 630:2, 1(b) (Supp. 1983) require proof that a defendant caused the death of another ‘recklessly’ as that term is defined in RSA 626:2,11(c). The second degree murder statute, however, requires proof of the additional element that the death be caused ‘under circumstances manifesting an extreme indifference to the value of human life.’ RSA 630:l-b. As we previously have stated:
“ ‘Circumstances manifesting an extreme indifference to the value of human life’ means something more than merely being aware of and consciously disregarding a substantial and unjustifiable risk, ‘if the advertence [to the risks involved] and the disregard are so blatant as to manifest extreme indifference to life, then the offense is murder . . .’ Thus where the accused’s behavior ‘constitutes a gross deviation’ from law-abiding conduct, RSA 626:2,11(c), but does not manifest ‘an extreme indifference to the value of human life,’ RSA 630:l-b 1(b), the jury may properly find only manslaughter. Where, however, the evidence supports the additional element of ‘extreme indifference,’ the jury may find murder in the second degree. The existence and extent of disregard manifested is a factual determination to be made by the jury.’
State v. Howland, 119 N.H. 413, 416, 402 A.2d 188, 191 (1979) (quoting Report of Comm, to Recommend Codification of Criminal Laws, comments to § 575:2 (manslaughter) (1969)) (citations omitted).” 126 N.H. at 206-07.
See also Waters v. State, 443 A.2d 500, 506 (Del. 1982) (“the words ‘cruel, wicked and depraved indifference to human life’ are words with a commonly accepted meaning” that is not unconstitutionally vague); State v. Flick, 425 A.2d 167, 173-74 (Me. 1981) (depraved indifference murder statute not unconstitutionally vague); Windham v. State, 602 So. 2d 798, 800-01 (Miss. 1992) (depraved heart murder and culpable negligence manslaughter were distinguishable by degree of mental state of culpability); People v. Poplis, 30 N.Y.2d 85, 89, 330 N.Y.S. 2d 365, 281 N.E.2d 167 (1972) (statute proscribing conduct evincing a depraved indifference to human life is sufficiently definite and the kind of conduct prescribed is sufficiently laid out to sustain a valid penal sanction); State v. Primeaux, 328 N.W.2d 256, 258 (S.D. 1982) (second-degree murder statute proscribing “ ‘any act imminently dangerous to others and evincing a depraved mind’ ” not subject to uneven application and interpretation and gives fair notice of conduct forbidden).
We hold the phrase “extreme indifference to the value of human life” is easily understood, and the depraved heart murder statute is not unconstitutionally void for vagueness.
Defendant also argues that the legislature intended that unintentional second-degree murder would apply to the type of killing resulting from an indifference to human life in general, while involuntary manslaughter would continue to apply to the type of killing resulting from a disregard of imminent danger to a particular person. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). The legislature has given us a clue as to its intent in creating K.S.A. 21-3402(b). The Supplemental Note on S.B. 358 explained:
“The crime of second degree murder ... is expanded to include unintentional but reckless killings under circumstances manifesting an extreme indifference to the value of human life — the so-called ‘depraved heart’ murder which would include firing an automatic weapon into a crowded restaurant or a crowd of people on a street comer. The majority of states and the Model Penal Code recognize this category of murder. Without such a category of murder, extremely reckless killings likely can only be charged as involuntary manslaughter.”
While the examples given support defendant’s argument, the final sentence of this statement apparently places the distinction on the degree of recklessness, however, as opposed to the direction of the violence. In support of his proposition, defendant cites cases from two other jurisdictions which found that the depraved heart murder statutes were intended for crimes directed not at a particular individual, but at humanity in general. See Ex Parte Washington, 448 So. 2d 404, 408 (Ala. 1984); Massie v. State, 553 P.2d 186, 191 (Okla. Crim. 1976). While Washington does support defendant’s proposition, the statutory language at issue in Massie is dis tinguishable, specifically stating, “without any premeditated design to effect the death of any particular individual.” 553 P.2d at 191.
The State, on the other hand, points to Windham v. State, 602 So. 2d 798, where the Mississippi Supreme Court addressed a similar challenge to the constitutionality of the depraved heart murder statute. That court found that depraved heart murder and culpable negligent manslaughter are distinguishable by the higher degree of recklessness required. 602 So. 2d at 801. The Windham court acknowledged but rejected the traditional view that “death which resulted from a reckless act directed toward a particular individual would not be deemed to be within the scope of depraved heart murder statutes.” 602 So. 2d at 802. The Windham court went on to note the evolution of the traditional view that, in many jurisdictions, has come to include acts which pose risks to only one individual. See, e.g., DuBose v. Lefevre, 619 F.2d 973 (2d Cir. 1980) (victim’s death resulted from beating); People v. La Mountain, 155 App. Div. 2d 717, 547 N.Y.S.2d 430 (1989) (victim’s death resulted from repeated punching and stomping).
The evolution of the traditional view to include instances where the conduct is directed towards a particular individual seems appropriate. The distinction between depraved heart murder and involuntary manslaughter occurs in the degree of recklessness, not in the direction of the violence.
The State also argues that defendant lacks standing to raise this issue because the alternative of involuntary manslaughter involving recklessness is not involved in the case. Defendant does have standing to raise the argument simply because he was charged with depraved heart murder.
Finally, the State argues that even if both statutes are held to proscribe the same conduct, the second-degree murder proscription should be viewed as the more specific. In such cases, the court has ruled the more specific statute to be controlling. See State v. Goodnow, 12 Kan. App. 2d 294, 296, 740 P.2d 113, rev. denied 242 Kan. 904 (1987). In this case, the State argues, the unconstitutional statute would be the involuntary manslaughter statute. In light of the above analysis, this point is moot.
B. Was the evidence sufficient to support defendant’s conviction?
Because this court has determined that defendant’s actions, which were directed toward a particular individual as opposed to a group, constitute grounds for conviction, this argument is moot.
III. Did the district court err in ruling evidence that Linda Dodson always carried a gun in her purse was inadmissible?
Rulings on the admissibility of evidence fall within the sound discretion of the district court. A party attacking the ruling must show abuse of discretion. The district court abuses its discretion only when no reasonable person would take the view adopted by the trial court. Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 740, 822 P.2d 617 (1991).
Defendant argues that Linda Dodson’s brother, Joe Jones, should have been allowed to testify regarding Dodson’s custom and habit of carrying a gun in her purse. Defendant argues that the testimony was admissible under K.S.A. 60-446, K.S.A. 60-447, and K.S.A. 60-448, as well as K.S.A. 60-449.
The testimony in question was proffered through Joe Jones, Linda Dodson’s brother. He proffered that he and his sister were not particularly close. During the time in question, Jones was in inpatient drug treatment and had no direct knowledge of his sister’s practices. He also was being lodged in the same pod in the Wyandotte County Jail as defendant. Jones also admitted to having been convicted of felony theft. These circumstances raise serious questions as to the credibility of the proffered testimony. It cannot be said that no reasonable person would agree with the decision of the district court.
The case is reversed and remanded for a new trial for inclusion of a lesser included offense jury instruction on involuntary manslaughter. | [
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Rulon, J.;
Gilberto Mirac Soto, defendant, was driving a vehicle in Topeka when he was stopped by police officers for several traffic offenses. As a result of defendant’s consent to allow the officers to search the vehicle, he was arrested and subsequently convicted of several drug-related crimes and unlawful use of a firearm, in addition to the traffic offenses. He appeals the denial of his motion to suppress the evidence seized, based upon a claim that he did not understand the English language well enough to knowingly consent to the search of his vehicle. We dismiss for lack of jurisdiction.
In a criminal case, final judgment occurs upon pronouncement of sentence from the bench. See State v. Bost, 21 Kan. App. 2d 560, 563-64, 903 P.2d 160 (1995). Here, the district court suspended imposition of sentence pending this appeal. The Kansas Sentencing Guidelines Act does not permit suspension of imposition of sentence in felony cases. See K.S.A. 1993 Supp. 21-4603d; K.S.A. 22-3608.
Consequently, this court lacks jurisdiction over this appeal because there is no final judgment from which to appeal.
Appeal dismissed. | [
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Pierron, J.:
This appeal.involves the valuation of property for tax purposes. The facts of this case illustrate the difficulties in creating equitable tax policies where commercial zones expand into residential areas.
Donald E. Cashatt appeals the decision of the district court in favor of the Board of County Commissioners of Douglas County (County) which found that the Board of Tax Appeals (BOTA) erroneously interpreted and applied the law in the valuation placed on Cashatt’s home for purposes of computing the ad valorem tax. Cashatt argues the district court’s ruling, which reinstated the County’s valuation of the property, is unconstitutional since the valuation is not uniform and equal with other residential properties in the area; does not comport with the statutory requirements for valuing property; and is a taking of property without just compensation. Cashatt further argues that the district court’s ruling violates the standards of review placed upon the district court in reviewing BOTA decisions.
The essential facts are uncontroverted. Cashatt and his wife have lived in a house located at 2714 Iowa Street in Lawrence for 29 years. The house, built in 1954, is a brick ranch-style, two bedroom home located on 40,627 square feet of land. The property has always been zoned “residential” by the City and classified as “residential urban” by the County. The uniqueness of the property has resulted from the transformation of Iowa Street into a commercial corridor. Cashatt’s property is now surrounded, at least on Iowa Street, by commercial properties.
The County’s valuation of Cashatt’s property drastically jumped from 1993 to 1994. In 1993, the County valued the land at $16,240 and the improvement/house at $56,260 for a total value of $72,500. In 1994, the County valued the land at $149,910 and the improvement/house at $51,220 for a total value of $201,130. Not surprisingly, after receiving notice of the increased valuation, Cashatt filed an equalization appeal with the county appraiser’s office. After failing to obtain a reduction from the County, Cashatt appealed to BOTA.
At the BOTA hearing, Cashatt presented no evidence other than his own statements. He told BOTA he could not understand how the value of his property could increase so dramatically over a 1-year period. He informed BOTA that he and his wife lived in the house and had no plans to move or use the property for commercial purposes.
The dramatic increase in the valuation of Cashatt’s property seemed to be precipitated by his listing of the property for $365,000 on a 90-day listing. Cashatt explained the only reason he had listed the property was to get a certain real estate person to stop bothering him. He also explained he had listed the property with a high enough price so no one would buy it. When Cashatt called the appraiser’s office to find out why the value of his property had gone up, he was informed that the 90-day listing and high asking price had triggered a red flag on the appraiser’s computers, which led to a reappraisal.
At the BOTA hearing, the County called Marion Johnson, the County Appraiser, to illustrate how the property was appraised. Johnson stated the County was after the “fair market value” of the property, i.e., what the property would sell for on the open market. He examined a cost approach and a market approach in valuing the property and decided the cost approach was more reflective of the fair market value of the property.
Because of the unique qualities of the property, Johnson testified the land value had to be determined manually. The value used was $3.69 per square foot. He arrived at this value by taking the $6 per square foot value placed on the commercial properties on both sides of Cashatt’s property and the $1.20 per square foot value placed on the residential properties located to the east of Cashatt’s property and arrived at a point somewhere in the middle. Appar ently, due to the uniqueness of the property, there were no good comparable sales available for comparison.
Johnson testified further that the assessed value of Cashatt’s property was not figured using the 30% commercial assessed value, but was assessed at 11.5%, which is the residential assessment value. Johnson opined that the value the County placed on the property represented its fair market value.
BOTA ruled the value of the property should be $102,000, appraising the land at $50,780 or $1.25 per square foot and the dwelling at $51,220. Essentially, BOTA valued the land at residential use value, and the dwelling value remained the same. BOTA recognized the County based its appraisal on a determination that the highest and best use of the property was for commercial development. In reversing the County’s appraisal, BOTA relied primarily on a BOTA decision, In the Matter of Kenney, Doc. No. 89-6903-EQ (March 7, 1990); and Board of Johnson County Comm’rs v. Greenhaw, 241 Kan. 119, 734 P.2d 1125 (1987). Kenney is a BOTA decision and a copy of it was not included in the record on appeal.
BOTA based its decision on four main considerations. First, it found the subject property was not currently developed for commercial use and any developer would be required to raze the subject improvements, level the land for commercial use, and rezone the property with the city. Even though obtaining the rezoning would be no problem, BOTA found a substantial investment of time and money would be required to bring the property to commercial viability.
Second, BOTA stated that sustaining the County’s present appraisal value would result in severe inequality among other similar homes.
Third, BOTA cautioned that it had grave misgivings in supporting a position which, it stated, would have the practical consequence of employing the taxation system to force homeowners from their homes. BOTA recognized the potential windfall the homeowner has in this situation, but identified the reality that higher taxes could force homeowners out of their residences.
Finally, BOTA found Cashatt’s property should be appraised at its highest and best present possible use, namely, as a residential home.
The County filed for a reconsideration of BOTA’s decision and argued that the only property which is to be appraised at its present “use value” is agricultural property. The County pointed out that there are no constitutional or statutory provisions for any other classification of property to be valued at use value and that Cashatt’s property should be appraised at its highest and best use, namely, as commercial property, and its fair market value reflected that.
BOTA responded that its original order never discussed or even mentioned that any portions of the subject property should be valued or classified as agricultural land, which indicates it may not have understood the County’s argument. BOTA maintained its decision.
The County sought review in district court, arguing it was entitled to judicial relief because BOTA’s decision required the appraiser to appraise Cashatt’s property at its use value and not its fair market value. The County once again stated the only property that is constitutionally allowed to be valued in such a manner is agricultural property. The district court ruled in favor of the County and found that BOTA had incorrectly interpreted and applied the law to the facts of the case. The court reinstated the County’s valuation of Cashatt’s property.
In its ruling, the court distinguished Greenhaw and Kenney and found the appraiser did take into account the zoning classification of Cashatt’s property because he made an effort to decrease the value of the fair market value by the amount it would take to convert the property to usable commercial property.
The court stated the Kansas Constitution allows for the kind of relief granted here by BOTA, but only for agricultural and not residential property. The court advised Cashatt that his remedy would be a constitutional amendment.
This instant appeal is from the decision of the district court reversing BOTA and reinstating the appraiser’s valuation. The fact that BOTA does not agree with the appraiser’s valuation makes the district court’s standard of review extremely important. Cashatt contends the court did not apply the proper standard of review in reviewing BOTA’s decision. He argues the court’s decision was contrary to law, went outside the record, and failed to give the administrative decision its proper weight.
The issue before us is whether the district court reviewed BO-TA’s decision in the manner required by law. Under these circumstances:
“The scope of appellate review of an agencys action is to determine if the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The party asserting invalidity of the action has the burden of proving the invalidity. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, Syl. ¶ 4 [808 P.2d 1355 (1991)].” Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 959, 811 P.2d 876 (1991).
The scope of review for the district court is set out at K.S.A. 77-621(c) as follows:
“The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(4) the agency has erroneously interpreted or applied the law.”
The district court concluded that BOTA erroneously interpreted and applied the law to the facts of this case on several issues. The propriety of this conclusion is the issue we must determine on appeal.
BOTA exists to decide matters of this nature, and therefore its decisions should be given great credence when acting within its area of expertise. See Board of Johnson County Comm’rs v. Smith, 18 Kan. App. 2d 662, 664, 857 P.2d 1386 (1993). BOTA reviews fair market value and uniformity determinations on a daily basis, and the Kansas Legislature has granted BOTA the power to “equalize the valuation and assessment of property throughout the state.” K.S.A. 79-1409. See also Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983) (BOTA is the paramount, lawfully constituted taxing authority in Kansas).
“Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. Whether an agency has erroneously interpreted or applied the law in an unconstitutional manner is a question, of law over which an appellate court’s review is unlimited.” In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, Syl. ¶ 3, 920 P.2d 947 (1996).
“Usually, 'interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deferencé. An agency’s interpretation of a challenged statute may be entitled to controlling significance in judicial proceedings. If there is a rational basis for tire agency’s interpretation, it should be upheld on judicial review.” Kansas Univ. Police Officers Ass’n v. Public Emplome Relations Bd., 16 Kan. App. 2d 438, Syl. ¶ 2, 828 P.2d 369 (1991).
“Under the doctrine of operative construction, the court will give deference to an agency’s interpretation of the law. If, however, the ruling court finds that the administrative- body’s interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body of questions of law is not conclusive, and, while persuasive, is not binding on the courts.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 9, 834 P.2d 368 (1992).
The court in Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 808-09, 667 P.2d 306 (1983), stated that “[njeither the district court nor this court can weigh conflicts in the evidence and substitute its judgment for that of the Board.” However, since this case involves the interpretation of Kansas law, the appellate review of that issue is unlimited.
The County contends BOTA’s decision was unreasonable, arbitrary, and capricious. The County cites Northern Natural Gas Co. v. Williams, 208 Kan. 407, 430, 493 P.2d 568, cert. denied 406 U.S. 967 (1972), for the court’s definition of arbitrary as an action not based on reason or judgment and capricious as change without apparent -regard to any laws. Professor David L. Ryan in Kansas Administrative Law § 23.04 (1991), explains that an agency such as BOTA acts arbitrarily or capriciously when its actions are overtly and patently in violation of the law, or are unreasonable and without foundation in fact.
The County argues the appraiser’s valuation correctly reflected fair market value and BOTA based its valuation on “use value,” which was unconstitutional, since only agricultural land can be valued based on use. The County maintains a property’s current use is only relevant when determining how it will be classified and at what rate the taxes will be assessed, not for purposes of valuation. This was the reason Cashatt’s property was assessed at a residential rate. Essentially, the County argues BOTA incorrectly applied a “use value” theory in setting the value of the Cashatt’s property. It states the district court correctly concluded BOTA was applying an incorrect rule of law; if the subject property is residential property, and has always been residential, then it must be appraised as residential, even if the sum is less than the fair market value.
On this issue, we believe the County is correct.
Agricultural property in Kansas is the only classification of property that is given a property tax value based on the use value. The Kansas Constitution provides:
“Land devoted to agricultural use may be defined by law and valued for ad valorem tax purposes upon the basis of its agricultural income or agricultural productivity, actual or potential, and when so valued such land shall be assessed at the same percent of value and taxed at the same rate as real property subject to the provisions of section 1 of this article.” Kan. Const, art. 11, § 12.
The County argues art. 11, § 12 provides authority for the valuation of agricultural land at its use value and there is no comparable constitutional provision for residential property. Therefore, Cashatt’s property is subject to the same standard as all other property — fair market value.
Article 11, § 1 of the Kansas Constitution provides that “the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation.” There is no question that, as the law of Kansas has developed, uniformity and equality must exist: “ ‘Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation.’ ” Beardmore v. Ling, 203 Kan. 802, 806, 457 P.2d 117 (1969), overruled on other grounds 214 Kan. 690, 697, 522 P.2d 942 (1974).
The Supreme Court has recognized that “a valuation contrary to the principles of the Constitution is an illegal or void valuation.” Board of Johnson County Comm’rs v. Greenhaw, 241 Kan. at 121.
In Addington v. Board of County Commissioners, 191 Kan. 528, 531-32, 382 P.2d 315 (1963), the Supreme Court stated:
“Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation. The duty to assess at full value is not supreme but yields to the duty to avoid discrimination. [Citations omitted.]
“It is apparent that uniformity is necessary in valuing property for assessment purposes so that the burden of taxation will be equal. [Citation omitted.] It makes no difference what basis of valuation is used, that is, what percentage of full value may be adopted, provided it be applied to all alike. The adoption of full value has no different effect in distributing the burden than would be gained by adopting thirty per cent, twenty-one per cent or twelve per cent as a basis, so long as either was applied uniformly. Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation than that placed on other property within the same taxing district; however, this uniformity and equality in a constitutional and statutory sense does not require mathematical exactitude in the assessment valuation of property for taxation. In the instant case if all the property in the county had been assessed at thirty per cent of its true value, plaintiff would have no cause to complain. The fraud upon plaintiff’s rights resulted from the arbitrary distinction made between his elevator property and other property in the county. Mere ex-cessiveness of an assessment or errors in judgment or mistakes in making unequal assessments will not invalidate an assessment, but the inequality or lack of uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief. [Citations omitted.]”
Cashatt argues the County has selected him for discriminatory treatment by subjecting him to taxes not imposed on other homeowners of the same class, namely residential. He claims he has suffered intentional systematic overvaluation by state officials; therefore, his equal protection rights have been violated. He cites cases explaining principles of equal protection as they relate to taxation, including Northern Natural Gas Co. v. Williams, 208 Kan. at 412, and Allegheny Pittsburgh Coal Co. v. County Comm’n, 488 U.S. 336, 345-46, 102 L. Ed. 2d 688, 109 S. Ct. 633 (1989).
In order to facilitate uniformity and equal taxation of real property, K.S.A. 1995 Supp 79-501 provides that real property is to be valued at its fair market value. The legislature has defined “fair market value” to mean the amount of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. K.S.A. 1995 Supp. 79-503a.
The legislature also set forth a nonexclusive list of factors for consideration in arriving at the fair market value. The legislature stated that sales in and of themselves, shall not be the sole criteria of fair market value but shall be used in connection with cost, income, and other factors including, but not by way of exclusion:
“(a) The proper classification of lands and improvements; (b) the size thereof; (c) the effect of location on value; (d) depreciation, including physical deterioration or functional, economic, or social obsolescence; (e) cost of reproduction of improvements; (f) productivity; (g) earning capacity as indicated by lease price, by capitalization of net income or by absorption or sell-out period; (h) rental or reasonable rental values; (i) sale value on open market with due allowance to abnormal inflationary factors influencing such values; (j) restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions; and (k) comparison with values of other property of known or recognized value.” K.S.A. 1995 Supp. 79-503a.
In Board of Johnson County Comm’rs v. Greenhaw, 241 Kan. at 126-27, the Kansas Supreme Court indicated that compliance with K.S.A. 79-503a is a vital factor in the determination of whether a tax assessment is uniform and equal:
“When determining the validity of an assessment of real property for uniformity and equality in the distribution of the burdens of taxation, the essential question is whether the standards prescribed in K.S.A. 79-503a have been considered and applied by the taxing officials. The assessment of real property which takes into consideration only some of the pertinent statutoiy factors of K.S.A. 79-503a cannot be upheld where evidence indicates there has not been a uniform and equal rate of assessment and taxation in the county.”
Cashatt argues that all of the pertinent statutory factors were not followed and, even if they were, the constitutional mandate of uniformity and equality would trump the statutory factors. He cites In re Rome, 218 Kan. 198, 203, 542 P.2d 676 (1975), where the court stated that the Kansas Constitution takes precedence over a statute should a conflict arise, and Gordon v. Hiett, 214 Kan. 690, 695, 522 P.2d 942 (1974), where the court stated that the constitutional mandate of uniformity takes preference over a legislative directive to assess at a fixed percentage of justifiable value. The County contends the appraiser correctly determined the fair market value of Cashatt’s property by carefully evaluating each statutory factor.
One of the factors to be examined in valuing property is restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions. K.S.A. 1995 Supp. 79-503a(j). There is legislative history in the record concerning the addition of subsection (j) to K.S.A. 79-503a in 1990. The testimony before the Senate Committee on Assessment and Taxation appears to have been a result of the In the Matter of Kenney, Doc. No. 89-6903-EQ (March 7, 1990), situation. The homes in the Wanamaker Corridor in Topeka as portrayed in Kenney were described by Senator Salisbury in the minutes of a hearing on February 13, 1990, as “modest and are occupied by the elderly on fixed and limited income, and some have been occupied for up to 40 years and most of the residents have no desire to relocate.” The minutes continued:
“It may be a number of years before these properties are commercial, and she would like to propose an amendment to amend the law to read residential properties should be appraised as residential property as long as that is the intended use, and the constitution only allows for agricultural property to be appraised at land use. She said, the guidelines issued by the Property Valuation Director would be more appropriate, and SB55S does not do this, and she does not believe the intent of reappraisal was to drive long term elderly individuals from their homes, and just because they do not have a buyer and are unable to pay taxes of $2,000 to $6,000 a year on a one or two bedroom home they have occupied for many years. These individual homes should be appraised at regular residential use until there is evidence the property is ready to be developed for commercial use.”
However, that was not what resulted from the legislative process. Instead, K.S.A. 1995 Supp. 79-503a(j) provides only that one of the factors in determining fair market value is “restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions.”
The Kansas Legislature did not amend the constitution or provide a statutory provision to allow taxation of a residence at residential values until it is no longer used as a residence. The legislature made a conscious decision in light of other states’ valuation statutes. In Arkansas, for example, Ark. Code Ann. § 26-26-407(a) (1987) provides that residential property used solely as the principal place of residence of the owner shall be valued as a residence until the property ceases to be used for residential purposes. See Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W. 2d 233 (1993). Kansas simply does not have a parallel statutory provision.
Cashatt argues that Greenhaw, 241 Kan. 119, 734 P.2d 1125 (1987), cited by BOTA, supports his position. In Greenhaw, the court considered vacant land in Johnson County which had been leased to a developer on a long-term lease with an option to purchase. The county contended it should be valued as development land. Greenhaw contended the property should be valued as bare agricultural land. At the time of the valuation, no actual physical development had taken place on the land. When the property was compared to 28 other tracts in the county, the taxpayer s property was valued between 11 to 16 times higher than the other tracts. The Greenhaw court determined that the land should be valued as agricultural land. The court stated:
“Uniformity in taxation implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of valuation. Uniformity in taxation does not permit a systematic, arbitrary, or intentional higher valuation than that placed on other similar property within the same taxing district. Under the facts of this case, the assessment of Greenhaw’s land was so arbitrary and grossly discriminatory that it destroyed uniformity and equality in the manner of fixing the assessed valuation and was illegal. BOTA and the district court were correct in determining that the long-term lease of Greenhaw’s land should be treated like a sale and the valuation for assessment should be the same as that for comparable undeveloped neighboring tracts.” 241 Kan. at 127.
The district court in the case at bar distinguished Greenhaw from Cashatt’s situation since Greenhaw involved an appraisal based on a long-term lease and was not dependent on development of surrounding properties. The court stated the Greenhaw facts were not present here. Similarly, the County argues Greenhaw did not turn on the use to which the land was placed, but rather on a policy in the appraiser s office which resulted in truly like properties being valued differently. We agree.
The County disagreed with BOTA’s finding that it opposed a decision that had the practical consequences of employing the taxation system to force homeowners from their homes. First, the County states there is no indication that such a scenario existed here. Second, the County cites State ex rel. Stephan v. Martin, 227 Kan. 456, 468, 608 P.2d 880 (1980), where the court stated that ad valorem taxes are to be imposed based on the value of the property, not on the owner’s ability to pay. Since BOTA’s decision is not based on fair market value, the County argues it is unreasonable, arbitrary, and capricious since it is contrary to Kansas statutory and constitutional law.
The County has a strong argument in that the appraiser apparently took into account all the relevant factors in K.S.A. 1995 Supp. 79-503a for determining fair market value of the property. Cashatt’s argument hinges on the fact that the property is still being used as a residence. The appraiser took this factor (K.S.A. 1995 Supp. 79-503a[j]) into account in valuing the property.
In the instant case, the fair market value of the residential property involved was determined through appropriate, statutorily mandated procedures by the county appraiser. Valuing residential land at its fair market value may well lead to some residential land being valued at a higher per-square-foot value than other residential land due to its suitability for commercial use. This does not constitute unequal or nonuniform taxation under our laws.
In Kansas, ad valorem taxes are to be imposed based on the value of the property, not on the owner’s ability to pay. Fair market value, not the present use of nonagricultural property, is the appropriate means for tax valuation in Kansas.
On appeal, BOTA ruled the assessment to be in error because it found: (1) particular errors in the way the county computed costs to prepare the land for commercial use; (2) using fair market value would result in severe inequality among other similar homes; (3) the possibility existed that the assessment was so high that the taxpayers might be forced to sell their homestead; and (4) the property should be appraised at its highest and best possible use, as a residential home.
BOTA’s reasons 2, 3, and 4, cited above, are contrary to Kansas law and are, therefore, clearly erroneous. BOTA’s first reason for finding error by the County is plausible on its face and should be accorded deference. With the record before us, it is impossible to separate the valid reasons from the invalid reasons cited by BOTA and arrive at an appropriate value without an independent weighing of the facts by the court.
This matter must be remanded to BOTA for further proceedings consistent with this opinion.
Cashatt finally argues the County’s valuation amounted to an unconstitutional taking of property without just compensation. Cashatt supports this argument on the theory that the United States Supreme Court has recently given a broader meaning to property rights under the Fifth Amendment, which provides that no private property shall be taken for public use without just compensation.
In this case, there is simply not a taking of any property that will be available for public use. Cashatt argues the County’s valuation of his property causes him to pay much higher taxes and is therefore a “taking.” This is incorrect because this is not a taking of property for public use under the Fifth Amendment to the United States Constitution.
The decision of the district court is affirmed in part and reversed in part, and the matter is remanded to BOTA for further proceedings consistent with this decision.
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Rulon, J.:
Respondent Electric Corporation of Kansas City and its insurer Transportation Insurance Company (hereafter collectively referred to as respondent) appeal from an order of the Workers Compensation Board (Board) awarding claimant Laiy Osbom permanent partial disability benefits. At issue is this court’s decision in Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, Syl. ¶ 2, 911 P.2d 198, rev. denied 260 Kan. 991 (1996), and the legislature’s recent amendment to the statute at issue in Boucher. An amicus curiae brief has been filed by the Kansas Trial Lawyers Association. We reverse.
The essential facts are as follows:
At the time of his injury, claimant Lary Osbom was co-owner and executive vice-president of Electric Corporation of Kansas City (ECKC), a closely held corporation. On the evening of Januaiy 13, 1992, claimant and employees of respondent corporation were performing fire-fighting functions at the Americold caves in Kansas City, Kansas. While in the course and scope of his employment, claimant sustained an electrical shock from a cord attached to a five generator. An hour later claimant began experiencing pain in his left shoulder, elbow, hand, and neck. Claimant did not seek medical treatment, but continued working. A day or two later, claimant went to see his family physician, who prescribed anti-inflammatory medication to relieve claimant’s symptoms. Claimant was referred to an orthopedic surgeon and later a neurosurgeon who recommended claimant have surgery for his arm. Claimant declined the recommendation for surgery, but has since seen several chiropractors and has continually received massage therapy for his injuries.
Claimant testified, and the Board found, that claimant has missed no work as a result of his injuries, nor has he suffered any loss of wages. The parties stipulated that if claimant were eligible for permanent partial disability benefits, he has a 12 % percent whole body impairment. Both the administrative law judge (ALJ) and the Board found claimant eligible for permanent partial disability benefits based on a prior ruling of the Board in Robert Boucher v. Peerless Products, Inc. and Home Indemnity Company, Docket No. 189,576, filed April 28,1995, a decision later appealed to and reversed by this court. Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977.
The parties disagreed on claimant’s average weekly wage. Payroll records show claimant received a bi-monthly salary of $702.69 and received $88,716.00 in bonuses and commissions during the year of his injury. Claimant additionally received a check for $16,864.56 which he earned as “consultant” for ECKC; that amount was then paid to claimant’s corporation, Osborn Industries. The Board excluded the consulting fees from the calculation of claimant’s average weekly wage, finding that the payment was made to claimant as an employee of Osborn Industries, not ECKC. The Board ordered a total award of $71,624.85. Respondent and its insurer appeal.
We must decide if under K.S.A. 44-501(c) a claimant can recover permanent partial disability benefits for a work-related injury when such claimant misses no work and continues to earn full wages doing the same work for which claimant was employed.
K.S.A. 44-501(c) provides:
“Except for liability for medical compensation, as provided for in K.S.A. 44-510 and amendments thereto, the employer shall not be hable under the workers compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which the employee is employed.”
Recently, in Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, Syl. ¶ 2, this court interpreted the meaning of K.S.A. 44-501(c). We held:
“Under the plain and unambiguous language of K.S.A. 44-501(c), where an injury does not disable the employee for a period of at least 1 week from earning full wages at the work at which the employee is employed, the employer is hable only for the medical expenses incurred by the employee, there being no loss of wages or compensation to the employee.”
This court denied Boucher’s request for a rehearing en banc, and the Kansas Supreme Court denied Boucher’s petition for review. Approximately 2 months after our decision, the Kansas Legislature amended K.S.A. 44-501(c). The amended version deletes all reference to the language interpreted in Boucher. K.S.A. 1996 Supp. 44-501(c). The legislature further enacted the following language governing the application of the amended version of K.S.A. 1996 Supp. 44-501(c): “The provisions of K.S.A. 44-501, as amended by section 1 of this act, shall apply to any claim brought under the Kansas workers compensation act for an injury which occurred prior to the effective date of this act, unless the claim has been fully adjudicated.” K.S.A. 1996 Supp. 44-501a. Both parties agree the legislature’s intent is that K.S.A. 44-501(c), as amended, be applied retroactively, and, if so applied, claimant is eligible for permanent partial disability benefits.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). ‘When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). We presume that a change in the language of a statute results from the legislative purpose to change its effect. In re Marriage of Schuhs, 20 Kan. App. 2d 98, 99, 883 P.2d 1225 (1994), rev. denied 257 Kan. 1092 (1995).
“[Tjhis presumption, may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. The presumption is fairly strong in the case of an isolated, independent amendment, but is of little force in the case of amendments adopted in a general revision or codification of the law.” Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
Finally, “[i]t is presumed that the legislature acts with full knowledge as to judicial decisions on prior law.” State ex rel. Stephan v. Finney, 254 Kan. 632, 646, 867 P.2d 1034 (1994).
Applying the above presumptions, we conclude the purpose to be accomplished by the legislature and the effect of the challenged statutory amendment was to eliminate the effect of our decision in Boucher. We are further convinced the legislature intended K.S.A. 1996 Supp. 44-501(c) to apply retroactively.
Ordinarily, a statute will be construed to operate prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. ‘Where the language used is plain, unambiguous, and appropriate to an obvious purpose, the court should follow the intent as expressed by the words used.” Boucher, 21 Kan. App. 2d at 980. The plain and unambiguous language of K.S.A. 1996 Supp. 44-501a clearly evidences the legislature’s intent that the 1996 amendments to K.S.A. 44-501 apply retroactively to all cases not fully adjudicated on its effective date. This cause is currently pending on appeal, and, as such, it has not been fully adjudicated. See Gleason v. Samaritan Home, 260 Kan. 970, 984, 926 P.2d 1349 (1996) (“[A] decision of an inferior court is not a final decision until the period for appeal has run and the case has not been appealed or the case has been appealed and finally adjudicated.”). Consequently, to the extent K.S.A. 1996 Supp. 44-501(c) can be applied retroactively, it governs the legal question of claimant’s ability to receive permanent partial disability benefits at issue in this appeal.
We turn now to the constitutional issue of whether K.S.A. 1996 Supp. 44-501(c) can be applied retroactively to injuries occurring before the effective date of the new law, or whether the application of that section would unconstitutionally interfere with respondent’s substantive due process rights.
Respondent argues that retroactive application of K.S.A. 1996 Supp. 44-501(c) denies it the benefit of a substantive, or vested, right of defense against claimant’s request for permanent partial disability benefits. The language of K.S.A. 44-501(c) clearly provided that the employer would not be liable under the Workers Compensation Act unless the employee’s disability rendered claimant unable to work for 1 week at full wages at the work at which the employee was employed. Under the facts of this case, respondent would not be liable for any claim for permanent partial disability under K.S.A. 44-501(c). Under the amended version of 44-510(c), respondent would be liable to claimant for these benefits. The issue is whether the retroactive application of K.S.A. 1996 Supp. 44-501(c) alters the substantive rights of respondent by creating liability where before there was none.
" Nested rights’ is a term that is used to describe rights that cannot be taken away by retroactive legislation. [Citation omitted.] Retroactive legislation affecting vested rights would constitute the taking of property without due process. [Citation omitted.]” Gardner v. Gardner, 22 Kan. App 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996). Kansas recognizes a distinction between procedural and substantive changes in the law when determining whether such laws can be applied retroactively. Resolution Trust Corp v. Fleischer, 257 Kan. 360, 368, 892 P.2d 497 (1995).
“ ‘There is no vested right in any particular remedy or method of procedure.’ Jones v. Garrett, 192 Kan. 109, Syl. ¶ 6, 386 P.2d 194 (1963). ‘A different rule applies, however, to substantive laws. They affect vested rights and are not subject to retroactive legislation.’ Harding [v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992)]; Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994). Procedure has been described as the ‘machinery for carrying on the suit, including pleading, process, evidence, and practice,’ and ‘the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action.’ Jones, 192 Kan. 109, Syl. ¶¶ 2, 4. Substance, on the other hand, has been described as ‘the law which gives or defines the right,’ the ‘law which gives the right or denounces the wrong,’ and ‘the law creating any liability against the defendant for his tort committed.’ Jones, 192 Kan. at 114-15.” 257 Kan. at 366.
Our Supreme Court has said:
“There is no distinction between a vested right of action and a vested right of defense. Accordingly, the general rule is that a vested right to an existing defense is protected in like manner as a right of action, with the exception only of those defenses which are based on informalities not affecting substantial rights.” Jackson v. American Best Freight System, Inc., 238 Kan. 322, 325, 709 P.2d 983 (1985).
In workers compensation cases, the law in effect at the time of the injury governs the rights and obligations of the parties. Lyon v. Wilson, 201 Kan. 768, 774, 443 P.2d 314 (1968); Johnson v. Warren, 192 Kan. 310, Syl. ¶ 2, 387 P.2d 213 (1963).
“The liability of an employer to an injured employee is a liability arising out of a contract between them, and the terms of the statute are embodied in the contract [Citation omitted]; the injured employee must therefore recover upon the contract with his employer, and the cause of action accrues on the date of the injury. [Citations omitted.] Where parties are under the compensation act their substantive rights are determined by the law in effect on the date of the [employee’s] injury. [Citation omitted.]
“ . . . The general rule, however, is that a statute . . . has no retrospective effect unless its language clearly indicates that the legislature so intended, and that retrospective application is not to be given where vested rights will be impaired. [Citations omitted.]” Johnson, 192 Kan. at 313-14.
See Annot., 82 A.L.R. 1244.
When an employee is injured, the right of the employee to receive compensation becomes vested and the obligation to pay is fixed. McAlester Hosp. v. Darryl Bond Const., 796 P.2d 1181, 1183 (Okla. App. 1990). Any attempted change of such vested rights and fixed obligations by statute would clearly be to impair the obligation of contracts. See State, ex rel., v. Public Service Comm., 135 Kan. 491, 501-02, 11 P.2d 999 (1932) (citing with approval Richards v. City Lumber Co., 101 Miss. 678, 691-92, 57 So. 977 [1912], and Grand Rapids v. Lake Shore, Etc., R. Co., 130 Mich. 238, 242 [1902], holding retroactive legislation invalid where it destroys a valid defense or imposes liability where none previously existed; Gauthiers Case, 120 Me. 73, 76-77, 113 A. 28 (1921).
Here, it is clear the retroactive application of K.S.A. 1996 Supp. 44-501(c) would render respondent liable for permanent partial disability benefits. K.S.A. 44-501(c) defined the rights of both parties and clearly established that an employer would have no liability under the Act unless certain conditions were met. The rights created by the former statute are substantive in nature and cannot be destroyed by retroactive legislation imposing liability where it did not previously exist. To hold otherwise would unconstitutionally impair respondent’s due process right to have the substantive law in effect at the time of injury applied to the case.
We limit our holding to the specific issue addressed in this case. The legislature has every right to alter the workers compensation statutes, but K.S.A. 1996 Supp. 44-501(c) maybe given prospective application only.
Respondent also challenges the Board’s calculation of claimant’s average weekly wage. In light of the above conclusion, this issue need not be addressed because claimant is ineligible for permanent partial disability benefits.
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Brazil, J.;
The parties submit this case to this court on an agreed statement of facts. The pertinent facts of the agreed statement follow:
Plaintiff Esther Jane Thoren entered Lawrence Memorial Hospital for knee replacement surgery. Thoren suffered an ischemic stroke either during or after surgery. Her theory is that the stroke was caused by fluctuations in her blood pressure that occurred both during surgery and again the morning after. She later sued the hospital and the anesthesiologist group, Anesthesia, P.A. (Anesthesia), who employed the anesthesiologist. She designated Steven Laven as a liability expert. Anesthesia noticed Laven for deposition, which was taken later.
Although not mentioned in the agreed statement, the record indicates that shortly before the trial, Anesthesia requested to re-depose Laven to confront him with information it had obtained that was contradictory to information Laven had given during his deposition. The trial court ruled that although Anesthesia could not redepose Laven, it would be allowed to confront him on cross-examination with the evidence. The evidence consisted of deposition testimony that Laven had given previously in five other cases.
Prior to the trial, Thoren’s counsel decided against calling Laven to testify and notified defense counsel that it would read portions of Laven’s deposition instead. Anesthesia filed a motion to preclude such reading and, in the alternative, requested a ruling that would allow Anesthesia to read from depositions in the five other cases.
The court heard arguments on the matter and ruled: (1) It was proper for Thoren to use Laven’s deposition testimony in lieu of his live testimony, and (2) Anesthesia could read Laven’s deposition testimony from the other cases; however, it could read from those transcripts only in its rebuttal case, not during plaintiff’s case and while plaintiff was reading from Laven’s deposition.
The jury returned a verdict in favor of all die defendants. Thoren now appeals the court’s ruling allowing Anesthesia to use Laven’s deposition testimony from the five other cases. Anesthesia filed a cross-appeal but stipulated to its dismissal in its brief.
The sole issue Thoren raises on appeal is that the trial court erred in allowing Anesthesia to introduce evidence of deposition testimony that Laven gave in five earlier, unrelated cases. Anesthesia used the deposition testimony to impeach Laven with his prior inconsistent statements.
This issue involves the interpretation of several statutes from the Kansas Code of Civil Procedure. As such, this court’s review is unlimited. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Anesthesia argues that, pursuant to K.S.A. 60-422(b), the trial court did not err in allowing the evidence of Laven’s prior deposition testimony. K.S.A. 60-422(b) provides:
"As affecting the credibility of a witness . . . (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement.”
K.S.A. 60-422(b) is not applicable here because Laven did not testify and, therefore, could not identify, explain, or deny the inconsistent statements. Anesthesia argues that Laven had the opportunity to explain his inconsistent statements while being deposed; however, the record does not support that assertion.
At the hearing on whether Anesthesia could introduce Laven’s prior deposition testimony, the court stated:
“Not having the deponent here I do need to remind the record as I’m sure we all remember that last week, early last week counsel were over here on a question of going back and deposing certain people to accomplish the same thing you’re trying to accomplish now. At that time I ruled that I didn’t think that was necessary because you could cross-examine the man, you had the information with which to cross-examine him, and we had a general discussion of how that might be accomplished, and it seemed, to me that you had sufficient remedies at hand to raise the issue of whether he had been truthful or not, absent counsel for the plaintiff wanting to have his man redeposed so he could explain what appear to be some inconsistencies that diligent counsel for the defendant have now raised or discovered.” (Emphasis added.)
Although defense counsel had wanted to redepose Laven regarding his inconsistent statements, the record shows that defense counsel did not cross-examine Laven regarding his contradictory statements. The court initially ruled that it was unnecessary to re-depose Laven because counsel could cross-examine him during the trial. After learning that Thoren no longer intended to call Laven to testify, the court ruled that defense counsel could simply read the contradictory statements to the jury.
During his deposition testimony, Laven was not afforded the opportunity to identify, explain, or deny the inconsistent statements; therefore, K.S.A. 60-422(b) does not allow the use of Laveris prior depositions.
Relying on K.S.A. 60-232, Thoren argues that the trial court erred in allowing the use of the prior depositions. K.S.A. 60-232 provides:
“(a) Use of deposition. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.”
Thoren asserts that K.S.A. 60-232 requires that she be present or represented at any deposition being used as evidence in the trial and that she was neither present nor represented at any of the five prior depositions that Anesthesia read to the jury.
In Eferakeya v. Twin City State Bank, 13 Kan. App. 2d 197, 202, 766 P.2d 837 (1988), aff’d as modified 245 Kan. 154, 777 P.2d 759 (1989), this court stated that the conditions of subsection (a) must be met before “a deposition may be used at trial against any party.” See also 8A Wright, Miller & Marcus, Federal Practice & Procedure: Civil 2d § 2142, p. 159 (1994) (stating that under Fed. R. Civ. Proc. 32 “the conditions set forth in Rule 32[a] must exist before the deposition can be used at all”).
Subsection (a)(1) of K.S.A. 60-232, however, provides: “Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.” The interplay between (a) and (a)(1) is unclear. Does the term “any deposition” mean literally any deposition; or, does it mean any deposition that meets the conditions set forth in (a)? In other words, may a party use any deposition to impeach a witness, or may a party use only depositions to impeach a witness where the party against whom it is being used was present or represented at its taking? Thoren argues the latter interpretation.
Subsection (a) of K.S.A. 60-232 provides that the conditions set forth therein apply “in accordance with” subsection (a)(1). Thus, a reasonable interpretation could be that any deposition maybe used to impeach a witness, notwithstanding the conditions of (a).
In Summers v. Montgomery Elevator Co., 243 Kan. 393, Syl. ¶ 3, 757 P.2d 1255 (1988), the court states: “Pursuant to K.S.A. 1987 Supp. 60-232(a)(l), deposition statements are admissible as evidence in a subsequent unrelated trial to attack the credibility of a witness by showing prior inconsistent statements.” This statement of law appears to directly control the present case; however, “[a] syllabus of the points of law decided by the Supreme Court in any case . . . shall be confined to points of law arising from the facts in the case.” State v. Sims, 254 Kan. 1, 7, 862 P.2d 359 (1993). Under the facts of Summers, the application of subsection (a) to subsection (a)(1) of K.S.A. 60-232 is unclear.
In Summers, the plaintiff testified that he could no longer hunt in the winter because the cold air caused pain in his injured finger. The defense questioned him about deposition testimony that he had given in a prior personal injury case, wherein he was also the plaintiff, which contradicted his current testimony.
Citing to K.S.A. 60-232(a)(l), the Supreme Court held that the evidence was “clearly admissible as a prior inconsistent statement.” 243 Kan. at 398. The court did not discuss the conditions set forth in (a); thus, it is impossible to tell whether the court considered those conditions relevant in an impeachment situation. However, the party against whom the prior deposition was used — the plaintiff — was a party in the prior action and, therefore, was both present and represented at the taking of the prior deposition. Accordingly, the conditions of (a) were met.
Summers also cites to State v. Worth, 217 Kan. 393, 537 P.2d 191 (1975), cert. denied 423 U.S. 1057 (1976), to support its holding. Worth deals with an appeal from a second criminal trial, the first trial having ended in a hung jury. A witness testified at both trials. The defendant wished to impeach the witness’ testimony with testimony that he had given in the first trial. That court stated: “It is, of course, well settled that the admission of prior inconsistent statements of a witness made on a former trial is proper to impeach the credibility of the witness.” 217 Kan. at 395. Worth cites to no authority for this statement.
Federal Rule 32(a)(1) specifically addresses this question by providing that any deposition may be used to impeach a witness “or for any other purpose permitted by the Federal Rules of Evidence.” Fed. R. Civ. Proc. 32(a)(1). The Federal Rules of Evidence specifically allow impeachment of a witness with prior deposition testimony. Fed. R. Evid. 801(d)(1)(A).
K.S.A. 60-232(a)(l) does not have the same provision regarding application of Kansas rules of evidence, and Kansas does not have a rule analogous to Fed. R. Evid. 801(d)(1)(A). Kansas rules of evidence, however, do allow a witness to be impeached with his or her prior inconsistent statements. K.S.A. 60-422(b); K.S.A. 60-462.
Because of these two rules of evidence, Thoren’s interpretation cannot be correct. “ ‘The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991).
K.S.A. 60-232, 60-422(b), and 60-462 are all part of the Kansas Code of Civil Procedure. Thus, these three statutes must be read in pari materia.
K.S.A. 60-422(b) provides that “extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness” may be used to impeach a witness in certain situations. Under Thoren’s interpretation of K.S.A. 60-232, a party could use any extrinsic evidence of a witness’ prior inconsistent statements, except prior deposition testimony, unless the party against whom it is being used was present or represented at the deposition, or had notice thereof.
K.S.A. 60-462 provides: “Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to K.S.A. 60-460, is admissible for the purpose of discrediting the declarant.” Again, under Thoren’s interpretation of K.S.A. 60-232, this provision could not include prior inconsistent deposition testimony, unless the conditions of K.S.A. 60-232(a) are met.
Accepting Thoren’s interpretation of K.S.A. 60-232(a) would require reading an exception into both K.S.A. 60-422(b) and 60-462 that is not there. K.S.A. 60-232(a)(l) must mean exactly what it says: if used within the parameters of K.S.A. 60-422(b) and 60-462, any deposition may be used to impeach a witness.
As previously stated, K.S.A. 60-422(b) does not allow the use of Laven’s prior deposition testimony as evidence of prior inconsistent statements because Laven was not afforded the opportunity to explain or deny the statements. K.S.A. 60-462, however, does allow the use of those depositions for the purpose with which Anesthesia used them.
K.S.A. 60-460 governs the exclusion of hearsay evidence and exceptions to that rule. Subsection (c) of that statute provides: “Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered” is an exception to the hearsay exclusion.
Although the trial court did not specifically find that Thoren’s use of Laven’s deposition, given for use in the trial of this action, was an exception to the hearsay rule, under both K.S.A. 60-232(a) and K.S.A. 60-460(c)(l), it was. See Eferakeya v. Twin City State Bank, 245 Kan. P.2d 154, 161, 777 P.2d 759 (1989) (“[K.S.A. 60-232(a)] creates its own exception to the hearsay rule.”).
Here, Laven’s current deposition was an exception to the hearsay rule as provided in K.S.A. 60-460(c)(l). As such, under K.S.A. 60-462, the evidence of any prior statement that Laven made that was inconsistent with the current deposition testimony was admissible, even though Laven had no opportunity to deny or explain the inconsistencies.
“The admission of deposition testimony is within the trial court’s discretion.” Eferakeya, 245 Kan. at 160. Under both 60-232(a)(l) and 60-462, the trial court had discretion to allow Anesthesia to use the prior depositions to impeach Laven. The court reasoned that it was doing so in the interest of fairness to all of the parties. Reasonable persons could agree with this view; therefore, the court did not abuse its discretion. See Labette Community College v. Board of Crawford County Comm’rs, 258 Kan. 622, 625, 907 P.2d 127 (1995).
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Brazil, J.:
Gary Sage and ALJU Construction Company (Sage) filed suit against Sue Williams, et al., as employees of Greenwood County (County) after the County refused to accept Sage’s application for vehicle registration because Sage was delinquent in paying personal property taxes. Sage appeals the order of the district court granting summary judgment to the County. We affirm.
In May 1993, Sage filed suit against several officials of Greenwood County as well as the Board of County Commissioners for Greenwood County. The petition claimed the action arose under 42 U.S.C. § 1983 (1994) and K.S.A. 60-907 and asked for injunctive relief to prevent the County from assessing or collecting an illegal tax. It also claimed a conspiracy pursuant to 42 U.S.C. § 1985 (1994).
1. Exhaustion of Remedies
According to Sage’s petition to the district court, Sue Williams, the county treasurer, filed several tax warrants between July 1986 and November 1990 against Sage for delinquent personal property taxes. In September 1990 and April 1991, Mrs. Wanda Sage went to the county treasurer’s office and offered to pay all delinquent taxes. On each occasion, the county treasurer’s office informed Mrs. Sage that she owed a certain amount, and on each occasion Mrs. Sage paid the stated amount. Beginning in August 1992, the county treasurer’s office refused to allow Sage to register his motor vehicles because he had not completely paid his personal property taxes. Sage claimed he was never notified prior to that date that any other taxes were due or delinquent.
In his petition, Sage claimed that because the county treasurer’s office faded to both inform Mrs. Sage of the full and correct amount of taxes owed and subsequently notify Sage of the tax delinquency, the County should be estopped from claiming delinquent taxes, interest, or penalties for the years 1985-88.
The district court found that Sage failed to exhaust his administrative remedies as required by K.S.A. 1996 Supp. 79-2005. The doctrine of exhaustion of administrative remedies applies to tax matters. In State ex rel. Smith v. Miller, 239 Kan. 187, 718 P.2d 1298 (1986), the court held:
“The well-recognized rale in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts.” Syl. ¶ 1.
“A party aggrieved by an administrative ruling is not free to pick and choose a procedure in an action in the district court in order to avoid the necessity of pursuing his remedy through administrative channels.” Syl. ¶ 2.
In Dean v. State, 250 Kan. 417, 421, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992), the court stated:
“In the realm of taxes, matters of assessment, exemption, equalization, and valuation are administrative in character. See Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591 (1902). Under Kansas law, it would be unwarranted for a court to entertain a tax suit on any of these matters of administrative expertise where administrative remedies had not been pursued."
See also J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 555-561, 857 P.2d 666 (1993) (discussing exhaustion doctrine).
Sage contends the doctrine should not apply to this case because his estoppel claim is judicial rather than administrative in nature. In Zarda v. State, 250 Kan. 364, 368-69, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992), the court held:
‘Where there are no issues raised which lend themselves to administrative determination and the only issues present either require judicial determination or are subject to judicial de novo review, it follows that plaintiffs should be permitted to seek court relief without first presenting the case to the administrative agency.”
The question is whether Sage’s estoppel claim lends itself to administrative determination by the Board of Tax Appeals (BOTA) or instead requires judicial determination. The doctrine of estoppel is equitable in nature. Newton v. Hornblower, Inc., 224 Kan. 506, 515, 582 P.2d 1136 (1978). Sage’s claim, which is based on the conduct of the county treasurer’s office, may properly be characterized as a claim for equitable estoppel. See Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993). The Tucker court defined equitable estoppel:
“Equitable estoppel is the effect of the voluntary conduct of a party that precludes that party, both at law and in equity, from asserting rights against another who relies on such conduct. A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.” 253 Kan. at 382-83.
Equity is a system of jurisprudence developed in conjunction with the common law. 30A C.J.S., Equity §§ 2-4. Generally, “[i]n the absence of statutory language granting equity powers, a tribunal is not vested with equitable jurisdiction.” 30A C.J.S., Equity § 6. The Kansas Constitution provides that “[t]he judicial power of this state shall be vested exclusively in one court of justice.” Kan. Const, art. 3, § 1. Although administrative agencies such as BOTA may perform quasi-judicial functions reasonably necessary to the proper performance of their administrative duties when authorized by the legislature, see Behrmann v. Public Employees Relations Board, 225 Kan. 435, 443, 591 P.2d 173 (1979), agencies have no general or common-law powers. Woods v. Midwest Conveyor Co., 231 Kan. 763, 770, 648 P.2d 234 (1982).
BOTA is an independent agency within the executive branch of the state government, see K.S.A. 74-2433a, and as a state agency, BOTA’s powers are limited to those expressly granted to it by the legislature. See Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983); Woods v. Midwest Conveyor Co., 231 Kan. at 770.
"Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes. There is no general or common law power that can be exercised by an administrative agency.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. at 378.
The legislature expressly authorized BOTA to hear appeals from the Director of Taxation and the Director of Property Valuation on their rulings and interpretations and on their assessment of property values. K.S.A. 74-2437(a), (b). The legislature intended to channel all tax matters through BOTA, the paramount taxing authority in the state. Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. 960, 964, 666 P.2d 698 (1983).
Because BOTA is an administrative agency and not a court, it does not have the power to hear and decide equitable claims. BO-TA’s authority is limited to tax matters, and while Sage’s equitable estoppel claim tangentially involves taxes, taxation is not at the heart of the claim. Sage’s claim requires judicial determination and, therefore, Sage should be permitted to seek relief in the district court without first presenting his case to BOTA. See Zarda v. State, 250 Kan. at 368-69. Because no administrative remedy was available, exhaustion was not required. See Colorado Interstate Gas Co. v. Beshears, 18 Kan. App. 2d 814, 821, 860 P.2d 56 (1993), rev. denied 256 Kan. 994 (1994). We conclude that the district court had jurisdiction to consider Sage’s estoppel claim.
Examination of Sage’s claim, however, reveals that his equitable estoppel argument is devoid of legal merit. Although equitable estoppel may be applied against a county, see Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 383, 834 P.2d 1344 (1991); Lines v. City of Topeka, 223 Kan. 772, 780, 577 P.2d 42 (1978) (applying equitable estoppel against a city), the doctrine does not apply against a county in respect to taxation matters. See Harvey County Comm’rs v. School District, 139 Kan. 457, 459, 32 P.2d 812 (1934).
“It is elementary law, as well as settled by numerous decisions of this court, that the doctrines of equitable estoppel and laches do not operate against the state nor the state’s governmental agencies (of which the county is the most important) in respect to matters of public finance and taxation.” 139 Kan. at 459.
Because Sage’s estoppel claim is invalid as a matter of law, it is not necessary to remand the case for the district court’s consideration.
2. KS.A. 8-173
K.S.A. 8-173 provides, in relevant part:
“(a) An application for registration of a vehicle . . . shall not be accepted unless the person making the application shall exhibit:
(1) A receipt showing that such person has paid all personal property taxes levied against such person for the preceding year, including taxes upon such vehicle . . .
“(b) An application for registration of a vehicle . . . shall not be accepted if the records of the county treasurer show that the applicant is delinquent and owes personal property taxes levied against the applicant for any preceding year.”
In rejecting the challenge to the constitutionality of K.S.A. 8-173, the district court cited State v. Raulston, 9 Kan. App. 2d 714, 717, 687 P.2d 37 (1984), where this court held K.S.A. 8-173 does not violate the Equal Protection Clause of the Constitution.
On appeal, Sage contends K.S.A. 8-173 was unconstitutionally applied to him. According to Sage, the County refused to register Sage’s motor vehicles even though Sage had paid his personal property taxes.
Sage’s claim is premised on the assertion that he paid his personal property taxes. However, whether Sage in fact paid the taxes is disputed. While the district court did not specifically rule on the question, it did note that Sage did not produce any records indicating the taxes had been paid. In any event, Sage has not proven he paid the taxes and, therefore, he cannot successfully claim an unconstitutional application of the statute.
At the district court level, Sage argued that the right to drive constituted a protected liberty interest. The district court rejected this contention. This court has previously held the right to drive is a privilege. See Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App. 2d 147, 784 P.2d 387 (1989). Sage admits the right to drive is a privilege but argues that this privilege could become a protected liberty interest. Sage does not explain his contention or provide any authority to support it. His claim lacks merit.
3. KS.A. 1996 Supp. 79-2101
Sage contends K.S.A. 1996 Supp. 79-2101 violates the Due Process Clause by failing to provide adequate notice of delinquent taxes. The statute requires notice by mail to the delinquent taxpayer. - •
Due process requires notice “-reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their- objections.’ ” Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 631, 802 P.2d 1231 (1990) (quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 [1950]). It is generally recognized that'a letter provides notice sufficient to satisfy due process. See Weaver v. Frazee, 219 Kan. 42, 47, 49, 547 P.2d 1005 (1976). Sage does not'offer any substantive argument concerning the inadequacy of notice by mail. The district court correctly rejected his contention. -
Sage also argues K.S.A. 1996 Supp. 79-2101 violates- the Equal Protection Clause by treating taxpayers with oil and gas- leases differently than other taxpayers. The statute provides that if-taxes remain unpaid for a period of 30 days following notice by mail, the county treasurer shall issue a tax warrant. In the case of a tax on an oil or gas lease, the sheriff shall collect the taxes as follows:
“The sheriff shall cause notice to be given by registered mail to the purchaser of the oil and gas from such lease of the amount of such delinquent taxes and the name of the person against whom they were assessed and from and after the receipt of such notice such purchaser shall not pay to the person owing the taxes any of the proceeds of the sale of any oil or gas from such lease, but shall pay the proceeds to the sheriff until the full amount of such taxes or costs are paid. . . .” K.S.A. 1996 Supp. 79-2101.
According to Sage, delinquent taxpayers with oil and gas leases receive notice by registered mail. Sage misinterprets the statute. The statute mandates notice by registered mail to individuals purchasing oil or gas from a delinquent taxpayer. Under the statute, a delinquent taxpayer who owns an oil or gas lease receives the same normal mail notice as any other taxpayer. Sage’s equal protection claim is unfounded.
4. K.S.A. 12-10Sb
K.S.A. 12-105b governs claims against municipalities and mandates that any person with a claim which could give rise to an action brought under the Kansas Tort Claims Act must file a written notice before commencing such tort action. The statute provides the municipality with 120 days to approve or deny the claim. If the claim is denied, the individual may then initiate a tort action against the municipality. K.S.A. 12-105b(d).
The district court held that Sage’s failure to allege compliance with K.S.A. 12-105b rendered his petition defective. See K.S.A. 60-209(c) (requiring a party to plead the performance of conditions precedent); James v. City of Wichita, 202 Kan. 222, 447 P.2d 817 (1968).
Sage correctly argues that because his claims were not brought under the Kansas Tort Claims Act, K.S.A. 12-105b is inapplicable. Sage filed his action pursuant to 42 U.S.C. § 1983, and “a plaintiff is not required to comply with K.S.A. 12-105b prior to bringing a § 1983 action.” Reidenbach v. U.S.D. #437, 878 F. Supp. 178, 181 (D. Kan. 1995).
The lone exception is Sage’s claim that the County acted intentionally and caused severe emotional distress. This claim sounds in tort, and Sage’s failure to exhaust his administrative remedy pursuant to K.S.A. 12-105b(d) bars this claim.
5. Immunity
The district court held that K.S.A. 1996 Supp. 75-6104, the immunity provision of the Kansas Tort Claims Act, shielded the County and its employees from liability. That statute provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
(f) the assessment or collection of taxes or special assessments.”
Sage correctly argues that K.S.A. 1996 Supp. 75-6104 does not apply to the instant case because he did not bring his action under the Kansas Tort Claims Act. Federal civil rights claims brought pursuant to 42 U.S.C. § 1983 are not subject to the state law limitations of the Kansas Tort Claims Act, and thus the immunity granted by K.S.A. 1996 Supp. 75-6104(f) is not available to the County and its employees. See Cory v. Thompson, 795 F. Supp. 368, 370 (D. Kan. 1992).
The district court also ruled that the federal law doctrine of qualified immunity applied. Sage does not challenge this holding on appeal. Regardless, the district court correctly held qualified immunity shielded the County and its employees from Sage’s federal claims. To escape the defense of qualified immunity, Sage had to allege that the County and its employees violated clearly established law. See Hinton v. City of Elwood, Kan., 997 F.2d 774, 779 (10th Cir. 1993). Sage challenged the constitutionality of the statutes but did not allege the County or its employees violated them. As a result, qualified immunity protected the County and its employees from liability.
In a related argument, Sage admits he brought suit against the County and its employees in their official capacities, but contends he should be allowed to amend his petition to sue the defendants in their individual capacities. Sage did not raise this argument at the district court level, and he cannot raise it for the first time on appeal. See State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994).
6. Costs and Attorney Fees
The district court concluded that Sage’s claims lacked a substantial legal basis and awarded attorney fees and costs pursuant to K.S.A. 60-2007. The assessment of costs and fees lies within the sound discretion of the district court and will not be disturbed absent an abuse of that discretion. See Horsch v. Terminix Int’l Co., 19 Kan. App. 2d 134, 143, 865 P.2d 1044, (1993), rev. denied 254 Kan. 1007 (1994).
“Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion.” State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
Sage has not shown that no reasonable person would agree with the district court. Accordingly, we uphold the district court’s award of costs and attorney fees.
Lastly, Sage claims he did not have an opportunity to be heard on the attorney fee issue. The record does not support Sage’s assertion. The County requested attorney fees in its motion for summary judgment, and Sage argued against the request in his memorandum in opposition.
When the district court granted the County’s motion for summary judgment and assessed costs and attorney fees against Sage, it did not specify an amount. The district court took only one day to rule on tire County’s subsequent request for a specific amount in costs and fees. Although Sage did not have an opportunity to contest the precise amount of the award, he does not offer any argument against the propriety of the awarded amount, $4,853.17.
Error that does not prejudice the substantial rights of a party is harmless. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986). Here, Sage does not even allege prejudice. Absent some showing of prejudice, the trial court error, if any, was harmless. See Catholic Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 476-79, 886 P.2d 835 (1994) (finding no reversible error where appellant correctly argued that trial court had improperly taken judicial notice of another district court case, but appellant failed to show how it was prejudiced by the error); accord Morgan v. Abay, 252 Kan. 853, 857-59, 850 P.2d 840 (1993); State v. Trujillo, 225 Kan. 320, 325, 590 P.2d 1027 (1979).
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Elliott, J.:
Western Resources, Inc., (WRI) and Kansas Pipeline Partnership (KPP) entered into natural gas sales and transportation contracts; both sought approval of the contracts by the Kansas Corporation Commission (KCC). KCC consolidated the dockets and on a prior appeal, we held the “contracts and related requests contained in KPP’s consolidated KCC dockets must be deemed approved by operation of law.” Kansas Pipeline Partner ship v. Kansas Corporation Comm’n, 22 Kan. App. 2d 410, 423, 916 P.2d 76 (1996). On remand, the KCC dismissed the applicable applications, claiming the dockets were consolidated only for a purpose of a common record. WRI appeals, claiming the KCC refused to follow our earlier mandate.
We reverse and remand. The factual background of this case is adequately detailed in our previous published opinion; we will mention facts only as necessary in deciding this second appeal.
At some point, WRI moved to consolidate its docket 192,391-U with KPP’s applications in 192,506-U and 192,507-U, claiming all of the proceedings relate to the same contracts between WRI and KPP. The motion makes no mention of joinder/consolidation for hearing only.
On April 27, 1995, KCC described the three dockets, entered an order stating all relate to the same contracts, and granted the motion to consolidate. On May 31,1995, KCC directed the parties to address in prefiled testimony the appropriateness of the recovery of Linchpin costs as identified in docket 190,362-U. On June 16, 1995, KCC (in docket 190,362-U) stated that project development costs would be subject to review in the three consolidated cases which were “set for a full evidentiary hearing.” The order further ordered that Linchpin costs be placed into the rate base subject to review in the consolidated dockets. KCC further stated:
“Applicants state that additional Linchpin Project Development Costs incurred by Western Resources totaling approximately $6 million should be transferred to the Applicants’ books and included in the Applicants’ rate base. The Commission takes no action on this issue and defers this issue for consideration at the above-referenced hearing scheduled for July 10, 1995 where all issues pertaining to certain contracts between Western Resources and the Applicants will be explored.”
None of the KCC orders mention consolidation for purposes of a common record only.
We filed our opinion in the prior appeal on May 17, 1996. Motions for rehearing and petitions for review were filed by several parties. While those were pending, KCC, sua sponte, dismissed the original applications of WRI and KPP. On August 2, 1996, KCC set aside its order dismissing the KPP dockets, but reaffirmed its dismissal of the WRI docket, asserting for the first time that the three dockets had been consolidated “only for hearing on a common record.”
KCC granted WRI’s request to consolidate the three dockets, and that order did not indicate the consolidation was for limited purposes. In Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1092 (D.C. Cir. 1979), the court held that administrative agencies must ensure litigants their day in court. This includes proper notice as a prerequisite to valid agency action. Dirt, Inc. v. Mobile County Com’n, 739 F.2d 1562, 1566 (11th Cir. 1984). If KCC intended to limit consolidation of the dockets, it should have made the parties aware of that fact.
In the present case, KCC never indicated it was consolidating the three dockets for hearing only until after the KCC proceedings were completed, until after KPP’s petition for judicial review was filed, and until after we issued our opinion in the prior appeal. No one cites to any place in the record — and we have found none independently — where KCC articulated its current position prior to its motion for rehearing and modification en banc filed after our prior opinion.
If KCC has the power to join dockets only for hearing on a common record, the logical time for doing so is when the consolidation order is entered. Bluntly put, changing the nature of consolidation after an appellate decision is too late.
In its motion for rehearing and modification of the prior appeal, KCC asked us to clarify that our decision did not cover WRI’s request to pass through costs. We denied KCC’s motion, rejecting the opportunity to modify application of our decision to the WRI docket.
KCC’s application of K.A.R. 82-1-224 in the present case is erroneous and unreasonable. Accordingly, KCC’s orders of June 28, August 2, and September 9, 1996, are invalid as erroneous and unreasonable applications of the law. See K.S.A. 77-621(c)(4). Our decision in the prior appeal applied to the “contracts and related requests contained in KPP’s consolidated KCC dockets.” 22 Kan. App. 2d at 423. The KCC orders presently under review are invalid. See K.S.A. 77-621(c)(8).
In- the ■ present appeal, Citizens’ Utilities Ratepayer Board (CURB) joins KCC in arguing that K.S.A. 1995 Supp. 66-117 does not apply to WRI’s application. CURB made a similar argument in the prior appeal, and we rejected it. 22 Kan. App. 2d at 416.
In the prior appeal, KCC never contended that 66-117(b) did not apply to KPP’s contracts, although other parties did. We find it difficult- to imagine how the statute could apply to one party’s contracts but not apply to the other party to the same contracts.
KCC'and CURB also argue that because 66-117(b) does not apply to WRI’s applications, we never had jurisdiction over WRI in the prior appeal. Suffice it to say that in the prior appeal, we noted drat while KPP did not initially seek a rate increase, WRI did. The WRI and KPP proceedings before the KCC were consolidated because they involved the same contracts. Further, the joinder of the Linchpin costs rendered the proceeding an action closely related to a rate case. In deciding the prior case was closely enough connected to an underlying rate case to require appeal directly to us, we considered the presence of the Linchpin project and WRI’s request to pass through the associated costs to WRI customers. Further, the parties agreed the case was closely enough connected to an underlying rate case to give us jurisdiction in the prior appeal.
Application of the 240-day time limit to the WRI/KPP contracts was the precise issue decided in the prior appeal. The present case is not an attempt to relitigate that issue; rather, WRI is simply attempting to enforce that decision. KCC’s dismissal of WRI’s application after our opinion in the prior appeal was little more than an attempt to avoid our ruling in that case. In the prior appeal, we relied on WRI’s rate request in assuming jurisdiction and ultimately held that the “contracts and related requests contained in KPP’s consolidated KCC dockets must be deemed approved by operation of law.” 22 Kan. App. 2d at 423. We see no reason to reconsider our decision that we had jurisdiction of the consolidated dockets — including WRI’s application.
KCC’s dismissal of WRI’s application was unreasonable in light of our decision in the prior appeal; KCC violated the provisions of K.S.A. 77-621(c)(4) and (8).
We reverse the KCC order dismissing WRI’s application and remand with directions to comply with this opinion and with our holdings in the prior appeal. | [
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Marquardt, J.:
Robert G. Lile appeals the district court’s summary dismissal of his habeas petition, claiming that prison authorities violated his constitutional rights by not granting him “minimum custody by exception.”
Lile was convicted of aggravated kidnapping, rape, and aggravated sodomy. During his first year of incarceration in 1983, Lile was also convicted of attempted aggravated escape from custody.
Due to the nature of his convictions, the Department of Corrections (DOC) placed Lile in the maximum security classification. In 1989, the DOC changed Lile’s security classification to “medium by exception” because of his good behavior. In 1994, Lile requested a “minimum by exception” security classification, which the DOC denied.
Lile filed a petition for writ of habeas corpus under K.S.A. 60-1501, which the district court denied. Lile appeals.
To avoid dismissal, a K.S.A. 60-1501 petition must include allegations of either shocking and intolerable conduct or continuing mistreatment. Swisher v. Hamilton, 12 Kan. App. 2d 183, 184, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). Here, the merit of Lile’s constitutional claim is dependent upon whether he possessed a constitutionally cognizable liberty interest in being granted minimum security status. See Graham v. Nelson, 20 Kan. App. 2d 896, 897, 893 P.2d 294 (1995).
The 14th Amendment to the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The limited range of liberty interest that the 14th Amendment affords to prison inmates may arise from two sources: (1) the Due Process Clause and (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 468-69, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).
Lile contends that Kansas law creates a liberty interest in a prison inmate’s placement in the least restrictive security classification appropriate for that inmate. Lile cites K.S.A. 1995 Supp. 75-5210(b), which allows inmates to apply to the Secretary of Corrections for a change in security status; however, it does not guarantee such changes will be made.
In Sandin v. Conner, 515 U.S. 472, 484,132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), the Court explained that despite any mandatory language in state law, state action does not infringe upon a constitutionally cognizable liberty interest unless the action places an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
In Davis v. Finney, 21 Kan. App. 2d 547, 559, 902 P.2d 498 (1995), this court adopted the “atypical hardship” test of Conner and upheld the dismissal of a habeas petition which alleged that prison authorities placed the inmate in disciplinaiy segregation without due process. This court reasoned that the record was devoid of any showing that the petitioner was subjected to any hardship beyond the normal incidents of a prison sentence. 21 Kan. App. 2d at 559.
In Paoli v. Lally, 636 F. Supp. 1252, 1265 (D. Md. 1986), aff’d 812 F.2d 1489, cert. denied 484 U.S. 864 (1987), the court held that a Maryland prison regulation did not create a liberty interest in an inmate’s transfer to minimum security status. The court reasoned that “[t]he regulation merely requires consideration of certain criteria; it does not mandate transfer of inmates meeting those criteria.” 636 F. Supp. at 1265.
The Kansas statutes and prison regulations at issue provide nothing more than a framework for rewarding inmates for good behavior with transfers from a higher to a lesser security status. The statutes and regulations provide the DOC with unfettered discretion in making such decisions and do not require that an inmate be granted a lesser security status upon any specific finding as to the inmate’s behavior. Kansas law does not create a constitutionally cognizable liberty interest in a prison inmate’s movement from a higher to a lesser security status.
The establishment and implementation of three security classifications for all prison inmates, on its face, does not appear to impose an atypical hardship upon the inmates, but rather appears to be an administrative function necessary to the day-to-day management of the volatile environment of a prison. The courts should refrain from reviewing prison authorities’ decisions regarding such matters. See, e.g., Sandin, 515 U.S. at 482.
In sum, Kansas law does not create a liberty interest regarding a prison inmate’s security classification. Because Lile has no liberty interest in receiving minimum security status, this court will not review the DOC’s decision to maintain his medium security status. See Graham, 20 Kan. App. 2d at 897.
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Smith, J.:
Appellants, Barbara V. Sowers and James W. Sowers appeal from the district court’s dismissal of their petition for visitation with an unmarried minor, A.E. We affirm.
The essential facts are not in dispute. A.E. is the adopted child of the appellees, Peter arid Toula Tsamolias. Prior to adoption, A.E. was the subject of a child in need of care action. Upon stipulation by the birth mother, Tina E., and the child’s putative fathers, A.E. was adjudicated a child “in need of care.” Subsequently, the parental rights of Tina E. and the putative fathers were terminated pursuant to K.S.A. 38-1581 et seq.
During the course of the child in need of care proceedings, the Tsamoliases were A.E.’s foster parents. The Sowers are the parents of Tina E. Pursuant to an order of the district court, the Sowers were granted visitation with A.E. while in foster care.
In August 1995, the court, after a hearing, entered a dispositional order authorizing SRS to initiate adoption proceedings for A.E. Barbara Sowers had attended every previous hearing and was present at the dispositional hearing. At the dispositional hearing, Barbara stated that she did not want to give up her rights as a grandparent as the result of any adoption. She asked the court whether she would lose her status as a grandparent if the adoption was completed. The court told Barbara that her right to visitation would depend upon the decision of any adoptive parents.
The Sowers did not seek adoption of A.E., nor did they object to the adoption of A.E. by the Tsamoliases. The adoption was final on January 25, 1996.
In February 1996, the Sowers filed a motion in the district court requesting grandparent visitation rights to A.E. The Sowers suggested that they had a positive relationship with A.E. prior to and during the child in need of care proceeding. They also maintained the relationship between A.E. and his sister, B.E., who was in their custody. The Sowers argued that continuing their relationship with A.E. was in his best interests and should be permitted under K.S.A. 38-129. The motion for visitation also alleged that the Sowers relied on assurances by the Tsamoliases that they would be allowed to continue their relationship with A.E. and should be allowed visitation rights under a theory of equitable estoppel.
The Tsamoliases filed an answer to the Sowers’ petition and moved to dismiss the proceeding for failure to state a claim on which relief could be granted. The Tsamoliases further argued the Sowers lacked standing to seek visitation because the Sowers were no longer A.E.’s grandparents.
A hearing was held on a motion to dismiss the petition on March 11, 1996. The court granted the motion to dismiss the petition for visitation, ruling that it had no jurisdiction to grant the Sowers’ request. The Sowers appeal this order of dismissal.
The Sowers essentially raise two primary issues on appeal: (1) The trial court erred by dismissing their petition to establish visitation without a consideration of its merits; and (2) the Tsamoliases should be equitably estopped from denying visitation.
Whether the court erred by dismissing the Sowers’ petition for visitation is controlled by the legislative intent of K.S.A. 38-129 and K.S.A. 59-2118. Although the well-pleaded facts of the Sowers’ petition are assumed to be true, Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992), interpretation of the intent of the visitation and adoption statutes is a question of law and our review is plenary. In re Estate of Hinder-liter, 20 Kan. App. 2d 29, 30, 882 P.2d 1001, rev. denied 256 Kan. 995 (1994).
The applicable rules of statutory construction have been frequently stated: “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the leg islature governs if that intent can be ascertained.” In re J.A.C., 22 Kan. App. 2d 96, Syl. ¶ 4, 911 P.2d 825 (1996).
“In determining legislative intent, courts are not limited to a mere consideration of the language used, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 4, 885 P.2d 1246 (1994).
“A statute must be interpreted in the context in which it was enacted and in light of the legislature’s intent at that time.” State Bd. of Nursing v. Ruebke, 259 Kan. 599, Syl. ¶ 12, 913 P.2d 142 (1996).
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. When the provisions of two or more acts affect the same issue and subject matter, the same rule applies.” United Steelworkers of America v. Kansas Comm’n on Civil Rights, 253 Kan. 327, Syl. ¶ 1, 855 P.2d 905 (1993).
“When a statute is plain and unambiguous, tihe court must give effect to the intent of the legislature as expressed rather than determine what the law should or should not be.” Tompkins v. Bise, 259 Kan. 39, Syl. ¶ 1, 910 P.2d 185 (1996).
Visitation rights between grandparents and grandchildren and between adopted persons and others is purely a province of statute. Grandparents have no natural or common-law rights to grandchildren. Brooming v. Tarwater, 215 Kan. 501, 504, 524 P.2d 1135 (1974); In re Johnson, 210 Kan. 828, 831-32, 504 P.2d 217 (1972); In re Bullen, 28 Kan. *781, *783 (1882). The understanding that adoption is a concept foreign to the common law is ancient. In re Estate of Robbins, 241 Kan. 620, 623, 738 P.2d 458 (1987); Gray v. Holmes, 57 Kan. 217, 221, 45 Pac. 596 (1896). Therefore, the law of adoption is dependent on state statutory law. 241 Kan. at 623; Riemann v. Riemann, 124 Kan. 539, 541, 262 Pac. 16 (1927).
K.S.A. 59-2118 specifies the effect adoption has upon the rights of the birth and adoptive parents. It provides:
“(a) Any person adopted as provided in K.S A. 59-2111 through 59-2143, and amendments thereto, shall assume the surname of the petitioner or petitioners for adoption, except that the court in its discretion may permit a different surname when requested by the petitioner or petitioners. When requested by the petitioner or petitioners, the court, in its discretion, may change the given name or names of the person adopted.
“(b) When adopted, a person shall be entitled to the same personal and property rights as a birth child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a birth parent and be subject to all the liabilities of that relationship. Upon adoption, all the rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent. An adoption shall not terminate the right of the child to inherit from or through the birth parent.” (Emphasis supplied.)
The prior statute, K.S.A. 59-2103 (Ensley 1983) (effective July 1, 1939) contained operative language identical to the pertinent portion of K.S.A. 59-2118(b). Pursuant to this statutory language, the effects of adoption include the creation of a new legal status of parent and child upon the adoptive parents and adopted children. State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). The child no longer remains the child of its natural parents, but becomes the child of another, and its relation to its natural parent ceases. Sheppard v. Sheppard, 230 Kan. 146, 151, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982); Jones v. Jones, 215 Kan. 102, Syl. ¶ 5, 523 P.2d 743 (1974).
This statutory language has consistently been interpreted by our courts as changing the legal status of the child such that the birth or natural parents, after adoption, are strangers or third parties. Wilcox v. Fisher, 163 Kan. 74, 78, 180 P.2d 283 (1947); Browning v. Tarwater, 215 Kan. at 505; Jones v. Jones, 215 Kan. at 112. Not only does the child have new parents, but also the effect is that the child has new grandparents as well. Browning v. Tarwater, 215 Kan. at 506; In re Johnson, 210 Kan. at 834. Where this new status is conferred, the court is without authority to grant the birth parents visitation. Browning v. Tarwater, 215 Kan. at 505-06 (citing 2 Am. Jur. 2d, Adoption § 85). Whether natural or birth grandparents can continue contact is a matter left solely to the discretion of the adoptive parents. In re Johnson, 210 Kan. at 834.
Adoption carries with it a complete breaking or severance of the child’s ties and relationship with his or her natural parents. State ex rel. Secretary of SRS v. Clear, 248 Kan. at 116; In re Herbst, 217 Kan. 164, 168, 535 P.2d 437 (1975); Browning v. Tarwater, 215 Kan. at 505. Grandparents are considered among the ties from the past of which the new legal relationship is intended to be free. 1 Elrod, Kansas Family Law Handbook § 13.031, p. 13-13 (1990).
The only statutory provision for visitation by natural and birth grandparents outside the context of a divorce proceeding is found in K.S.A. 38-129. The question before the court is whether K.S.A. 38-129 was intended to provide natural or birth grandparents visitation rights to children after a termination of parental rights and subsequent adoption. Answering this question requires a review of the statute’s historical background, the circumstances attending its most recent amendment, and its purpose.
As originally enacted in 1971, K.S.A. 38-129 (Weeks) providéd:
“If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be the best interests of the minor child.”
The Supreme Court was called upon to interpret this statute in the context of an adoption in Browning v. Tarwater, 215 Kan. 501. In that case, Mrs. Tarwater had been granted visitation with the children of her deceased son. The children’s mother subsequently remarried, and her new spouse had been granted a stepparent adoption of the children. The new parents sought a termination of the visitation. After analyzing K.S.A. 59-2103 (Ensley 1983) and K.S.A. 38-129 (Weeks), the Supreme Court determined that the legislature did not design 38-129 to overturn the previously established adoption laws and ruled that the legislature did not intend 38-129 to have application after a minor child was adopted by a stepparent. 215 Kan. at 507.
Responding to the Browning decision, the legislature amended 38-129 in 1982. L. 1982, ch. 182, § 149. The amendment made it abundantly clear that parents of deceased persons could enjoy visitation with the children of their deceased offspring even after a stepparent adoption:
“(a) If a parent of an unmarried minor child is deceased, the district court may grant the parents of the deceased person reasonable visitation rights to the minor child during the child’s minority upon a finding that the visitation rights would be in the best interests of the minor child.
“(b) Unless the court finds that the visitation rights are not in the child’s best interest, the court may grant visitation rights, or enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”
Absent the death of the child’s parent, the statute conferred no rights of visitation.
The statute was again amended in 1984 to its present version.
“(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.
“(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”
The amendment, finalized in S.B. 615, was combined with S.B. 681. In describing the final version recommended by the House, the House Judiciary Committee minutes indicate that the effect “was clarified that the amendment would extend grandparents’ visitation rights which, under present law pertains only to divorced or deceased parent situations, to intact families.” (Emphasis added.) Committee Minutes, House Committee on the Judiciary, S.B. 615, March 27, 1984.
Testimony in support of the amendment included an analysis of the legislation. Committee Minutes, House Committee on the Judiciary, March 27, 1984. The analysis emphasized that grandparents could only seek visitation when the grandparents’ adult child was divorced or deceased. The legislative analysis went on to describe six situations the amendment would affect. All of those situations dealt with intact families or unwed, disabled, or confined parents. None of the situations contemplated visitation rights to a birth or natural grandchild after adoption.
None of the recorded debate in the Senate makes any mention of extending visitation rights to adopted children. See Committee Minutes, Senate Committee on the Judiciary, S.B. 681, March 2, 1984.
The plain language used in the new section of the statute extends visitation rights to grandparents. After adoption, the natural or birth grandparents no longer enjoy the status of grandparents. The legislature has recognized this change in status in K.S.A. 38-129(b). In this subsection, the persons granted rights of visitation are referred to as “parents of deceased persons.”
The Sowers rely on language found in In re Adoption of J.M.U., 16 Kan. App. 2d 164, 819 P.2d 1244, rev. denied 250 Kan. 805 (1991). Dicta in that case tends to indicate that the legislative intent of the 1984 amendment to 38-129 was to grant all grandparents a right to seek visitation and that “[d]eath, divorce, or adoption are not mentioned as prerequisites.” 16 Kan. App. 2d at 167.
In In re Adoption of J.M.U., the child had been adopted by a maternal aunt after the child’s father had tragically killed the child’s mother, then himself. J.M.U.’s paternal birth grandmother sought visitation after the child was adopted. The trial court found no statutory authority and dismissed the request. This court reversed the trial court, holding that the paternal birth grandmother was entitled to visitation subject to the “best interests” and “substantial relationship” tests because she was a parent of a deceased person pursuant to K.S.A. 38-129(b).
In this case, the Sowers are not parents of deceased persons but parents of a person whose parental rights have been terminated pursuant to K.S.A. 38-1581 et seq. Termination of parental rights is a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of a natural parent by another guardian or adoptive parent. State ex rel. Secretary of SRS v. Clear, 248 Kan. at 115; Roelfs v. Wallingford, Inc., 207 Kan. 804, 811, 486 P.2d 1371 (1971); Wilson v. Kansas Gas & Electric Co., 12 Kan. App. 2d 336, 340, 744 P.2d 139 (1987).
After adoption, A.E. ceased to be the grandchild of the Sowers. As such, they are third parties possessing no standing to seek visitation pursuant to K.S.A. 38-129.
The courts have recognized that the change in status effected by adoption and its consequences seem harsh, in view of the existing love of a grandparent. In re Johnson, 210 Kan. at 834. But as Justice Six wrote for the Supreme Court in In re Hood, 252 Kan. 689, 694, 847 P.2d 1300 (1993): “The legislature is the forum to entertain sociological and policy considerations bearing on the well-being of children in our state. Any expansion of visitation rights to unrelated third parties ought to originate with the legislature.” Granting the Sowers the legal status of grandparents would abrogate the express intent of K.S.A. 59-2113 and amount to a judicial extension of K.S.A. 38-129 beyond the intent of the legislature.
The second issue raised by the Sowers is that the Tsamoliases should be equitably estopped from denying visitation. In substance, they allege that the Tsamoliases repeatedly assured the Sowers they would be able to visit and maintain a relationship with A.E. and only altered this position after adoption was final. The Sowers argue that the doctrine of equitable estoppel should then prevent the Tsamoliases from contesting their request for visitation.
Equitable estoppel arises in connection with “voluntary conduct of the party that precludes that party, both at law and at equity, from asserting rights against another who relies on such conduct.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993). But, as previously discussed, the effects of adoption and the rights of grandparents to visitation are purely statutory. Visitation is an incident of custody. To suggest that actions of the parties alone could confer some custodial or visitation right would be tantamount to an acceptance of an equitable custodian theory. The doctrines of equitable adoption, equitable parenthood, and adoption by estoppel are not recognized in Kansas. Refusal to recognize these equitable theories in domestic relations is based on a reluctance to interfere with legislative decisions. In re Estate of Robbins, 241 Kan. at 623-24. Recognizing a theory of visitation by equitable estoppel would eviscerate the legislatively pronounced social policy considerations of “best interests of the child” and “substantial relationship” set out in K.S.A. 38-129.
The trial court committed no error by dismissing the petition.
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Wahl, J.:
Plaintiffs Beverly California Corporation, et al., appeal the district court’s decision that their representative failed to secure plaintiffs’ standing to challenge claims for unemployment compensation.
This action involves seven claims for unemployment compensation. Beverly California Corporation and Hy Fee Food Stores, Inc., each employed two of the claimants. Albertson’s, Inc., Exide Corp., and Denny’s Restaurants, Inc., each employed one of the other three employees. We shall refer to these employers collectively as the Employers.
The facts are not disputed. An examiner for the Kansas Department of Human Resources mailed the Employers notices of the claims. Each notice included a form for the Employers to fill out and return to the examiner if the Employers sought to challenge the claim against the Employers’ unemployment compensation fund. Near the bottom of the form was printed: “If additional space is needed, attach a letter. You must also attach any documentation you wish to have considered. You must sign this document on the line designated below.” The form concluded with a signature line preceded by the following certification:
“I do hereby certify that the information submitted is correct and complete. I acknowledge that willful misrepresentation or failure to disclose a material fact is punishable by imprisonment for up to 60 days and/or a fine of up to $200 for each day of failure or refusal to disclose correct and complete facts.”
A claims analyst working for the Employers’ representative, Gibbons Company, wrote nothing on each of the forms and returned them to the examiner along with brief letters stating that the Employers were protesting the charges against their accounts. The Employers concede that none of the forms were completed or signed.
The examiner found that the Employers had failed to furnish the required information to challenge the claims.
The Employers appealed to an agency referee, who determined that the Employers had waived standing to challenge the claims against their respective accounts by failing to complete the forms properly. The referee noted that by failing to complete and return the required information within 10 days from the date of the examiner’s notice, an employer waives standing to challenge a claim. The referee determined that, by not signing the forms, the Employers had failed to fulfill the requirements of K.A.R. 50-3-l(h) and had waived standing. The referee also determined that the incompetence of the representative hired by the Employers to process such claims did not excuse the Employers’ failure to secure standing.
The Employers appealed to the Kansas Employment Security Board of Review (Board). The Board adopted and affirmed the referee’s ruling. The Board explained that die representative’s signature on the letter did not satisfy K.A.R. 50-3-1 and was insufficient to acknowledge the consequences of providing false or incomplete information.
The Employers appealed to the district court. The district court agreed that the Employers had failed to comply with K.A.R. 50-3-1(h) and that the representative’s incompetence did not constitute excusable neglect on the part of the Employers. The district court dismissed the Employers’ appeal after holding that the Employers had failed to secure standing to challenge the claims against dieir unemployment compensation accounts.
We affirm.
The Employers argue that, despite their failure to complete and sign the notice forms, the Employers provided the examiner with all required information and secured standing to challenge the claims by mailing to the examiner letters, signed by their representative. This issue is governed by statute. Construction of a statute is a question of law, and this court’s review of a question of law is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Courts, however, defer to an administrative agency’s construction of a statute, which the agency has a duty to implement, if the agency’s construction is supported by a rational basis. National Council on Compensation Ins. v. Todd, 258 Kan. 535, Syl. ¶ 3, 905 P.2d 114 (1995). Moreover, the statutes governing this issue are supplemented by regulations promulgated by the Secretary of Human Resources. K.S.A. 1996 Supp. 44-709(a). Courts give great weight to an agency’s interpretation of its own regulations. Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988).
When an examiner initially processes a claim for unemployment compensation, the examiner notifies the employer, who must respond to the notice within 10 days in order to preserve standing to protest the claim. K.S.A. 1996 Supp. 44-709(b). K.S.A. 1996 Supp. 44-710(c)(3) provides in pertinent part:
“The examiner shall notify any base period employer whose account will be charged with benefits paid following the filing of a valid new claim. . . . Such notice shall become final and benefits charged to the base period employer’s account in accordance with the claim unless within 10 calendar days from the date the notice was mailed, the base period employer requests in writing that the examiner reconsider the determination andfumishes any required information in accordance with the [human resources] secretary’s rules and regulations. (Emphasis added.)
K.A.R. 50-3-l(h) provides in pertinent part:
“ The examiner shall furnish a notice of separation and request for reconsideration form with each employer notice. The employer shall request reconsideration upon that original form.
“The employer shall provide a complete explanation of the circumstances; the date of separation, if any; the signature and title of the person completing the form for the employer, the employer’s firm name and address, the date the form is completed; and any other information required by the form.” (Emphasis added.)
Here, the Employers received the forms instructing them to complete the forms and return them to the examiner within 10 days. Each form also stated: “You must sign this document on the line designated below.” Between that instruction and the signature line, the form explained that a misrepresentation or a failure to disclose material information was punishable by up to 60 days’ imprisonment and/or a fine of up of $200 for each day’s failure. The Employers returned the forms to the examiner without completing or signing them, but with letters signed by a representative protesting die claims. The Board properly determined that the Employers had failed to comply with the requirement of K.A.R. 50-3-1 (h) by not requesting reconsideration upon the original form. The Board stated that this omission was substantive rather than merely formal because by signing their appended letters rather than the forms, the Employers had failed to acknowledge the consequences of their providing false or incomplete information to the examiner.
The language of K.A.R. 50-3-l(h) expressly states that an employer must request reconsideration of a claim on the original form. Thus, the Board accurately determined that the Employers had not complied with this regulation when they failed to fill out the forms and instead attached signed letters to challenge the claims. The Board’s reasoning has a rational basis. The signature of the Employers’ representative on the appended letters rather than on the forms was more than a mere technical distinction because, unlike the forms, the letters lacked an acknowledgement of the consequences of providing false or incomplete information to the examiner.
The Employers also argue that their noncompliance with the statutory and regulatory requirements amounted to excusable neglect. The Employers note that in another case involving one of the Employers, an agency referee determined that an incomplete response on the notice form was the result of excusable neglect on the part of the employer because the employer’s representative handling the response was unfamiliar with the form. “[T]he doctrine of stare decisis is inapplicable to decisions of administrative tribunals.” In re Appeal of K-Mart Corp., 238 Kan. 393, 396, 710 P.2d 1304 (1985). The referee’s decision in another case is not binding precedent for the Board and is not binding on this court.
Furthermore, the decision by the referee in the other case was not appealed to the Board, and the Board did not issue an opinion in that case. Here, by contrast, the Board adopted the referee’s view that the incompetence of the representative hired by the Employers to process such claims did not excuse the Employers’ failure to secure standing to challenge the claims.
K.S.A. 1996 Supp. 44-709(b)(l) provides that an employer waives standing to challenge a claim by failing to respond to the notice form within 10 days “except that the [employer’s] response time limit may be waived or extended by the examiner or upon appeal, if timely response was impossible due to excusable neglect.” This applies to the impossibility of a “timely response.” Timeliness does not enter into the problem with the Employers’ response here. Their problem was that they did not send any response. The Board ruled that the reason the forms were not completed in these cases — the representative’s incompetence — did not amount to excusable neglect on the part of the Employers.
The Board’s view is entirely rational. If the incompetence of one hired to perform a specific task were considered excusable neglect, the excusable neglect exception would swallow the rule requiring that the task be performed in the first instance.
The district court properly found that the Employers had failed to secure standing to challenge the claims against their unemployment compensation accounts and properly dismissed the Employers’ appeal.
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White, J.:
In this K.S.A. 60-1507 proceeding, Tommy G. Thompson challenges his conviction for selling cocaine by claiming double jeopardy. Thompson claims that a forfeiture of his vehicle used in the commission of the offense and his conviction of the offense constituted multiple punishments. The district court denied Thompson’s petition. We affirm the district court’s decision.
Thompson pled guilty to two counts of sale of cocaine and was sentenced on each count to 4 to 15 years’ imprisonment, to be served concurrently. On February 8, 1993, sometime before the plea and conviction in the criminal offense, the City of Lenexa decreed forfeiture of Thompson’s vehicle pursuant to K.S.A. 65-4171. The forfeiture was based on its use during the above criminal activity. Thompson did not contest the forfeiture action.
Thompson filed a K.S.A. 60-1507 action, claiming that forfeiture of his vehicle was punishment, and, therefore, the subsequent criminal conviction constituted double jeopardy. The district court held a hearing on the motion on September 6, 1995. The court found that Thompson pled guilty to two counts of sale of cocaine. The sales occurred on October 27 and November 4,1992. The civil forfeiture action dealt with criminal activity that occurred on October 27 and November 20, 1992. Therefore, the City of Lenexa did not base forfeiture on the offense committed on November 4. As to forfeiture for the crime committed on October 27, the court ruled that because Thompson did not contest the forfeiture claim, he had, in essence, abandoned the property. The court further ruled that since Thompson voluntarily gave up the vehicle, he cannot now claim multiple punishments for the same offense.
Thompson contends that the civil forfeiture of his vehicle amounted to a penalty. Therefore, he argues, this subsequent conviction for sale of cocaine was unconstitutional under the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. He claims he could not have knowingly and voluntarily waived double jeopardy guarantees when pleading guilty to the criminal charges or when not contesting the forfeiture action. The State argues Thompson cannot raise a valid double jeopardy claim where he did not contest the forfeiture action and that he waived any double jeopardy claim by entering a guilty plea.
Thompson raises questions of law where this court’s review is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights protect against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
Thompson claims he was subject to “multiple punishments” for the same offense. See State v. Cady, 254 Kan. 393, 396, 867 P.2d 270 (1994) (citing Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 [1977]). For the following reasons, we disagree: Thompson waived a double jeopardy claim by entering a guilty plea to the criminal offenses; Thompson has no valid double jeopardy claim when he did not contest the civil forfeiture action; and, finally, forfeiture of a vehicle used in criminal activity is not “punishment” as the term is used in the Double Jeopardy Clause.
First, Thompson cannot collaterally attack his sentence after entering a plea of guilty. The general rule is that a guilty plea waives a double jeopardy claim. United States v. Broce, 488 U.S. 563, 574-75, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989); In re Habeas Corpus Application of Coulter, 18 Kan. App. 2d 795, 797, 860 P.2d 51 (1993).
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.” Broce, 488 U.S. at 569.
There are two exceptions to this rule, neither of which are applicable to the facts of this case. See Broce, 488 U.S. at 575-76.
Thompson’s only argument is that he could not knowingly and voluntarily waive his right to claim double jeopardy when he was unaware of the possibilities of this defense. That Thompson wants to jump on the bandwagon of double jeopardy claims at this late date does not change the general rule here. There is no requirement of a conscious waiver regarding each possible defense relinquished by a guilty plea. Absent a claim of ineffectiveness of counsel, Thompson’s argument that he did not knowingly and voluntarily waive his double jeopardy rights fails. See Broce, 488 U.S. 573-74.
Second, the State argues that Thompson has no valid double jeopardy claim where he did not contest the forfeiture action. The State cites U.S. v. Cretacci, 62 F.3d 307 (9th Cir. 1995), and U.S. v. Torres, 28 F.3d 1463, 1466 (7th Cir.), cert. denied 513 U.S. 1059, 130 L. Ed. 2d 603 (1994). Both circuits ruled that when a defendant fails to contest the civil forfeiture action, defendant was not party to that suit, and, therefore, there can be no double jeopardy for a subsequent criminal proceeding. More recently, the Tenth Circuit has held that failure to contest the civil forfeiture is fatal to a double jeopardy claim in subsequent criminal proceedings. U.S. v. Denogean, 79 F.3d 1010 (10th Cir. 1996); U.S. v. German, 76 F.3d 315 (10th Cir. 1996).
In German, the defendant was arrested for transporting marijuana in a truck he was driving. A Drug Enforcement Administration agent confiscated the truck. Later, the truck was forfeited and sold at auction. The district court denied defendant’s motion to dismiss the criminal indictment on double jeopardy grounds. The court cited with favor the decision in Torres and U, S. v. ArreolaRamos, 60 F.3d 188 (5th Cir. 1995), and held: “German was never placed in jeopardy or 'punished’ in any constitutional sense because he was never a party to any proceeding designed to adjudicate his personal culpability. His subsequent criminal prosecution is not barred by double jeopardy.” 76 F.3d at 320.
In Denogean, the defendant pled guilty to the criminal charges. Although the defendant did not expressly waive the Fifth Amendment guarantee against double jeopardy, the Tenth Circuit court held that defendant waived the double jeopardy argument by failing to raise it below. The court stated that an exception might be made in the presence of plain error that effected substantial rights. The defendant did not contest the civil forfeiture action. In view of the rule in German, there was no plain error. Since there was no plain error, the court refused to consider defendant’s double jeopardy claim following a guilty plea. 79 F.3d at 1013.
Thompson failed to contest the civil forfeiture action instituted against his vehicle. Since he was not a party to this action, he was not “punished” or placed in jeopardy in the forfeiture action.
Last, Thompson argues that the only real issue before this court is whether the forfeiture was punitive in nature that would constitute punishment for the offense. The United States Supreme Court recently eliminated any doubts in this area by ruling that civil forfeitures do not constitute “punishment” for purposes of the Double Jeopardy Clause. United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996).
In Ursery, the United States Supreme Court consolidated two United States Court of Appeals cases from the Ninth and Sixth Circuits. Both circuits held that the Double Jeopardy Clause prohibited the government from both punishing the defendant for a criminal offense and forfeiting defendant’s property for the same offense in a separate civil action.
The Supreme Court, in Ursery, recognized a long line of cases where civil forfeiture actions and criminal prosecutions were based on the same offense. The first case to rule that the Double Jeopardy Clause did not apply was Various Items v. United States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931). The Court reasoned:
“[This] forfeiture proceeding ... is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted, and punished. The forfeiture is no part of the punishment for the criminal offense. [Citation omitted.] The provision of the Fifth Amendment to the Constitution in respect of doublejeopardy does not apply. [Citations omitted.]” (Emphasis added.) 282 U.S. at 581.
Later cases reaffirmed the Court’s holding in Various Items. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972); United States v. Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984). In 89 Firearms, the court applied a two-part analysis: (1) Was it the intent of Congress to design forfeiture as a remedial civil sane tion, and (2) if so, was the statutory scheme so punitive in purpose or effect as to negate Congressional intent to establish a “civil remedial mechanism”? 465 U.S. at 362, 365.
In finding that forfeiture of property and a criminal prosecution violated the double jeopardy provision, the Sixth and Ninth Circuit Courts relied upon Montana Dept. of Rev. v. Rurth Ranch, 511 U. S. 767, 128 L. Ed. 2d 767,114 S. Ct. 1937 (1994); Austin v. United. States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993); and United States v. Halper, 490 U.S. 435,104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). The Supreme Court noted that the circuit courts misapplied the holdings in Rurth, Austin, and Halper by concluding that the Supreme Court had abandoned the precedent established by Various Items, Emerald Cut Stones, and 89 Firearms. Ursery, 135 L. Ed. 2d 567-68.
Applying this two-part test to the present case, we hold: (1) The forfeiture proceeding resulting in the sale of Thompson’s vehicle was civil in nature, and (2) the statutory scheme is not so punitive as to negate legislative intention to establish a civil remedial mechanism. The statute provides that the forfeiture shall “proceed against the property” by filing in the jurisdiction where the property is located. K.S.A. 65-4171(a). The petition shall contain a statement that the property was used or intended to be used in violation of this act or that the property is contraband. K.S.A. 65-4171(a). (The forfeiture statute, K.S.A. 65-4171, has since been repealed and replaced by K.S.A. 60-4101 et seq.)
The statutory forfeiture provides for a civil proceeding in rem. A legislative intent to assure that property is not used for illegal means, to make illegal activity unprofitable, or to remove contraband may be implied from the statutory language. Kansas forfeiture laws in effect at the time of Thompson’s offense do not constitute “punishment” within the meaning of the Double Jeopardy Clause or § 10 of the Kansas Constitution Bill of Rights.
The decision of the district court is affirmed. | [
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Bacon, J.:
Jamie D. Roberts appeals from the ruling of the Workers Compensation Board (Board), which found that K.S.A. 44-519 requires the exclusion of vocational expert testimony regarding the percentage of a claimant’s work disability when that percentage is based on restrictions contained in medical reports generated by an absent, nontestifying, treating physician.
Roberts suffered a work-related back injury in February 1990. Following this injury, Roberts continued working, but after a few weeks, she had to stop due to the pain. In September 1990, Roberts was referred to Dr. Roger Jackson for back surgery. Thereafter, Roberts went through vocational rehabilitation, which,was ultimately unsuccessful. Roberts contends that she is unable to return to gainful employment as a result of her injury.
Dr. Edward J. Prostic, a board-certified orthopedic surgeon who examined and evaluated Roberts, testified that she had sustained a 40 percent functional impairment and was only capable of performing light-duty employment. Michael Dreiling, Roberts’ vocational expert, testified that Roberts had suffered a 100 percent work disability. Dreiling’s conclusions were based on the restrictions noted in the medical records of Dr. Jackson, Roberts’ treating physician, as well as those of other doctors who had seen Roberts for this injury. Dr. Jackson’s deposition was not taken and, subsequently, his records were not introduced into evidence. However, Dr. Jackson’s records were part of the vocational rehabilitation information on file with the Kansas Division of Workers Compensation and were, therefore, available to counsel.
Monty Longacre, the vocational expert for J.C. Penney Company (Penney), testified that although Roberts had sustained a 36 percent loss in her ability to perform in the open market, she had suffered no loss in her ability to earn comparable wages.
After considering the opinions of Longacre and Dreiling, an administrative law judge (ALJ) found that Roberts had suffered a 59 percent permanent partial disability as a result of her work-related injury. On appeal, die Board modified the ALJ’s award, finding tiiat
“[t]he determination of loss of ability to perform work in the open labor market and loss of ability to earn compensable wages is critical in determining an injured worker’s right to permanent partial disability benefits under K.S.A. 1989 Supp. 44-510e. Unless the medical information utilized by the labor market expert is part of the evidentiary record, the expert’s opinion that is based upon that information is without foundation and should not be considered by the trier of facts when timely objections are lodged. To hold otherwise would be to circumvent the intent of K.S.A. 44-519 .... Although claimant had the opportunity to introduce the medical opinion either by deposition or stipulation, the medical in formation considered by Mr. Dreiling and which constituted the primary basis for his opinions was never introduced into the evidential record.”
Based on Longacre’s testimony, the Board found that claimant had only an 18 percent work disability. Roberts appeals.
In workers compensation cases, the scope of appellate review is limited. See K.S.A. 1996 Supp. 44-556; K.S.A. 77-621. Under K.S.A. 77-621(c), relief will be granted only if it is determined that any one or more of the following has occurred:
“(4) the agency has erroneously interpreted or applied the law;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, ... or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
K.S.A. 44-510e(a) states in pertinent part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.” (Emphasis added.)
K.S.A. 44-519 provides:
“No report of any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
Both parties rely on Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 131, 764 P.2d 462 (1988), rev. denied 244 Kan. 736 (1989). Boeing involved an objection to the testimony of two physicians whose medical opinions were based, in part, on the claimant’s past medical records. Because the doctors generating the past medical records did not testify at the proceeding, the respondent claimed that the records were inadmissible under K.S.A. 44- 519. This court found that K.S.A. 44-519 “literally applies only when a party seeks to introduce a report or certificate of a physician or surgeon into evidence.” 13 Kan. App. 2d at 130. In Boeing, the claimant did not attempt to introduce the past medical records into evidence. We concluded that “K.S.A. 44-519 does not prevent a testifying physician from considering medical evidence generated by other absent physicians as long as the testifying physician is expressing his or her own opinion rather than the opinion of the absent physician.” 13 Kan. App. 2d 128, Syl. ¶ 3.
In Boeing, this court also addressed the proper standard of review to be applied on an appeal from a claim that evidence was erroneously admitted in a workers compensation proceeding. On review of such a claim, “this court will affirm when the decision is based on substantial and satisfactory evidence even though some evidence is not technically admissible under the rules of evidence.” Boeing, 13 Kan. App. 2d 128, Syl. ¶ 4.
Roberts argues that the rationale of Boeing should be extended to permit Dreiling’s testimony even though he relied on the medical opinions of physicians who had not testified in the proceeding regarding the extent of Roberts’ disability and whose reports had not been introduced into evidence. Here, the ALJ relied on Boeing in overruling Penney’s objection to Dreiling’s testimony, while the Board excluded his testimony.
Recently, in McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 772, 921 P.2d 257 (1996), this court reiterated that “medical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker’s disability.” “In workers compensation cases, the ALJ and the Board are not bound by the technical rules of procedure and are to give the parties a reasonable opportunity to be heard and present evidence.” 22 Kan. App. 2d at 772. In McKinney, the ALJ considered a medical report which was generated by a neutral health care provider that was appointed by the ALJ to evaluate the claimant and to prepare a report discussing the claimant’s functional disability. This court held: “Under an integrated interpretation of K.S.A. 44-510e(a) and K.S.A. 44-519, the absence of admissible testimony supporting the report of an independent medical examiner does not make the report inadmissible.” 22 Kan. App. 2d 768, Syl. ¶ 5.
Boeing and McKinney provide three important rules of law applicable to the present case: (1) Medical testimony is not required to establish a claimant’s work disability rating; (2) neither the ALJ nor the Board is bound by technical rules of evidence; and (3) K.S.A. 44-519 applies only when a party introduces a medical report of a nontestifying physician as evidence. Here, the ALJ correctly ruled that a vocational expert could rely on the medical reports of nontestifying physicians which had not been introduced as evidence in the proceeding.
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Marquardt, J.:
Riverton Water Company, Inc., (Riverton Water) had requested an exemption from ad valorem property tax, pursuant to K.S.A. 1995 Supp. 79-201a Third, claiming that it held the status of a rural water district. The Board of Tax Appeals (BOTA) found that Riverton Water was not a rural water district until March 13, 1995, when the Board of Cherokee County Commissioners approved Riverton Water’s incorporation as Riverton Rural Water District No. 9, and denied an exemption prior to that time. Riverton Water appeals.
Riverton Water provided water services for the city of Riverton, Kansas, in Cherokee County. Riverton Water was organized December 4, 1992, as a private, nonprofit organization, exempt from federal income taxes pursuant to section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3) [1994]). At that time, Riverton Water filed articles of incorporation with the State of Kansas, stating that its purpose was “to serve the public welfare of the community.” However, no petition was presented to the county commissioners to incorporate and organize Riverton Water as a rural water district.
In 1992, Riverton Water s request for a rural water district ad valorem property tax exemption was granted by BOTA. However, the Kansas Division of Property Valuation never received notice of the hearing. Upon application of the Director of Property Valuation, BOTA determined that Riverton Water was not a rural water district organized according to Kansas law, and the exemption was rescinded on November 2, 1994.
On March 13, 1995, Riverton Water was replaced by Riverton Rural Water District # 9, which was incorporated by the Board of Cherokee County Commissioners pursuant to the requirements in K.S.A. 82a-612 et seq.
On April 28, 1995, Riverton Water reapplied for an ad valorem property tax exemption for the years prior to its incorporation as a rural water district. Riverton Water contended that “it was performing the same services before the approval of the Board of [Cherokee] County Commissioners as it was performing after” and should not be treated differently due to a mere formality. Following a hearing on this matter, BOTA held that Riverton Water did not become a rural water district until March 13, 1995, and did not qualify for an exemption until that date.
“The power of the legislature to express what property shall be taxed implies the power to prescribe what property shall be exempt. The fundamental rule in Kansas is that a tax exemption statute is to be construed strictly in favor of imposing a tax and against an allowance of an exemption for one who does not clearly qualify. [Citation omitted.] The burden of establishing an exemption from taxation is upon the one claiming the exemption. [Citation omitted.]” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 454, 691 P.2d 1303 (1984).
K.S.A. 1995 Supp. 79-201a provides:
“The following described property, to the extent herein specified, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“Third. All works, machinery and fixtures used exclusively by any rural water district or township water district for conveying or production of potable water in such rural water district or township water district.”
K.S.A. 82a-612 et seq. details the steps that must be followed to organize a rural water district, including the powers, responsibilities, and operational requirements. BOTA held that for Riverton Water to receive an exemption under K.S.A. 1995 Supp. 79-201a Third, it was required to follow the organizational requirements of K.S.A. 82a-612 et seq.
In its October 5, 1995, order, BOTA stated:
“First, K.S.A. 82a-613, 614 provide that a petition must be filed with the board of county commissioners before a rural water district can be incorporated and organized in the manner established by the statutes governing rural water districts. Second, K.S.A. 82a-616 authorizes the board of county commissioners to approve the petition after it has made a number of specific findings relating to the district. K.S.A. 19-270 requires approval of the hoard of county commissioners in order to create a valid rural water district. Third, pursuant to K.S.A. 82a-621, a petition is required to be filed with the Chief Engineer of the Division of Water Resources, Kansas State Board of Agriculture, before a rural water district can be organized.” (Emphasis added.)
Riverton Water argues that strict compliance with K.S.A. 82a-612 et seq. and K.S.A. 19-270 is not required because Riverton Water was a de facto rural water district prior to March 13, 1995. Whether an entity claiming de facto status qualifies for an exemption under K.S.A. 1995 Supp. 79-201a is an issue of first impression in Kansas.
Riverton Water argues that the legislature omitted any cross reference between K.S.A. 82a-612 et seq. and K.S.A. 1995 Supp. 79-201a Third because it did not intend to prevent entities that acted in good faith, but that did not strictly comply with K.S.A. 82a-612 et seq., from receiving the benefit of a property tax exemption.
“ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention orinclu sion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention.’ [Citations omitted.]” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977) (quoting In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 [1973]).
Under this reasoning, if the legislature had intended to require entities to comply with K.S.A. 82a-612 et seq., then the legislature would have specifically referred to it as was done in numerous other sections of K.S.A. 1995 Supp. 79-201a..
In 1949, the predecessor statute to 79-201a did not mention rural water districts, but instead allowed an exemption for “[a]ll works, machinery and fixtures belonging to and owned by any town, city or village, and used exclusively for conveying water to such town, city or village.” G.S. 1949, 79-201 Seventh. In 1965, the statute was amended to exempt property “belonging to and owned by any rural water district, township water district, town, city or village.” L. 1965, ch. 509, § 1. Under this amendment, the entity conveying water had to be either a governmental unit or a rural water district in order to qualify for the exemption.
“Rural water district” is not a common term, it is a technical one. “ ‘[T]echnical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.’ [K.S.A. 1995 Supp. 77-201 Second.]” Hudgens v. CNA/Continental Cas. Co., 252 Kan. 478, 483, 845 P.2d 694 (1993). The term “rural water district” is not defined in Chapter 79 of the Kansas statutes. Under K.S.A. 82a-612(a), “district” is defined as “a rural water district organized pursuant to this act.” BOTA relied on the pro.visions of K.S.A. 82a-613, K.S.A. 82a-614, K.S.A. 82a-616, and K.S.A. 19-270 to support its position that a rural water district must be incorporated and organized by a board of county commissioners before it attains the legal status of a rural water district.
“Subject to the provisions of K.S.A. 1986 Supp. 19-270, the board of county commissioners of each county in this state shall have power and it shall be their duty, upon a proper petition being presented, to incorporate and organize rural water districts in the manner hereinafter provided.” (Emphasis added.) K.S.A. 82a-613.
K.S.A. 82a-616(b) provides: “Any district heretofore declared and incorporated by the hoard of county commissioners pursuant to a petition presented under this section, ... is hereby ratified and declared to be a lawfully incorporated and existing district.” (Emphasis added.)
K.S.A. 19-270 provides in pertinent part:
“(a)(1) A special benefit district shall include any:
“(B) . . . rural water district. . . .
“(b) No special benefit district shall be created, established or otherwise formed within the fringe area of any city unless approved by at least a % majority vote of the board of county commissioners of the county in which the city is located.” (Emphasis added.)
When read together, these statutes clearly establish that action by the board of county commissioners is essential in order to create a lawfully incorporated rural water district. Because "rural water district” is not a term that connotes a general meaning, it is reasonable to conclude that the legislature intended and expected parties wishing to utilize K.S.A. 1995 Supp. 79-201a Third to look for the definition and organizational requirements of a rural water district elsewhere in the statutes.
Riverton Water argues that its status prior to March 1995 is comparable to that of a de facto corporation which failed to meet all the statutory requirements of incorporation. Even though Riverton Water did not meet the statutory requirements for the formation of a rural water district, it argues that it did attempt to organize itself as a rural water district and that it proceeded in good faith upon the belief that it was a rural water district. Because a de facto corporation is a legal entity, Riverton Water argues that it should be treated as though it had met the statutory requirements for a rural water district.
For de facto corporation status, a corporation must prove that: (1) there is a statute under which incorporation is permitted; (2) a good faith attempt was made to comply with the statute; and (3) there was some use or exercise of corporate privileges. See In re Armed Forces Cooperative Insuring Ass’n, 5 Kan. App. 2d 787, 792, 625 P.2d 11 (1981). Riverton Water argues that it has met these three elements; however, Riverton Water did not attempt to comply with the organizational statutes.
Statutory references to the board of county commissioners’ role in incorporating rural water districts are contained in K.S.A. 82a-601, K.S.A. 82a-604, K.S.A. 82a-605, K.S.A. 82a-613, K.S.A. 82a-614, K.S.A. 82a-616(b), and K.S.A. 19-270. We believe these statutes are indicative of the legislature’s intent to require the approval of a rural water district by a board of county commissioners, thereby alleviating any doubt as to its formation and serving as notice to third parties. Riverton Water did not present a petition to the board of county commissioners. Hence, there was no evidence of a good faith attempt to comply with the statute.
Finally, during the period of time between November 2, 1994, (the date that Riverton Water’s exemption was rescinded) and March 13, 1995, there is no evidence that Riverton Water was acting under a good faith belief that it was, in fact, a rural water district.
In order to receive an ad valorem property tax exemption under K.S.A. 1995 Supp. 79-201a Third, a rural water district must follow the requirements of K.S.A. 82a-612 et seq.
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Lewis, J.:
This action was initiated by the issuer of a homeowner’s insurance policy. The question litigated was whether the incident in question involving an automobile was covered by the homeowner’s insurance policy. The trial court held there was no coverage under the homeowner’s insurance policy. The defendants appeal.
It is not only politics that make strange bedfellows; sometimes lawsuits have the same effect. The three parties suing each other in the underlying damage action are joined together as appellants on this appeal. For that reason, we begin by identifying the parties involved. Laura Vetter is a defendant in this action but is the plaintiff in an underlying damage action against Chad Morgan. Chad Morgan was a passenger in the other vehicle involved in an accident with the Vetter vehicle and is alleged to have been part of the cause of that accident. Chad Morgan is also an appellant in this action. Donald and Nancy Morgan are the parents of Chad Morgan and are appellants in this action. They also owned the automobile which was involved in the Vetter accident. United Services Automobile Association (USAA) is the insurance company that issued the homeowners policy to Donald and Nancy Morgan and under which Chad Morgan is an insured. The Morgan family and Laura Vetter all contend that the homeowners insurance policy offers coverage for Chad Morgan’s actions. USAA contends that its policy provides no coverage for Chad Morgan’s liability to Vetter. This action was instituted by USAA as a declaratoiy judgment action, seeking a ruling that it had no coverage or responsibility under its homeowner’s policy for the incident involved in the underlying damage action.
The outcome of this action will be controlled by the facts that gave rise to Vetter’s damages. Those facts are stipulated by the parties.
On the night of the Vetter accident, Chad Morgan, Dana Gaither, and Jerrod Faulkner left Chapman for a drive to Manhattan. According to the record, they were going to Manhattan “ ‘to look for girls, to cruise.’ ” As the evening began, Chad Morgan was driving. At some point in the evening and for reasons of which we are not cognizant, Gaither began to drive the Morgan vehicle, Faulkner was in the passenger seat, and Chad Morgan was in the back seat. This was the location of all three young men at the time of the Vetter accident.
The accident took place in Manhattan in the early morning hours. At about 1:45 a.m., Gaither stopped the car at a traffic light in the left lane of an intersection. Vetter was stopped at the same light, sitting in her van in the right lane of the intersection. The Vetter vehicle was located approximately 6 feet from the Morgan vehicle. Suddenly and without any provocation whatsoever, Chad Morgan rolled down the window of his car, “flipped off” Vetter, and began to yell various obscenities at her. He called her “a bitch” and “a whore” and yelled other obscene things. He told her to come out of her van and said to her, “ ‘[C]ome over here and such [sic] my dick, and if you don’t get out of that van I’m going to come get you out of that van.’ ” Chad Morgan continued to hurl obscenities at Vetter throughout the red light and spat on her van. According to Chad Morgan, he did this to amuse his friends. He also contends he did so spontaneously and without any preconceived plan.
Vetter testified that as the vehicle sat at the intersection while Chad Morgan hurled obscenities and threats towards her, the engine of the Morgan vehicle was being revved and the vehicle rocked back and forth. According to Vetter, Chad Morgan was shaking his fists and making obscene gestures in her direction in a violent manner. Vetter testified she was very frightened and thought Chad Morgan was under the influence of drugs or alcohol.
In this atmosphere, the light turned green, and both vehicles drove forward. Suddenly, according to Vetter, the Morgan vehicle, driven by Gaither, veered sharply into her lane. In her fear of Chad Morgan and in an attempt to avoid a collision with the Morgan vehicle, she turned her vehicle to the right and struck the curb. This action caused her head to hit the steering wheel and snap back against the seat, after which she fell to the floor of the van. Vetter contends that as a result of the injuries she received, she has been diagnosed with brain disfunction and cognitive impairment.
As one might expect, Vetter sued both Chad Morgan and Gaither for damages. However, she settled with Gaither, which leaves Chad Morgan as the only defendant. We do not know, but it is reasonable to speculate, that the automobile liability policy limits have either been exceeded or are close to depleted. We assume that for that reason both Vetter and the Morgans are desirous of involving USAA as a source for the recovery of damages against Chad Morgan.
Chad Morgan filed a motion for summary judgment in the damage action, which was granted by the trial court. Vetter appealed, and the results of that appeal can be found in Vetter v. Morgan, 22 Kan. App. 2d 1, 913 P.2d 1200 (1995). We reversed the grant of summary judgment in that case and remanded it as to Vetter’s assault and negligence theories. It was sometime after our remand that the instant matter was filed. The trial on the underlying damage action awaits the determination of this appeal.
In Vetter v. Morgan, we held that Vetter’s assault claim must be submitted to the trier of fact. In doing so, we noted Chad Morgan’s threats to take her from her van, his incredibly foul language, and his close proximity to the Vetter vehicle. All of these facts made the assault charge a question of fact. However, it is clear that assault is an intentional tort and that even if the Morgans’ homeowner’s policy covers Vetter’s negligence claim against Chad Morgan, the policy would not cover Chad’s liability for assault. Indeed, on oral argument, counsel for the Morgan family agreed with us as to this point. That question, however, has not been made an issue on this appeal.
In the underlying damage action, we also sent the negligence claim back for trial. We believed there was a reasonable inference that Chad Morgan should have known that his behavior might frighten Vetter and create a risk of harm. We also concluded that a jury could find that Chad Morgan’s incredible behavior may have contributed to the accident by causing Vetter to overreact to movement by the Morgan vehicle. In fact, we made the following observation:
“The record contains evidence that Morgan’s actions, which continued for some 30 seconds, made Vetter ‘very, very frightened.’ Within seconds after the light changed, Morgan’s car veered suddenly toward Vetter’s van, and she reacted by instinctively turning sharply toward the curb. It would not be unreasonable to infer that her frightened state caused her to overreact to the car’s approach and hit the curb, and that Morgan’s actions were a substantial factor in bringing about the accident. This was a question of fact for the jury.” Vetter v. Morgan, 22 Kan. App. 2d at 6.
In Vetter v. Morgan, we also concluded that Chad Morgan and Gaither could be jointly liable if it were shown that they acted together with a goal of harassing and frightening Vetter. 22 Kan. App. 2d at 8.
USAA bases its declaratory judgment action on the automobile exclusion in its homeowner s policy. It also argued that the policy did not provide coverage for injuries “expected or intended by the insured.”
The trial court held in favor of USAA by holding that the automobile exception from coverage relieved USAA from any coverage or obligation under the homeowner’s policy. In its decision, it relied on Garrison v. State Farm Mat. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995). It was the opinion of the trial court that the automobile was causally connected to Vetter’s injuries:
"The opportunity to frighten Vetter arose because of the use of the automobile. But for the fact that the three young men used the automobile to come to Manhattan, they would not have been in a position for Chad Morgan to act as he did. The automobile was ‘involved’ itself in that the stipulated facts contain testimony that suggest that the auto’s engine was revving mid it was rocking back and forth, further adding to Vetter’s fright.”
STANDARD OF REVIEW
The question we must determine is whether the homeowner’s insurance policy issued by USAA provides coverage to Chad Morgan for the incident described above.
First of all, there is no doubt that Chad Morgan was an “insured” under the homeowner’s policy in question. However, it is the position of US AA that the “automobile exclusion” in its policy relieves it of any obligation to its insured.
Section II of the policy in question is devoted to liability coverage and reads as follows:
“SECTION II — LIABILITY COVERAGES
"COVERAGE E — Personal liability
“If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
“1. pay up to our limit of liability for the damages for which the insured is legally hable; and
“2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.
“COVERAGE F — Medical Payments To Others
“We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing bodily injury.
“SECTION II — EXCLUSIONS
“Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
“a. which is expected or intended by the insured;
“e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of a motor vehicle or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured.” (Emphasis added.)
In this case, the facts are stipulated. The interpretation of a written insurance policy based on stipulated facts is a question of law over which we have unlimited review. See Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994).
This is also a case in which the trial court granted summary judgment to USAA. We review a decision on a motion for summary judgment under the rule that summary judgment is only appropriate if, after drawing all reasonable inferences in favor of the nonmoving party, there is not a disputed issue of material fact so that the movant is entitled to judgment as a matter of law. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
We also deal here with a claim that an exclusion in an insurance policy relieves the insurance company of responsibility. The language of an exception to coverage in an insurance policy must be given its plain and ordinary meaning. Newton v. Nicholas, 20 Kan. App. 2d 335, 887 P.2d 1158, rev. denied 257 Kan. 1093 (1995). However, in construing an exception to coverage, we are required to employ “ ‘a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms/ ” 20 Kan. App. 2d at 339 (quoting Upland Mu tual Insurance, Inc. v. Noel, 214 Kan. 145, 149, 519 P.2d 737 [1974]).
We will attempt to balance these varied standards of review in deciding the merits of this appeal.
DOES THE AUTOMOBILE EXCLUSION APPLY?
If we decide that the automobile exclusion in the USAA homeowner s policy applies, there is no coverage under that policy for Chad Morgan’s liability to Vetter. If, on the other hand, we hold it does not relieve USAA from coverage, then it must provide a defense and liability coverage to Chad Morgan.
The question in this case is simply one of whether it can be said that Vetter’s injuries arose out of the “ownership, maintenance, or use” of an automobile. There are a number of cases in Kansas which deal with that question. However, two of those cases appear to be controlling. One is Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, which was relied on by the trial court in reaching its decision. The other is Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan. App. 2d 60, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982). We conclude these two decisions provide the basis for our decision on this appeal.
It is obvious there is one important distinction between Garrison and Evans and the case at issue. In both of those decisions, the issue was whether an automobile liability insurance policy provided coverage. In this case, we deal with a homeowner’s policy, and the question is whether the automobile exclusion in the homeowner’s policy avoids coverage. At first glance, the approaches to those two cases seem to be somewhat incompatible. In determining whether an automobile liability insurance policy covers a particular accident, we are required to construe the coverage clause “broadly to afford the greatest possible protection to the insured.” Evans, 7 Kan. App. 2d at 62. In this case, we are to construe a clause which excludes coverage, and we must apply a narrow construction. However dissimilar those two approaches appear to be, in this case they achieve the same goal. In both instances, we are seeking, under different standards, to afford the greatest protection possible to the insured and to people injured in an accident. The fact that Evans and Garrison involve an automobile liability insurance policy does not lessen their precedential impact on this case.
We begin with Evans since that case is the basis for the decision in Garrison. Evans was a case where an M-80 firecracker was lighted and thrown from the rear of a parked automobile. This explosive device landed in a glass in the hand of the unfortunate victim and, when it exploded, did considerable damage. The question was whether the injuries from the M-80 arose out of “use” of an automobile so as to come within the coverage clause of an automobile liability insurance policy. We held that the accident in question did not arise out of the use of an automobile and, in the process, we developed the standard for determining that issue. The relevant portion of the decision says:
“The policy provision in question is mandated by the legislature. K.S.A. 1980 Supp. 40-3107(fc). As an automobile liability coverage clause, it is to be interpreted broadly to afford the greatest possible protection to the insured. United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978). In the case before us, the trial court found the vehicle was being ‘used’ within the meaning of the coverage clause because of its use as a shelter. But mere use of a vehicle, standing alone, is not sufficient to trigger coverage. Thus, even though the vehicle was being used within the meaning of the automobile liability policies, the question remains whether that use is so remote from the negligent act that it can be said there was no causal relationship between the use of the car and the injuries sustained.
“Kansas has construed the word ‘use’ in connection with automobile liability policies on three occasions: Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 411 P.2d 616 (1966); Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 (1964); United States Fidelity ir Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580. None of these cases is exactly in point, but language found in Esfeld indicates Kansas follows the majority rule that there must be some causal connection between the use of the insured vehicle and the injury. In Esfeld, the court stated:
“ ‘In determining the coverage of a policy such as our present one a court must consider whether the injury sustained was a natural and reasonable incident or consequence of the use of the vehicle involved for the purposes shown by the declarations of the policy though not foreseen or expected.’ 193 Kan. at 11.
“The general rule in other jurisdictions is that ‘arising out of the use’ of a vehicle requires the finding of some causal connection or relation between the use of the vehicle and the injury. E.g., Richland Knox Mutual Insurance Company v. Kallen, 376 F.2d 360 (6th Cir. 1967); Government Employees Insurance Company v. Melton, 357 F. Supp. 416 (D.S.C. 1972), ajf’d in unpublished opinion, 473 F.2d 909 (1973); Mazon v. Farmers Insurance Exchange, 107 Ariz. 601, 491 P.2d 455 (1972); Speziale v. Kohnke, 194 So. 2d 485 (La. App. 1967); National Family Ins. Co. v. Boyer, 269 N.W.2d 10 (Minn. 1978); 7 Am. Jur. 2d, Automobile Insurance § 194, p. 703; Annot., 89 A.L.R.2d 150, 153; 8 Blashfield, Automobile Law & Practice § 317.1, p. 5; 12 Couch on Insurance 2d § 45:56. Stated another way, an injury does not arise out of the ‘use’ of a vehicle within the meaning of the coverage clause of an automobile liability policy if it is caused by some intervening cause not identifiable with normal ownership, maintenance and use of the insured vehicle and the injury complained of. Kangas v. Aetna Casualty Co., 64 Mich. App. 1, 235 N.W.2d 42 (1975); Norgaard v. Nodak Mutual Insurance Company, 201 N.W.2d 871 (N.D. 1972); Plaxco v. U. S. Fidelity & Guaranty Co., 252 S.C. 437, 166 S.E.2d 799 (1969); State Farm Ins. v. Centennial Ins., 14 Wash. App. 541, 543 P.2d 645 (1975). The provision, however, imparts a more liberal concept of a causation than ‘proximate cause’ in its traditional, legal sense. Watson v. Watson, 326 So. 2d 48 (Fla. Dist. Ct. App. 1976); Dairyland Insurance Co. v. Concrete Products Co., 203 N.W.2d 558 (Iowa 1973); Shinabarger v. Citizens Ins. Co., 90 Mich. App. 307, 282 N.W.2d 301 (1979); Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13 (Mo. App. 1980); State Farm Ins. v. Centennial Ins., 14 Wash. App. 541; 7 Am. Jur. 2d, Automobile Insurance § 194, p. 703; 8 Blashfield, Automobile Law & Practice § 317.1, pp. 5-6; 12 Couch on Insurance 2d § 45:56, p. 147.” 7 Kan. App. 2d at 62-63.
In Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan. App. 2d 918, Syl. ¶¶ 3, 4, 894 P.2d 226, aff’d 258 Kan. 547, 907 P.2d 891 (1995), we again applied the test developed in Evans and held:
“To determine if insurance coverage exists for accidental bodily injury arising out of the ownership, maintenance, or use of an insured vehicle, consideration must be given to the injured party’s action as well as the party’s intent and whether the injury sustained was a natural and reasonable incident or consequence of the use of the vehicle involved.”
“In order for an injury to arise out of the use of an insured vehicle, it need not be the proximate cause of the injury; it is sufficient if there is a causal connection between the injury and the use of the automobile.”
The Supreme Court affirmed Garrison and said:
“For insurance coverage to exist for accidental bodily injury, there is no requirement that the vehicle be the proximate cause of the injury or physically contribute to the discharge of the gun where the minimal causal connection between the use of the vehicle and the injury is provided by the foreseeable and reasonable use of the vehicle for hunting.” 258 Kan. 547, Syl. ¶ 2.
Garrison and Evans hold that the question is not whether the use of the vehicle was the “proximate cause” of the injury. Those cases tell us that if there was a “causal connection” between the injury and the use of the automobile, then, in the context of an automobile liability insurance clause, the accident has happened out of the use of an automobile.
It is interesting to note that in the two decisions in which the vehicles were not moving at the time of the injury the courts have held that the accident did not arise out of the use of the vehicle. In Evans, the vehicle was parked and not running when the M-80 was lit and thrown. We held there was no causal connection between the use of the automobile and the injury.
In Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 833 P.2d 1007 (1992), the estate of a decedent sought to recover uninsured motorist benefits and PIP benefits from the defendant insurance company. The facts indicated that as the decedent was driving down the highway, his vehicle was bumped from behind. He stopped his vehicle and got out to confront the driver of the other vehicle. The driver of the other vehicle also stopped his vehicle, got out of it, and promptly shot and killed the decedent. The Supreme Court held that the shooting was unrelated to the operation of the motor vehicle. The court, in reaching this conclusion, pointed out that at the time of the shooting, both vehicles were stopped and driverless.
If we apply the law from the cases cited to the instant matter, we find that both vehicles involved in this accident were running and being driven. They were temporarily stopped at a stoplight when Chad Morgan launched into his incredibly violent attack against Vetter. He did so in the back seat of a running motor vehicle, which provided him with some degree of anonymity and a quick avenue of escape. Indeed, his presence in a running vehicle added to the danger and impact of his threats. We do not speculate by observing that had he been standing on a street comer hurling insults and threats, Vetter could have just driven away. He was not standing on the street comer, he was in a mnning automobile, capable of giving chase and providing him with the ability to mn down Vetter and carry out his threats. In this case, Vetter wrecked her van in an effort to escape the Morgan automobile. This wreck was a reasonably foreseeable consequence of Chad Morgan’s behavior.
Chad Morgan wants us to completely isolate his actions from those of the driver and to analyze them as though they were separate events. We are unable to do so. The actions, while they may not have been pre-planned by the parties, took place at the same time and in the same running motor vehicle.
Chad Morgan testified that he began his vile barrage of threats to “amuse” his friends. The stipulated facts indicate that his two friends, including the driver of the car, found him to be quite amusing and laughed at him. Finally, when the stoplight changed and Gaither veered towards Vetter, Vetter was so frightened that she drove her vehicle into the curb and suffered serious injuries.
None of this could have happened or would have happened without the use of the Morgan vehicle. We think it too simplistic to simply say the vehicle was involved because the three young men in question used it to drive from Chapman to Manhattan. The vehicle was much more intimately involved in the accident than that. The atmosphere in the Morgan vehicle was charged with Chad Morgan’s childish and frightening behavior. This behavior created the atmosphere in which Gaither veered toward Vetter, causing her to wreck her vehicle. Without Chad Morgan’s screaming threats, the actions of Gaither in veering toward Vetter would not have seemed nearly as sinister and may not even have happened. As pointed out earlier, as Chad Morgan was hurling his threats, Gaither was revving the engine of the Morgan vehicle and rocking the vehicle back and forth, increasing Vetter’s fears.
The use of the automobile made it possible for Chad Morgan to come within 6 feet of Vetter’s vehicle before he began his threats. The use of automobile in conjunction with Chad Morgan’s conduct frightened Vetter to the point that she lost control of her own vehicle. We do not believe that Vetter would have been injured had it not been for the movement of the Morgan vehicle and the threats and violence on the part of Chad Morgan. We have no difficulty in concluding that under the stipulated facts, there was a causal connection between the use of file automobile and the injury suffered by Vetter. In the context of the decisions in Evans and Garrison, there was a causal relationship between the use of the Morgan vehicle, Chad Morgan’s violent and profane threats, and the injuries sustained by Vetter.
We hold that under the facts shown, USAA’s coverage of the accident was excluded by the terms of its homeowner’s policy. This accident arose out of the “use” of an automobile as that term is used and defined in Evans and Garrison.
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RULON, J.:
Defendant Sheryl M. Lewis appeals from her conviction under K.S.A. 1996 Supp. 8-286 and K.S.A. 1996 Supp. 8-287 of driving while a habitual violator. We affirm.
The facts are as follows:
On September 28, 1994, defendant’s car broke down on Interstate 635 in Wyandotte County. A Kansas state trooper stopped to assist defendant. Eventually, defendant gave her driver’s license to the trooper, who ran a check on the license. The trooper was advised that defendant’s license had been revoked as a habitual violator. The trooper then issued a ticket to defendant. In October 1994, the State filed charges against defendant for operating a motor vehicle while a habitual violator.
A preliminaiy hearing was held, at which time the trooper testified. In addition, the State offered into evidence as an exhibit a certified copy of defendant’s driving record. That exhibit is not included in the record on appeal. As we understand, the exhibit established that a proof of mailing was included which certified the Department of Revenue sent a notice that defendant had been found to be a habitual violator. The address on the notice was 4004 Barber Court, Kansas City, Kansas, defendant’s last known address.
At the preliminary hearing, defendant testified she resided at 4004 Barber Court in Kansas City, Kansas. She further testified she admitted receiving multiple tickets in the past for driving without insurance. Defendant appeared before a judge on those charges and paid fines for each. Defendant denied ever getting any kind of notices from the Department of Revenue regarding her tickets or her license until two months after her arrest in this case. Defendant denied any knowledge of being declared a habitual violator until the trooper told her on September 28, 1994.
Defendant was eventually bound over to stand trial. Later, defendant filed a motion to dismiss the charges against her. Defendant argued the habitual violator statutes were unconstitutional and the Department of Revenue’s notice of suspension or revocation of her driver’s license sent by ordinary mail failed to meet constitutional due process standards. In response, the State argued that driving was a “privilege” and that due process did not apply to proceedings involving the suspension or revocation of a driver’s license.
Eventually, the case was submitted to the district court for trial on stipulated facts. Defendant stipulated she had been driving her vehicle on September 28, 1994, and was being assisted by a State trooper when it was discovered she had been declared a habitual violator as of August 16, 1994. Defendant further stipulated she lived at the address to which the Department of Revenue had sent written notice of the declaration, but she alleged she did not receive the notice. The parties stipulated that the Department sent the requisite notice by first-class mail to defendant’s address. The court found defendant guilty and defendant now appeals.
DUE PROCESS
Defendant first contends the Kansas habitual violator statutes, as amended in 1994, violate her due process rights because such statutes provide for notice of the declaration of habitual violator status by regular mail and not by restricted mail.
When a party challenges the constitutionality of a state statute, the issue raised is a question of law giving an appellate court de novo review. State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (1996). Kansas appellate courts have long recognized that there is a presumption that state statutes are constitutional and they will be struck down only when they clearly violate the constitution. See In re Care & Treatment of Hendricks, 259 Kan. 246, 253, 912 P.2d 129 (1996). Kansas courts not only have the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
Both parties spend considerable time arguing whether possession of a driver’s license is a property right or a “privilege.” Defendant argues that under Goldberg v. Kelly, 397 U.S. 254, 262-63, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970), due process applies in this case. The State contends that because the issuance of a driver’s license is a privilege, due process of law does not apply. The State relies on Marbut v. Motor Vehicle Department, 194 Kan. 620, 622, 400 P.2d 982 (1965), in which our Supreme Court held that a driver’s license was a “mere privilege the suspension of which does not deprive the individual of due process of law.”
The issue of the application of due process in driver’s licenses suspension cases is well settled. In Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977), the United States Supreme Court reviewed the constitutionality of an Illinois statute providing for the suspension of a driver’s license based upon official records establishing that the driver has been repeatedly convicted of serious traffic offenses. The Dixon court said:
" ‘Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.’ [Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971)].” 431 U.S. at 112.
The State’s reliance on Marbut is misplaced as that decision was issued before the United States Supreme Court’s rulings in Bell and Dixon. In more recent cases, the Kansas Supreme Court has implicitly recognized that due process attaches in cases involving the revocation or suspension of driver’s licenses. See State v. Mertz, 258 Kan. 745, 758, 907 P.2d 847 (1995); Carson v. Division of Vehicles, 237 Kan. 166, Syl. ¶ 1, 699 P.2d 447 (1985) (conclusoiy affidavit utilized in proceedings under implied consent law is factually deficient as basis for revoking person’s driver’s license and violates constitutional rights to due process of law). Consequently, the State’s contention that due process standards are inapplicable must be rejected.
Once it is determined that due process applies to a specific governmental action, however, a court must still determine “what process is due to protect against an erroneous deprivation of that interest.” Mackey v. Montrym, 443 U.S. 1, 10, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979).
Defendant contends the 1994 amendments (although streamlining the process for declaring habitual violators) fail to comport with due process. Defendant argues that due process requires the Department to send a certified letter with return receipt requested to the alleged habitual violator. However, defendant cites to iio authority for this proposition. The State, on the other hand, relies on State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), for its claim that notice by regular mail to the licensee’s last known address is adequate. Jones, however, did not deal with due process issues.
In determining “what process is due” in cases of driver’s license revocations, some courts have weighed the varying interests of the State and the licensee. In weighing these interests, the courts have concluded that due process does not require the State to conduct hearings prior to suspending a person’s driver’s license because of habitual traffic violations, Dixon, 431 U.S. at 115, or for refusing to consent to a preliminaiy breath analysis test under implied consent laws, Mackey, 443 U.S. at 18-19.
The procedural safeguards of the Due Process Clause are designed to prevent erroneous deprivation of important interests by the government. To achieve this end, however, the Due Process Clause does not require perfect procedures.
“[T]he Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a proteetible ‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decision-making comply with standards that assure perfect, error-free determinations. [Citation omitted.]” 443 U.S. at 13.
From a due process viewpoint, notice must be “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan. App. 2d 93, 105, 819 P.2d 138 (1991), rev. denied 250 Kan. 805 (1992) (quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 2d 865, 70 S. Ct. 652 [1950]).
' The method in which a person subject to governmental action must be given notice of that action varies depending upon the nature of the protected interest involved. “ ‘ “[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” ’ [Citations omitted.]” In re L.S., 14 Kan. App. 2d 261, 263, 788 P.2d 875 (1990).
In a number of cases, federal courts have held that mailed notices are sufficient means to provide notice to parties in a wide variety of proceedings. See, e.g., Weigner v. City of New York, 852 F.2d 646, 650 (2d Cir. 1988), cert. denied 488 U.S. 1005 (1989), and cases cites therein. In Weigner, the Second Circuit held that the city’s action in mailing notices of proposed tax foreclosure actions by ordinary first-class mail to the owner’s last known address was sufficient to meet the requirements of due process. 852 F.2d at 648, 651. The court rejected Weigner’s claim that she was constitutionally entitled to notice by certified mail, return receipt requested. While such notice “would provide virtually conclusive evidence that the notice was received,” due process does not require the use of the most advantageous means of notice. 852 F.2d at 650-51.
Moreover, dicta in decisions from the United States Supreme Court arguably upholds the adequacy of notice by mail in various cases. See Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 490-91, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988) (notice by mail to decedent’s known creditors or creditors reasonably ascertainable is not unduly burdensome under due process standards; rejecting publication as sole basis for notice); Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983) (due process required county to give notice to mortgagee prior to foreclosure for unpaid taxes; publicly recorded mortgage required notice of foreclosure action by mail to mortgagee’s last known available address); Mullane, 339 U.S. at 319 (postal notification to known trust beneficiaries of accounting would meet due process requirements; rejecting notice by publication only).
When fundamental rights are involved, substantial diligence is required. See In re L.S., 14 Kan. App. 2d 261, Syl. ¶ 2 (due diligence required in locating and personally serving parent in termination of parental rights case). When less significant rights are involved, however, less effort is required by the government to provide notice that is adequate for due process purposes. Tulsa Professional Collection Services, 485 U.S. at 483-84.
Is the mailing of a notice of suspension to a licensee’s last known address “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections?’ ” Lawrence Preservation Alliance, Inc., 16 Kan. App. 2d at 105. While some states’ statutes require notice to be sent by certified mail, as suggested by defendant in this case, those courts have acknowledged that actual receipt is not required to satisfy due process standards. See, e.g., Townsend v. Dollison, 66 Ohio St. 2d 225, 421 N.E.2d 146 (1981); Davis v. W. Va. Dept. of Motor Vehicles, 187 W. Va. 402, 419 S.E.2d 470 (1992).
In applying the standards set forth by the United States Supreme Court in Mullane, a number of states have upheld service of notices of license suspension and/or revocation by ordinary mail at the licensee’s last known address. See, e.g., State v. Kovtuschenko, 521 A.2d 718 (Me. 1987); State v. Coady, 412 N.W.2d 39, 41 (Minn. App. 1987); State v. Wenof 102 N.J. Super. 370, 376, 246 A.2d 59 (1968), overruled on other grounds State v. Ferrier, 294 N.J. Super. 198, 682 A.2d 1227 (1996); People v. LaGana, 85 Misc. 2d 1039, 381 N.Y.S.2d 742 (1976); State v. Bass, 98 Or. App. 266, 778 P.2d 993, rev. denied 308 Or. 500 (1989) (Oregon statute, Or. Rev. Stat. § 809.430 [1995], provides for notice of suspension by ordinary mail in some circumstances but requires certified mail, return receipt requested in other cases); Rogers v. State, 641 S.W.2d 404, 406-07 (Tex. App. 1982); State v. Thomas, 25 Wash. App. 770, 772-73, 610 P.2d 937 (1980); Annot., 60 A.L.R.3d 427.
Our research has disclosed only one decision where an appellate court held that service of a notice of suspension by ordinary mail was inadequate to meet due process standards. In State v. Knittel, 308 N.W.2d 379 (N.D. 1981), the North Dakota Supreme Court upheld the trial court’s judgment acquitting Knittel of charges of driving while his license was suspended. There, the court concluded that although the State had sent Knittel a notice giving him an opportunity for a hearing prior to suspension of his license, the notice was sent by ordinary mail. This process, according to the court, “is insufficient to guarantee due process” when the licensee denies receipt of the notice. 308 N.W.2d at 384.
The clear majority of states have held that sending suspension notices by ordinary mail comports with due process. Such notices are reasonably calculated to provide actual notice to the licensee, especially in light of the fact that these states, including Kansas, require licensees to timely notify the responsible state agencies of any change of address. K.S.A. 8-248 (licensee must provide written notice to division within 10 days of change of address).
Based upon the facts of this case, we conclude the Department’s action in mailing the notice of suspension to defendant at her last known address by regular mail comported with the minimum requirements of due process. While sending notices by regular mail is no guarantee that each and every licensee will receive the notice, the method is reasonably calculated to provide sufficient notice.
Next, defendant argues that K.S.A. 1996 Supp. 8-255(c) is unconstitutional because it creates an irrebuttable presumption that the licensee received the notice of suspension. In essence, defendant argues the statute creates an irrebuttable presumption as to an element of the crime of driving while a habitual violator, i.e., the driver intended to drive with the knowledge that he/she was a habitual violator.
In making this argument, defendant relies on Ulster County Court v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). In that case, the United States Supreme Court discussed the propriety of mandatory and/or permissive presumptions as they applied to the State’s burden to prove each and eveiy element of an offense in a criminal case.
Defendant’s argument, however, is based upon the premise that knowledge of one’s status as a habitual violator is an element which must be proven to sustain a conviction of driving while a habitual violator under K.S.A. 1996 Supp. 8-287. The statute in issue simply states:
“Operation of a motor vehicle in this state while one’s driving privileges are revoked pursuant to K.S.A. 8-286 and amendments thereto is a severity level 9, nonperson felony.” K.S.A. 1996 Supp. 8-287.
The above statute does not specifically require that the driver “knowingly” or “willfully” operate the vehicle. We must consider the above statute to determine if, in fact, the State is required to prove the driver was aware he or she had been declared a habitual violator before he or she may be convicted of violating K.S.A. 1996 Supp. 8-287.
Interpreting any statute, including the habitual violator statutes, is a question of law for the appellate courts. The applicable standards for statutory interpretation are well known.
“Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. Profitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997).
In Jones, 231 Kan. 366, the Kansas Supreme Court was faced with interpreting K.S.A. 1981 Supp. 8-262, which prohibited anyone from driving while his or her license was canceled, suspended, or revoked. In that case, the State appealed the trial court’s acquittal of Jones on charges of driving while suspended because the State failed to prove Jones received notice that his driver’s license was suspended. 231 Kan. at 366. As in this case, Jones denied ever receiving notice that his license was suspended. 231 Kan. at 367. In reviewing K.S.A. 8-255(b) (Weeks), the court found that to sustain a conviction under the statute:
“(1) that the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the division’s records; (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.” 231 Kan. at 368.
Following amendments in 1994, K.S.A. 1996 Supp. 8-255 controls the administrative process in all cases of suspension and revocation of driving privileges. That procedure controls when invoking the statutory prohibitions against driving while one’s license is suspended or revoked under K.S.A. 1996 Supp. 8-262 and driving after one’s license is revoked as a habitual violator under K.S.A. 1996 Supp. 8-287. See Profitt, 261 Kan. 526.
Although the habitual violator statutes were first enacted in 1972, long after other driving statutes were enacted, such statutes are closely related to the general provisions controlling the suspension and revocation of driver’s licenses. L. 1972, ch. 32, § 4. These varying statutes have been amended within the same legislation on various occasions. See L. 1994, ch. 353, §§ 1,3,5,6; State v. Reves, 233 Kan. 972, 666 P.2d 1190 (1983) (addressing 1982 amendments to K.S.A. 8-255 [Weeks] and K.S.A. 8-285 [Weeks]).
In an effort to distinguish Jones, defendant argues that driving while a habitual violator is a felony, while driving while a license is suspended — the offense at issue in Jones — is a misdemeanor. Defendant then makes the conclusory argument that “intent is part of the crime” in all felony cases under K.S.A. 21-3201. Defendant relies on K.S.A. 21-3204, which states that “[a] person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability.”
While defendant’s arguments regarding K.S.A. 21-3204 are compelling, the decision in Jones undermines such argument. In Jones, the court held that 8-255 was a strict liability statute which did not require the State to prove the driver was aware that his or her license had been suspended or revoked. While the court in Jones noted that K.S.A. 21-3204 allowed strict liability in misdemeanors and traffic offenses, the statute in question made a third violation a class E felony. L. 1981, ch. 43, § 1. The fact that the statute carried some felony penalties did not affect the Supreme Court’s decision in Jones.
Kansas law recognizes that imposing strict liability in criminal offenses does not necessarily violate due process of law. State v. Mountjoy, 257 Kan. 163, 168-69, 891 P.2d 376 (1995). The Mountjoy court concluded that a statute imposing misdemeanor penalties against a defendant for practicing the healing arts without a license did not require proof of criminal intent. In reaching this conclusion, the court noted the statute regulated the privilege of medical licensing and involved regulating issues of public health, safety, and welfare. Moreover, the court seemed to conclude that because the statute in question was not a part of the Kansas Criminal Code, the mandate in K.S.A. 21-3201 that “criminal intent is an essential element of every crime defined in [this code]” was inapplicable. 257 Kan. at 176-77.
Based upon Jones and Mountjoy, we conclude that K.S.A. 1996 Supp. 8-287 does not require that the licensee have actual knowledge of the notice declaring him or her a habitual violator to sustain a conviction. Defendant’s argument regarding irrebuttable presumptions is rejected.
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Green, J.:
Vernon Wonders appeals his convictions for possession of cocaine and possession of marijuana. Wonders raises three principal issues in this appeal: (1) whether the sheriff’s deputy had an articulable suspicion that Wonders was involved in a criminal activity, justifying the deputy’s temporary seizure of him; (2) whether the deputy feared for his safety, justifying a pat-down search of Wonders; and (3) whether the plain feel exception should be adopted in Kansas and, if so, whether the deputy exceeded the scope of a search under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Because we find that the search exceeded the scope of a Terry frisk, we reverse the judgment of the trial court.
On March 7, 1994, sheriff’s deputy Kurt Ford stopped a car when its driver failed to signal a lane change. The driver, Albert Garcia, explained and demonstrated that his turn signal was broken. When Ford noticed an odor of alcohol, he had Garcia perform several dexterity tests. After determining that Garcia was not intoxicated, Ford told Garcia that he was free to go. Ford testified that at this point he had no reason to believe that any criminal activity had occurred. Nevertheless, Ford asked Garcia if he had any guns, drugs, drug paraphernalia, or stolen property in his car. When Garcia replied that he did not, Ford asked and obtained Garcia’s permission to search his car.
Ford testified that before searching the car, he asked the three passengers, including Vernon Wonders, to get out of the car. Under an armrest in the middle of the front seat, Ford discovered a hand scale. Under the front seat, Ford found a chrome pipe with a burnt end and with burnt residue inside. In the front ashtray, Ford found a wood and brass pipe, also with burnt residue inside; and in the front seat, he found two packs of ZigZag rolling papers. Ford testified that based upon his experience, the items were drug paraphernalia. Ford further testified that when he discovered these items, they caused him to believe that some criminal activity had occurred or was occurring. As a result, Ford feared for his safety and wanted to pat-down the car’s occupants for weapons. By that time, two other officers had arrived at the scene.
When Ford patted down Wonders, he discovered rolling papers and three plastic baggies containing marijuana in Wonders’ front right jean pocket. As a result of this discovery, Wonders was arrested. An inventory search at the jail revealed a plastic packet of crack cocaine in Wonders’ front shirt pocket. Wonders was charged with possession of both substances. Wonders filed a motion to suppress evidence of the drugs, arguing that the search of his person was invalid. The trial court denied the motion and found Wonders guilty of both possession of marijuana and possession of cocaine.
On appeal, Wonders argues that the search and seizure violated his right against unreasonable search and seizure because no reasonable suspicion existed to conduct a Terry “stop and frisk.” For purposes of narrowing the analysis of this issue, it is equally important to note that Wonders does not challenge the initial stop of the car, the later DUI investigation, or the search of the car.
In State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996), our Supreme Court articulated the following standard in reviewing a motion to suppress where the facts are not in dispute:
“If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. State v. Vandiver, 19 Kan. App. 2d 786, 788, 876 P.2d 205 (1994), aff’d 257 Kan. 53, 891 P.2d 350 (1995). An appellate court’s scope of review on questions of law is unlimited. State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 823 (1994). Further, on a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978]).”
The evidence presented consisted of Ford’s testimony and the physical evidence found during the searches. Ford was the sole witness at both the preliminary hearing and the suppression hearing. Because no material facts are in dispute, this is a question of law, and this court’s scope of review is unlimited.
The Fourth Amendment, made applicable to the States through the Fourteenth Amendment, Mapp. v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, (1961), guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “[Sjearches and seizures ‘ “conducted outside the judicial process, without prior approval by judge or magistrate, are perse unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.” ’ [Citations omitted.]” Minnesota v. Dickerson, 508 U.S. 366, 372, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993).
Stop and Frisk
In Dickerson, 508 U.S. at 373, the Court recited the Terry exception: “ ‘[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot...,’ the officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.” See Terry, 392 U.S. at 30; State v. Waddell, 14 Kan. App. 2d 129, 132, 784 P.2d 381 (1989). An officer may also conduct a pat-down search where the officer is justified in believing that the person is armed and dangerous to the officer or others. Terry, 392 U.S. at 24. However, this protective search must be “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” 392 U.S. at 26; see Dickerson, 508 U.S. at 373; Waddell, 14 Kan. App. 2d at 132.
K.S.A. 22-2402 codifies the principles set forth in Terry and 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 . . . the name [and] address of such suspect and an explanation of such suspect’s actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.”
Although “stop and frisk” is codified at K.S.A. 22-2402, “ police conduct in a “stop and frisk” situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States.’ ” State v. Potter, 246 Kan. 119, 121, 785 P.2d 989 (1990) (quoting State v. Jackson, 213 Kan. 219, 222, 515 P.2d 1108 [1973]).
Articulable Suspicion
Wonders argues that because Ford did not have an articulable suspicion that Wonders was involved in a criminal activity, his seizure was unreasonable. In support of his argument, Wonders cites State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990); however, the facts of that case are distinguishable from this case. In Damm, a car was stopped for a traffic violation. At the time of the stop, the officer demanded identification from the driver and the passengers. The officer did not have reason to suspect that the passengers were involved in any criminal activity because the sole reason for the stop was the traffic violation. The officer took the identification and discovered that one of the passengers was subject to a warrant for his arrest. The officer arrested the passenger, searched the car, and discovered drug paraphernalia in the car. In upholding the suppression of the evidence, our Supreme Court determined that the seizure of the passengers was unreasonable because the existing facts failed to support such an action. 246 Kan. at 225.
In the present case, the driver consented to the search of his car. The possession of drug paraphernalia is a misdemeanor violation. See K.S.A. 65-4152. When Ford discovered the drug contraband in the car, he had an articulable suspicion that a crime was either occurring or had been committed by one or more of the occupants of the car. Because Wonders was one of the occupants of the car, Ford had an articulable suspicion that Wonders may have committed a crime.
Pat-down Search
Next, Wonders cites State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995), for the premise that just because he was a passenger in the car where the drug paraphernalia was discovered, this alone did not justify Ford’s seizure of him. But Vandiver is also factually distinguishable from this case. In Vandiver, a search warrant had been issued upon a probable cause finding that a certain individual was selling marijuana and that the marijuana was being packaged and sold from his residence. When the warrant was executed, persons other than the individual named in the search warrant were searched. Marijuana was discovered on Vandiver. Finding that the seizure of Vandiver was unreasonable, the Vandiver court stated:
“[T]he police may search a non-resident visitor or the visitor’s belongings in the course of executing a warrant for a premises search. These circumstances include: where the individual consents to being searched, where the item is in plain view on the person or in the person’s possession, where there has been a valid arrest, and where there is probable cause to search plus exigent circumstances. A search may also be conducted under the Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), exception which allows a stop and frisk where there is a reasonable belief that the person is armed and dangerous.” 257 Kan. 53, Syl. ¶ 3.
Here, Ford met the last exception under Vandiver. He conducted a Terry search of Wonders. Although Wonders argues that he did not give Ford any reason to fear for his safety, Ford testified that he feared for his safety. To the contrary, in Vandiver, there was no showing that the officer feared for his safety. In State v. Jackson, 213 Kan. at 225, our Supreme Court stated:
“[I]n order to justify the search for weapons authorized under the provisions of subsection (2) of 22-2402, the officer must have prior knowledge of facts or observe conduct of the person . . . which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search.”
Here, Ford had just discovered evidence of illegal drug activity. People who sell or use drugs can be very dangerous. The occupants of the car outnumbered Ford. The stop occurred on the side of a highway. One of the occupants of the car was known by Ford for his violent behavior and flight risk. Consequently, Ford’s fear for his safety was reasonable; therefore, a pat-down search of the occupants of the car for weapons was warranted.
Plain Feel Exception
Next, Wonders argues that if we determine that Ford’s pat-down search of him was justified, we should not adopt the “plain feel” exception recognized in Dickerson, 508 U.S. 366. In Dickerson, the defendant was leaving an apartment building known by the police for drug trafficking. Upon seeing police officers, the defendant changed directions and began walking away. The officers became suspicious and ordered the defendant to submit to a pat-down or Terry search. Although the officer did not find any weapons, he felt a small lump in the defendant’s jacket. The officer testified that the lump “ ‘slid and it felt to be a lump of crack cocaine in cellophane.’ ” Dickerson, 508 U.S. at 369. The officer then reached into the jacket and removed a small bag of crack cocaine. Following the trial court’s denial of his motion to suppress, the defendant was found guilty of possession of a controlled substance. The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court affirmed that reversal. The State appealed to the United States Supreme Court.
In affirming the Minnesota Supreme Court, the United States Supreme Court recognized the plain feel corollary to the plain view exception to the Fourth Amendment. In comparing the plain view and plain feel exceptions, the Court stated:
“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” 508 U.S. at 375-76.
The Court added in a footnote: “[T]he police officer in each [case would have] had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” 508 U.S. at 376, n.3 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied 404 U.S. 874 [1971]). The Court concluded that a pat-down search, such as the one permitted by Terry, must stay within the bounds marked by Terry. This means the search must be limited to the discovery of weapons.
As stated earlier, the Fourth Amendment was made applicable to the states in 1961. The Kansas Supreme Court has interpreted § 15 of the Kansas Constitution Bill of Rights as having the identical scope as the Fourth Amendment. See State v. Deskins, 234 Kan. 529, 531, 673 P.2d 1174 (1983). Wonders correctly points out that although the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights are nearly identical in wording, our’Supreme Court may construe § 15 independent of the Fourth Amendment. Moreover, the Kansas Supreme Court may interpret the Kansas Constitution to afford Kansas citizens more protection from governmental intrusion than that granted by the United States Constitution. See State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Nevertheless, because our Supreme Court has never extended state constitutional protections beyond federal guarantees, we believe the adoption of the plain feel exception is consistent with precedents of our Supreme Court. 252 Kan. at 826.
Scope of a Terry Frisk
Next, Wonders argues that Ford’s pat-down of him exceeded the scope set out in Dickerson and Terry. Although the United States Supreme Court recognized the plain feel exception, it determined that because the officer never thought the lump was a weapon, squeezing, sliding and otherwise manipulating the pocket’s contents constituted an unlawful search. The Court held that while Terry entitled the officer to place his hands on respondent’s jacket and to feel the lump in the pocket, his continued exploration of the pocket after he concluded that it contained no weapon was unrelated to the sole justification for the search under Terry. 508 U.S. at 379. To determine whether Ford’s search was lawful, we must analyze in detail the facts surrounding the search.
At the preliminary hearing and during the suppression hearing, Ford testified that he conducted an initial pat-down of Wonders’ entire body. Ford testified that this initial search did not reveal any weapons or bulges which might be weapons. Ford returned to the left front pants pocket, where he had felt a bulge, and searched the pocket again by placing the palm of his hand flat on the object. The initial search took from 10 to 12 seconds. Ford’s second search of the front pocket lasted approximately 3 seconds. Next, Ford asked Wonders what was in his pocket. When Wonders did not answer, Ford reached in and removed the pocket’s contents. Ford testified that “Mr. Wonders’ initial pat-down revealed rolling papers and clear plastic baggies containing green vegetation.” Specifically, Ford removed a lighter, a package of Randy’s brand rolling papers, and three clear plastic baggies of marijuana. The record does not indicate the order in which the items were removed from the pocket. Ford testified that he did not manipulate, squeeze, or push the pocket’s contents because it was “immediately apparent” to him that the pocket contained a baggie of marijuana. Ford testified as follows:
“Q. [Defense counsel] Okay. And when you patted him down did you first pat-down his chest?
“A. Yes.
“Q. And you didn’t find anything?
“A. No.
“Q. Then you started down to the lower body. Did you just pat him down completely first or did you go directly to his front pocket?
“A. It was a complete pat-down initially.
“Q. And during that initial pat-down of the lower body did you find any bulges that would make you think there was a weapon?
“A. No.
“Q. But you went back and then searched his pocket?
“A. The — I felt — what I did feel in his pant pocket was a bulge, and I did at that time ask Mr. Wonders what was in his pocket, there was no reply, and that’s when I did locate the marijuana in his pocket.
“Q. But it wasn’t a bulge that would indicate to you there was a weapon in the pocket?
“A. No.”
In denying Wonders’ motion to suppress, the trial court stated:
“Deputy Ford was in the midst of his pat-down search when his palm touched the front pocket containing the bulge. He completed his pat-down before returning to the bulge, although he testified that he knew immediately that it was, in fact, a baggie of marijuana. Thus, in this case, there was none of [the] squeezing, sliding and manipulating of the object which the Dickerson court found to be prohibited.”
In concluding that its determination was based mainly on the officer’s credibility, the trial court stated:
“In order for the Court to grant the motion to suppress, I would have to find that the testimony of the officer lacked credibility when he stated that it was immediately apparent to him when he was patting down the defendant that the bulge in his front pocket was a baggie of marijuana. I would likewise have to discredit his testimony that a baggie of marijuana in this situation has a ‘consistent feel’. Given the training and experience of the officer, the Court cannot do this.”
The trial court’s analysis departs significantly from that of the United States Supreme Court in Dickerson. Specifically, the United States Supreme Court analyzed the facts surrounding the search to determine whether the search exceeded the scope of Terry. Here, the trial court’s memorandum does not address several factors surrounding the search. For example, Ford testified throughout the hearing that he was searching for weapons as well as drugs and paraphernalia. Ford specified that his search was not limited to a search for weapons. Further, Ford testified that after determining that Wonders was not armed, he initiated a second search of Wonders’ front pants pocket. Ford then asked Wonders what was in the pocket. Each of these factors implies that the contents of the pocket were not immediately apparent to Ford. However, the trial court’s memorandum does not address these facts.
The trial court gave great weight to Ford’s testimony that the contents of the pocket were immediately apparent to him. Likewise, in Dickerson, the officer testified that despite never thinking the lump was a weapon, he did believe that it was crack cocaine. In fact, he was “ ‘absolutely sure’ that the substance was crack cocaine.” State v. Dickerson, 481 N.W.2d 840, 849 (Minn. 1992). While the United States Supreme Court considered this testimony, it was not dispositive. The Court also discussed the fact that the officer continued his search after he determined that Dickerson was not armed. The Court found that “the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to ‘[t]he sole justification of the search [under Terry:} . . . the protection of the police officer and others nearby.’ [Citation omitted.]” Dickerson, 508 U.S. at 378. Because the Minnesota trial court did not make specific findings as to when the officer in Dickerson determined the nature of the contraband, it is unclear what weight the Court gave to the officer’s testimony. However, it is clear that the officer’s testimony as to his knowledge concerning the contraband did not end the Court’s inquiry.
In its written decision denying the motion to suppress, the trial court cites two recent cases: United States v. Ashley, 37 F.3d 678 (D.C. Cir. 1994), and United States v. Craft, 30 F.3d 1044 (8th Cir. 1994). As Wonders correctly argues, these cases are distinguishable, as both concern consent searches. While the Ashley and Craft courts cited Dickerson in determining whether the scope of the consent searches exceeded the consent given, the analysis is markedly different from the analysis of a Terry search. Consequently, these cases are not very helpful. However, some courts have applied Dickerson to Terry stops factually analogous to the instant case.
For example, in United States v. Mitchell, 832 F. Supp. 1073 (N.D. Miss. 1993), officers observed a group of men huddled in front of a store. The officers were there because of complaints of gambling and drug activity at the store. Upon seeing the officers, Oscar Mitchell, who had been in the group, began to walk away. Mitchell was wearing a black leather jacket which was zipped to the neck. The court found that Mitchell’s dress despite the warm weather, his failure to acknowledge the officer’s orders to stop, and the fact that he was leaving a group in a gambling posture (some kneeling and some standing in a tight group) gave the officers rea sonable suspicion of criminal activity. At this point, the officers began a pat-down search for weapons.
“Officer Trader felt a bulge in defendant’s left jacket pocket, and he called out to Officer Morgan, T got something.’... Officer Trader testified that he knew right away that what he felt was not a weapon. Officer Trader asked Morgan to feel MitcheE’s left jacket pocket, and Morgan patted down the outer clothing of the pocket. Officer Morgan then asked MiteheU what was in his pocket. Mitchell aEegedly gave a deep sigh but refused to answer.” 832 F. Supp. at 1075.
The officers eventually reached into the pocket and retrieved a brown paper sack containing a white athletic sock. Inside the sock, the police found six small plastic bags each containing crack cocaine. Mitchell was arrested for possession of crack cocaine. The Mitchell court analyzed the facts of the case under Terry and Dickerson. Although the court found that the facts justified the officers’ search of Mitchell, the court concluded that the search exceeded Terry’s limitations. Significantly, the officers testified that the cocaine was “ Immediately apparent’ ” upon feeling the outer pocket of the jacket. 832 F. Supp. at 1078. Although the officers were seasoned veterans, the court found that the officers could not have determined that the substance in Mitchell’s pocket was crack cocaine. The court emphasized that the officers’ search, after determining that Mitchell was not armed, was unlawful as it exceeded the bounds of a Terry search. The court stated:
“[Wjhen Officer Trader began the initial patdown of Oscar MiteheU, Mr. MiteheU was in a kneeling position . . . with his hands locked behind his head. After the initial patdown, Officer Trader knew that MiteheU was not carrying a weapon. At that point, the officers were out of the Terry zone of danger. In other words, the objectives of a Terry search for a weapon had been fulfilled. However, the search was continued when Officer Morgan felt of the area outside of the pocket and when Officer Fulton reached into the pocket to retrieve the paper sack. After concluding that Mitchell was unarmed, the continuation of the search by the officers transformed the encounter from a weapons search into an evidentiary probe. As emphasized in Minnesota v. Dickerson, . . . such evidentiary searches are of the type that Terry expressly refused to authorize.” (Emphasis added.) 832 F. Supp. at 1079.
The Mitchell court considered all of the facts surrounding the search in determining that the officers’ search had exceeded Terry’s limits. The officers’ testimony was not dispositive. Moreover, the Mitchell court did not confine its analysis to whether the officers squeezed or manipulated the bulge in the pocket but found that even an additional pat-down exceeds Terry’s limited scope once it has been determined that the suspect is not armed.
Similarly, in United States v. Winter, 826 F. Supp. 33 (D. Mass. 1993), the court found that a search, ostensibly for weapons, had exceeded Terry’s limited scope. There, after an initial pat-down, the officer determined that tire defendant was not armed. However, the officer conducted a second pat-down and retrieved a bag of money from the defendant’s pocket. The court suppressed the evidence and found that
“[the officer’s] initial pat frisk of Schiavo’s outer garments was sufficient to convince [the officer] that Schiavo was not carrying a weapon, thereby eliminating the sole justification for a further protective search. The aim of [the officer’s] further inquiry into the contents of the bulge in Schiavo’s jacket, as well as the search of Schiavo’s pockets, could not therefore have been the protection of himself and others, but was rather, the discovery and preservation of contraband. . . .
“In sum, [the officer] should have terminated his search as soon as he had ascertained that Schiavo was not carrying any weapons on him, which was immediately after the pat frisk of Schiavo’s outer garments.” 826 F. Supp. at 37.
The Winter court found it significant that the officer testified that one purpose of searching the defendant was to find the serialized currency. 826 F. Supp. at 37. See also United States v. Taylor, 997 F.2d 1551, 1554 (D.C. Cir. 1993) (impermissible for officers to conduct second frisk, after establishing that suspect was not armed, to identify object in suspect’s pocket); United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994) (upholding suppression of evidence where officer could only identify lump as “a hard, flat angular object”); United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993) (unlawful plain feel seizure where officer felt a little bump in suspect’s pants pocket, further fingered the bump, and then determined object was something “squishy”; however, evidence admissible as fruit of consent search); United States v. Ross, 827 F. Supp. 711, 719 (S.D. Ala. 1993), aff’d 19 F.3d 1446 (11th Cir. 1994) (police officer’s discovery of matchbox in defendant’s underwear during pat-down did not justify his removal of box and seizure of cocaine in it).
Significantly, some courts have upheld Terry searches yielding “plain feel” contraband. See Dickerson v. United States, 677 A.2d 509, 513-14 (D.C. 1996) (court upheld search where officer immediately recognized plastic bags concealed in crotch area of defendant’s shorts as narcotics); United States v. Hughes, 15 F.3d 798, 802 (8th Cir. 1994) (upholding plain feel seizure of crack cocaine where detective testified that his “first impression was that the object was contraband”); United States v. Rodney, 956 F.2d at 295, 298 (D.C. Cir. 1992) (after feeling small, rock-like objects in suspect’s groin area during frisk search, police officer had probable cause to arrest and could retrieve drugs).
While this court accepts the trial court’s findings of fact, this court still determines whether the trial court properly applied the law to those facts. Here, when Ford failed to find any weapons on Wonders after the initial pat-down, Ford’s continued pat-down of Wonders’ pocket after he determined that it contained no weapon was unrelated to the sole justification for the search under Terry. Moreover, Ford asked Wonders what was in the pocket. These facts do not show that Ford immediately knew that the plastic baggies contained marijuana. For the plain feel exception to apply, the object’s incriminating character must be immediately recognized.
Furthermore, at the preliminary hearing and during the suppression hearing, Ford testified that once he found drug paraphernalia in Garcia’s car, he patted down the occupants of the car not only for weapons but also for additional drugs or paraphernalia. As stated earlier, Terry permits a limited protective search for weapons but does not allow a general exploratory search for evidence of criminal activity. Based on these facts, Ford exceeded the permissible limits for a Terry search.
Another factor that we have not discussed is Ford’s lack of formal training in drug detection. Ford admitted that he did not have any formal academy training in drug detection. Ford’s experience was the result of continuing education, the D.A.R.E. program, and 6 years of routine patrol. D.A.R.E. is a drug prevention program designed to teach school children the dangers of drugs in an attempt to curtail drug use at an early age. Ford’s D.A.R.E. training experience consisted of the instructor showing the class what some drugs and drug paraphernalia looked like.
Moreover, Ford testified that he could not describe what a baggie of marijuana felt like. Consequently, to Ford, the marijuana baggies had no distinctive feel. In United States v. Pace, 709 F. Supp. 948, 955 (C.D. Cal. 1989), aff’d 893 F.2d 1103 (9th Cir. 1990), the court explained that the sense of touch is as reliable as the sense of sight: “When objects have a distinctive and consistent feel and shape that an officer has been trained to detect and has previous experience in detecting, then touching these objects provides the officer with the same recognition his sight would have produced.” But as we stated earlier, Ford was unable to describe what a baggie of marijuana felt like, and we have previously discussed Ford’s lack of formal training in drug detection.
In stating that the plain feel doctrine can be abused, the court in Dickerson v. United States warned: ‘We recognize that this plain-feel doctrine can be abused. Trial courts must be careful to assure that a police officer’s ‘immediately apparent’ recognition of a concealed drug package ... is not too casually claimed or accepted.” 677 A.2d at 512.
For the above reasons, Ford’s seizure of the baggies of marijuana was unconstitutional and should be suppressed. Likewise, the cocaine that was seized during a later inventory search must be suppressed as “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
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Marquardt, J.:
Mary Ann Heany appeals from the district court’s order granting summary judgment to Larry W. Nibbelink, M.D., on her medical malpractice claim.
On January 5,1992, Heany gave birth to a healthy baby delivered by Dr. Nibbelink at Bethany Medical Center in Kansas City, Kansas.
Dr. Nibbelink, who practices gynecology and obstetrics, testified that after a delivery, he always examines the vagina, cervix, and placenta for abnormalities. The pathology report done on Heany’s placenta stated that the “maternal surface has a few small lacerations but when these are reconstituted, all of the cotyledons appear to be present.”
Heany testified that she made several phone calls to Dr. Nibbelink’s office in the weeks following her delivery, complaining of bleeding and pain. Dr. Nibbelink does not have any record of Heany’s phone calls until March 19, 1992. On that date, one of the other doctors in Dr. Nibbelink’s office took Heany’s call and recommended that she come to the office for a pelvic sonogram and pregnancy test.
Dr. Nibbelink’s notes from March 27, 1992, state that Heany’s sonogram “suggest retained products of conception.” However, Dr. Nibbelink testified that only a biopsy would show whether what was seen on the sonogram was actually “retained products of conception or whether [it was] something else.” Retained products of conception is where some portion of the pregnancy, typically placenta-like tissue or fetal tissue, remains in the uterus. When this occurs, it can cause bleeding and an increased risk of infection.
Dr. Nibbelink performed a hysteroscopy and dilation and curettage on Heany. Dr. Nibbelink also removed some tissue by sharp curettage for pathological evaluation. The pathology report of this tissue did not indicate that Heany’s complaints were caused by retained products of conception. Based on this report, Dr. Nibbelink concluded that Heany’s bleeding was caused by “dysfunctional uterine bleeding associated with her menstrual cycle returning to normal.”
Dr. Nibbelink testified that postpartum bleeding anywhere from 4 to 8 weeks would not be considered abnormal; however, “[i]f the bleeding persists an additional month [beyond the 8 weeks], then we begin to evaluate and wonder why it’s happening.”
On October 19, 1992, Heany consulted Dr. John W. Calkins concerning her treatment by Dr. Nibbelink. Dr. Calkins testified that there are numerous causes of postpartum bleeding.
In a letter to Heany s counsel, Dr. Calkins said, “I do not believe either [adenomyosis or pelvic congestion] are directly related to [Heany s] retained products of conception. However, I do feel that the prolonged bleeding and discomfort that [Heany] experienced after her delivery clearly are related to that condition and could have been dealt with more expeditiously.”
In his affidavit, Dr. Calkins stated:
“I am one of the treating physicians of Mary Ann Heany. I have never been retained as an expert witness, nor have I ever agreed to act as an expert witness in this matter. Further, I have advised counsel for both parties in the past that I would give testimony as a treating physician, which I did in a deposition, but that I will not render any opinions as to whether or not the standard of care was met in this case.”
In its memorandum decision, the district court stated that Dr. Calkins was listed as both a treating physician and an expert witness. However, Heany s witness list does not designate any of the witnesses as expert or nonexpert. During his deposition, Dr. Cal-kins was not asked to give an opinion on whether Dr. Nibbelink deviated from the standard of care, and Heany did not have another witness who would give an opinion on the standard of care issue.
In Heany’s petition, she alleges:
“6. Following delivery, Dr. Nibbelink failed to diagnose that Mary Ann had retained products of conception. Despite continued bleeding and pain, as well as her complaints to him, Dr. Nibbelink did not discover that Mary Ann had retained products until almost three months postpartum.”
Heany contended that Dr. Nibbelink’s treatment of her failed to meet the standard of care and constituted negligence.
Dr. Nibbelink filed a motion for summary judgment, arguing that Heany had failed to present sufficient expert testimony to support her claim. The district court granted Dr. Nibbelink’s motion.
Heany argues that the district court erred in concluding that she did not present sufficient expert testimony to support her claim for medical malpractice.
Summary judgment is appropriate when the documents on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); see Smith v. Milfeld, 19 Kan. App. 2d 252, 254, 869 P.2d 748, rev. denied 253 Kan. 861 (1993) (reversing district court’s granting of summary judgment in medical malpractice case).
. The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party opposing the motion. Boulanger v. Pol, 258 Kan. 289, 295, 900 P.2d 823 (1995). Similarly, “[i]n reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion.” Morriss v. Coleman Co., 241 Kan. 501, 502, 738 P.2d 841 (1987).
Summary judgment is a decision made as a matter of law, and this court’s review of that decision is unlimited. Security Benefit Life Ins. Corp. v. Fleming Companies, Inc., 21 Kan. App. 2d 833, 836, 908 P.2d 1315 (1995), rev. denied 259 Kan. 928 (1996).
In order to prevail in a medical malpractice action in Kansas, a plaintiff must prove the following three elements: “(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.” Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988). Every physician has the duty to use reasonable care and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians in the same or similar locations. Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), overruled on other grounds Boulanger v. Pol, 258 Kan. 289; see Roesch v. Clarke, 861 F. Supp. 986, 991 (D. Kan. 1994).
In a medical malpractice action, expert testimony is ordinarily required to establish the standard of care required of physicians in that particular area of medicine. See Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). Expert testimony is also ordinarily required to show that the doctor breached this standard of care. See Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978).
However, there is a common knowledge exception to this requirement that applies “where the lack of reasonable care ... is apparent to the average layman from common knowledge or experience.” Bacon, 243 Kan. at 307; see Webb, 223 Kan. at 490.
The record establishes that Heany suffered from extended postpartum bleeding. Dr. Calkins testified that he was not sure what was causing Heany’s symptoms. None of Heany’s complications fall within the common knowledge exception to the requirement of expert testimony in medical malpractice cases. See Webb, 223 Kan. at 490.
The record does contain Dr. Calkins’ letter stating that the retained products of conception likely caused Heany’s bleeding and should have been dealt with more expeditiously. Dr. Calkins’ letter vaguely criticizes Dr. Nibbelink’s treatment of Heany; however, the letter does not specify a standard of care that is required in cases in this particular area of medicine and does not state that Dr. Nibbelink’s treatment fell below any specified standard of care. See Webb, 223 Kan. at 490. Dr. Calkins never stated in his deposition that Dr. Nibbelink’s treatment of Heany fell below the standard of care. In fact, Heany had no expert testimony on the issues of standard of care or causation regarding Dr. Nibbelink’s treatment of her, and the deadline for naming such experts had passed prior to Dr. Nibbelink filing his motion for summary judgment.
We find that Heany did not present sufficient expert testimony to establish that any of her complications stemmed from a deviation of care by Dr. Nibbelink.
Heany argues that the district court erred by not granting her motion to compel, which sought access to the claim file of Dr. Nibbelink’s liability insurance carrier.
On September 15,1993, Heany’s counsel wrote to Dr. Nibbelink requesting copies of Heany’s medical records. At that time, the Kansas Medical Mutual Insurance Company (KaMMCO) provided Dr. Nibbelink’s professional liability insurance. On September 30, 1993, Marta Fisher Linenberger, a Topeka attorney, wrote the following letter to KaMMCO:
“You advised me today that a potential claim may be filed against Larry Nibbelink, M.D. As we discussed, I would like [KaMMCO] to investigate this matter and I request you or your designee to obtain records as necessary, evaluate the same, interview witnesses involved in the matter, and obtain expert evaluations as to negligence, causation, and damages for my evaluation and use.”
On November 15, 1993, Heany s counsel sent a demand letter to Dr. Nibbelink, stating a claim against Dr. Nibbelink for negligence. On December 30, 1993, Heany filed suit against Dr. Nibbelink, and the case was later dismissed without prejudice. On September 23, 1994, Heany filed the present action.
Heany filed a motion for discovery which requested that Dr. Nibbelink produce the complete claim file of any insurance company that had coverage for her claim. Dr. Nibbelink identified KaMMCO as an insurance company that might be liable under Heany’s claim. However, Dr. Nibbelink objected to producing the KaMMCO claim file, stating that “[t]he claim file contains work product and confidential information.”
Heany filed a motion to compel, requesting that the district court order Dr. Nibbelink to provide her with a full and complete copy of KaMMCO’s claim file as it existed prior to December 30, 1993, the date that she first filed suit. The district court denied Heany’s motion. Heany filed a motion to reconsider, but the district court declined to change its ruling.
Parties may obtain through discovery any matter that is relevant to the pending action unless the information or thing sought is privileged. K.S.A. 60-226(b)(l).
K.S.A. 60-226(b)(3) governs work product protection and provides in part:
“Subject to the provisions of subsection (b)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including such other party’s attorney, consultant, surety, indemnitor, insuror or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party’s case and that such party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impression, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.”
The discovery issue in this case is whether the claim file was prepared in anticipation of litigation by or for Dr. Nibbelink or by or for his representative.
To qualify for work product protection, a document or thing must be “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative.” K.S.A. 60-226(b)(3).
In Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 623, 592 P.2d 915 (1979), the court held that
“the initial investigation of a potential claim, made by an insurance company prior to the commencement of litigation, and not requested by or made under the guidance of counsel, is made in the ordinary course of business of the insurance company, and not ‘in anticipation of litigation or for trial’ as those terms are used in K.S.A. 60-226(b)(3).” (Emphasis added.)
See Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 985-86, 637 P.2d 431 (1981).
This case can be distinguished from Henry in that, here, the initial investigation or claim file was requested by counsel. However, the question remains as to whether the attorney who requested the investigation was a “representative” of Dr. Nibbelink. See K.S.A. 60-226(b)(3). The burden of proving the documents are protected is on the party asserting the protection. See Leatherman, Discovery of Insurance Adjustors Files Under 60-226(b)(3), 17 J.K.T.L.A. 18,19 (September 1993) (citing 8 Wright & Miller, Federal Practice and Procedure: Civil § 2024 [1970]).
In denying Heany’s motion for rehearing, the district court concluded:
“Plaintiff’s attorney contacted the doctors requesting medical records. The company contacted an outside attorney and requested directions on what should be done. The company then followed the directions of the attorney. Although it might have been better, or at least easier on this court, had the attorney been the present one before the court, the work was at the direction of an attorney hired to protect the interest of the insured at that time.”
Henry, 225 Kan. at 619, quotes from 8 Wright & Miller, Federal Practice and Procedure: Civil § 2024, as follows : “ Tt has always been clear that an attorney retained by an insurance company to represent a party enjoys the same immunity as an attorney retained directly by the party.’ ” (Emphasis added.)
. Linenberger, an attorney, was acting on behalf of the insurance company in directing an investigation of a potential claim.
The district court did not abuse its discretion in ruling that Heany was not entitled to the KaMMCO claim file. K.S.A. 60-226(b)(3).
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Marquardt, J.:
Darryl S. Ford appeals from the district court’s denial of his motion to withdraw his guilty plea to one count of attempted robbery and two counts of theft.
The State charged Ford with one count of robbery, two counts of theft of property of a value of less than $500, and one count of forgery. Pursuant to a plea agreement, the State filed an amended information, charging Ford with one count of attempted robbery and two counts of theft of property of a value of less than $500.
At the plea hearing, the district court read the amended information to Ford and made sure that Ford understood the constitutional rights he would give up by entering a guilty plea.
“THE COURT: You heard what they’ve talked about in regards to what they dismissed and what they believe your sentence may or may not be. I need to make sure you understand this, that even though there’s that plea agreement between the State and your attorney, a court — the court’s not bound by that agreement. It could still do what it thought was right regarding your case. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Knowing that, do you still want to plead guilty?
“THE DEFENDANT: Yes, sir.”
The district court then informed Ford of the maximum sentence that he could receive on each count. As to the attempted robbery charge, the following exchange took place:
“THE COURT: . . . [T]his is a severity level seven crime. The way the Court sentences defendants now depends on the severity level of the crime they’re convicted of, for you, severity level seven, and your criminal history. I don’t know if you have one or not. But there would be a presentence investigation report done on you and it would show what your criminal history was. If you had no record, then you’d be sentenced under criminal history I, and there’s the possibility you could be sentenced anywhere from eleven to thirteen months, and in that box [there is] also a presumption for probation. Now, if you go all the way across that line to criminal history A which means you have three or more person felonies in your criminal history, then there is a possibility you could be sentenced anywhere from thirty, thirty-two, or thirty-four months, and that box is imprisonment. And knowing that’s the possible range that you might receive, are you still pleading guilty to this — these crimes?
“THE DEFENDANT: Yes, sir.”
The presentence investigation (PSI) report indicated that Ford had two previous person felonies and that his criminal history score was a B. Ford’s criminal history score removed him from the presumptive probation block of tire sentencing guidelines grid. See K.S.A. 21-4704. After receiving the PSI report, Ford moved for a continuance of his scheduled sentencing and challenged his criminal history. Ford subsequently filed a motion to withdraw his plea.
At the hearing on Ford’s motion to withdraw his plea, the State and defense counsel both indicated that the “NCIC read-out” which was in the State’s file at the time of the plea negotiations indicated that Ford had only one person felony. Ford argued at the sentencing hearing that he had pled guilty because he believed that he had a chance of getting probation.
During the hearing to accept his plea, the district court had asked Ford, “Has anyone promised you, guaranteed you probation in regards to this plea?” Ford responded, “No, sir.”
Ford admitted that he knew of his prior convictions but stated that he did not understand whether these were considered to be person or nonperson felonies. Defense counsel argued that it was fundamentally unfair to shift the burden to Ford to determine whether his criminal history contained person or nonperson felonies prior to pleading guilty.
The district court denied Ford’s motion to withdraw his plea. It then sentenced him to 29 months in prison on the attempted robbery charge and 12 months in county jail on each of the theft charges, with the three sentences to run concurrently.
Ford argues that the district court abused its discretion in refusing to allow him to withdraw his guilty plea because the State and defense counsel believed that his criminal history contained only one person felony at the time of his plea when it actually contained two.
A district court’s denial of a motion to withdraw a plea will be reversed only if the district court abused its discretion. See State v. Johnson, 258 Kan. 607, 610, 907 P.2d 140 (1995). If reasonable persons could disagree as to the propriety of the decision of the district court, then the district court did not abuse its discretion. Johnson, 258 Kan. at 611.
K.S.A. 22-3210(d) provides:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Ford moved to withdraw his plea before sentence was imposed. “To justify a motion to withdraw the plea prior to sentencing, the motion should allege that defendant is not guilty of the offense charged and that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.” Johnson, 258 Kan. at 610-11.
“In determining whether a defendant should be allowed to withdraw his plea, the trial court should consider whether the defendant was represented throughout by competent counsel; whether he was misled, coerced, mistreated, or unfairly taken advantage of; and whether his plea was freely, fairly, and understandingly made.” State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).
K.S.A. 21-4707(c)(4) addresses the discovery of prior convictions subsequent to the acceptance of a guilty plea:
“The offense severity level of a crime for which the court has accepted a plea of guilty or nolo contendere pursuant to K.S.A. 22-3210 and amendments thereto, or of a crime of which the defendant has been convicted shall not be elevated or enhanced for sentencing purposes as a result of the discovery of prior convictions or any other basis for such enhancement subsequent to the acceptance of the plea or conviction. Any such prior convictions discovered after the plea has been accepted by the court shall be counted in the determination of the criminal history of the offender.” (Emphasis added.)
Thus, the Kansas Sentencing Guidelines Act provides that any prior convictions discovered after a plea has been accepted shall be counted in a defendant’s criminal history. It should be noted that Ford never alleged that he was not guilty. However, the ques tion remains as to whether Ford’s plea should be deemed involuntary because he relied on the criminal history information that was provided by the State.
When accepting a plea of guilty in a felony case, the district court must inform the defendant of the consequences of the plea including the specific sentencing guidelines level of the crime and the maximum penalty that may be imposed upon acceptance of the plea. State v. Reed, 248 Kan. 506, 508, 809 P.2d 553 (1991). The district court must also address the defendant personally and determine that the plea is being made voluntarily with understanding of the nature of the charge and the consequences of the plea. K.S.A. 22-3210(a)(3). These federal constitutional protections apply to the states through the Due Process Clause. Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); State v. Shaw, 259 Kan. 3, 10, 910 P.2d 809 (1996); Reed, 248 Kan. at 508. If a plea is induced by promises or threats that deprive it of its voluntary character, it is void, and the conviction is open to collateral attack. White v. State, 203 Kan. 687, 690, 455 P.2d 562 (1969).
Ford argues that his plea was not “intelligently” made because he relied on the representation of the State as to his criminal history at that time. There is no recourse for a plea unintelligently made.
Ford also argues that the Kansas system of advising a defendant of the entire range of punishment possible for an offense is too broad to support a knowing plea. In Kansas, due process requires that the district court inform a defendant of the maximum possible sentence. K.S.A. 22-3210(a)(2); Reed, 248 Kan. at 508. Here, the district court complied with this requirement. While it may be preferable to require the State to present an accurate criminal history prior to the district court accepting a plea bargain, due process does not require that this be done.
Under K.S.A. 21-4707(c)(4), prior convictions discovered after a plea has been accepted are properly considered in a defendant’s criminal history at sentencing.
Ford argues that a plea bargain is a contract between a defendant and the State and that a defendant may obtain specific performance of promises made by the prosecution in exchange for a guilty plea. See State v. Ratley, 253 Kan. 394, 401, 855 P.2d 943 (1993). Ford argues that “[t]o follow the contract law analogy, the defendant must understand both the burden and the benefit of the bargain before waiving his trial rights.”
The flaw in Ford’s argument is that he did not contract for a specific sentence or stipulate to a certain criminal history — nor could he. See K.S.A. 21~4713(f) (providing that the State may not agree to exclude prior convictions from the criminal history of a defendant); State v. Heffelman, 256 Kan. 384, 395, 886 P.2d 823 (1994) (the district court is not bound in sentencing by any plea agreement a defendant may have reached with the State). Ford agreed to plead guilty in exchange for the robbery charge being reduced to attempted robbery and the forgery charge being dismissed. The State did not breach this agreement.
Ford argues that his guilty plea to attempted robbery must be set aside because the district court did not establish a factual basis for all the elements of that offense.
The State argues that Ford did not present this argument to the district court and, therefore, he cannot raise it for the first time on appeal.
The general rule is that an argument not presented to the district court is not properly before the appellate court. See State v. Solomon, 257 Kan. 212, 221, 891 P.2d 407 (1995). Additionally, when constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993).
There are three exceptions to the general rule:
“ ‘(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
‘(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
‘(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.’ [Citation omitted.]” State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995).
This case arguably fits either (1) or (2) of these exceptions.
When accepting a plea, the district court must establish that there is a factual basis for the plea. K.S.A. 22-3210(a)(4). “In establishing a factual basis for the plea, the trial court must establish that all elements of the crime charged are present.” Shaw, 259 Kan. at 7 (reviewing cases where convictions have been reversed because of a failure to sufficiently establish a factual basis for the plea).
“The requirement of a factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged, by the evidence presented to the court by the prosecutor, by a statement of the facts made by the defendant at the hearing, or if the judge accepting the defendant’s plea conducted the defendant’s preliminary examination. [Citation omitted.]” Shaw, 259 Kan. at 10-11.
In Widener v. State, 210 Kan. 234, 238-39, 499 P.2d 1123 (1972), the district court accepted a defendant’s guilty plea to a burglary charge. In establishing the factual basis for the plea, the district court asked, “Mr. Widener, do you plead guilty to this because you did in fact burglarize this concession stand?” The defendant answered, “Yes, sir.” 210 Kan. at 239. The Widener court noted that the district court had made a copy of the information available to the defendant and that the defendant had an opportunity to discuss the matter with his attorney. 210 Kan. at 238-39. The information stated the details of the crime and the essential elements of the offense. The Widener court held that “all this was sufficient to establish a factual basis for the plea.” 210 Kan. at 240.
After Ford told the district court that he wanted to plead guilty, the court read each of the charges to him and asked if he intended to plead guilty to each of them. Ford responded in the affirmative, and then the following transpired:
“THE COURT: Okay. If you can take these one at a time. In Count One, I need for you to tell me in your own words what it is that you did that makes you believe you’re guilty of this crime.
“THE DEFENDANT: Okay. Count One, the attempted robbery?
“THE COURT: Right.
“THE DEFENDANT: Reason I feel I’m guilty, because I went into the store with the mind of getting some cigarettes. I got the cigarettes and then I left the store, and I didn’t bump into anyone or anything like that, but I feel guilty because I did go in the store and get the cigarettes.
“THE COURT: You said get the cigarettes, did you have permission to pay for them or—
“THE DEFENDANT: No, I didn’t.”
Ford correctly notes that robbery is defined as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. However, Ford pled guilty to attempted robbery, not robbery. “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
As in Widener, 210 Kan. at 238-39, the district court established that Ford had gone over the charges against him with his counsel. Here, however, the amended information states:
“[0]n or about the 5th day of July, 1994, one Darryl S. Ford did unlawfully and willfully commit an overt act toward the perpetration of the crime of Robbery, as defined by K.S.A. 21-3426, with the intent to commit said crime, but failed or was prevented or intercepted in the execution of said crime, in violation of K.S.A. 21-3301. (Attempted Robbery, Severity Level 7, Person Felony).”
Thus, while the information charges Ford with attempted robbery and cites K.S.A. 21-3426, it does not expressly state the element of force or threat of force to a person.
The original information stated:
“[0]n or about the 5th day of July, 1994, one Darryl S. Ford did unlawfully, feloniously and willfully take property, to-wit: cigarettes, from the presence of another, to-wit: Guillermo Flores, by force to the person of Guillermo Flores, in violation of K.S.A. 21-3426. (Robbery, Severity Level 5, Person felony).” (Emphasis added.)
Thus, while the original complaint states the element of taking from the presence of another, the complaint to which Ford pled guilty does not.
At the evidentiary preliminary hearing, Ford was informed of the original charges against him, which included the elements of each charge.
Under K.S.A. 22-3210(a)(4) and the interpretive case law, the question remains whether the district court adequately established a factual basis for accepting the plea. However, failure to strictly comply with the explicit requirements of K.S.A. 22-3210 is harmless error if, upon review of the entire record, it can be determined that the plea was knowingly and voluntarily made. Noble v. State, 240 Kan. 162, 164, 727 P.2d 473 (1986); see Heffelman, 256 Kan. at 394-95. Strict compliance is not required if the purpose of the rule is otherwise served. James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976).
In State v. Grant, 19 Kan. App. 2d 686, 697-98, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994), the factual basis presented to the district court by the prosecutor at the plea hearing omitted the “intent to defraud” element of forgery. While the complaint contained the intent to defraud element, the record did not indicate whether the State provided the defendant with a copy. The defendant acknowledged that he understood the charge against him as stated in the complaint and admitted that it was true. This court found that any error created by the omission of the intent to defraud element from the factual basis alleged at the hearing was harmless error. 19 Kan. App. 2d at 698.
The charges in the original information included the element of force or threat of bodily harm. Upon review of the entire record, we believe that Ford’s plea was knowingly and voluntarily made notwithstanding the absence of the element of force or threat of bodily harm from the plea transcript and the amended information.
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Lewis, J.;
Defendant Gregory J. Marino was convicted, after a trial to the court, of false impersonation, a class B misdemeanor. He was sentenced to a term of 90 days in jail and 2 years on probation. He appeals, raising a plethora of issues.
Defendant is a graduate of the University of Kansas and Harvard Law School. However, he is not now, and was not at the crucial times involved in this case, a licensed practicing lawyer of the state of Kansas. It does not appear from the record that defendant has ever been a licensed practicing lawyer in this state, although he may have had a temporary permit to practice for a short time. Defendant is no stranger to the Court of Appeals. In 1990, defendant was convicted of aggravated failure to appear. He appealed that conviction to this court, and we affirmed his conviction in State v. Marino, case No. 65,311, unpublished opinion filed July 26, 1991, rev. denied 249 Kan. 777 (1991). In 1989, defendant was convicted of possession of cocaine, possession of molotov cocktails, and carrying a concealed weapon. He appealed those convictions to this court, and we affirmed his convictions in State v. Marino, case No. 64,767, unpublished opinion filed April 26, 1991, rev. denied 249 Kan. 777 (1991).
In this case, it was defendant’s decision to appear on a local access cable program in Johnson County that ultimately proved to be his undoing. The name of the program was “Around Town” and was hosted by Anne Debus. Defendant’s appearance on the show was taped in July 1993 and was aired four times in September 1993. The purpose of defendant's appearance was to promote a screenplay, which he had written and hoped to parlay into a locally produced movie.
At the beginning of the program, Ms. Debus obtained some background information from defendant and then the following exchange took place:
Ms. Debus: “There are also people that may look at you and say, That face is familiar. I know that man. He’s my attorney.’ ”
Defendant: [No audible response.]
Ms. Debus: “You’re a lawyer?”
Defendant: “Yeah, I’ve been practicing here in Kansas City off and on for about the last 8 years.”
Ms. Debus: “Right out here in our back yard?”
Defendant: “That’s right.”
Ms. Debus: “Down here on College Boulevard?”
Defendant: “That’s right.”
Ms. Debus: “You do criminal law and . . . ?”
Defendant: “Divorce.”
Someone called the attention of the Johnson County District Attorneys office to the program and, in January 1994, defendant was charged with false impersonation of a lawyer. The charges were based on the comments made by defendant on “Around Town,” which are set forth above.
Defendant was charged with and convicted of a violation of K.S.A. 21-3824(a), which reads: “False impersonation is representing oneself to be a public officer or public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the state of Kansas, with knowledge that such representation is false.”
Defendant raises no fewer than 16 specifications of error. We will attempt to deal with each issue as briefly as possible.
DISCRIMINATORY PROSECUTION
Defendant suggests that the Johnson County District Attorney prosecuted him because of “a personal animus” and that the prosecution was discriminatory in nature.
“Discriminatory prosecution is recognized as a valid defense to a criminal prosecution based on the Equal Protection Clause of the Fourteenth Amendment.” State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 1, 646 P.2d 1091 (1982).
In the Murray opinion, the court stated:
“To be successful, a defendant alleging discriminatory prosecution must show: 1) Others who are similarly situated are not generally prosecuted for conduct similar to that for which defendant is being prosecuted, and 2) the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion. [Citations omitted.]” 231 Kan. at 528.
The problem with defendant’s argument concerning discriminatory prosecution is that he produced absolutely no evidence to support the claim. There is nothing in the record to show that others had engaged in similar conduct without prosecution and nothing to prove that defendant was singled out for prosecution. The mere facts that there do not appear to be other prosecutions under this statute or that the Johnson County District Attorney may not personally like defendant simply do not show that the prosecution was discriminatory.
There is no evidence in the record to support the test laid down by the Kansas Supreme Court in Murray v. Palmgren as set forth above. Defendant’s argument is without merit.
IS K.S.A. 21-3824 VOID FOR VAGUENESS?
This is a constitutional question. Determining a statute’s constitutionality requires an interpretation of the statute. “An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). In addition: “[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
The defendant contends K.S.A. 21-3824 is unconstitutionally vague.
“The criminal standard [for determining when a statute is unconstitutionally vague] requires a determination of whether the statute’s
‘language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ [Citation omitted.]” 251 Kan. at 243.
The Supreme Court in Boatright set the standard by which this issue is to be determined when it said: “We hold the language of K.S.A. 1991 Supp. 74-8810(g) conveys a sufficiently definite warning when measured by common understanding and practice to apprise the public of the prohibited activity. Hence, we hold the statute is not unconstitutionally vague.” 251 Kan. at 245.
A statute is not void for vagueness if it apprises the public of the activity prohibited when measured by “common understanding and practice.” 251 Kan. at 245. As tested by that standard, the statute in question is not void for vagueness.
K.S.A. 21-3824 makes it a crime to claim or represent that one is licensed to practice or engage in any profession or vocation for which a license is required in this state while knowing that such representation is false. We conclude that there is nothing vague about the definition of the crime as set forth in the statute and that no one need necessarily guess at the meaning of the statute. There is certainly nothing vague about the activity prohibited. As a Harvard Law School graduate, defendant knew that a license was required to practice law in the state of Kansas, knew that he did not have such a license, and knew that the statute prohibited him from claiming to be a licensed lawyer.
Defendant argues the statute is unconstitutionally vague because it does not define “representing” or “engaged.”
“Legislation is unconstitutionally vague when one cannot reasonably understand that his contemplated conduct is within the scope of that proscribed by the legislation.....However, ‘ultimate, god-like precision’ is not required by the Constitution. [Citation omitted.] The Constitution ‘does not require impossible standards’; it is satisfied by statutory language which ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.’ [Citation omitted.] That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. [Citations omitted.]” Hearn v. City of Overland Park, 244 Kan. 638, 640-41, 772 P.2d 758 (1989).
We reject the argument that the words “representing” and “engage” are so vague or hypertechnical that a person with common intelligence would have to guess as to their meaning. The statute makes it a crime to claim to be a licensed lawyer when one is not. That is clear, and no one need guess at the meaning of the statute.
We hold that K.S.A. 21-3824 is not unconstitutionally vague. Defendant’s argument to the contrary is without merit.
IS K.S.A. 21-3824 OVERBROAD?
Defendant next argues that the statute in question is unconstitutionally overbroad. That concept was discussed in City of Wichita v. Wallace, 246 Kan. 253, 264, 788 P.2d 270 (1990), as follows:
“ ‘[Vjagueness’ and ‘overbreadth’ are sometimes used interchangeably or a clear distinction is not made between the two terms. However, these terms are not synonymous. A statute or ordinance can be clear and unambiguous but may nevertheless be overbroad if it prohibits constitutionally protected conduct. [Citation omitted.] In State ex rel, Murray v. Palmgren, 231 Kan. at 533, we said: “While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected.’ [Citations omitted.]” 246 Kan. at 264.
“Obviously, almost every law is potentially applicable to constitutionally protected acts. A successful overbreadfh challenge can thus be made only when 1) the protected activity is a significant part of the law’s target, and 2) there exists no satisfactory method of severing that law’s constitutional from its unconstitutional applications.” State ex rel. Murray v. Palmgren, 231 Kan. at 533. For instance, in Murray, the court said:
“Elected officials have no constitutional right to conduct government affairs behind closed doors. Their duty is to inform the electorate, not hide from it. The KOMA places no constraints on purely private discussions by public officials. It regulates only the conduct of public business. As such the KOMA is not unconstitutionally overbroad.” 231 Kan. at 534.
In this case, the only prohibited act is to represent that one is licensed to practice law when one is not. There is no constitutionally protected act which is prohibited or curtailed. We hold that the statute is not constitutionally overbroad.
Defendant seems to want us to believe that all he said was that he was trained as an attorney and that he never claimed to practice law. His argument is derailed by the record of the television interview. He very clearly told the interviewer that he had practiced law around the area off and on for about 8 years. This was clearly a representation that he was a licensed practicing attorney, it was clearly false, and it was a violation of the statute in question.
BEYOND THE POLICE POWER
Defendant next argues that it is beyond the police power of the State to criminalize the actions prohibited by K.S.A. 21-3824.
This argument is completely without merit, and we reject it based on the following Kansas decisions: Robert L. Rieke Bldg. Co. v. City of Overland Park, 232 Kan. 634, 639, 657 P.2d 1121 (1983); State ex rel. Stephan v. Lane, 228 Kan. 379, 384, 614 P.2d 987 (1980); Kansas State Bd. of Pharmacy v. Wilson, 8 Kan. App. 2d 359, 657 P.2d 83 (1983).
The cases cited above establish that the State may take measures which are not unduly oppressive to protect against a legitimate menace to society. We consider it to be a legitimate menace to society for people to claim they are licensed lawyers when they are not. The means devised to protect against this threat is not unduly oppressive. We hold that the legislature clearly had the police power to enact K.S.A. 21-3824. Defendant’s arguments to the contrary are without merit.
SUFFICIENCY OF THE COMPLAINT
The complaint in this case alleged the following:
“[0]n or about the 15th day of July, 1993, through the 16th day of September, 1993, in the City of Overland Park, County of Johnson and State of Kansas, GREGORY J. MARINO did then and there knowingly, unlawfully, and willfully represent himself to be a person licensed to practice or engage in a profession for which a license is-required by the State of Kansas, to-wit: an attorney, with knowledge that such representation was false in violation of K.S.A. 21-3824 and K.S.A. 22-4502(l)(b).”
Defendant argues that the complaint was insufficient because it did not allege what specific actions by defendant constituted impersonating a lawyer. This argument is without merit.
“The sufficiency of the charging document is measured by whether: (1) it contains the elements of the offense intended to be charged, (2) it sufficiently apprises the defendant of what he or she must be prepared to meet, and (3) it is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. [Citations omitted.]” State v. Reed, 254 Kan. 52, 57, 865 P.2d 191 (1993).
We have read the complaint which is the subject of defendant’s claim of error. We conclude that it complies in every respect with the rule announced in State v. Reed. We do not hesitate to conclude that the allegations of the complaint were sufficient.
We also feel compelled to add that even if we were to assume the complaint was insufficient, it would be of little aid to defendant. There is absolutely nothing in the record to indicate that defendant was prejudiced in any fashion by the wording of the complaint in this case. See State v. Bird, 238 Kan. 160, 168, 708 P.2d 946 (1985).
AMENDMENT OF COMPLAINT
At the hearing on defendant’s motion in limine and motion to dismiss, the trial court and the parties discussed adding an additional charge to the complaint. The State indicated it had evidence that defendant had stated he was a practicing lawyer in a magazine article. The State indicated it was considering adding a second count to the complaint to allege that the magazine article was another violation of the law. This was a completely separate incident from the TV show and had nothing to do with the charges in the original complaint. In this context, the trial court gave the State 10 days to file an amended complaint to add this new charge. It also gave defendant 10 days after the new complaint was filed to file a motion for a jury trial.
The State did not file the amended charge discussed. However, a number of days after the 10-day time limit set by the court, the State filed a motion to amend its complaint, asking that it be permitted to correct a mistake in the time elements alleged in the complaint. Defendant objected, claiming the amendment violated the 10-day time limit earlier set by the trial court. The trial court disagreed and denied defendant’s motion.
We find no error in the trial court’s action. We have read the record, and the 10-day time limit set by the court related only to the filing of a second count charging a new incident of false impersonation. The amendment allowed by the court did not relate to the filing of a second count but only to the amendment of the dates alleged in the original complaint. The 10-day time limit set by the trial court for amending the complaint to add a new charge did not apply to the amendment allowed, and defendant’s arguments to the contrary are without merit.
We hold the trial court did not abuse its discretion in permitting the State to amend its complaint and that defendant’s substantial rights were not prejudiced by the amendment. See State v. Woods, 250 Kan. 109, 115, 825 P.2d 514, cert. denied 506 U.S. 850 (1992).
Defendant argues we should examine the trial court’s “bench notes” on this subject. We have examined the record on appeal; the bench notes are not in it, and we find no Rule 3.02 (1996 Kan. Ct. R. Annot. 17) request by defendant that they be included. The burden is on an appellant to designate a record sufficient to support his claims on appeal. McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). We hold the trial court did not err in permitting the State to amend its complaint to allege an additional date that was not set forth in the original document.
AMENDMENT BY INTERLINEATION
The trial court allowed the State to amend its complaint by interlineation. The complaint was amended to add the date of the taping of the interview in addition to the date it was aired as the dates on which defendant violated the statute. This was accomplished by adding the new date in handwriting to the original complaint.
Defendant argues he was prejudiced by the court’s failure to require the State to file an amended complaint. We disagree.
In State v. Dodd, 11 Kan. App. 2d 513, 515, 728 P.2d 402 (1986), we held that an oral amendment, made on the record, was sufficient. In this case, the complaint was amended on the record and by interlineation. This is plainly sufficient under the rule set forth in Dodd, and defendant’s claims to the contrary are without merit.
DEFENDANT’S REQUEST FOR A TURY TRIAL
K.S.A. 22-3404(1) requires that trial of misdemeanor offenses shall be made to the court unless a defendant requests a trial by jury “not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel.”
In the matter now under consideration, defendant did not request a jury trial within the time limit required by K.S.A. 22-3404(1). However, defendant now argues he should have been allowed to request a jury trial within 10 days of the trial court’s order allowing the State to amend its complaint by interlineation.
We have previously dealt with the propriety of the trial court’s allowance of the motion to amend filed by the State. The 10-day time period given to defendant to request a jury trial applied only if the State added a new, second count to its complaint. The State did not do so, and defendant’s right to request a jury trial out of time never matured. We hold that the trial court did not err in denying defendant’s request for a jury trial made long after the time period specified in 22-3404(1) had expired.
DEFENDANT’S PRETRIAL MOTION
Defendant complains that the trial court erred in failing to rule on his motion to dismiss when it was renewed on the day of trial.
The record shows that the trial court denied defendant’s motion to dismiss at a pretrial hearing. The renewal of the motion to dismiss on the date of trial was done by defendant’s counsel to protect the record on appeal. The comments made by defense counsel on the renewal of the motion to dismiss indicated he did not expect the trial court to reconsider his arguments again and to make new rulings on each of the several areas he mentioned. The motion to dismiss as presented on the day of trial was precisely the same motion previously denied by the trial court. There was no new evidence or allegations presented when the motion was renewed. We hold there was no reversible error by the trial court’s failure to rule on the motion to dismiss as renewed on the date of trial.
TRIAL COURT’S PREJUDICE
Defendant claims the trial court was prejudiced against him. He cites six specific examples which he claims demonstrate the trial court’s prejudice:
“The standard of judicial review is unlimited in a case alleging judicial misconduct during trial. The standard of judicial review refers to the legal scale used in weighing the sufficiency of the facts and circumstances giving rise to the alleged judicial misconduct. Where a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial. In a case in which judicial misconduct during trial is alleged, an appellate court is required to decide whether the defendant’s substantial rights to a fair trial have been prejudiced.” State v. Plunkett, 257 Kan. 135, Syl. ¶ 1, 891 P.2d 370 (1995).
We have examined all six of defendant’s examples of prejudice. We hold that none of those examples illustrates any undue prejudice by the trial court.
Defendant has failed to show that the trial court was prejudiced within the parameters of State v. Plunkett. There was no judicial misconduct that prejudiced defendant’s substantial rights to a fair trial. We reject defendant’s claim of reversible error on the ground of prejudice against him by the trial court.
AFFIDAVIT AS EVIDENCE
At trial, the affidavit of Carol Green, the Clerk of the Kansas Appellate Courts, was introduced into evidence to prove that defendant was not admitted to practice law in the state of Kansas.
The affidavit was admitted under K.S.A. 60-460(o)(2) as an exception to the exclusion of hearsay evidence. Defendant now complains that the admission of the affidavit was error because he was never given a copy of the affidavit as required by K.S.A. 60-461.
Defendant failed to raise this specific objection at trial. His only objection to the affidavit was lack of foundation. Defendant failed to raise the issue he now attempts to raise on appeal to the trial court. An appellant may not raise an issue on appeal that was not raised to the trial court. State v. Kliewer, 210 Kan. 820, 824-25, 504 P.2d 580 (1972).
EVIDENCE OF DEFENDANT’S LICENSING IN OTHER STATES
Defendant argues the State failed to meet its burden of proof when it failed to show he was not licensed to practice law in any other states.
This argument is totally without merit. The definition of false impersonation does not include an element that a defendant is not licensed to practice law in any other state. The State was required to prove only that defendant was not licensed to practice law in Kansas, not that he was not licensed in any other states. This was not part of its burden of proof, and defendant’s argument to the contrary is rejected.
STATE’S BURDEN OF PROOF
Defendant next argues that the State erred by not presenting evidence that a license is required in Kansas in order to practice law. He also argues the State failed to sustain its burden of proof by not asking the trial court to take judicial notice of the fact that a license is required to practice law in the state of Kansas.
Defendant acknowledges, however, that this court on appeal is allowed to take judicial notice of unproven elements of the State’s complaint, pursuant to K.S.A. 60-412(c). He asks us not to do so. We decline his invitation.
K.S.A. 60-412(c) states: “The reviewing court in its discretion may take judicial notice of any matter specified in K.S.A. 60-409 whether or not judicially noticed by the judge.” The fact that a license is required by Kansas law for an attorney to practice in this state is subject to judicial notice pursuant to K.S.A. 60-409(b)(l).
In State v. Wolfe, 194 Kan. 697, 698-99, 401 P.2d 917 (1965), the Kansas Supreme Court took judicial notice, pursuant to K.S.A. 60-412(c), of file fact that the Kansas State Penitentiary is located in Leavenworth County. Accordingly, we take judicial notice of the fact that an attorney is required to be licensed and admitted to the bar in order to practice law in the state of Kansas. See Supreme Court Rule 208 (1996 Kan. Ct. R. Annot. 210). We hold that defendant’s argument on this issue is without merit.
SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence was insufficient to support his conviction.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the fight most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Johnson, 255 Kan. 140, Syl. ¶ 1, 871 P.2d 1246 (1994).
We have carefully examined the record in this case. We conclude that based on the evidence presented, a rational factfinder could have found defendant guilty beyond a reasonable doubt.
Defendant’s claim that the record did not contain sufficient evidence to support his conviction is without merit.
MOTION FOR ARREST OF JUDGMENT
Defendant next contends that the trial court erred by failing to rule fully on his amended motion for arrest of judgment and spe cifically failed to address the “licensure-lack of evidence or judicial notice argument.”
Defendant filed a motion for arrest of judgment and/or motion for a new trial after the trial had been completed. He subsequently filed an amended motion for arrest of judgment some days later, alleging the judgment was void because the State had failed to prove defendant was not licensed in any other states or that Kansas requires a license to practice law. We have examined the trial court’s ruling on defendant’s motion for arrest of judgment. We agree that the trial court may not have specifically addressed every detail of defendant’s arguments in its ruling, but after ruling, it asked defendant if there was anything further, and defendant replied that there was not. We conclude that had defendant felt the trial court had failed to rule on his motion in full, he should have stated so at that time. See State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995). We find no reversible error in the manner in which the trial court dealt with defendant’s motion for arrest of judgment.
CUMULATIVE ERRORS
Finally, we reach the last issue raised by defendant. Defendant now argues that the cumulative effect of the trial court’s errors at trial prevented him from receiving a fair trial. We disagree.
“ ‘ “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 him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” ’ ” State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994) (quoting State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 [1992]).
Defendant does not make a specific argument on the issue of cumulative errors but merely invites this court to read the complete record on appeal and to view the videotaped interview. We have done so. We are convinced that the evidence against defendant was overwhelming. Therefore, even if there were cumulative trial errors, which we do not find, defendant was not prejudiced or denied a fair trial. Defendant’s argument to the contrary on this issue is without merit.
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Pierron, J.:
Pursuant to K.S.A. 60-1507, Juan Soto appeals his departure sentence and the district court’s failure to properly inform him of his right of allocution.
Soto was charged with one count of first-degree murder, one count of felony murder, and two counts of felony theft. Soto speaks Spanish and has a limited understanding of English. The record reveals the court went to painstaking measures to make sure that Soto understood all pleadings and proceedings. Soto had an interpreter appointed for him on the day the charges were filed, and a majority of the pleadings were duplicated in Spanish. We commend the court for these procedures, which are extremely good practices.
Soto pled no contest to amended charges of one count of reckless second-degree murder, one count of aggravated robbery, and one count of felony theft. The plea agreement states in pertinent part:
“Defendant pleads guilty or no contest to a complaint or information charging reckless second degree murder, aggravated robbery and felony theft. Defendant agrees to a departure sentence of 154 months on the second degree murder charge. Defendant agrees to sentences of 55 months on the aggravated robbery charge and seven months on the felony theft .charge. Defendant agrees that all sentences are served consecutively for a controlling sentence of 216 months. The State dismisses all other charges and will not seek a controlling sentence greater than 216 months imprisonment.”
Neither party filed a formal departure motion. At sentencing, both parties moved pursuant to the plea agreement to depart from the sentencing guidelines on the convictions of second-degree murder and aggravated robbery. The State did not argue for, nor did the plea agreement indicate, a departure for the felony theft conviction. The State based the motion for departure on the fact that Soto’s conduct during the commission of the offense manifested excessive brutality of the victim in a manner not normally present in the offense. Soto’s counsel stated that he and defendant agreed to the departure pursuant to the plea agreement.
With regard to Soto’s right of allocution, the following occurred:
“MR. LUDWIG [PROSECUTOR]: Your honor, prior to imposing sentence, the State would offer evidence in support of its motion to depart.
“THE COURT: Yes, and I’m not attempting to preclude that, nor allocution. Very well. The Court finds there is no reason why sentence should not now be imposed. Do the defendants wish to make a statement on their own behalf or present evidence in mitigation of sentence?
“DR. GUZMAN [CODEFENDANT’S INTERPRETER]: He says no, he has nothing to say.
“THE COURT: Mr. Dinkel, on behalf of your client, and after the State introduces any additional evidence, do you wish to make any additional statement?
“MR. DINKEL [CODEFENDANT’S ATTORNEY]: We would just ask the Court to impose the sentence that’s been agreed upon. I think I mentioned earlier that Mr. Allende certainly didn’t intend to kill anyone on this evening, it was a fight that got out of control, and alcohol was involved. I think it was a fight that, to some extent, was provoked by the victim in this case. That’s all I have to say.
“THE COURT: Thank you. Mr. Thull, on behalf of your client, does he wish to present evidence or make a statement?
“MR. THULL [SOTO’S ATTORNEY]: My client does not wish to make a statement to the Court, but would like for me to address the Court.
“DEFENDANT SOTO: That’s right.
“MR. THULL: May I address the Court?
“THE COURT: Certainly.”
Next, the district court recited in open court the aggravating factor utilized to support its upward departure. The applicable sentencing ranges were 68 to 77 months’ incarceration for second-degree murder and 46 to 51 months’ incarceration for aggravated robbery. The court found the evidence demonstrated Soto’s excessive brutality to the victim in a way not normally present in that type of offense. In accordance with the plea agreement, the district court sentenced Soto to consecutive terms of 154 months’ incarceration for second-degree murder, 55 months’ incarceration for aggravated robbery, and 7 months’ incarceration for felony theft.
Soto did not file a direct appeal in this case. Approximately a year after sentencing, he filed a motion for correction of sentence, claiming that his sentence for 154 months’ incarceration for second-degree murder exceeded the terms of the applicable sentencing guidelines grid box. The court informed Soto that his claim was in the nature of a proceeding under K.S.A. 60-1507 and he needed to submit his claim on a prescribed form.
On the prescribed form, Soto explained that he did not directly appeal because he was not informed of his right to appeal and he had a limited understanding of English and appellate procedures. Soto claimed his sentences for second-degree murder and aggravated robbery were excessive because they departed upward from the presumptive ranges of the respective crimes. He also claimed the district court faded to properly advise him of his right of allocution.
On Soto’s K.S.A. 60-1507 motion, the district court ruled that the departure sentences were (1) within the sentencing court’s authority and (2) in accordance with the sentencing agreement/departure agreement entered between the parties with benefit of interpreters and counsel. The district court also found that the sentencing court did advise Soto that if his case went to trial, he would be entitled to appeal the conviction to a higher court. Soto had indicated he understood this right.
The district court held that informing Soto of the right of allocution was unnecessary for two reasons. First, it stated that the sentencing court entered the recommended sentence and no error could be found since the sentencing court adopted a sentence that was specifically advocated by Soto. Second, Soto waived his right of allocution because he did not object’ bn a timely basis to the sentencing court’s failure to afford him the right.
Soto argues that the sentencing guidelines provide strict procedural and substantive requirements in order to accomplish the stated goal of uniformity in sentencing. He contends there are no provisions in the sentencing guidelines that permit an upward departure by agreement of the parties. He insists that the grossly disproportionate sentence he received is not permissible.
A sentence which does not conform to the statutory provisions, either in character or the term of the punishment authorized, is an illegal sentence. Where a prisoner asserts that his or her sentence is illegal, the prisoner may at any time, pursuant to K.S.A. 60-1507, move the court that imposed the sentence to correct or vacate the sentence. See State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 (1994).
The district court did not err in finding that Soto’s appeal of his departure sentences was not permissible. The State and Soto entered into a plea agreement, and the terms of the agreement were followed to the letter by the district court. K.S.A. 21-4721(c) expressly prohibits an appeal in this case. It provides:
“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
“(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
Soto incorrectly argues that the sentencing guidelines do not provide for an upward departure by agreement of the parties. Soto’s argument is contrary to the established principles of plea agreements. To facilitate entering a plea agreement, K.S.A. 21-4713 permits the prosecutor to recommend a particular sentence outside of the sentencing range when departure factors exist and are stated on the record. Faced with original charges of first-degree murder and the possibility of life imprisonment, Soto substantially benefitted from the plea negotiations, even with the departure sentence of 154 months for reckless second-degree murder.
It is also important to note that the district court properly followed K.S.A. 21-4718(c) by making findings of fact as to the reasons for the upward departure. K.S.A. 21-4718(c) provides that “[i]n each case in which the court imposes a sentence that deviates from the presumptive sentence, the court shall make findings of fact as to tire reasons for departure regardless of whether a hearing is requested.” The sentencing court stated on the record that the aggravating factor in this case was the excessive brutality to the victim in a way not normally present in that type of offense.
Next, Soto argues the sentencing court erred by failing to inform him of his right of allocution. He maintains that he should be re-sentenced and given an opportunity to utilize this right.
As a general rule, trial errors are to be corrected by direct appeal and not by a motion filed pursuant to K.S.A. 60-1507. Dunlap v. State, 221 Kan. 268, 269, 559 P.2d 788 (1977). Kansas Supreme Court Rule 183(c) (1995, Kan. Ct. R. Annot. 181), provides in relevant part that a “proceeding under K.S.A. 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.”
The district court that heard Soto’s K.S.A. 60-1507 motion did not make the determination of whether the sentencing court failed to inform Soto of his right of allocution. Rather, the district court simply stated that allocution was unnecessary because (1) the sentencing court entered the terms of the plea agreement and (2) Soto failed to object to a lack of allocution. Contrary to the district court’s ruling, K.S.A. 22-3424(e)(4) clearly requires the court to address the defendant personally and “ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.” See State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991) (K.S.A. 22-3424[4], now K.S.A. 22-3424[e], unambiguously requires the court to advise the defendant of the right of allocution).
The district court erred in its finding that allocution was unnecessary, but its decision that the sentencing court did not commit reversible error should be upheld nonetheless. “The judgment of a trial court, if correct, is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. [Citations omitted.]” State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
The sentencing court clearly asked Soto and the other codefendant whether they wished to make a statement on their own behalf or present evidence in mitigation of sentence. Soto’s attorney informed the court that Soto did not wish to make a statement. Then, Soto’s attorney stated that he would address the court. Soto replied, “That’s right.” There was a clear waiver of allocution or an express deferral to the attorney to speak and provide evidence in mitigation of punishment.
The court in State v. Borders, 255 Kan. 871, 879 P.2d 620 (1994), recently applied a harmless error analysis to a sentencing court’s failure to inform a defendant of the right of allocution. In Borders, the defendant was given full opportunity to address the court, but he declined to do so. The defendant argued that he had been denied the opportunity to notify his family of the time of sentencing. The court stated there had never been any assertion that any family member desired to attend the sentencing and that the defendant failed to indicate that he had any evidence that he desired to present in mitigation of his sentence. As a result, the court did not find reversible error. 255 Kan. at 879-80. The court held:
“We believe the requirement of a showing of prejudice to the substantial rights of the defendant is equally applicable to alleged violations of the allocution statute as it is to the many other areas of criminal procedure where prejudice must be shown to justify a reversal. The defendant here has shown absolutely no prejudice, and while failure to comply with a mandatory statute, suchas [K.S.A. 22-3424(e)], is error, [it is] not reversible error unless prejudice to the substantial rights of the defendant is shown.” 255 Kan. at 881.
The sentencing court advised Soto of his right of allocution. He either declined or deferred his right. There is no evidence of prejudice rising to the level of reversible error.
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Royse, J.:
State Farm Fire & Casualty Co. (State Farm) filed this declaratory action to obtain a determination that its policy issued to Larry C. Falley did not cover injuries sustained by Donald G. Legleiter. The district court granted summary judgment to State Farm, and Legleiter appeals.
Falley went to the Phillips 66 service station at Sixth and Fair-lawn in Topeka and filled his car with gas. A disagreement arose regarding Falley s failure to pay for the gas. Although the parties disagree about how Legleiter came to be there, they agree that Falley drove away from the station with Legleiter spread-eagled on the hood of the vehicle. Falley drove east on Sixth Street, finally slowing at the intersection of Sixth and Gage. At that point, Legleiter landed on the ground and was injured. A controversy remains as to whether Falley simply slowed his car or slammed on his brakes at the intersection, whether Legleiter was thrown off the car or got off the hood of the car, or whether Legleiter was knocked to the ground or fell to the ground.
State Farm had issued an automobile liability policy to Falley. It provides, in pertinent part:
“We will:
1. pay damages which an insured becomes legally liable to pay because of: a. bodily injury to others . . . caused by accident resulting from the ownership, maintenance or use of your car.”
The policy, however, excludes coverage “FOR ANY DAMAGES ARISING FROM AN INTENTIONAL ACT.” State Farm’s exclusion repeats verbatim the exclusion authorized by K.S.A. 40-3107(i)(6).
The district court concluded that State Farm’s intentional act exclusion applied in this case. Relying on the principle that a party is presumed to intend the natural and probable consequences of his acts, the district court concluded Falley intended to cause injury to Legleiter as a result of his intentional act of driving his car with Legleiter on the hood. Legleiter appeals.
The sole issue on appeal is whether the district court erred in granting State Farm’s motion for summary judgment. This issue first requires interpretation of the State Farm exclusion.
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 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 rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
The interpretation of State Farm’s exclusion is a question of law, subject to unlimited review by this court. See Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994). Just as coverage clauses are interpreted broadly to afford the broadest protection to the insured, exclusionary clauses are interpreted narrowly against the insurer. United States Fidelity & Guar. Co. v. Farm. Bureau Mut. Ins Co., 2 Kan. App. 2d 580, 582, 584 P.2d 1264 (1978). See Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan. App. 2d 60, 62, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982).
The Supreme Court’s recent decision in Harris is helpful in resolving the question presented here. The facts of that case were as follows:
“Donald Harris was seated in the cab of his pickup truck with Kimberly Hawley. Douglas Hawley, Kimberly s ex-husband, fired two shotgun rounds into the back window of the pickup. Harris was on the driver’s side and Kimberly was on the passenger side of the cab. When Douglas fired the shots he could not have seen whom he was shooting at due to darkness. The pellets struck Harris on the right side of his face, causing facial scarring and blindness. Douglas walked around to the side door and fired a third shot, which killed Kimberly. He then killed himself.” 254 Kan. at 550.
Harris filed a petition against the administrators of Douglas’ estate to recover his damages. The district court determined Harris’ claim against the estate was limited to any available insurance coverage. The district court further concluded: (1) the shooting was not a covered occurrence under the terms of the applicable homeowners policy, and (2) the intentional acts exclusion of that policy applied. The Supreme Court affirmed. 254 Kan. at 550.
The Supreme Court first considered whether the shooting was an occurrence covered under the homeowners policy. The policy provided coverage for bodily injury caused by an occurrence. The term “occurrence” was defined in the policy as “an accident, including continuous or repeated exposure to conditions.” 254 Kan. at 552.
Although the policy did not define “accident,” the court explained that
“ ‘[t]he word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.’ Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793 (1919).” 254 Kan. at 553.
The Supreme Court, applying the natural and probable consequences test, concluded the shooting of Harris did not fall within the policy coverage: ,
“The insured’s intent to injure can be inferred when the resulting injury is a natural and probable consequence of the insured’s act. [Citation omitted.] Douglas fired two shotgun blasts into the cab of Harris’ pickup when he knew it was occupied. The natural and probable consequence of this act was that anyone occupying the cab would be injured. The shooting of Harris was not an accident under the Farm Bureau policy.” 254 Kan. at 553.
The Supreme Court used a similar analysis in concluding the shooting also fell within the “intentional injury” exclusion of the policy: “ ‘[W]e do not cover . . . [b]odily injury or property damage expected or intended by an insured.’ ” 254 Kan. at 554. The court rejected Harris’ contention that insurance coverage was available because Douglas shot him by mistake. Because Harris’ injuries were a natural and probable consequence of Douglas’ act, the court concluded they were injuries intended by Douglas. 254 Kan. at 556.
Although Harris examined the provisions of a homeowners policy rather than an automobile liability policy, the analysis is equally applicable to this case. First, both policies provide coverage for bodily injury caused by accident. In Harris, the Supreme Court relied on the same definition of “accident” that has been used in cases concerning a variety of insurance policies. See Spence v. Equitable Life Assurance Soc., 146 Kan. 216, 224, 69 P.2d 713 (1937) (life insurance policy with double indemnity provision for accidental death); Allied Mut. Ins. Co. v. Patrick, 16 Kan. App. 2d 26, 28, 819 P.2d 1233 (1991) (automobile liability insurance); Whitaker v. State Farm Mut. Auto. Ins. Co., 13 Kan. App. 2d 279, 282, 768 P.2d 320 (1989) (personal injury protection benefits provided under automobile liability insurance policy). All of these cases rely on a definition of “accident” which was first propounded in a workers compensation case. See Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793 (1919). Second, Harris relied on a series of cases that had developed the “natural and probable consequences” test for intentional injury exclusions, including a decision which construed an automobile liability insurance policy. 254 Kan. at 554-55; see Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968).
Legleiter argues the natural and probable consequences approach requires an additional showing that the insured acted with the belief that there was a substantial certainty his acts would result in injury. This argument is not persuasive.
Legleiter cites Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), a case in which the Supreme Court did use “substantial certainty” language. There, three boys were playing a game involving shooting BB guns at each other when one was shot in the eye and suffered severe injury.
The plaintiff argued that because Rusty Tilton testified he did not have the specific intent to injure plaintiff’s eye when he fired the BB gun at plaintiff’s face, the injury was not, as a matter of law, “intentional” within the meaning of the policy exclusion for expected or intended injury. The Supreme Court rejected plaintiff’s argument, holding: “Where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.” 234 Kan. 461, Syl. ¶ 2.
Although the Supreme Court did refer to consequences which were “substantially certain to result,” the Supreme Court did not add substantial certainty as an element of the natural and probable consequences test. 234 Kan. at 472. In fact, in Harris the court noted the Bell decision “endorsed the Casualty Reciprocal Exchange language that an insured is presumed to intend the natural and probable consequences of his or her acts.” Harris, 254 Kan. at 556.
Legleiter also points to a number of secondary authorities cited in Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 721, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982), in support of his argument that the natural and probable consequences approach requires proof that the insured acted with the belief that there was a substantial certainty his acts would result in injury. Casualty Reciprocal Exchange, however, concluded: “The better rule is found in Rankin, where it was held that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.” 7 Kan. App. 2d at 621; see 31 A.L.R. 4th 957, 991-92.
Legleiter argues alternatively that State Farm’s exclusion, which contains language identical to the exclusion authorized by K.S.A. 40-3107(i)(6), requires proof the insured acted with the specific intent to injure the other person. Legleiter acknowledges the specific intent rule has been rejected in Harris, 254 Kan. at 556, and Bell, 234 Kan. at 472. See Spivey v. Safeco Ins. Co., 254 Kan. 237, 245, 865 P.2d 182 (1993). Legleiter argues, however, that the earlier cases construed an exclusion for injuries “expected or intended by an insured,” not the exclusion for “damages arising from an intentional act” which is at issue here. Legleiter further contends the earlier cases did not examine the statutory basis of the intentional act exclusion found at 40-3107(i)(6).
Legleiter’s argument is not persuasive. Like this case, the earlier cases all start with a coverage clause for injuries arising by “accident,” and they rely on the same definition of accident. Although recognizing the rule that coverage clauses are interpreted broadly so as to afford the greatest possible protection to the insured (see United States Fidelity & Guar. Co., 2 Kan. App. 2d at 582), the earlier cases do not go so far as to limit the exclusion for injuries “expected or intended by an insured” to those injuries which the insured specifically intended.
In addition, the exclusion for injuries “expected or intended by an insured” would appear to be narrower than an exclusion for “any damages arising from an intentional act.” Having rejected the specific intent test for the narrower exclusion, it is unlikely that our Supreme Court would require its application to injuries “arising from an intentional act.”
Legleiter quotes from an insurance company lobbyist who supported the enactment of40-3107(i)(6) to support his argument that “damages arising from an intentional act” excludes only those damages specifically intended by the insured. One problem with this contention is that the documents Legleiter describes as “legislative history” are obviously incomplete. Furthermore, the lobbyist’s statement which Legleiter quotes refers to one who intentionally causes an accident; the statement does not suggest the exclusion applies only to the injuries specifically intended by the insured.
Finally, it is important to recognize that the puipose of our compulsory insurance law is to “provide a means of compensating persons promptly for accidental bodily injury.” K.S.A. 40-3102; Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 550-51, 907 P.2d 891 (1995); Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 827, 714 P.2d 975 (1986); see 6B Appleman, Insurance Law and Practice § 4299 (1979). Intentional act exclusions also reflect the public policy prohibiting coverage for intentional and malicious acts. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973); see Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 28, 804 P.2d 1374 (1991); Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 84, 483 P.2d 1072 (1971) (Fontron, J., dissenting); 6B Appleman, Insurance Law and Practice § 4252, p. 7 (1979). These public aims are not served by an overly restrictive construction of the intentional act exclusion or by adopting a test which depends upon the after-the-fact testimony of the insured about his “subjective intent.” See Ostrager and Newman, Handbook on Insurance Coverage Disputes § 8.03[c], p. 325 (8th ed. 1995).
State Farm asserts its exclusion should be interpreted in a fashion directly opposite to the specific intent approach; it maintains that once an intentional act by the insured is shown, the exclusion applies to any damages that result. State Farm cites no authorities which have adopted such an interpretation of this exclusion.
It is true that Harris and the other Kansas cases previously cited have construed an “intentional injury” exclusion, and the policy at issue here contains an “intentional act” exclusion. This difference does not warrant the overly broad reading of the exclusion urged by State Farm. See Whitaker, 13 Kan. App. 2d at 283 (refusing to endorse distinction between accidental means and accidental results); Rankin, 393 F.2d at 720 (refusing to make “subtle distinctions” between an intentional act and an intentional injury).
State Farm’s argument runs afoul of the cases which define “accident” to include undesigned or unexpected events. If State Farm’s proposed interpretation of the exception were adopted, the exception would effectively negate the coverage under the policy.
“Were we to follow that theory to its logical conclusion then there could never be a recovery for injuries sustained in an automobile collision because the driver of the offending automobile would unquestionably always have been intentionally driving same; therefore the act of driving being intentional the resulting injury would be intentional (under appellant’s theory) and would therefore fall under the exclusionary provision of the policy.” Phoenix Insurance Company v. Helton, 298 So. 2d 177, 181 (Fla. Dist. App. 1974).
As a final note, we have not overlooked Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 748, 522 P.2d 438 (1974), a case which involved an exclusion for injury “resulting from the intentional conduct” of the insured. Hass and another driver had been involved in an altercation, which culminated with Hass making a U-tum and driving into the other car. Hass sued his insurer, State Farm, alleging breach of contract and other theories. The case went to the jury on the issue of whether Hass’ conduct had been intentional, and the jury returned a verdict in favor of State Farm. Hass appealed.
On appeal, the issue presented was whether there was sufficient evidence to support the verdict. Noting there was expert evidence that “Hass could have intended to cause the harm he did in fact cause under the circumstances in question,” the Supreme Court affirmed the verdict. 214 Kan. at 751. The issue in Hass was not framed as a question of policy interpretation, and the Supreme Court did not purport to construe the language of the exclusion.
In summary, for all of the foregoing reasons, we conclude the exclusion for “any damages arising from an intentional act” encompasses any injury which is a natural and probable consequence of the insured’s intentional act. The district court did not err by relying on the “natural and probable consequences” test.
Legleiter makes a further challenge to the district court’s entry of summary judgment, arguing that disputed issues of material fact remain. We agree.
Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, is instructive.
“In Spruill, the insured, Spruill Motors, Inc., had performed work on Rounkles’ vehicle, which Rounkels drove the vehicle home without paying for services performed and garage personnel attempted to recover the vehicle. Rounkles saw his vehicle being towed away and ran up to it in an attempt to open the door, at which time his foot was run over.” Harris, 254 Kan. at 555.
The district court determined the insurance policy afforded no coverage for Rounkles’ injury and therefore the insurance company was under no obligation to defend Spruill Motors in the action brought against it by Rounkles. The Supreme Court reversed: “As we view the facts, the act of taking possession of the truck, although intentional, was not the act which caused Rounkles’ personal injury. If liability for personal injuiy attached it was caused by the manner in which the employees were moving the truck.” 212 Kan. at 687.
In this case, there is no question Falley intentionally drove his vehicle with Legleiter spread-eagled on the hood. A question remains, however, whether Legleiter’s injuries were caused by Falley’s intentional act of driving with Legleiter on the hood. There is at least some testimony in the record that Legleiter was injured after Falley had stopped or nearly stopped his vehicle. Put in tenns of State Farm’s exclusion, a question of material fact remains whether Legleiter’s injuries arose from Falley’s intentional acts.
In light of this conclusion, we need not address the other issues raised by the parties.
Reversed and remanded for further proceedings. | [
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Rogg, J.:
Southwest Medical Center (SWMC) appeals the district court order directing it to disclose certain records pursuant to the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. Southwest Anesthesia Service, P.A., (Southwest Anesthesia) cross-appeals the court’s denial of its request for attorney fees. The Kansas Hospital Association filed a brief in support of SWMC and the Kansas Association of Nurse Anesthetists filed a brief in support of Southwest Anesthesia.
SWMC is a county hospital located in Liberal, Kansas. It is a public agency subject to the KORA. Southwest Anesthesia is a professional corporation employing certified registered nurse anesthetists (CRNAs) who have privileges to provide anesthesia services at SWMC.
Pursuant to KORA, Southwest Anesthesia requested, that SWMC provide it with copies of certain records pertaining to six doctors who were not employed by the hospital, but had privileges to provide medical services at SWMC. The requests specifically sought “[a]ny and all contracts, agreements, letters of intent or other written memoranda reflecting, evidencing or relating to payments, compensation, loans, guarantees or other forms of monetary benefits” from SWMC to or for the benefit of the doctors.
SWMC sent its recruitment policy and blank copies of its standard relocation expense agreement and its hospital and physician agreement. It stated that other information was exempt from disclosure under K.S.A. 1996 Supp. 45-221(a)(4) and (15). Southwest Anesthesia and SWMC had several discussions concerning the request, and SWMC continued to maintain that any additional records were exempt.
Southwest Anesthesia filed a petition in district court to enforce the KORA request. It also sought attorney fees under K.S.A. 45-222(c), alleging that SWMC’s denial of access to the records was not in good faith and without a reasonable basis in fact or law. At the hearing, the district court found that the records were not exempt from disclosure and ordered SWMC to provide the information requested. The court ruled that SWMC had not acted in bad faith and denied Southwest Anesthesia’s request for attorney fees.
It is the public policy of Kansas that public records shall be open for inspection by any person unless otherwise provided. KORA is to be liberally construed and applied to promote this policy. K.S.A. 45-216(a). The interpretation of KORA is a matter of law. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
It is not disputed that SWMC and the requested records are subject to KORA. SWMC asserts that four exemptions from disclosure under KORA are applicable, K.S.A. 1996 Supp. 45-221(a)(4), (14), (15), and (30). Southwest Anesthesia argues that K.S.A. 1996 Supp. 45-221(a)(14) and (30) are not before this court as they were not properly raised at the district court level. K.S.A. 1991 Supp. 45-221(a)(4) and (15) were the only exemptions relied upon by SWMC in its communications with Southwest Anesthesia and in its trial court brief. The other sections were argued by SWMC at the hearing, but the district court’s written opinion based its ruling on K.S.A. 1996 Supp. 45-221(a)(4) and (15) without mentioning (14) and (30).
Usually, a party may not raise an issue on appeal that was not sufficiently presented to the trial court. An exception to this rule exists when the issue raised is a question of law which may be decided on established facts. Jones v. Hansen, 254 Kan. 499, 500-02, 867 P.2d 303 (1994). Whether a particular exemption under KORA is applicable is a question of law and can be reviewed by us. The facts in this case are not in dispute.
K.S.A. 1996 Supp. 45-221(a)(4) and (15) pertain to records relating to employees or applicants for employment. SWMC acknowledges the physicians in question are not employees, but argues that there is no reason to distinguish between the records of physician employees and the records of physicians with staff privileges. SWMC contends that Att’y Gen. Op. No. 87-109 provides support for its argument that the exemption from disclosure in K.S.A. 1996 Supp. 45-221(a)(4) can be applied to nonemployees. A careful reading of the opinion shows that the attorney general was discussing a staff physician who was an employee of a county hospital. At the district court hearing, SWMC argued that the hospital that had requested the opinion had physicians who were independent contractors, not employees. However, this is not what is expressed in the attorney general’s opinion. The opinion itself states facts that are not comparable to the circumstances at SWMC. SWMC’s reliance on Att’y Gen. Op. No. 87-109 is misplaced. Even if it did address the situation in question, an opinion of the attorney general is neither conclusive nor binding on a court. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 248, 671 P.2d 547 (1983). Both SWMC and the Kansas Hospital Association argue that the types of compensation involved (relocation expenses, expenses of establishing a practice, loans, and guarantees) are not “salaries” under K.S.A. 1996 Supp. 45-221(a)(4) and do not need to be disclosed.
The words of the KORA exemption are plain and unambiguous. The duty of the court is to give effect to tile intention of the legislature as expressed, rather than to determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Statutory words are presumed to have been consciously chosen with an understanding of their meaning, and intentionally used with the legislature having meant what it said. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. at 168. The cited exemptions relate only to employees, and the district court correctly found them to be inapplicable. Any extension of the exemptions to cover persons other than employees is a matter for the legislature.
The other two exemptions relied upon are K.S.A. 1996 Supp. 45-221(a)(14) and (30), which relate to correspondence between a public agency and a private individual, and to information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy.
SWMC did not present any testimony or other evidence to support these exemptions at the hearing. The burden of proving an exemption from disclosure is on the agency not disclosing the information. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. at 170. This burden is well stated by the Connecticut Supreme Court:
“ ‘[U]nsupported conclusory allegations of counsel are not evidence and are insufficient for the application of an exemption from disclosure.’ [Citation omitted.] ‘The burden of establishing the applicability of an exemption . . . requires the claimant ... to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.’ "Perkins v. Freedom of Information Commission, 228 Conn. 158, 176, 635 A.2d 783 (1993).
SWMC has failed to show that K.S.A. 1996 Supp. 45-221(a)(14) and (30) are applicable.
None of the exemptions cited by SWMC provide a basis for not disclosing the requested records.
In its cross-appeal, Southwest Anesthesia claims that it should have been awarded attorney fees under K.S.A. 45-222(c) because SWMC’s denial of access to the records was not in good faith and was without a reasonable basis in law or fact. Southwest Anesthesia argues that SWMC relied on an attorney general opinion that was not applicable and refused to request an opinion from the attorney general on the specific facts relating to the case. Southwest Anesthesia also notes that SWMC did not produce any evidence to support the claimed exemptions.
The award of attorney fees is a matter within the discretion of the district court. SWMC supplied some blank documents and general information in response to the KORA request, but refused to provide specific information pertaining to the physicians identified. It appears that SWMC’s erroneous reliance on Att’y Gen. Op. No. 87-109 was due to its knowledge of the situation underlying the request for the opinion and was based on facts not specifically reflected or addressed in the opinion. The district court found that this was not so misguided as to amount to bad faith. Reasonable persons could agree with this determination. The denial of attorney fees is not an abuse of discretion.
Affirmed. | [
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Subsets and Splits