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The opinion was delivered by
Luckert, J.:
Gary W. Harp, Sr., who seeks resentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), argues for reversal of the Court of Appeals’ and district court’s determinations that he is not entitled to relief pursuant to a motion to correct an illegal sentence and is not entitled to take an out-of-time appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). We conclude that Harp is not entitled to relief pursuant to a motion to correct an illegal sentence but is entitled to file an appeal out of time.
Harp pled guilty to one count of manufacture of methamphetamine as a severity level 1 drug felony in Januaiy 2002. On April 17, 2002, Harp was sentenced to 96 months in prison. He did not file a direct appeal.
In October 2003, Harp filed a pro se K.S.A. 60-1507 motion in which he argued that he should have been convicted of a severity level 2 drug felony instead of a severity level 1 drug felony. This motion was later voluntarily dismissed.
Then, on April 1, 2004, Harp filed another pro se motion — this time a motion to correct an illegal sentence. This motion was filed 3 months after the decision in McAdam. In McAdam, this court held that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a severity level 1 drug felony, was identical to the offense of compounding methamphetamine under K.S.A. 65-4161(a), a severity level 3 drug felony. Accordingly, by application of the identical offense sentencing doctrine, the defendant could be sentenced only under the lesser penalty provision. This court vacated Me Adam’s sentence for violation of K.S.A. 65-4159(a) and remanded for resentencing him to a severity level 3 drug felony for a violation of K.S.A. 65-4161(a).
Harp seeks similar relief. In response to his motion, the State filed a “Motion to Dismiss Defendant’s 60-1507 Motion,” arguing that, because Harp’s April 2004 motion was filed more than 10 days after the filing of the sentencing journal entry, it should be treated as a K.S.A. 60-1507 motion. The State basically argued that the district court was not obligated to hear a successive motion on the same matter and asked the court to dismiss for lack of jurisdiction.
The district court held a hearing at which Harp was represented by counsel. After listening to the parties’ arguments, the court denied Harp’s motion to correct an illegal sentence “on the basis that he received a beneficial plea agreement and failed to file a direct appeal and therefore is unable to attack his sentence collaterally.”
On direct appeal of the district court’s denial of Harp’s motion to correct an illegal sentence, the Court of Appeals rejected Harp’s contention that the classification of his conviction should be changed from a severity level 1 to a severity level 3 drug felony. State v. Harp, No. 94,322, unpublished opinion filed December 16, 2005, slip op. at 2. The panel further rejected Harp’s argument, raised for the first time on appeal, that the Court of Appeals should consider his appeal as a direct criminal proceeding under Ortiz. Harp, slip op. at 4.
We granted Harp’s petition for review and temporarily remanded the case to the district court for a hearing and determination on the record of whether any of the Ortiz exceptions apply such that Harp should be permitted a direct appeal of his sentence out of time. Ortiz recognized limited exceptions to the general rule requiring a timely appeal from sentencing, concluding that, in die interest of fundamental fairness, an untimely appeal will be allowed only in those cases where an indigent defendant was either: (1) not informed of his or her appellate rights; (2) not furnished with an attorney to perfect an appeal; or (3) furnished with an attorney for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. at 735-36 (relying on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 [1972]). If any of these narrow exceptional circumstances are met, a court must permit an appeal out of time. See State v. Willingham, 266 Kan. 98, 99-102, 967 P.2d 1079 (1998).
After hearing the evidence and arguments of counsel, the district court found that Harp was not advised of his right to appeal by the sentencing court or .by defense counsel. Consequently, the district court determined that, under Ortiz, Harp should be permitted to appeal out of time.
This court retained jurisdiction of the case for consideration upon the district court’s final determination. Based upon the arguments and holdings of the lower courts, we must consider whether Harp is entitled to relief via a motion to correct an illegal sentence, a petition pursuant to K.S.A. 60-1507, or through a direct appeal allowed under Ortiz.
Motion to Correct an Illegal Sentence
First, Harp argues that the district court erred in denying his pro se motion to correct an illegal sentence. He contends that, under the identical offense doctrine as applied in McAdam, the district court should have reduced the classification of his conviction for manufacture of methamphetamine from a severity level 1 drug felony to a severity level 3 drug felony.
Generally, no appeal can be taken from a judgment of conviction upon a guilty or no contest plea, “except that jurisdictional or other grounds going to the legality of the proceedings may be raised” as provided by K.S.A. 60-1507. K.S.A. 2006 Supp. 22-3602(a). Following a plea, however, a defendant may challenge the sentence imposed under limited circumstances; specifically, he or she may challenge the severity level of the crime upon which the sentence is based. K.S.A. 21-4721(e)(3); State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Additionally, a defendant may argue the sentence qualifies as “illegal” as that term is used in K.S.A. 22-3504. Neither the district court nor an appellate court has jurisdiction over an untimely request to modify a sentence unless the sentence is illegal. State v. Phinney, 280 Kan. 394, 399, 122 P.3d 356 (2005); State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007). This court has 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 character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. Hoge, 283 Kan. at 225; State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006); State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006).
Kansas case law has clearly established that a sentence imposed for a crime which has identical or overlapping elements with a crime of a less severe penalty and, thus, violates this court’s rulings on identical or overlapping offenses is not “illegal” as that term is used in K.S.A. 22-3504. The district court had jurisdiction to accept Harp’s guilty plea and to impose a sentence under K.S.A. 65-4159. See, e.g., State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006); Phinney, 280 Kan. at 399; Barnes, 278 Kan. at 123-24; see also Hoge, 283 Kan. at 225 (K.S.A. 22-3504 only applies if sentence is illegal). Harp’s sentence conformed to 65-4159 as to its character and term of punishment, and the sentence was not ambiguous. Therefore, relief was not available to Harp under K.S.A. 22-3504.
K.S.A. 60-1507
In the alternative, although not required to do so, the district court could have construed Harp’s pro se motion to correct an illegal sentence as a motion challenging his sentence under K.S.A. 60-1507. This construction was recently employed in Swisher, where the defendant raised an identical offense argument in light of State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002) (possession of ephedrine, a severity level 1 drug felony, and possession of drug paraphernalia, a severity level 4 drug felony, had identical elements; thus, person convicted of either one could only be sentenced for severity level 4 drug offense), and State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (defendant entided to be sentenced under lesser penalty provisions of drug paraphernalia statute), and challenged his controlling sentence as “illegal” in a pro se motion to correct an illegal sentence. See also, e.g., Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005) (pro se motion to correct an illegal sentence treated as motion filed under K.S.A. 60-1507).
However, as this court observed in Swisher, even construing the motion as a K.S.A. 60-1507 motion, the defendant must overcome procedural hurdles. Swisher, 281 Kan. at 449. A K.S.A. 60-1507 motion is not typically an acceptable instrument for a nonconstitutional claim of error that the defendant could have addressed on direct appeal. See Supreme Court Rule 183(c)(3) (2006 Kan. Ct. R. Annot. 227); Bruner v. State, 277 Kan. 603, 607, 88 P.3d 214 (2004); see also United States v. Batchelder, 442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (no constitutional right to lesser penalty when two applicable statutes proscribe identical conduct).
Moreover, as the Court of Appeals panel concluded, Harp’s collateral attack argument must be rejected under the holding in Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005). In Bryant, this court held that a defendant who enters a plea and does not file a direct appeal cannot collaterally challenge the sentence imposed on the ground that the offense he or she pled guilty to and a second offense having a lesser penalty have identical elements. Thus, where a K.S.A. 60-1507 motion raises a Frazier or McAdam claim, the appellate courts have jurisdiction over such cases, but the claims will not be successful unless a direct appeal of the sentence was pending at the time Frazier or McAdam was decided. Bryant, 280 Kan. 2, Syl. ¶ 3; see Phinney, 280 Kan. at 401.
It is clear that, even if Harp’s motion were to be considered a K.S.A. 60-1507 motion, the issue of retroactivity has been disposed of in the McAdam setting by Bryant. Thus, whether addressed in the form of a motion to correct an illegal sentence or a K.S.A. 60-1507 motion, Harp’s collateral challenge to his sentence fails.
Application of Ortiz Exception
Next, Haip argues that, if his collateral attack on his sentence is unsuccessful because he pled guilty and did not prosecute a timely direct appeal of his sentence, his most recent appeal should be considered a direct appeal. Although Harp did not file a notice of appeal challenging his sentence within 10 days of his sentencing, on remand the district court determined Harp was not informed of his right to appeal and, thus, an exception articulated in Ortiz applies to excuse the untimeliness of his direct appeal. The State argues that the appeal should not be allowed because no Ortiz exception properly applies.
The issue of appellate jurisdiction is one of law over which this court has unlimited review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. If the record reveals that jurisdiction does not exist, the appeal must be dismissed. State v. Wendler, 280 Kan. 753, Syl. ¶ 1, 126 P.3d 1124 (2006); State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001).
The facts underlying a district court’s Ortiz exception ruling are examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination of whether those facts fit the exception are reviewed under a de novo standard. Phinney, 280 Kan. at 404.
In Phinney, this court reiterated that no Kansas case law prevents a defendant from claiming an Ortiz exception to appeal his or her sentence out of time after benefitting from a favorable plea. 280 Kan. at 402. In Willingham, 266 Kan. at 99-102, we reviewed a claim by the defendant that he should be allowed to file an appeal out of time because tire trial court had failed to notify him of his right to appeal under K.S.A. 22-3424(f). This court held there was no evidence the defendant was advised of his right to appeal at sentencing, either by the sentencing judge or trial counsel, and counsel had failed to obtain a written waiver of appeal under Kansas Administrative Regulation (K.A.R.) 105-3-9(a)(3) (duty of counsel to file timely notice of appeal unless obtains waiver of right to appeal signed by defendant). Accordingly, we determined that Ortiz applied, and defendant was allowed to file a direct appeal out of time. 266 Kan. at 100-02; see also State v. Redmon, 255 Kan. 220, 222-23, 873 P.2d 1350 (1994) (defendant who entered guilty plea still had the right to appeal his sentence out of time when the circumstances fit an Ortiz exception).
In its appellate brief, the State responds that Harp’s case does not fit under the Ortiz exception because he was “aware” of his right to appeal. See Willingham, 266 Kan. 98, Syl. ¶ 2 (“Where it can be shown that the defendant was fully aware of his or her right to appeal, or was fully advised of his or her right to appeal by counsel at the time of sentencing, a waiver of that right may be established.”). This argument is not persuasive. A transcript of the Ortiz hearing, which we have reviewed, is included in the record on appeal and does not reflect a defendant with a full awareness of his appellate rights.
At that hearing, Harp testified and indicated that, at his 2002 sentencing, defense counsel did not advise him of his right to appeal the sentence within 10 days. Harp further indicated that, had his attorney so advised him and told him the sentence might be shortened under the identical offense doctrine, he would have instructed defense counsel to appeal. Harp denied being informed of his appellate remedies, the steps necessary to implement an appeal, or the possibility of an appeal on the identical offense doctrine. There was no indication that a written waiver of Harp’s right to appeal was obtained pursuant to K.A.R. 105-3-9. Harp’s testimony indicated that defense counsel did not present such a document to him in 2002.
On cross-examination, Harp basically admitted having a general awareness of the right to appeal. However, he testified that he did not know he could appeal a plea bargain.
Harp’s appellate counsel stipulated at the Ortiz hearing that the sentencing transcript showed “no mention of the right to appeal the sentence within ten days by the sentencing judge.” The sentencing transcript, which is also included in the record on appeal, confirms that the sentencing court did not advise Harp of his right to appeal or its attendant procedures and Harp did not have an understanding of his right.
The State contends that under State v. Dugan, 29 Kan. App. 2d 71, 25 P.3d 145 (2001), rev. denied 271 Kan. 1039 (2001), abrogated in part on other grounds by State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005), Haip is precluded from appealing his sentence out of time even if he was not advised of his appellate rights. There, the Court of Appeals held that Ortiz does not supply an appellate court with jurisdiction to entertain an untimely appeal from a presumptive sentence. Dugan is distinguishable from the present case, however, because Dugan did not involve a change in Kansas law or, more specifically, a question of whether the district court sentenced the defendant under the wrong crime severity level. Even if a sentence is presumptive, a defendant may challenge the severity level of the crime. State v. Thomas, 283 Kan. 796, 156 P.3d 1261 (2007). See K.S.A. 21-4721(e)(3) (in any appeal, appellate court may review a claim that sentencing court erred in ranking the severity level of current crime); Campbell, 279 Kan. 1, Syl. ¶ 5 (“Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.”).
In light of the transcripts from the Ortiz hearing and from Harp’s 2002 sentencing, substantial competent evidence supports the district court’s conclusion that the facts require an Ortiz exception because Harp was not advised of his right to appeal. Therefore, Harp’s direct appeal of his sentence is properly before this court.
Application of McAdam
Having determined that Harp’s direct appeal is properly before this court, we must now examine whether the district court should resentence Harp for a severity level 3 drug felony according to the ruling in McAdam, 277 Kan. 136. The State argues that Harp should not be resentenced because his appeal would not have been pending at the time of McAdam if Harp had taken an appeal within 10 days of his sentence in April 2002.
The same issue was raised in State v. Thomas, 283 Kan. 796. In that case we held that when a direct appeal is granted under an Ortiz exception, the appeal is subject to the law in effect at the time of its granting.
Therefore, the holding in McAdam should be applied, entitling Haip to have his sentence vacated. The case is remanded for re- sentencing as a severity level 3 drug felony consistent with the ruling in McAdam.
The judgment of the district court denying defendant’s motion to correct an illegal sentence is affirmed. Judgment of the district court on remand is affirmed. Judgment of the Court of Appeals is reversed. The sentence is vacated and remanded with directions.
Johnson, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
The district court denied George Moore’s motion to suppress and convicted him of possession of marijuana with the intent to deliver and of failure to affix drug tax stamps. The Court of Appeals affirmed in State v. Moore, 34 Kan. App. 2d 795, 124 P.3d 1054 (2005). We granted Moore’s petition for review under K.S.A. 20-3018(b).
The sole issue on appeal is whether the motion to suppress should have been granted. We affirm.
FACTS
On October 16, 2002, Kansas Highway Patrol Lieutenant Richard Jimerson and Junction City Police Officer James Oehm were parked in the median of 1-70 west of Junction City. Around 3:35 p.m., Jimerson observed a vehicle heading eastbound following a red car closely. Both of the vehicles were in the right-hand lane. According to Jimerson, the vehicle he observed was “only about a car length and a half behind this red car.” He pulled out to pursue, timing the distance between the two vehicles at .72 seconds. Jimerson then executed a traffic stop.
After the vehicle pulled over, Jimerson approached the driver from the passenger side in order to avoid traffic. He informed the driver, later identified as George Moore, that he had stopped the vehicle because it was following the other car too closely. According to Jimerson, Moore acknowledged that he was following too closely and apologized. However, Moore denied this.
Jimerson asked Moore for his drivers license and registration, which he produced. The vehicle was registered to James Ward. During the exchange, Jimerson noted that Moore appeared highly nervous. His hands were shaking, and he was breathing deeply; he appeared more nervous than the regular nervousness Jimerson has observed of drivers during the thousands of traffic stops he had made in his 15-year career. Jimerson also smelled a “slight odor” of fabric softener, which he knew from his experience with the highway patrol was often used to conceal the odor of drugs.
During the stop, Officer Oehm arrived as back-up. Jimerson ran Moore’s license through dispatch, which initially reported the license suspended. Jimerson then asked Oehm to inform Moore of the suspension. When Oehm did so, Moore reacted with confusion and surprise. When questioned about his travel plans, Moore stated that he was returning from Las Vegas to his home in Maryland and a friend had loaned him die car. Moore further stated that he had gone to Las Vegas for an army airborne reunion.
Dispatch later informed Jimerson that Moore’s license was not suspended. He informed Moore of the error and issued a warning for following too closely. When Jimerson returned Moore’s license and registration, he informed Moore that was “all [he] had for him.” Jimerson observed that Moore remained nervous to the same degree as before.
According to Jimerson, Moore placed his hand on the gearshift as if he was going to drive away. Moore, however, claimed that he did not attempt to leave because Jimerson was leaning against the frame of the passenger window. Before Jimerson moved from the side of the vehicle, he asked Moore if he could ask him some more questions. Moore agreed, and Jimerson asked whether Moore possessed contraband, such as weapons or drugs. Moore denied possessing contraband.
Jimerson claimed drat when he requested permission to search the car, Moore replied that he could look wherever he wanted. Moore, however, testified that Jimerson only asked about the army duffel bag in the backseat, which Moore said contained laundry. Moore offered to show Jimerson the contents of the bag but claimed that any consent was limited to the bag. Instead of then searching tire bag, Jimerson asked Moore to open the trunk; Moore complied.
After searching the trunk, Jimerson looked underneath the car. He entered the car and searched the duffel bag, finding no fabric softener sheets inside, but noticing that the fabric softener smell was much stronger in the backseat area. He then searched both tire passenger and driver sides of the interior. He testified that from his experience, the quarter panel is a common drug concealment area in this type of car. The quarter panel apparently contained an ashtray area.
The record is unclear whether Jimerson removed the ashtray in the quarter panel or whether it had been removed prior to his entry into the car. He does not remember, and there is no testimony indicating that he removed it. Nevertheless, when he looked in the ashtray cavity area, he noticed a nonfactory hinge on the door quarter panel. He also saw a felt covering; it too was nonfactory. Jimerson concluded he was confronted with a nonfactory panel. He tiren pulled molding from around tire door edge and the plastic panel from the door, revealing a vacuum sealed package wrapped in fabric softener sheets. Inside of the package, Jimerson saw green vegetation that he believed was marijuana.
Upon Jimerson’s discovery, he instructed Oehn to arrest Moore, who was subsequently charged with possession of marijuana with intent to deliver, in violation of K.S.A. 65-4163(a)(3), and the failure to affix a drug stamp, in violation of K.S.A. 79-5204(a) and K.S.A. 79-5208. A later search revealed a total of 55 pounds of marijuana hidden in the vehicle.
Moore filed a motion to suppress the seized items. After hearing testimony and watching a videotape of the stop, the district court concluded that the search and seizure did not violate Moore’s Fourth Amendment rights. The court convicted Moore of both charges and sentenced him to 18 months’ probation with concurrent underlying prison sentences of 15 months for possession of marijuana with the intent to deliver and 6 months for failure to affix a tax stamp.
Moore appealed, and a majority panel of our Court of Appeals affirmed, with Judge Greene dissenting.
Other facts will be supplied as are necessary to the legal analysis.
ANALYSIS
Issue: The evidence was not seized in violation of Moore's Fourth Amendment rights.
Moore argues that the district court erred in failing to suppress for a number of reasons: he contends that the traffic stop was illegal; that even if the stop was legal, it was not lawfully extended because it did not become consensual nor was reasonable suspicion present; that even if the stop was legally extended, he did not give voluntary consent to the search; that even if he did give consent to the search, Jimerson exceeded the limited scope of the consent; and that even if he gave consent to search the entire car, Jimerson exceeded even that scope by impairing the structural integrity of the car in his door search.
Each reason will be addressed in turn.
Overall standard of review
The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides identical protection to the Fourth Amendment. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004). The State bears the burden to demonstrate that a challenged search or seizure was lawful. Anderson, 281 Kan. at 901.
Legality of the traffic stop
Moore first argues that the traffic stop was illegal. A traffic stop is a seizure under the purview of the Fourth Amendment. Thus, in order to stop a vehicle, “an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402(1) and Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). [Citation omitted.] A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual. [Citations omitted.]” Anderson, 281 Kan. at 901.
Whether reasonable suspicion exists is a question of law. We use a mixed question standard of review: whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996); United States v. Dodson, 109 F.3d 486, 488 (8th Cir. 1997).
The district court analyzed the stop as follows:
“The flow of traffic was about 68 miles per hour, at milepost 293, where tire car was stopped. And Mr. Moore’s car was .72 seconds behind the car in front of him, which is less, of course, than 1 second, and, at that speed constituted in the opinion of the officer, a violation of the statute, for following too closely. So, therefore, the Court finds that the stop here was legal.”
The stop was initiated based upon Jimerson s observation that Moore’s car was following another vehicle too closely on the highway in violation of K.S.A. 8-1523(a). It states: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” Jimerson concluded that Moore was following too closely by (1) calculating that Moore was traveling less than 1 second behind the other car, and (2) estimating the number of car lengths between the vehicles in relation to their speed of travel. Moore argues, however, that because the statute does not explicitly provide for “car length” or “2-second rule” tests, the tests are not appropriate indicators of a violation of the statute.
As the Court of Appeals majority acknowledged, no Kansas appellate cases have construed the statute. However, the Tenth Circuit has stated that the statute takes into consideration four variables: speed, following distance, road conditions, and traffic conditions. United States v. Vercher, 358 F.3d 1257, 1262 (10th Cir. 2004). In light of these conditions, the Vercher court upheld an officer’s determination that the defendant was following too closely based on the car length test. 358 F.3d at 1261-62. Additionally, the Tenth Circuit has also concluded that an officer’s use of the 2-second rule provided a “ ‘minimum level of objective justification’ required for reasonable suspicion justifying a traffic stop.” United States v. Nichols, 374 F.3d 959, 965 (10th Cir. 2004), vacated and remanded on other grounds 543 U.S. 1113 (2005), conviction reinstated 410 F.3d 1186 (2005).
The Court of Appeals majority acknowledged that Moore disputed Jimerson’s version of the events. Moore testified that he was never closer than 100 feet behind the car in front of him, and that the red car was not directly in front of him, but was rather in the passing lane. An appellate court, however, does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2004). The district court’s findings, based upon Jimerson’s testimony, are supported by substantial competent evidence.
Under the rationale of both Vercher and Nichols, we independently conclude that Jimerson’s use of two different tests provided an objective justification required for reasonable suspicion justifying the stop of Moore’s vehicle.
Extension of the traffic stop
Moore next argues that even if the traffic stop was legal, it was not lawfully extended because it did not become consensual nor was reasonable suspicion developed during the stop.
In Anderson, this court discussed what an officer may do during a routine traffic stop:
“A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning.” 281 Kan. at 902.
A driver may be detained after a routine traffic stop, however, if the encounter becomes consensual. State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). As the Court of Appeals majority stated, an encounter is not consensual where a reasonable person would not feel free to leave. 34 Kan. App. 2d at 801 (citing State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 [1997]). The Reason court also held that the reasonable person test is determined by-looking at the totality of the circumstances. 263 Kan. at 411. This analysis therefore bears considerable similarity to the one for determining “custody” during a police interrogation. See State v. James, 276 Kan. 737, 749, 79 P.3d 169 (2003) (An objective standard is utilized to judge whether an interrogation is custodial. The proper analysis examines how a reasonable person in the suspect’s position would have understood the situation. The determination is made based upon a totality of the circumstances applying the objective standard of a reasonable person.).
Accordingly, like the analysis for custody, we conclude the appellate analysis for whether a reasonable person would feel free to leave after a traffic stop should consist of two parts: first, the factual underpinnings of a district court’s decision are reviewed under a substantial competent evidence standard; second, the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to leave, is reviewed under a de novo standard. See James, 276 Kan. 750-53; see also Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206 (2003) (whether extension of a lawful detention for a traffic infraction is consensual, i.e., whether a reasonable person would feel free to leave, is a mixed question of fact and law [citing Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996)]); United States v. Smith, 423 F.3d 25, 31 (1st Cir. 2005) (mixed question of fact and law, citing Ornelas); and State v. Story, 53 Conn. App. 733, 739, 732 A.2d 785 (1999).
Here, the district court determined that the encounter became consensual:
“Officer Oehm arrived shortly after— within, it seemed to the Court, virtually minutes of the stop by Lieutenant Jimerson. The papers, driver s license, etc., were returned to the defendant. Officer — Lieutenant Jimerson testified the defendant was extremely nervous, which flies in the face of testimony that of Officer Oehm, who said the defendant was a little bit nervous, of course, I believe that’s probably a subjective thing by each one of those officers. In any event, he did show some nervousness.
“According to Lieutenant Jimerson, and his testimony was clear on this, and the Court wrote it down, put a check mark by it, the question was asked, Can I search your car? And the answer, according to Lieutenant Jimerson — I know that this is all disputed by the defendant — but the answer by die defendant was, you can look wherever you want. Period. Now, that’s the testimony I wrote down, specifically by Lieutenant Jimerson.
“Now, this' — I understand that the defendant had his hand on the gear shift and was ready to put the car in gear to leave around the same time that — that that happened. The defendant never put the car, obviously, in drive and did not drive away. And so I suppose there’s a question about whether or not he felt he was free to go.
“Court finds that — under all of the circumstances existing in this case, that the defendant — is reasonable for the Court to believe the defendant believed he was free to go.
“[T]he Court believes that . . . the defendant knew he was free to leave.”
On the other hand, the Court of Appeals majority disagreed that the Jimerson-Moore encounter became consensual:
“The district court relied on evidence the defendant placed his hand on the gearshift level in determining the defendant felt free to go. This evidence, apparently, is the only evidence upon which the court based its decision the defendant felt unrestrained by the officer. We further note that, according to Trooper Jimerson, the defendant was told the officer was finished with him at the time the license and registration were returned.
“In contrast, the record undisputably demonstrates that Trooper Jimerson activated his emergency lights to stop the defendant’s vehicle. After returning the defendant’s license and registration, the trooper did not move away from the car but immediately asked if the defendant would answer some questions. During this time, Officer Oehm was standing near the defendant’s vehicle. When two officers are standing next to a stopped vehicle, presumably with the emergency fights still activated, no reasonable person would feel free to drive away. See State v. Morris, 276 Kan. 11, 22-23, 72 P.3d 570 (2003) (discussing a string of cases dealing with the use of emergency fights as a show of authority). Under the circumstances presented in this record, the further detention of the defendant cannot be deemed consensual.” 34 Kan. App. 2d at 802.
The majority assumes that Jimerson’s lights were activated throughout much of the stop. The videotape does not support this assumption. The tape does disclose, however, that Jimerson is a large, physically imposing individual. It also discloses that for some time after returning the license and registration and after telling Moore that is “all I have for you,” he remained with his face at the passenger-side window, apparently alternating between leaning on and nearly touching the frame. The videotape, and Jimerson s testimony, establish that Oehm, also armed, was close behind him. See Anderson, 114 F.3d 1064 (presence of more tiran one officer may indicate coercive authority). It was during this time that Jimerson asked Moore if he would answer some questions. Based upon these facts, we independently conclude that a reasonable person would not feel free to leave. We agree with the majority that the district court erred in holding the detention was consensual.
Absent a consensual extension of the stop, further questioning is permissible only if during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. See DeMarco, 263 Kan. at 734. As mentioned, our review of reasonable suspicion is a mixed question of fact and law.
In DeMarco, this court discussed additional considerations for how “reasonable suspicion” is evaluated:
“ “What is reasonable is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement. [Quoting State v. Toney, 253 Kan. 651, 656 (1993)]. . . .
‘[W]e judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious,” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preponderance of die evidence.” ’ ” 263 Kan. at 734-35 (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]; citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]).
Similarly, the United States Supreme Court has stated:
‘While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification .... [Citation omitted.] The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation omitted.]” Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000).
Here, Jimerson testified that he was suspicious of illegal activity based upon: (1) Moore’s severe nervousness; (2) the odor of dryer sheets/fabric softener in the car; (3) Moore’s travel route from Las Vegas to Maryland (4) with little clothing; and (5) the fact the car was not registered to Moore. His testimony constitutes substantial competent evidence to support the findings made by tire district court, as supplemented by the majority from the record on appeal.
Because the district court found Moore consented to extend the stop, it really did not address the alternative basis of reasonable suspicion. It did, however, acknowledge the presence of Moore’s nervousness and Jimerson’s smell of fabric softener:
“Lieutenant Jimerson testified the defendant was extremely nervous, which flies in the face of testimony that Officer Oehm, who said the defendant was a little bit nervous — of course, I believe that's probably a subjective thing by each one of those officers. In any event, he did show some nervousness.
“Lieutenant Jimerson smelled an odor of fabric softener coming from within the vehicle driven by tire defendant, and believed because of the indicators and Iris experience in these matters flrat the defendant may have had illegal narcotics in the car.”
In concluding Jimerson possessed a reasonable suspicion to extend the stop, the majority examined DeMarco, 263 Kan. 727. There, eight factors contributed to an officer’s suspicion that defendants were transporting drugs: (1) nervousness; (2) cross-country travel from a city known as a source for drugs; (3) an indirect route of travel; (4) a rental car; (5) a short return time of 3 days for the rental car; (6) travel on 1-70, a known drug trafficking route; (7) inconsistent stories about how the men reached California; and (8) criminal history. 263 Kan. at 735-41.
The DeMarco court discussed the role “nervousness” plays in the reasonable suspicion inquiry: “ It is certainly not uncommon for most citizens — whether innocent or guiliy — to exhibit signs of nervousness when confronted by a law enforcement officer. [Citations omitted.]’ ” 263 Kan. at 736 (quoting United States v. Wood, 106 F.3d 942, 948 [10th Cir. 1997]). The court noted that while nervousness alone is not enough to form reasonable suspicion, when coupled with other factors, reasonable suspicion may arise. 263 Kan. at 739-41.
The Court of Appeals majority asserted that the factors discussed in DeMarco are similar to the factors cited by Jimerson:
“The defendant [Moore] appeared more nervous than typical drivers during a routine traffic stop. However, as indicated in DeMarco, Trooper Jimerson had no prior interactions with this particular defendant to base his opinion that the defendant’s symptoms of nervousness were indicative of criminal activity. As a result, while this factor can be considered, it is not alone indicative of criminal activity.
“Here, prior to the termination of the traffic stop, the investigating officers learned that the defendant was traveling across the country from Las Vegas to Baltimore. Unlike in DeMarco, the route used was a reasonably direct route between those destinations. However, the vehicle driven by the defendant was not registered to him. These are factors a court may consider in determining whether an officer possessed reasonable suspicion to justify a longer detention than required to effect the traffic stop, albeit very weak factors. [Citation omitted.]” 34 Kan. App. 2d at 804.
After acknowledging similarity to the present case, the majority noted that DeMarco did not involve the odor of fabric softener dryer sheets. The majority concluded that the odor of dryer sheets “represents a significant departure from the facts of DeMarco, as this factor relates specifically to a known technique related to drug trafficking.” (Emphasis added.) 33 Kan. App. 2d at 804.
As discussed by the majority, other jurisdictions have concluded that the odor of dryer sheets, even when combined with nervousness, does not give rise to reasonable suspicion. See State v. Thompson, 256 Ga. App. 188, 190, 569 S.E.2d 254 (2002) (“Although laundry detergent and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal substances that can be used for a legal purpose and thus do not justify the officer’s further detention . . . .”); Rios v. State, 762 N.E.2d 153, 157 (Ind. App. 2002) (seizure and search of package was not justified by reasonable suspicion where the sender’s mailing address was California, and the package, which bore an odor of dryer sheets, was sent next-day air; nevertheless, smell testing by a trained dog was itself sufficient to support probable cause); and Com. v. Phinn, 761 A.2d 176, 186 (Pa. Super. 2000) (driver’s strange behavior and the odor of dryer sheets did not support reasonable suspicion); see also Charity v. State, 132 Md. App. 598, 630-31, 753 A.2d 556 (2000) (odor of a large quantity of air fresh eners contributed to officer s “strong hunch” of drug related activity, but did not raise an articulable suspicion, even when combined with other factors).
Despite acknowledging the contrary authority, the majority found persuasive reasoning from the Eighth Circuit, which concluded that an odor of a known masking agent may be indicative of illegal drug activity. See United States v. Pollington, 98 F.3d 341, 343 (8th Cir. 1996) (driver s nervousness, the odor of laundiy detergent known to be commonly used by drug traffickers to mask smell of narcotics, and the use of a gas-guzzling motor home to drive from Michigan to Las Vegas for a brief trip justified detention after traffic stop); and United States v. Bloomfield, 40 F.3d 910, 918-19 (8th Cir. 1994), cert. denied 514 U.S. 1113 (1995) (driver s nervousness, possession of a pager, and the strong odor of a masking agent justified detention). The majority concluded that Pollington and Bloomfield stand for the proposition that a strong odor of a masking agent is “highly probative of illegal drug activity.” 33 Kan. App. 2d at 805.
The majority also examined another Eighth Circuit case, United States v. Carrate, 122 F.3d 666 (8th Cir. 1997). There, the court discussed several factors that justified further detention following a valid traffic stop:
“The troopers testified that the following factors raised their suspicion that Tinoco [Carrate] may have been transporting drugs: (1) Tinoco was not the owner of the vehicle, (2) Tinoco was in route from California to Illinois, (3) California is a point of origin for illegal drugs, (4) Chicago is a common destination for the shipment of illegal drugs, (5) Tinoco had very litde clothing in the car to suggest a legitimate trip, (6) the six year-old car had high mileage, and (7) Tinoco had a prior criminal history in California. The experience and training of the troopers had informed them that the listed factors were consistent with and indicative of drug courier characteristics.” 122 F.3d at 669.
Apparently relying on the reasoning of Carrate, the majority upheld Moore’s detention: “While it may be a close case, we believe that under these circumstances a reasonably prudent law enforcement officer would have possessed a suspicion the vehicle was being used for drug trafficking.” 34 Kan. App. 2d at 806. Therefore, it concluded that Jimerson was justified in asking some further questions to investigate his suspicion, and that later Moore’s consent justified the continued detention and search.
Judge Greene dissented from his two colleagues:
“Moore had reasonable and plausible explanations for both his possession of the vehicle and his route. Nervousness must be discounted, as recognized by the majority. Accordingly, this case turns on the impact of the perception by the officer of-the odor of fabric softener dryer sheets.
“I respectfully suggest that the Eighth Circuit Court of Appeals’ cases relied upon by the majority do not reflect the better approach to this problem, nor can they be squared with controlling authority from our own Kansas Supreme Court [DeMarco], As noted by the majority, most jurisdictions have concluded that the mere odor of dryer sheets, even when coupled with one or more mildly suspicious factors, does not support a finding of reasonable suspicion of criminal activity. . . . [It] is clear that the Eighth Circuit has a far more generous view of such factors than does our Kansas Supreme Court. Arguably, the factors deemed adequate in Carrate are considerably less weighty than those deemed insufficient in DeMarco. Accordingly, the majority’s reliance on the Eighth Circuit authorities seems misplaced.” 34 Kan. App. 2d at 811-12.
As we begin our analysis, we first note that DeMarco, which did not contain any fabric softener sheets or any odor possibly indicative of drugs, was a “close” case, and whether the evidence should have been suppressed, e.g., because no reasonable suspicion existed, was not an “easy” question. 263 Kan. at 741.
Second, we observe that a “masking agent,” despite having legitimate retail purposes, may also be used to conceal drugs and certainly may be considered in the reasonable suspicion calculus. United States v. West, 219 F.3d 1171, 1178-79 (10th Cir. 2000). The weight assigned to the odor, however, varies with the circumstances. State v. Malone, 274 Wis. 2d 540, 683 N.W.2d 1 (2004) (“The presence of seven or eight air fresheners in a vehicle occupied by three young men with an average age of 21 does not provide probable cause for the search of a vehicle, but it certainly raises suspicion and justifies reasonable inquiry.”).
Third, we also note that the Eighth Circuit’s Carrate opinion listed, as a factor supporting the court’s decision, the small amount of clothes carried by the driver for a trip of such duration. Similarly, Jimerson testified that was a factor justifying Moore’s detention. Like the majority, we acknowledge that Moore’s extreme nervous ness and his driving a car not registered to him cross-country and back are factors, although not necessarily strong ones. However, a car containing little clothing during a trip across the country, coupled with the odor of dryer sheets in the car, increases the possibility of reasonable suspicion. A law enforcement officer could legitimately question whether a man on a trip from Las Vegas to Maryland would stop along the way to do laundry with fabric softener sheets, or use the fabric softener sheets in Las Vegas while attending an army airborne reunion.
Next, we acknowledge the district court’s repeated references to Jimerson’s capabilities. The court took judicial notice that Jimerson instructs other law enforcement personnel on drug interdiction methods. It acknowledged that Jimerson has an “extreme amount of experience in interdiction of drug offenses” on highways in the State. The court stated that “[t]he court is aware ... he knows, or has reason to know, when a person may be involved in drug trafficking or delivery.” It also took notice that Jimerson has been involved as an officer in other appellate court cases involving vehicle stops and searches.
Jimerson’s testimony, coupled with his capabilities, supply a basis for us to conclude that reasonable suspicion exists to extend the traffic stop. See DeMarco, 263 Kan. at 735 (“ ‘[W]e judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] .... We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification.” ’ ”).
We emphasize that because whether reasonable suspicion exists depends upon the totality of the circumstances, a case-by-case evaluation is required. See DeMarco, 263 Kan. at 735. Accordingly, a broad reading of our opinion today is expressly discouraged. We do not advocate a total, or substantial, deference to law enforcement’s opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an “inchoate and unparticularized suspicion” or “hunch” of criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion. But, in this close case, we give appropriate deference to the opinions of a particular law enforcement officer on the scene who, with thousands of traffic stops, is highly experienced in roadside searches and seizures and determinations of reasonable suspicion.
Consent to search
Moore next argues that even if reasonable suspicion justified a further detention for questioning, his consent to search during the extended stop was not voluntary. The district court disagreed, simply finding drat consent was properly given and “was knowing, voluntary, and unequivocal.”
The State bears the burden of showing that the defendant’s consent to search was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Unlike our legal conclusions on whether a reasonable person would feel free to leave after return of Moore’s license and registration, voluntariness of a consent to search is a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996) (citing Schneckloth, 412 U.S. at 248-49). As stated by the majority, some evidence demonstrated that Jimerson requested Moore’s consent to search while by the passenger-side window. Neither Jimerson nor Officer Oehm drew their weapons. Moreover, Moore did not testify that he was threatened by the officers nor was his mental capacity challenged. Based on these facts, the majority reasoned that Moore’s consent was a product of his free will.
An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2004). Given our limited standard of review on this issue, we determine that substantial competent evidence — as stated by the majority — supports the district court’s factual finding that Moore’s consent to search was voluntary.
The scope of the consent to search
Moore next argues that even if his consent was voluntarily given, Jimerson’s search exceeded the scope and duration of his consent. He asserts that he only gave Jimerson permission to search the duffel bag. Nevertheless, he concedes that the scope of his consent was contested, and that resolution depends “on whom is believed,” i.e., a question of fact. We review findings of fact for substantial competent evidence supporting them.
The district court found that according to Jimerson,
“the question was asked, ‘Can I search your car?’ And the answer, according to Lieutenant Jimerson — and I know that this is all disputed by the defendant, but the answer by the defendant was, ‘you can look wherever you want.’ Period. Now, that’s the testimony I wrote down, specifically, by Lieutenant Jimerson.”
It ultimately denied Moore’s claim that the search violated the Fourth Amendment, impliedly holding that consent had been given to search the entire car.
The district court apparently believed Jimerson’s testimony over Moore’s. The majority of the Court of Appeals observed that an appellate court does not weigh the evidence or judge the credibility of witnesses. See Swanigan, 279 Kan. at 23. Accordingly, it “must adopt the district court’s finding that the scope of the search was not limited by the defendant’s consent.” 34 Kan. App. 2d at 806-07.
We agree with the majority. Given our limited standard of review, we determine that substantial competent evidence — Jimerson’s testimony — supports the district court’s finding of an unlimited scope of Moore’s consent.
Scope of consent and purported structural impairment of Moore’s car
Finally, Moore argues that even if he had given consent to search the entire car, such consent did not extend to Jimerson’s disassembling the car to look for contraband. In support, Moore cites People v. Gomez, 5 N.Y.3d 416, 805 N.Y.S.2d 24, 838 N.E.2d 1271 (2005). There, the police observed fresh undercoating around the gas tank and received the driver’s consent to search his car. One officer went to the rear seat, unlocked it, and pulled it back. He observed gray “nonfactory” carpet in the location above the area where he earlier had spotted fresh undercoating. He tiren pulled up the glued carpeting and found a floorboard cut. He used his pocketknife to twist open the sheet metal floorboard. When he failed to reach what he believed to be a plastic bag, he retrieved a crowbar and pried open part of the gas tank. Seven bags of cocaine were retrieved from the compartment in the gas tank.
The Gomez court concluded that tire search exceeded the scope of the defendant’s consent:
“In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a search that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. . . . Here, the officer clearly crossed the line when he took this action without first obtaining defendant’s specific consent.” 5 N.Y.3d at 420.
However, the Gomez court specifically expressed “no opinion as to whether the search was otherwise supported by probable cause” because that issue had not been reviewed below. 5 N.Y.3d at 421.
Our Court of Appeals majority determined that Jimerson exceeded the scope of Moore’s consent to search the entire car when he impaired the car’s integrity by removing tire molding:
“[T]he reasoning of the New York Court of Appeals is persuasive, especially in light of the dicta [discussed by the Gomez court] from Jimeno, 500 U.S. 251-52. The defendant’s consent did not extend to pulling plastic molding away from the quarter panel of the interior of the defendant’s vehicle, even if the molding was hinged to form a compartment.” 34 Kan. App. 2d at 807-08.
It then proceeded to hold that despite Jimerson exceeding the scope of Moore’s consent by pulling the molding loose, the resultant search was justified because of probable cause developed during the part of the search to which Moore had consented.
In our view, a Gomez-based analysis is unnecessary under our facts because Jimerson’s removal of the molding occurred only after probable cause had developed, entitling him to expand his search. See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997) (citing Florida v. Meyers, 466 U.S. 380, 381, 80 L. Ed. 2d 381, 104 S. Ct. 1852 [1984]) (“The Supreme Court has held that police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant.’ ”).
Pursuant to Moore’s consent, Jimerson had general authority to search Moore’s car; while within that scope he saw the ashtray. The majority correctly stated that Moore’s general consent to search enabled Jimerson to search all readily opened containers and compartments within the vehicle, including the ashtray. 34 Kan. App. 2d at 808 (citing Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 111 S. Ct. 1801 [1991]). It is unknown whether the ashtray had been removed prior to Jimerson’s search, or whether he did it.
When Jimerson looked in the ashtray cavity area, he noticed a nonfactory hinge on the door quarter panel. He also found a felt covering, which also was nonfactory. He concluded he was facing a nonfactory panel, which could lead to a hidden compartment. This additional information contributed to potential probable cause to continue a search. See United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002) (“It is well established that evidence of a hidden compartment can contribute to probable cause to search.”); see also United States v. Ledesma, 447 F.3d 1307, 1318 (10th Cir. 2006) (“Because the evidence was highly probative of the existence of a secret compartment, and because it is difficult to imagine a hcit purpose for a large hidden compartment in a vehicle the size of a Chevy van, these signs of a hidden compartment strongly suggest — and perhaps even singlehandedly establish — probable cause to search behind the side panels in the rear of the van.”).
The majority also correctly concluded that the evidence of a hidden compartment, coupled with the smell of fabric softener sheets (a smell now stronger in the backseat according to Jimerson’s testimony) often associated with masking the odor of drugs, constituted probable cause. 34 Kan. App. 2d at 808; see also United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990) (evidence of hidden compartment, along with inadequate amount of luggage for claimed duration of trip, furnished probable cause). Probable cause allowed Jimerson to extend his warrantless search. See Anderson, 114 F.3d 1059. Accordingly, probable cause allowed Jimerson to pull the molding from around the edge of the door where he observed the fabric softener-wrapped package of marijuana.
Before this court, Moore now suggests that Jimerson exceeded the scope of Moore’s search consent because, similar to Gomez, Jimerson impaired the car’s structural integrity by using a knife to pry out the ashtray. He further reasons that because Jimerson would be unable to see what lay beyond the ashtray while it was in place, Jimerson possessed no additional information, e.g., the compartment, which could add to his known information — including the fabric softener smell- — to produce probable cause.
As mentioned, the record on appeal is unclear about how the ashtray came to be removed and, if by Jimerson, whether he used a knife. Office Oehm testified that he thought “there was [an ashtray] removed.” Jimerson testified that he had a knife in his hand at one point but did not “remember . . . if I pulled out the ashtray” and “I don’t remember if it was already out or if I took it out.” The videotape appears to show an object in his hand, but the camera angle does not show any use of the object, particularly any prying. Nevertheless, Moore asks us to infer that Jimerson used his knife to take out the ashtray. If we are unwilling to draw such an inference, in the alternative he argues that tire burden of proof is on the State to prove a legal search. According to Moore, we therefore should hold that the State did not meet its burden to show Jimerson did not use his knife to remove the ashtray and did not impair the car’s structural integrity. We reject Moore’s position.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal brought by the appellant, Western Power & Gas Co., Inc., from judgments entered in four separate condemnation cases which were consolidated and tried before a single jury. In 1968 Western instituted a condemnation action to acquire easements across certain tracts of land in Barton County, Kansas, for the transmission of electrical energy. Western in talcing the easements contemplated the construction of power lines consisting of five wires combined to carry 230,000 volts of electricity. The power lines were suspended on two-pole settings called “H Structures.” On March 25, 1968, the court appointed appraisers filed their report assessing damages resulting from the taking of the easements by Western. Appeals were taken from the appraisers’ award by four separate sets of landowners to the district court of Barton County. Each appeal involved separately located tracts of land which may be described as follows: Harold C. Schwartz and Geraldine H. Schwartz appealed as owners of a 160 acre tract upon which Western installed four H pole structures. This will be called the Schwartz tract. Wilfred Schartz and Elsie Mae Schartz appealed as owners of a 160 acre tract on which Western installed two H pole structures. This we will call the Schartz tract. Robert W. Mermis appealed as the owner of a 160 acre tract on which Western installed two H poles. This will be called the Mermis tract. Wayne E. Pritchard and Helen Pritchard appealed as owners of an 80 acre tract on which Western installed one H pole structure. This we will call the Pritchard tract. No other appeals were taken from the award of the condemnation appraisers.
The district court of Barton county entered an order consolidating the four condemnation appeals for purposes of trial and they were all tried together in one jury trial over the vehement objections of Western, the condemning authority. The jury trial of the four consolidated actions took place on December 29, 30 and 31, 1969. The jury brought in a separate verdict in each of the four condemnation appeals. In the Schwartz appeal the original award was $1800 and the jury verdict was $8500. In the Schartz appeal the appraisers’ award was $900 which was increased by the jury to $8500. In the Mermis case the original award was $535 which was increased to $2000. In the Pritchard appeal the original award was $400 which was increased by the jury to $1000. Following the jury verdict in each appeal a motion was filed in each case by each landowner asking for an allowance of reasonable attorney fees, expert witness fees and costs incidental to the preparation of the case for trial. Each landowner further moved for interest on the excess of the judgment over and above the original award. The trial court approved the jury verdict in each case, awarded attorney fees to the landowners’ attorneys, Keenan and Keenan, in the total amount of $5600 for their services in all four cases and further allowed expenses of litigation over and above statutory costs in the amount of $2497.14. The basis of the trial court’s award of attorney fees and expenses of litigation was a finding by-the trial court that the landowners were entitled to them by virtue of the constitutional provision prohibiting the taldng of property without just compensation. The trial court awarded interest on each of the jury verdicts at the rate of 6% per annum from March 25, 1968, the date the original condemnation award was paid into court by Western, until July 1, 1969, and thereafter at the rate of 8% per annum until the balances owing on each judgment was paid in full.
Western filed a timely appeal to this court in each case complaining of a number of trial errors which will be discussed hereafter, and further objecting to the allowance of attorney fees and expenses of litigation and the allowance of interest at 8% after July 1, 1969. On this appeal the appellant Western urges seven points to be determined by this court.
Western’s first point is that the court erred in granting the landowners’ motion for allowance of attorney fees and other litigation expenses and in allowing interest upon the principal judgments at the rate of 8% per annum from July 1, 1969, until paid in full. The trial court awarded a judgment against Western for the landowners’ attorney fees in the amount of $5600 and for expenses of expert witnesses and expenses in preparation for trial in the total amount of $2497.14. These allowances were over and above the usual statutory court costs. In this case the trial court and also the appellant and appellees recognize the general rule in Kansas that attorney fees and expenses of litigation other than statutory court costs incurred by a party to an action, are not chargeable as costs against the defeated party in the absence of a clear specific statutory provision therefor. It is further conceded that the Kansas Eminent Domain Statute, K. S. A. 26-501, et seq. contains no such provision. (Gault v. Board of County Commissioners, 208 Kan. 578, 493 P. 2d 238.) The basis of the trial court’s ruling was that the landowners were entitled to recover attorney fees and other expenses of litigation in order to satisfy the guarantee of just compensation under the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 12, Section 4, of the Kansas Constitution. These constitutional provisions prohibit a state from taking private property for public use without the payment of just compensation. At the outset we are faced with the rule of law supported by the overwhelming weight of authority throughout the United States which declares that attorney fees and litigation expenses are not embraced within tire concept of just compensation for land taken by eminent domain. In this opinion we employ the term “litigation expenses” in the sense of costs not ordinarily made recoverable by statute. These would include expert witness fees and the multitude of expenses commonly incurred by attorneys in preparing a case for trial such as the cost of exhibits, travel expenses, postage and other incidental expenses of a similar nature. The leading case which recognizes the general rule is Dohany v. Rogers, 281 U. S. 362, 368, 74 L. Ed. 904, 50 S. Ct. 299. In 26 A. L. R. 2d 1295 there is an annotation which cites most of the state and federal decisions throughout the country. A recent case where the decisions on this subject are reviewed is County of Los Angeles v. Ortiz, 98 Cal. Rptr. 454, 490 P. 2d 1142. A review of the many cases discloses the following arguments for and against the allowance of such litigation expenses in a condemnation proceeding. The primary argument in favor of the allowance is that the condemner should be required to pay the landowner’s attorneys fees and expenses in order to fully compensate him and to make him whole for the loss of his property. It is further urged in support of this position that it is eminently fair to allow litigation expenses because the landowner innocently holds property the government covets and he is thus distinguishable from a defendant wrongdoer in ordinary civil litigation; that the landowner bears the burden of proving the value of his property and is virtually compelled to employ an attorney and expert witnesses in order to establish his claim; and that by compelling the landowner to assume litigation expenses to prove his claim he is required to bear more than his equal share of the financial burden of a public project.
Those opposed to the allowance of attorney fees and litigation expenses in condemnation appeals contend that if such an allowance were made a landowner would be tempted to gamble upon litigation rather than to accept offers of settlement thus greatly increasing the cost to the public of acquiring needed property and placing an added burden upon the judicial process. Furthermore, it is contended that a landowner is in no different position than an innocent victim of an automobile accident or a defective product who may also be compelled to file suit to obtain a fair award of damages, yet in those circumstances the victim of the wrong is not entitled to litigation expenses. Finally it is argued that a governmental agency which needs specific property for a project benefitting the public cannot be deemed a wrongdoer unlike the culpable defendant in a tort case and therefore it would be discriminatory to require the former to pay litigation expenses and not the latter.
In County of Los Angeles v. Ortiz, supra, the Supreme Court of California points out as follows:
“In this provocative debate the coloring is not black and white; all but the participants can see shades of grey. There is arguable merit to the equitable concepts advanced by both parties.” (p. 1147.)
We, like the Supreme Court of California, are impressed with the authorities which are almost unanimously in agreement that there is no constitutional compulsion to award attorney fees and litigation expenses to a landowner in a condemnation proceeding. The appellee landowners in this case have not offered any persuasive justification for overruling our recent decision in Gault v. Board of County Commissioners, supra, and the rule so universally accepted in other jurisdictions. We hold that the allowance of attorney fees and litigation expenses in condemnation cases is a matter of policy to be determined by the legislature of this state and not a matter of constitutional right. Since admittedly there is no statutory authority for awarding the attorney fees and litigation expenses awarded by the trial court in this case, we hold that the trial court was in error in making an award for these items.
Counsel for the landowners in their brief argue that such a rule will not effectively provide the protection of the courts where the award of the court appointed appraisers is ridiculously low and the amount involved in the case does not justify the expense of an appeal. It is important for the district court in a condemnation proceeding to follow a procedure which will provide as fair and impartial an appraisal and award as is reasonably possible. Under our former condemnation statutes, G. S. 1949, 26-101, and G. S. 1949, 26-201, the condemning authority filed its petition with the district court and the judge in an ex pai~te proceeding examined the petition and thereupon appointed the three appraisers. It was quite common for the condemning authority to supply to the court the names of its own handpicked appraisers who often came in with unusually low awards of damages. The landowners had no opportunity to participate in the selection of appraisers or in the preparation of the court’s instructions to them pertaining to their duties. The legislature obviously recognized this evil since it adopted a new Eminent Domain Procedure Act in 1963. By the provisions of K. S. A. 26-501 et seq. an eminent domain proceeding is commenced by the filing of a petition in district court and, rather than proceeding with the matter ex parte, the court is required to fix a time for the hearing on the petition and is further required to provide notice to the landowners of the date of the hearing for consideration of the petition and appointment of appraisers. At the time set for hearing in the notice the district court is then required by K. S. A. 26-504 to determine from the petition whether the plaintiff has the power of eminent domain and whether the taking is necessary to the lawful corporate purposes of the plaintiff and, if he so finds, enter an order appointing the appraisers to determine the damages to the interested parties resulting from the taking. We think it important that the landowner parties were given an opportunity to appear prior to the appointment of the appraisers so that they might participate in the selection of the appraisers by suggesting names of appraisers to the court. It should be noted that K. S. A. 26-504 vests in the district court a broad discretion in the appointment of the appraisers. In exercising such discretion the court may appoint appraisers suggested by the condemning authority or appraisers suggested by the landowners, or appraisers not suggested by any of the parties. We think it obvious that the district court should not appoint appraisers suggested by the condemning authority as a matter of coruse since this was one of the evils which the 1963 Eminent Domain Procedure Act sought to avoid. The important point is that the district court at the time of the original hearing on the condemnation petition should take pains to see that appraisers are appointed who will be impartial and who will seek to make an award of damages which is fair to all the parties concerned. Under K. S. A. 1971 Supp. 26-505 the judge is required to instruct the appraisers to the effect that they are officers of the court and not representatives of the plaintiff or any other party, and that they are to receive their instructions only from the judge. Since at all times both the condemner and the condemnee landowners are allowed to be present and represented, it is clear that the district court may consider their suggestions as to instructions to be given to the appraisers and where appropriate may even suggest the consideration of changes in engineering plans by the condemning authority in order to avoid unnecessary damage to a landowners tract of land thus avoiding unnecessary public expense. The ultimate goal to be sought is a fair and just award to protect the rights of all parties in order to avoid unnecessary appeals and unwarranted expenses to any of the parties involved.
We turn now to the question of the allowance of interest on the judgment awarded the landowners in each case. In determining this issue we encounter two conflicting statutes covering the question of interest on judgments. The parties are in agreement that the difference between the original award and the amount awarded by the jury in each case should bear interest at 6% from March 25, 1968, when the original amount was paid in by Western until July 1, 1969. The dispute arises as to the rate of interest which each judgment should bear from July 1, 1969, and thereafter until each judgment is paid. July 1, 1969, was the effective date of K. S. A. 1971 Supp. 16-204 which provides:
“All judgments of courts of this state shall bear interest from the day on which they are rendered, at the rate of eight percent (8%) per annum, except as otherwise provided.” [Emphasis supplied.]
The former statute K. S. A. 16-204 provided:
“All judgments of courts of record and justices of the peace shall bear interest from the day on which they are rendered, at the rate of six percent per annum, except as herein otherwise provided.” [Emphasis supplied.]
Since K. S. A. 16-204 was found in Chapter 16, Article 2, of the Kansas Statutes pertaining to the subject of Interest, the statute as it read prior to the amendment in 1969 would have to be interpreted as stating in effect that all judgments would bear interest at 6% per annum except as they might be limited by other sections of Article 2, Chapter 16. The new statute K. S. A. 1971 Supp. 16-204 eliminates the word “herein” and had the effect of broadening the exception to include any statute which might be found anywhere in the Kansas statute books. Such an exception to the operation of K. S. A. 1971 Supp. 16-204 is found in the Eminent Domain Procedure Act at K. S. A. 26-511 which section provides for interest as follows:
“If the compensation finally awarded on appeal exceeds the amount of money previously paid to the clerk of the court, the judge shall enter judgment against the plaintiff for the amount of the deficiency with interest thereon at the rate of six percent (6%) per annum from the date of the payment to the clerk to the date of payment of tire deficiency judgment. If the compensation finally awarded on appeal is less than the amount paid to the clerk of the court by the plaintiff the judge shall enter judgment in favor of the plaintiff for the return of the difference, with interest at the rate of six percent (6%) per annum from the time payment was made to the clerk to the date of the judgment.”
It should be noted that K. S. A. 26-511 applies where the damages awarded on appeal are less tiran the amount of the original award as well as in cases where the damages allowed by the jury are more than the amount of the original award. In both situations interest at the rate of 6% per annum is applied. We hold that K. S. A. 26-511 is one of the statutory exceptions contemplated by K. S. A. 1971 Supp. 16-204 and that in condemnation cases interest at the rate of 6% is to be allowed by the court rather than the 8% interest provided in K. S. A. 1971 Supp. 16-204. Such a conclusion is also consistent with the rule of statutory construction that a specific statutory provision controls over a general statutory provision covering the same subject matter. (Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772.) From what has been said it follows that the trial court was in error in granting interest at 8% per annum on each judgment after July 1, 1969. The proper rate of interest to be applied is 6% per annum.
As its second point on this appeal Western contends that the trial court erred in consolidating the four cases for trial before a single jury. The trial court consolidated the four cases on its own motion under the authority of K. S. A. 1971 Supp. 60-242 (a) which reads as follows:
“When actions involving a common question of law or fact are pending before the court, in the same county, or in different counties, in the judicial district, the judge may order a joint hearing or trial of any or all of the matters in issue in the actions; he may order all the actions consolidated; and may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”
K. S. A. 1971 Supp. 60-242 (a) is substantially identical to Rule 42 of the Federal Rules of Civil Procedure. It has been stated that the purpose of Rule 42 is to give the court a broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties. (Wright & Miller, Federal Practice & Procedure: Civil § 2381.) The consent of the parties is not required. It is for the court to weigh the saving of time and effort that consolidation would produce against any inconvenience, delay or expense that it would cause. (Wright & Miller, Federal Practice & Procedure: Civil §2383.) The statute provides that actions may be consolidated where they involve “a common question of law or fact.” In the case at bar each of the four condemnation appeals arose out of a common condemnation action instituted by the appellant Western. All of the landowners were represented by the same law firm. In each of the four condemnation appeals the same expert appraisers were used by the landowners and the condemning authority. The landowners’ interest taken in each case was identical in nature with the others. Each of the four tracts involved was cultivated agricultural land. Three tracts consisted of 160 acres and one tract was 80 acres. All the tracts were located in Barton County. A common question in each case was the extent of the damages resulting to agricultural land as a result of the taking of an easement for an electrical transmission line. We hold that the actions involve common questions of law and fact within the meaning of K. S. A. 1971 Supp. 60-242 (a). The question of consolidation of actions under K. S. A. 1971 Supp. 60-242 (a) is a matter which lies within the sound discretion of the trial court. (Aspelin v. Mounkes, 206 Kan. 132, 476 P. 2d 620.) This statute should be liberally construed to achieve the end sought. In exercising its discretion the court should carefully consider all the facts and circumstances and either consolidate the actions or deny consolidation in accordance with the demands of justice. Here the original awards of the appraisers in the four condemnation cases were in the amount of $400, $535, $900 and $1800. It is clear that by consolidation of the four cases for trial the saving of time and expense would be substantial in view of the low monetary awards made by the court appointed appraisers. It is questionable whether it would have been economically feasible for the landowners to have tried each case separately. Under all the facts and circumstances we hold that the trial court did not abuse its discretion in ordering consolidation of the four cases for trial and we find no error therein.
In its third point appellant Western contends that it was error for the trial court to deny Western’s request for a view of the four tracts by the jury. The rule is well established in Kansas that whether or not the jury should be permitted to view the premises is a matter resting in the sound discretion of the district court. (K. S. A. 1971 Supp. 60-248 [b]. Dibble v. State Highway Commission, 204 Kan. 111, 460 P. 2d 584.) In this case the record discloses a large engineering diagram for each tract drawn to scale showing the location of the easement and the electrical transmission line. In addition the jury had before it fifteen 8" x 10" photographs of the tracts in question. Some of the photographs were aerial photographs and others were taken from the ground level. The court exercised its discretion in refusing the request of Western for a view of the tracts by the jury. We find no abuse of discretion has been established here.
The appellant Western contends that the trial court erred in failing to give to the jury certain instructions requested by the appellant. One instruction involved the Schartz property and was as follows:
“You are instructed that Wilfred Schartz does not own the working interest in the oil and gas lease applicable to his tract and therefore as long as there is oil production from the Schartz tract, said oil and gas lease remains in effect and Schartz does not have the right to remove any pumping equipment, lease roads, or tank batteries from the land. You are further instructed that as long as there is oil production from the Schartz tract and said off and gas lease remains in effect, Schartz does not have the right to make any changes whatsoever in the surface of the Schartz tract or do anything which would violate any of the terms of said lease, including any act by Schartz which would prevent or hinder the exploration, mining, production, collection, or distribution of oil or gas from his land or the entering upon or departing from the land.”
Another requested instruction involved the Schwartz property:
“You are instructed that if there is any oil or gas under the Harold Schwartz land it belongs to others and not to Schwartz for at least 50 years from June 14, 1958. You are further instructed that any and all rights to explore, mine, produce, collect, distribute oil or gas or go upon or leave the Schwartz land, as well as the doing of all things necessary or incident to the said production of oil or gas (including the construction of lease roads, tank batteries, and other structures) belong to others and not to Schwartz for at least 50 years from June 14, 1958. You are instructed this means that for at least 50 years from June 14, 1958, Schwartz will therefore not have the right to make any changes whatsoever in the surface of the Schwartz tract or do anything which would prevent or hinder any act necessary or incident to the exploration, mining, production, collection, or distribution of oil or gas, including preventing or hindering the going upon or leaving the land for such purposes or the construction of lease roads, tank batteries, or other structures.”
The trial court refused to give these two instructions on the grounds that they were “slanted” instructions. In recent years certain basic principles have been accepted as guides in drafting jury instructions. The first of these principles is that the instructions should be impartial, accurate statements of the law and drawn with careful attention to supporting authorities. The second principle is that instructions should be stated in brief, simple language that would be clear and understandable to laymen. The third principle is that they should be general instructions adaptable to varying circumstances. Instructions should be avoided that are slanted, argumentative, or formulated to particularize one aspect of a case. These principles are discussed in the preface to Pattern Instructions for Kansas (PIK-Civil). We have held heretofore that a court should not single out a particular theory or circumstance and give it undue emphasis, even though the requested instruction correctly states the law. (Kettler v. Phillips, 191 Kan. 486, 488, 382 P. 2d 478.) Jury arguments should be left to the summations of counsel. The requested instructions quoted above obviously singled out portions of the evidence and in effect argued and emphasized the theory of the appellant. The refusal of the trial court to give them was not error.
Western further urges as trial error the failure of the court below to give the following instruction requested by appellant:
“You are instructed that the fear of a remote and contingent injury which may possibly occur because of the presence of the easement for the transmission line, and the maintenance of the transmission line thereon, the happening of which is remote, speculative and uncertain and merely possible, including accidents, actions of the elements, and acts of God, over which the defendant has no control cannot form the basis for allowance of damages in these cases and should not be considered by you in determining the amount of any award.”
In lieu thereof the court gave Instruction No. 9 in which the court instructed the jury that in arriving at the market value of the land and the interest taken, its considerations must not be speculative, conjectural or remote. The general instruction to the jury that its considerations must not be speculative, conjectural or remote was sufficient to cover the specific matters contained in Western’s requested instruction and we find no error here.
The last point raised on this appeal by Western is that the trial court erred in refusing to grant a new trial and in refusing to reduce the amount of the award notwithstanding the verdict of the jury because the verdicts were influenced by passion and prejudice and not supported by substantial competent evidence. A review of the record discloses that the verdict in each of the cases was clearly within the range of the testimony of the expert witnesses who testified for the parties. As in many condemnation cases the jury took the middle ground. We hold that the verdict in each case was supported by substantial competent evidence.
For the reasons set forth above the judgment of the trial court in each case is reversed as to the allowance of attorney fees, expenses of litigation and the allowance of interest on the judgment at 8% per annum rather than 6% per annum after July 1, 1969. In all other respects the judgments are affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an interlocutory appeal in a survival action brought on behalf of the estate of plaintiff’s deceased who died from injuries caused by the negligence of defendant’s deceased.
In a pretrial order the trial court ruled that future lost earnings could not be recovered as an element of damages, holding that damages for such item could only be recovered up to the time of death.
The trial court found that the ruling involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation, pursuant to K. S. A. 60-2102 (b). Upon plaintiff’s application to this court under our Rule 5 relating to appellate practice permission was granted to appeal from the order.
As authorized by Rule 6 (o) the parties have submitted an agreed statement upon which the appeal is presented, which reads:
“The present appeal arises out of an automobile collision which occurred on August 10, 1969, on the Kansas Turnpike near the 65th Street Overpass, in Wyandotte County, Kansas, at about 10:00 o’clock P. M. On that date Elva L. Brockman, mother of the plaintiff-appellant, was riding as a passenger in a vehicle being driven by her son-in-law, Raymond L. Nichols. As Mr. Nichols proceeded easterly on the Turnpike, at the time and place indicated, a head-on collision occurred between his vehicle and the one being driven by defendantappellee’s deceased, Frank W. Frombaugh. Plaintiff-appellant’s deceased sustained injuries in the collision which resulted in her death. Plaintiff-appellant, as Administratrix, has brought two actions as a result of her mother’s injuries and death: The instant action brought by her as Administratrix of the estate of her mother for the damages sustained by her mother’s estate, and another action which is not involved in this appeal, which she brings as the next of kin. for the wrongful death of her mother.
“The defendant-appellee admits that his deceased was driving his vehicle in a westerly direction in the east-bound lane of traffic on the Turnpike, and that the collision occurred between the vehicles at the time and place indicated, and admits the negligence of his deceased was the direct and proximate cause of the collision and that there was no contributory negligence on the part of Raymond L. Nichols or plaintiff-appellant’s deceased.
“In the instant case, among the damages sought by plaintiff-appellant, are those for the lost earnings and earning capacity of her mother which can be proved, for her life expectancy undiminished by the event of her death as a result of the negligence of defendant-appellee’s deceased.
“The Trial Court ruled on defendant-appellee’s motion challenging the right of plaintiff-appellant to recover for future lost earnings and earning capacity beyond the date of death of plaintiff-appellant’s deceased, that plaintiff-appellant could not recover damages in the survival action for future lost earnings and earning capacity of her deceased, Elva L. Brockman, beyond her death.
“The sole question presented on this appeal is whether the Administratrix of the estate of Elva L. Brockman, deceased, who admittedly died from injuries sustained as the result of the negligence of defendant-appellee’s deceased, may recover damages for all lost wages and earning capacity which she would have earned during her normal life expectancy had she not met her untimely death.”
By way of further background helpful to an understanding of the entire situation the record on appeal reveals that plaintiff’s deceased, Elva L. Brockman, lived approximately one hour following the collision, then died as a result of the injuries sustained in the collision. During the period she lived after the collision she was conscious and experienced pain and suffering. As indicated, plain tiff, a daughter of Mrs. Brockman, has brought two actions as a result of her mother’s injuries and death: This proceeding, a survival action pursuant to K. S. A. 60-1801, as administratrix of her mother’s estate for damages in the sum of $146,000 sustained as a result of the injuries; and another, a wrongful death action pursuant to K. S. A. 60-1901, et seq., in behalf of the next of kin for their damages in the sum of $37,059.93 for the mother’s death.
The appeal presents a single question — whether recovery may be had in a survival action for loss of earnings and earning capacity beyond the time of the decendent’s death where the death was caused by the defendant’s negligence? The precise issue is one of first impression here.
K. S. A. 60-1801 provides in pertinent part:
“Survival of actions; what causes of action survive. In addition to the causes of action which survive at common law, causes of action . . . for an injury to the person . . . shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
Our wrongful death statute, K. S. A. 60-1901, provides:
“Cause of action. If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he lived, in accordance with the provisions of this article, against the wrongdoer, or his personal representative if he is deceased.”
K. S. A. 60-1902 provides:
“Plaintiff. The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. . . . The action shall be for the exclusive benefit of all of the heirs who [have] sustained a loss regardless [of] whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.”
K. S. A. 1969 Supp. 60-1903, in effect at the time of Mrs. Brock-man’s death, fixed the maximum amount of damages recoverable at $35,000.
K. S. A. 60-1904 provides:
“Elements of damage. Damages may be recovered for, but are not limited to: Mental anguish, suffering, or bereavement; loss of society, companionship, comfort, or protection; loss of marital care, attention, advice or counsel; loss of filial care or attention; and loss of parental care, training, guidance, or education, and the reasonable funeral expenses for the deceased. If no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became hable for the same. Such expenses and also any amount recovered for funeral expenses shall not he included in the limitation of section 60-1903.”
K. S. A. 60-1905 provides for an apportionment among the heirs of any amount recovered to be made by the trial court according to the loss sustained by each.
The trial court held that under the survival statute recovery is limited to losses of the victim prior to his death, that is to say, recovery is permitted only for elements of damage occurring prior to death, including the decedent’s pain and suffering, medical expenses and loss of time and earnings from the date of injury to the date of death.
In its rationale the trial court pointed out that Kansas is one of a few remaining states which still maintains by statute an arbitrary ceiling on the amount recoverable in a wrongful death action, albeit that limitation has been periodically increased. The court expressed concern that if future earnings beyond the time of death were permitted to be recovered in a survival action there could be a duplication of recovery and the effect would be to circumvent the legislative limitation prescribed in the wrongful death statute, considering the two statutes as a part of a single legislative plan or in pari materia.
Plaintiff-appellant contends 60-1801 places no limitation on the damages recoverable; that it simply states the action survives; it preserves the right to claim all damages her decedent would have had had she lived, and the event of death has no bearing on those damages.
In support appellant points to the following language used in Prowant, Administratrix, v. Kings-X, 185 Kan. 602, 347 P. 2d 254, (which on rehearing reversed the initial decision in the same case):
“. . . the survival statute, G. S. 1949, 60-3201, means just what it says; that an action for personal injury survives the death of the injured party, and that the cause of the death has no bearing upon the survival of the action.” (p. 603.)
The Prowant decision on rehearing incorporated by reference the dissenting opinion contained in the first Prowant case, reported at 184 Kan. 413, 337 P. 2d 1021. The dissent had this to say about the predecessor of our present survival statute:
“At common law, one who had suffered injury to his person because of the alleged neglect of the defendant, as alleged in the case at bar, had a cause of action against the defendant sounding in the form of action of trespass on the case. But at common law such action did not survive the death of the plaintiff or of the defendant. Section 60-3201, or section 420 under the old code, was enacted to remedy that situation and provide that the already existing action might survive and continue to be maintained regardless of the death of the parties. It will be noted that the section has never been qualified in any manner either under the old code or as now found in the statute book. The statute simply says the action survives.” (p. 417.)
The dissent contained language indicating our survival and wrongful death statutes were not to be considered in pari materia because they had been enacted ten years apart (p. 418).
Appellant also emphasizes certain language quoted in the dissent from an opinion by Justice Brewer in Hulbert v. City of Topeka, 34 Fed. 510, as follows:
“*. . . the measure of damages and the basis of recovery under the two sections [survival and wrongful death] are entirely distinct.’” (p. 419.)
Appellant further points to language found in Goodyear, Administratrix, v. Railway Co., 114 Kan. 557, 220 Pac. 282, respecting Lord Campbell’s Act, upon which our wrongful death statute is patterned, as follows:
“This was held to create a new cause of action, one which arose only when death resulted from the injuries, and to permit the recovery of damages, different in their nature from those which could be recovered in an action brought by the injured person, viz.: the pecuniary damages sustained by the dependents by reason of the death of the injured.” (p. 562.)
Nothing in the foregoing compels the conclusion sought by appellant, that is, that damages for all future lost earnings are recoverable in a survival action, for the reason that none of the cited cases was concerned with recovery of that item. In Prowant the ruling was simply that a cause of action for tortious injury survives death even though the death be the result of the tortious act causing the injury and may be maintained along with a wrongful death action. Resort to the survival action petition in that case discloses that damages were sought therein only for decedent’s losses occurring between the time of injury and the time of death..
We are concerned here with determining legislative intent in the enactment of the two statutes — survival and wrongful death. Despite what might be otherwise inferred from certain language found in the Prowant dissent already referred to, we are convinced the two are in pari materia and should be construed together in an effort to ascertain what legislative pattern has been prescribed for recovery where a single tortious act results in injury and death. To be in pari materia statutes need not have been enacted at the same time (2 Sutherland Statutory Construction [3d ed., Horack] §5202, p. 537). In Thoman v. Farmers & Bankers Life Ins. Co., 155 Kan. 806, 130 P. 2d 551, the court quoted approvingly this statement:
“ ‘Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.’ ” (p. 810.)
Do the two statutes in question relate to the same subject matter for our purposes here? It should be borne in mind we are concerned with recovery for loss of future earnings or earning capacity beyond the point of death. The survival statute, where applicable, abrogates the common law rule that a personal right of action dies with the person. It keeps alive in the name of the personal representative the decedent’s own cause of action. Loss of earnings or earning capacity is recoverable by the decedent in his life time and should he live so long he might recover for that permanent total loss, based upon his life expectancy. On the other hand the decedent’s heirs at law may recover for loss of support under the wrongful death act. It cannot be gainsaid that destruction of earning capacity may form the basis for the claim for this loss of support. Hence both statutes can be said to relate to the subject of loss of future earnings and earning capacity and to that extent they must be deemed to be in pari materia and subject to being construed together as complementary enactments.
A doubling up would be involved if recovery based on full loss of future earning capacity were to be allowed in both a survival and a wrongful death action, and this would be true even though the ultimate beneficiaries in the two actions might not always be the same. Such duplication would be punitive to the wrongdoer and we cannot believe the legislature intended such a result, keeping in mind the fact that the survival statute and the wrongful death statute were each enacted to supply a remedy which did not exist at common law, and where, as here, each cause of action is dependent on the same tortious act.
Historically the majority view in other jurisdictions has been that recovery for loss of earnings or earning capacity beyond the time of death was impermissible in a survival action although it must be recognized statutory provisions sometimes are distinctive in the various jurisdictions so as to account for the results reached. The general rule is stated in McCormick on Damages, § 94, p. 337, thus:
“In states where actions may be brought by the personal representative of the deceased under the Survival Act for the injury, and under the Death Act for the death, the damages in the survival action are limited to compensation for injuries actually accruing before death, that is, for the pain and suffering of the injured man and for his loss of earnings and his expenses of care and treatment."
In an annotation commencing in 42 A. L. R. 187, the annotator comments:
“Where, however, the remedy by revival of the pending action is not exclusive, but there also exists a right of action in behalf of certain designated persons to recover compensation for their pecuniary loss, a large element of which is loss of support, it is generally held that the injured person s earning capacity from the time of his death for the period of his life expectancy is to be the basis for assessing compensation for loss of support; hence, in the revived action, compensation for impaired or destroyed earning capacity is limited to the period of time intervening between the injury and the death. This seems to be necessary if double damages are to be avoided.” (p. 188.)
Appellant acknowledges double recovery might be involved but asserts the problem can be avoided by the use of a limiting instruction at trial so as to prohibit duplication of damages but at the same time allow their full recovery. Indeed this approach has been taken in a few jurisdictions (see, e. g., Rohlfing v. Moses Akiona, Ltd., 45 Hawaii 373, 369 P. 2d 96; Incollingo v. Ewing et al., Appellants, 444 Pa. 263, 299, 282 A. 2d 206). However, from the standpoint of judicial management of two separate claims, it is readily apparent this approach may create as many problems as it solves. More importantly, we think resort to the practice of limiting instructions overlooks the essential nature of our survival and wrongful death statutes as they have traditionally been viewed.
The interaction between the two statutes, according to the majority rule already alluded to, finds expression in 25A C. J. S., Death, § 98, as follows:
“There cannot and should not be any duplication of damages under a wrongful death statute and under a survival statute, so as to compel the payment of more than the maximum damage caused by the negligent act, since . . . under the survival statute recovery is limited to losses of the victim prior to his death, and under the death statute recovery is for pecuniary losses resulting to the beneficiaries from such death.” (p. 898.)
This court has already dealt with an analogous situation. In Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60, plaintiff’s deceased, Finnegan, had commenced an action against his railroad employer for personal injuries allegedly sustained by him on December 1, 1890, as a result of its negligence. On October 18, 1891, he committed suicide. The action was revived in the name of his administratrix and trial was had. The trial court’s instruction No. 21 dealt with damages for diminished earning capacity. On eventual appeal respecting this issue the court held:
“Where the plaintiff, in an action for damages sustained from personal injuries, dies before the trial from a cause other than such injuries, and the action is revived in the name of his personal representative, damages for the permanent deprivation of health and of the capacity to work and enjoy life should be limited to the period between the injury and the death.” (Syl. f 5.)
In reaching this conclusion the court said:
“Instruction 21 was somewhat vague and uncertain as to the fourth element of damage, and it was this, no doubt, that caused the inquiry of the jury as to whether damages for permanent injury were limited to the actual lifetime of the person injured; and this called forth the further instruction of the court that such damages were not limited to the lifetime of Finnegan. In the answer of the jury to the particular question of fact regarding the length of time taken into consideration as a basis for an estimate, the jury evidently had regard to the expectancy of the life of Finnegan, although no evidence was introduced upon the subject. We think, however, that such evidence would not have been admissible, for expectancy is only to be resorted to in the absence of certainty, and as the life of Finnegan was terminated before the trial, there was no basis for an estimate of damages extending beyond that period. Damages for the permanent deprivation of health and of the capacity to work and enjoy life should therefore be limited to the period extending from December 1, 1890, to October 18, 1891.” (p. 48.) (Emphasis supplied.)
In Allen, Admr., v. Burdette, 139 Ohio St. 208, 39 N. E. 2d 153, the action was for wrongful death and for personal injury under a survival statute, both arising from the same tort. The court held in the administrator’s action under the survival statute that evidence of the decedent’s prospective earnings had he lived the period of his normal expenctancy, as shown by mortality tables, was inadmissible because the right of recovery for earnings did not extend to loss of earnings extending beyond the time of death. The Ohio supreme court, citing our Railroad Co. v. Chance, supra, in support, said:
“The ground upon which evidence of prospective earnings of the deceased was sought to be introduced was that, if an action based upon a claim of permanent injuries had been instituted by the person injured, evidence would have been admissible to show his probable length of life and thereby furnish a basis of computation of the loss resulting from his inability to work and earn money from the time of his injury to the probable time of his death. However, a complete answer to this proffer of evidence is that, while it tends to show the probable length of life and the estimated time of death, it has no place in this ease, for the actual time of death is established and it becomes unnecessary to deal in probabilities. Where death has actually occurred, the theory of prospective damages included in such survival claim has no place whatever. Mortality tables are competent because they are regarded as the best evidence of life expectancy; but they have no applicability and their competency therefore disappears when there is no expectancy of life to calculate. Fact had been substituted for prophecy. Death is not a matter of the future; it had already occurred. What had been uncertain and speculative became definite and certain; what had been unknown became known. The loss sustained by an injured person accrues at the time of his death, and it is the wrongful death which gives rise to a cause of action on behalf of the designated next of fan.
“It must be concluded, therefore, that in the survivor action recovery by the administrator is limited to such damages as the deceased might have recovered had he lived, but for no loss of earnings extending beyond the time of his death.” (pp. 210, 211.)
With the Chance rationale in mind, we see no sound reason to make distinction in survival actions between a situation where death results from independent causes and one in which the death results from negligence which can be the basis for a wrongful death action. There should be no greater recovery where one tortfeasor causes injury and death than where two tortfeasors separately cause those same casualties. A principal argument advanced by appellant for making a distinction lies in the fact there is a statutory ceiling on the amount of damages recoverable in a wrongful death action which conceivably could result unjustly in less than full recovery in a given case, but this situation properly must remain one for legislative redress.
Accordingly, we hold that in an action under the survival statute to recover damages for personal injury to plaintiff’s decedent who died as a result of such injury, recovery may not be had for loss of earnings or earning capacity beyond the time of death.
The trial court reached the proper result and its judgment is affirmed.
approved by the court.
Prager, T., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action involves the alleged fraudulent diversion of assets consisting of stock certificates loaned by plaintiff to three corporations in which defendant Mollenkamp had an interest. The district court sustained a motion for summary judgment in favor of Mollenkamp, and plaintiff has appealed.
The propriety of the order granting summary judgment is attacked on the grounds that (1) discovery had not been completed, and (2) inasmuch as there was evidence tending to establish the liability of Mollenkamp as a corporate director and officer, he was not entitled to judgment as a matter of law.
When ruling on the motion for summary judgment, the lower court had before it the pleadings and several discovery depositions from which we piece together the following, somewhat complex factual situation.
Plaintiff is an optometrist living in Ellsworth, Kansas. In May 1966, he, together with Ray Gill and certain other individuals organized Southwest Securities, Inc., which began doing business as a brokerage firm. When plaintiff became “discouraged,” Gill arranged for the sale of plaintiff’s interest to Mollenkamp in December 1966. Gill and Mollenkamp became the only stockholders in the company. Although there was evidence Mollenkamp may have been made an officer and director, he took no active part in running the business. His relationship with Gill and Southwest Securities was described in his words as “. . . [A] 11 I know is farming and that’s all I done was dish out the money and he spent it.”
Slope Sales, Inc., another corporation, was formed in January 1967, with Gill and Mollenkamp being the sole stockholders. The corporation’s name was changed to Frontier Industries, Inc., in June 1967: The evidence was undisputed that Mollenkamp did little, if anything, in managing or controlling the affairs of the three corporations. This was left solely to Gill, who was the moving force in the entire venture.
About May 1, 1967, Gill requested plaintiff to loan him some stock “to get him over a rough spot.” Plaintiff agreed to the loan for a period of three weeks and gave Gill a general stock power. In return for the stock, Gill executed two receipts — one signed “Frontier Industries, Ray Gill, President,” the other signed “Southwest Securities, Inc., by Ray L. Gill.” According to plaintiff’s own testimony, he believed the stock was being loaned to all three corporations (Southwest Securities, Slope Sales and Frontier Industries) with which Gill was associated. Plaintiff further stated he knew the stock was to be pledged as collateral for loans to one or more of the corporations.
Later in the year of 1967, Southwest Securities was placed in receivership and plaintiff’s stock was never returned. As nearly as we can tell, the stock had been pledged to the National Bank of Wichita as collateral for loans to one or more of the three corpora-1 tions, and part of the loan funds were subsequently diverted by Gill to his own use.
Plaintiff instituted this action against Mollenkamp, Gill, and Frontier Industries, Inc., seeking to recover the sum of $13,500. Only Mollenkamp, in whose favor summary judgment was granted, is involved as appellee in this appeal.
As his first point, plaintiff contends the case was not ripe for summary judgment because discovery had not been completed. The record discloses that at the time the motion was considered, all of the principals in the case, including Gill and Mollenkamp, had been deposed. On August 13, 1969, when the taking of depositions was completed, Mollenkamp’s counsel informed plaintiffs attorney of his intention to file a motion for summary judgment which would be taken up at the pre-trial conference scheduled for August 28. Plaintiffs counsel agreed to the hearing of the motion on the 28th saying he expected to have all his evidence in by that time. Although the journal entry reflects that plaintiff consented to the hearing of the motion, plaintiff’s counsel has filed an affidavit stating that the trial court was advised at the hearing that he had not completed discovery proceedings, and “further discovery may reveal further evidence supporting plaintiff’s position.” In his brief, plaintiff states, “There were a number of loose ends which needed to be tied down and which, hopefully, would have been done by additional discovery.”
Ordinarily, a motion for summary judgment should not be granted when the opposing party is proceeding diligently with his pre-trial discovery, but has not had an opportunity to complete it. (Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770; Timmermeyer v. Brack, 196 Kan. 481, 412 P. 2d 984; Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.) On the other hand, when, as here, a party makes no suggestion to the trial court of any additional facts tending to support his position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case. (See, Sade v. Hemstrom, 205 Kan. 514, 471 P. 2d 340; Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415.) We are satisfied from the overall record that plaintiff is simply in no position now to challenge the order of summary judgment on the ground that it was prematurely granted.
Turning to the second point, we find plaintiff asserting that the motion for summary judgment was improperly sustained because there was evidence tending to show Mollenkamp was negligent in performing his duties as a corporate director and officer. This argument requires an examination of the theory of recovery presented to the trial court.
The petition alleged that Mollenkamp and Gill were guilty of “conspiracy to defraud” plaintiff of his stock certificates (a) by fraudulently diverting assets from Southwest Securities and Frontier Industries to Slope Sales, and (b) by pledging the stock certificates to the National Bank of Wichita without plaintiff’s authority. The theory of recovery as refined in the pretrial order is evident from the statement of issues to wit: “Did defendants, or either of them, fraudulently divert assets from Southwest Securities, Inc.; and if there was such a diversion of assets, did this diversion of assets render either or both the defendants liable to plaintiff?” There seems little question but that at the trial court level plaintiff’s claim against Mollenkamp sounded in fraud or conspiracy to defraud rather than negligence as now urged by plaintiff on appeal.
The alleged conspiracy between Gill and Mollenkamp is not supported by any evidence whatsoever. At most, we have only the general allegation of conspiracy in the petition which, even before the new code of civil procedure, was insufficient to state a cause of action. In Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P. 2d 360, this court said:
“. . . [I]t is the established rule that the general charge of the formation of a conspiracy is not an allegation upon which liability may be predicated. It is the specific action done under conspiracy which results in damage to a party that forms the basis for a cause of action. (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847.)” (P.130)
Likewise, there is no evidence to support plaintiff’s allegation that Mollenkamp himself was guilty of fraud by diverting plaintiff’s stock certificate from one corporation to another, or by pledging the stock to the bank without plaintiff’s authority. Plaintiff’s own testimony was to the effect the stock was loaned to the three corporations with full knowledge it was to be pledged as collateral for loans in financing the corporation. Evidence is lacking that Mollenkamp was aware of Gill’s activities with respect to his financial dealings for and on behalf of the corporations. The only evidence tending to show any diversion of assets was that Gill alone may have used some of the loan proceeds (obtained with plaintiff’s, stock pledged as collateral) to make good a bad check for $13,500’ given to “Micro Lite,” another corporation with which Gill had some connection. There is nothing to indicate however, that Mollenkamp was involved in the transaction.
In the absence of some evidence tending to establish that Mollenkamp was personally involved with the alleged fraud perpetrated by Gill, or that he in some way participated in it, he cannot be held liable simply because he was a director or officer. In 37 Am. Jur. 2d, Fraud and Deceit § 322, P. 425, we find this statement:
“The cases are agreed that a director or officer of a corporation is not liable, merely because of his official character, for the fraud or false representations of the other officers or agents of the corporation or for fraud attributable to the corporation itself, if such director or officer is not personally connected with the wrong and does not participate in it.”
Also, see Anno., 32 ALR 2d 231, § 26.
The record fails to disclose any attempt by plaintiff to amend his pleadings or to modify the pre-trial order to include negligence as a basis of recovery. Nor is there any indication that the negligence theory he now advances was ever argued or presented to the trial court when the summary judgment motion was heard.
Negligence and fraud are not identical either in their nature or effect. Negligence involves the absence, of proper attention to duty, while fraud is always a positive and willful device resorted to with intent, in some manner, to injure another. (Greeley Nat. Bank v. Wolf, 4 Fed. 2d 67, 70 [C. C. A. Colo., 1925]; Black’s Law Dictionary [Rev. 4th Ed.], P. 789.)
A litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court. Plaintiff is therefore bound by the theory of recovery adopted in his pleadings in the pre-trial order.
The law is clear that before a summary judgment may be granted, the record before the court must show conclusively that there remains no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A popular formula often used by the courts is that summary judgment should be granted on the same kind of showing as would permit direction of a verdict were the case to be tried. (K. S. A. 60-256 [c]; Hastain v. Greenbaum, 205 Kan. 475, 470 P. 2d 741; Lawrence v. Deemy, supra.)
Giving plaintiff the benefit of all inferences that reasonably may be drawn from the facts under consideration, we must conclude that there was no evidence to establish fraud or conspiracy to defraud on the part of Mollenkamp and he was entitled to judgment as a matter of law.
The judgment is affirmed. | [
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Per Curiam:
This is an original proceeding in mandamus filed by the State of Kansas, ex rel. Vern Miller, Attorney General, against Herbert Rohleder, Judge, Division 2, District Court of Barton County, Kansas, to set aside a temporary restraining order entered by Judge Rohleder on October 12, 1971.
This action was precipitated by an investigation of law enforcement officers of the State of Kansas into alleged violations of the gambling laws of the State of Kansas in the Great Bend, Kansas, area. The officers seized a quantity of gambling equipment and paraphernalia in eight private clubs in Barton County and subsequent thereto, under the authority of K. S. A. 1970 Supp. 22-3101 (2) (inquisition statute), the Attorney General’s office caused subpoenas to be served on certain individuals, including officers, agents and employees of the eight private clubs, commanding said persons to appear and testify and produce certain books, records and invoices pertaining to the operation of the clubs.
On October 12, 1971, two days prior to the date the inquisitions were to be held, the eight private clubs filed a petition in the District Court of Barton County, Kansas, entitled Great Bend Petroleum Club, Inc., et al., v. The State of Kansas; Vern Miller, Attorney General for the State of Kansas and John M. Russell, County Attorney of Barton County, Defendants, being Case No. 24,678. In said petition it was alleged that the plaintiffs were the subject of unconstitutional activities on the part of state law enforcement officers and requested that the defendants be temporarily and permanently enjoined from issuing subpoenas, conducting inquisitions or conducting other proceedings, civil or criminal, against the plaintiffs named in said action; as well as their officers, directors, agents, employees, members and persons who were on the premises on the evening of October 2, 1971.
On October 12, 1971, the defendant herein entered an ex parte temporary restraining order restraining the State of Kansas, the Attorney General, and the County Attorney of Barton County from conducting inquisitions, issuing subpoenas, or instituting other proceedings, civil or criminal, against any of the plaintiffs, their directors, officers, servants, employees, persons authorized to act on their behalf, members and persons on or about the premises operated by the plaintiffs therein.
Subsequent thereto, at the request of the Attorney General’s office, the defendant herein set a tentative date of November 19, 1971, as the earliest time when a hearing could be held on a motion to dissolve the restraining order or to convert the temporary restraining order into a temporary injunction.
Thereafter and on the 20th day of October, 1971, this proceeding was filed as above styled. On the same date a copy of the petition herein was served on the defendant together with an order to show cause within five days from the date of the service, why said restraining order of October 12, 1971, entered by the defendant should not be set aside and held for naught. On the 26th day of October, 1971, an answer was filed by defendant herein and a hearing was held in this court. At the conclusion thereof we announced that the restraining order entered by the defendant on October 12, 1971, in Case No. 24,678 in the District Court of Barton County, Kansas, was void and it was directed to be set aside. This opinion is written in compliance with the announcement of the court at the time of the hearing that our written opinion would follow.
We were presented with two questions — was the restraining order entered by the defendant void? — and is mandamus the proper proceeding to correct a void order?
The Attorney General, a constitutional officer (Const. Kan. Art. 1, § 1), is the chief law enforcement officer of the state (State v. Finch, 128 Kan. 665, 669, 280 Pac. 910), is one of the state’s prosecuting attorneys (K. S. A. 1970 Supp. 22-2202 [19]), and is specifically charged with the duty of abating common nuisances relating to the use and promotion of gambling devices or gambling. (K. S. A. 1970 Supp. 22-3902 [2].) The County Attorney is another of the state’s prosecuting attorneys (K. S. A. 1970 Supp. 22-2202 [19]), and is charged with the mandatory duty of appearing in his county and prosecuting civil or criminal suits arising under the laws of the state in which the state is interested, (K. S. A. 19-702.) He is also specifically charged with enforcing prohibitions against gambling in civil cases. - (K. S. A. 1970 Supp. 22-3902 [2].)
Equity will not assume jurisdiction except under special circumstances, to prevent public officials or servants from doing their duty as required by law (42 Am. Jur. 2d, Injunctions, § 175, p. 942); and it is well settled that equity has no jurisdiction in criminal matters which do not affect property rights. (27 Am. Jur. 2d, Equity, § 57, p. 578.) There was no allegation in the petition filed in the district court that any property was affected.
The district courts of this state cannot prevent the Attorney General of the state and the County Attorney from performing the duties required of them by statute. To hold otherwise would create chaos in the criminal enforcement laws. To extend such a rule to absurdity would mean that the district court could prevent any person charged with crime from being prosecuted in his jurisdiction and could by the same process prevent any appeal from a decision of his court. This we cannot sanction and must hold that the restraining order issued by the defendant was void.
Turning to the question of whether mandamus is a proper proceeding to correct the void order, we direct attention to the case of Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982. In that case the District Court of Grant County reduced the assessed valuation of all property situated in Grant County other than property owned by the plaintiffs therein. The court held that the order of the district court was void and that mandamus was the proper proceeding in which to question the validity of such an order. We will not repeat what was said in this exhaustive opinion, except to glean from it some of the rules in support of the conclusion that mandamus is a proper remedy. At page 241 we said:
“The Supreme Court is granted original jurisdiction in proceedings in mandamus by the Kansas Constitution. (Art. 3, § 3.) This jurisdiction is plenary and may be exercised to control the action of inferior courts, over whom the Supreme Court has superintending authority. . . .”
At page 242 we said:
“The use of mandamus is proper to secure the speedy adjudication of questions of law for the guidance of public officials in their administration of the public business, where the totality of the situation suggests that a legal remedy available to the plaintiffs would be clearly inadequate to meet the public need, notwithstanding that a collateral attack is made upon a void mandatory injunction decree entered by a court of inferior jurisdiction, wherein the plaintiffs were not parties to such action and are clearly entitled to relief. . . .”
At page 239 we said:
“Prior decisions have recognized that mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration.of the public business, notwithstanding the fact there also exists an adequate remedy at law. . .
The defendant urges that mandamus should not be a substitute for appeal. In some instances this may be true. An appeal in this case or in any other case in which the Attorney General and the County Attorney are restrained from performing their statutory duties and the delay attendant to appeal would render it an ineffective remedy.
We hold that the restraining order entered by defendant is void and that mandamus in this case is a proper remedy. Judgment for the petitioner.
It is so ordered. | [
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The opinion of the court was delivered by
Owsley, J.:
Appellants are the owners and tenants of a tract of real estate in Johnson County, Kansas. On February 10, 1969, appellee, a Missouri corporation, filed a petition in the District Court in Johnson County, Kansas, seeking to condemn a right of way across appellants’ land. On February 20, 1969, appellants appeared before the district court and presented an answer and motion for more definite statement. Counsel for appellants urged to the court that the petition must be plead factually and may not be simply a notice pleading. Counsel for appellee took the position that the statutes of Kansas did not require a condemnation petition to contain allegations of specific and detailed evidentiary proof substantiating the taking. The district court found the petition to be sufficient and overruled and denied appellants’ motion for more definite statement. The district court refused to allow appel lants to introduce any evidence on their affirmative defenses and over appellants’ objection to the procedure ruled the court must restrict its consideration only to the petition of the condemner and because the petition alleged the taking of appellants’ property was necessary to the condemner’s lawful corporate purposes, the petition for condemnation would be granted.
Thereafter, on March 20, 1969, appellants filed a petition for declaratory judgment against appellee. This position alleged appellants’ interest in the property, appellee’s existence and institution of the condemnation proceedings, and challenged the validity of the condemnation procedure act of the State of Kansas as constituting a taking of property without due process of law and as an unconstitutional delegation of legislative and judicial functions to a private corporation.
On May 29, 1969, appellants filed and served on counsel for appellee two interrogatories. By these two interrogatories appellants sought to ascertain the amount and the types of damage and consequences which appellee felt it would be encountering if construction of the electric power line across appellants’ property would be delayed through an injunction or restraining order sought by appellants. Appellee objected to these interrogatories. The court sustained the objections based on a feeling that answers to the interrogatories would raise questions of fact inconsistent with the declaratory judgment and found that the defendants in a declaratory judgment case are not required to answer interrogatories. On June 13, 1969, appellee filed a motion to dismiss or for summary judgment.
Thereafter, on July 9, 1969, the court ruled in favor of appellee on all points.
On July 23, 1969, appellants served and filed their notice of appeal. The gist of appellants’ appeal is the constitutionality of the Kansas statutes providing for eminent domain proceedings. (K. S. A. 26-501, et seq.) They charge that there is an unlawful delegation of legislative powers; that the statutes violate appellants’ right to due process; that the statutes deny equal protection of the law; that the statutes give the appellee absolute title to land without payment of full compensation; and that appellants do not receive just compensation for land taken since they must pay attorneys’ fees.
The constitutional requirement of due process has been considered in connection with our eminent domain statutes. We have held that our statutes do not deny due process to the landowner. (Bumm v. Colvin, 181 Kan. 630, 312 P. 2d 827.) We have also held that the failure of statutes to provide attorney fees for the landowner does not violate the constitutional requirement that just compensation be paid. (Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 494 P. 2d 1113.
The constitutional issues raised by appellants are forcefully presented. However, appellee argues this project was completed on December 19, 1969, and the entire line has been in operation for over a year and by reason thereof all questions other than the value of the property taken have become moot.
We have frequently said that it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. (Diehn v. Penner, 169 Kan. 63, 216 P. 2d 815; Bumm v. Colvin, supra; also see Oil Workers Unions v. Missouri, 361 U. S. 363; 4 L. Ed. 2d 373, 80 S. Ct. 391.) The position of this court was clearly stated in Bumm v. Colvin, supra. We said:
“The rule that when it appears by reason of changed circumstances between the commencement of an action and the trial thereof, a judgment would be unavailing as to the real issue presented, the case is moot and judicial action ceases, is not only applicable to actions seeking to enforce common-law remedies (Asendorf v. Common School District No. 102, supra; Andeel v. Woods, supra; Dick v. Drainage District No. 2, supra), but is equally applicable to actions under our declaratory judgment statute (G. S. 1949, 60-3127). This is manifest by the rule itself, by the express terms of the statute, and by our decisions which hold that in order to obtain an adjudication of any question of law under the declaratory judgment act, an actual controversy must exist (Kittredge v. Boyd, 137 Kan. 241, 242, 20 P. 2d 811; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P. 2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P. 2d 111; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127), and when any legal question becomes moot, judicial action ceases (State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 Pac. 761; State v. Allen, 107 Kan. 407, 408, 191 Pac. 476; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127).
“The soundness of that general rule seems obvious. If, when the action was commenced, the petition presented an actual controversy between plaintiff and the City and the commissioners justiciable under the declaratory judgment statute, clearly, on November 12, 1956, that controversy did not exist because of plaintiff’s concession of changed circumstances. That being true, a judgment would be unavailing as to the real issue presented and the case was moot, hence judicial action ceased.
“In State v. Balcourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395, we held that where a condemnation proceeding is instituted under the provisions of G. S. 1949, 26-201, et seq., as amended, common-law remedies are available to a landowner seeking to protect his interest in the property being condemned. Other authorities to that effect are: St. L., L. & D. Rld. Co. v. Wilder, 17 Kan. 239, 247; Railway Co. v. Wilson, 66 Kan. 233, 237, 69 Pac. 342; Railway Co. v. Murphy, 75 Kan. 707, 714, 90 Pac. 290; Glover v. State Highway Comm.., 147 Kan. 279, 77 P. 2d 189; Dick v. Drainage District No. 2, supra. Plaintiff contends, however, that to adhere to Dick v. Drainage District No. 2, supra, leaves him without a remedy and denies him due process of law. We do not so regard that decision, or other decisions which support that rule. Plaintiff had a right of action to protect his interest on the property being condemned and he attempted to enforce that right by the commencement of the present action. On September 6, 1956, he presented to the district court proper motions for a restraining order and a temporary injunction. Those were denied. It is clear that plaintiff had a right to appeal from the order denying his motion for temporary injunction (G. S. 1949, 60-3302), and pending that appeal, could have applied to this cotut for an order suspending further proceedings in the court below until the decision of this court (G. S. 1949, 20-101; Bank v. Cement Co., 83 Kan. 630, 112 Pac. 332; Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 452, 10 P. 2d 893). But, no appeal was taken. Instead, plaintiff permitted the commissioners to assess damages and make and file their report and receive their discharge. Thereafter the City completed the installation of the air inlet and relief manhole within the boundary of its rights of way upon plaintiff’s land. That plaintiff had a remedy to protect his interest in the property sought to be condemned, is evident. He invoked that remedy, but did not fully exhaust it.” (pp. 636, 637.)
Appellants claim there are distinctions between this case and the jBumm case. They first state the nature of the improvements were ancillary to some made under another uncontested condemnation and that a water line (as in the Bumm case) would be inflexible once engineered and installed. They also claim the electric transmission (as in this case) by its very nature can be re-routed along existing public highways.
The record does not disclose in any detail the engineering problems and relative costs in relocating an electric transmission line. We recognize, however, that the flexibility of each of these utilities is only a matter of degree and neither could be relocated without changing the right of way acquired on adjacent land and at considerable expense. We are not persuaded by the appellants’ argument.
Appellants also claim the constitutional issues are subject to determination even if proximate relief is not available. The argument is that there are existing questions of public interest which should be answered to provide guidance for the courts in future condemna tions. It has never been the policy of this court to write advisory opinions. In Bumm, constitutional issues were raised but we adhered to our rule that an actual controversy must exist. We do not feel inclined to depart from a rule so strongly embedded in our decisions.
Appellants further argue that delay on appeal is a practical barrier to presentation of an action within the time necessary for condemner to complete the project. Further, the effect of mootness is to deny the right to review on appeal. We pointed out in Bumm the remedies available to the landowner. In this case, the appellants did not seek any of the remedies suggested in Bumm, such as applications for a restraining order or temporary injunction. While these remedies may not be completely satisfactory to the landowner, he cannot successfully argue that he is left without a remedy. If further protection of the landowner should be provided it is a problem for the legislature, not this court.
The rights of the landowner and the proper procedure in condemnation cases was fully discussed and determined in Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal stems from a controversy over the appointment of an administrator for the estate of Margaret Seeger, deceased.
The facts which are not in dispute may be briefly stated: Margaret Seeger died intestate on April 11, 1970, a resident of Phillips County, Kansas. She left as her sole and only heir at law an incompetent son, Gayle Edward Seeger, 36 years of age, who was and had been for a number of years a resident of the Winfield State Hospital and Training Center. Also surviving her were two brothers, Clyde L. Smith and Glenn J. Smith, both residents of Jennings, Kansas, and a sister-in-law, Mary Grote — a sister of her deceased husband. Those three persons are the closest living relatives of the incompetent son, who upon his death, would constitute his sole heirs.
On April 17, 1970, Clyde Smith filed a petition for administration, asking that Allen L. Ballinger, a banker at Jennings, be appointed administrator of the estate. Neither the Smiths nor Ballinger were creditors of the estate. The petition was prepared and filed by Wallace C. Sullivan, of Phillipsburg, the family attorney for the decedent and her deceased husband. The hearing was set for May 15, 1970. Proper notice of the time and place of the hearing was duly published and served upon the incompetent at Winfield, as sole heir of the decedent pursuant to K. S. A. 59-2209.
On April 21, 1970, on Sullivans petition, Lowell F. Hahn, an attorney at Phillipsburg, was appointed guardian ad litem for the incompetent son and sole heir. On May 14, 1970, the guardian ad litem filed an answer in which he objected to the appointment of Ballinger as administrator and nominated Sullivan to act as administrator. The answer presented the reasons for the objections to the appointment of Ballinger and reasons for the nomination of Sullivan. The reasons were based largely on economy in administration — Sullivan being a local attorney and Ballinger living some sixty miles from Phillipsburg. Service of the answer was not made upon any party until the following day in the probate court.
On May 15, 1970, the hearing for the appointment for an administrator was held in the probate court of Phillips County, the Honorable Martha Kellogg presiding. Others present were Clyde and Glenn Smith, Sullivan, Hahn, and Ballinger. There was some discussion, but it does not appear any evidence was introduced. Following the hearing, Sullivan was appointed and qualified as ad ministrator. There were no written findings made by the probate court. A more detailed statement of disputed facts with respect to Sullivan’s appointment will be discussed as the specific issues are considered.
On June 4, 1970, Clyde Smith and Glenn Smith appealed to the district court of Phillips County, from the order appointing Sullivan administrator. The district court reappointed and directed the guardian ad litem to represent the incompetent heir in the appeal proceedings. The answer of the guardian ad litem nominating Sullivan as administrator was renewed in the district court.
The matter came on for trial before the district court and on July 27, 1970, findings of fact and conclusions of law were filed, which we quote in part:
“Findings of Fact
“W. C. Sullivan is a practicing attorney in Phillips County, Kansas, and for many years has represented the decedent and her husband in their legal matters and was extremely familiar with the property owned by the decedent and of her business affairs. Mr. Sullivan, along with other counsel, also represented the decedent in another case which is presently on appeal to the Supreme Court.
“On May 15, 1970, the Probate Judge of Phillips County appointed W. C. Sullivan as administrator of said estate and directed that he give bond in the sum of Thirty Thousand DoEars ($30,000.00) as such administrator. The petitioner, Clyde L. Smith, was present at the time of the hearing and the appointment of Mr. Sullivan and made no objection to his appointment at that time.
“An appeal was filed on June 4, 1970, by Clyde L. Smith and Glenn J. Smith, and a trial de novo was held in the District Court. On June 16, 1970, one Lena East was appointed as guardian of Gayle Edward Seeger and on July 6, 1970, filed in the Probate Court a request for the appointment of W. C. Sullivan as administrator of the Margaret Seeger estate.”
“Conclusion of Law
“The Court finds that the order of the Probate Court appointing W. C. Sullivan as administrator of the estate of Margaret Seeger, deceased, was proper, in aE respects; and that under the decisions of the Supreme Court of Kansas, the guardian at litem was entitled to select or recommend such administrator since he represented the sole heir of the decedent.”
In harmony with its findings and conclusions, the court appointed Sullivan as administrator. Thereafter, Clyde Smith and Glenn Smith perfected this appeal.
The appellants present eight points for reversal. They have abandoned their seventh point, and as the eighth point becomes largely immaterial if the administrator was properly appointed, we proceed to consider the first six points which the appellants have consolidated in their brief for argument as-presenting the following separate issues:
1. Was the probate court obligated to appoint the nominee named in the petition as administrator, absent a finding of incompetency or unsuitability?
2. Did the district court err in appointing the petitioner’s attorney as administrator because of an alleged conflict of interest?
With respect to the first question, the appellants rely heavily on K. S. A. 59-705 which reads:
“Administration of the estate of a person dying intestate shall be granted to one or more of the persons hereinafter mentioned, suitable and competent to discharge the trust, and in the following order:
“(1) The surviving spouse or next of kin, or both, as the court may determine, or some person or persons selected by them or any of them.
(2) If all such persons are incompetent or unsuitable, or do not accept, administration may be granted to one or more of the creditors, or to a nominee or nominees thereof.
(3) Whenever the court determines that it is for the best interests of the estate and all persons interested therein, administration may be granted to any other person, whether interested in the estate or not.”
The appellants contend that since there was no surviving spouse and the son was incompetent, they were next of kin and had the right to control the appointment under the statute. The point is not well taken. “Next of ldn” means those who inherit from the decedent under the law of descent and distribution. Although this court has not had occasion to interpret the phrase as used in the particular statute, it did so in a case involving the Wrongful Death Statute. In Ellis v. Sill, 190 Kan. 300, 374 P. 2d 213, the third paragraph of the syllabus reads:
“. . . ‘Next of ldn’ means those who inherit from a decedent under the law of descents and distributions.”
The appellants would no doubt be next of kin of the incompetent son — their nephew, however, they are not the next of kin of the decedent. The statute does not recognize the next of ldn of the next of kin of the deceased in the selection of an administrator. The only person recognized by the statute is the incompetent son —the surviving heir at law and the next of ldn. Being incompetent, a guardian ad litem was properly appointed to represent him. The guardian ad litem then stood in the position of the incompetent son and next of kin. This question was disposed of in In re Estate of Paronto, 163 Kan. 85, 180 P. 2d 302. There, this court had under consideration facts very similar to what we have here except the next of kin was a three-year-old child, and therefore incapable of selecting a nominee as administrator. In the opinion it was said:
“G. S. 1945 Supp., 59-705, provides that letters of administration shall be granted to persons of certain classes, providing they are suitable and competent to discharge the trust. The section also provides in what order they shall be given preference. In the first designated class is ‘the surviving spouse.’ There was no surviving spouse here since Mrs. Paronto was a widow. Next in that class is named ‘the next of ldn.’ The next of kin here was a three-year-old boy. Obviously he could not be appointed. We have demonstrated, however, that it was the duty of the court to name a guardian ad litem for him. Had the court done this the guardian would have filed a pleading and selected some person on behalf of the minor and next of kin whom he wished, in compliance with the statute, to have appointed. The probate court would then have had ■the duty and power to exercise its discretion as to whether any such persons were incompetent or unsuitable. It would have been necessary, however, that this finding be based on evidence and not made by the court without any evidence whatever, as was the case here. . . .” (l.c. 94.)
In the case at bar, a guardian ad litem was appointed and he did by proper pleading based upon valid reasons, select Sullivan on behalf of the incompetent next of kin. When the probate court determined Sullivan was suitable and competent to discharge the trust, the statute required his appointment. (In re Estate of West, 165 Kan. 483, 195 P. 2d 616.) There was no abuse of discretion by the court and the appellants’ contention cannot be sustained.
The appellants next contend the appointment of Sullivan as administrator was improper because at the time he was employed by the petitioner Clyde Smith to obtain the appointment of the nominee named in the petition, and his acceptance of the appointment constituted a conflict of interest. They direct our attention to EC 5-15 of the Code of Professional Responsibility, approved in principle by this court in Rule No. 501, which reads:
“If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests . . .”
Our attention is also directed to DR 5-101 (A) of the Code of Professional responsibility, adopted by the court in Rule No. 501, which reads:
“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.”
The question was also passed upon in State v. Leigh, 178 Kan. 549, 289 P. 2d 774, wherein it was said:
“. . . The inviolate rule has long been firmly established both in the Canons of Professional Ethics and by judicial opinions that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been retained and received the confidence of a client, he cannot enter the services of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as, in effect, to be a part thereof. . . .” (1. c. 552.)
See, also, State v. Young, 196 Kan. 63, 410 P. 2d 256.
Of course, with the consent of the client after a full disclosure, an attorney is not so restricted in a situation such as we have here. At most, under the circumstances, only potentially differing interests existed. The guardian ad litem had nominated Sullivan in opposition to the nominee of the petitioner. The petitioner might well have desired Sullivans appointment if his nominee was to be opposed by the guardian ad litem. We must examine the record to see if the petitioner was fully informed of the situation and consented to the appointment of his attorney either by direct or implied consent. The matter was fully covered by the evidence before the district court.
Martha Kellogg, the probate judge, testified:
“Q. Martha, I will ask if you recall the day, was it June 15th, that we had this hearing on the Margaret Seeger Estate for the appointment of administrator in your court?
“Mr. Nellans: Your Honor, I don’t want to be picldish, but I think it was May 15.
“A. I was going to say I thought it was earlier than that.
“Q. Do you recall an objection was made to the appointment of Mr. Ballinger by the guardian ad litem, Lowell Hahn?
“A. Yes.
“Q. And, that the guardian ad litem submitted my name, W. C. Sullivan, as nominee to be appointed for administrator?
“A. That is correct.
“Q. And then what happened from thereon, can you recall?
“A. Well, after we had some discussion, I asked you whether you would accept this job as being administrator and you said that you would if it was all right with the Smith brothers. But you wanted everybody to be satisfied and I don’t remember the whole conversation at the time, but nobody objected to having you appointed at the time.
“Q. Did Clyde Smith say at that time, ‘We have got to have an administrator?’
“A. Yes, he did.
“Q. That’s all.”
She further testified:
“Mb. Hahn: You were under the impression, weren’t you, Martha, that I did object to Mr. Ballinger, not on the basis of being incompetent but on the basis of being suitable?
“A. Yes, I think you mentioned that that day.
“Q. And there was no objection, no disagreement to having Mr. Sullivan appointed at that particular time, and that’s why you went ahead and did it the way you did?
“A. That’s right, there was no objection.
“Q. There was no real controversy for you to go ahead and make a journal entry as I recall?
“A. That’s right.”
Mr. Sullivan testified:
"Q. Mr. Sullivan, did you file the petition for Mr. Smith?
“A. I prepared it and came over to the Courthouse with him and filed it.
“Q. And you have heard testimony here in the Courtroom as to what occurred at the hearing?
“A. I did.
“Q. Did you ask the Smith brothers if they had any objections to you serving as administrator?
“A. When the Court asked me if I would serve as administrator of the Margaret Seeger Estate, I explained to her, Mr. Ballinger, and the Smith boys, Glenn and Clyde, that I had filed the petition for them, I wouldn’t want to serve as administrator unless it was all right with them; and I turned around to them and asked them.
“Q. What did they say?
“A. Clyde said, ‘Well, we have got to have an administrator’ and I don’t believe Glenn said anything.
“Q. Did Mr. Ballinger say anything?
“A. Mr. Ballinger said nothing.
“Q. In any event, there was no objection raised and the Court issued letters to you, didn’t she?
“A. There was no objection raised. The Court issued letters to me. I talked to the Smith boys and Mr. Ballinger going down the walk from the Courthouse and everything was lovely. They were perfectly satisfied with my appointment.”
Mr. Leon Kinter, who was employed by the decedent as a hired hand to operate the farm, testified:
“Q. Just as near as you can, relate the conversation between you and Peg.
“Mr. Nellans: I will object to' it between you and — I will object to it as a matter of form. I don’t think he can relate a conversation like this.
“The Court: Overruled.
“A. Just said about making out a will. She talked about that. I just told her go make a will, to go to Wallace Sullivan and make out a will regardless of who it hurts.
“Q. What else did she say, anything?
“A. Just kind of stopped then, that was all of it, but we said that several times. I had always just told her to go make out her will.
“Q. Did she say anything about her estate, who she wanted to handle it or anything?
“A. Yes.
“Q. What did she say?
“A. Wallace Sullivan.
“Q. She said she wanted Wallace Sullivan to handle her estate?
“A. Absolutely.”
Clyde Smith testified that before the hearing in the probate court, he had not been informed and had no reason to think his nominee, Ballinger, would not be appointed administrator. He testified on direct examination as follows:
“A. Well, Mr. Hahn suggested that Wallace Sullivan should be the administrator.
“Q. You say Mr. Hahn, are you referring to Lowell Hahn here?
“A. That’s right.
“Q. He suggested that Mr. Sullivan should be the administrator?
“A. Yes.
“Q. And, did you consent to Mr. Sullivan being the administrator?
“A. No, I didn’t.
“Q. Did Mr. Ballinger consent to Mr. Sullivan being the administrator?
“A. No, he didn’t.
“Q. Did Mr. Sullivan ask you if it was all right with you if he were administrator?
“A. He asked if Ballinger had anything to say and he said not at the present time.
“Q. Did you have anything to say at that time?
“A. I didn’t approve of it, either way. I was just kind of shocked.
“Q. Do you approve of his being appointed administrator today?
“A. No, I don’t approve of it.”
He further testified on cross-examination:
“Mr. Sullivan: Probate Court’s office, and after Mr. Hahn nominated me or submitted my name to be administrator, what did the Court do, what did Martha Kellogg do? Did she ask me if I would serve?
“A. Yes, she did.
“Q. What did I say?
“A. You said you 'would.
“Q. Is that all I said? Did I say that I had filed this petition for you and I wanted it to be all right with you boys, didn’t I say that?
“A. I don’t remember that.
“Q. And didn’t you say, ‘Well, we have got to have an administrator?
“A. No, you asked if we were satisfied and I never said yes or no.”
“The Court: What’s your objection to Mr. Sullivan being appointed, Mr. Smith?
“A. I felt like it would be just a little bit better if we had somebody out there (Jennings, Kansas) to be closer to us.
“The Court: Why, isn’t the property all down here (Phillips County)?
“A. Yes, but he (Ballinger) was qualified just as well as anybody else.”
Considering the record before the district court, we are of the opinion Sullivan did not change sides in the controversy. He acted only upon the nomination of the guardian ad litem who had the statutory preference of nomination, after the probate court found him to be competent and suitable for the trust, and then only after he explained to the court, Ballinger, and the Smith brothers that he had filed the petition for administration for them, and would not serve as administrator “unless it was all right with them.” When Sullivan asked the Smith brothers for their consent, no objection was made, and Clyde said “[w]ell, we have got to have an administrator.” As they walked from the courthouse following the hearing, Ballinger and the Smith brothers expressed satisfaction with Sullivans appointment.
It would be difficult under the facts stated to conclude the appellants were not fully apprised of what was taking place. It would be equally difficult to hold they did not at least give their implied consent to Sullivan’s appointment. Implied consent is defined in 15A C. J. S., Consent, p. 576, as follows:
“That which is manifested by signs, actions, or facts, or by inaction or silence, from which arises an inference that the consent has been given. It exists where a person by his line of conduct has shown a disposition to permit another person to do a certain thing without raising objection thereto.” *
In the district court, Clyde Smith testified that when asked if he was satisfied, he did not say yes or no. Sullivan and the probate judge testified that when asked if he had any objection to Sullivan being appointed administrator, he replied, “well, we have got to have an administrator.” The appellants may not consent to the appointment of an administrator in the probate court, and then object to the appointment on appeal to the district court.
The record has been carefully examined and other claimed errors of the appellants considered. We find no error which would justify a reversal of the decision. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal in three consolidated negligence actions brought to recover for tort claims arising from the collision of two vehicles on U. S. Highway 281 north of Hoisington, Kansas. The claims were filed by the driver of one car, Anton Staudinger, and by his wife and daughter. The wife and daughter were passengers. The claims were filed against the driver of the other car, Robert D. Gibb, and his employer, Sooner Pipe & Supply Corporation.
Anton Staudinger, named as appellant, died pending appeal to this court. Agnes Staudinger, his wife, was appointed and is now executrix of his estate. Pursuant to motion the executrix is substituted as appellant in this action on appeal.
In the trial below a jury in answer to special questions found that the defendant, Robert D. Gibb, committed no act of negligence which caused the collision. The jury found that the plaintiff, Anton Staudinger, committed an act of negligence, an improper turn, which caused the collision. The jury further found that neither the wife nor the daughter of Anton Staudinger committed any act of negligence. Defendants were awarded judgment.
Plaintiffs’ appeal to this court is based upon claims of abuse of discretion by the trial judge in admitting or restricting evidence and upon errors claimed in the instructions given or refused.
Although plaintiffs do not claim the jury’s answers to special questions were contrary to the evidence, a brief summary of the facts surrounding the collision of the two vehicles will be helpful.
The collision occurred on U. S. Highway 281 a few feet north of an intersection with a county road referred to as Susank Road. Both cars were traveling on U. S. Highway 281. The defendant Gibb was proceeding north in the east lane of traffic. The plaintiff Staudinger was proceeding south in the west lane of traffic. The Staudinger family lived east of this intersection along the Susank County Road. The Staudinger vehicle turned across the center lane of traffic to go east at the intersection. The front ends of both cars were badly damaged and injuries resulted. The point of impact appeared to be east of the center line of U. S. Highway 281 and north of the north line of the county road in the lane of traffic properly occupied by the Gibb vehicle as it proceeded north. The Staudingers testified they did not see the lights of the oncoming Gibb vehicle and they had started to turn left when the collision occurred. A Kansas Highway Patrol trooper, who arrived at the scene shortly after the accident, testified that he determined the accident occurred at 9:18 p. m. It was dark. He had taken pictures and measurements at the scene. He testified the Gibb vehicle left thirty-eight feet of skid marks on the highway before impact. He further testified the skid marks were straight down the highway, in the proper lane, and he was of the opinion the Gibb vehicle was under control prior to impact.
Other facts and testimony will be developed as we examine the points urged on appeal.
Appellants’ first points are directed to the restrictions which the court imposed on the testimony of the witness Lt. Stackley of the Wichita Police Department. Lt. Stackley was eventually qualified at the trial as an expert in the area of accident reconstruction. After testifying to his education, experience and qualifications in this area, he testified to physical facts observed in traffic reports and pictures taken at the scene and on the basis of those facts calculated the speed of the Gibb car. In Lt. Stackley’s opinion the minimum range of speed of the car prior to brake application was sixty-four miles per hour. After this opinion testimony was given the court recessed the jury and held an in-chambers hearing on the sufficiency of foundation and qualification of the witness for such testimony. The testimony of Lt. Stackley was based largely upon the police report of the accident showing the footage and direction of travel of the two cars both before and after the impact and pictures of the vehicles taken after the collision. He was not present on the scene before or after the accident. The court was concerned largely with Lt. Stackley’s lack of knowledge of the texture of the road surface at the time of the accident. Lt. Stackley calculated speed on various ranges of the coefficient of friction possible and arrived at vary ing speeds. The exact nature of a road surface determines the coefficient of friction which should be used in determining the speed. The accident occurred June 23, 1964, and Lt. Stackley based his calculations upon the condition of the surface of this road when he viewed it some three and a half years after the accident.
Further testimony concerning the road surface was obtained by plaintiffs from another witness. The witness testified that no resurfacing had occurred on this road during the period and the only change in condition was from “traffic polishing.” Thereupon Lt. Stackley was permitted to testify that it was his opinion the upper range of speed of the Gibb vehicle was 71.3 miles per hour.
The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. (Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822; Hildebrand v. Mueller, 202 Kan. 506, 449 P. 2d 587.)
The trial judge may require a witness be first examined concerning the data upon which the opinion or inference will be founded before allowing him to testify in terms of opinion or inference. (K. S. A. 60-457.) When an expert witness is not or cannot be sufficiently advised of relevant and material matters prerequisite to his testimony on the subject the trial judge may reject the testimony. (K. S. A. 60-419.)
In this case the trial court required further examination as to the possible changes in the road surface between 1963 and 1968. This was within the discretion of the trial court as indicated by the statutes and our case law. The testimony of the maximum range of speed was later admitted and no prejudicial error resulted from requiring further qualification and foundation facts.
The next point presented for error was the refusal of the trial court to permit Lt. Stackley to testify as an expert on the effects of alcohol on judgment, coordination and reaction time of drivers.
Mr. Stackley was a lieutenant in the Wichita Police Department. He had qualified as an expert in the field of accident reconstruction. Background and experience in the field of internal medicine was entirely lacking from the previous qualifications he had given. Unless we can say that experience gained in a police department in accident investigation and in testing percentages of alcohol in the blood are sufficient to endow a person with medical expertise on the effects of alcohol on the human body the trial court’s ruling must stand. We do not believe after reading the qualifications of Lt. Stackley which appear in this record that the trial court abused its discretion in excluding his testimony on this point.
The plaintiffs alleged that defendant Gibb was intoxicated when the accident occurred and that his intoxication was a proximate cause of the accident. The trooper testified the Gibb vehicle was under control and in its proper lane prior to impact.
There was testimony that when Mr. Gibb quit work that evening at 5 o’clock p. m., he and a customer of the company went to the V. F. W. Club at Great Bend, Kansas. Gibb had a mixed drink at this club with an alcoholic content. He ate a sandwich and some potato chips. Thereafter the two men went to another private club where they picked up a girlfriend of Gibb, had another drink and then went to the girlfriend’s house to arrange for another girl. Gibb had a third drink at the house. At 8:30 they left Great Bend and enroute to Russell, Kansas, the collision occurred. The time of the accident was set at 9:18 p. m.
This leads us to appellants’ next point of error. Dr. Reiff Brown, a physician specializing in orthopedic surgery, was called as an expert witness. He had taken pharmacology classes in medical school as to the effects of alcohol in the body systems. He testified that alcohol was a depressant that affects the reflexes of the brain, spinal cord and the nerves. A person while under the influence of alcohol acts as though he is stimulated because voluntary inhibitions are depressed. It is a toxide and affects the brain more than other organs. It is broken down by the liver and either used as food or eliminated by the body as waste.
The witness was not permitted by the trial court to answer die abstract question, “What effect does it (alcohol) have on judgment, reaction time and coordination?” The objection posed to the question was lack of foundation in that it solicited no medical knowledge based upon the facts in this case. The answer to such an abstract question would not have been related to any facts of the case. If given it would be lacking in probative value without further hypothesis. The question as posed presupposes no stated amount of alcohol and no stated lapse of time between ingestion and effect. The question was one which elicited an opinion of an expert and which is contemplated by the following statutes relating to expert testimony:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” (K. S. A. 60-456 [&].)
“The judge may require that a witness before testifying in terms of opinion or inference be first examined concerning the data upon which the opinion or inference is founded.” (K. S. A. 60-457.)
The province of an expert witness is to aid a jury in the interpretation of technical facts or to assist in understanding the material in evidence and not to state simple conclusions based upon facts which could be, but which have not been placed in evidence. (Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219.)
Questions propounded to experts should not require answers involving matters of conjecture or speculation. (2 Jones on Evidence, § 417, p. 788 [Fifth Edition].) The trial court properly required a more specific factual background.
Thereafter appellants attempted to pose an acceptable hypothetical question and in each case the court sustained an objection. The first hypothetical question asked was:
“Dr. Brown, I want you to assume that an individual, a man, had five drinks of liquor over a four-hour period of time, from approximately five o’clock to nine o’clock in the afternoon, and that these drinks were from a jigger to a jigger and a half of liquor, in mixed drinks; that he had nothing to eat during that period of time, except possibly a few potato chips. Do you have an opinion as to whether or not liquor, or alcohol in that instance would have an effect upon that person’s judgment, coordination, and reflexes?”
The second hypothetical question asked was essentially the same as the first except the number of drinks was reduced to three.
The third and fourth hypothetical questions posed were essentially the same as the second except the individual was described as being the approximate age and weight of Mr. Gibb. The actual age and weight of Mr. Gibb was not available in the evidence.
An offer was made by the court to allow counsel sufficient time to prepare a hypothetical question in writing. Counsel refused this offer. The court then ruled:
'It is the opinion and determination of the court that there was no single hypothetical question posed to the doctor that was a proper hypothetical question; lacking in scope and also lacking in accuracy, and to allow him to answer any one of the hypothetical questions posed would be wrong, would be misleading, and would be prejudicial to the defendants.”
In Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567, it was said:
“The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. (Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822.) There is no requirement that questions be hypothetical in form when an expert witness is presented the facts in some other acceptable manner. (K. S. A. 60-458; Gard, Kansas Code of Civil Procedure, § 458.) He may render an opinion based on facts or data within his personal knowledge or observation, or made known to him at the hearing. (K. S. A. 60-456 [&]; Van Welden v. Ramsays, Inc., 199 Kan. 417, 430 P. 2d 298.) In this state expert testimony relating to automobile accidents has been held admissible in the discretion of the trial court. (McElhaney v. Rouse, 197 Kan. 136, 144, 415 P. 2d 241, and cases cited therein. Also, see, Campbell v. Clark, 283 F. 2d 766 [10th Cir. 1960].)” (p. 790.)
When an expert witness is not testifying from personal knowledge and examination of the subject of inquiry the trial court in its discretion can require questions in hypothetical form. (K. S. A. 60-458.)
In Jones on Evidence it is stated:
“A hypothetical question should be so framed as to state the facts which die interrogating party claims have been proved and for which there is support in the evidence. If there is no testimony in the case tending to prove the facts which are assumed by the hypothetical question, such question is improper. If the facts assumed in the interrogatory are wholly irrelevant to the issue, the question should be excluded. And it has been held that the question must always include and assume all material facts which are undisputed. In short, there must be in the evidence a sufficient fact predicate to support a hypothetical question and the answer of the expert thereto.
“It is error to allow an expert to answer a hypothetical question which excludes from his consideration facts which have already been proved by the testimony upon which the question is based, a consideration of such facts being essential to the formation of an intelligent opinion concerning the matter. The court should reject questions which unfairly select part of the established facts or which omit material parts. A hypothetical question cannot be based upon testimony given by the witness himself, where it is merely assumed to be true.” (2 Jones on Evidence, § 416, p. 782 [Fifth Edition].)
We have examined cases where expert testimony has been solicited to establish a degree of intoxication on the part of an individual who has previously consumed alcohol. (See Weaver v. Lovell, 128 Ill. App. 2d 338, 262 N. E. 2d 113.) In such cases certain elemental facts appear necessary to a hypothetical question on intoxication in the absence of blood tests and breath analysis. Where, as here, there is no evidence of eyewitnesses concerning impaired coordination or lack of control on the part of a driver, a trial court is required to exercise judicial restraint and discretion in approving the hypothetical questions asked for the purpose of inferring negligent operation of a vehicle. The question in such cases should include and assume all material facts which are necessary to an expert opinion on the subject of inquiry. In Weaver v. Lovell, supra, various factors were considered as elemental to a proper hypothetical question as to intoxication. Blood alcohol is decreased by oxidation through bodily processes. The weight and age of the individual, the amount of food eaten before and during the period in question, the number of ounces of alcoholic beverage, the strength of the particular drink consumed (i. c. 80, 86 or 100 proof) and the approximate time or times the individual ingested the drinks in relation to the time of the accident are important in answering such a question with any degree of reasonable certainty.
We do not say that all such elemental facts must be incorporated in every such hypothetical question posed on the subject of intoxication. Judicial discretion to determine the sufficiency of the hypothesis in the first instance is lodged in the trial court and on appeal is lodged in this court.
None of the hypothetical questions in the present case included the age or weight of the individual, the sandwich eaten by him during the course of the evening, the number of ounces, the strength of the alcoholic beverages consumed or the approximate time each drink was consumed in relation to the collision. These elemental factors having been omitted from the hypothetical question, we cannot say that the trial court erred in holding the questions were so lacking in accuracy and scope that any answer given in response thereto would lack the requisite degree of reasonable certainty.
Appellants’ next point of error is in restricting the cross examination of Gibb and of his girlfriend, Patsy Sluter Walker. The trial court restricted the questioning of these two witnesses when appellants attempted to bring out adulterous behavior and immoral conduct for the stated purpose of affecting their credibility as witnesses.
As affecting the credibility of a witness K. S. A. 60-422 provides that evidence of traits of character other than honesty or veracity or their opposites, shall be inadmissible.
We therefore reject the conclusions reached by the appellants on this point. Testimony as to adulterous or immoral conduct should not be admitted solely to affect the credibility of witnesses.
Appellants claim error in the failure of the court to give instructions requested by them to negate negligence of the parent being imputed to the child and negligence of the driver being imputed to the passenger. The trial court refused to give such instructions because the case was submitted to the jury on. special questions. There was nothing said to the jury about imputation of negligence of a driver to a passenger. The special questions were presented to the jury and answered as follows:
“No. 1. What act, or acts of negligence, if any, were committed by the defendant, Robert D. Gibb, which caused the collision and ensuing injuries?
“Answer: None.
“No. 2. What act, or acts of negligence, if any, were committed by the plaintiff, Anton Staudinger, which caused the collision and ensuing injuries?
“Answer: Improper turn.
“No. 3. What act, or acts of negligence, if any, were committed by the plaintiff, Agnes Staudinger, which caused the collision and ensuing injuries?
“Answer: None.
“No. 4. What act, or acts of negligence, if any, were committed by the plaintiff, Rosalie Staudinger, which caused the collision and ensuing injuries?
“Answer: None.
“No. 5. If you find that defendant Robert D. Gibb committed an act or acts of negligence which caused the collision and ensuing injuries, and if you also find that the plaintiff, Anton Staudinger, did not commit an act or acts of negligence which caused the collision and ensuing injuries, then write below the amount of money that you feel would reasonably compensate him for his injuries and car loss.
“Answer: -
“No. 6. If you find that defendant Robert D. Gibb committed an act or acts of negligence which caused the collision and ensuing injuries, and if you also find that the plaintiff, Agnes Staudinger, did not commit an act or acts of negligence which caused the collision and ensuing injuries, then write below the amount of money that you feel would reasonably compensate her for her injuries.
“Answer: -
“No. 7. If you find that defendant Robert D. Gibb committed an act or acts of negligence which caused the collision and ensuing injuries, and if you also find that the plaintiff, Rosalie Staudinger, did not commit an act or acts of negligence which caused the collision and ensuing injuries, then write below the amount of money that you feel would reasonably compensate her for her injuries.
“Answer:__”
It should be noted that three separate claims were filed in this consolidated case arising from the collision, one by Anton Staudinger, one by his wife and one by his daughter. The three cases were consolidated for trial. Evidence was introducted to establish the negligence of Anton Staudinger. The negligence of the parent, Anton Staudinger, cannot be charged to the child and such negligence would not relieve the defendant of any liability he might have to the child. (Becker v. Rupp, 187 Kan. 104, 353 P. 2d 961; PIK 4.04.) Any negligence on the part of the driver of a vehicle is not chargeable to a passenger and will not bar recovery for an injury to a passenger received as a direct result of negligence of the defendant. (Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061; PIK 8.90.)
As applied to this case we believe the instructions on imputed negligence should have been given even though the case was submitted to the jury on special questions.
The need for such instructions can best be illustrated by pointing out the dilemma the jury and court would have faced if the jury had found both Robert Gibb and Anton Staudinger negligent in causing the injuries. In such case neither special question No. 6 nor special question No. 7 prefaced an allowance for injuries of the wife or the daughter upon findings of negligence encompassing both drivers. Faced with this situation and in the absence of instructions on imputed negligence the jury might well have disallowed damages to the wife and daughter on the assumption that the negligence of their driver prevented recovery. This is especially true in this case where the cases were consolidated for trial and where under Instruction No. 3 the jury was advised:
“The plaintiffs have the burden of proving that defendant Robert D. Gibb committed an act or acts of negligence which resulted in the collision and injuries of which each complains.
“The defendants have the burden of proving that any plaintiff committed an act or acts of negligence which resulted in the collision and ensuing injuries.”
Such instruction infers that the burden of proof has been met by the defendants on proof that any plaintiff committed acts of negligence which resulted in the collision.
However, considering the answers of the jury to the special questions we do not believe reversible error was committed. The jury found the defendant was not negligent. (Answer to Special Question No. 1.) Without a finding of negligence on the part of the defendant the jury could not and would not reach the issue of imputed or contributory negligence on the part of the plaintiff wife or daughter.
A case on appeal will not generally be reversed on exceptions to instructions which do not relate to the issue upon which the cause was determined. (Pittman Co. v. Hayes, 98 Kan. 273, Syl. ¶ 2, 157 Pac. 1193.)
In Worden v. Tri-State Insurance Company, (10th CA 1965) 347 F. 2d 336, the rule is stated that an error in instructing a jury on the issue of contributory negligence is harmless and not prejudicial to plaintiff when there is a jury finding that defendant was not guilty of negligence.
In Behler v. Wichita Transportation Co., 136 Kan. 591, 16 P. 2d 503, and in Swope v. City of Wichita, 141 Kan. 388, 41 P. 2d 987, the rule has been applied where the special findings of the jury acquit the defendant of the negligence charged in the petition.
We conclude that it was error to refuse plaintiffs’ requested instructions on imputed negligence but that such was harmless and not prejudicial to plaintiffs in view of the jury finding that defendant was not guilty of negligence.
Although we have examined the balance of the ten points urged on appeal, we do not believe further discussion is necessary. The points have been examined and it has not been made to appear that reversible error was committed in admitting or restricting evidence, in giving or refusing instructions or in failing to clarify the special questions. (See K. S. A. 60-261 and K. S. A. 60-2105.)
The judgment is affirmed.
Fontron, J., dissents. | [
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The opinion of the court was delivered by
Fromme, J.:
Eunice Justus was granted a divorce from W. W. Justus on April 17, 1963. She was given custody of the couple’s four children. An interest in certain real estate was set over to her by that decree. W. W. Justus was in default of appearance and pleading.
On May 8, 1963, the husband, W. W. Justus, filed a motion to set aside the decree and to obtain a rehearing. The motion was denied after full arguments and no appeal was taken from that order of denial.
Seven years later W. W. Justus remarried.
Thereafter on July 1, 1970, W. W. Justus collaterally attacked the divorce decree in two separate proceedings.
In the original divorce action (No. 7347) W. W. Justus filed a second motion to set aside the divorce decree. This motion was denied and W. W. Justus filed notice of appeal.
A separate action was filed at the same time to quiet title to the real estate which had been set over to the wife by the 1963 divorce decree. Summary judgment was entered in favor of the wife in that action. W. W. Justus filed notice of appeal.
By stipulation of the parties both appeals were consolidated in the court below. Each appeal involves a collateral attack upon the divorce decree entered in 1963.
We believe that a short answer to both appeals lies in the undisputed fact that the appellant, W. W. Justus, has remarried.
When a former spouse takes advantage of a decree of divorce by remarrying he cannot question the validity of the decree in a collateral proceeding concerning any rights which arose from the marital relation and which were determined by the decree.
In Perrenoud v. Perrenoud, 206 Kan. 559, 480 P. 2d 749, this court said:
“. . . The validity of a divorce decree cannot be questioned in a collateral proceeding concerning any rights arising out of a marital relation, by a spouse who takes advantage of such decree by remarrying. . . .” (p. 571)
See, also, Patterson v. Patterson, 164 Kan. 501, 190 P. 2d 887 and 29 A. L. R. 3d 1167.
Appellant attempts to evade the foregoing rule of law by claiming the decree of divorce was absolutely void.
The basis for this contention is an amendment to the petition in the original action. The prayer of the original petition was for separate maintenance. Personal service of summons was made upon W. W. Justus in the county on November 14, 1961. No answer was filed by the defendant. Thereafter on December 17,1962, an amendment to the petition was filed praying for a divorce. A notice of the amendment and a copy of the amendment to the petition was mailed to the address of W. W. Justus and a certificate of mailing signed by wife’s attorney and sworn to before the Clerk of the District Court was filed in the case. The divorce action was heard on April 17, 1963. Thereafter appellant appeared on May 8, 1963, and filed a motion to set aside the judgment and to obtain a rehearing on all matters adjudicated including the division of property. The motion was denied and no appeal was taken.
The appellant argues there was insufficient service of process upon him since there was a complete change in the cause of action by the amendment. We note in passing G. S. 1949, 60-756, then in effect, permitted amendment of the petition without leave at any time before answer.
The appellant does not contend the court lacked jurisdiction of the subject matter. His claim is directed to lack of jurisdiction of his person. Appellant asserts that notice of the amendment to the petition was never received by him. However, he does not deny that he appeared in the action three weeks after the divorce decree was entered and filed a motion to set aside the judgment and asked for a rehearing on all matters adjudicated.
A court has jurisdiction to determine its own jurisdiction over the person of a defendant, and a judgment rendered against a defendant who has appeared specially and moved to dismiss for want of jurisdiction of his person is res judicata of such question when not tested by the appellate process. (Baldwin v. Traveling Men’s Assn., 283 U. S. 522, 75 L. Ed. 1244, 51 S. Ct. 517; 5 Am. Jur. 2d, Appearance, § 4, p. 481; 28 A. L. R. 2d 1303, 1318.)
Appellant’s first challenge to the jurisdiction of the court over his person was made in his motion of May 8, 1963. This challenge was fully heard by the trial court which had jurisdiction to determine the question raised by him. His objection was determined and even though we assume it to have been determined erroneously on the facts or on the law, that determination is res judicata and precludes collateral attack on the judgment on the ground of lack of jurisdiction. If the court erroneously determines that it had jurisdiction over the defendant, defendant has ground for reversal in an appellate court. If, however, he does not appeal the decision it becomes binding and defendant cannot thereafter contend that the judgment was void.
The decree of divorce at most was voidable not void. W. W. Justus by remarrying on the strength of that decree cannot question its validity in collateral proceedings.
The order and the judgment are affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The district court of Reno County dismissed plaintiff’s action to recover a refund of taxes under the doctrine of forum non conveniens. In our original opinion we reversed. Thereafter motions for rehearing were filed in this case and in Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149. In Dwyer the motion for rehearing was granted. Because a change in the Dwyer opinion on rehearing might necessitate a reexamination of this case (Herren), the motion for rehearing in this case was not acted on. The motion has been held in abeyance awaiting final decision in Dwyer.
Dwyer has been reconsidered along with the other pending tax cases. No major change in our original opinion in Herren is dictated.
However, in order to clarify the original opinion and minimize possible future question about that opinion, two matters should be noted.
The appeal to the district court provided by K. S. A. 1970 Supp. 74-2426 et seq. is from the order of the board of tax appeals, as distinguished from the order of the director of property valuation department. Therefore we would correct the original opinion in Herren to reflect this determination. The fourth full paragraph on page 404 of the original opinion is deleted and the following paragraph substituted:
“By way of contrast, the proceeding in Johnson county was an appeal from an order of the board of tax appeals as authorized by K. S. A. 1970 Supp. 74-2426. Venue of this appeal is laid in any county in which any portion of the property is located. It is concerned with the reasonableness and lawfulness of the order of the board of tax appeals. The director of property valuation is a necessary party defendant to these proceedings and the clerk of the district court is required by the statute to issue summons to be served on the director. On the other hand the county treasurer and local taxing officials of Reno county were not proper parties and were not joined in the Johnson county proceedings.” (207 Kan. at p. 404.)
The second matter which should be noted is this. In Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490 P. 2d 399, it was this day determined that when property of a taxpayer is valued or assessed by the director on a statewide basis, the method of review outlined in K. S. A. 1970 Supp. 74-2426 et seq. is exclusive and the statewide valuation and assessment may not be challenged collaterally under K. S. A. 79-2005. We adhere to that decision and point out that any statement in our original opinion in Herren which may suffer from overbreadth should be limited accordingly.
The motion for rehearing is denied. | [
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The opinion of the court was delivered by
Fontron, J.:
On March 24, 1971, the Director of the Property Valuation Department of the State of Kansas, Ronald F. Dwyer, (hereafter referred to as director) issued directives to the Boards of County Commissioners of 96 Kansas counties (being all of the counties which had completed reappraisals) directing each board to convene as a board of equalization and to adopt a resolution directing the county assessor to apply to each class of rural agricultural investment land the valuation per cent changes for the tax year of 1971 as shown in the directive. Each directive further provided that the resolution showing the percentage changes be published in a paper of general circulation within the county. The directives, which were identical except for addressees and percentage figures, were issued in an attempt to comply with the legislative mandate to equalize assessed valuations between adjacent counties as required by K. S. A. 79-1446. A reproduction of one of the directives — in this case issued to Ellis County — is shown as Appendix A following this opinion.
Some two weeks after the directives were issued, the State of Kansas, in the person of its Attorney General acting on the state’s behalf, filed the present action seeking a declaratory judgment that the statutes under which the director purported to act were unconstitutional and that his directives were void. The state further prayed for affirmative injunctive relief which would require the director to rescind the directives, to notify the county boards of commissioners to such effect, and to direct the county boards to repeal any resolutions which might have been adopted in compliance with the directives. A restraining order was issued two days after the lawsuit was filed.
After a hearing, the trial court entered judgment in favor of the director, upholding the validity of the directives which were issued and denying the injunctive relief sought. The state has appealed from that judgment, the enforcement of which was stayed by the trial court pending appeal.
Before defining the issues it may prove helpful to sketch, in thumbnail fashion, the procedures employed by the director in computing the blanket percentage changes by which equalization was to be accomplished.
As a first step, the director divided the state into nine districts comparable and homogeneous as to climate, rainfall, crops and cropping practices, hazards, income and expenses, and sales. Among the items considered in identifying soil and land capabilities were texture, depth, permeability, slope, drainage, erosion and terrain. A map is attached hereto as Appendix B, showing the nine districts and the counties encompassed in each.
Lands were classified on a statewide basis into eleven categories: Irrigated, 1 and 2; bottom cultivated, 1 and 2; upland cultivated, 1 and 2; tame grass, 1 and 2; native grass, 1 and 2; and waste. A table was prepared showing the acreage of each type of land in each of the 96 counties involved and the average assessed value per acre. Finally, three tables were prepared for each county: (1) Showing the percentage of adjustment for rural agricultural investment land in each of the categories, these being the percentage changes to be made in equalizing the assessed values in the county with the assessed values throughout the district; (2) disclosing the average assessed value per acre of land in each classification for the year 1970; and (3) containing the 1971 average assessed value per acre for each class of land after application of the percentage adjustments.
The average per acre assessed values for 1971 for the land in each category was computed on the basis of the median of the assessed values throughout the several counties comprising the district, it being assumed that each county assessor had assessed the real estate in his county at 30% of justifiable value (now fair market value).
The first issue raised on appeal is whether K. S. A. 79-1446 violates the due process and equal protection provisions of the federal and state constitutions. As a part of the due process question, the state challenges not only K. S. A. 79-1446 but K. S. A. 79-1602 (now K. S. A. 1971 Supp. 79-1602), as well.
K. S. A. 79-1446 implements K. S. A. 79-1404 Sixteenth which invests the director with authority to equalize valuations of property. 79-1446 reads as follows:
“Before September 15 of each year the state director of property valuation shall make a comparison of the fair market values in money of taxable property of each county with the fair market value in money of taxable property of counties adjoining thereto, and shall make a similar comparison with the statewide average of fair market values in money of taxable property. All countywide reappraisals of taxable property, after their final completion, shall be submitted to the state director of property valuation for such a comparison with adjoining counties and with the statewide average. In the event that any annual comparison or any appraisal so submitted shall fail to be substantially equal to that of any adjoining county in the judgment of the state director of property valuation, it shall be the duty of such director to order the county assessor of the offending county to increase or decrease the appraised values of his county to the level of surrounding counties to make all such counties comparable to adjoining areas.”
The state contends this statute is constitutionally objectionable in that no provision is made for the giving of notice prior to the time the director acts to equalize the assessments. Since his directives have the effect in many instances of increasing assessed values, although some values are lowered, it is argued that due process requires notice to be given of prospective increases, and opportunity be afforded for hearing.
In our judgment this contention must be rejected. The law recognizes a distinction between the process of assessment, in which individual properties are valued separately, and equalization procedures by which blanket changes are made affecting all or an entire class of properties within a particular assessment or taxing district.
Where an increase in the value placed by the county assessor on a specific tract of real estate is contemplated by the county board of equalization, the statutory scheme of this state requires the owner be notified of the proposed increase and that he be given an opportunity to be heard. To this effect, K. S. A. 79-1602 provides in substance that where it becomes necessary, in the opinion of the county board, to increase the assessed valuation of specific tracts or individual items of real estate, “except where the assessment of a class or classes of property in any area or areas of the county is raised by a general order applicable to all property in such class or classes for .the purpose of equalization ,” the county clerk shall give ten days written notice to the person to be affected, stating the proposed increase and fixing the time and place of hearing. It is because of the exception which we have italicized that the state now claims K. S. A. 79-1602 is unconstitutional as violating the precepts of due process.
We are not without respectable precedent in concluding that prior notice is not required by constitutional mandate in the equalization process. The case of Bi-Metallic Co. v. Colorado, 239 U. S. 441, 60 L. Ed. 372, 36 S. Ct. 141, reflects a situation quite comparable to that which is now before us. That action was brought to enjoin the Colorado State Board of Equalization and the Colorado Tax Commission from putting into effect an order increasing the value of all taxable property in Denver by forty per cent. The suit was dismissed by the Supreme Court of Colorado.
In affirming the Colorado court’s judgment, the United States Supreme Court assumed, for the purpose of its opinion, that neither the taxpayer nor the local assessor, nor any representative of the city or county was provided an opportunity to be heard other than what they may have had by reason of the fact that the time of the boards meeting is fixed by law. The court went on to say:
“. . . On this assumption it is obvious that injustice may be suffered if some property in the county already has been valued at its full worth. But if certain property has heen valued at a rate different from that generally prevailing in the county the owner has had his opportunity to protest and appeal as usual in our system of taxation, ... so that it must be assumed that the property owners in the county all stand alike. The question then is whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned — here, for instance, before a superior board decides that the local taxing officers have adopted a system of undervaluation throughout a county, as notoriously often has been the case. . . .
“Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. If the result in this case had been reached as it might have been by the State’s doubling the rate of taxation, no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body entrusted by the state constitution with the power. . . . There must be a limit to individual argument in such matters if government is to go on. . . .” (pp. 444, 445.)
In a more recent case, also arising in Colorado, People v. Hively, 139 Colo. 49, 336 P. 2d 721, the court had occasion to ponder the question of notice as applying to the equalization function as distinguished from the assessing function. In discussing a section of the Colorado code directing the tax commission to determine whether property within the several counties has been assessed at true and full cash value and should it find the property in any county not to have been so valued, then to determine the increase or decrease in the value required to place the property on the assessment roll at full value, the court said:
“This authorizes the commission to order horizontal increases or decreases in an aggregate flat sum or of a percentage rate. It applies to all property within a county and when exercising this function the commission is not required to make reappraisals, to give notice to or hold hearings for affected taxpayers. It performs in this role in September long after the determination of individual assessments. This section would be meaningless if the commission were required to notify each and every taxpayer in the county and hear complaints with respect to the increase in valuation. . . .” (pp. 58, 59.)
In an annotation in 84 A. L. R. Tax Assessment — Increase— Notice, p. 198, the rule is stated in this wise:
“In those states where the question has arisen, it has been generally held that notice to individual property owners affected is not required where a general increase is made by a board of equalization or review of the assessed valuations, of all the taxable property in a given division or district (or all the property therein of a certain class), the statutes being generally construed as not requiring such notice, and the requirement being held not essential to due process of law. . .
See, also, Colorado Tax Commission v. Pitcher, 56 Colo. 343, 138 Pac. 509; 51 Am. Jur., Taxation, § 779, p. 704.
A taxpayer is not left destitute or without remedy to protect himself against arbitrary or capricious action on the part of the director in his administration of equalization procedures. Avenues for the review and correction of arbitrary, inequitable or discriminatory assessments are contained among our statutes. K. S. A. 74-2438 provides that an appeal may be taken to the state board of tax appeals from any finding, ruling, order, decision or other final action of the director of property valuation by any person aggrieved thereby. K. S. A. 79-1413a furnishes another safeguard in providing that when on complaint of any taxpayer to the state board of tax appeals it is made to appear that the assessment of taxable real estate in any county is not in substantial compliance with the law, and that the public interest will be promoted by a reappraisal, the board shall order a reappraisal of all or any part of the taxable property in the district.
Not to be overlooked in this connection is K. S. A. 79-2005 (now K. S. A. 1971 Supp. 79-2005), pursuant to which a taxpayer may pay his taxes under protest and then bring suit for the recovery thereof within the time fixed by the statute.
In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836, a challenge was directed to the statute which imposed a tax upon motor carriers. The challenge was brought on the ground that due process was denied. In rejecting that argument the court stated:
“It is only necessary that at some stage of the assessment proceedings the taxpayer shall have an opportunity, after notice, to appear and contest the assessment.” (p. 296.)
The rationale underlying Felten was further expressed in the recent case of State, ex rel., v. Dwyer, 204 Kan. 3, 460 P. 2d 507, where an attack was launched against what is now K. S. A. 1971 Supp. 79-306c on the ground, among others, that it contravened the due process clause of the 14th Amendment. It was contended in that case that a taxpayer who purchased a car after June 15, the final day on which the county board of equalization met, had no opportunity to appeal his assessment to the board, and thus was deprived of due process and equal protection. In rejecting the argument we called attention to K. S. A. 79-1413a and K. S. A. 79-2005 and stated:
“These avenues of relief remain open to the aggrieved taxpayer after June 15. Their availability satisfies constitutional requirements. . . .” (p. 5.)
But, argues the state, some form of notice to the taxpayer is necessary before he can be placed in a position to avail himself of his statutory remedies of review. In other words, it is argued the taxpayer must be made aware of the change in his assessment. In advancing this argument the state apparently overlooks K. S. A. 79-1412a, (now K. S. A. 1971 Supp. 79-1412a) Third, which requires the county assessor, on or before May 1 of each year, to notify each taxpayer by mail as to the assessed value of his real property whenever the assessment has been changed from that of the preceding year.
In the present case, the equalization directives were issued March 24, 1971, and by their specific terms apply to the 1971 tax year. Under the mandate expressed in 79-1412a, it would have been the statutory duty of the county assessor, absent the restraining order issued herein, to notify each taxpayer on or before May 1st of the new assessed valuation resulting from the director’s equalization order. This notification would, in our judgment, be sufficient to alert the most comatose taxpayer to the realization that the assessed value of his property had been increased (or decreased, as the case might be) and, if he felt aggrieved, that he had best take advantage of the avenues available to him for review of his assessment. In this connection it would appear that an appeal to the county board of equalization would have been open at this time, as well as the other avenues already mentioned, since under K. S. A. 79-1602, the county board is required to meet not later than the first day in May (now May 15) for the hearing of appeals and remains in session until the last business day of that month, and thereafter reconvenes from June 5th to the 15th for the same purpose.
The claim that equal protection is denied by K. S. A. 79-1446 needs little discussion at this point. The same effective avenues for review remain open to those who feel aggrieved by the changes wrought in their assessed values by the equalization orders as are open to those who feel aggrieved for other reasons. The directive issued by the director applies to all owners of rural agricultural investment properties alike — none are treated unequally.
Passing to another feature, the state points out that in Board of County Commissioner v. Brookover, 198 Kan. 70, 74, 422 P. 2d 906, this court recognized that matters of valuation and assessment are administrative in character. It then asserts, since the equalization function is properly a part of the valuation process, that the legislature has not set up adequate standards to provide guidelines in equalization matters.
We have examined the authorities cited by the state and do not find them persuasive in supporting its position. In two of them, State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537 and Cities Service Gas Co. v. State Corporation Commission, 197 Kan. 338, 416 P. 2d 736, this court upheld legislation as supplying sufficient standards for administrative guidance. The Cities Service case appears quite in point. There it was held that the statutes in question provided a sufficient standard to govern the commission s exercise of authority to approve or deny applications to waterflood oil and gas wells, the standard being to act in the interest of off and gas conservation.
Neither State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865 or Johnston v. City of Coffeyville, 175 Kan. 357, 264 P. 2d 474, are factually in point. The Hines case challenged the school reorganization act of 1945. That piece of legislation sought, among other things, to invest county committees with the power to adopt such orders as might be necessary to properly organize, reorganize and disorganize school districts. The lack of standards in this type of legislation is obvious. The statute involved in Johnston was likewise wanting in standards in providing that a per cent of construction costs of a highway be paid by the city on an equitable ratio among its taxpayers as the governing body should prescribe.
The duty enjoined on the director by 79-1446 is to equalize the assessed values of property in adjoining counties to the end that the values are comparable. The technical means of accomplishing this objective must necessarily be left to the director and members of his staff, but the standard seems clear enough, i. e., equalization in the assessed values of comparable property. We believe this to be a ready, comprehensible and sufficient guide for the administrative action required.
It is also claimed that K. S. A. 79-1446 and the action taken thereunder by the director, violates article 11, § 1 of the Kansas Constitution which provides, so far as material, that the legislature shall provide for a uniform and equal rate of taxation. The gist of the state’s contention on this point is not too clear, but it cites the case of Hines et al., v. City of Leavenworth et al., 3 Kan. * 186 [2d Ed., 180] which construes the amendment to mean that the rate of taxes must be uniform and equal throughout the jurisdiction which levies them. Apparently the state implies that 79-1446 ignores jurisdictional boundaries and extends the assessment function, through the medium of equalization, beyond territorial limits, thus violating the constitutional provision.
As we view the plan proposed by the director, it does not violate the “uniform and equal” provision as construed in Hines. Under K. S. A. 79-1411a the county is declared to be the governmental unit charged with the primary responsibility for the administration of laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes, while 79-1411b provides that each county shall comprise a separate assessment district.
Each of the directives issued by the director applies to a single separate assessment district, namely, die county. The assessed values of the rural agricultural properties, after equalization, remain equal and uniform throughout each county. We find no merit in the suggestion that those values were computed on a district basis. Rather, they were completed on a county-wide basis and equalized thereafter with adjacent counties.
Finally the state would have us hold that the plan designed by the director, and implemented by the directives of March 24, 1971, does not accord with the provisions of K. S. A. 79-1446 but that it violates both the statute and the constitutional command of uniformity. The argument points out that equality exists only between counties which are not adjacent to interior district boundary lines; that as to counties which face each other across district borders, there remains inequality in assessed values. Some lack of equality cannot truthfully be denied, but we reject the concept that it vitiates or poisons the entire plan.
The problem of disparity in assessed values has long plagued the taxpayers of this state. It has become more acute with the proliferation of taxing districts, such as school and hospital districts, which may embrace territory in two or more counties and which have the power to adopt levies for their own operation, although, as we pointed out in McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 2d 243, they possess no authority with respect to the valuation and assessment of property.
In the McManaman decision this court forcefully called attention both to the inequalities which then existed in the assessed values of real estate between counties and to the duties placed on the director to correct them. On page 127 of the opinion this language appears:
“These clearly defined official duties of the director of property valuation leave no doubt that he has full power and authority to enforce the assessment laws promulgated by the legislature and to insure that all property subject to tax is assessed uniformly and equally.”
The attainment of perfection in the area of taxation will seldom, if ever, be likely. So long as imperfection inheres in humankind, the institutions which mankind creates will doubtless be infected with the same virus. But progress does occur from time to time. This is exemplified, we believe, in the plan contrived by the director to equalize rural property values. It is obvious that a great deal of thought, study and research went into its preparation. One cannot read the record without concluding that the director made a sincere attempt to comply with the legislative mandate and the expressions found in the McManaman decision.
Although some inequality in assessed values will doubtless exist where counties border on opposite sides of a district boundary there is good reason to believe there will be less disparity and more equality after the the directive is put into effect than was the case when McManaman was decided. The change should be for the better. The director makes no claim that his plan is perfect, or that it cannot be improved with further study. But it does furnish, as the director suggests, a basis from which to work.
We find no reason for disturbing the judgment of the trial court and the same is affirmed.
O’Connor and Prager, JJ., not participating.
APPENDIX A
STATE OF KANSAS PROPERTY VALUATION DEPARTMENT DIRECTIVE
To: The Board of County Commissioners of Ellis County, Kansas.
Re: Equalization of Locally Assessed Rural Agricultural Investment Land.
This directive is issued this 24th day of March, 1971, by the Director of the Kansas Property Valuation Department, under authority granted him by the Statutes of Kansas, K. S. A. 79-1404, and all other applicable statutes.
The question of locally assessed rural agricultural investment properties was considered by the Director, and, upon consideration of all the information available to him, finds that there is need of equalization of the valuation of rural agricultural investment land between your county and other counties in your area.
If you are not presently sitting as the County Board of Equalization, then you are directed to convene or reconvene immediately as the 1971 County Board of Equalization.
The Board of County Commissioners, sitting as the 1971 County Board of Equalization, shall adopt the following resolution:
“We, the Ellis County Board of Equalization adopt this resolution at the direction of the Director of the Kansas Property Valuation Department issued March 24, 1971, and we do hereby direct the Ellis County Assessor to apply to each class, sub-class, grade or sub-grade of land, as shown on each field sheet or property record card in the county, the following valuation percent changes to be effective for the tax year of 1971:
Irrigated No. 1 .............................................. + 40%
Irrigated No. 2............................................. + 27%
Bottom Cultivated No. 1...................................... + 25%
Bottom Cultivated No. 2...................................... + 35%
Upland Cultivated No. 1...................................... NC
Upland Cultivated No. 2 ..................................... 10%
Tame Grass No. 1 ........................................... + 85%
Tame Grass No. 2 .......................................... + 100%
Native Grass No. 1 .......................................... + 27%
Native Grass No. 2 ......................................... + 129%
Waste [$6] per acre 9
and that the County Clerk publish this resolution in some newspaper having general circulation in the county.”
Further, you are directed to obtain approval from the Director prior to making any major changes in your present class, sub-class, grade, or sub-grade of rural agricultural investment properties in 1971.
The Board of County Commissioners are hereby further directed to provide the County Assessor with all necessary help and office supplies to implement this directive.
* A dollar amount per A. is to be used for equalization for waste land
NC — No Change.
/ s/ Ronald F. Dwyer
Ronald F. Dwyer, Director
Property Valuation Department
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The opinion of the court was delivered by
Foth, C.:
Appellant’s motion for rehearing was granted in order to permit the court to consider the issues raised in this case in the broader context of those presented by several other pending cases involving the ad valorem taxation of state-assessed utilities. After careful reconsideration of the record, the arguments and the briefs, the court is convinced its initial decision was correct. The original opinion is therefore affirmed.
APPROVED BY THE COURT.
O’Connor, J., participated in the decision of this case and approved the foregoing opinion on rehearing prior to his resignation.
Prager, J., took no part in the consideration or decision of this case. | [
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The opinion of the court was delivered by
Foth, C.:
Appellant was convicted by a jury of murder in the second degree, as charged in the amended information, and was sentenced to confinement for a period of ten years. He appeals, alleging several trial errors.
The deceased, Richard Calhoun, was eighteen years old at the time of his death. He and the appellant had been acquainted for approximately two years, going back to a time when Calhoun had been a student in a trade school operated by the Economic Opportunity Foundation in which appellant was an instructor-supervisor. Their relationship at the school and afterwards was not a friendly one, being marred by several conflicts over school hours and discipline, including one in which Calhoun was said to have displayed a knife and appellant sent him home from school. Calhoun was eventually discharged from the school and apparently blamed appellant for his dismissal.
Appellant testified to subsequent encounters with Calhoun and various of his friends during which appellant felt apprehensive. One of these was about a week before Calhoun’s death, at which time both Calhoun and a friend showed appellant pistols, one of which appellant offered to buy. The fatal incident was precipitated by the theft that night of a tape player from appellant’s car; appellant was led to believe Calhoun was responsible for the theft.
Their last encounter occurred about 8:00 or 9:00 p. m. on March 8, 1968, in a parking lot near a tavern in Kansas City. Appellant had observed a car pull into the lot and had recognized its passengers as friends of Calhoun. He followed in his truck seeking, he said, to interrogate them about his tape player. When both vehicles stopped he observed Calhoun alight from the driver’s seat of the car, and he similarly alit from the truck.
Appellant had with him in the truck a Winchester .30-30 carbine which he had purchased about a month before, and which he had pawned about two weeks before. He had gotten it out of pawn about 7:00 o’clock that evening, and purchased shells for it and loaded it for the first time shortly before the shooting.
As to the brief encounter in the parking lot, we have two versions. Two young friends of Calhoun testified that appellant came running up with the rifle in hand, demanding to know where his tape player was; that Calhoun denied knowledge of it, whereupon appellant shot him from a distance of as much as six or seven feet; and that appellant then told them to get out, take Calhoun with them, and not come back.
Appellant’s version was that, upon seeing Calhoun he reached into the truck and picked up the rifle — only because he didn’t trust Calhoun and wanted to scare him; that he operated the rifle’s lever action as he approached — again only to scare him, since he thought he had unloaded it; that Calhoun said he had the tape player and dared him to do something about it; and that Calhoun made arm motions leading appellant to believe he might have a pistol concealed in his belt under the bloused shirt or sweater he was wearing. Appellant insisted in both a pretrial statement and in his testimony that he poked Calhoun at the waist with the rifle to see if there would be a metallic clink indicating the presence of a pistol, and that as he did so the rifle discharged accidentally. He steadfastly denied pulling the trigger.
The ensuing events are immaterial here. They include appellant’s pawning of the gun the next morning under an alias, his arrest and the giving of a statement which is not in issue, and the death of Calhoun from the gunshot wound after surgery. •
As may be seen, appellant’s defense was an uncertain mixture of accident and self-defense. His first allegation of error relates to the exclusion of testimony which he characterizes as dealing with the reputation and predilection for violence of the deceased, offered to support the latter theory.
There is no doubt that where a colorable claim of self-defense is made, evidence of the turbulent character of the deceased is proper and may be shown by evidence of his general reputation in the community. State v. Gray, 179 Kan. 133, 292 P. 2d 698; State v. Long, 103 Kan. 302, 175 Pac. 145. Cf., State v. Johnson, 185 Kan. 1, 340 P. 2d 373; State v. Frederickson, 81 Kan. 854, 106 Pac. 1061; State v. Kirby, 62 Kan. 436, 63 Pac. 752. Here, however, the evidence offered did not go to general reputation; what appellant sought to introduce was the testimony of a police juvenile officer showing a record of Calhoun’s juvenile arrests, none of which resulted in a conviction or adjudication of miscreancy or delinquency. K. S. A. 60-446 has doubtless broadened the scope of evidence by which character may be proved by permitting proof of specific instances of a person’s conduct, but that section is expressly subject to the limitation of 60-447. The latter in turn provides that, where a character trait is relevant, “evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible. . . .”
The upshot of it is that appellant could prove Calhoun’s claimed violent character either by general reputation or by evidence of convictions. The offered evidence was neither, and was therefore properly rejected.
Appellant’s other major contention is based on the trial court’s failure to instruct the jury on first, second and third degree manslaughter. No complaint is made of the instructions actually given, which covered murder in the second degree, fourth degree man slaughter and justifiable homicide. Neither is there a contention that the state’s evidence, if believed, was not wholly adequate to sustain the verdict returned.
The following discussion occurred prior to the instructions being given:
“The Court: It was my thought that that would take care of the matter if the jury should find that the killing was involuntary. Now, that was my reason for putting it there.
“Mr. Menghini (county attorney): After his testimony this morning, I don’t have any objection to the self-defense instruction.
“The Court: What about you, Mr. Fisette?
“Mr. Fisette (defense counsel): If Your Honor please, I think the instructions cover the situation as the Court has drawn the instructions, and we have no objection to the instructions as they now presently stand, and we feel that the defendant is entitled to the lesser crime — that of fourth-degree manslaughter — as the Court has instructed in its instructions.”
This exchange renders apropos what we said in State v. Hockett, 172 Kan. 1, 4, 238 P. 2d 539:
“A duty rests upon counsel for defendant in the trial of a criminal action to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees or lesser crimes involved in the main charge which defendant desires to be considered. Generally, a failure to make a request waives error in failing to instruct, and, generally, error in failing to instruct or in giving a wrong instruction upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfactory evidence of a higher charge under proper instructions relating to it. (State v. Winters, 81 Kan. 414, 105 Pac. 516; State v. Willhite, 161 Kan. 113, 166 P. 2d 562.)”
It is true that a trial court may have a duty to instruct on lesser included offenses even in the absence of a request, but that duty arises only where the omitted instructions are “clearly required by the evidence” and “the jury might naturally and probably have convicted of a lesser degree or offense” if they had been given. State v. Winters, 81 Kan. 414, 421, 105 Pac. 516. (For an account of the judicial history of the “no request-no error” doctrine in this state see State v. Phelps, 151 Kan. 199, 97 P. 2d 1105.) Roth second and third degree manslaughter under former K. S. A. 21-411 and 21-413 required that the killing be “in the heat of passion.” No evidence was presented of the existence of that frenzied state of mind, as defined and explained in such cases as State v. Roy, 203 Kan. 606, 455 P. 2d 512; State v. McDermott, 202 Kan. 399, 449 P. 2d 545, cert. den. 396 U. S. 912, 24 L. Ed. 2d 187, 90 S. Ct. 226; State v. Linville, 148 Kan. 142, 79 P. 2d 869. Appellant’s testimony of accident wholly negated that element, while the state’s evidence showed at most anger, which is insufficient under the cases cited.
The evidence might more plausibly be fitted into the structure of former K. S. A. 21-407, manslaughter in the first degree. Cf., State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Severns, 158 Kan. 453, 148 P. 2d 488; State v. Merriweather, 136 Kan. 337, 15 P. 2d 425. We cannot, however, go so far as to say the evidence “clearly required” such an instruction in the absence of a request. Defense counsel’s actions here went beyond mere silence; he affirmatively approved the instructions given as covering all theories of the defense, including the lesser included offense of fourth degree manslaughter. We think this places him in the position of the defendants in State v. Hockett, supra, and State v. Post, 139 Kan. 345, 30 P. 2d 1089, i. e., having made his election he must abide the result.
The county attorney’s conduct at the time of final argument is also urged as error. The record reveals that on four occasions during the defendant’s argument the county attorney objected to what he viewed as misstatements of the law or attempts to interject factual issues based on evidence which had been offered but excluded. Our examination of these objections fails to reveal any malicious purpose on the part of the county attorney or any foundation for a claim of prejudicial error. The same may be said of that portion of the county attorney’s argument now urged as error but which was not objected to at the time. We believe it to have been within the legitimate bounds of oratory, even if it had been the subject of the necessary objection. Such matters are left to the discretion and control of the trial court in the absence of flagrant abuse or misconduct. See, e. g., State v. McDermott, supra; State v. Wilson, 188 Kan. 67, 360 P. 2d 1092; State v. Wyman, 198 Kan. 666, 426 P. 2d 26.
Finally, appellant claims it was error to admit into evidence over his objection a photograph of Calhoun taken just prior to autopsy. The objection was based in part on a claimed lack of identification, but largely on its claimed inflammatory nature.
As to the first point, the photograph was identified by the officer who took it. In addition, the physician who had performed emergency surgery on Calhoun positively identified his handiwork in the photograph, although he was not personally acquainted with Calhoun in his lifetime — no serious contention was made that the surgery had been performed on anyone other than Calhoun. We believe it was sufficiently established that the photograph was of Calhoun.
We are hampered in assessing its alleged inflammatory nature by not having the photograph in the record. Its admissibility, however, is governed by the general principle recently reiterated in State v. Booker, 200 Kan. 166, 168, 434 P. 2d 801, cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031:
“Even though gruesome, photographs properly identified, as representing physical objects which constitute a portion of a transaction which serve to unfold or explain it, may be exhibited in evidence whenever the transaction is under judicial investigation. (State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; State v. Turner, 193 Kan. 189, 392 P. 2d 863; State v. Stubbs, 186 Kan. 266, 349 P. 2d 936, cert. den. 363 U. S. 852, 4 L. Ed. 2d 1734, 80 S. Ct. 1632; State v. Spencer, 186 Kan. 298, 349 P. 2d 920; State v. King, 111 Kan. 140, 206 Pac. 883; State v. Sweet, 101 Kan. 746, 168 Pac. 1112.)”
The photograph here would serve to identify the deceased and to demonstrate the nature and, more importantly, the location of the wound. To that extent it might even have served as some measure of corroboration of appellant’s testimony about poking Calhoun at the waist to discover a possible pistol. In any event, whatever inflammatory characteristics it may have exhibited did not render it inadmissible under the quoted rule.
The appellant having failed to establish prejudicial error, the judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
George L. Creekmore was found guilty and sentenced on two counts of incest and two counts of carnal knowledge of a female under age of eighteen years. All charges arose from acts engaged in with his natural daughter. The appeal to this court raises one question.
Appellant complains that the trial court erred in admitting into evidence an extrajudicial statement obtained by two investigating officers. He claims tibe statement was involuntarily induced by promises and by indirect coercion.
Prior to the opening of the trial appellant’s counsel filed a motion to suppress the statement given by the appellant. A full evidentiary hearing on the admissibility of the statement was held by the court in the absence of the jury. The hearing was conducted as provided by K. S. A. 60-408 and as suggested by State v. Milow, 199 Kan. 576, 433 P. 2d 538, and State v. Pittman, 199 Kan. 591, 433 P. 2d 550. At the hearing testimony was taken from various witnesses, including the two detectives who took the statement, the attorney who represented appellant at the preliminary hearing, two sons of the appellant and the appellant himself. The 48 page record on appeal is composed mainly of the testimony and proceedings on the motion to suppress.
At the conclusion of the hearing the trial court found the appellant had been fully advised of his constitutional rights, was aware of the consequences of the statement and that no threat, promise, duress, coercion or compulsion was used to induce the statement. The court determined the statement of the appellant was freely, voluntarily and intelligently given and should be admitted into evidence.
When the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence. (State v. Pittman, supra.)
In determining the voluntariness of a statement made by an accused the totality of the circumstances leading to and accompanying the giving of the statement should be considered. (State v. Harden, 206 Kan. 365, 480 P. 2d 53.) Failure to have counsel present does not ipso facto make the statement involuntary. It depends upon the surrounding facts and circumstances. (State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, cert. den. 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315.) Factors generally considered as bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary. (Garrity v. New Jersey, 385 U. S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616.)
In the present case appellant was being held at the Wichita prison farm on numerous traffic violations. He was permitted to use a telephone. Charges had been filed against him on five counts of incest and five counts of carnal knowledge of a female under the age of eighteen years. A week prior to giving the statement in question he was visited by his two sons and Detective Weir. This visit was not on a regular visitor s day. The sons had requested that Detective Weir make arrangements at the prison farm for them to visit their father. Detective Weir made the arrangements and accompanied the sons. A fair evaluation of the evidence indicates that no interrogation of the appellant was attempted by Detective Weir at this time. In response to questions Detective Weir advised those present that each count could carry a maximum penalty of twenty years, making a total possible maximum of 200 years on the ten counts. During this discussion the sons were present. Detective Weir suggested that if the charges were true appellant needed psychiatric help and that Detective Weir would do what he could to get him help.
It appears from appellant’s own testimony that after this visit appellant talked with some of the other prison farm inmates. As a result of such conversations he decided that he might be convicted on all ten counts and that it would be better to give a confession or statement in hopes he might be sent to a mental institution for only a few years.
The extrajudicial statement was obtained a week after Detective Weir’s first visit to the prison farm. On that occasion Detective Weir first called the farm by telephone and asked the officials if appellant was interested in talking with him. On being advised in the affirmative Detective Weir and Detective Bonnie L. Neeley of the Juvenile Section drove out to the farm and talked with the appellant. Appellant was fully advised of his constitutional rights under the Miranda guidelines. At the beginning of the taped statement he stated he understood that he had a right to remain silent, that anything he said could and would be used against him in a court of law, that he had a right to talk to a lawyer and have him present while being questioned and that if he could not hire a lawyer the court would appoint one for him.
The testimony of events leading up to and surrounding the taking of the statement indicates no threat, promise or coercion was used to obtain the statement. The appellant talked freely and voluntarily.
There was testimony from the officers that they did not promise appellant psychiatric help or suggest he might serve a short time in a mental institution if he gave the statement. The officers were not advised that appellant had previously talked with an attorney. Appellant did not request that an attorney be present. At no time during the interrogation did he refuse to answer questions or request an attorney.
It appears from the evidence that the statement was the product of his free and independent will. After considering his situation and listening to fellow inmates of the prison farm, his free choice was to make the statement and to admit the charges.
When such a choice is freely and knowingly arrived at after considering the alternative courses of action open to him the statement is voluntary. Such has been our holding in regard to the voluntariness of guilty pleas. See Jones v. State, 207 Kan. 622, 485 P. 2d 1349. See also North Carolina v. Alford, 400 U. S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160.
The trial court found the statement was freely, voluntarily and intelligently given without coercive threat, promise or compulsion. We have carefully reviewed the record before us and there is substantial competent evidence to support the findings of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
Lindon Allen was convicted of indecent liberties with a child and sentenced as a “persistent sex offender” to double the maximum duration of the presumptive term of imprisonment for his offense under tire provisions of K.S.A. 2004 Supp. 21-4704(j)(1). The trial court was able to classify Allen as a “persistent sex offender” based upon its finding beyond a reasonable doubt that Allen’s 1987 juvenile adjudication for aggravated incest was sexually motivated under K.S.A. 2004 Supp. 22-3717(d)(2)(L). The Court of Appeals reversed his enhanced sentence based upon its interpretation of the sentencing statutes involved and summarily rejected Allen’s claim that his sentence violated the Constitution under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). State v. Allen, 35 Kan. App. 2d 466, 131 P.3d 1241 (2006). We granted both the State’s and Allen’s petitions for review, and we affirm the Court of Appeals decision, although for different reasons, and remand for a new sentence.
FACTS
On July 6, 2004, defendant Lindon A. Allen pled no contest to and was convicted of one count of aggravated indecent liberties with a child. According to the plea agreement, the State agreed, in exchange for Allen’s plea, to dismiss the second count against Allen in its complaint, to recommend the low number from the applicable Kansas Sentencing Guidelines grid box, and to follow the statutory presumption. Allen was free to argue for an alternative disposition. The trial court accepted Allen’s plea.
The presentence investigation report (PSI report) revealed that Allen had a juvenile adjudication of aggravated incest in 1987. As a result of this adjudication, the PSI report labeled Allen a “persistent sex offender” under K.S.A. 2004 Supp. 21-4704(j), which authorized the trial court to double the maximum duration of the presumptive imprisonment term. Allen was assigned a criminal histoiy category score of “I.”
Prior to sentencing, Allen filed a notice of his intent to challenge the criminal history score of “I” and moved for a downward durational and/or dispositional departure. In both of these filings, Allen asserted that aggravated incest was not a “sexually violent crime” under K.S.A. 2004 Supp. 22-3717(d)(2) and that he therefore could not be sentenced as a persistent sex offender under K.S.A. 2004 Supp. 21-4704(j).
The trial court heard arguments on Allen’s motions at sentencing. The State acknowledged that aggravated incest was not listed as a per se “sexually violent crime” as enumerated in K.S.A. 2004 Supp. 22-3717(d)(2)(A) through (I) but argued that it was comparable to the per se sexually violent crimes under K.S.A. 2004 Supp. 22-3717(d)(2)(J). According to the State, the trial court could determine beyond a reasonable doubt that Allen’s adjudication for aggravated incest was sexually motivated under K.S.A. 2004 Supp. 22-3717(d)(2)(L), thereby making aggravated incest a sexually violent crime and allowing the trial court to sentence Allen as a “persistent sexual offender.” The trial court ultimately held that Allen’s prior adjudication qualified as a “sexually violent crime” under K.S.A. 2004 Supp. 22-3717(d)(2)(L) and doubled Allen’s sentence pursuant to K.S.A. 2004 Supp. 21-4704(j)(1), imposing a presumptive prison term of 122 months but granting Allen a downward departure for a controlling term of 110 months.
Court of Appeals
The basis of the Court of Appeals majority opinion’s reversal was its interpretation of the provisions of K.S.A. 2004 Supp. 22-3717(d)(2)(L). It concluded that subsection (L) was not a “catchall” phrase intended to expand tire list of per se sexually violent crimes, but instead “was intended to bring within the ambit of sexually violent crimes those offenses which are not necessarily sexual in nature, but have been determined beyond a reasonable doubt at the time of sentencing as sexually motivated under the facts.” Allen, 35 Kan. App. 2d at 472. The court explained that “[i]n any case, the court must make the determination that the act was sexually motivated ‘at the time of sentencing for the offense’ in order for the act to fit within the definition of a sexually violent crime under 22-3717(d)(2)(L).” 35 Kan. App. 2d at 472.
The Court of Appeals also summarily rejected Allen’s argument that the enhanced sentencing scheme under K.S.A. 2004 Supp. 21-4704(j) violated his constitutional rights to due process under Apprendi and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
Discussion and Analysis
The dispositive issue in this case involves the constitutionality of Allen’s sentence under Apprendi and Gould. The constitutionality of a statute is a question of law over which this court has unlimited review. State v. Moore, 274 Kan. 639, 652, 55 P.3d 903 (2002).
We note that the relevant provisions of K.S.A. 2004 Supp. 22-3717(d)(2)(L) have been deleted by the legislature, effective July 1, 2006. See L. 2006, ch. 212, sec. 19. We also note that the legislature has included aggravated incest as a sexually violent crime under K.S.A. 2006 Supp. 22-3717(d)(2)(J) (see L. 2006, ch. 212, sec. 19), thereby eliminating the recurrence of the problem pre sented in this case. We therefore address only the issue requiring us to vacate Allen’s sentence and remand for sentencing before the district court.
Apprendi and Gould
Allen was sentenced for the charged offense of indecent liberties with a child, which is by law defined as a “sexually violent crime.” See K.S.A. 2004 Supp. 22-3717(d)(2)(B). At the time of his sentence, Allen had been previously adjudicated a juvenile offender because of aggravated incest, an offense that was not defined as a sexually violent crime. See K.S.A. 2004 Supp. 22-3717(d)(2)(A) through (I).
The provisions of K.S.A. 2004 Supp. 21-4704(j) authorize the imposition of double the maximum duration of the presumptive term of imprisonment for a “persistent sex offender,” which is defined in K.S.A. 2004 Supp. 21-4704(j)(2) as:
“Except as otherwise provided in this subsection, as used in this subsection, persistent sex offender means a person who: (A)(i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A)(i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another .state, dre federal government or a foreign government . . . .”
Considering Allen’s prior adjudication for aggravated incest and recognizing that aggravated incest was not a crime defined as a “sexually violent crime” in K.S.A. 2004 Supp. 22-3717(d)(2), (A) through (I), the trial court focused upon the provisions of K.S.A. 2004 Supp. 22-3717(d)(2)(L), which further provided a “sexually violent crime” to mean:
“any act winch at the time of sentencing for tire offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in tiris sub-paragraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for die purpose of the defendant’s sexual gratification.”
The trial court made a determination beyond a reasonable doubt that Allen’s juvenile adjudication in 1987 of aggravated incest was sexually motivated, thereby satisfying the provisions of K.S.A. 2004 Supp. 21-4704(j)(2) and allowing the trial court to sentence Allen as a “persistent sex offender.” That is, according to subsection (j)(2)(A)(i), Allen was a person who had been convicted of indecent liberties with a child, defined in K.S.A. 2004 Supp. 22-3717(d)(2)(B) as a “sexually violent crime”; and under subsection (j)(2)(A)(ii), at the time of the above conviction Allen had at least one previous conviction for a “sexually violent crime” as defined in K.S.A. 2004 Supp. 22-3717 in this state, viz., a juvenile adjudication of aggravated incest in 1987.
Critical to Allen’s sentence as a “persistent sex offender” was the determination beyond a reasonable doubt that his 1987 juvenile adjudication of aggravated incest was sexually motivated under K.S.A. 2004 Supp. 22-3717 (d)(2)(L). This finding of fact by the trial court exposed Allen to a greater punishment than would have been authorized based upon his conviction of indecent liberties with a child. The sentence imposed is therefore constitutionally impermissible.
Apprendi explains that “[o'jther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a juiy, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. “[T]he relevant inquiry [to determine the constitutionality of a sentencing scheme] is one not of form, but of effect — does the required finding expose tire defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494.
This court considered the scope of the Apprendi decision in State v. Gould, 271 Kan. 394. We reviewed the constitutionality of K.S.A. 2000 Supp. 21-4716, which allowed for upward durational sentencing departures if certain aggravating factors were found by tire sentencing judge. 271 Kan. at 410-11. Examining the facts, the Gould court found that “Gould’s jury verdict ‘authorized’ a sentence of 31 to 34 months for each child abuse conviction. By imposing two 68-month sentences, tire district court went beyond the maximum sentence in the applicable grid box and exposed Gould to punishment greater than that authorized by the jury’s verdict.” 271 Kan. at 410-11. We held that, under the Sixth and Fourteenth Amendments of the United States Constitution, a “judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the juiy.” 271 Kan. 394, Syl. ¶¶ 2, 4. Thus, the sentencing scheme in K.S.A. 2000 Supp. 21-4716 was held unconstitutional on its face. 271 Kan. at 413.
It should be noted that while Gould’s convictions were found by a juiy and Allen’s present case involves pleas of no contest (in both the current conviction and the prior juvenile adjudication), these facts alone do not change the analysis under Apprendi. See Blakely v. Washington, 542 U.S. 296, 299-301, 159 L. Ed. 2d 403, 124 S. Ct. 2531, reh. denied 542 U.S. 961 (2004) (applying Apprendi analysis to sentence enhancement ordered by a sentencing judge who found additional facts not admitted to in a guilty plea); State v. Cody, 272 Kan. 564, Syl. ¶ 1, 35 P.3d 800 (2001) (holding that under Apprendi, a plea of guilty does not waive a defendant’s due process rights). In both cases, the question to be answered is whether a statute requires a court to impose a more severe sentence on the basis of a fact or facts in addition to those pled or found by a jury.
The provisions of K.S.A. 2004 Supp. 22-3717(d)(2)(L), which allowed the trial court to double Allen’s sentence required that the court make an additional finding beyond a reasonable doubt that his juvenile adjudication was sexually motivated. The doubling of Allen’s sentence under K.S.A. 2004 Supp. 21-4704(j)(1) was based upon a finding made by the trial judge without benefit of a jury determination or a determination made as a part of his juvenile adjudication. Allen’s plea to indecent liberties carried a presumptive sentence of 55 to 61 months. See K.S.A. 21-3504; K.S.A. 2004 Supp. 21-4704(a). The trial court’s finding that Allen’s prior adjudication of aggravated incest was sexually motivated authorized the doubling of his sentence for aggravated indecent liberties. Apprendi and Gould render unconstitutional a sentence enhancement ordered by a sentencing judge who found additional facts not admitted to in a guilty plea.
The Court of Appeals rejected Allen’s contention that his sentence was unconstitutional based upon our decision in State v. Moore, 274 Kan. 639. In Moore, we upheld the constitutionality of the trial court’s decision to double an offender’s sentence as a per sistent sex offender pursuant to K.S.A. 1997 Supp. 21-4704(j). 274 Kan. at 651-54. “[T]he Court of Appeals is duty bound to follow Kansas Supreme Court precedent.” Allen, 35 Kan. App. 2d at 468.
However, Moore involved a present crime that was defined as a sexually violent crime and a past crime that was also defined as a sexually violent crime under K.S.A. 1997 Supp. 22-3717. No finding by a trial judge was needed to apply the provisions for doubling his sentence under K.S.A. 1997 Supp. 21-4704(j)(1). Moore was convicted of aggravated indecent liberties with a child, and he had prior convictions of sexual exploitation of a child and indecent liberties with a child. 274 Kan. at 653-54. All of these crimes were (and continue to be) listed as per se sexually violent crimes under K.S.A. 1997 Supp. 22-3717(d)(2). See K.S.A. 2006 Supp. 22-3717(d)(2)(B),(C), and (H). Thus, this court found that under the prior conviction exception to Apprendi, the doubling of Moore’s sentence was constitutional in that he had been convicted of all of the crimes in question, and tire legislature had statutorily defined each of tírese as a sexually violent crime. 274 Kan. at 653-54. As the Moore court explained,
“[h]ere, Moore was convicted of aggravated indecent liberties with a child, by definition a sexually violent crime. See K.S.A. 1997 Supp. 22-3717(d)(2)(C). Further, Moore was previously convicted of sexual exploitation of a child and indecent liberties with a child, also defined by statute as sexually violent crimes. See K.S.A. 1997 Supp. 22-3717(d)(2)(B) and (H). The district court was not required to make factual findings beyond the existence of these convictions because all the crimes were defined by the legislature as sexually violent crimes.” (Emphasis added.) Moore, 274 Kan. at 653-54.
In coming to this conclusion, this court relied on its previous opinion in State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002), where the court upheld the constitutionality of the sentencing court’s imposition of an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(1)(D)(ii), since Anthony committed a sexually violent crime. In that case, Anthony had been convicted of aggravated indecent liberties with a child- — a per se sexually violent crime under section 22-3717(d)(2)(C). While the Anthony court recognized that “[pJostrelease supervision is a component of the underlying prison sentence,” the court found that Anthony’s enhanced sentence did not violate the Constitution, because aggravated indecent liberties is “by definition a sexually violent crime.” 273 Kan. at 728-29. The court explained:
“The question becomes whether the increased postrelease period runs afoul of the protections outlined in Apprendi and Gould. We conclude that it does not. Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i). In doing so, the court was not required to make an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.” (Emphasis added.) Anthony, 273 Kan. at 729.
Aggravated indecent liberties with a child, Allen’s current conviction, carries a statutory maximum sentence of 61 months; the trial court in this case doubled that sentence to 122 months pursuant to its finding that Allen was a persistent sex offender, then granted a downward departure, finally sentencing Allen to 110 months’ imprisonment. In order to conclude that Allen was a persistent sex offender, the trial court had to make a determination beyond a reasonable doubt that Allen’s 1987 aggravated incest adjudication was sexually motivated. Under Apprendi and Gould, “[ojther than tire fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U. S. at 490.
Sentence vacated and case remanded for imposition of sentence.
Johnson, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Johnson, J.:
Alfred J. Williams, Jr., appeals the denial of his motion to correct an illegal sentence in which he alleged that the district court lacked jurisdiction to convict and sentence him as an adult for crimes committed while he was a juvenile. Specifically, Williams argues that due process did not permit his direct prosecution as an adult. He asserts that the State was required to commence proceedings under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq. (Furse 1993), and effect a waiver hearing in the juvenile proceeding prior to the adult prosecution. Finding that Williams’ sentence was not illegal, we affirm.
Williams was 17 years old in September 1995 when he committed crimes which would subsequently result in jury convictions for two counts of first-degree murder and four counts of attempted first-degree murder. Prior to committing those crimes, Williams had been adjudicated as a juvenile offender in 1994 for acts, one of which would have been a felony if he had been an adult. Therefore, the State filed charges against Williams as an adult, accompanied by an affidavit asserting the applicability of K.S.A. 1995 Supp. 38-1602(b)(3).
Williams participated in the proceedings under the Kansas Criminal Procedure Code without challenging the jurisdiction of the district court to prosecute him as an adult. After his convictions, Williams was sentenced to a hard 25 fife term of imprisonment. On direct appeal, the first-degree murder convictions were affirmed, although the attempted first-degree murder convictions were remanded for a new trial. State v. Williams, 268 Kan. 1, 19-20, 988 P.2d 722 (1999). Williams did not challenge his adult prosecution in the direct appeal.
Subsequently, Williams filed a motion pursuant to K.S.A. 60-1507, although he did not raise an issue as to the district court’s jurisdiction. The Court of Appeals affirmed the district court’s denial of the 60-1507 motion. Williams v. Nelson, No. 89,356, unpublished opinion filed July 3, 2003.
In 2005, Williams filed the pro se motion to correct an illegal sentence which is currently before us. In denying the motion, the district court determined that Williams was not a juvenile offender for purposes of his prosecution for the September 1995 crimes, that the adult criminal court had jurisdiction, and that, therefore, the sentence imposed was not illegal.
STANDARD OF REVIEW, TIMING, AND DEFINITION OF ILLEGAL SENTENCE
On appeal, the parties agree that the issue of whether a criminal sentence is illegal presents a question of law, subject to unlimited review. See State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). “The court may correct an illegal sentence at anytime.” K.S.A. 22-3504(1).
An “illegal sentence” is a sentence: (a) which is imposed by a court without jurisdiction; (b) which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or (c) which is ambiguous with respect to the time and manner in which it is to be served. Jones, 272 Kan. 674, Syl. ¶ 1. Here, Williams does not challenge the character or term of his punishment or contend that his sentence is ambiguous as to the time and manner in which it is to be served. He relies solely on the contention that the district court was without jurisdiction to convict and sentence him as an adult.
JURISDICTION AT THE TIME OF THE OFFENSE
Under the Kansas Code of Criminal Procedure, “[t]he district court shall have exclusive jurisdiction to try all cases of felony and other criminal cases under the laws of the state of Kansas.” K.S.A. 22-2601. However, in 1995, the Kansas Juvenile Offenders Code provided that “proceedings concerning a juvenile who appears to be a juvenile offender shall be governed by the provisions of this code.” K.S.A. 38-1604(a) (Furse 1993). Thus, the district court had jurisdiction to try Williams as an adult.
The term “juvenile offender” was defined in K.S.A. 1995 Supp. 38-1602(b), and that definition specifically excluded:
“(3) a person 16 years of age or over who is charged with a felony or with more than one offense of which one or more is a felony after having been adjudicated in a separate prior juvenile proceeding as having committed an act which would constitute a felony if committed by an adult and file adjudications occurred prior to the date of the commission of the new act charged.”
Williams does not dispute that, at the time he committed the crimes in this case, he was over 16 years of age and had a prior juvenile adjudication which excluded him from the statutory definition of a juvenile offender. Indeed, he concedes that his direct prosecution as an adult was authorized by the statutes in effect at the time.
Likewise, Williams acknowledges our prior controlling decision in State v. Lowe, 238 Kan. 755, 715 P.2d 404 (1986), overruled on other grounds 242 Kan. 64, 744 P.2d 856 (1987). There, the court recognized “that the legislature may exclude any person from ju venile jurisdiction under certain circumstances. [Citation omitted.]” 238 Kan. at 758. Similar to Williams-’ circumstance, Lowe had prior adjudications which excluded him from the definition of a juvenile offender. The Lowe court declared that, because of the prior adjudications, “Lowe clearly had no juvenile offender’ status; therefore, the court lacked jurisdiction to proceed under the juvenile offenders code . . . .” 238 Kan. at 758.
Here, as in Lowe, the district court was statutorily precluded from proceeding against Williams under the Juvenile Offenders Code. Therefore, the district court had jurisdiction to prosecute and sentence Williams under the criminal code- for adults. With that jurisdiction properly in place, the ensuing sentence simply does not fit the definition of an illegal sentence.
Williams attempts to distinguish Lowe by asserting that the legislature is constitutionally precluded from creating a statutory bypass of the juvenile waiver hearings established in the Juvenile Offenders Code. He makes the conclusory declaration that such a bypass violates due process. However, he does not explain from whence a 17-year-old obtains a fundamental right to be adjudicated under a statutorily created juvenile code. See Brown v. U.S.D. No. 333, 261 Kan. 134, Syl. ¶ 5, 928 P.2d 57 (1996) (claimant must establish some property or liberty interest such that the protections of the Due Process Clause are invoked). At common law, a person 14 years old or older was deemed presumptively capable of committing a crime and the Kansas Juvenile Offenders Code is a legislative alteration of the common-law rule. See Lowe, 238 Kan. at 758. The legislature was not constitutionally required to include a 17-year-old recidivist in the definition of a juvenile offender.
Nevertheless, as the State points out, Williams is challenging the constitutionality of the Juvenile Offenders Code for the first time in a motion to correct an illegal sentence. He did not raise this constitutional question in the trial court, on direct appeal, or in his 60-1507 motion. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review). In essence, Williams is complaining about being prosecuted as an adult, rather than seeking a correction of his sentence. We have declared that K.S.A. 22-3504 is not a vehicle for a collateral attack on a conviction. See State v. Nash, 281 Kan. 600, Syl. ¶ 2, 133 P.3d 836 (2006). Similarly, that remedy is unavailable to mount an untimely constitutional challenge to the Juvenile Offenders Code.
To summarize, at the time Williams was prosecuted for the September 1995 crimes, he was excluded from the definition of a juvenile offender under K.S.A. 1995 Supp. 38-1602(b)(3), and the district court was without jurisdiction to conduct proceedings pursuant to the Kansas juvenile Offenders Code. Accordingly, the district court had jurisdiction to prosecute and sentence Williams as an adult. The resulting sentence was not an illegal sentence subject to correction under K.S.A. 22-3504.
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The opinion of the court was delivered by
Davis, J.:
Howard Lane was injured when he slipped and fell on ice at the loading dock of the Atchison Heritage Conference Center (AHCC) on December 31,2002. He later brought this negligence action against the AHCC to recover for his injuries. The AHCC moved for summary judgment on the basis that it was immune from liability under the recreational use exception to the Kansas Tort Claims Act (KTCA). The district court granted its motion and entered final judgment in favor of the AHCC.
The Court of Appeals reversed in Lane v. Atchison Heritage Conf. Center, Inc., 35 Kan. App. 2d 838, 134 P.3d 683 (2006), concluding that the recreational use exception of the KTCA, K.S.A. 2006 Supp. 75-6104(o), did not apply where the facility’s recreational use was only incidental to its primary function. Because the AHCC’s “primary function” was not recreational, the court held that the AHCC had not met its burden of establishing immunity from the KTCA. We granted AHCC’s petition for review, reverse the Court of Appeals, and affirm the decision of the district court.
Initially, Lane’s appeal to the Kansas Court of Appeals involved three arguments: (1) drat the AHCC was not an instrumentality of a municipality for purposes of the KTCA; (2) that the conference center was not public property; and (3) that the recreational use exception under K.S.A. 2006 Supp. 75-6104(o) should not apply. The Court of Appeals affirmed the district court’s holding with regard to the first two issues, and Lane’s petition for review does not raise those issues again. Thus, the sole issue before this court is whether the recreational use exception applies under the facts of this case.
Facts
In 1999, the City of Atchison (the City) purchased land and buildings with federal block grant funds in order to establish a city conference center. The motivation behind the new conference center was to attract events to the area, provide conference and event planning services, create jobs, and stimulate the local economy. Later that year, the City formed the Atchison Heritage Conference Center (AHCC) to maintain the center and administer the center’s programs. The AHCC is a for-profit Kansas corporation and a wholly owned subsidiary of the Atchison Area Economic Development Corporation (AAEDC), though it has not yet turned a profit in the years since it began operation.
The City owns the conference center and leases it to the AHCC on a yearly basis. The lease states that the conference center will provide “meeting, catering and banquet facilities.” The AHCC states in its brief that since its opening, the center has been used for “many activities,” including:
“Rotary and Kiwanis meetings, which feature special guest speakers and informative presentations; local bridge club card games; public school dances; Quilter’s Guild retreats and other meetings, which feature sewing practice and demonstrations; Theater Atchison events; Atchison Area Chamber of Commerce meetings; local bar association meetings; beauty pageants; Society for Creative Anachronism activities, which include the practice and demonstration of outdoor cooking, Renaissance-era crafts, and sewing; and Heart of America Chorus retreats and other meetings, which feature singing and musical practice.”
The Court of Appeals panel below summarized the activity at the conference center from October 1999 through September 2004 as being used “to host meetings on 428 different dates, retreats on 113 different dates, parties or reunions on 82 different dates, and weddings or wedding receptions on 70 different dates.” 35 Kan. App. 2d at 840.
The AHCC hosted a New Years’ Eve dance on December 31, 2002. The dance, which was open to the public, included a buffet dinner and musical entertainment; price of admission was $50 for an individual or $80 per couple. The AHCC hired “The Ranch Hands,” a musical group led and managed by Lane, to provide the music.
During the course of the evening, a bartender at the party drained ice and water from a portable beverage cart onto the conference center’s loading dock. Later on, when Lane used the dock to load the band equipment into his van, he slipped and fell on the ice, causing him to break his right femur and hip.
Lane brought suit in September 2003 against the AHCC, alleging that the center’s negligence in the maintenance of the loading dock caused his injuries. Among the defenses raised in its answer, the AHCC claimed immunity from liability under the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o).
After some discovery, the AHCC filed a motion for summary judgment, claiming that it was immune from liability for ordinary negligence under the recreational use exception to the KTCA and that Lane had only alleged ordinary negligence in his petition. Lane moved to amend his petition to allege gross and wanton negligence, and challenged the application of the KTCA exception. The court granted his motion to amend.
At the hearing on tire AHCC’s summary judgment motion, the district court found that the recreational use exception to tort liability under the KTCA was applicable and thus granted the motion with respect to Lane’s claim for ordinary negligence. The court denied the AHCC’s motion with respect to Lane’s claim for gross and wanton negligence (since tire recreational use exception does not apply to such conduct).
Shortly thereafter, Lane voluntarily withdrew his claim for gross and wanton negligence against tire AHCC, and the district court entered final judgment in favor of the AHCC in May 2005. Lane appealed.
In its decision, the Court of Appeals recognized that K.S.A. 2006 Supp. 75-6104(o) states that tire exception applies to “ 'any public property intended or permitted to be used as a[n] . . . open area for recreational purposes,’ ” but held that “[i]n order to qualify for the recreational use exception, a facility’s recreational use must be more than merely incidental to its primary function.” 35 Kan. App. 2d at 842, 846. After reviewing the center’s activities, the court concluded that “the overwhelming purpose to which the conference center has been employed is not recreation,” but rather “[t]he conference center has primarily been used for meetings and retreats.” 35 Kan. App. 2d at 846.
The Court of Appeals acknowledged that “some of the events occurring within the conference center were recreational, but such events were merely incidental to die primary purpose of die facilities — to provide a source of economic development for die community of Atchison.” (Emphasis added.) 35 Kan. App. 2d at 847. “On the night of plaintiff s injury, the conference center was clearly used for a recreational purpose, a dance, yet the particular use of the facility at the time of an injury is not determinative of the applicability of the recreational use exemption articulated by K. S .A. 2002 Supp. 75-6104(o).” 35 Kan. App. 2d at 848 (citing Jackson v. U.S.D. 259, 268 Kan. 319, 330, 995 P.2d 844 [2000] [Jackson I]). Thus, because the “primary use of the conference center has not been recreational,” the court held that the recreational use exception did not apply. (Emphasis added.) 35 Kan. App. 2d at 848.
Finally, the Court of Appeals concluded that its “primary purpose” interpretation of K.S.A. 2006 Supp. 75-6104(o) prevented the recreational use exception from eliminating the rule for tort liability of government actors:
“The expansion of the recreational use exception advocated by AHCC and adopted by the district court in this case threatens to swallow the rule providing for tort liability. Nearly every state government building holds entertainment or recreational activities on one occasion or another, from performances by school choirs or bands to parties and receptions for various occasions. Extending the recreational use exception to all of these public facilities would effectively abrogate the legislative intent in enacting the KTCA.” 35 Kan. App. 2d at 848.
Standard of Review
The resolution of the question whether the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), renders the AHCC immune from liability involves a question of statutory interpretation, over which an appellate court exercises unlimited review. Wilson v. Kansas State University, 273 Kan. 584, 586-87, 44 P.3d 454 (2002).
“ ‘The fundamental rale to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and 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.’ ” Wilson, 273 Kan. at 588 (quoting Robinett v. The Haskell Co., 270 Kan. 95, 100, 12 P.3d 411 [2000]).
A court may create an exception to a statute only if such an exception “clearly appears to have been intended by the legislature. [Citation omitted.]” Ballweg v. Farmers Ins. Co., 228 Kan. 506, 510, 618 P.2d 1171 (1980).
Discussion and Analysis
K.S.A. 2006 Supp. 75-6104(o) provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
Unless the above statutory exception to liability applies, a governmental entity “shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 2006 Supp. 75-6103(a). This court has explained that “[u]nder the KTCA, governmental hability is the rule and immunity is the exception. [Citation omitted.] In order to avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in K.S.A. 75-6104. [Citation omitted.]” Jackson I, 268 Kan. at 322.
In our examination of the recreational exemption as applied to a pubhc school’s gymnasium, we noted in Jackson I:
“The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of litigation. The benefit to die public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The pubhc benefits from having a place to meet with others in its community.” Jackson 1, 268 Kan. at 331.
In concluding that the use of the pubhc school’s property qualified for the exemption, Jackson I emphasized that a governmental entity has qualified immunity from tort hability for ordinaiy negligence when that entity is “intended or permitted” to be used for recreational purposes:
“Immunity depends on the character of die property in question, i.e., whether die property was ‘intended or permitted to be used for recreational purposes.’ [Citation omitted.] That determination is made by considering whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.” Jackson I, 268 Kan. at 330 (citing Bubb v. Springfield School Dist., 167 Ill. 2d 372, 379, 657 N.E.2d 887 [1995]).
Under the facts of this case, the AHCC was permitted to be used for recreational purposes. As noted in the Court of Appeals’ decision, the injury to Lane occurred at a New Year’s Eve party, which was “a recreational purpose.” Lane, 35 Kan. App. 2d at 848. Moreover, the record demonstrates that the conference center had been used for similar recreational events on other occasions, including weddings, receptions, public school dances, theater events and music concerts, and beauty pageants. See also 35 Kan. App. 2d at 840 (finding that the center had been used for parties or reunions on 82 different dates, and weddings or wedding receptions on 70 different dates since 1999). Thus, in accordance with our decision in Jackson I, the AHCC “has been used for recreational purposes in the past” and is therefore entitled to immunity under the recreational use exception to the KTCA. Jackson I, 268 Kan. at 330.
Our conclusion rests not only with Jackson I, for this court has repeatedly held that the statutory language granting immunity to governmental facilities “intended or permitted” to be used for recreational purposes should be read broadly, and Kansas courts should not impose additional hurdles to immunity that are not specifically contained in the statute. For example, an injury need not occur during the course of a recreational activity for the recreational use exception to apply. See Wilson, 273 Kan. at 588; Jackson I, 268 Kan. at 330. As this court has stated,
‘‘[i]mmunity under K.S.A. 75-6104(o) depends on the character of die property in question and not the activity performed at any given time. The plain wording of the statute only requires that the property be intended or permitted to be used for recreational purposes, not that the injury occur as the result of recreational activity.” Barrett v. U.S.D. No. 259, 272 Kan. 250, 257, 32 P.3d 1156 (2001) (citing Jackson I, 268 Kan. 319, Syl. ¶ 6).
See also Gonzales v. Board of Shawnee County Commr's, 247 Kan. 423, 428, 799 P.2d 491 (1990) (holding that tire recreational use exception could still apply when the government charged an admittance fee).
Moreover, this court has reiterated that a particular facility must be viewed collectively to determine whether it is used for recreational purposes. Under this reasoning, the court in Wilson held that the restrooms at Kansas State University’s football stadium, although not in and of themselves recreational, were immune from liability because they were “necessarily connected” to property that had a recreational use. See Wilson, 273 Kan. at 590. Similarly, the court in Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990), held drat the recreational use exception applied to a “grassy swale or waterway” near a public school’s football field. See also Jackson I, 268 Kan. at 324 (explaining Nichols).
Nevertheless, the Court of Appeals, keying upon language in Jackson I, found that “[i]n order to qualify for the recreational use exception, a facility’s recreational use must be more than merely incidental to its primary function.” Lane, 35 Kan. App. 2d at 846. Concluding that the “majority of the events held at the conference center are not primarily for the purpose of rest and entertainment,” the court held that the recreational use exception could not apply. Lane, 35 Kan. App. 2d at 847. Thus, the Court of Appeals effectively held that in order for the exception to apply, recreation must be the primary purpose in maintaining a facility (not merely one of many purposes or an ancillary purpose). According to the Court of Appeals, AHCC’s recreational use was “merely incidental to the primaiy purpose of the facilities — to provide a source of economic development for the community of Atchison.” 35 Kan. App. 2d at 847. In addition, the Court of Appeals noted that the recreational use exception could not apply to the AHCC because “[t]he record provides no indication that recreational gatherings are given a preferential rate or a scheduling preference over business gatherings. The use of the facilities by artistic workshops, parties, or other activities reasonably classified as ‘recreational’ seems entirely a matter of happenstance.” 35 Kan. App. 2d at 847-48.
In support of its opinion, the Court of Appeals quotes the following language from Jackson I, which, in turn, quoted the Illinois Court of Appeals in Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996):
“Because public property may have more than one intended use [citation omitted] however, the fact that the gymnasium was used for physical education is not dispositive of whether section 3-106 immunity applies. If the school gymnasium was encouraged, intended, or permitted to be used for recess, extracurricular events, or other recreational, noncompulsory activities, then section 3-106 would apply, provided that the recreational use was more than incidental.” ’ ” Lane, 35 Kan. App. 2d at 846 (quoting Jackson I, 268 Kan. at 330 [quoting Ozuk, 281 Ill. App. 3d at 244]).
The Jackson I court adopted the holding of Ozuk that a recreational use must be “ ‘more than incidental ” in order for the exception in K.S.A. 2006 Supp. 75-6104(o) to apply. See Jackson I, 268 Kan. at 330; see also Wilson, 273 Kan. at 590 (reasoning that “the restrooms are not ‘incidentally connected to the stadium but rather necessarily connected to the stadium by plan”); Jackson v. U.S.D. No. 259, 29 Kan. App. 2d 826, 831, 31 P.3d 989 (2001) (Jackson II) (citing this court’s opinion in Jackson I and stating that, for the recreational use exception to apply, “[t]he minimum amount of recreational use must be something more than incidental”); Wright v. U.S.D. No. 379, 28 Kan. App. 2d 177, 179, 14 P.3d 437, rev. denied 270 Kan. 904 (2000) (considering whether “any alleged recreational use intended or permitted in [a public school’s] wrestling room was more than incidental”).
The language in Jackson I that the use must be “more than incidental” does not equate with the language adopted by the Court of Appeals that the use must be the primary purpose in maintaining a facility. Lane, 35 Kan. App. 2d at 847. The Court of Appeals’ opinion ignores the test set forth in Jackson I and the more recent cases dealing with the precise issue we must resolve. The clear statutory language of K.S.A. 2006 Supp. 75-6104(o) provides that the recreational use exception to the KTCA applies when property is “intended or permitted” to be used for recreational purposes, and tire correct test to be applied under this statute is “whether the property has been used for recreational purposes in tire past or whether recreation has been encouraged.” Jackson I, 268 Kan. at 330.
Prior opinions of Kansas appellate courts, as well as the opinions of courts from other states, indicate that the Court of Appeals’ opinion is an incorrect reading of the recreational use exception. For example, this court noted in Jackson I that the injury in that case (at the school gymnasium) occurred during the course of a mandatory school gym class, which could not be considered recreation for immunity purposes. See 268 Kan. at 326, 330. The plaintiffs in Jackson I asserted that the gymnasium there “was not constructed and maintained for any purpose other than for education.’ ” 268 Kan. at 326. Nevertheless, this court remanded the case for a determination of “whether the school gymnasium [was] intended or permitted to be used for recreational purposes.” 268 Kan. at 333.
On remand in Jackson II, the Court of Appeals found that the gymnasium had been used for a number of activities in addition to education-related gym class:
“ ‘During the 1994-95 school year, the Hamilton Middle School gymnasium was used by the public. The Wichita Police Department had a substation located at the school, and the police officers used the gymnasium during non-school hours for recreational activities such as basketball. AYSO soccer groups were allowed to use the gym during bad weather. Church groups in various basketball leagues would use the gymnasium for tournaments on Friday evenings and/or weekends. The Emmanual Baptist Church, located direcdy across the street from Hamilton Middle School, also used the school’s gymnasium from time to time. YMCA-sponsored activities took place in the Hamilton Middle School gymnasium after school hours, including arts, crafts and cheerleading. There were also after-school activities sponsored jointly by the City of Wichita and USD 259 to help care for children after school had been dismissed.’ ” Jackson II, 29 Kan. App. 2d at 832.
In light of these activities, the Jackson II court held that “the room in the present case was used by community groups for recreational purposes beyond incidental use” and therefore the gymnasium was entitled to immunity under the recreational use exception. 29 Kan. App. 2d at 832.
The Jackson opinions did not debate that the primary purpose of the school gymnasium was for physical education classes — a non-recreational use. Moreover, the opinions do not discuss whether the other uses of the gymnasium were more than “incidental” to its education-related purpose. There is no indication that the rec reational activities listed were given preference over school-related uses, or that tire use of the gym by these groups was more than mere “happenstance.” Thus, under tire reasoning of the appellate court in this case, the gymnasium would not have been granted immunity. This, however, was not the outcome of the Jackson courts’ decisions. See also Wright, 28 Kan. App. 2d at 179-80 (holding that the recreational use exception to the KTCA applied to a school’s wrestling room).
The outcome of these previous cases — which found the recreational use exception to apply even when recreation was not the “primary purpose” of a facility — is similar to the conclusion by Illinois courts which have considered like issues. In Jackson I, the court relied heavily on the decisions of Illinois courts, including Ozuk, interpreting the state’s recreational use exception, Ill. Rev. Stat. 1987, ch. 85, par. 3-106, which this court described as being “remarkably similar” to the language of K.S.A. 75-6104(o). Jackson I, 268 Kan. at 327. The Illinois statute states:
“ ‘ “§ 3-106. Neither a local public entity nor a public employee is liable for an injury where the lability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1987, ch. 85, par. 3-106.’ ” Wilson, 273 Kan. at 589 (quoting Annen v. Village of McNabb, 192 Ill. App. 3d 711, 712, 548 N.E.2d 1383 [1990]).
Of particular interest here, the Illinois Supreme Court explicitly rejected an opinion by the Illinois Court of Appeals holding that the application of section 3-106 required an examination of the subject property’s primary purpose (similar to the argument made by the appellate court here) in Bubb v. Springfield School Dist., 167 Ill. 2d 372, 657 N.E.2d 887 (1995). There, tire court considered whether the state’s recreational use exception applied to a concrete area surrounding a school building. The intermediate appellate court found that the property had both recreational and nonrecreational uses, but its primary purpose was nonrecreational. Under this analysis, the intermediate court held that the exception did not apply, because the injury had not occurred during the course of recreational use.
The Illinois Supreme Court rejected this “primary purpose” analysis, stating:
“ ‘The test announced in Bubb v. [Springfield School District, 263 Ill. App. 3d 942, 636 N.E.2d 4 (1994)] ignores established and well-reasoned Illinois appellate court decisions holding that section 3-106 immunity is triggered by tire recreational character of the property, i. e., whether the property in question is “intended or permitted to be used for recreational purposes.” [Citation omitted.] Nothing in the statute requires an examination of the property’s primary purpose. Indeed, an inquiry into a facility’s primary purpose would undoubtedly involve genuine issues of material fact, precluding summary judgment in virtually all cases under section 3-106 of the Tort Immunity Act. We do not believe the Illinois legislature intended to create a triable issue of fact each and every time a public entity raised the bar of tort immunity under section 3-106 of the Act.’ ” (Emphasis added.) Bubb, 167 Ill. 2d at 380-81 (quoting Diamond v. Springfield Metropolitan Exposition Auditorium Authority, 44 F.3d 599, 604 [7th Cir. 1995]).
The Illinois high court also rejected the appellate court's concerns that a disregard of the primaiy purpose would result in too broad of an application of the exception. The court recognized that “[p]roviding immunity to any public property where recreation might occur would eviscerate the duty codified in section 3-102,” and thus, “at some point, the use of public property for recreation may be so incidental that section 3-106 does not apply.” Bubb, 167 Ill. 2d at 382. To resolve this dilemma, the court adopted the same test currently applied in Kansas, explaining, “We do not believe that section 3-106 applies to any public area where recreation might occur. ... In determining the nature of public property, courts have therefore considered whether the property has been used for recreation in the past or whether recreation has been encouraged there.” (Emphasis added.) 167 Ill. 2d at 381-82; see also Jackson I, 268 Kan. at 330 (citing Bubb, 167 Ill. 2d at 379) (stating that a determination of whether the recreational use exception applies in Kansas turns on “whether the property has been used for recreational purposes in the past or whether recreation has been encouraged”).
The Bubb court ultimately held that the concrete area around tire school was subject to the recreational use exception. See 167 Ill. 2d at 383 (“Although the primary purpose of tire concrete area may not have been recreational, the facts show that the school intended that school children use this area as part of the playground. Public property may have more than one intended use.”).
In addition, Illinois courts have expressly held that community centers (similar to the conference center in this case) are subject to the recreational use exception. In Kayser v. Village of Warren, 303 Ill. App. 3d 198, 203, 707 N.E.2d 285 (1999), an Illinois appellate court explained:
“In the present case, the only evidence of the use of the Warren community building . . . establishes that the building is used for family picnics, club meetings, receptions, balee sales, book sales, Chamber of Commerce meetings, preschool Christmas concerts, and long-range-planning committee group suppers and meetings. . . . [T]he Warren community building is a multipurpose facilily used for recreational and nonrecreaüonal activities.
“Here, the public benefits from the use of a public building in much the same way as it benefits from a park or playground. Many of the Warren community building’s activities, such as preschool Christmas concerts, receptions, and family picnics, are permitted inside the building solely for the public’s enjoyment, diversion, and amusement .... In other words, they are activities the Warren community building permitted for the public’s recreation. We hold, therefore, that the Warren community building is public property intended or permitted to be used for recreational purposes consistent with section 3-106 of the Tort Immunity Act.”
The Court of Appeals below noted the decision in Kayser but nevertheless sought to distinguish the case. See Lane, 35 Kan. App. 2d at 847. However, the opinion is less than clear as to why Kayser is distinguishable. The Lane court seems to emphasize the fact that the community center in Kayser was “found to possess a recreational purpose” (though it recognizes that the center in that case was “a multipurpose facility”), while “recreation does not appear to have been tire intended purpose of the City of Atchison in purchasing and administering the conference center” here. 35 Kan. App. 2d at 847. With no disrespect meant to the Court of Appeals in this case, this attempt to distinguish the two centers seems disingenuous. Both the conference center here and the community center in Kayser have recreational and nonrecreaüonal uses. In both cases, the faciliües have permitted recreaüonal acüvities on numerous occasions. Under the statutory language in both Illinois and Kansas, the recreational use exception should apply in this case.
Conclusion
The plain language of K.S.A. 2006 Supp. 75-6104(o) states that facilities that are “intended or permitted” to be used for recreational purposes are immune from tort liability. There is nothing in the statutory language, or in any prior opinion of this court, that would support the Court of Appeals’ interpretation that the application of the recreational use exception turns on an analysis of a facility’s primary purpose. Furthermore, the position adopted by the Court of Appeals below has been explicitly rejected by Illinois courts when interpreting a similar provision.
The recreational use exception to die KTCA applies when property is “intended or permitted” to be used for recreational purposes. This court has explained that the correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is “whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.” Jackson I, 268 Kan. at 330. Here, the AHCC has been used on numerous occasions for recreational events and activities. The injury alleged here took place at such a recreational event. Thus, the district court correctly granted the AHCC’s motion for summary judgment regarding the recreational use exception to tort liability under the KTCA.
We reverse the Court of Appeals and affirm the district court’s grant of summary judgment in favor of the AHCC.
Nuss and Johnson, J.J., not participating.
Lockett, J., Retired, and Larson, S.J., assigned.
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Per Curiam-.
We are presented with a contested proceeding in discipline filed by the office of the Disciplinary Administrator against Thomas V. Black, an attorney licensed to practice law in Kansas since 1990. Black was elected county attorney in Pratt County in 1996 and was re-elected in 2000, serving until November 2003. The Disciplinary Administrators April 2006 complaint against Black involved his handling of informal traffic diversion funds in his capacity as county attorney.
Black implemented the informal diversion program for traffic offenders, commonly referred to as a “pay and dismiss” program, in early 1998, after the program was reviewed by the Attorney General’s office and approved by the judges in Pratt County. Through the program, a traffic offender could obtain a dismissal of the case by paying the applicable court costs, plus an additional amount to be contributed to a charity. Upon receipt of a traffic offender’s diversion application, the county attorney calculated the required amount of charitable contribution, based upon the nature of the current offense and the offender’s prior traffic citations. The applicant was instructed to submit two payments, by check or money order, to the county attorney, with one instrument payable to the district court clerk for the amount of court costs and the other payable to the charity.
Upon receipt of the checks or money orders from an approved diversion applicant, the county attorney would submit the court costs to the district court clerk, accompanied by a proposed order dismissing the case. After the judge signed the dismissal order, copies of the order would be returned to the county attorney, who would then transmit the contribution to the applicable charity. The bulk of the contributions went to the Law Enforcement Fund (LEF) for which the county treasurer was the authorized recipient. These proceedings focus primarily on the transmittal of LEF contributions to the county treasurer.
The complaints in this proceeding involve the circumstance where the applicant deviated from the prescribed procedure by submitting a check or money order for the total amount due, payable to the Pratt County Attorney. Initially, Black would return the single, incorrectly drafted instrument to the applicant as noncom-pliant with the diversion program. However, Black asserts that by returning the instruments, he angered the offenders and created a delay which would result in the suspension of the offender’s driver’s license, unless Black assumed the additional burden of obtaining a continuance of the initial appearance date on the ticket.
Black contends that he approached the district court clerk, the county treasurer, and the chief judge to enlist their assistance in developing a procedure to split the single instrument payable to the county attorney into the two payments which were due to the court clerk and treasurer, respectively. Ostensibly, Black was told that the problem was his to solve.
Black solved his perceived dilemma by taking the noncompliant instruments to the local bank, endorsing them, and taking the face amount of the instruments in cash. He would then place the cash in his desk drawer, either in a marked envelope or identified by a “sticky note.” The desk was ordinarily unlocked, albeit the desk was located in a private law firm office which Black contends was not readily accessible to the public. Black would deliver the court costs portion of the cash to the district court clerk and await the return of the dismissal order before delivering the LEF contribution to the county treasurer.
Black would typically make deliveries to the treasurer about once a week. The cash would be accompanied by a note, indicating the name of the offender and the fund receiving the contribution. Black did not request or receive a receipt from the treasurer s office for the cash deliveries until October 2003. He did not maintain a separate ledger or log of cash receipts or disbursements. He periodically received a report from the treasurer’s office reflecting the names of the offenders from whom money was received, the amount received from each offender, and the fund to which the payment had been credited, e.g., the LEF. The report did not specify which payments had been made in cash. Black did not reconcile the reports to his office files.
In the fall of 2003, a certified public accountant (CPA) conducted a review for Pratt County in which the CPA compared the traffic cases dismissed pursuant to a diversion order with the treasurer’s receipts for the LEF from January 1 through October 31, 2003. The CPA identified 80 individuals for whom the treasurer’s office did not show LEF receipts. The matter was referred to the Kansas Bureau of Investigation (KBI), and an agent interviewed Black in October 2003. The KBI was allegedly unable to account for several thousand dollars of diversion money, and Black was charged with criminal misuse of public funds. Apparently, the first jury trial resulted in a hung jury, but ultimately, on May 3, 2005, following a criminal trial on 14 counts of misuse of public funds, a jury acquitted Black on all counts.
In April 2006, the Disciplinary Administrator filed a formal complaint against Black alleging that he violated Kansas Rules of Professional Conduct (KRPC) 1.15(a) (2006 Kan. Ct. R. Annot. 435) (safekeeping property) and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct). A hearing panel conducted an evidentiaiy hearing, after which the panel sustained Black’s motion to dismiss the KRPC 8.4(d) violation. However, the panel found that Black had violated KRPC 1.15(a) when he “failed to safeguard the proceeds from the informal diversion program” and “failed to maintain proper records of the proceeds from the informal diversion program.”
Black challenges the panel’s factual findings, as well as its conclusion that he violated KR.PC 1.15(a). Therefore, we will commence by setting forth tire panel’s findings and conclusions.
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Thomas V. Black (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Pratt, Kansas .... The Respondent was admitted to the practice of law in the state of Kansas on April 26, 1990.
“2. In 1996, the Respondent was elected as the Pratt County Attorney. In 2000, the Respondent was re-elected. The Respondent continued as the Pratt County Attorney until November 13, 2003.
“3. In January or February, 1998, the Respondent implemented an informal diversion program for traffic offenders. Prior to beginning the informal diversion program or ‘pay and dismiss’ program, the Respondent consulted with the Attorney General’s office. According to the Respondent’s policy, traffic offenders would be required to pay the court costs associated with the filing of the traffic case and a donation to an approved charity. The main charity that received the benefit of the program was the Pratt County Law Enforcement Support Fund, a ‘charity’ that the Respondent developed at the time he created the informal diversion program. The amount of donation was determined based upon the offender’s traffic record and on the traffic offense charged. For example, if an offender was charged with speeding, the faster the offender was traveling, the larger the donation would be.
“4. The Respondent educated the law enforcement officers regarding the policy. Specifically, the Respondent informed the law enforcement officers that the offenders wishing to participate in the informal diversion program needed to pay with two checks, one made payable to the Clerk of the District Court for the court costs and one made payable to the County Treasurer for the Pratt County Law Enforcement Support Fund or other charity. Later, the Respondent had instructions printed for the officers to provide offenders. The printed instructions, again, required that the offenders pay with two checks.
“5. Occasionally, offenders would pay with one check. And, occasionally, offenders would make their checks payable to the Respondent. When an offender would make a check payable to the Respondent, rather than return the check to the offender and require that they comply with the instructions, the Respondent would endorse the check and cash the check at the Peoples Bank in Pratt.
“6. After the Respondent received cash for the check, he would place a ‘sticky note on the cash with the offender’s name and the approprate fund to be credited. The Respondent maintained the cash, unsecured, in a drawer in his desk in his law office. The Respondent kept the cash in his desk for extended periods of time. On one occasion, the Respondent failed to provide the cash to the Clerk of the District Court and the County Treasurer for one month.
“7. When the Respondent delivered the cash to the County Treasurer, he occasionally placed the cash, unattended, on the counter in the County Treasurer’s office.
“8. The Respondent never requested nor did he ever receive a receipt from the Clerk of the District Court or from the County Treasurer for the cash payments.
“9. From the inception of the informal diversion program, the Respondent failed to maintain a ledger or other documentation of checks and cash received by the Respondent and paid out by the Respondent in connection with the informal diversion program. While the Respondent maintained a file on each ticket, he did not maintain records to establish funds coming into his office or going out of his office. The Respondent never reconciled file amount of money he received from the informal diversion program with the amount of money he forwarded to the Clerk of the District Court, the County Treasurer, or other various charities.
“10. An audit of the informal diversion program revealed that thousands of dollars received by the Respondent through the informal diversion program are unaccounted for.
“11. The Respondent was charged with crimes related to funds that remain unaccounted for relating to the informal diversion program. Thereafter, the Respondent was tried twice on the criminal charges. At the conclusion of the first trial, the court declared a mistrial because the jury could not reach a verdict. At the second trial, the Respondent was acquitted of all charges.
“CONCLUSIONS OF LAW
“1. There are specific statutes which address die County Attorney’s obligation with regard to funds received arising out of their employment. First, K.S.A. 19-705 provides that:
‘No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individuals, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend.’
“2. Next, according to K.S.A. 28-175, county employees, including County Attorneys shall receive no fees unless specifically allowed by law. All fees received by county employees, including County Attorneys must be paid to the County Treasurer on the first and fifteenth days of each month. K.S.A. 28-175.
“3. Despite the special statutes that apply to County Attorneys and the funds that they come into contact with, County Attorneys, like all attorneys, must safeguard property belonging to clients and third persons.
“4. KRPC 1.15(a) delineates attorneys’ duties to clients and third persons. Specifically, KRPC 1.15(a) provides as follows:
‘A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.’
The Respondent violated KRPC 1.15(a) when he failed to safeguard the proceeds from the informal diversion program. Additionally, the Respondent violated KRPC 1.15(a) when he failed to maintain proper records of the proceeds from the informal diversion program. Had the Respondent maintained proper records of the funds, it would have been clear what happened to the funds that remain unaccounted for. Because the Respondent failed to safeguard funds belonging to clients or third persons and because the Respondent failed to maintain adequate records, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).”
STANDARD OF REVIEW
The following standard of review governs this proceeding:
“In disciplinary proceedings, ‘this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.’ In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003).
“ ‘This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]’ Lober, 276 Kan. at 636-37. Accord In re Pyle, 278 Kan. 230, 236, 91 P.3d 1222 (2004) (quoting Lober).” In re Angst, 278 Kan. 500, 503-04, 102 P.3d 388 (2004).
FACTUAL FINDINGS
Black’s first contention on appeal is that the hearing panel’s material findings are not supported by clear and convincing evidence. Specifically, he objects to the findings in paragraphs 6, 7, 8, 9, and 10 of the Final Hearing Report.
However, in arguing this issue, Black intertwines arguments challenging the panel’s legal conclusion that the facts establish a violation of KRPC 1.15(a). He then purports to identify a second issue as to whether the violation was factually or legally supportable. Under that second issue, Black recites the rule in KRPC 1.15(a), quotes the hearing panel’s conclusion of law, and cursorily states, “The factual failure of this finding was pointed out in the last argument and is adopted here without needlessly repeating it.” See Supreme Court Rule 6.02(e) (2006 Kan. Ct. R. Annot. 36) (appellant’s brief shall contain “[t]he arguments and authorities relied upon, subdivided as to the separate issues in the appeal if more than one”); State v. Boyd, 268 Kan. 600, 606, 999 P.2d 265 (2000) (briefs should list all issues and contain arguments and authorities for each issue). Nevertheless, we will attempt to address the two issues separately.
Paragraph 6
“After the Respondent received cash for the check, he would place a ‘sticky’ note on the cash with the offender’s name and the appropriate fund to be credited. The Respondent maintained the cash, unsecured, in a drawer in his desk in his law office. The Respondent kept the cash in his desk for extended periods of time. On one occasion, the Respondent failed to provide the cash to tire Clerk of the District Court and the County Treasurer for one month.”
Black does not seriously contest the accuracy of this finding. Rather, he argues that it is “a snapshot of a piece of evidence” which does not show the entire picture and which is, therefore, misleading. He acknowledges that the finding is “technically correct.”
Instead of challenging the quantity or quality of evidence to support the panel’s finding, Black endeavors to explain why the actions of others mandated the described procedure and why it was the court clerk’s fault that he held cash in his desk for so long on the one occasion. He asserts that there was no evidence to establish that he failed to deliver all of the funds to the county treasurer, and he suggests that the State is using a disciplinary proceeding to retry him on the misuse of public funds allegations for which he was acquitted. In other words, Black’s arguments go to the question of whether the factual finding supports the legal conclusion that Black violated the disciplinary rules, which we will address in die next issue. The panel was presented with substantial, clear, convincing, and satisfactory evidence to establish the factual finding in paragraph 6 of the Final Hearing Report.
Paragraph 7
“When the Respondent delivered the cash to the County Treasurer, he occasionally placed the cash, unattended, on the counter in the County Treasurer’s office.”
The record supports Black’s contention that his testimony was that, on one occasion, he left a stack of checks on the treasurer’s desk when die personnel in that office were busy. However, a KBI agent testified that Black told the agent that Black had, on occasion, left money in the treasurer’s office, when no one was in the office. The agent said that Black had referred to a board or tray where he left money with a sticky note indicating the name of the offender and the designated account. Therefore, although the evidence would support a finding that Black left' cash unattended in the treasurer’s office, it did not support the specific panel finding that Black placed unattended cash on the counter.
Paragraph 8
“The Respondent never requested nor did he ever receive a receipt from the Clerk of tire District Court or from die County Treasurer for the cash payments.”
Black argues that this finding is incorrect and mischaracterizes the record, because in October 2003, shortly before leaving office, he asked the treasurer to provide him with receipts. Nevertheless, the substantial, clear, convincing, and satisfactory evidence supports a finding that, between January 1998 and October 2003, Black never requested nor did he receive a receipt from the county treasurer for the cash payments delivered to that office. Given that the investigation focused on the time frame prior to Black’s last minute request, we will accept the finding, as modified to reflect Black’s October 2003 request.
Black also briefly mentions that he did not realize until his criminal trial that tire treasurer was preparing a receipt for his cash payments but throwing Black’s copy in the trash. He contends that the county attorney had a box in the courthouse, where the payer’s copy could have been placed. Again, these arguments go to the effect to be given the factual finding, rather than whether the finding is supported by the evidence.
Paragraph 9
“From the inception of the informal diversion program, the Respondent failed to maintain a ledger or other documentation of checks and cash received by the Respondent and paid out by the Respondent in connection with the informal diversion program. While the Respondent maintained a file on each ticket, he did not maintain records to establish funds coming into his office or going out of his office. The Respondent never reconciled the amount of money he received from the informal diversion program with the amount of money he forwarded to the Clerk of the District Court, the County Treasurer, or other various charities.”
Black concedes that “[t]here is no question that [Black] did not keep a ledger or log in which each transaction was independendy logged separate and apart from the records in the individual case files.” The record provides ample support for Black’s concession, as well as the other factual findings in paragraph 9.
Black makes the disingenuous contention that the panel’s finding ignores that he was precluded from admitting a receipt book from the county attorney’s office showing the detail with which cash coming into the office was recorded. By Black’s own testimony, the receipt book was not utilized to record the cash he obtained by negotiating the informal diversion checks or money orders. In other words, the receipt book had nothing to do with the allegations before the hearing panel and would have not have affected the factual finding.
Likewise, Black contends that the finding ignores the fact that the individual files on each ticket provided sufficient information to determine what happened to all of the money. First, we disagree with Black’s assessment that the undated, handwritten notation on the diversion application of the dollar amount due to the LEF provides any record of the disbursement of those funds to the county treasurer. More importantly, however, the argument addresses whether the finding is sufficient to establish a violation and not whether the finding is supported by the evidence, which it is.
Paragraph 10
“An audit of the informal diversion program revealed that thousands of dollars received by the Respondent through the informal diversion program are unaccounted for.”
Black contends that the evidence presented to the hearing panel did not establish a dollar amount of funds for which there was no accounting. A close reading of the record confirms Black’s contention.
The CPA testified that his audit disclosed 80 names of diversion offenders for whom no receipt appeared in the treasurer’s records; no dollar amount was given. Black testified that he was told by the KBI agent that $4,000 was unaccounted for, but he had no personal knowledge of the amount. The KBI agent was asked: “Do you know how much money was unaccounted for?” Black’s attorney objected to the question as irrelevant, declaring “it really doesn’t make any difference how much money we’re talking about.” The presiding officer sustained the objection, agreeing that “[t]he amount of money truly makes no difference.”
Thus, Black appears to change tacks on appeal, now arguing the absence of relevant evidence to establish a potential injury. Nevertheless, we agree that there was not clear and convincing evidence that the unaccounted funds totalled thousands of dollars.
Perhaps more to the point, however, was Black’s initial response of “I don’t know” to tire question: “Is it correct that there was approximately $4,000 to $6,000 of money that was unaccounted for that should have gone into one of these funds under the pay and dismiss program?” Black further testified that he “really didn’t have a real good idea” of how much informal diversion money he was receiving in any given period of time after the spring of 2001.
CONCLUSIONS OF LAW
The hearing panel concluded that Black violated KRPC 1.15 (a) (2006 Kan. Ct. R. Annot. 435), which is part of the rule entitled “Safekeeping Property” and which states:
“(a) A lawyer shall hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.”
The panel opined that Black failed to comply with the rule in two respects: He failed to safeguard the proceeds from the informal diversion program, and he failed to maintain proper records of the proceeds from the informal diversion program.
Safekeeping
The comments following KRPC 1.15 include a statement that the rule “requires that lawyers in the practice of law who are entrusted with the property of law clients and third persons must hold that property with the care required of a professional fiduciary.” 2006 Kan. Ct. R. Annot. 440. Black conceded that the money in question did not belong to him, either personally or in his capacity as county attorney. He further acknowledged that he was the custodian of those diversion funds paid to the county attorney. Cf. K.S.A. 17-4903(d) (defining “fiduciary” to mean, inter alia, “custodian”). Thus, Black was clearly a practicing lawyer who was entrusted with the property of third persons, as contemplated by KRPC 1.15(a). Just as clearly, as noted in the rule’s comments, “[a] violation of Model Rule 1.15 subjects a lawyer to professional discipline.” 2006 Kan. Ct. R. Annot. 440.
Pointedly, Respondent does not complain about the panel’s finding in Paragraph 5 of the Final Hearing Report, the relevant portion of which states:
“When an offender would make a check payable to the Respondent, rather than return the check to the offender and require that they comply with the instructions, the Respondent would endorse the check and cash the check at the Peoples Bank in Pratt.”
Ignoring the question of the propriety of a public official cashing a negotiable instrument payable to the public office and taking personal custody of the cash proceeds, we will address that procedure from the perspective of Black’s duty to safeguard the property of others.
The check or money order made payable to the Pratt County Attorney was in a form which was relatively safe. If the instrument were to be lost, misplaced, or stolen, the finder or thief would need to find a way to negotiate tire instrument and would, presumably, leave a paper trail. By converting the instrument to cash, Black substantially increased the risk that the offender’s payment would be irretrievably and undetectably lost or stolen. Such an act does not comport with the duty to safeguard the property.
After converting the payments to cash, Black compounded the risk of loss by keeping the money in an unsecured desk drawer for some period of time. He contends that the desk’s location in a private law office was such that it would have been unlikely that anyone could have obtained access to the cash without being seen by others in the office. Yet, Black acknowledges that all of the other occupants of the law office would have had access to the desk. He complains that the panel’s finding that cash was kept in the unsecured desk for up to a month only referred to one occasion. Yet, he testified that he made deliveries to the treasurer’s office only about once a week, indicating that cash was routinely kept unsecured for days at a time.
The unacceptable risks that Black took with other’s cash is exemplified by an incident in which he found an unexplained $5 in his desk drawer, only to subsequently learn that a delivery to the treasurer’s office was $5 short. The care with which Black handled the property of others fell short of that which would be expected of a professional fiduciary.
Black rationalizes his actions as being necessary because of the dilemma created by the failures of others. He points out that the traffic offender initiated the problem by sending one instrument, payable to the county attorney, rather than issuing separate checks to the court clerk and treasurer, as directed. Then, Black complains that the court clerk and treasurer refused to fix the problem by accepting the endorsed instrument for the total amount and issuing a check to the other office for its share of the total.
Black’s “necessity” defense does not withstand scrutiny. The simple solution to the offender’s noncompliance with the informal diversion program was to return the offender’s nonconforming payment and deny that person diversion until he or she complied with the rules. Black’s excuses for abandoning that procedure do not convince us that he had no choice but to handle the payments in the manner that he did.
Nevertheless, the question is not so much why Black allowed offenders to submit nonconforming payments, but rather the question is whether Black failed to safeguard and take care of those payments while in his custody. We find that the evidence clearly established that Black’s handling of those funds fell below the standard of a professional fiduciary and, thus, Black violated his responsibility under KRPC 1.15(a).
Recordkeeping
The comments to KRPC 1.15 state that the rule requires a lawyer to preserve “ ‘complete records’ ” concerning the law firm’s trust accounts and obligates a lawyer to “ ‘promptly render a full accounting’ for the receipt and distribution of trust property.” 2006 Kan. Ct. R. Annot. 440. Here, Black did not keep a complete record of tire informal diversion funds over which he exercised control as a custodian. He was unable to render a full accounting for the receipt and distribution of the informal diversion payments which were made payable to the Pratt County Attorney. Indeed, he admitted that he “really didn’t have a real good idea” of how much money that he had “received in a given period of time,” after tire spring of 2001, and he did not know how much money coming into the informal diversion program was unaccounted for.
Black contends that he did keep adequate records because he had an individual file for each diversion applicant that contained: a copy of the diversion application with handwritten notations as to the amount of the court costs and the donation; a file-stamped copy of the Order of Dismissal; and the transmittal of the order to the offender. He then claims that “[i]t was possible from an examination of these individual files to reconstruct a complete history of how much money was paid into the office of the county attorney on each individual informal diversion case.” That statement misses the point.
First, the initial concerns were not so much about the amount of money coming into the county attorney’s office, but rather about the amount of money that came out of the county attorney’s office to the county treasurer. Even then, Black acknowledged that he had no idea of the amount of diversion money coming into his office. The fact that a CPA might be able to go through boxes of file folders and reconstruct what happened does not satisfy Black’s professional obligation to maintain complete records from which Black, as the fiduciary, could promptly render an accounting of the receipt and distribution of other people’s money. The whole point of maintaining complete records is to provide contemporaneous information and eliminate the need to have an outsider reconstruct what happened.
Further, the individual files do not contain all of the necessary information. While a handwritten notation on the diversion application indicates the amount of money that was designated for the LEF, there is nothing to reflect when or if the LEF funds were actually delivered or transmitted to the treasurer.
Black did not obtain a receipt from the treasurer. Although he attempts to shift the blame for this oversight to the treasurer’s office, the responsibility for maintaining a complete record rested upon Black, not the treasurer or anyone else. Black argues that his records included the report of receipts generated by the treasurer. However, Black admitted that he never reconciled the treasurer’s reports against his own case files, and he does not explain how the treasurer’s report meets his obligation to verify that all diversion monies designated for the LEF were delivered to the treasurer.
The ineffectual nature of Black’s records is underscored by an incident in which he perceived that he was short $150 cash in his desk drawer for a particular case and he paid the treasurer $150 out of his personal funds. Black contends that he subsequently learned from examining the court records that the desk drawer stash had not been short. However, the point is that Black’s own records were apparently insufficient for him to determine the amount of desk drawer cash that belonged to that particular offender.
Finally, Black suggests that his obligation was to turn over public funds to the county treasurer. He points out that he testified that he cashed the instruments and delivered all of the designated funds to the treasurer and the Disciplinary Administrator did not prove otherwise. Again, Black’s argument is misdirected. We are not dealing with a misuse of public funds allegation, but rather with Black’s ethical obligation to keep records. In that context, it was for Black to show the existence of written records to back up his testimony of what he did with the money.
PRIOR DISCIPLINARY PROCEEDING
In making its recommendation for discipline, the hearing panel considei'ed the existence of aggravating factors, one of which was recited as follows:
“Prior Disciplinary Offenses. At the time the Respondent applied to take die Kansas bar examination, the Kansas Board of Law Examiners held a hearing to determine whether die Respondent had the requisite character to receive a license to practice law in this state.
“According to the report filed by die Board of Law Examiners with the Court, during the first year at Washburn Law School, the Respondent conducted independent research on a project after having been specifically instructed by his professor not to do so. At the time the professor confronted die Respondent regarding the independent research, the Respondent falsely told his professor that he had not conducted independent research. Thereafter, the Respondent signed an affidavit that contained false information regarding the incident. The Respondent then falsely told the professor that his actions were caused by organic brain damage suffered in an automobile accident. The Respondent also falsely told his professor that he would have ‘white-outs’ and was unable to recall events during these periodic episodes.
“Because the Respondent expressed genuine remorse and because he faced up to the consequences of the difficult period in his life, the Board of Law Examiners concluded that the Respondent possessed the requisite character and recommended that he be allowed to take the bar examination. The Kansas Supreme Court approved the Board of Law Examiner’s report and the Respondent was permitted to take the February, 1990, bar examination.
“It is proper to consider the Respondent’s character hearing and evidence of the honor code violation as prior discipline based on Kan. Sup. Ct. R. 701(f), which provides:
‘Notwithstanding the foregoing restrictions, applications and other information required incident to an application for admission to the bar may be released to:
(2) . . . the office of the Disciplinary Administrator, . . . , for disciplinary purposes.
Accordingly, the Hearing Panel concludes that the Respondent has a record of prior discipline. However, the Hearing Panel also concludes that because the Respondent’s record of prior discipline is remote in time, it is of little relevance.”
Black argues that the report should not have been considered because it was too remote in time. The remoteness argument goes to the weight to be given the evidence, and the hearing panel appropriately noted that element of the prior offense.
Black also contends the he was not an attorney when he committed the honor violation in law school, so that the incident cannot be labeled a prior disciplinary offense. As the panel noted, Supreme Court Rule 701(f)(2) (2006 Kan. Ct. R. Annot. 623) specifically permits disclosure of the information to the Disciplinary Administrator to be used “for disciplinary purposes.” The only question might be tire label to assign to the information. However, we have no problem finding that an honor code violation in law school that results in a hearing before the Kansas Board of Law Examiners can be characterized as a prior disciplinary offense.
APPROPRIATE SANCTION
The hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (Standards). Specifically, pursuant to Standard 3, the panel considered die factors of the duty violated, the lawyer s mental state, the potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. The hearing panel unanimously recommended that Black be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. That recommendation is advisory only. See Supreme Court Rule 212(f) (2006 Kan. Ct. R. Annot. 295).
The hearing panel found the prior disciplinary offense, a pattern of misconduct, the refusal to acknowledge the wrongful nature of the conduct, and the substantial experience in the practice of law to be aggravating factors. Respondent’s previous good character and reputation, as evidenced by numerous supporting letters, was considered a mitigating factor.
Black commences his challenge to the recommended sanction by continuing to argue that he did not violate KRPC 1.15. He specifically asserts that “Respondent should not be found to have kept inadequate records.”
Black then asserts that no person or entity has come forward to assert a monetary claim against Black for deficient performance as county attorney nor has anyone made claim against the county attorneys bond required by K.S.A. 19-701. Therefore, we should disregard the aggravating factor that Black caused actual injury and the aggravating factor that Black displayed a pattern of misconduct by fading to safeguard and account for the diversion funds for a period of years. In addition, Black argues that the mere fact that one chooses to defend against a disciplinary proceeding should not justify an aggravating finding that he refused to acknowledge the wrongful nature of his misconduct. Therefore, Black argues that published censure is too harsh and asks this court to consider an informal admonition or some other form of discipline short of published censure.
Standard 4.14 describes the typical admonition scenario as: “Admonition is generally appropriate when a lawyer is negligent in dealing with client property and causes litde or no actual or potential injury to a client.” In contrast, the hearing panel relied upon Standard 4.13, which states: “Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client.”
Black makes a valid point that the Disciplinary Administrator did not clearly and convincingly establish that Black’s cavalier handling of diversion cash or his inadequate recordkeeping caused thousands of dollars of actual injury. However, the audit of the treasurer’s records for a small portion of the time the diversion program was in existence revealed that LEF payments by 80 offenders could not be accounted for. Moreover, by his own admission, Black was handling a large volume of informal traffic diversions after the spring of 2001. The Standards speak to the potential for injury. Here, that potential was substantial.
Likewise, the fact that the evidence did not identify specific victims who were unequivocally injured does not negate the finding that he engaged in a pattern of misconduct for a period of years. Again, the misconduct was failing to safeguard the diversion cash and failing to account for the receipt and distribution of that cash.
Finally, die hearing panel’s finding that Black refused to acknowledge the wrongful nature of his conduct is not based solely on the fact that Black chose to contest the proceeding. Rather, the finding is justified by Black’s persistence that his conduct was not wrongful because the Disciplinary Administrator failed to prove that Black misused any of the diversion money, i.e., no harm, no foul. Apparently, Black still does not get it. He fails to grasp that keeping other people’s cash in an unlocked desk drawer, identified by a sticky note, and failing to get receipts for the delivery of the cash to the proper recipient or otherwise maintain a record of cash distributions falls woefully short of the professional fiduciary standard imposed on Black as a practicing lawyer.
In summary, the panel’s conclusion that Black violated KRPC 1.15(a) is supported by substantial, clear, convincing, and satisfactory evidence. The court accepts the panel’s recommended discipline of published censure, although a minority of the court would impose more severe discipline.
It Is Therefore Ordered that respondent, Thomas V. Black, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243) for violation of KPRC 1.15.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to respondent. | [
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Per Curiam,-.
This is an original uncontested proceeding in discipline filed by the Disciplinaiy Administrator against the respondent, Troy W. Purinton, an attorney admitted to the practice of law in Kansas in 1999. His last registered address is Wichita. His last known residential address is in Baltimore, Maryland.
A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing as required by Kansas Supreme Court Rule 211 (2006 Kan. Ct. R. Annot. 284). Respondent did not appear. The panel concluded that the respondent had violated KRPC 1.15(a) (2006 Kan. Ct. R. Annot. 435) (safekeeping property); KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 510) (misconduct); Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (failure to respond to complaint); and Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (failure to file answer to formal complaint). The panel unanimously recommended that the respondent be indefinitely suspended from the practice of law in the state of Kansas. The respondent has filed no exceptions to the final hearing report and did not appear at the hearing before us.
As found by the panel, the charges in this case arose out of respondent’s conduct as an associate attorney with the Wichita firm of Fleeson, Gooing, Coulson & Kitch, L.L.C. In early 2005, a client sent the respondent a $400 check for a retainer and a $300 check for attorney fees. The respondent did not deposit diese funds into the firm’s trust account or operating account, but instead, cashed the checks and converted the funds to his personal use. Subsequent events, as found by the panel, are as follows:
“FINDINGS OF FACT
“6. In February, 2005, and March, 2005, Stephen E. Robison began to suspect that the Respondent was not completing work assigned. On Saturday, March 5, 2005, the Executive Committee of Fleeson, Gooing discussed tire Respondent’s billable hours, the status of assignments, and complaints made by clients. The Executive Committee sought advice from Susan Selvidge, an attorney with Flee-son, Gooing, who practices employment law. Ms. Selvidge recommended to the Executive Committee that the firm terminate the Respondent on Monday, March 8, 2005. The Executive Committee agreed and requested that Ms. Selvidge terminate the Respondent’s employment.
“7. On March 7, 2005, Ms. Selvidge terminated the Respondent’s employment with the firm. Thereafter, Ms. Selvidge worked to distribute the cases the Respondent had been assigned. In so doing, Ms. Selvidge came across Mr. Cummings’ file. An attorney from the firm called Mr. Cummings to determine the status of the case. At that time, Mr. Cummings informed the attorney calling that he had paid the Respondent $700 for the representation.
“8. Ms. Selvidge and employees in tire accounting department of the firm attempted to find a record of the payment made by Mr. Cummings. According to the firm’s records, no payment had been received from Mr. Cummings.
“9. On March 8,2006, Ms. Selvidge spoke with the Respondent by telephone. Ms. Selvidge asked the Respondent about the checks that Mr. Cummings forwarded for payment of attorney fees. The Respondent initially denied any wrongdoing. During the telephone conversation, the Respondent stated that he cashed the checks and left the cash in an envelope in the accounting department of the firm.
“10. On March 9, 2005, Ms. Selvidge forwarded a complaint to the Disciplinary Administrator’s office.
“11. On March 10, 2005, the Respondent forwarded a letter of apology to the law firm. In the letter of apology, the Respondent admitted misappropriating Mr. Cummings’ money.
“12. David Rapp, Chairman of the Wichita Ethics and Grievance Committee appointed Mitchell Herren to investigate Ms. Selvidge’s complaint lodged against the Respondent. Mr. Rapp wrote to the Respondent, informed him that Mr. Herren had been appointed to investigate, and requested that the Respondent respond to the complaint in writing.
“13. Thereafter, Mr. Herren repeatedly contacted the Respondent by letter, phone, and electronic mail, seeking a written response to the initial complaint. On June 30, 2005, the Respondent sent Mr. Herren an electronic message apologizing for the late response and promising to provide a new telephone number. Also in the electronic message, the Respondent stated that he admitted his wrongdoing to the law firm and that he would like to present mitigating circumstances.
"14. Mr. Herren then waited for the Respondent to provide a new telephone number. However, the Respondent did not do so. Again, Mr. Herren tried to contact him. Mr. Herren called the Respondent’s mobile telephone number. According to tire message that Mr. Herren heard, the mobile telephone number was ‘Troy’s.’ The Respondent did not again contact Mr. Herren regarding the disciplinary investigation.
"15. On August 24, 2006, the Formal Complaint and Notice of Hearing were filed. On that date, the Disciplinary Administrator’s office sent a copy of the Formal Complaint and Notice of Hearing to the Respondent via certified mail and regular mad to the Respondent’s last registration address (tire Fleeson, Gooing law firm). The certified mailing sent to the Respondent’s last registration address was returned. The regular mailing was not returned.
“16. In addition to sending a copy of the Formal Complaint and Notice of Hearing via certified mail to the Respondent’s last registration address, the Disciplinary Administrator’s office also sent a copy of tire Formal Complaint and Notice of Hearing to tire Respondent via certified mail and regular mail, to the Respondent’s residential address in Baltimore, Maryland. The certified mailing sent to the Respondent’s residential address in Baltimore, Maryland, was also returned. The regular mailing was not returned.
“17. The Respondent failed to file a written Answer to the Formal Complaint.”
The panel then concluded:
“CONCLUSIONS OF LAW
“1. Based upon tire findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15(a), KRPC 8.4(c), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b), as detailed below:
“2. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon tire respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to tire address shown on tire attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and tire Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The certified mailing to the registered address was returned to the Disciplinary Administrator’s office unopened. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Attorneys must safeguard client’s property. KRPC 1.15(a) provides:
‘A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.’
The Respondent violated KRPC 1.15(a) when he converted the fees paid by Mr. Cummings for legal services to his personal use. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).
“4. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he knowingly and intentionally converted the fees paid by Mr. Cummings to his personal use. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“5. The Kansas Supreme Court Rules require attorneys to cooperate in disciplinary investigations and to file written Answers to the Formal Complaints. Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b) provide the requirements:
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ Kan. Sup Ct. R. 211(b).
In this case, the Respondent violated Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b) by failing to provide a written response to the initial complaint and by failing to provide a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b).”
RECOMMENDED DISCIPLINE
The hearing panel recommended that the respondent be indefinitely suspended. In making this recommendation, the panel set forth its consideration of the factors outlined in the American Bar Association Standards for Imposing Lawyer Sanctions as follows:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty violated. The Respondent violated his duty to his client to safeguard his client’s property. Additionally, tíre Respondent violated his duty owed to the profession to cooperate in disciplinary investigations and prosecutions.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, tire Respondent caused actual harm to Fleeson, Gooing law firm and to the reputation of the legal profession, generally.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. Converting property belonging to the law firm constitutes dishonest conduct.
“Bad Faith Obstruction of the Disciplinary Proceeding; by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to cooperate with Mr. Herren in his investigation. Additionally, the Respondent failed to file a written Answer to the Formal Complaint. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Indifference to Malang Restitution. To date, the Respondent has made no effort to make restitution to Fleeson, Gooing for the fees he converted.
“Illegal Conduct. Converting property belonging to the law firm constitutes the crime of theft. As such, the Hearing Panel concludes that the Respondent engaged in illegal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1999. At the time tire Respondent engaged in misconduct, the Respondent had been practicing law for a period of five years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.’ Standard 4.12.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2
“The Deputy Disciplinary Administrator acknowledged that this case falls between indefinite suspension and disbarment. He argued, however, that the Respondent should be disbarred because he failed to cooperate in the investigation, he failed to file an Answer to the Formal Complaint, and he failed to appear at die hearing.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, and because die Respondent is only 33 years old and has not previously been disciplined, die Hearing Panel unanimously recommends diat the Respondent be indefinitely suspended from die practice of law in the state of Kansas.”
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of tire disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. The respondent did not file any exceptions to the panel’s final report. Accordingly, the final report is deemed admitted and, further, the respondent is deemed to have conceded that the panel’s findings of fact are supported by the evidence. Supreme Court Rule 212(d) and (e)(4) (2006 Kan. Ct. R. Annot. 295).
With respect to the discipline to be imposed, the panel’s recommendation that the respondent be indefinitely suspended from the practice of law in the state of Kansas is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or the Disciplinary Administrator. See Rule 212(f).
We note that this court suspended the respondent from the practice of law on October 13, 2005, for fading to pay the annual attorney registration fee, for failing to pay the annual continuing legal education fee, and for failing to complete the required hours of continuing legal education. He remains so suspended.
We agree with the panel that indefinite suspension is the appropriate discipline to be imposed herein. We add the condition that $700 in restitution must be shown to have been paid to the injured law firm by respondent before any application for reinstatement will be considered.
It Is Therefore Ordered that Troy W. Purinton be indefinitely suspended from the practice of law, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243).
It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Johnson, J.:
Lititz Mutual Insurance Company (Insurance Company) appeals from the summary judgment in favor of Capital City Bank (Bank), whereby the district court found that the Insurance Company’s commercial insurance policy provided for a loss payment to the Bank, as mortgageholder, notwithstanding the named insured’s filing of a fraudulent claim. The Insurance Company contends that K.S.A. 40-2,118(c) excused the payment to the Bank and, further, that the policy provisions and endorsements specifically excluded coverage for die Bank. Disagreeing on both counts, we affirm.
Iron Horse Auto, Inc. (Named Insured) owned improved real estate as part of its used car dealership business operations. It had a commercial insurance policy with Insurance Company providing, inter alia, fire insurance on its office building with a policy limit of $79,500. The policy also identified William Frye as a named insured and listed the Bank as a “Mortgagee Holder” on the insured building.
The Named Insured owed money to the Bank upon two promissory notes secured by real estate mortgages on the dealership’s improved commercial property. The mortgages required the Named Insured to procure and maintain a fire and extended coverage insurance policy on the real estate improvements with the specific requirement that the policy have “a standard mortgagee clause in favor of Lender.” Further, the mortgage directed that “[ejach insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person.”
After the Insurance Company denied certain claims, including one for a fire loss, the Named Insured filed suit against its insurer. The Insurance Company defended on the basis that Frye and/or his wife had participated in setting the fire which caused the claimed loss. The Bank intervened and filed a Third Party Petition which included a breach of contract claim against the Insurance Company for failing to pay the Bank’s damages pursuant to the mortgageholder provisions in the policy.
Subsequently, the district court granted the Bank’s partial summary judgment motion, finding that the Insurance Company had to pay the Bank under the policy’s standard mortgage clause, regardless of whether the Named Insured’s claim was fraudulent. The Bank did not participate in the ensuing trial, where the jury found in favor of the Insurance Company. The court entered judgment for the Bank against the Insurance Company in the amount of $43,987.15 plus interest. The Insurance Company appealed that judgment, and we granted its motion to transfer the case to this court.
STANDARD MORTGAGE CLAUSE
The Insurance Company’s overarching theme in this appeal is an attack upon the judicial recognition and application of an insurance policy provision commonly referred to as a “standard mortgage clause” or a “union mortgage clause.” Such a clause provides that a mortgagee will be paid for a covered loss notwithstanding tire insurer’s right to deny the named insured’s claim based upon the named insured’s acts or noncompliance with the policy’s terms. A popular treatise on insurance law provides some insight, as follows:
“Many policies insuring property contain provisions which purport to protect the mortgagee against loss from causes insured against. . . .
“The ordinary mortgage or loss-payable clause merely provides in effect that the proceeds of the policy shall be paid first to the mortgagee as his or her interest may appeal-; but the so-called ‘standard’ or ‘union’ mortgage clause is somewhat more specific, in that it also provides that the mortgagee shall be protected against loss from any act or neglect of the mortgagor or owner, so that it shall not defeat the insurance so far as the interest of the mortgagee is concerned.” 4 Couch on Insurance 3d § 65:8, pp. 65-16 to 65-17 (1996).
See 44 Am. Jur. 2d, Insurance § 1049, p. 297.
The union mortgage clause in an insurance policy creates a separate contract between the mortgagee and the insurer. Vargas v. Nautilus Ins. Co., 248 Kan. 881, 887, 811 P.2d 868 (1991); see also Nieses v. Solomon State Bank, 236 Kan. 767, 778, 696 P.2d 372 (1985) (“Kansas follows the majority rule, i.e., that a standard mortgage clause operates as a distinct and separate contract between the insurer and the mortgagee.”); Fancher v. Carson-Campbell, Inc., 216 Kan. 141, 144, 530 P.2d 1225 (1975) (“We have been consistent in holding that [a union mortgage clause] creates a new and independent contract which entitles the mortgagee to recover under the policy of insurance, notwithstanding the effect of any act or neglect on the part of the owner or mortgagor of the property.”); Wunschel v. Transcontinental Ins. Co., 17 Kan. App. 2d 457, 463, 839 P.2d 64 (1992). The Insurance Company describes this longstanding and well-settled contract interpretation as “an archaic vestige of 19th Century law.”
The policy at issue here has a section entitled, “Mortgageholders,” which provides, in relevant part, as follows:
“b. We will pay for covered loss of or damage to buildings or structures to each mortgageholder shown in the Declarations in their order of precedence, as interests may appear.
“d. If we deny your claim because of your acts or because you have failed to comply with the terms of this Coverage Part, the mortgageholder will still have the right to receive loss payment if the mortgageholder:
(1) Pays any premium due under this Coverage Part at our request if you have failed to do so;
(2) Submits a signed, sworn proof of loss within 60 days after receiving notice from us of your failure to do so; and
(3) Has notified us of any change in ownership, occupancy or substantial change in risk known to the mortgageholder.
All of the terms of this Coverage Part will then apply directly to the mortgageholder.
“e. If we pay the mortgageholder for any loss or damage and deny payment to you because of your acts or because you have failed to comply with the terms of this Coverage Part:
(1) The mortgageholder’s rights under the mortgage will be transferred to us to the extent of the amount we pay; and
(2) The mortgageholder’s right to recover the full amount of tire mortgageholder’s claim will not be impaired.
At our option, we may pay to the mortgageholder the whole principal on the mortgage plus any accrued interest. In this event, your mortgage and note will be transferred to us and you will pay your remaining mortgage debt to us.”
An endorsement changed the language of subsection (b) to read:
“4. Paragraph b. in the Mortgageholders Additional Condition in the Building And Personal Property Coverage Form is replaced by the following:
“b. We will pay for covered loss of or damage to buildings or structures to:
(1) The Insurance Trustee for the benefit of each Townhouse Owner;
(2) The holder of each first mortgage; and
(3) The Association; as interests may appear and as shown in the Townhouse Declaration.”
STATUTORY PROVISIONS
One of the Insurance Company’s contentions is that the 1994 amendments to the Fraudulent Insurance Act (Act), K.S.A. 40-2,118 et seq., were intended to abolish judicial recognition of union mortgage clauses in this state. K.S.A. 40-2,118 provides:
“(a) For purposes of this act a ‘fraudulent insurance act’ means an act committed by any person who, knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, purported insurer, broker or any agent thereof, any written statement as part of, or in support of, an application for the issuance of, or the rating of an insurance policy for personal or commercial insurance, or a claim for payment or other benefit pursuant to an insurance policy for commercial or personal insurance which such person knows to contain materially false information concerning any fact material thereto; or conceals, for the purpose of misleading, information concerning any fact material thereto.
“(b) Except as otherwise specifically provided in K.S.A. 21-3718 and amendments thereto and K.S.A. 44-5,125 and amendments thereto, a fraudulent insurance act shall constitute a severity level 6, nonperson felony if the amount involved is $25,000 or more; a severity level 7, nonperson felony if the amount is at least $5,000 but less tiran $25,000; a severity level 8, nonperson felony if the amount is at least $1,000 but less tiran $5,000; a severity level 9, nonperson felony if the amount is at least $500 but less than $1,000; and a class C nonperson misdemeanor if the amount is less than $500.
“(c) In addition to any other penalty, a person who violates this statute shall be ordered to malee restitution to the insurer or any other person or entity for any financial loss sustained as a result of such violation. An insurer shall not be required to provide coverage or pay any claim involving a fraudulent insurance act.
“(d) This act shall apply to all insurance applications, ratings, claims and other benefits made pursuant to any insurance policy.” (Emphasis added.)
STANDARDS OF REVIEW/RULES OF CONSTRUCTION
The interpretation of a statute is a question of law over which this court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). Interpretation of an insurance contract is a question of law over which an appellate court has de novo review. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003).
In construing an insurance policy, a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575, 56 P.3d 789 (2002). Insurance policy language is tested by what a reasonably prudent insured would understand the language to mean, not by what the insurer intended the language to mean. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, Syl. ¶ 3, 46 P.3d 1120 (2002).
Our rules of statutory interpretation are well settled and oft repeated.
“ ‘The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005).
To the extent K.S.A. 40-2,118 can be considered a criminal statute, it would be subject to the general requirement of strict construction, i.e., “ ‘[a]ny reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.’” State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005) (quoting State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 [1995]).
STATUTORY IMPLICATIONS
The Insurance Company points out that the 1994 amendments to K.S.A. 40-2,118 were specifically applied to all claims made under any insurance policy. K.S.A. 40-2,118(d). Therefore, the Insurance Company contends the legislative intent was to relieve an insurer of the obligation to perform under a union mortgage clause if the named insured commits a fraudulent insurance act. It relies on the subsection (c) declaration that “[an] insurer shall not be required to provide coverage or pay any claim involving a fraudulent insurance act.” K.S.A. 40-2,118(c).
A plain and common sense reading of the statute indicates an intent to simply reheve an insurer from any obligation, separate and apart from the terms of the insurance policy contract, to provide coverage or pay any claim involving a fraudulent insurance act. We do not read the statutory language as voiding coverage which an insurer chooses to voluntarily offer for the benefit of the insured. To find that the legislature intended to absolutely prohibit union mortgage clauses in this state, one must ignore the words, “be required to,” and read the statutory language to mean an “insurer shall not provide coverage or pay any claim involving a fraudulent insurance act.” The legislature is presumed to express its intent by the language that it employs and, therefore, we do not cavalierly delete words from statutes. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Giving ordinary meaning to the ordinary words of the statute, K.S.A. 40-2,118(c) does not abolish all standard or union mortgage clauses.
The Insurance Company propounds a number of arguments in support of its statutory argument. We will attempt to address them separately.
Legislative History
The Insurance Company urges us to find that the timing of the 1994 amendments indicates a legislative intent to overrule the holding in Union State Bank v. St. Paul Fire & Marine Ins. Co., 18 Kan. App. 2d 466, 471, 856 P.2d 174, rev. denied 253 Kan. 864 (1993), and thus to abolish the “union mortgage doctrine” in this state. The argument invites us to speculate as to the legislature’s reason for amending K.S.A. 40-2, 118. We perceive that the statutory language precludes the need for us to guess about the legislature’s motivation. See Board of Leavenworth County Comm’rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920 (2006) (resort to legislative history or statutory construction rules to ascertain legislative intent is appropriate only when a plain reading of the text of the statute yields an ambiguity or lack of clarity). Nevertheless, the legislative history suggests the proponents of the amendments were principally concerned with specifying criminal penalties and restitution within the insurance code to deter insurance fraud, rather than clarifying insurance policy coverage issues.
Case Precedent
The Insurance Company’s arguments are founded upon its creative, albeit faulty and unpersuasive, reading and application of case precedent. For instance, the Insurance Company believes that the district court misread the holding in Voyles v. Garcia, 28 Kan. App. 2d 462, 17 P.3d 947, rev. denied 271 Kan. 1042 (2001), to incorrectly find that the purpose of the 1994 amendments was to correct the result in Continental Western Ins. Co. v. Clay, 248 Kan. 889, 896, 811 P.2d 1202 (1991). Continental Western, 248 Kan. at 896, found that the Kansas Automobile Injury Reparations Act did not permit an insurance company to rescind the mandatory liability provisions of an automobile policy, even though the company could rescind the nonliability features of the policy.
In Voyles, the successful plaintiff in a tort action attempted to collect the judgment from the tortfeasor’s automobile insurer. However, the tortfeasor’s insurer had rescinded the policy, with a corresponding rescission of the tortfeasor’s liability coverage, due to the insured’s fraud. Voyles reviewed the Act in light of its 1994 amendments and found that the plain language of K.S.A. 40-2, 118 showed that the legislature intended the Act to apply to all insurance policies. Therefore, an insurance company could rescind its policy, even as to innocent third-party claims, upon proof that the policy was procured by a fraudulent insurance act. 28 Kan. App. 2d at 465-66. In reaching its decision, Voyles referred to the prior decision in Continental Western.
The Insurance Company contends that the 1994 amendments could not have been a delayed response to the 1991 holding in Continental Western, but rather the legislature must have acted to rectify the Union State Bank decision which was closer in time. We need not ruminate on the speed with which the legislature reacted to appellate decisions some decade and a half ago. The Insurance Company’s argument flounders for at least two reasons.
First, Continental Western and Voyles both involved third-party claimants who attempted to obtain loss payments from another person’s rescinded insurance policy based upon alleged rights the third-party accrued from a source outside of the policy. The third-party claims were in derogation of tire plain policy language voiding coverage for the insured’s fraudulent acts. Regardless of the impetus for the 1994 amendments, the language of K.S.A. 40.-2, 118(c) plainly says that the insurer is not required to pay such a claim.
In contrast, the Bank is specifically named in the insurance policy as a “mortgagee holder.” The policy specifically grants a mortgageholder “the right to receive loss payment,” even if the insured’s claim is denied because of the insured’s acts. The Bank is making a claim based upon its rights under the insurance contract, not based upon some third-party beneficiary right. Voyles and Continental Western are not germane to tire validity of a named mortgageholder’s contract claim.
Second, the Insurance Company’s reliance on the timing of the Union State Bank decision is misdirected. The holding in that case does not support the argument. Union State Bank had absolutely no impact on the long-standing recognition and application of a union mortgage clause to the holder of a real estate mortgage. The issue in that case was whether a lender with a Hen on dental office equipment could bootstrap its claim into the provisions of the union mortgage clause. The well-settled policy contract rights of the real estate mortgagee went unchallenged in Union State Bank, and there was nothing new for the legislature to fix in that regard.
Restitution Provisions
Next, the Insurance Company argues that the restitution provision of 40-2, 118(c) manifests a legislative intent to replace a mortgagee’s contract rights under the union mortgage clause with a right of restitution against its borrower, the fraudulent actor. The argument cannot withstand scrutiny.
The Bank’s principal risk of financial loss is the nonpayment of the Named Insured’s debt to the Bank. The Bank does not need a right of restitution under K.S.A. 40-2, 118(c) to collect the remaining debt balance and damages from the Named Insured; that right already exists under the notes and mortgages the Named Insured executed in favor of the Bank. In other words, the purported consideration flowing to the lender is illusory. Accordingly, contrary to the Insurance Company’s argument, there is no real quid pro quo in the statute that justifies extinguishing a lender’s insurance policy contract rights under the union mortgage clause.'
Perhaps more importantly, the language employed by the legislature contradicts the Insurance Company’s argument. K.S.A. 40-2, 118(c) speaks to an order of restitution as an additional penalty for violating the statute. The provision is preceded by a subsection estabhshing the severity level for the crime of committing a fraudulent insurance act. The restitution provision is obviously intended to be a part of the criminal sanction imposed upon a violator. Cf. K.S.A. 2006 Supp. 21-4603d(b) (providing for restitution as an authorized disposition when a person has been found guilty of a crime). There is nothing to suggest that the statutory criminal penalty was intended to supplant the civil remedies of a breach of contract claimant.
Public Policy
The Insurance Company contends that we should judicially craft public policy by interpreting K.S.A. 40-2, 118 to void union mortgage clauses. Our first constraint, of course, is the separation of powers. We are to “ ‘give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ ” Pieren-Abbott, 279 Kan. at 88 (quoting Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 [2003]).
Even if we were to be guided by a desire to effect public policy, we would reject the Insurance Company’s concept of the policy considerations involved here.
The contention that “banks have been allowed to profit from the criminal conversion of insured property into insurance proceeds” is unsupported by the facts of this case and misleading. No evidence was adduced to indicate that the Bank had knowledge of or participated in the Named Insured’s fraud upon the insurance company. Further, one gets the impression that the Insurance Company believes that, as between two innocent entities, one that sold fire insurance to an arsonist and one that lent money to an arsonist, the equities favor tire insurer. We are unconvinced that public policy mandates such a preference.
Here, the Bank contracted to lend money to the Named Insured in return for the security of a real estate mortgage which provided, inter alia, that the Named Insured’s fire insurance would pay off the mortgage regardless of the borrower’s acts. The Insurance Company issued a policy to the Named Insured which, on its face, complied with the terms of the mortgage. Public policy does not favor our usurping legislative power by crafting a strained statutory interpretation in order to excuse an insurer’s payment to a mortgagee under a union mortgage clause.
In addition, the Insurance Company makes an impassioned plea for us to prevent future acts of arson by preventing insureds from profiting from their own crimes. It suggests that insurance companies will have little incentive to investigate and prove arson without the carrot of avoiding payments under a union mortgage clause. When placed under the light of the actual facts, the arguments are disingenous.
Here, the limit of liability on the Named Insured’s building was $79,500. The judgment in favor of the Bank for the unpaid notes was just under $44,000. Through its efforts establishing arson, the Insurance Company avoided paying the $35,500 difference to the Named Insureds. In addition, by paying the Bank, die Insurance Company would become entitled to an assignment of the notes and mortgages. The Insurance Company had ample motivation to litigate its insured’s fraudulent acts, separate and apart from the union mortgage clause question.
Meanwhile, by submitting a fraudulent fire insurance claim, the Named Insured became subject to prosecution for a felony; lost the insurance proceeds in excess of the mortgagee’s claim; still owes the unpaid debt on the mortgage notes, albeit the debt is now payable to the Insurance Company; the business property is still encumbered by the mortgage; and the Named Insured is liable for other expenses arising out of die fraudulent act, such as clean-up costs. One would be hard-pressed to characterize that scenario as profiting from one’s own crime.
Article 9 of the Uniform, Commercial Code
For the first time on appeal, the Insurance Company argues that interpreting K.S.A. 40-2, 118 to void union mortgage clauses is consistent with Article 9 of the Uniform Commercial Code. Specifically, it argues that insurance proceeds are one form of proceeds of collateral which cannot be treated as the unique property of any one creditor. However, it cites to K.S.A. 84-9-306 (Furse 1996), which has been repealed and the preferred language does not appear in the current version. See K.S.A. 2006 Supp. 84-9-315. Further, it argues that under K.S.A. 2006 Supp. 84-9-203(b)(2), a secured lender has no rights in collateral if the debtor has no legal rights in the property.
Generally, parties may not raise a new legal theory for the first time on appeal. Cole v. Mayans, 276 Kan. 866, 873, 80 P.3d 384 (2003). However, there are several exceptions to the general rule including: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. 276 Kan. at 873.
The Insurance Company provides no reason justifying consideration of its new theory. More importantly, it has failed to establish that Article 9 is applicable here. Cf. K.S.A. 2006 Supp. 84-9-109(d)(11) (excluding creation .or transfer of an interest or lien on real property from provisions of Article 9). K.S.A. 40-2, 118 deals specifically with fraudulent insurance acts; it was not intended to be driven by the law governing secured transactions.
CONTRACT INTERPRETATION
Alternatively, the Insurance Company argues that the insurance policy, as endorsed, plainly and unambiguously excludes all obligation for it to pay anyone in the event the insured property is intentionally and criminally destroyed by the Named Insured. The Insurance Company presents two sub-issues, arguing that the policy language cannot be read to require payment to the Bank, and then contending that the policy language does not create a “union mortgage clause.”
The Insurance Company points to the policy language of various other sections of the insurance policy, including that which voids the policy in the event of fraud by the Named Insured and that which excludes payment for losses caused by the Named Insured’s dishonest or criminal acts. Although the policy does not cross-reference the other provisions to the specific condition applicable to mortgageholders, the Insurance Company nevertheless attempts to establish an interface of the provisions to avoid paying the mortgagee.
The Building and Personal Property Coverage Form contains a section F, entitled “Additional Conditions,” which makes those conditions apply “in addition to the Common Policy Conditions and the Commercial Property Conditions.” The second condition listed is specifically entitled “Mortgageholders.” Subsection (d) under that condition plainly explains to the reader that “[i]f we [the Insurance Company] deny your [the Named Insured’s] claim because of your [the Named Insured’s] acts or because you [the Named Insured] have failed to comply with the terms of this Coverage Part, the mortgageholder [the Bank] will still have the right to receive loss payment . . . .”
It is difficult to perceive how a provision could be more clear in telling a named insured and the listed mortgageholder that the mortgagee gets paid, even if the insured commits arson. The Insurance Company suggests that one should be able to ascertain, by jumping back and forth among other policy provisions, that “your acts” was not intended to mean fraudulent insurance acts. To do so, one must strain to interpret the other provisions as modifying, restricting, or deleting the plain language in the additional condition specifically applicable to mortgageholders. That exercise does not pass the test for policy language interpretation, i.e., what a reasonably prudent insured would understand and not what the insurer intended.
Likewise, the Insurance Company’s argument that a “Kansas Changes” endorsement contradicted the main policy’s mortgage-holder coverage fails to pass muster under the reasonably prudent insured test. The district court found that the endorsement made no readily apparent change to the provision contained in the original policy. Viewing the original and the endorsement language side-by-side corroborates the district court’s assessment:
Endorsement entitled: “KANSAS CHANGES— CONCEALMENT, MISREPRESENTATION OR FRAUD”
“The CONCEALMENT, MISREPRESENTATION OR FRAUD Condition is replaced by the following:
“CONCEALMENT, MISREPRESENTATION OR FRAUD
“We will not pay for any loss or damage in any case of:
“1. Concealment or misrepresentation of a material fact; or
“2. Fraud; committed by an insured at any time and relating to an insurance application, rating, claim or coverage under this policy.”
The original provision, contained in a section entitled, “COMMERCIAL PROPERTY CONDITIONS” reads as follows:
“A. CONCEALMENT, MISREPRESENTATION OR FRAUD
“This Coverage Part is void in any case of fraud by you as it relates to this Coverage Part at any time. It is also void if you or any other insured, at any time, intentionally conceal or misrepresent a material fact concerning:
1. This Coverage Part;
2. The Covered Property;
3. Your interest in the Covered Property; or
4. A claim under this Coverage Part.”
The Insurance Company principally argues that, by using the language of K.S.A. 40-2, 118, the endorsement was obviously in tended to negate the coverage extended to the mortgageholder in the original policy. First, we have determined that the statute does not invalidate union mortgage clauses. Accordingly, an oblique reference to the statute via comparable endorsement language does nothing to support the Insurance Company’s position.
Further, standing alone, the endorsement cannot reasonably be construed as abolishing any part of the mortgageholder condition. As the district court noted, the change intended by the endorsement is so subtle as to be nearly indistinguishable from the original. To say that an insured should realize the endorsement directly contradicts and invalidates the union mortgage clause is to flirt with frivolity.
Similarly, the Insurance Company’s contention that its mortgageholder provision is a loss payee clause, rather than a union mortgage clause, is unsupportable by the contract language. The insurer wants to characterize the Bank as a loss payee because it contends that a loss payee derives its rights through the insured, i.e., a denial of the insured’s claim effects a denial of the loss payee’s claim. Yet, the specific topic of subsection (d) is to describe what happens if the insured’s claim is denied, which is the antithesis of a loss payable clause. If the Insurance Company intended a mortgagee to be a loss payee, the simple way to have done so was to omit subsection (d), the union mortgage clause, from the policy.
The Insurance Company attempts to rationalize the inclusion of the union mortgage clause in its policy, while arguing that it is not applicable, by explaining that it obtains its policy forms from a service that provides preapproved, standardized forms. As counsel conceded at oral argument, the inclusion of subsection (d) in the standardized form indicates that the industry norm, nationwide, is to provide a union mortgage clause. That concession certainly tempers the Insurance Company’s argument that union mortgage clauses are obsolete and bolsters the Bank’s arguments that it legitimately relied upon the plain policy language as providing the standard mortgage clause required by its mortgage. Nevertheless, if the Insurance Company proposed to deviate from the standardized coverage, it was incumbent upon the insurer to clearly state the deviation in a manner that a reasonably prudent insured could understand. It did not do so here.
Finally, the Insurance Company’s attempt to distinguish the policy language involved in the Union State Bank v. St. Paul Fire & Marine Ins. Co., 18 Kan. App. 2d 466, 856 P.2d 174, rev. denied 253 Kan. 864 (1993), case is ineffectual. There, the mortgage holder clause, which was given effect with respect to the real estate mortgagee, provided: “If we deny your claim because of your acts or because you haven’t complied with the terms of this agreement, the mortgage holder will still have the right to receive loss payments.” Union State Bank, 18 Kan. App. 2d at 468. That language is nearly identical to the words contained in the policy now before us.
SUMMARY
The legislature did not intend for K.S.A. 40-2, 118(c) to nullify or invalidate all standard or union mortgage clauses or to preclude an insurer from voluntarily providing coverage under a standard or union mortgage clause. The legislation simply clarifies that an insurer is not required to provide coverage for or make payments to a claimant where the named insured commits a fraudulent insurance act, unless the insurer has voluntarily provided such coverage under the insurance policy. A standard or union mortgage clause does not violate public policy.
The plain and unambiguous language of the Insurance Company’s policy provided for loss payments to the Bank, notwithstanding a denial of the Named Insured’s claim based upon the Named Insured’s act, even if that act was a fraudulent insurance act under K.S.A. 40-2, 118, et seq. The Insurance Company’s policy contained a standard or union mortgage clause. No other provision of the policy or endorsement to the policy could be understood by a reasonably prudent insured as modifying, restricting, or abolishing the standard or union mortgage clause.
The district court’s grant of sumxnaiy judgment in favor of the Bank was appropriate. The judgment against the Insurance Company in favor of the Bank is affirmed.
Affirmed.
Nuss and Luckert, JJ., not participating.
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The opinion of the court was delivered by
Beier, J.:
On this direct appeal from defendant William D. Al-bright’s conviction of first-degree murder at retrial, defendant challenges the constitutionality of his hard 40 sentence, argues the dis trict judge erred in overruling his motions for a mistrial, and alleges prosecutorial misconduct during closing argument denied him a fair trial.
Factual and Procedural Background
The facts underlying defendant’s conviction are set out in detail in State v. Albright, 271 Kan. 546, 547-49, 24 P.3d 103 (2001), and are summarized as follows:
Defendant and David Barker, the victim, went to visit Jason Hoffine, who ran an auto repair shop. Defendant wanted two things — a new life in Mexico and money from Hoffine. Barker’s wife and defendant’s girlfriend decided to stay together in a motel because Barker’s house had just been searched by police. The next day, the group met back at the motel. Barker and defendant talked about returning to Hoffine’s to sell the Barkers’ 1961 Chevrolet Impala for $2,000 cash. The two men went to Barker’s house, picked up the car, returned to the motel about 7:30 p.m., and unloaded the car.
About 9:15 p.m., the two women left the motel. Barker’s wife noticed that defendant had a 9-mm hand gun, which belonged to a friend, Stephen Jeffrey Phillips. Barker carried two guns and a pocketknife. Defendant and Barker left to talk to Hoffine about the Impala. The women returned to tire motel about midnight; although the men were supposed to meet them, they did not return that night.
About 4 a.m., defendant unexpectedly arrived alone at Hoffine’s house, driving the Impala. Defendant told Hoffine that he would take just about anything for the Impala, although days earlier, Barker had tried to convince Hoffine that the car had been appraised at $3,300. The car’s ignition switch could be activated without a key. Defendant did not have the keys, but he had the unsigned title certificate. In Hoffine’s presence, defendant forged Barker’s signature on the title and sold the Impala to Hoffine, who then drove defendant back to the motel.
Defendant also fabricated a story that Hoffine believed he was supposed to repeat if questioned. According to the story, defendant and Barker had come to Hoffine’s house about midnight, and Hof fine gave defendant some money. Barker left with a Mexican driving a blue Suburban.
In actuality, according to Hoffine’s testimony, after defendant arrived at his house, defendant washed his hands and arms because he was concerned about “ballistics” testing. Then defendant told Hoffine that he had shot Barker in the back of the head while Barker stood behind the Impala about 26 miles outside of town. Defendant also said that he had left Barker’s body lying beside the road and that the body should be found fairly soon.
Defendant and Phillips left for Oklahoma that evening. On the trip, defendant told Phillips that he had shot Barker in the head while Barker stood by the trunk of the Impala. Defendant also told Phillips that he had used Phillips’ 9-mm Ruger and that he had dismantled the gun and disposed of it.
Phillips had two 9-mm Rugers that looked nearly identical. He testified that he had lent one of them to defendant. Defendant returned it 2 days before the murder, and Phillips had placed the gun in the kitchen drawer where defendant knew he usually kept it. When Phillips looked for the gun the next day, it was gone. The Ruger admitted into evidence at trial was not the one used to Mil Barker; it was the other 9-mm Ruger owned by Phillips.
Phillips testified that defendant said he Mlled Barker because Barker was going to have Phillips and Phillips’ mother, niece, and nephew Mlled. Defendant told him that Barker thought Phillips had called the police about raiding Barker’s house. Phillips said he did not know about Barker’s threats until defendant told him about them.
After a farmer found Barker’s body lying in the middle of the road, an autopsy revealed that Barker died from a gunshot wound to the back of his head. Dr. Corrie May, a forensic pathologist, testified that, in her opinion, the death was a homicide. Forensic testing showed that tissue scraped from the rear quarter panel of the Impala was consistent with Barker’s DNA.
Police found a .380 caliber bullet where the body was found. Phillips testified that he loaded both of his Rugers with 9-mm ammunition and did not have any .380 caliber ammunition in his home. During a search of defendant’s home, the police found .380 caliber ammunition.
A special agent from the Kansas Bureau of Investigation (KBI) testified that the tire impressions found at the scene were consistent with the Impala. Bootprints at the scene matched those worn by defendant and Barker. Barker’s knife, two guns, and keys were found undisturbed on his body.
During the retrial leading to this appeal, despite pretrial rulings in defendant’s favor on motions in limine, the prosecutor mentioned the prior trial. In addition, State expert Steve Koch made reference during his testimony to defendant’s fingerprints being in the KBI central repository. After each incident, defense counsel moved for mistrial. The district judge rejected each motion.
During closing argument, the prosecutor stated:
“Now, defense has suggested to you over the last several days, ladies and gentlemen, that — a couple of things actually. Number one, that defendant could not have done it because of timing. And I will talk a litde bit about the medical evidence in this case.
“The other thing, the other part of the defense is, well, it’s kind of what’s known as the SODDI defense. Some other dude did it. We’ll see. It’s been a suggestion that, oh well, other people could have done this. Well, reminds me of my favorite cartoon, if any of you read the Sunday comics. But I love Family Circus, always have. And I always thought it was funny, the ldd and the ‘not me’ character. Whenever the kids’ parents knew one of them had done something wrong and they’re going ‘not me’ and the little ‘not me’ guy is running around. It’s that phantom. It’s that I don’t have anydring better to say, so it’s not me.
“Before I talk about Dr. Spitz — well, Dr. Spitz, you saw him on die stand. Credibility is for you to weigh, ladies and gentlemen. You saw him. He was evasive. He was antagonistic. It would have been nice to get an answer out of him, a straight answer. I think I only got maybe two or three.
“But I can’t understand, if he is so confident in his conclusions, if he is such tire expert, why be evasive? Why be antagonistic? Dr. May certainly wasn’t. She was veiy straightforward. She was very calm. She was veiy cooperative. Wasn’t she? Well, why is Dr. Spitz evasive? Because he is acting more as an advocate than an independent expert.”
Upon defendant’s conviction, the district judge found that defendant committed the crime for tire purpose of receiving money or any other thing of monetary value; thus the judge imposed a hard 40 sentence.
Constitutionality of Kansas' Hard 40 Sentencing Scheme
Premeditated first-degree murder, committed in violation of K.S.A. 21-3401(a), carries a stated penalty of life imprisonment and requires that a defendant serve 25 years before he or she becomes eligible for parole. K.S.A. 1998 Supp. 22-3717(b)(1). Pursuant to K.S.A. 21-4635, the State may seek to increase the time before parole eligibility to 40 years, K.S.A. 21-4638, and the sentencing judge may impose the hard 40 sentence if he or she finds that one or more aggravating circumstances enumerated in K.S.A. 21-4636 exist and are not outweighed by mitigating circumstances. K.S.A. 21-4635(d); K.S.A. 21-4637. The decision on whether to impose a hard 40 sentence is allocated to the sentencing judge. K.S.A. 21-4635(a).
Defendant argues that the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § § 5, 10 require “that any fact which may increase the maximum penalty for a crime must be proven to a jury beyond a reasonable doubt,” and that the hard 40 sentencing scheme violates these constitutional requirements.
This issue has no merit.
“Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of the sentence. [A] hard 40 sentence violates neither the Due Process Clause of the United States Constitution, nor [the] right to trial by juiy under the 6th Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights.” State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
We have previously upheld the hard 40 sentencing scheme and Conley in light of each of the distinguishable United States Supreme Court cases, Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), Apprendi v. New Jersey, 530 U.S. 466, 489-94, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), urged upon us by defendant. See, e.g., State v. Engelhardt, 280 Kan. 113, 142-143, 119 P.3d 1148 (2005); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Martis, 277 Kan. 267, 297, 83 P.3d 1216 (2004); State v. Boorigie; 273 Kan. 18, 41-42, 41 P.3d 764 (2002); see also State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d 1249 (2004); State v. Hebert, 277 Kan. 61, 108, 82 P.3d 470 (2004); State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003); State v. Douglas, 274 Kan. 96, 111-12, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003); State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003); State v. Spain, 263 Kan. 708, 713, 953 P.2d 1004 (1998); State v. Gideon, 257 Kan. 591, Syl. ¶ 3, 894 P.2d 850 (1995).
Specifically, defendant argues that our Conley decision relied on the United States Supreme Court’s earlier decision in McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (facts that do not increase defendant’s punishment beyond that authorized by the underlying statute need not be proven to a jury beyond a reasonable doubt). He argues that Ring, Apprendi, and Jones called McMillan into doubt, making Conley’s reliance misplaced. We have previously rejected that specific argument as well, determining that the Apprendi Court refused to overturn McMillan. State v. Hurt, 278 Kan. 676, 687, 101 P.3d 1249 (2004); State v. Albright, 273 Kan. 811, 826, 46 P.3d 1167, cert. denied 537 U.S. 962 (2002); see also Harris v. United States, 536 U.S. 545, 567, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (“Within the range authorized by the jury’s verdict, however, die political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings.”).
Defendant also cites as persuasive authority the cases of People v. Swift, 202 Ill. 2d 378, 781 N.E.2d 292 (2002), and State v. Tafoya, 91 Hawaii 261, 982 P.2d 890 (1999). Neither case is controlling, and both are distinguishable.
In Swift, the defendant was convicted of first-degree murder. Under Illinois law, the sentencing range for the crime was 20 to 60 years’ imprisonment; defendant challenged an Illinois statute that permitted the sentence to be increased to 80 years based on a factual finding by the judge, acting alone, that the crime was brutal and heinous. The Illinois Supreme Court determined that, under Apprendi, the sentence could not stand. 202 Ill. 2d at 392. Under Kansas law, the penalty for first-degree premeditated murder is life imprisonment; that penalty is not increased by the imposition of the hard 40 sentence.
In Tafoya, the Hawaii Supreme Court relied solely on state constitutional grounds to hold that, for purposes of enhancing sentences when elderly, handicapped, or minor victims are seriously injured in course of certain crimes, factual findings regarding victim’s status and defendant’s knowledge of that status must be made by the trier of fact. 91 Hawaii at 273. This case was decided prior to Apprendi and has no application here.
Defendant presents no new challenge to the statute and provides no compelling reason for this court to revisit its precedent.
Motions for Mistrial
Prior to his new trial, the district court granted defendant’s motion in limine to prevent the State from referring to either defendant’s prior conviction or the prior trial of this case. The district court also granted defendant’s motion in limine to prohibit admission of K.S.A. 60-455 evidence without a prior hearing.
Defendant alleges two violations of these orders — one when the prosecutor referred briefly to the prior trial and one when a State expert mentioned that defendant’s fingerprints were in the KBI central repository — substantially prejudiced him and required the district court to grant his motions for mistrial. He argues that the district court abused its discretion by refusing to do so.
K.S.A. 22-3423(1)(c) gives a district court the discretion to terminate a trial and order a mistrial if “prejudicial conduct . . . makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
This court has often stated that a district court’s ruling on a motion for mistrial is reviewed under an abuse of discretion standard. See State v. Patton, 280 Kan. 146, 181, 120 P.3d 760 (2005); State v. Daniels, 278 Kan. 53, 66, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004). A court abuses its discretion when no reasonable person would take the same view. State v. Hebert, 277 Kan. 61, 94, 82 P.3d 470 (2004). A defendant must show substantial prejudice before this court will find the district court abused its discretion in denying a motion for mistrial. Patton, 280 Kan. at 181; Daniels, 278 Kan. at 66-67.
We note that when a defendant alleges prejudice based on reviewing the district court’s denial of a mistrial motion based on violations of an in limine order by the prosecutor, we have also employed a prosecutorial misconduct-type analysis to the extent it is helpful in determining whether there has been substantial prejudice. See State v. Tosh, 278 Kan 83, 93, 91 P.3d 1204 (2004) (two-part prosecutorial misconduct analysis); State v. Gleason, 277 Kan. 624, 641, 88 P.3d 218 (2004) (quoting State v. Bloom, 273 Kan. 291, 301, 44 P.3d 205 [2002]; State v. Crume, 271 Kan. 87, Syl. ¶ 11, 22 P.3d 1057 [2001]).
Prosecutor’s Reference to Prior Trial
The district judge’s pretrial order in limine permitted discussion of prior testimony but prohibited reference to the prior trial. During redirect, as the prosecutor attempted to refresh the recollection of a witness with testimony tire witness had given at the first trial regarding the murder weapon, the prosecutor referred to the witness’ “prior testimony” several times. Plowever, the prosecutor then said: “Okay. And at the previous trial you were shown or previous testimony you showed — you were showed this same exhibit number 53.” Defendant’s counsel objected to the question out of the hearing of the jury and moved for a mistrial based on the prosecutor’s violation of the motion in limine. The prosecutor admitted he had “slipped up” and apologized. The district court denied the motion for mistrial, finding that the mistake was inadvertent and concluding that there was no substantial prejudice. The judge offered a curative instruction, but defendant declined it.
While the prosecutor’s mistake constituted a violation of the order in hmine, it was inadvertent and isolated. The prosecutor immediately corrected his slip. No attention was drawn to the mistake, and the defense declined the judge’s offer of a curative instruction. Under these circumstances, there was no substantial prejudice, even if we measure its probability by the two steps used for alleged prosecutorial misconduct. Any misconduct was not gross or flagrant and did not appear to be the product of ill will or bad faith. We are confident the mistake had little weight in the minds of the juiy. See Gleason, 277 Kan. at 641; see also State v. Whitesell, 270 Kan. 259, 281-82, 13 P.3d 887 (2000) (district court’s denial of defendant’s motion for a mistrial affirmed on appeal; “two minor statements” referencing first trial were inadvertent and had no prejudicial effect on the trial).
Expert’s Testimony
We assess the likelihood of substantial prejudice arising from the State’s fingerprint expert’s mention of the KBI central repository in much the same way. The prosecutor asked, “Were you given any fingerprints from the defendant, Mr. Albright?” And the witness answered, “I — we—the KBI had a set of known fingerprints in our central repository.” After a few more questions and answers, defense counsel approached the bench and objected to the testimony as a violation of the order in limine and as improper under K.S.A. 60-455. In the view of the defense, the fact that defendant’s fingerprints were on file at the central repository implied he had previously been arrested. Again, the defense moved unsuccessfully for a mistrial. The district court then offered two options: (1) Striking of the answer and an instruction to the jury to ignore it; or (2) An opportunity for the defense to call a jailer as a witness to testify that defendant’s prints were taken upon his arrest in this case. Defendant refused both options.
Again, we conclude that the district court did not abuse its discretion in determining that the witness’ statement did not prejudice the defendant. The expert stated more than once that fingerprints are normally taken at the time of arrest. And the reference to the KBI central repository was subject to more than one interpretation; it did not inevitably suggest to the jury that defendant had a criminal record. Further, the State did not solicit or expect the statement; no further attention was drawn to it. See State v. Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995) (trial court did not abuse discretion in refusing to grant defendant mistrial after defendant’s accomplice testified during State’s examination that defendant had previously been in prison; accomplice’s statement was unsolicited; defendant refused court’s offer to give Mmiting instruction; no further mention of defendant’s record made during trial; under all the circumstances, statement could not have affected result).
Prosecutorial Misconduct
This court’s decision in Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, sets forth the governing two-step analysis for allegations of prosecutorial misconduct: it applies regardless of whether tire alleged misconduct occurs during witness examination or during closing argument, and it applies even when no contemporaneous objection was made. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006); see State v. Dixon, 279 Kan. 563, 590-92, 112 P.3d 883 (2005); State v. Overton, 279 Kan. 547, 558-60, 112 P.3d 244 (2005); Tosh, 278 Kan. at 87-89 (cross-examination), 89-93 (closing argument).
The first step asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. The second step asks whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. Dixon, 279 Kan. at 590-91; see Overton, 279 Kan. at 558-59. The second step requires three factors to be considered: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless tire harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met. Swinney, 280 Kan. at 779-80 (citing Dixon, 279 Kan. at 592; Tosh, 278 Kan. 83, Syl. ¶ 2).
Defendant argues that the prosecutor committed reversible misconduct by making two improper assertions during closing argument.
The “SODDI” Defense and “Not Me” Character
After discussing the evidence presented through testimony supporting the State’s version of the events, the prosecutor mentioned the “SODDI” or “some other dude did it” approach of the defense, as well as the phantom character from the Family Circus comic, “Not Me.” Defendant argues that these references went beyond the bounds granted a prosecutor in discussing evidence, and that the statements, by characterizing defendant’s theory of defense as “imaginary” and “phantasmal,” were analogous to “smoke screen” arguments that prejudiced his right to a fair trial.
As defendant acknowledges, we have never concluded that drawing an analogy between a defense tactic and “smoke” is inherently prejudicial, and we have not reversed based on such a statement alone. See State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000) (prosecutor’s comments in arson case, which involved burning a dog, to effect that defense counsel had attempted to divert jury’s attention by arguing State did not know who dog’s owner was, labeling of tactic was “puff of smoke” not prosecutorial misconduct; comments not beyond bounds of legitimate rhetoric; puff of smoke argument responsive to defense counsel’s strained interpretation of evidence regarding defendant’s beliefs about who, if anyone, owned dog); State v. McCray, 267 Kan. 339, 348-51, 979 P.2d 134 (1999) (prosecutor’s “smoke screen” statement made in course of more egregious comments insinuating defense counsel’s “deception” was attempt to “fool,” “intimidare],” and “scare” jury; remarks outside bounds of proper argument but little likelihood they changed result); State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994) (prosecutor called defense closing argument “a lot of smoke,” said “[i]t’s smoke and mirrors . . . trying to confuse you“; no intent to mislead and within permissible bounds of rhetoric); State v. Baker, 249 Kan. 431, 447, 819 P.2d 1173 (1991) (prosecutor argued defendant’s “nice boy image . . . [was] nonexistent,” “[i]t’s a smoke screen“; statements not gross nor flagrant, did not deprive defendant of fair trial); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 837-38, 109 P.3d 1272 (2005) (prosecutor’s comments that defense “simply arguing smoke and mir rors” and “[g]rasping at straws,” not improper, not outside wide latitude allowed in discussing evidence); State v. Lockhart, 24 Kan. App. 2d 488, 490-93, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (prosecutor s “smoke screen” argument noted but not found improper; basis for reversal in prosecutor’s references to defendant and defense counsel as liars); see also State v. Anthony, 282 Kan. 201, 210-12, 145 P.3d 1 (2006) (approving prosecutor’s colorful analogy of defense theory to the Wizard of Oz); State v. Collier, No. 93,589, unpublished Court of Appeals opinion filed March 31, 2006, rev. denied 282 Kan. 792 (2006), slip op. at 8-9 (simple “smoke and mirrors” comments not considered prosecutorial misconduct; even if improper, no prejudice).
On the contrary, we have approved a variety of colorful analogies used by prosecutors to describe the defense theory of such cases. Although we have not had occasion to address the two particular descriptors at issue here, we conclude there was nothing improper about the prosecutor’s characterization of the defense theory as “the ‘SODDI’ defense,” or her analogy to Family Circus and its “Not Me” character. A previous panel of our Court of Appeals specifically approved the “SODDI” reference. State v. Mincks, No. 93,187, unpublished opinion filed Nov. 18, 2005, slip op. at 10-11 (no misconduct in describing “SODDI” defense as “insidious.”). Here, the description and analogy more or less accurately characterized the defense theory of the case. We conclude that these statements were within the wide latitude given a prosecutor in discussing the evidence.
Comments on Experts
Defendant also argues that the prosecutor committed reversible misconduct by commenting on the credibility of the defense pathology expert Dr. Werner Spitz, and comparing him to the State’s own witness, May. After discussing May’s testimony, the prosecutor characterized Spitz as “evasive” and “antagonistic.”
A witness may not express an opinion on the credibility of another witness. State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005); State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986). This is because the determination of the truthfulness of a witness is for the jury. State v. Plaskett, 271 Kan. 995, 1009, 27 P.3d 890 (2001). It also is error for a prosecutor to state his or her personal opinion concerning a witness’ credibility.
Here, however, the prosecutor’s references to defendant’s expert as evasive and antagonistic and her own expert as “straightforward” and “cooperative” were not outside of the considerable latitude given a prosecutor in discussing the evidence. The prosecutor merely described witness demeanor, which is an observation not a judgment on credibility. In addition, defense counsel, in his closing, wholeheartedly agreed that “Dr. Spitz [was] cantankerous.” Even the district court judge had said, out of the hearing of the jury, that “it would be nice if [Spitz would] just answer a question.” Compare Elnicki, 279 Kan at 57-68 (prosecutor’s comments during closing argument referring to defendant’s “yarn,” “fairy tale,” “fabrication,” “tall tale,” and “spin” constitute improper opinion of defendant’s credibility; statements that “you know [victim] was telling truth” and “truth shows you beyond a reasonable doubt the defendant is guilty” are improper; cumulative errors require reversal); State v. Pabst, 268 Kan. 501, 505-06, 996 P.2d 321 (2000) (reversible misconduct when prosecutor accused defendant of lying 11 times in closing argument, vouched for truthfulness of own witnesses; defendant’s credibility crucial).
We also note that the challenged statements were made in the context of discussing inconsistencies between the medical opinions of the two experts, which the prosecutor has the latitude to do. See State v. Finley, 273 Kan. 237, 244-47, 42 P.3d 723 (2002). May had examined the body, performed the autopsy, and filed a report; Spitz had not had access to the body, had not reviewed the available materials, and had based his conclusion on only one slide. Finally, the jury also was admonished several times by the prosecutors, defense counsel, and the district court that credibility determinátions were solely within its province.
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The opinion of the court was delivered by
Nuss, J.:
The State appeals the Court of Appeals’ order granting Thomas’ motion for summary disposition and remanding for re-sentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The State argues that a late appeal granted by the district court in 2005 must be subject to the law in effect at the time Thomas should have filed it, September 2001, and in effect during the course of that 2001 appeal. It reasons that because McAdam is a 2004 decision, Thomas’ appeal could not have been pending at that late date and a sentence reduction that McAdam would otherwise authorize is not available to him. Our jurisdiction is pursuant to K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the Court of Appeals err in granting Thomas’ motion for summary disposition? Yes.
2. Is remanding for resentencing under McAdam correct? Yes.
3. Does K.S.A. 21-4721(c) bar Thomas’ appeal? No.
Accordingly, we affirm the Court of Appeals’ order remanding the case to the district court for resentencing.
FACTS
In January 2001, John Aaron Thomas was charged in the McPherson County District Court with manufacturing methamphetamine, possessing methamphetamine, felony possession of drug paraphernalia, and criminal possession of a firearm.
On April 17, 2001, Thomas entered a plea agreement with the State. He agreed to plead either guilty or nolo contendere to the manufacturing methamphetamine charge; in exchange, the State agreed to dismiss the remaining counts.
On September 11, 2001, Thomas was sentenced to 162 months’ imprisonment based upon the drug severity level 1 felony of manufacturing methamphetamine and a criminal history classification of “E.” The district court judge failed to inform Thomas of his appellate rights, e.g., the right to appeal his sentence as permitted by Kansas law. See State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986) (following a guilty or nolo contendere plea, a defendant may challenge the sentence imposed). Thomas did not file a direct appeal. See K.S.A. 22-3608(a) (appeal must be filed within 10 days of sentencing).
On Januaiy 30, 2004, the Kansas Supreme Court filed State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The court held that the offense of manufacturing the controlled substance methamphetamine under K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to the offense of compounding the stimulant methamphetamine under K.S.A. 65-4161(a), a drug severity level 3 felony. Accordingly, the defendant could be sentenced only under the lesser penalty provision. This court vacated McAdam’s sentence for violation of K.S.A. 65-4159(a) and remanded with instructions to resentence him for a drug severity level 3 felony, as provided for a violation of K.S.A. 65-4161(a).
On Februaiy 25, 2004, Thomas filed a motion to correct an illegal sentence under K.S.A. 22-3504, i.e., to reduce his drug se verity level 1 sentence to a drug severity level 3 sentence per McAdam. The district court denied the motion.
On June 25, 2004, the Kansas Supreme Court filed State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Barnes pled guilty to aiding and abetting the manufacture of methamphetamine and was sentenced under K.S.A. 65-4159(a) to a controlling term of 146 months’ imprisonment. Prior to this court’s decision in McAdam, the Court of Appeals had rejected Barnes’ argument that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to the offense of compounding a stimulant under K.S.A. 65-4161(a), a drug severity level 3 felony, and that she could only be sentenced under the lesser penalty provision. In Barnes, we held that the McAdam rule applied to a case which had a direct appeal pending as of the date of the McAdam decision. We also held that Barnes’ plea agreement, which included a guilty plea in exchange for the dismissal of several charges, did not bar her relief under McAdam. We remanded for resentencing. 278 Kan. at 127-28.
On June 24, 2005, the Court of Appeals affirmed the district court’s denial of Thomas’ motion to correct his illegal sentence under K.S.A. 22-3504 and its alternative characterization as a motion under K.S.A. 60-1507. It held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision.
On August 25, 2005, Thomas filed a motion to docket his direct appeal out of time. Based upon State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), he argued that the district court erred in failing to advise him of his right to appeal his sentence at the September 2001 sentencing and that fundamental fairness required that his late appeal be allowed to proceed.
On September 2, 2005, the Kansas Supreme Court filed Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005). As characterized 2 months later in State v. Phinney, 280 Kan. 394, 400-01, 122 P.3d 356 (2005), Bryant essentially held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision.
On November 9, 2005, the district court granted Thomas’s motion to docket his appeal out of time based upon Ortiz. The journal entry provided: “[T]he Court never advised the defendant of his right to appeal at the time of sentencing; the defendant was not advised of his right to appeal by his attorney; and the defendant did not otherwise know that he had a right to appeal the sentence of the Court.’ ” Later that day, Thomas filed his direct appeal with tire Court of Appeals.
On November 10, 2005, the Kansas Supreme Court filed Phinney. Phinney pled no contest to possession of pseudoephedrine in exchange for the remaining charges being dismissed. He was sentenced for a drug severity level 1 felony under K.S.A. 2001 Supp. 65-7006 to a 150-month prison sentence, with a dispositional departure to 36 months’ probation. He did not file a notice of appeal. Approximately 1 month after his sentencing, the Court of Appeals filed State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). That court held that possession of pseudoephedrine under K.S.A. 2001 Supp. 65-7006(a), a severity level 1 felony, and possession of drug paraphernalia under K.S.A. 2001 Supp. 65-4152(a)(3), a severity level 4 felony, are identical offenses, and a defendant convicted under 65-7006(a) could be sentenced only under the lesser penalty provision of 65-4152. In short, the Frazier court recognized the “identical offense” doctrine, as this court would later in a similar context in McAdam. After Phinney violated his probation, among other things he asked that his sentence be reduced to a severity level 4 felony based upon Frazier. The district court denied the motion, revoked his probation, and ordered him to serve the original 150-month sentence. Phinney later filed a direct appeal, IVz years after his original sentencing, arguing he was entitled to a late appeal pursuant to Ortiz.
In Phinney, we noted that Barnes involved a direct appeal pending when McAdam was decided, and we had found the defendant entitled to resentencing under McAdam. We also observed that State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), involved a direct appeal pending when Frazier was decided, and this court had ultimately affirmed the Frazier holding by finding that 65-7006(a) was identical to 65-4152(a)(3) and that the defendant should have been sentenced under the lesser penalty provision. We held that Phinney met the Ortiz requirements, allowed his appeal out of time, and remanded for resentencing:
“The rationale for allowing an Ortiz appeal out of time is fundamental fairness. It is a device to put the defendant into the position he or she would have been in if fully informed of his or her appeal rights after sentencing. If a defendant can meet the narrow exceptional circumstances outlined in Ortiz and applied in Willingham, that defendant’s out-of-time appeal should be treated as if it were a timely filed direct appeal. [Citation omitted.]
“Thus, Phinney’s appeal should be treated as if it had been filed timely. Had that occurred, it would have been pending when Frazier was decided, and Frazier should apply to reduce Phinney’s sentence, in accord with the holding in Campbell. This case must be remanded for resentencing as a severity level 4 felony.
“This conclusion is also supported by this court’s opinion in Bryant v. State, 280 Kan. 2. While we refused in Bryant to apply McAdam on a collateral attack, the final paragraph of the opinion contemplated an ‘alternative means to the end Biyant seeks,’ i.e, retroactive application of McAdam may be achieved by perfecting a direct appeal out of time, as Phinney has done here. See Bryant, 280 Kan. at 13.” Phinney, 280 Kan. at 406-07.
On December 27, 2005, Thomas’ appeal was docketed with the Clerk of the Appellate Courts.
On April 27, 2006, Thomas moved for summary disposition of his appeal pursuant to Supreme Court Rule 7.041a (2006 Kan. Ct. R. Annot. 53). He argued that the Barnes court had held that a defendant whose direct appeal was pending at the time McAdam was released was entitled to resentencing in accordance with McAdam; consequently, his sentence should be reduced on remand from a drug severity level 1 to a drug severity level 3.
On May 3, 2006, the Court of Appeals denied Thomas’ motion for summary disposition of his appeal.
On May 5, 2006, Thomas filed his appellate brief. He again argued that under the rationale of Barnes, the McAdam rule applied to him and his sentence should be reduced on remand.
On June 12, 2006, Thomas again filed for summary disposition of his appeal pursuant to Rule 7.041a or for alternative expedited resolution under Supreme Court Rule 7.041 (2006 Kan. Ct. R. Annot. 52).
On June 20, 2006, the State responded to Thomas’ motion for summary disposition.
On June 22,2006, the Court of Appeals granted Thomas’ motion for summary disposition and remanded for resentencing per McAdam under the following rationale:
“The district court has previously found that the appellant was never notified of his right to appeal and case-law exceptions operate to confer appellate jurisdiction. The appellee filed no cross-appeal. An appellee must file a notice of cross-appeal from adverse rulings in order to obtain appellate review of those issues. [Citation omitted.] This court accordingly will not review the district court order finding that the case-law exceptions set out in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), apply to the present case. The appellant is accordingly allowed to file and docket this appeal out of time pursuant to State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005); Ortiz, 230 Kan. at 733, 640 P.2d 1255 (1982); and State v. Willingham, 266 Kan. 98, 967 P.2d 1079 (1998).
“It is unknowable when the appellant’s appeal might have become final had his counsel informed him of his right to appeal and timely filed a notice of appeal. It is not uncommon for docketing itself to consume months or even years, and the time from docketing to decision varies wildly. This court will not speculate about when the appellant’s appeal might have become final. The appellant was not provided the proper information regarding his appeal rights in the first place, and his appeal could not be docketed until State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), became the law of this state.
“Under the facts of this case, the defendant is entitled to the benefit of State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), pursuant to State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Thomas’s sentence is vacated, and the matter is remanded to the district court with directions to resentence him pursuant to McAdam.”
The State’s brief to the Court of Appeals originally had been due on July 7,2006. Because of the summary disposition, however, that opportunity was now moot.
On November 8, 2006, we granted the State’s petition for review.
ANALYSIS
Issue 1: The Court of Appeals erred in granting Thomas’ motion for summary disposition.
The State argues that the Court of Appeals erred in granting Thomas’ motion for summary disposition under Supreme Court Rule 7.041 because no prior appellate cases discuss whether a granted late appeal is subject to the law in effect at the time it should have been filed or the law in effect at the time the appeal is actually granted. “The interpretation of a Supreme Court rule is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007).
Supreme Court Rule 7.041 (2006 Kan. Ct. R. Annot. 52-53) provides:
“In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and tire controlling decision. Such an order may be entered on the court’s own motion after ten (10) days’ notice to the parties, citing the decision deemed controlling and providing an opportunity to show cause why such an order should not be filed.
“At any time during the pendency of the appeal, any party may move for summary disposition, citing the prior controlling decision. The motion shall be served on opposing counsel who may respond within ten (10) days. Thereafter, the court may enter an order summarily affirming or reversing, or denying the motion.” (Emphasis added.)
Barnes held that a criminal defendant whose direct appeal was pending at the time McAdam was released is entitled to the re-sentencing benefits of that decision, if he or she meets its requirements. 278 Kan. at 122-29. Additionally, Phinney held that an out-of-time direct appeal should be treated “as if it had been filed timely.” 280 Kan. at 406. Based upon a literal reading of Phinney, an argument can be made that an out-of-time direct appeal reverts back to the time when the defendant should have filed it in order to be treated “as if it had been timely filed”; here, September 2001. If the appeal does “revert back,” resentencing relief would not be warranted if the appeal was no longer pending as of the date of the McAdam decision because McAdam does not apply retroactively. Phinney, 280 Kan. at 400-01; Bryant, 280 Kan. 2.
Accordingly, the threshold issue is not whether the State’s argument is correct but whether the argument is foreclosed by controlling appellate authority.See Rule 7.041. Because of the absence of a specific conclusion on this issue by our appellate courts, the Court of Appeals erred in granting summary disposition without the benefit of the State’s brief. See State v. Patten, 280 Kan. 385, 388, 122 P.3d 350 (2005) (in the absence of prior controlling decision, summary disposition not allowed); Eaton v. Johnston, 235 Kan. 323, 325-26, 681 P.2d 606 (1984) (same).
Nevertheless, this issue has been addressed by both parties in briefs and arguments to this court. Because the facts underlying the issue are undisputed, this court’s review of the question of law presented is unlimited. See, e.g., Stewart v. Capps, 247 Kan. 549, 551, 802 P.2d 1226 (1990). Thus, this court will address the merits of the State’s argument that an out-of-time direct appeal “reverts back” to the time it should have been filed.
Issue 2: Remand to the district court for resentencing is correct.
According to the State, the Court of Appeals held as a matter of law that Thomas’ case would have been pending 2Vz years after his sentencing when McAdam was decided. The State misreads the court’s holding. The court did not hold that Thomas’ direct appeal would have been pending at the time McAdam was decided; rather, it simply opined that there was no way to know.
The State also argues that a late appeal granted by the district court in 2005 must be subject to the law in effect at the time Thomas should have filed it, September 2001, and in effect during the course of that 2001 appeal. It reasons that because McAdam is a 2004 decision, Thomas’ appeal could not have been pending at that late date and a sentence reduction that McAdam would otherwise authorize is not available to him.
For support, the State primarily cites certain language and facts from Phinney, 280 Kan. at 406-07:
“If a defendant can meet the narrow exceptional circumstances outlined in Ortiz and applied in Willingham, that defendant’s out-of-time appeal should be treated as if it were a timelij filed direct appeal. [Citation omitted.]
"Thus, Phinney’s appeal should be treated as if it had been filed timely. Had that occurred, it would have been pending when Frazier was decided, and Frazier should apply to reduce Phinney’s sentence, in accordwiththe holdingin Campbell. This case must be remanded for resentencing as a severity level 4 felony.” (Emphasis added.)
The State observes that in Phinney, because defendant was sentenced on February 2, 2002, his appeal easily “would have been pending when Frazier was decided” on March 15, 2002. 280 Kan. at 406. Clearly, then, according to the State, “Frazier should apply to reduce Phinney s sentence.” 280 Kan. at 406-07. As summarized in its brief: “Under these circumstances the Phinney court held that if Phinney had filed a direct appeal, his appeal would still have been pending approximately 30 days later and Frazier would apply.” (Emphasis added.) Based upon Phinney’s facts, the State argues that Thomas similarly must show that his appeal would have been pending at the time of McAdam’s filing. The State reasons that if Thomas cannot make this showing, and because McAdam does not apply retroactively, then he cannot obtain McAdam’s beneficial resentencing.
On the one hand, it can be argued that Thomas can make such a showing. Had Thomas been correctly advised at the September 11, 2001, sentencing, his appeal should have been filed later that month. Then, as now, his appeal most likely would have been assigned to the Appellate Defender Office (ADO). That office also represented McAdam, whose appeal was docketed 3 months later in December 2001. It is also likely that the same office representing two defendants with the same “identical offense” sentencing issues would have raised the same issue for both its clients on appeal. Indeed, as Thomas’ ADO counsel argued before this court, the McAdam rule very well could have been the Thomas rule instead.
On the other hand, Thomas may be unable to make such a showing. In Laymon v. State, 280 Kan. 430, 122 P.3d 326 (2005), McAdam’s ADO counsel argued the identical offense doctrine while Laymon’s ADO counsel did not, even though both cases were in the ADO at overlapping periods of time. Although the Court of Appeals had already rejected the identical offense doctrine in McAdam by the time Laymon’s brief was due 3 weeks later, and although McAdam’s petition for review on that issue had been granted before Laymon’s oral arguments to the Court of Appeals, his counsel still did not pursue the issue in his brief or at oral argument.
Laymon illustrates the speculation problem inherent in the State-argued requirement that Thomas prove his appeal still would have been pending when McAdam was filed in January 2004. Moreover, the State’s proposed requirement reveals a potential irony. Laymon held that counsel’s failure to raise the McAdam-type defense was ineffective assistance of counsel requiring a remand for resentencing under McAdam. By contrast, here the district court’s failure to advise Thomas of his right to appeal his sentence, e.g., so that a McAdam-type defense would be raised, could require no remand for resentencing at all. Simply put, appellate courts would reject any arguments which, because of the time frame of this case, would necessarily be based upon some speculation that Thomas’ appeal would have been pending in January 2004.
For these reasons, we agree with the Court of Appeals. We hold that when a late appeal is granted by the district court under Ortiz, 230 Kan. 733, the appeal is subject to the law in effect at the time of its granting rather than the law in effect when the defendant should have filed his or her direct appeal and during its pendency.
The Court of Appeals did not err in remanding Thomas’ appeal for resentencing.
Issue 3: KS.A. 21-4721(c) does not bar Thomas’ appeal.
Finally, the State argues that as a matter of jurisdiction, because of K.S.A. 21-4721(c), Thomas may not appeal his sentence. Whether appellate jurisdiction exists is a question of law over which this court exercises unlimited review. Because the right to appeal is statutory, this court has a duty to question jurisdiction on its own initiative. If it is clear from the record that jurisdiction does not exist, the appeal must be dismissed. Phinney, 280 Kan. at 398.
The State acknowledges that K.S.A. 21-4721(e) provides a standard basis for appeal:
“(e) 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 . . . .”
It argues, however, that while Barnes allowed jurisdiction in “cases such as the instant case” pursuant to K.S.A. 21-4721(e), the statute’s subsection (c) trumps and prevents an appeal. This subsection states in relevant part:
“(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:
(1) Any sentence that is within the presumptive sentence for the crime ... or
(2) Any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
In support, the State cites State v. Thorpe, 36 Kan. App. 2d 475, 141 P.3d 521 (2006). There, after the defendant pled guilty to involuntary manslaughter while driving under the influence of alcohol and two counts of aggravated battery, he appealed, claiming that the district court abused its discretion in imposing consecutive sentences contrary to the State’s recommendation of concurrent sentences. Citing K.S.A. 21-4721(c)(1), the Court of Appeals dismissed the appeal for lack of jurisdiction. 36 Kan. App. 2d at 477-78. Based on Thorpe, the State asserts that where a defendant pleads guilty and receives a sentence within the presumptive range, he or she has no right to appeal.
We acknowledge the Thorpe holding and decisions of this court holding that subsection (c)(1) is a jurisdictional bar to sentencing appeals. See, e.g., State v. Campbell, 273 Kan. 414, 421-22, 44 P.3d 349 (2002); State v. Clemons, 273 Kan. 328, 343-44, 45 P.3d 384 (2002). However, inherent in Barnes is a rejection of the arguments that the imposition of a presumptive sentence or a plea agreement sentence denies an appellate court its jurisdiction for addressing a McAdam-type appeal. We therefore reject the State’s argument.
We have reviewed the State’s other arguments and find them without merit.
The remand is affirmed.
Johnson, J., not participating.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Bariy Arbuclde, an attorney admitted to the practice of law in Kansas in June 1971. Arbuckle’s last registration address with the Clerk of the Appellate Courts of Kansas is in Wichita, Kansas.
The charges in this case arose from a complaint by Robert Scar-bro, an over-the-road trucker who retained Arbuclde to represent him in a dispute with Freightliner Trucks and the Omaha Truck Center regarding defects in a 2001 Freightliner tractor/sleeper. In June 2003, Arbuclde filed a petition pursuant to the Consumer Protection Act in Kansas state court. The defendants subsequently removed the case to federal court. Thereafter, Arbuclde failed to respond to the defendants’ discovery requests and the defendants’ motion to compel discovery. In addition to granting the defendants’ motion for discovery and ordering Arbuckle to comply with the discovery requests within 10 days, the federal district court ordered Arbuckle to pay $250 in sanctions. When Arbuckle failed to comply with the federal court’s order compelling discovery and imposing a sanction, the defendants filed a Motion to Dismiss With Prejudice. Arbuckle did not respond to the motion, and the federal district court granted the motion, dismissing Scarbro’s petition on March 4, 2004. Arbuckle’s motion to set aside the dismissal was denied. Scarbro filed a complaint with the Disciplinary Administrator in December 2004.
Arbuclde failed to respond to Scabro’s complaint until July 2005. In June 2006, the office of the Disciplinary Administrator filed a formal complaint alleging that Arbuckle violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2006 Kan. Ct. R. Annot. 358) (competence); KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence); KRPC 1.4 (2006 Kan. Ct. R. Annot. 386) (communication); KRPC 3.4 (2006 Kan. Ct. R. Annot. 472) (fairness to opposing counsel); KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505); and Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (duties of the bar and judiciary). Arbuckle filed an answer to the formal complaint admitting all of the allegations in the complaint. The Kansas Board for the Discipline of Attorneys held a hearing on September 21, 2006, and Arbuckle appeared in person and with counsel. At the hearing, Arbuckle stipulated to violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1(b), and Supreme Court Rule 207(b). Arbuckle presented evidence in mitigation, but the Deputy Disciplinary Administrator presented no evidence in aggravation. At the time of the hearing, Arbuckle had not paid the $250 sanction ordered by the federal district court.
The hearing panel unanimously concluded that Arbuclde violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1, and Supreme Court Rule 207(b) and recommended that Arbuclde be censured and the censure be published in the Kansas Reports. Arbuckle did not file any exceptions to the final hearing report.
The hearing panel made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Barry L. Arbuckle (hereinafter ‘the Respondent’) is an attorney at law .... His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Wichita, Kansas . . . .The Respondent was admitted to the practice of law in the state of Kansas on June 24, 1971.
“2. Robert W. Scarbro is an over the road long haul truck driver. Mr. Scarbro developed a dispute with Freightliner Trucks and Omaha Truck Center (hereinafter ‘the defendants’) regarding his truck.
“3. In February, 2003, Mr. Scarbro retained the Respondent to file suit against the defendants. At that time, Mr. Scarbro paid the Respondent a $2,000 advance fee.
“4. In March, 2003, the Respondent reduced the fee agreement to writing. The Respondent acknowledged the $2,000 advance fee and indicated that the fee would be earned at a rate of $150.00 per hour. Finally, the Respondent stated that the maximum fee would be % of any settlement.
“5. On June 6, 2003, the Respondent filed suit in behalf of Mr. Scarbro in the Shawnee County District Court. Then, on July 10, 2003, the defendants removed the case to the United States District Court for the District of Kansas.
“6. On September 23, 2003, the Court held a scheduling conference. The Court included the following deadlines in the scheduling order. On September 26, 2003, the Rule 26 disclosures were due. On December 15, 2003, the preliminary disclosure of witnesses and exhibits were due. Discovery was to be completed by January 31, 2004. The pretrial conference was scheduled for February 18, 2004. On March 5, 2004, dispositive motions were due. The Court scheduled trial for July 6, 2004.
“7. On October 17, 2003, the defendants served discovery requests on the Respondent. The responses to the discovery requests were due November 19, 2003. The Respondent failed to provide the requested discovery.
“8. On November 25, 2003, the defendants filed a motion to compel discovery. The Respondent failed to respond to the motion to compel.
“9. The Respondent failed to provide the preliminary disclosure of witnesses and exhibits by December 15, 2003, as required by the Court.
“10. On December 16, 2003, the Court granted the defendants’ motion to compel, sanctioned the Respondent, and ordered the Respondent to comply with the discovery requests within 10 days. The Respondent failed to comply with the discovery requests within 10 days as ordered by the Court.
“11. Because the Respondent failed to provide the preliminary disclosure of witnesses and exhibits and because the Respondent failed to comply with the Court’s order to compel discovery, on January 6, 2004, the defendants filed a motion to dismiss with prejudice. The Respondent did not respond to the defendants’ motion to dismiss with prejudice.
“12. On March 4, 2004, the Court granted the defendants’ motion to dismiss with prejudice.
“13. On April 6, 2004, the Respondent filed a motion to set aside the order of dismissal. On April 12, 2004, the defendants filed a memorandum in opposition to the Respondent’s motion. Thereafter, on June 4, 2004, the Court denied the Respondent’s motion.
“14. In December, 2004, Mr. Scarbro filed a complaint with the Office of the Disciplinary Administrator. On January 7, 2005, Mr. Walczak wrote to the Respondent. In the letter, Mr. Walczak directed the Respondent to provide a written response to the complaint within 20 days. The Respondent failed to provide a written response to the complaint within 20 days. Eventually, on July 19, 2005, the Respondent provided a written response to tire complaint.
“15. As of tire date of the hearing on the Formal Complaint, the Respondent had not paid tire sanctions as ordered by tire Court nor had the Respondent offered to compensate Mr. Scarbro for his loss of cause of action.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1(b), and Kan. Sup. Ct. R. 207(b), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent did not represent Mr. Scarbro with thoroughness and with reasonable preparation. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. Scarbro when he failed to take any action during discovery and when he allowed Mr. Scarbro’s cause of action to be dismissed. Because the Respondent faded to act with reasonable diligence and promptness in representing Mr. Scarbro, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately communicate with Mr. Scarbro. Accordingly, tire Hearing Panel concludes that tire Respondent violated KRPC 1.4(a).
“5. KRPC 3.4 requires attorneys to be fair to opposing counsel. The rule provides:
‘A lawyer shall not:
‘(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
‘(d) in pretrial procedure, make a frivolous discovery request or fail to malee reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’
In this case, tire Respondent repeatedly disobeyed the court’s orders, including the order to comply with discovery and the order to pay sanctions. Further, as late as the date of the hearing on the Formal Complaint, the Respondent had not paid tire sanctions that were ordered on December 16,2003. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4.
“6. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide tire requirement in dris regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . .’ KRPC 8.1(c).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to forward a written response to the initial complaint. Because the Respondent knowingly failed to provide a timely written response to the initial complaint filed by Mr. Scarbro, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation. Additionally, the Respondent violated his duty to his client to provide adequate communication. The Respondent also violated his duty to the legal system to comply with orders of the court. Finally, the Respondent violated his duty to the legal profession to cooperate in the disciplinary investigation.
“Mental State. The Respondent negligently and knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Mr. Scarbro.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct in this case by repeatedly ignoring the Court’s orders.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1, and Kan. Sup. Ct. R. 207. As such, the Respondent committed multiple offenses.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1971. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 35 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Indifference to Making Restitution. To date, the Respondent has made no effort to pay the sanctions ordered by the Court or to compensate Mr. Scarbro for his loss of cause of action.
“Mitigating circumstances are any considerations or factors that may justify a reduction in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found tire following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“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 tire Attorney. The Respondent is an active and productive member of the bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, tire Hearing Panel has thoroughly examined and considered tire following Standards:
‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Standard 4.43.
‘Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to tire client.’ Standard 4.63.
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’ Standard 6.22.
‘Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.’ Standard 6.23.
‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to tire profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3.
“RECOMMENDATION
“The Deputy Disciplinary Administrator and Counsel for Respondent recoin mended that the Respondent be censured and that the censure be published in the Kansas Reports.
“Rased upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports. The Hearing Panel also urges the Respondent pay the sanctions and provide evidence that the sanctions have been paid to Mr. Walczak, within 30 days of tire date of this report. Finally, the Hearing Panel recommends that tire Respondent immediately obtain professional liability insurance.”
In a disciplinary proceeding, we consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether die respondent violated the KPRC and what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
We conclude that the hearing panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt die same. We note tiiat Arbuclde admitted to die violations and agreed with the discipline recommended by the Disciplinary Administrator and the hearing panel. Arbuclde also conceded at oral argument that he would reimburse Mr. Scarbro for the $2,000 advance fee that was paid. Based on Arbuckle’s admission to the violations, agreement with the recommended discipline, and concession regarding the reimbursement of the attorney fees, we accept the panel’s recommended discipline of published censure as the appropriate discipline. A minority of this court would find the failure to reimburse the $2,000 advance fee would result in further disciplinary action.
It Is Therefore Ordered that respondent, Barry L. Arbuclde, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243) for violations of KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1, and Supreme Court Rule 207(b).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to respondent. | [
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The opinion of the court was delivered by
Schroeder, J.:
This appeal arises out of proceedings instituted by the petitioner (appellant) to determine the ownership of a bank account. In the trial court all issues presented by the petitioner were determined adversely to her.
The issue presented is whether the funds in a bank account constitute a part of the assets of the estate of Charles K. Matthews, deceased, or whether the petitioner is entitled to the funds in the account alternatively alleged and claimed as (1) a donee beneficiary; (2) a surviving joint tenant; or (3) one-half thereof as a cotenant.
The executor of the estate of Charles K. Matthews contends the account in question is a part of the decedent’s estate, and that the petitioner was authorized to draw on the testator’s business account solely for the accommodation of Charles K. Matthews during his lifetime.
The basic facts giving rise to this controversy are as follows:
Charles K. Matthews and Katie O. Matthews, husband and wife, had two natural children. Marvis Kos (petitioner-appellant), a daughter, worked for her father in his business for thirty-three years at an hourly wage rate. The business was known as the Iron Hand Tool Works located at Stilwell, Kansas. Joan Alice Matthews is an adult incompetent daughter. Marvis Kos is the legal guardian of Joan Alice Matthews in Jackson County, Missouri.
Charles K. Matthews and Katie O. Matthews, his wife, of Bucyrus, Kansas, from and after August 9, 1957, had a joint tenancy bank account in the State Bank of Stanley, Stanley, Kansas, by virtue of a “Depositor’s Contract and Signature Card” executed that date. (Defendants’ Exhibit A.)
For all practical purposes the format of the “Depositor’s Contract and Signature Card” is identical to the one which was the subject of litigation in In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286.
Defendants’ Exhibit A in the upper right-hand comer showed the account to be a business account entitled:
“Iron Hand Tools Works C. K. Matthews Stilwell, Kansas”
There followed a provision that the bank was authorized to recognize any of the signatures “subscribed below” in payment of funds or the transaction of any business for the account. In the blank space provided the word “Joint” was written to indicate the kind of account (four alternatives were indicated: individual, joint, partnership or corporation). Following were the signatures of both C. K. Matthews and Katie O. Matthews. Near the bottom of the front side of the card appeared the words “Depositor’s Contract,” followed by seven paragraphs in small print, which continued to the back of the card. One of these paragraphs specifically referred to “Joint Accounts” and provided that all sums on deposit or later deposited by either or both of said joint depositors, were to be owned by them jointly, with right of survivorship, and were subject to check or receipt of either of them or the survivor of them.
Other paragraphs specifically referred to partnership accounts and corporation accounts.
Directly following the last provision of the “Depositor’s Contract” on the back of the card appeared the statement, “The terms of the above contract have been read and are hereby agreed to by owner of account.” Following were two signature lines which were signed by C. K. Matthews and Katie O. Matthews.
On May 23,1967, a joint and mutual will was executed by Charles K. Matthews and Katie O. Matthews.
On June 17, 1967, Katie O. Matthews died.
On November 4, 1968, another “Depositors Contract and Signature Card” (plaintiff’s Exhibit 1) was filed with the bank entitled:
“Iron Hand Tool Works C. K. Matthews or Marvis Kos”
It will be described in more detail later.
Charles K. Matthews died testate on December 10, 1968. Under the joint and mutual will of Charles K. Matthews and his wife the estate passes to a trust for the benefit of Joan Alice Matthews during her lifetime with any unexpended income going to a grandson and two great-grandchildren upon Joan’s death.
On December 20, 1968, in the probate court of Johnson County, Kansas, a petition for probate was filed in the estate of Charles K. Matthews, deceased. On January 15, 1969, Marvis Kos filed an answer denying the will which was ultimately admitted to probate on January 31, 1969. Letters testamentary were issued to the executor, the Patrons State Bank and Trust Company. On the 20th day'of March, 1969, an inventory and appraisal was filed by the executor showing total assets of $75,486.95, as amended May 12, 1969. The bank account in question with the State Bank of Stanley, No. 10-004-8, in the amount of $28,916.08 was inventoried as a part of the decedent’s estate with a parenthetical note “Claimed by Marvis Kos.”
On April'4, 1969, Marvis Kos filed a petition as guardian of Joan Alice Matthews requesting the probate court to determine a proper amount for the trustee to pay petitioner for the support of her sister. (Petitioner was appointed guardian on February 6, 1969.)
On April 23, 1969, Marvis Kos filed a petition in the estate of Charles K. Matthews, deceased, to strike the bank account with the State Bank of Stanley, No. 10-004-8, in the amount of $28,916.08 from the inventory, alleging:
“3. Said account was established prior to the death of Charles K. Matthews, deceased, as a joint account with the right of survivorship in Marvis Kos and the balance of the account should be set aside to Marvis Kos as the survivor.”
This petition was heard on May 12, 1969, and denied on May 13, 1969, following which appeal was duly perfected to the district court on June 12, 1969.
After the death of Katie O. Matthews in June, 1967, the bank account, No. 10-004-8, in the State Bank of Stanley was continued in the name of Charles K. Matthews only, and he continued to make deposits and withdrawals therefrom. On or about the 1st day of November, 1968, Charles K. Matthews sold his business known as the Iron Hand Tool Works, including the equipment and inventory, for the sum of $31,000, and the proceeds from the sale upon payment were deposited in account No. 10-004-8.
Prior to the 4th day of November, 1968, Marvis Kos was not authorized of record to withdraw funds on tihe checking account established in the name Iron Hand Tool Works. On November 4, 1968, there was delivered to the State Bank of Stanley a “Depositor’s Contract and Signature Card” (plaintiff’s Exhibit 1) entitled:
“Iron Hand Tool Works C. K. Matthews or Marvis Kos”
The format was identical to defendants’ Exihibit A. It bore the date of November 4, 1968, and under “Remarks” had the number of an account, 10-004-8. The signatures of C. K. Matthews and Marvis Kos were subscribed twice on the front of the card at the place provided for signatures. It was signed at the place provided on the reverse side of the card by Marvis Kos only. On the face of the card the space provided to indicate the kind of account was left blank.
The trial court found the Depositor’s Contract and Signature Card marked plaintiffs Exihibit 1 was not completed and was ambiguous. It thereupon heard extrinsic evidence to determine the nature of the account. The substance of the testimony given in the trial court follows:
On Saturday, November 2, 1968, at the request of Marvis Kos, one Laura Fisher, a teller at the State Bank of Stanley, drove to the Matthews residence at Bucyrus and took a new signature card to Charles K. Matthews. The Depositor’s Contract and Signature Card, which is in evidence as plaintiffs Exihibit 1, was undated but had the typed heading as it now appears showing that the name of Marvis Kos had been added. Marvis Kos was present when the card was delivered, and the card was not then signed but laid on the table. Laura Fisher showed the card to Charles K. Matthews, calling his attention to the fact that Marvis Kos’ name had been added on the heading.
Charles K. Matthews was not feeling well at this time and entered the hospital on Monday, November 4, 1968, at 7:00 a. m. The card was signed by C. K. Matthews at about 5:30 or 6:00 a. m. on November 4, 1968, in the presence of Marvis Kos. On cross-examination Marvis Kos testified her father “was real anxious to get it signed so he could go to the hospital.” The reason he gave for not signing the back side of the card was, according to the testimony of Marvis Kos, “I have signed it twice on the front, and that’s enough. It’s yours when I’m done with it anyway and there’s no use of me signing anymore.”
The card (plaintiff’s Exhibit 1) was picked up at the business location of the Iron Hand Tool Works by Laura Fisher for the State Bank of Stanley, subsequent to a telephone call from Marvis Kos, and it was returned to the bank.
Laura Fisher said she typed plaintiffs Exhibit 1 based on the conversion she had with Marvis Kos, that Mr. Matthews wanted her to sign checks on the account; that there were some bills that needed to be paid, and Mr. Matthews was not able to sign checks at this time. According to Laura Fisher Mr. Matthews did not tell her what kind of an account he wanted; he just said he needed Marvis’ signature on it so she could take care of bills when he wasn’t able. She told both Mr. Matthews and Marvis there would have to be signatures on the reverse side of the card. (Plaintiff’s Exhibit 1.)
Without instructions Laura Fisher dated and put the former account number (10-004-8) on the card and it was classified by the bank as a “business account,” such classification being for the bank’s convenience. Laura Fisher testified she did not notice the blank space on the face of the signature card, “and that is an oversight on my part, because I probably would have typed in ‘Joint’, taken it from the other card.”
The business of Charles K. Matthews ceased being an active business in early October, 1968, and was sold on November 1, 1968, but Laura Fisher did not know the business had been sold when she filed the card. (Plaintiff’s Exhibit 1.)
Subsequent to November 4, 1968, Charles K. Matthews wrote no checks on the account, while Marvis Kos wrote ten checks on it between that time and her father’s death. She also wrote two checks after his death. About December 1, 1968, an agent of the realtor who negotiated the sale of the business took a check for the purchase price to Charles K. Matthews at the hospital where he endorsed it, with the realtor then depositing the check to the account in question at the State Rank of Stanley.
After the death of Charles K. Matthews on December 10, 1968, the bank refused to honor a check drawn on the account by Marvis Kos to close the account, and returned the check to her marked “Principal Deceased.”
Marvis Kos testified her father wanted these papers (plaintiff’s Exhibit 1) completed and “he said the account will be yours when everything is over. He did in fact say that the account would be mine.” She further testified when her name was added to the account there was approximately $1,200 to $1,500 in the account.
Marvis Kos testified at the time of her father’s death she held one other bank account with her father at the First National Rank at Louisburg; that she had been on that account for about a year and there was $853.08 in the account. She withdrew that amount of money from that bank. There was also another account at the Anchor Savings and Loan Association in Overland Park as joint tenants, which she and her father had. The passbook was given in both of their names, and her father terminated the joint tenancy account with the Anchor Savings and Loan Association. Marvis found this out when going through the papers at the house after his death.
Ella Kline had a discussion with Charles K. Matthews in the middle of October, 1968, concerning a bank account. The conversation took place in the shop at Stilwell. Mr. Matthews complained to her that he had not been feeling well and she suggested that he wasn’t getting any younger. She then testified, “I suggested that he be sure to have all his legal affairs in order and without any further prompting from him, he said he did have, that through a will, Alice was taken care of and anything in the bank belonged to Marvis.”
The president of the State Bank of Stanley, James McAnelly, testified that Charles K. Matthews had only one account with the bank and it had account No. 10-004-8; that he had no personal knowledge of any of the circumstances surrounding the signing or the preparation of plaintiffs Exhibit 1 bearing the date of November 4, 1968. That as a general practice the bank requires, before it will honor any checks drawn on an account, a signature card, with a signature on the front of the card, as well as on the reverse side of the card. He never had any conversation with Charles K. Matthews as to what kind of an account was to be established by the card signed November 4, 1968. He was familiar with the $29,000 deposit on December 2, 1968, by the real estate agent (a down payment having previously been made).
He further testified defendants’ Exhibit A was the signature card which existed on the account prior to the filing of plaintiff’s Exhibit 1. He said, “The bank cannot transfer funds from one account to another simply by the signing of a signature card. There would have to be a check drawn on the prior account. There was no check drawn here.” He said, “The bank usually requires even in a convenience signature situation, that both the owner’s signature and the convenience signature be on the front and the back of the card as well, in order to have the contract completed. It has to be signed on both sides to be a completed contract. I am not saying that Mr. Matthews could not have signed checks in this matter, because we have another card in our file that he signed on the back. Plaintiff s Exhibit Number I does not supersede Defendants’ Exhibit A. I consider the Plaintiff’s Exhibit Number I a total nullity.”
The first point raised by the appellant is a procedural matter, one which this court has never been called upon to determine, where the ownership of funds in a bank account is disputed. The procedural history of the case, therefore, becomes significant.
After the probate court determined the matter adversely to the appellant, she changed counsel to perfect her appeal to the district court. Thereafter, her counsel filed in the district court of Johnson County, Kansas, a motion for summary judgment, alleging in substance that plaintiff’s Exhibit 1 filed with the State Bank of Stanley November 4, 1968, was clear and unambiguous on its face and established the ownership of the account in Marvis Kos. This motion was overruled November 3, 1969.
After the guardian ad litem filed his answer, counsel for the appellant on November 5, 1969, filed a motion praying that the district court find and determine that this was an action to; bring property into the estate, rather than to take property out of the estate, alleging that the probate court had no jurisdiction to hear said action. It requested the district court to dismiss the action on the ground that the probate court had no jurisdiction, or in the alternative, prayed that the district court compel the executor to file amended pleadings to accurately present the question concerning the ownership of the account to the district court, that is, to frame the matter as an action to bring property back into the estate of C. K. Matthews. The appellant also requested the district court to find and determine that under K. S. A. 58-501, at least one-half of the bank account at the State Bank of Stanley, Kansas, account No. 10-004-8, be set aside to Marvis Kos.
On the 7th day of November, 1969, after a hearing the trial court overruled the appellant’s, motion for dismissal, and also overruled her alternative motion to compel the executor to file proper pleadings. It deferred any ruling on K. S. A. 58-501.
After the trial in which both the appellant and the appellees presented evidence the trial court determined (1) that no inter vivos gift was made by C. K. Matthews to Marvis Kos of the account; (2) that there was no joint tenancy account created; and (3) that the appellant would take nothing under the operation of K. S. A. 58-501. Accordingly, it entered judgment for the executor.
The appellant contends the trial court erred in overruling her motion seeking to dismiss the action on the ground that the probate court had no jurisdiction, and in overruling her alternative motion requesting the district court to compel the executor to file amended pleadings to accurately present the question concerning the ownership of the account to the district court.
Generally speaking, when the purpose of an action or claim is to bring something into an estate of a decedent, that is, when an estate has a claim which its personal representative is attempting to enforce, the action is to be filed in the district court or some other court of competent jurisdiction. (In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879; Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887; and authorities cited in these cases.) The appellant contends this is not an attempt to get property out of the estate of Charles K. Matthews, deceased.
The appellant characterizes this action as one in which the executor lists as an asset of the estate property which it knows stands in the name of another, being Marvis Kos, as a portion of the inventory of the estate. The appellant relies on In re Estate of Slaven, 177 Kan. 185, 277 P. 2d 580. There, when the administrator of the estate qualified, he found deeds to various parcels of real estate executed by the decedent in her lifetime in the hands of grantees named therein with the grantees in possession of the real estate. Delivery of the deeds was accomplished prior to the death of the decedent but they were not placed of record until five days after her death. There was some litigation over the appointment of an administrator and he was not actually appointed until after the record title to the tracts of land stood in the names of various grantees. The administrator proceeded to place such real estate on the inventory, and the grantees named in the deeds filed motions to strike such property from the inventory. The court held the action was to adjudicate the title to real estate and had for its purpose bringing property into the estate, and that the action was one in which the probate court did not have jurisdiction.
For reasons hereafter stated, we do not think the Slaven case controlling and find it distinguishable.
First, the jurisdiction of the probate court to determine the matter in the instant case is moot. The only advantage the appellant might possibly gain from a favorable decision on the point, after having appealed the matter to the district court, would be to shift the burden of proof to the executor. Here the appellant in the probate court requested that court to, adjudicate the subject bank account a joint tenancy account, and that it be stricken from the inventory filed by the executor. The probate court’s jurisdiction was never questioned and no appeal was taken to the district court on that issue. The jurisdictional point was first raised by the appellant’s motion in the district court on November 5, 1969, after appeal had been perfected, wherein she asked the district court to dismiss her action on the ground tihat the probate court had no jurisdiction, or to require pleadings which, in effect, would shift the burden of proof to the executor. The probate court was never requested to certify the appellant’s petition to the district court because it was without jurisdiction under the provisions of K.S.A. 59-2402.
In the Slaven case the jurisdiction of the probate court was challenged, and it thereupon certified the question to the district court.
Assuming the question is here for determination at this time, in the Slaven case the title to the tracts of real property in question stood in the names of the heirs by reason of deeds which had been executed and delivered to them by the decedent in her lifetime. Here the appellant’s assumption that the funds in the bank account in question stood in the name of Marvis Kos is not an established fact, but an issue to be determined. It is the ownership of these funds which is controverted. Whether the instrument upon which the appellant relies (plaintiff’s Exhibit 1) is ambiguous or not is an issue to be determined, and, if so, what does the extrinsic evidence establish? There is also a .question as to whether the funds claimed by Marvis Kos were in the account evidenced by plaintiff’s Exhibit 1. In other words, whether the probate court had jurisdiction is dependent upon the determination of independent questions of fact and law. The issues were all determined adversely to the appellant in the district court. On the basis of these determinations, if affirmed, the executor in this case properly inventoried the funds in question as part of the estate of C. K. Matthews, deceased, and the burden of the proof was cast upon the appellant in the district court to establish her claim to the funds in the account.
Various procedures have been used in recent cases where the ownership of funds in a bank account was questioned, but the jurisdiction of the probate court was never challenged. In the case of In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286, modified on rehearing 203 Kan. 262, 452 P. 2d 286, the executor included the disputed bank account in his inventory of the assets of the estate and the claimant petitioned to strike it from the inventory. In the case of In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443, the funds in a disputed savings account were not inventoried, and the heirs of the decedent raised the issue by an answer to the adminstrator’s petition for final settlement. In the case of In re Estate of Fast, 169 Kan. 238, 218 P. 2d 184, the action was instituted in the probate court by the surviving joint tenant filing a claim against the estate.
By the pleadings filed in the district court here, the appellant was permitted to enlarge and expand the issues to be decided beyond the scope of the issues determined in the probate court. We shall consider these issues in the order in which the appellant presents them on appeal.
The appellant contends the trial court erred as a matter of law in overruling her motion for summary judgment and in determining that the Depositor s Contract governing account No. 10-004-8 with the State Bank of Stanley was ambiguous. The appellant contends the account card (plaintiff’s Exihibit 1) upon which she relies, is unambiguous and reflects on its face that Marvis Kos is the owner of said account.
It is the appellant’s position that Marvis Kos is the only signatory to the Depositor’s Contract, although C. K. Matthews and Marvis Kos were authorized to draw on the account. It is argued that the failure of C. K. Matthews to sign the Depositors Contract establishes that he is not the depositor and in no way has any claims on the account, and therefore, the owner of the entire account is clearly, unequivocally and unambiguously Marvis Kos, not as surviving joint tenant, but on the basis that she is the depositor who owned the account.
The “Depositor’s Contract and Signature Card” constitutes a contract in writing between the depositor and the bank, and the nature of the contract is to be determined as of the time die account is established. (In re Estate of Smith, supra.)
If it becomes necessary to go beyond the written evidence of such contract to establish the intention of the depositor, the inquiry should be confined to the time the contract was entered into, without reference to subsequent events or circumstances, since it is only the intention of the depositor at the time of the creation of the account that is material. (See Brewer v. Schammerhorn, 183 Kan. 739, 332 P. 2d 526.)
The fallacy in the appellant’s position with respect to the “Depositor’s Contract and Signature Card” upon which she relies (plaintiff’s Exihibit 1) is that the depositor’s contract which she alone signed specifically makes reference to three types of account, one paragraph being devoted to each — joint accounts, partnership accounts and corporation accounts. With the signatures of C. K. Matthews and Marvis Kos appearing on the face of the exhibit, and a blank space left where the type of the account was to be noted, the instrument is ambiguous. The omission can be supplied only by parol evidence confining the inquiry to the time the contract was éntered into.
When this is done, what funds does the evidence disclose that Marvis Kos deposited? There is no evidence that she deposited any money to this particular account. The fact that the account, if any, evidenced by plaintiff’s Exhibit 1, is numbered 10-004-8, is of no significance. This particular number was assigned by the bank to the account evidenced by defendants’ Exhibit A, solely for the convenience of the bank. There was no agreement or understanding between the bank and Charles K. Matthews when plaintiff’s Exhibit 1 was executed. Furthermore, the evidence discloses there was no transfer of funds from the individual account of Charles K. Matthews evidenced by the “Depositor’s Contract and Signature Card” (defendants’ Exihibit A) carried in joint tenancy with his wife, prior to her death. The funds were in the account evidenced by defendants’ Exhibit A, which stood in the name of C. K. Matthews, when plaintiff’s Exhibit 1 was filed with the bank.
The testimony of Laura Fisher to the effect that she would have written the word “Joint” on the face of plaintiff’s Exhibit 1 in the space provided, had she noted the omission, is immaterial. Such testimony does not evidence an intention of Charles K. Matthews with respect to the establishment of the account, if any, created by plaintiff’s Exhibit 1.
The appellant’s motion for summary judgment was properly overruled by the trial court, and it did not err in determining that plaintiff’s Exhibit 1 was ambiguous.
The appellant’s contention, that the trial court erred in determining that no valid inter vivos gift was made of account No. 10-004-8 by C. K. Matthews to Marvis Kos, is also premised upon the “Depositor’s Contract and Signature Card” evidenced by plaintiff’s Exhibit 1.
The appellant cites the court to Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878, particularly Syllabus ¶ 3, wherein the court set forth the requisites to establish a valid gift inter vivos, stating there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee. The gift must be absolute and irrevocable.
The evidence argued by the appellant to support her position on this point is based on her testimony, that her father was adamant that she get a card to establish the bank account with her name on the account, so that upon his death the appellant would take what was in the bank; and the. further testimony that her father refused to sign the Depositor’s Contract even though urged to do so on the basis that his signature on the front of the card was sufficient. This evidence, it is argued, clearly indicates the intention of Charles K. Matthews that the account was to be a gift at the time to Marvis Kos. The appellant also relies on the testimony of Mrs. Kline in mid-October, 1968, concerning a conversation she had with Mr. Matthews involving his property in which he indicated everything was taken care of and that anything in the bank would be Marvis Kos’.
The trial court found no valid inter vivos gift was made to Marvis Kos of the funds on deposit in account No. 10-004-8 by Charles K. Matthews, and the record discloses sufficient evidence to support the finding.
Assuming that the trial court believed the testimony of Marvis Kos that on November 4 her father stated to her, “I want that card and I want to sign it because that’s yours in case anything happens,” and assuming that the decedent was referring to his death, this does not indicate an intention on his part to make a delivery of his account to Marvis Kos unconditionally, which is a requisite to establish an inter vivos gift. Can it be said Charles K. Matthews prior to his death placed beyond his control ownership in the proceeds of the subject account? He could up to the day of his death still have drawn upon the account, even to the extent of withdrawing all of the proceeds by his check if he so desired.
The refusal of Charles K. Matthews to sign his name on the reverse side of plaintiff’s Exhibit 1 would imply that he did not intend to make a gift or establish a joint tenancy. By the appellant’s own testimony, she stated that he had previously terminated a joint tenancy account with her at the Anchor Savings and Loan Association in Overland Park. This, and the prior joint tenancy-account with his wife, would substantiate that he knew what a joint tenancy account was, and particularly the survivorship effect of such account.
Mr. Matthews also had another bank account with the First National Bank in Louisburg in joint tenancy with the appellant, which was in existence for approximately one year prior to his death. In mid-October, 1968, when he had a conversation with Ella Kline can it be said Mr. Matthews did not have in mind the Louisburg bank? He was still doing business in mid-October, and the sale of his business was not consummated by contract until November 1, 1968, the bulk of the proceeds therefrom not having been deposited until December 2, 1968.
The testimony of Mrs. Fisher fortifies the fact that Mr. Matthews had knowledge as to the requisites necessary to establish a joint tenancy account. According to Mrs. Fisher, when the appellant appeared at the bank and requested that Mrs. Fisher bring a signature card to the decedent’s home, for him to sign with Marvis Kos, the only purpose stated was the bills had to be paid and Charles K. Matthews was not able to sign the checks. Charles K. Matthews stated to Mrs. Fisher the reason he wanted Marvis Kos’ signature on the card was so that she could take care of bills when he was not able.
The mere expression of a desire on the part of the owner of a two-party bank account that the survivor should have the funds upon his death is not legally sufficient to affect a transfer of title at his death, nor is it sufficient as a gift. (Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723.)
The appellant contends the trial court erred in determining that the Depositor’s Contract and Signature Card governing account No. 10-004-8 (plaintiff’s Exhibit 1) did not create a joint tenancy between C. K. Matthews and Marvis Kos.
Whether a joint tenancy bank account is created in the name of a depositor and another must be determined on contract principles. (In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.) The all-important factor in the establishment of a valid joint tenancy bank account is the clarity with which the intent of the depositor is expressed at the time the transaction is initiated. (In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286, Syl. ¶ 7; Miller v. Higgins, 188 Kan. 736, 336 P. 2d 257; and K. S. A. 58-501.)
It has been said that if the depositor executes an account signature card which contains as part of its provisions an agreement in clear and unambiguous language that a joint tenancy account with the right of survivorship was intended, then such an account is created and the agreement is enforceable according to its terms. In such case, the signature card constitutes a contract in writing between the depositor and the bank, and parol evidence of an understanding at variance with its terms cannot be considered. (In re Estate of Smith, supra; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; and In re Estate of Johnson, supra,) When, however, the language of the written instrument signed by the depositor is uncertain or ambiguous, parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the instrument is admissible in order to clarify the intention of the depositor at the time of the creation of the account. (In re Estate of Johnson, supra.)
Without question in this case plaintiff’s Exhibit 1 was ambiguous as a matter of law, and the trial court did not err in so finding and in hearing extrinsic evidence.
It has been held that when a two-party account is opened without the use of a signature card or an instrument in writing signed by the depositor, a valid joint tenancy account between the depositor and bank may nevertheless be proved by parol evidence if the terms of the agreement clearly disclose that a joint tenancy was intended to be established. (In re Estate of Johnson, supra.)
The provisions of K. S. A. 58-501 do not preclude proof by oral evidence of an oral joint tenancy contract, but require that the terms of such contract clearly disclose that a joint tenancy was intended to be established. (Edwards v. Ledford, 201 Kan. 518, 441 P. 2d 834.)
Many of the authorities reveal fact situations where all parties, including representatives of the bank, met and entered into an agreement, either oral or written, whereby a joint tenancy account was created. (See Simonich, Executrix v. Wilt, supra.)
Other authorities reveal fact situations where the purported surviving joint tenant had little or no knowledge of the creation of the joint tenancy estate, thereby giving rise to a donee beneficiary situation resulting from the contract between the depositor and the bank. (Spark v. Brown, 167 Kan. 159, 205 P. 2d 938; Asche v. Matthews, 136 Kan. 740, 18 P. 2d 177; Miller v. Higgins, supra; and In re Estate of Smith, supra.)
There is no evidence in this case that the decedent, Charles K. Matthews, conveyed an intention to create a joint tenancy to the State Bank o£ Stanley when plaintiffs Exhibit 1 was filed with the bank. The only evidence touching upon this point is the testimony of Laura Fisher as to a conversation with the decedent sometime previous to her visit at the home, when she delivered plaintiff’s Exhibit 1. At that time Charles K. Matthews stated to her he needed the signature of Marvis Kos on the account so she could take care of the bills when he was not able. At no time did he ever tell Laura Fisher or any other official at the bank what kind of an account he wanted. This is further corroborated by the testimony of the appellant when she appeared at the bank and stated that her father wanted her name on the account becausé there were some bills that needed to be paid, and that her father was not able to sign checks at this time.
From the foregoing it is apparent the trial court did not err in finding the evidence insufficient to clearly express the intention of Charles K. Matthews to establish a joint tenancy as required by K. S. A. 58-501. (In re Estate of Johnson, supra; and Edwards v. Ledford, supra.)
The testimony of Laura Fisher that it was an oversight on her part that she did not type the word “Joint” in the blank space provided on plaintiff’s Exhibit 1, by taking “it from the other card,” is not clear and convincing evidence. She received no such directions even though she recalled telling the appellant and Charles K. Matthews at the time she delivered the signature card (plaintiff’s Exhibit 1) that there would have to be signatures on the reverse side.
The officials of the State Bank of Stanley were not entitled to speculate or guess as to what kind of an account was to be created by plaintiff’s Exhibit 1. In the case of In re Estate of Johnson, supra, it was said:
“. . . In our opinion, the words ‘joint account’ standing alone without further explanation do not imply a true joint tenancy was intended to be established. . . .” (p.697.)
There it was held on rehearing, since the Depositor’s Contract and Signature Card was ambiguous for lack of signatures on the reverse side, parol evidence was admissable on a retrial to ascertain the intent of the depositor. (In re Estate of Johnson, 203 Kan. 262, 452 P. 2d 286.)
An analogous case on the facts and the issues here presented is Pace v. First National Bank of Osawatomie, Kansas, 271 F. Supp. 230 (D.C. Kan. 1967).
Here Charles K. Matthews during his life had executed his will and the primary beneficiary was Joan . Alice Matthews, an incompetent daughter, who was represented throughout all of these proceedings by her guardian ad litem. Upon a careful review of the record it cannot be said the trial court erred in finding that plaintiffs Exhibit 1 did not create a joint tenancy between C. K. Matthews and Marvis Kos.
Lastly, the appellant contends that in the event the trial court was not erroneous in its rulings concerning the' ownership of the account being in Marvis Kos, as a result of either construction of plaintiffs Exhibit 1, her theory of an inter vivos gift or joint tenancy, then the trial court erred in determining, as a matter of law, that K. S. A. 58-501 did not create a cotenancy in said account between Marvis Kos and Charles K. Matthews, which would entitle Marvis Kos to one-half of the proceeds in said account.
The appellant takes the position that 58-501, supra, establishes a statutory right to a minimum of one-half of the account in situations where there has been a grant or devise of real or personal property to two or more people. The appellant calls our attention to the fact that the statute does not say may create but says shall create in them a tenancy in common, so long as there has been a grant or devise of the property.
The appellant stresses the delivery of plaintiff’s Exhibit 1 to her from the decedent and argues this signifies an intention to create a tenancy in common, distinguishing it from Pace v. First National Bank of Osawatomie, Kansas, supra.
The appellant also stresses that she was the only one who wrote checks upon the account after plaintiffs Exhibit 1 was returned to the State Bank of Stanley.
The difficulty with the appellant’s theory is that it assumes there to have been a grant, transfer or an agreement establishing an intent to create ownership of property in two or more persons. Under the circumstances here presented this is a question of fact which must be established by competent evidence.
In Pace v. First National Bank of Osawatomie, Kansas, supra, the court held:
“Where evidence was inadequate to establish joint tenancy accounts, title to one-half of the accounts did not exist in plaintiff as a tenant in common since same evidence surrounding institution of the accounts also negatived any claim of title or property right in plaintiff at that time. K. S. A. 58-501.” (Syl. ¶ 9.)
Upon all the evidence presented by the record we cannot say the trial court erred in finding that Marvis Kos was not a tenant in common with Charles K. Matthews on the bank account in question. The evidence supports the trial court’s finding that the signature of Marvis Kos was placed upon the account for the convenience of Charles K. Matthews only.
Accordingly, the burden of proof was properly cast upon the appellant in the trial of the issues in the district court.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from a decision of the Wyandotte County Board of Social Welfare denying welfare benefits to the appellant, Helen Powers, under the Aid to the Disabled Program. Welfare benefits were denied because of appellant’s refusal to submit to a medical examination as required by the regulations of the State Department of Social Welfare. Appellant is a member of the Wyandotte County Tabernacle Holiness Church and her religious beliefs do not permit her to submit to a medical examination. On September 12, 1969, appellant applied to the Wyandotte County Board of Social Welfare for assistance in the form of Aid to the Disabled. Her application was denied because she refused to take the medical examination required. Applicant then requested a fair hearing before an appeals committee of the State Department of Social Welfare. The reasons stated for the appeal were in substance that nothing in the Social Security Act required her to take a medical examination and, if so, the requirement of a medical examination constituted a violation of her First Amendment right to freedom of religion. Pursuant to K. S. A. 75-3306 and department regulations J. J. B. Wigglesworth was appointed as referee to conduct the hearing. Mr. Wigglesworth was a member of the legal staff of the State Department of Social Welfare. On December 10, 1969, a hearing was held in Wyandotte County on the appeal with Wigglesworth serving as referee. At this hearing there was non-medical testimony presented to the effect that Mrs. Powers had physical disabilities consisting of deafness, limited capacity to use her hands, failing eye sight, arthritis in her back, and varicose veins. To substantiate her physical condition appellant offered only the testimony of herself and her two sons, Joe and Jordan, and that of her minister, Rev. Henry Utter, of the Wyandotte County Holiness Church. In addition Mrs. Mary L. Burton, the caseworker assigned to appellant’s case, testified that Mrs. Powers was ineligible for Aid to the Disabled because she refused to take the medical examination required by the regulations of the State Department of Social Welfare. Mrs. Burton testified that to her knowledge the only reason Mrs. Powers did not submit to the medical examination was because of her religious beliefs. There was no medical testimony presented since Mrs. Powers had re fused to submit to a medical examination. On January 22, 1970, the referee, Wigglesworth, made his recommendation to the appeals committee. He recommended that the appeals committee make a finding that there was insufficient evidence to conclude that either the applicant was disabled or that she was not disabled. He pointed out in his recommendation that without a medical examination he could not determine the extent of appellant’s health problems or whether singularly or together they would constitute disability as defined in the regulations of the State Department of Social Welfare and applicable statutes. On January 27, 1970, by a memorandum decision the State Appeals Committee affirmed the decision of the Wyandotte County Board of Social Welfare denying Aid to the Disabled benefits to the applicant. The basis of its decision was the failure of appellant to submit to a medical examination as required by the regulations of the State Department. On February 3, 1970, appellant appealed the decision of the Appeals Committee to the District Court of Wyandotte County pursuant to K. S. A. 60-2101. On February 9,1970, the appellee State Department moved to dismiss the appeal claiming that the Wyandotte County District Court did not have jurisdiction over the matter. The basis for the motion was that the order appealed from was an administrative order rather than a judicial or a quasi-judicial order and therefore an appeal could not be taken under K. S. A. 60-2101. The question of the venue of the appeal was not presented in this motion. On February 18, 1970, the appellant moved to have J. J. B. Wigglesworth disqualified as attorney representing the State Department of Social Welfare in the district court on the grounds that he had previously acted as referee during the fair hearing. On March 10, 1970, the district court overruled the motion to dismiss holding that under K. S. A. 60-2101 the appellant had the right to appeal to the district court. The motion of appellant to disqualify Mr. Wigglesworth as attorney for the State Department was denied and he continued to represent the State Department of Social Welfare in all further proceedings in district court.
On March 12, 1970, the appellee State Board filed an answer in which among other defenses it contended that the venue of the appeal was improper for the reason that K. S. A. 60-2101 (a) requires a hearing in “the county in which such judgment or order was entered” and that county is Shawnee County rather than Wyandotte County, Kansas. On May 6, 1970, a hearing was held before the District Court of Wyandotte County at which time appellee orally moved to dismiss the case on the ground of improper venue. This motion was overruled. The appeal was then presented to the court on the record and the appeal was taken under advisement. On June 3, 1970, the district court entered judgment affirming the ruling of the Appeals Committee of the State Department of Social Welfare and denied relief to the appellant. Appellant filed a motion for a new trial which was overruled. A timely appeal was then taken to this court. The State Department of Social Welfare also filed a cross-appeal raising the jurisdictional questions previously presented to the trial court and overruled.
Since the cross-appeal filed by the State Department of Social Welfare raises jurisdictional issues it is appropriate to consider those points first. The points raised by the appellee and cross-appellant are as follows:
(1) The district court erred by finding that the appeals committee of the State Board of Social Welfare exercises judicial or quasi-judicial functions within the meaning of K. S.A. 60-2101 (a) holding thereby that the district court has jurisdiction for an appeal from the appeals committee.
(2) The court erred in finding that the venue for such an appeal was in Wyandotte County rather than in Shawnee County.
K. S. A. 60-2101 (a) provides that a judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. The issue to be determined under this point is whether or not the State Appeals Committee of the State Department of Social Welfare in denying welfare benefits is exercising judicial or quasi-judicial functions. If so, an appeal may be taken to the district court; if not, the district court has no jurisdiction under K. S. A. 60-2101 (a) to take an appeal from that tribunal. The test to be applied in determining whether an administrative agency performs a judicial or quasi-judicial function is set forth in Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966. In the Gawith case it is stated that a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter. It is clear that in the present case the order of the State Appeals Committee denying Aid to Disabled benefits was quasi-judicial within the meaning of K. S. A. 60-2101 (a). The State Appeals Committee is required by K. S. A. 75-3306 and by the regulations of the State Department of Social Welfare, K. A. R. 30-7-17 and K. A. R. 30-7-19, to receive and weigh evidence, to apply existing statutes and regulations and to malee a determination of the applicant’s right to receive welfare benefits. In the instant case the State Appeals Committee further determined that the appellant’s rights, both statutory and constitutional, had not been violated by the requirement that she submit to a medical examination since the State Appeals Committee rejected appellant’s contentions by denying her disability benefits. These actions taken by the State Appeals Committee in affording a fair hearing to an applicant for welfare benefits clearly constitute the exercise of judicial or quasi-judicial functions within the meaning of K. S. A. 60-2101 (a). Hence the decision of the district court holding that it had jurisdiction to take this appeal from the Appeals Committee pursuant to K. S. A. 60-2101 (a) was entirely correct.
The trial court did not err in finding that the venue for the appeal was in Wyandotte County rather than Shawnee County. In the first place K. S. A. 60-610 provides that objection to the venue of an action shall not be allowed except on timely motion made and for grounds established before trial of the action is commenced on the merits. In this case the appellee, State Board, filed its answer setting forth the defense that the venue of the appeal was improper for the reason that any appeal should have been brought in Shawnee County rather than Wyandotte County. K. S. A. 60-212 (b) provides in substance that every defense in law or fact to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
“(1) Lack of jurisdiction over the subject matter;
“(2) lack of jurisdiction over the person;
“(3) improper venue; . .
It is further provided in K. S. A. 60-212 (b) that a motion making any of these defenses shall be made before pleading if a further pleading is permitted. On the face of it it would appear that there is a conflict between the provisions of K. S. A. 60-212 (b) which permits every defense to be included in an answer and the provisions of K. S. A. 60-610 which states clearly that objection to the venue shall not be allowed except on timely motion made and for grounds established before trial on the action is commenced on the merits. In order to reconcile these statutory provisions it would seem reasonable to construe them to permit a party to set up the defense of improper venue in his answer or other responsive pleading but also to require him to file a timely motion and to establish his grounds therefore before the commencement of the trial on the merits. The rule of statutory construction is that a specific provision controls over a general provision incidentally covering the same subject matter. (Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772.) In this case the appellee State Department of Social Welfare set up the defense of improper venue in its answer but faded to present a timely motion to the district court before the case came on to be heard on the merits. Here the objection to the venue should not be allowed since appellee failed to comply with the provisions of K. S. A. 60-610. However in any event the trial court ruled properly in holding that the venue of this case was in Wyandotte County and not Shawnee County.
It should be noted that K. S. A. 60-2101 (a) provides in substance that an appeal brought thereunder is perfected by filing a notice of appeal with the administrative tribunal and then causing copies of the proceedings to be “filed with the clerk of the district court of the county in which such judgment or order was entered.” [Emphasis supplied.]
Here Wyandotte County was the proper venue for the appeal from the decision of the State Appeals Committee since Wyandotte County was the county in which the judgment or order appealed from was entered. Under the regulations of the State Department of Social Welfare the county board is required to maintain one or more intake offices where applications for welfare assistance may be made, (K. A. R. 30-3-1 and K. A. R. 30-3-3). It is the responsibility of the county board of social welfare to receive such applications for assistance, to investigate them, and to determine eligibility or ineligibility of the applicant within 30 days of the application date. (K. A. R. 30-3-5.) The county board makes the initial decision either approving or denying welfare benefits. (K. A. R. 30-3-17.) The county board is required by statute to keep records on applications for public assistance (K. S. A. 39-713 [d]) and to maintain files containing information about each individual case (K. S. A. 39-713 [g]). K. S. A. 75-3306 provides that an applicant who has been denied welfare benefits has an absolute right to appeal to an appeals committee designated by the State Board of Social Welfare. The State Department of Social Welfare has adopted K. A. R. 30-7-14 requiring that all state hearings shall be held in the county in which the appellant resides unless other special arrangements are necessary. The regulations of the State Department do not declare where the Appeals Committee shall meet or arrive at is decision. It should also be noted that after making its decision the Appeals Committee is required to prepare a written opinion stating its decision and the facts, rules, law, and reasons upon which it is based. Copies of the decision must be delivered to the appellant and to the county board. The county department must act upon the. decision and recommendation of the Appeals Committee within 30 days after the decision has been rendered. Until the decision of the Appeals Committee has been received and filed with the county welfare department there could be no “entry of judgment” within the meaning of K. S. A. 60-2101. K. S. A. 60-258 (b) provides that if the form of the judgment is to be settled by a journal entry or other document it should be filed with the clerk and such filing should constitute the “entry of judgment” and it shall not be effective before such filing. It is, of course, important to determine when judgment has been entered since an appeal must be taken from an administrative agency exercising quasi-judicial functions within 30 days of its entry. Under the statutes cited and the regulations of the State Department of Social Welfare it seems clear that there can be no “entry of judgment” until the decision of the Appeals Committee has been filed with the county welfare department. Hence the venue for this appeal is properly in Wyandotte County where appellant resides, where the application for welfare benefits was originally filed and denied by the Wyandotte County Welfare Department, where the hearing on appeal was held and where the State Appeals Committee was required to file its decision. It follows that the district court was correct in this case in holding that the venue for this appeal was in Wyandotte County rather than in Shawnee County, Kansas.
It having been determined that the district court had jurisdiction to act in this case we can now turn to the contentions of appellant on this appeal. The appeal relies upon four points:
(1) The Social Security Act, 42 U. S. C., Chapter 7, exempts an applicant for Aid to the Disabled benefits from taking a medical examination when the applicant objects thereto for religious reasons.
(2) The trial court erred in its interpretation of the First Amendment to the Constitution of the United States which prevents any state from making any law affecting the free exercise of religion.
(3) The trial court erred in its interpretation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in that the decision has the effect of discriminating between applicants for various types of public assistance on solely religious grounds.
(4) The trial court erred in overruling the appellant’s Motion to Disqualify the Attorney of Record for the Defendant because such action denied appellant due process as required by the Fourteenth Amendment.
Appellant’s first point requires an interpretation of certain sections of 42 U. S. C., Chapter 7. Chapter 7 is divided into 19 subchapters which cover the various federal welfare programs. Included within Chapter 7 are two sections which specifically exempt an applicant for certain designated welfare benefits from taking a medical examination when the applicant objects thereto for religious reasons. The two sections are 42 U. S. C. § 1396f and 42 U. S. C. § 715 which are nearly identical in phraseology and which provide as follows:
“Nothing in this subchapter shall be construed to require any State which has a plan approved under this subchapter to compel any person to undergo any medical screening, examination, diagnosis, or treatment or to accept any other health care or services provided under such plan for any purpose (other than for the purpose of discovering and preventing the spread of infection or contagious disease or for the purpose of protecting environmental health), if such person objects (or, in case such person is a child, his parent or guardian objects) thereto on religious grounds.”
Both of these sections were added to the Social Security Act in January 1968. Section 715 is included in Subchapter V which is concerned with only Maternal and Child Care Health and Crippled Children Services. Section 1396f is found in Subchapter XIX which is concerned exclusively with Grants to States for Medical Assistance Programs. There are no other subchapters in Chapter 7 of 42 U. S. C. which exempt applicants from taking a medical examination where they object thereto on religious grounds. In this case the appellant made application for welfare benefits under Sub-chapter XIV which is concerned exclusively with Grants to States for Aid to the Disabled. It should be noted that the wording of 42 U. S. C. § 1396f and 42 U. S. C. § 715 specifically restricts their application to the subchapter in which each is placed. If Congress had intended these provisions to apply to all of tihe programs included under Chapter 7 it would have been a simple matter to include in Chapter 7 a general provision exempting all applicants for welfare benefits of any type from undergoing medical examinations where objection was made on religious grounds. Congress could also have placed a similar exemption in Subchapter XIV if it had intended the exemption to apply to applicants for Aid to the Disabled benefits. This the Congress failed to do. We have concluded that appellant’s first point is without merit and that an applicant for Aid to the Disabled benefits under Subchapter XIV of the Social Security Act, 42 U. S. C., Chapter 7, is not by statute exempted from taking a medical examination when the applicant objects thereto for religious reasons.
The appellant as her second point contends in substance that the requirement of a medical examination as a condition of eligibility for receiving Aid to the Disabled benefits violates the appellant’s freedom of religion as guaranteed by the First Amendment to the Constitution of the United States and as applied to the State of Kansas through the due process clause of the Fourteenth Amendment. It is clear from the record in this case that the appellant’s refusal to submit to a medical examination was based upon her religious beliefs as a member of the Wyandotte County Tabernacle Holiness Church. Under the provisions of K. S. A. 1971 Supp. 39-708 and K. S. A. 75-3304 the State Board of Social Welfare is granted the power to determine the general policies relating to all forms of social welfare and to make appropriate rules and regulations pertaining thereto. Pursuant to this statutory authority the State Board has adopted rules and regulations setting forth requirements of eligibility for welfare assistance under the various welfare programs. As applied to the Aid to the Disabled program, the State Board has adopted regulations which in substance provide that in order for an applicant to be eligible for Aid to the Disabled benefits the applicant must be found to be permanently and totally disabled by the State Appeals Committee on the basis of medical and social findings submitted by the county welfare department. This requirement of eligibility is set forth in Kansas Public Assistance Manual, Section 1123.121. The stated purpose of requiring the medical examination is so that medical evidence may be available to determine whether or not the applicant has a permanent and total disability which would make the applicant eligible for Aid to the Disabled benefits. In the Kansas Public Assistance Manual, Section 1123.12, a requirement is made that medical evidence must show that a physical, mental or emotional impairment of major importance exists; that the impairing condition is one that is not likely to improve because the condition is not apt to respond to any known therapeutic procedures or because treatment that might lead to improvement is unavailable and unadvisable; the etiology of the impairing condition if it can be determined; and the extent to which the impairment curtails normal activity such as mobility, walking, lifting, use of senses, ability to learn, ability to act purposely, etc.
One of the precepts of Mrs. Power’s religion is that faith in God will cure an impairment of any physical disability. Starting with this statement as a premise appellant argues that to compel her to undergo a medical examination as a condition to receiving Aid to the Disabled benefits constitutes a violation of her First Amendment guarantee of freedom of religion. We, of course, accept the principle that every individual has a right to worship according to the dictates of his own conscience. The Fourteenth Amendment safeguards religious liberty from state interference. The cases, however, make a distinction between religious beliefs and religious practices. Freedom to believe is absolute but freedom to act is not absolute but limited and qualified. (State v. Garber, 197 Kan. 567, 419 P. 2d 896, cert. den. 389 U. S. 51, 19 L. Ed. 2d 50, 88 S. Ct. 236.) A State acting through the police power may reasonably limit the free exercise of religion for the protection of society. Where the exercise of legislative power comes into conflict with the freedom of religion, the validity of legislation will depend upon the balance of the factors affecting the public interest. The individual cannot be permitted on religious grounds to be the sole judge of his duty to obey laws enacted in the public interest. (State v. Garber, supra.) Each case involving an alleged invasion of the constitutional right of freedom of religion must be determined on its individual facts. Stated in another way a state in providing services for its people may provide them on a condition which is contrary to the religious scruples of some; but the condition imposed must be reasonable and must be justified by some compelling state interest. (Sherbert v. Verner, 374 U. S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790.)
The real issue presented under this point is whether the regulation of the State Board of Social Welfare requiring a medical examination as a condition for receiving welfare disability benefits is reasonable and is justified by some compelling state interest. In this case we are, of course, faced with the problem of accommodating between the rights of the state acting through the police power and the right of the appellant to her religious freedom as guaranteed by the constitution.
There is no contention presented here that the State Department of Social Welfare does not have the power to establish rules and regulations to govern eligibility for Aid to the Disabled and to prescribe appropriate procedures for eligibility to be determined. The requirement of a medical examination for applicants seeking Aid to the Disabled is in substance simply a procedural rule of evidence which prescribes a method of proof to establish a determination of fact in a quasi-judicial hearing. The issue of fact to be determined is whether or not the applicant is permanently and totally disabled within the meaning of the applicable statutes. The important state interest which is involved in this situation is described clearly and unequivocally by Justice Rlackmun in Wyman v. James, 400 U. S. 309, 27 L. Ed. 2d 408, 91 S. Ct. 381:
“The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance.
“One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well expect more, because of the trust aspect of public funds, and the recipient, as well as the caseworker, has not only an interest but an obligation.” (pp. 318, 319.)
In Wyman v. James, supra, the Supreme Court of the United States held that the right to gain entry to and inspect a home of an applicant for welfare assistance is a reasonable requirement and does not violate Fourth Amendment rights under the United States Constitution.
The cases today generally recognize that where there is an adversary proceeding involving the physical or mental condition of a claimant a requirement of a medical examination as a basis for proof of disability does not offend constitutional liberties. For example Rule 35 of the Federal Rule of Procedure grants to the Federal Courts the power to order a party to submit to a physical or mental examination by a physician in any action in which the mental or physical condition of a party is in controversy. K. S. A. 60-235 gives similar powers to the trial courts of Kansas. Such statutory provisions are quite common throughout the United States. The constitutional validity of such procedural rules has been attacked at various times since these rules have been adopted. They are generally upheld on the theory that the invasion of the person involved in a physical examination is outweighed by the need for such examinations in the interest of truth and justice. The United States Supreme Court has held Rule 35 constitutional and not in violation of any substantive constitutional right. (Sibbach v. Wilson & Co., 312 U. S. 1, 61 S. Ct. 422, 85 L. Ed. 479; Schlagenhauf v. Holder, 379 U. S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152.)
Statutory provisions requiring a medical examination for persons claiming physical or mental disabilities are likewise quite common throughout the United States in the area of workmen’s compensation. In Kansas K. S. A. 1971 Supp. 44-515 requires a claimant for workmen’s compensation to submit to a medical examination. If the injured employee refuses to submit to a medical examination, then his right to workmen’s compensation is suspended until he does so. (K. S. A. 44-518.) Likewise provisions in various types of insurance policies which require a medical examination in order for insurance benefits to be collected have been consistently upheld in the face of constitutional objections. See for example the annotation in 5 A. L. R. 3d 929, where many cases are cited. When we consider all of these cases it would seem to follow by analogy that a medical examination may be reasonably required of an applicant for welfare disability benefits as a condition precedent for him to become eligible for such benefits. Under the rules and regulations of the State Department of Social Welfare the applicant for Aid to the Disabled benefits is entitled to a medical examination by a doctor of his choice if he so desires. Another factor important to note is that an applicant for Aid to the Disabled benefits cannot be compelled to submit to a medical examination. Here the choice is entirely the appellant’s; she is fully within her rights to refuse to undergo a medical examination but in asserting this right she will be denied welfare benefits. We hold that the requirement of a medical examination as a condition of eligibility for receiving Aid to the Disabled benefits does not violate appellant’s freedom of religion.
Appellants third point is that the requirement of a medical examination for an applicant for Aid to the Disabled benefits under Title XIV and the exemption from a similar medical examination for applicants for medical care under Title XIX and applicants for Maternal or Child Health or Crippled Childrens Services under Title V constitutes a violation of the equal protection clause under the Fourteenth Amendment to the United States Constitution. The contention here of course, is that this constitutes an invidious discrimination as between applicants for different types of welfare benefits. It is, of course, within the police power of the state to establish classifications when a real, logical and substantial basis exists for the classification. (Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200.
The equal protection of the law clause does not restrain the normal exercise of governmental power but only abuse in the exertion of such authority. That clause is not offended against simply because as the result of the exercise of the power to classify some inequality may be occasioned. (Martin v. Davis, 187 Kan. 473, 357 P. 2d 782, appeal dism. 368 U. S. 25, 7 L. Ed. 2d 5, 82 S. Ct. 1, reh. den. 368 U. S. 945, 7 L. Ed. 2d 341, 82 S. Ct 376; Louisville & Nashville R. R. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676.) The issue to be determined here is whether or not there is a reasonable basis for applying different rules of eligibility to applicants for different types of welfare benefits. We have no hesitancy in holding that the Medical Assistance program under Title XIX and the Maternal and Child Health program under Title V are sufficiently different in nature and scope from the Aid to the Disabled program under Chapter XIV to justify different requirements of eligibility and different procedures to establish the same. In the first place the medical assistance and child and health programs are not concerned with disability or inability to engage in gainful employment. They are concerned solely with medical treatment and maternal and child health. Benefits -under these programs are obtainable even though an applicant is not permanently and totally disabled and even though an applicant may be able to derive some income from his own endeavors. On the other hand the Aid to the Disabled program is concerned exclusively with the applicant’s permanent and total disability, both at the time the original application is made and at subsequent points in time when the state of his physical and mental health is required to be periodically reviewed. It is clear that the ultimate purpose and scope of each program sufficiently differs from the others to justify different eligibility requirements and procedures to establish the same. We therefore conclude that the appellant has not been denied equal protection of the law under the Fourteenth Amendment to the Constitution of the United States.
In her fourth point the appellant contends that the district court erred in refusing to disqualify J. J. B. Wigglesworth as attorney for the State Department of Social Welfare in all proceedings in the district court. Appellant’s position is that she has been denied due process of law under the Fourteenth Amendment to the Constitution of the United States because Mr. Wigglesworth served as the referee at the fair hearing before the State Appeals Committee and he therefore should have been disqualified as attorney for the appellee in the proceedings before the district court. The appellant takes the position that a referee is a quasi-judicial officer who is appointed to exercise judicial powers by taking testimony, hearing evidence, and reporting his findings. It is further contended that the administrative hearing is quasi-judicial in nature and that the constitutional guaranty of due process of law applies to such proceedings. (Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 473 P. 2d 72.) One essential element of due process of law is that the hearing officer or referee be impartial. (Long Beach Fed. S. & L. Ass’n v. Federal Home Loan Bk. Bd., 189 F. Supp. 589.) Appellant points out that under the Canon 36 of the Canons of Professional Ethics a lawyer should not accept employment as an advocate in any matter upon the merits which he has previously acted in a judicial capacity. A similar provision is contained in the Code of Professional Responsibility adopted by this court on February 11, 1970, effective July 1, 1970. The specific provision applicable is Canon 9, DR 9-101 (A) (205 Kan. xci).
It is undisputed here that Mr. Wigglesworth served as referee at the “fair hearing” conducted on December 10, 1970. At that time he heard the testimony of the witnesses and made recommendations to the Appeals Committee. His specific recommendation was as follows: “There is insufficient evidence to conclude either that appellant is disabled or that she is not disabled”. This exact recommendation was adopted by the State Appeals Committee by its memorandum decision dated January 27, 1970. Subsequently Mr. Wigglesworth served as attorney for the State Department of Social Welfare in the proceedings before the District Court of Wyandotte County, Kansas. We have no hesitancy whatsoever in holding that it was highly improper for the State Department of Social Welfare to assign Mr. Wiggles-worth to serve in the capacity of its attorney after he had previously served in the same matter as referee. Under the regulations of the State Department of Social Welfare the referee is selected by the State Board to conduct its hearings. (K. A. R. 30-1-1 (145).) The regulations invest in the referee a number of powers which are clearly judicial in nature. A referee has the right to approve persons who may attend the hearing and issue subpoenas. (K. A. R. 30-7-16.) Under K. A. R. 30-7-17 the referee is required to advise the parties of the procedure to be followed, to make a preliminary statement of the issues, to receive evidence reasonably related to the issues involved, to establish the competence of witnesses, to adjourn the hearing, and to conclude the hearing when he is satisfied that all pertinent information bearing upon the appeal has been introduced and examined. The referee also is required to make recommendations to the State Appeals Committee. These powers are, for all practical purposes, the same as those granted masters under K. S. A. 60-253. These powers are those customarily performed by judicial officers and it cannot be seriously maintained that Mr. Wigglesworth, as the referee who conducted the fair hearing, was not a judicial officer and acting as such. Were there issues of fact involved on this appeal grave issues of due process of law may well have justified a reversal of this case and a new trial. Mr. Wigglesworth clearly should have been disqualified to serve as attorney for the appellee in the district court. His appearance as an advocate was clearly in conflict with his former quasi-judicial position. The issues presented in this case, however, are pure issues of law and not issues of fact. It is undisputed in the record that Mrs. Powers refused to undergo a medical examination in accordance with the regulations of the State Board of Social Welfare. The validity of such a regulation is strictly a question of law. Hence the impropriety of Mr. Wigglesworth’s serving both as a referee and as an advocate should not affect our decision in this case. We emphasize however that the State Board of Social Welfare was clearly guilty of an impropriety in assigning Mr. Wigglesworth to represent it in a case in district court in which he had previously served as referee. (O’Carroll v. Civil Aeronautics Board, 144 F. 2d 993.) The court wishes to make it clear that it is not questioning the integrity or the fairness of Mr. Wigglesworth or the manner in which he handled the hearing provided to appellant by the appellee. We only wish to emphasize that decisions of an Appeals Committee of the State Department of Social Welfare should not be tainted by the appearance of partiality. Procedures should be established by the State Department to protect the creditability of the fair hearings provided applicants for welfare in this state. We wish to make it clear that in the future a procedure which permits a referee or quasi-judicial officer to represent a party in subsequent proceedings in the same case will not be sanctioned by this court.
For the reasons set forth above we find no reversible error in the record. The issues to be determined below were exclusively questions of law and we find that they were properly determined by the learned trial judge. It follows that the judgment is affirmed.
IT IS SO ORDERED. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the appellant was charged as principal and as an accessory before die fact with the offense of aggravated assault upon a guard at the Kansas State Penitentiary (K. S. A. 21-431). Judgment and sentence were pronounced after the appellant entered a plea of guilty.
On the 7th day of October, 1968, a guard by the name of Travis J. Adams was seriously injured by bricks and a large piece of cement that were dropped on him from above in one of the cell houses at the Kansas State Penitentiary. Numerous inmates were charged with felonious assault, among them the appellant. All of the inmates under suspicion were put in solitary confinement and were only removed from such quarters to go to court.
The complaint against the appellant was filed on March 28, 1969, in the city court of Leavenworth. The complaint was read to him on the 7th day of April, 1969, and he appeared without counsel for a preliminary hearing on the 10th day of April, 1969. As a result of the preliminary hearing the appellant was bound over to the Leavenworth County district court to stand trial on the charge of felonious assault.
On the 24th day of April, 1969, an information charging the appellant with felonious assault was filed in the district court of Leavenworth County, and on the 5th day of June, 1969, an attorney was appointed to represent him. Thereafter the various motions were filed by the appellant as follows: On July 17, 1969, he filed a motion to quash the information; on November 17, 1969, he filed a motion to be removed from solitary confinement; on the 16th day of December, 1969, he filed a motion for a psychiatric evaluation; and also on the 16th day of December, 1969, he filed a motion to require the state to elect as to whether the state would proceed against him on the charge as a principal or as an accessory. In due course the trial court, after having given the appellant an opportunity to be heard on these motions, denied all of them. However, it gave the appellant an opportunity upon request to present any evidence as to his incompetency to stand trial. The final action on these motions was taken on the 8th day of January, 1970.
On the 16th day of January, 1970, the appellant appeared in the district court of Leavenworth County with his court-appointed counsel and entered a plea of guilty to the offense of felonious assault as charged in the information. The trial court found the plea of guilty was voluntarily, knowingly and understandingly made, and found the appellant guilty as charged in the information. The appellant was thereupon sentenced to confinement for not less than one nor more than ten years, said sentence to run consecutively to any sentences pursuant to which he was in confinement. From the conviction and sentence appeal has been duly perfected, assigning four specifications of error.
The appellant first contends the trial court erred in denying his motion to require the state to elect "whether the defendant acted as a principal or accessory as charged in the information.”
K. S. A. 21-105 (repealed July 1, 1970) was the law applicable to the appellant herein. It provides as follows:
“Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall upon conviction be adjudged guilty of the offense in the same degree and be punished in the same manner as herein prescribed with respect to the principal in the first degree.”
The trial court held the appellant was not charged with separate and distinct offenses, and that the state could not be compelled to elect under these circumstances. In this the trial court did not err.
In State v. Yohe, 203 Kan. 855, 457 P. 2d 12, this court discussed 21-105, supra, as follows:
“Our statute removes any common-law penalty distinctions for participating in a crime as an accessory before the fact or as a principal in the second degree. An accessory before the fact and a principal in the second degree are guilty of the offense and are to be punished the same as the principal in the first degree. . . .” (p. 857.)
There is nothing in the record to show that the failure of the tidal court to require the state to elect was prejudicial to the appellant. He was charged with only one offense and he pleaded guilty.
The appellant next contends the trial court erred in refusing to require the prison officials at Lansing, Kansas, to remove him from solitary confinement pending trial. It has been held that confinement in isolation and segregation alone is not sufficient to support a determination that a plea of guilty is not freely and voluntarily entered. (Knight v. State, 203 Kan. 652, 455 P. 2d 578; Davis v. State, 204 Kan. 372, 461 P. 2d 812; Lee v. State, 204 Kan. 364, 461 2d 794; and State v. Jenkins, 197 Kan. 651, 421 P. 2d 33.)
While the argument of appellant’s counsel seems to indicate that he was subjected to some hardship by virtue of his confinement in the Adjustment and Treatment Building, there is nothing in the record to show he was subjected to such hardship as would tend to overbear his will or tend to induce a coerced or involuntary plea of guilty. The record does not reflect the appellant was subjected to any physical abuse by the prison officials, nor that he was subjected to any threats or promises that he would be released from the Adjustment and Treatment Building if he entered a plea of guilty.
In this case the appellant had the advice of counsel prior to and at the time he entered his plea of guilty. The trial court determined the appellant’s plea was freely and voluntarily given at the time it was entered, and the appellant made no objection at the time of allocution. (See Craig v. State, 198 Kan. 39, 422 P. 2d 955.)
The appellant also complains that tihe trial court erred in refusing to order a psychiatric examination pursuant to K. S. A. 1969 Supp. 62-1531.
The foregoing statute (repealed July 1, 1970) was the law applicable at the time the appellant entered his plea of guilty. It provides in part as follows:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state security hospital for safekeeping and treatment; . . .”
Counsel for the appellant contends when a prison inmate is placed in solitary confinement for long periods of time pending trial he loses touch with reality and has difficulty assisting counsel in the defense of the action. It is argued that a preliminary investigation should be made where the trial court learns from observation, reasonable claim or credible source that there is a real doubt as to the defendant’s mental condition to comprehend his situation or make his defense.
An accused is presumed to be sane for the purpose of standing trial, absent a finding in accordance with the provisions of the above statute. (McQueeney v. State, 198 Kan. 642, 426 P. 2d 114, and cases cited therein.)
In State v. Childs, 198 Kan. 4, 422 P. 2d 898, the mental ability of an accused to stand trial was discussed as follows:
“In this jurisdiction the sanity of an accused, for the purpose of his being put 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 accused 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. 62-1531; Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197; State v. Wheeler, 195 Kan. 184, 403 P. 2d 1015; State v. Cox, 193 Kan. 571, 396 P. 2d 326, cert. denied 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350; State v. Kelly, 192 Kan. 641, 391 P. 2d 123; State v. Severns, 184 Kan. 213, 336 P. 2d 447.)” (pp. 7, 8.)
Here the trial court saw the defendant at the time of trial and correctly stated the law in its memorandum opinion. The trial court' in its memorandum stated that no allegation was made or evidence presented in support of the appellant’s motion to indicate that he was insane, unable to comprehend his position, or unable to make his defense. Furthermore, the trial court stated it would permit the appellant to present any evidence in support of his motion for a psychiatric examination to determine his competency to stand trial, but none was presented. The district court, being fully aware of the appellant’s mental condition by reason of his solitary confinement, found no real doubt as to the appellant’s mental capacity to stand trial.
The court stated in Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197:
“. . . Many shades and degrees of mental illness may appear in the disposition of a criminal case. Evaluation thereof is best left in the sound discretion of the trial court which is in much better position to do so than an appellate court. . . .” (p. 726.)
We cannot say the district court abused the exercise of its power of discretion in denying the appellant’s motion for an order requiring that he be given a psychiatric examination.
Lastly, the appellant contends the failure to appoint an attorney to represent him at the preliminary hearing was error.
This court has repeatedly held that under Kansas procedure an indigent accused does not have a constitutional right to counsel at his preliminary hearing, and failure to provide counsel at such time is not error in the absence of a showing of prejudice to the substantial rights of the accused. (Stewart v. State, 206 Kan. 147, 476 P. 2d 652, and cases cited therein.)
The record herein fails to show any evidence indicating the appellant’s rights were prejudiced by his failure to have an attorney appointed for him at the preliminary hearing.
It must also be noted that an accused’s voluntary plea of guilty to the charge against him constitutes a waiver of any alleged irregularities occurring at the preliminary stage of the proceedings. (Allen v. State, 199 Kan. 147, 427 P. 2d 598.)
The judgment of the lower court is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order of the district court summarily denying relief on petitioner’s motion under K. S. A. 60-1507.
On November 13, 1967, petitioner entered pleas of guilty to two counts of sodomy. (K. S. A. 21-907 [now 1971 Supp. 21-3505, 21-3506.]) The record shows that before accepting the pleas of guilty, the trial court made careful inquiry concerning petitioner’s comprehension of his position and his understanding of the charges. The court further questioned petitioner concerning any plea negotiations that might have taken place in this regard and informed petitioner that any understanding had between his counsel and the prosecutor was in no way binding on the court. On motion of the State, Count I of the information was dismissed prior to petitioner entering his pleas of guilty to Counts II and III. In view of the statements made by petitioner, the court accepted the pleas of guilty and directed that imposition of sentence be postponed pending a presentencing report.
A presentencing report, which included the report of an examination by the Shawnee County Probation Department psychiatric clinic, was received by the trial court and petitioner with his counsel appeared before the court on December 8, 1967. After receiving evidence of prior convictions petitioner was sentenced to concurrent terms of fifteen years, pursuant to K. S. A. 21-907 and K. S. A. 21-107a [now 1971 Supp. 21-4504].
In March of 1970 petitioner filed the motion which initiated these proceedings.
On April 14, 1970, the trial judge examined the motion and the records of the case and filed a memorandum decision in which each point raised by petitioner was carefully considered and found to be without merit. Thereafter counsel was appointed and this appeal perfected.
Petitioner specifies three points of error on appeal. He first contends the trial court erred in failing upon its own initiative to appoint a sanity commission to determine whether petitioner was mentally capable of understanding the nature of his pleas of guilty.
It has long been the rule in this jurisdiction that the necessity for an inquiry whether an accused has the mental capacity to properly defend himself is a question to be resolved within the discretion of the trial court and its decision will not be disturbed absent a showing of abuse of judicial discretion. In Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197, we held:
“It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on its own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion." (Syl. f 6.)
See, also, State v. Smith, 206 Kan. 403, 479 P. 2d 840; McQueeney v. State, 198 Kan. 642, 426 P. 2d 114; and State v. Childs, 198 Kan. 4, 422 P. 2d 898.
In the instant case the responses of petitioner, when interrogated by the court, were dear and responsive. Nothing was said by petitioner that would give the trial court any reason to question his mental capacity. In its memorandum decision on petitioner’s motion the trial court points out that at the time of the sentencing it had at hand the report of the psychiatric clinic of the Shawnee County Probation Department, and that the report stated “Mr. Johnson shows normal intelligence and no indication of gross thinking disorder.” The trial court further noted that the report referred to “show beyond a question that defendant was lucid and understood fully his past history and the circumstances of the acts of sodomy.” Petitioner has failed to show any abuse of discretion in this regard.
Petitioner’s second contention that the trial court erred in not determining on its own initiative that the petitioner’s pleas of guilty were not voluntarily and understandingly made was not argued on appeal. Nevertheless, we have examined the record in this regard and find petitioner’s assertion to be wholly without merit.
Finally, petitioner claims that court and counsel failed to fully inform him of the nature and consequences of the charges against him. In this regard the trial court’s interrogation of petitioner, before accepting his pleas of guilty, conclusively discloses that petitioner made a voluntary and intelligent choice between the alternative courses of action open to him. The record discloses that petitioner was represented by counsel at all times leading up to his pleas of guilty. There is nothing in the record to sustain petitioner’s claim of inadequate representation or that he was not fully informed concerning his position and the consequences of his pleas. (See Jones v. State, 207 Kan. 622, 485 P. 2d 1349; Cox v. State, 205 Kan. 867, 473 P. 2d 106; and State v. Angle, 197 Kan. 492, 419 P. 2d 935.)
An examination of the entire record discloses no reason to disturb the judgment below and it is affirmed.
Prager, J., not participating. | [
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Richard E. Blackwell, and,
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Richard E. Blackwell, Salina, Kansas, was guilty of violating his common-law duty to his client, to-wit: DR 1-102 (A), DR 2-110 (A) (3), DR 6-101 (A) (3), DR 7-101 (A) (2) and (3), as well as DR 9-102 (A) and (B) (4) of the Code of Professional Responsibility (205 Kan. lxxvh), and,
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Richard E. Blackwell be disciplined by “Public Censure” as provided by Rule No. 205 (m) (2), (205 Kan. lxh), and,
Whereas, The said Richard E. Blackwell, pursuant to Rule No. 205 (n) has in writing elected to accept such recommended discipline, and to pay the costs of the proceedings, and,
Whereas, Upon consideration of the record and being fully advised in the premises, the Court accepts the recommendation of the State Board of Law Examiners.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Richard E. Blackwell, be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas reports.
By order of the Court, dated this 30th day of August, 1971. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action pursuant to K. S. A. 60-907 (a) to enjoin the county officials of Wabaunsee County, Kansas, from assessing one-half of the costs of a legal survey to the plaintiffs. The trial court held K. S. A. 1970 Supp. 19-1427 required the assessment of one-half of the costs of such survey against the plaintiffs.
The only question on appeal is the construction of K. S. A. 1970 Supp. 19-1427.
At the pleading stage of the case both the appellants (plaintiffs below) and the appellees (defendants below) filed motions for summary judgment on facts which are not in dispute.
On the 8th day of December, 1969, real estate owned by the appellants was the subject of a legal survey initiated by the county engineer of Wabaunsee County, Kansas. The survey was requested by Walter Mathies, an adjacent landowner to the appellants’ property, pursuant to K. S. A. 19-1423. No appeal was taken from such survey by the appellants as authorized by K. S. A. 19-1426.
On the 9th day of March, 1970, the county commissioners of Wabaunsee County, Kansas, under the authority of K. S. A. 1970 Supp. 19-1427, assessed one-half of the costs of such survey, or $392.75, against the appellants whose lands were situated on the boundary line.
On the 4fh day of May, 1970, the appellants filed this action in the district court of Wabaunsee County, Kansas, seeking to enjoin the county officials of Wabaunsee County from assessing the costs of such survey against them.
Thereafter, on the 12th day of June, 1970, the district court overruled the appellants’ motion for summary judgment and sustained the appellees’ motion for summary judgment, thereby holding as a matter of law that the appellants were required to pay one-half of the costs of such survey. The appellants have duly perfected an appeal to this court from such adverse judgment.
In pertinent part K. S. A. 1970 Supp. 19-1427, provides:
“The cost of replacing all lost government survey comers shall be assessed to the county or township. The county surveyor, upon replacing a government survey corner shall notify the county commissioners of the cost thereof; and such costs shall be paid from the county or township road fund, as determined proper by the county commissioners. The county surveyor, subject to the approval of the county commissioners, shall apportion the actual cost of the survey, after the government corners are reestablished, equitably among the landowners whose lands are situated on the boundary line, according to the respective benefits received: . . .” (Emphasis added.)
Attached to the appellants’ motion for summary judgment is an affidavit of the appellants’ attorney incorporating a letter received from Eugene B. Durr, the county engineer of Wabaunsee County, stating that “no government comers were reestablished” in making the legal survey. The recital of this fact gives rise to the controversy between the parties.
Both parties premise their argument on the fact that the survey was made from already established and existing government corners.
The appellants contend, since no government comers were reestablished, there exists no authority under 19-1427, supra, for apportioning the costs of the survey to the appellants simply because their lands were situated on the boundary line. The appellants argue there is no method of payment provided by statute where lost comers have not been reestablished.
We have been cited to no Kansas case in point nor has our research disclosed any. Two Illinois cases cited to this court do not deal with the point in question.
It is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history. (Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115, and authorities cited therein; and Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219.)
This court has held when the interpretation of a statute (not penal in nature) according to the exact and literal import of its words would defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason disregarding, as far as may be necessary, the strict letter of the law. (Wolf v. Mutual Benefit Health & Accident Association, supra, and authorities cited therein.)
When a statute is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; and Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P. 2d 732.)
The appellants seek to isolate not only 19-1427, supra, from the enactment by the legislature authorizing legal surveys, but also isolate one sentence in the statute and attempt to give it a strained literal interpretation. Fundamental rules of statutory construction to be applied in this situation are well stated in State v. Sumner, 169 Kan. 516, 219 P. 2d 438, where the first three syllabi of the court read as follows:
“In order to ascertain the legislative intent courts are not permitted to consider only a certain isolated part or parts, of an act but are required to consider and construe together all parts thereof in pari materia.
“It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.
“When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.”
G. S. 1949,19-1427 (the source of prior law for K. S. A. 1970 Supp. 19-1427, regarding the apportionment of costs where a legal survey was made) simply stated, “The county surveyor shall apportion the cost of the survey among the landowners interested, according to their respective interests.”
The procedure provided by the legislature for establishing comers and boundaries of land authorizes the owner of a tract of land desiring to permanently establish the comers and boundaries to notify the county surveyor to make a survey thereof and establish such comers and boundaries. (K. S. A. 19-1423.) After proper notice is given to the persons who may be affected by the survey, the surveyor shall proceed to make the survey, take the evidence of any witness who may be produced to prove any point material to such survey, and file such testimony reduced to writing together with an accurate plat and field notes of such survey in the office of the county surveyor. (K. S. A. 19-1425.) Thereafter, any person interested in the survey is authorized within thirty days to appeal to the district court. The court upon hearing the matter to determine the appeal is authorized, for good cause shown, to set aside the report and appoint one or more surveyors, who shall proceed at the time mentioned in the order of the court, to survey and determine the corners and boundaries of the land in question, and shall report the same to the court for further action. (K. S. A. 19-1426.)
The comers and boundaries established in any survey where no appeal is taken from the surveyor s report shall be held and considered as permanently established, and shall not thereafter be changed. When any report of a survey shall have become final the county surveyor is required to record the same in the records of permanent surveys and shall file the same in the office of the register of deeds. (K. S. A. 19-1426.)
It is obvious from the foregoing statutes, if a legal survey is to be made, the established government comers must be ascertained or confirmed and used in making the survey.
In Roadenbaugh v. Egy, 88 Kan. 341, 128 Pac. 381, the court held:
“In a survey, called for the specific purpose of establishing the boundary line between the northwest quarter and the northeast quarter of a certain section, it is the duty of the county surveyor, and of the court on appeal, to relocate the line according to the statutory rules for reproducing United States government surveys.” (Syl. f 1.)
It is apparent when the legislature in 1961 amended 19-1427, supra (L. 1961, ch. 136, § 6), and again amended it in 1967 (L. 1967, ch. 139, § 1) it intended to relieve the landowners, whose lands were situated on the boundary line, of the burden to pay the cost of replacing lost government survey comers where a legal survey was requested. The portion of K. S. A. 1970 Supp. 19-1427, heretofore quoted, is divided. The first sentence specifically imposes the responsibility for paying the cost of replacing all lost government survey comers upon the county or township. It also sets forth the procedure to be followed by the surveyor and the county commissioners in paying for the cost of replacing government survey corners. The second sentence makes no reference whatever to lost government survey corners. It simply provides the method of apportioning that part of the costs of the survey incurred, after government comers are reestablished. The clause “after the government comers are reestablished” in this portion of the statute is not a condition precedent, as the appellants would have us believe, to the apportionment of costs equitably among the landowners whose lands are situated on the boundary line. The condition precedent to making a valid survey to determine a boundary fine is the ex istence of established government comers. If a survey is made prior to or without confirmation of established government corners, it would be of no benefit to anyone, and the costs could not be assessed to the landowners whose lands were situated on the boundary line. (See Reinert v. Brunt, 42 Kan. 43, 21 Pac. 807.)
The word “established” or “reestablished” was not used by the legislature as a word of art with an assigned statutory definition in the sections of the statute heretofore discussed. In 19-1426, supra, the expression used was “to survey and determine the corners and boundaries of the land in question.” (Emphasis added.) It must therefore be construed as having the general definition assigned by usage. A resort to any dictionary will disclose that within the broad confines of the word “establish” there exist many meanings. It may be said an existing government comer is established when its location is ascertained in making a statutory survey. It could properly be said also that an existing government comer is reestablished when its location is ascertained in making a statutory survey. Among the many definitions of the word “establish” is one which defines the term as “confirm, validate.” (Webster’s Third New International Dictionary, Unabridged.)
Upon the foregoing, where a legal survey is made, we construe 19-1427 as requiring the county surveyor, subject to the approval of the county commissioners, to apportion the actual cost of the survey equitably among the landowners whose lands are situated on the boundary line, according to the respective benefits received. The imposition of such costs upon the adjacent landowners is not conditioned upon the reestablishment of lost government survey corners. In other words, there need not be the restablishment of lost government survey corners to impose the costs on adjacent landowners under 19-1427. If there be a cost to restablish lost government survey comers, such costs shall be paid by the county or township. Under the prior law these costs were assessed to adjacent landowners. Under the 1967 amendment in certain counties (not Wabaunsee) such costs may be assessed against the party or parties requesting such survey. (K. S. A. 1970 Supp. 19-1427.)
The legislative change was reasonable because established government survey corners constitute markers that are public in nature, and are placed for the benefit of all to use.
On the conceded facts in this case there was no cost to reestablish lost government comers. The survey was made from established government survey corners which were ascertained and confirmed to be in existence in the course of the statutory survey and in accordance therewith. No appeal having been perfected from the survey, the,costs of the legal survey were properly apportioned equitably among the landowners whose lands are situated on the boundary line.
The appellants argue that under the provisions of 19-1427, supra, costs cannot be assessed to them because they received no benefits by reason of the survey, and that the other landowner exclusively requested the survey. The appellants go beyond the record to argue they were deprived of 1.42 acres of land which they had farmed for years, claimed to own, held out their claim and belief of ownership openly and notoriously, and the survey precipitated a quiet title suit in the district court of Wabaunsee County, Kansas, which is still pending. They contend the survey has been a tremendous detriment and problem to them.
The establishment of a boundary line by legal survey does not deprive a property owner of land because official surveys merely establish boundary lines, and do not determine title to land under controversy. (See In re Moore, 173 Kan. 820, 825, 252 P. 2d 875.)
The results of an official survey are not the criterion upon which to determine whether benefits are conferred upon the adjacent landowners. The boundary line established by an official survey is of equal benefit to adjacent landowners having a common boundary within the statutory meaning of the term “benefit” because it establishes a common survey line. The actual line for title purposes may be established by oiher evidence, but that has no significance in assessing the costs of an official survey.
The reasonableness of the costs incurred in making the legal survey in question is not in controversy.
The appellants have been correctly and lawfully assessed one-half of the costs of the legal survey here in controversy. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order of the district court summarily denying petitioner’s motion under K. S. A. 60-1507.
On July 16, 1968, petitioner entered pleas of guilty to robbery in the first degree (K. S. A. 21-527 [now K. S. A. 1971 Supp. 21-3426 and 21-3427]), and possession of a pistol after conviction of a felony (K.S.A. 21-2611 [now K. S. A. 1971 Supp. 21-4204]). Thereafter petitioner appealed. In an opinion filed on May 9, 1970, this court affirmed both convictions. (See State v. Weathers, 205 Kan. 329, 469 P. 2d 292.)
On July 6, 1970, petitioner filed a motion pursuant to K. S. A. 60-1507 in the district court of Sedgwick county. Petitioner contended the sentences should be vacated because: (1) Count I of the information was defective because it failed to describe the porperty taken in the robbery and (2) Count II of the information was defective because it failed to allege the date of the prior conviction; and further that there was no evidence presented showing that petitioner had counsel on his prior conviction.
On August 11, 1970, tbe district court considered petitioner’s motion, examined the files and records in the case, and ruled in pertinent part as follows:
“Movant raises no issue of fact and no substantial questions of law; therefore, it is not necessary that an evidentiary hearing be held, and it is not necessary that an attorney be appointed to represent Movant.
“The two counts of the Information state the offenses in the language of the statute and allege all elements of the offenses. This is sufficient to confirm jurisdiction on the court.
“On a plea of guilty, it is not necessary to produce any evidence to sustain a conviction.
“The Motion, files, and records of the case conclusively show that Movant is entitled to no relief and that his Motion should be overruled.”
On August 18, 1970, petitioner filed what he labeled a “Motion To Release De Novo,” wherein he reasserted his contentions with respect to Count I. He abandoned his previous contentions as to Count II, and in lieu thereof claimed that the prior felony conviction alleged in Count II could not serve as a basis for a conviction under 21-2611, supra, because he was not afforded counsel on appeal from the denial of a postconviction remedy. (See Weathers v. Hand, 186 Kan. 373, 350 P. 2d 128.) In addition, petitioner claimed for the first time that he did not intelligently and understanding^ enter a plea of guilty for reason of his temporary insanity. In this connection, petitioner directed attention to a report of the Kansas Reception and Diagnostic Center which was filed with the court.
The district court treated petitioner’s second motion as a motion for rehearing and again denied relief on September 8, 1970. After noting that petitioner’s first ground concerning the robbery charge had been disposed of by the previous ruling, the court further ruled in pertinent part as follows:
"Movant’s new grounds raise no substantial questions of fact or law and preliminary hearing is not necessary and it is not necessary to appoint counsel to represent Movant.
“The fact that movant was afforded a pro se appeal from a judgment on a habeas corpus does not void the judgment attacked.
"Movant relies upon the report of the Diagnostic Center to sustain his contention that he was temporarily insane at the time of his plea in this case. The report of the Diagnostic Center does not bear out his contention. There is nothing in the report which indicates that defendant’s mental state would be incompatible with a voluntary, intelligent and understanding plea of guilty.
“Movant’s grounds are without merit and his motion for rehearing should be overruled.”
From this second and last ruling of the district court petitioner appeals.
In his brief petitioner argues three points. He reasserts his contentions concerning Counts I and II of the information; and as a third point he says that if this court does find the district court had jurisdiction on Counts I and II of the information then he claims in the alternative the district court erred in failing to appoint counsel and conduct an evidentiary hearing on the voluntariness of his plea.
At the outset, it should be noted that petitioner was represented by counsel prior to his prehminary hearing and throughout the proceedings in district court. The record shows that petitioner fully understood the charges lodged against him at the time of entering his pleas. The colloquy between petitioner and the court appears as follows:
“The Court: Ail right. In the first count you are charged with robbery in the first degree. How do you plead? Guilty or not guilty?
“The Defendant: Guilty.
“The Court: Are you pleading guilty because you are guilty?
“The Defendant: Yes, sir.
“The Court: In other words, on or about the 17th day of June, you did rob Charley Dahlem or Dahlem’s Texaco, 940 South Broadway, here in Wichita? Is that correct?
“The Defendant: Yes.
“The Court: And in the second count you are charged with having in your possession a firearm on the 17th of June, after having been convicted of a prior felony?
“The Defendant: Yes, Your Honor.
“The Court: Did you have in your possession, a firearm?
“The Defendant: Yes, Your Honor.
“The Court: And you had been convicted of a previous felony in Shawnee County?
The Defendant: Yes, Your Honor.
“The Court: Do you know of any legal reason why sentence should not be pronounced by the Court?
“Mr. Moline: No, sir.”
Notwithstanding his pleas of guilty, petitioner now claims the district court was without jurisdiction because the information did not specifically describe the property taken in the robbery.
We find no merit in petitioner s contention since the elements of the offense are stated in the identical terms of 21-527, supra. Eliminating formalities, the information states that petitioner:
“. . . [Unlawfully, feloniously, wilfully take the property of another, to-wit: Charley Dahlem, belonging to and being the property of Dahlem’s Texaco, 940 South Broadway, Wichita, Sedgwick County, Kansas, in the presence of and against the will of Robert E. Eaton, by putting him, the said Robert E. Eaton in fear of some immediate injury to his person; all of said acts then and there committed being intentional, unlawful, felonious and wilful and being contrary to the statutes in such cases made and provided and being against die peace and dignity of the State of Kansas, K. S. A. 21-527."
The statute in question, 21-527, supra, reads:
“Every person who shall be convicted of feloniously taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.”
The well-established rule in this jurisdiction is that, except in those cases where it fails to state a public offense, thus giving a court no jurisdiction of the matter, the sufficiency of an information must be challenged by appeal and not by habeas corpus or a postconviction proceeding. (Carithers v. State, 207 Kan. 607, 485 P. 2d 1368, and Gray v. Hand, 186 Kan. 668, 352 P. 2d 3.)
In Carithers the distinction was pointed out between a challenge of the sufficiency of an information in a postconviction proceeding after a plea of guilty, and where raised by direct appeal after a trial such as in the cases of State v. Minor, 197 Kan. 296, 416 P. 2d 724, and State v. Baker, 197 Kan. 660, 421 P. 2d 16, cited by petitioner.
In the recent case of State v. Melton, 207 Kan. 700, 486 P. 2d 1361, we said:
“We have consistently held that a plea of guilty freely and voluntarily entered after consultation with counsel and with full knowledge of the possible consequences waives any defects or irregularities occurring in any of the prior proceedings. See State v. Kennelly, 207 Kan. 344, 347, 485 P. 2d 179, Lee v. State, 207 Kan. 185, 483 P. 2d 482; Stewart v. State, 206 Kan. 147, 476 P. 2d 652. This is so even though the defects may reach constitutional dimensions. . . .” (p. 713.)
With respect to Count II of the information, petitioner claims the previous conviction relied upon as a basis for the offense of unlawful possession of a firearm was void because he was not afforded counsel on appeal from a denial of his petition for a writ of habeas corpus, in which he attacked that sentence and conviction. (Weathers v. Hand, supra.)
The previous conviction referred to was had on petitioner’s plea of guilty to an armed robbery in Shawnee County in 1956. Although the appeal to this court in Weathers v. Hand, supra, was by petitioner pro se, this court carefully considered each point raised in the opinion filed therein.
In the Weathers v. Hand opinion it is pointed out that petitioner had counsel at his preliminary hearing in the Shawnee County case and that the same counsel was appointed to represent him when he appeared before the district court, entered his plea of guilty, and was sentenced on April 13, 1956. It was further noted in the opinion that the record in no respect indicated that petitioner’s plea was not voluntary. In his habeas corpus action, petitioner made no claim that he attempted to or desired to appeal from the 1956 conviction and makes no such assertion now. He simply argues that the 1956 conviction should fall because he was not afforded counsel in his appeal in the collateral habeas corpus proceeding.
When entering his pleas of guilty in the instant case, petitioner freely admitted the previous felony conviction in Shawnee County. He offers no excuse nor does he make any explanation of his failure to appeal from that conviction; neither does he give any reason for failing to include the points raised herein in his direct appeal in the instant case. Absent a showing of exceptional circumstances excusing failure to raise matters in a direct appeal, we have consistently held, in accord with our Rule No. 121 (205 Kan. xliv), that a proceeding under K. S. A. 60-1507 cannot be used as a substitute for a second appeal, even though constitutional questions may be involved. (Neil v. State, 207 Kan. 212, 483 P. 2d 1117; Hacker v. State, 207 Kan. 195, 483 P. 2d 484; and Davis v. State, 204 Kan. 816, 466 P. 2d 311.)
For his third point herein, petitioner claims the district court erred in failing to appoint counsel and granting a full evidentiary hearing on the voluntariness of petitioner’s pleas. His argument is that despite the fact the report of the Reception and Diagnostic Center was before the district court, a witness for the Center should have been subpoenaed and a hearing had concerning temporary insanity at the time of his pleas. Here again petitioner offers no explanation why this matter was not raised in his direct appeal. Although what has been said before adequately disposes of petitioner’s contention; we would further note that the district court’s order discloses that the report of the Reception and Diagnostic Center was examined and that nothing in the report indicated that petitioner’s mental state was incompatible with a voluntary, intelligent plea of guilty. It should be further noted that petitioner made no effort to withdraw his plea.
The petitioner’s motion raised no substantial questions of fact or law and no error is shown in the district court’s rulings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The appellant has appealed from his conviction of the offense of escape from the penitentiary without breaking, in violation of K. S. A. 21-734.
The controlling question for our consideration is whether or not an accused imprisoned in the state penitentiary for another offense, who has a criminal charge pending against him in Leavenworth County, is entitled to dismissal o£ the charge for failure of the warden to inform the accused in writing of the charge and of his right to request final disposition thereof, pursuant to the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq.).
A complaint was filed on November 6, 1967, in the City Court of Leavenworth charging appellant with the offense in question. On September 18, 1968, pursuant to an arrest warrant, appellant was brought before the judge of the city court where the complaint was read, preliminary hearing was waived, and appellant was bound over to the district court for trial. Thereupon, appellant was ordered returned to the custody of the warden of the state penitentiary.
An information was filed in the District Court of Leavenworth County on October 25, 1968. Appellant was arraigned on September 22, 1969, and trial was set for October 1. On September 26, a motion to dismiss the information was filed on grounds that (1) the information had been pending in district court more than two terms without appellant being brought to trial, in violation of K. S. A. 62-1431, and (2) the warden had failed to advise appellant of his right to request final disposition of the pending charge, as provided by K. S. A. 62-2901 and 62-2902. On September 30, the motion was denied, appellant entered a plea of guilty, and sentence was duly imposed by the district court.
The parties have stipulated that appellant was incarcerated in the penitentiary during the period September 10, 1968, to September 30, 1969, and that he took no action to cause delay in his case coming to trial. It is further agreed that the provisions of K. S. A. 62-2901 (b) and (c) were not complied with by the warden of the state penitentiary.
Within this factual framework, was appellant denied his right to a speedy trial?
The Kansas Constitution provides in Section 10 of the Bill of Rights that every person accused of a crime is entitled to a speedy trial. In a number of cases this court has said that the right to speedy trial provided for in our Constitution is legislatively defined by the various statutes enacted to supplement the general language of the Constitution and render the constitutional guarantee effective.
At the time the district judge ruled on tifie motion to dismiss, he did not have the benefit of our decisions in State v. Brooks, 206 Kan. 418, 479 P. 2d 893, and Thomas v. State, 206 Kan. 529, 479 P. 2d 897. There, we held that where a prosecution is pending against an accused confined in a state penal institution for another offense, the definition of a speedy trial and the procedure for relief are governed by the provisions of the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq.), and the provisions of K. S. A. 62-1431 have no application. Clearly, appellant was not entitled to an order of dismissal under the latter statute.
The Uniform Mandatory Disposition of Detainers Act was enacted by the legislature in 1959. This act, for the first time, provided a method whereby an inmate of a penal institution could require the disposition of any criminal charges pending against him. The apparent purpose of the legislature in passing the act was to prevent the oppression of a confined prisoner in a penal institution by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the administration of justice by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal cases. (See, State v. Goetz, 187 Kan. 117, 353 P. 2d 816.) The courts in recent times have dispelled the idea that a man already in prison under a lawful sentence is not in a position to suffer from undue and oppressive incarceration prior to trial. As emphasized in Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 607, 89 S. Ct. 575, delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bond upon an untried charge.
We have repeatedly held that to obtain the right of a speedy trial under the Uniform Mandatory Disposition of Detainers Act, the inmate must take affirmative action to comply with all the provisions of the act, otherwise he waives his right to question whether he had a speedy trial. (State v. Brooks, supra; Brimer v. State, 195 Kan. 107, 402 P. 2d 789; State v. Goetz, supra.) The affirmative action required of the inmate, however, is conditioned upon the prison officials having complied with K. S. A. 62-2901 (b). That section of the statute provides that the warden, superintendent or other official having custody of prisoners shall promptly inform each prisoner in writing of the source and nature of any untried indictment, information or complaint against him of which the official has knowledge or notice, and of his right to make a request for final disposition thereof. Section (c) of the statute states that failure of the prison officials to so inform the prisoner within one year after a detainer has been filed shall entitle him to a final dismissal of the indictment, information or complaint with prejudice.
Unlike in Brooks and Thomas, the prosecution here was pending in the same county where the state penal institution was located. Under these circumstances, the district court apparently took the position that the spirit of the act was satisfied inasmuch as appellant had been brought before the city court and, thus, was aware of the complaint pending against him. Such an interpretation, we believe, completely ignores the plain terms of the statute requiring the warden to inform the prisoner in writing of his right to request disposition of any untried charges.
By the enactment of K. S. A. 62-2901 (b), the legislature specifically provided for the manner in which a prisoner was to be informed of his rights under the act. The fact that the prisoner may have been made aware of his rights by his attorney, or from some other source, does not excuse compliance by prison officials with the clear and mandatory language of the statute. If an exception to the statute is to be carved out for those situations where the untried charges are pending in the same county where the state penal institution is located, that is a matter for the legislature, not the courts.
In view of the stipulation that the provisions of K. S. A. 62-2901 (b) and (c) were not complied with, appellant was entitled to dismissal of the information pending against him with prejudice. ■
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The opinion o£ the court was delivered by
Prager, J.:
This is an action brought by the appellee Lyman Munsell to recover damages from the appellant Ideal Food Stores arising out of an incident which occurred on November 12, 1968. Munsell recovered a judgment against Ideal in the total amount of $30,012.45 after trial by jury. Certain facts in this case are not in dispute. Ideal Food Stores, a Division of Allied Supermarkets, Inc., is engaged in the wholesale grocery business and it has an office at Liberal, Kansas. Munsell was employed by Ideal as a truck driver from 1956 until he was discharged on November 12, 1968. On that date at around 10 o’clock a. m. Munsell was requested by Ideal’s superintendent to return to the company offices at around 1 o’clock in the afternoon for a talk. Munsell returned between 1 and 1:30 that afternoon and he was taken by the superintendent to the office of Steve Phillips, Director of Operations for Ideal Food Stores. There Munsell was introduced to Fred Harrison who was area manager of National Business Security Co., a firm engaged in the business of furnishing shopping security services to grocery companies. Munsell was interviewed by Harrison in the presence of his boss, Steve Phillips. There is a sharp difference of opinion as to what happened during the interview which terminated at about 5 or 5:30 that afternoon. At this point it is sufficient to say that at the close of the interview Harrison, the interrogator, had obtained from Munsell a four-page “confession” written in Mun-sell’s own handwriting and signed by Munsell on each page. This statement, written on the stationery of Ideal Food Stores and witnessed by Steve Phillips and Fred Harrison, declared:
“11-12-68
“Dear Steave Phillips.
'1 Lyman Munsell while employed, at the above location have been guilty padding my operatorr time slip and trip report on actual time taken on refueling Hook up and drops loading and unloading.
“for an average of one to one and half hours a week during week of 10-25-68 at the Globe Store Lubbock Texas I falsified my trip report two hours for unloading when in fact I was not present when truck was unloaded L. N. Globe Persenal unloaded the truck.
“during ten years employment with this company I have falisified my time report and trip report for an estimeted 780 hours. (Seven hundred and eighty hours) I recived pay for these horns and at time of falisification I knew it to be wrong.
“I would estimate the total amount of money stolen by me through this method to be one thousand and sixty dollars ($1560.00). during this period I have written many hot checks, knowing at the time I wrote them I did not have money in the Bank to cover them.
“At this date I have four Hot Checks outstanding at the following location Apeo Service Station, Woodward OHa $55.00 dated 10-15-68. an Ideal Foods Service stop. Big top cafe Bllco OHa $5.00 dated, 3-19-68, C. N. Anthonys Perryton Texas. $30.00 date unknown Skellys truck stop Woodward OHa $10.00.
“I write this letter of my own free will and acord.
“I have not received threats or promises from anyone.
“I fully understand the contents of this letter and sighn it freely and voluntarily knowing I do not have to do so without legal counsal and advice and that it is correct and true to the best of my knowlige and beleif.
“I want the Company to know I amy truly sorry for all the trouble I have caused them Maybe I can make it up in Some Way.
“I would like to in some way Repay the 1,5.60.09 one thousand five hundred and sixty, dollars.
“Witnessed by:
Fred Harrison
Steve Phillips 11/12/68
Lyman Munsell.”
After the statement was signed Munsell was discharged from his employment. Following the termination Phillips kept one copy of the signed confession and sent a copy to Mr. Munsell’s union. Harrison kept a copy which was later destroyed by him. It is undisputed that thereafter a meeting was had by the union in which Munsell sought to obtain his reinstatement on the job. Reinstatement was refused.
The appellant Ideal’s version of the “interview” was that it came about because the company officials had been informed of possible wrongdoings and discrepancies on the part of plaintiff. Appellant contends that Mr. Munsell was advised of his rights and that a number of matters were discussed during the interview including the possible misappropriation of company property, padding of time sheets, excessive drinking on the part of plaintiff, various insufficient checks written by plaintiff and dishonesty on the part of the plaintiff. Ideal contends that Munsell was advised not to admit to anything that he did not do and that there were no threats, promises or coercion of any kind involved. Ideal in substance contends that Munsell’s freedom was never restrained in any way during the interview. There were two or three coffee breaks in which Munsell was allowed to leave the building and the statement of Munsell admitting to certain discrepancies and dishonesties was made voluntarily. The “confession” was made by his own desire and the facts stated therein were true according to Munsell. Ideal contends that its manager, Steve Phillips, and its interrogator, Harrison, were at all times acting in good faith, fairly in the usual way. Ideal takes the position that there is really nothing that Munsell has to complain about.
Munsell’s version of the “interview” is vastly different. He contends that he was threatened and abused in the interrogation; that he was verbally hammered and hammered to get him to admit that he had stolen company equipment such as tires and jacks which he denied. At one point Munsell contends that he was warned that there was a warrant out for his arrest and unless he confessed he would be arrested and confined to jail. He denied that he had been advised as to his rights. He was compelled involuntarily to remain during the interrogation. His will was broken down and he was thereby compelled to sign the alleged “confession”.
On March 7, 1969, Munsell filed this action to recover damages against Ideal Food Stores, Fred Harrison and Harrisons employer, National business Security. In his petition the plaintiff set forth four separate causes of action which were in substance as follows:
In Count 1 plaintiff’s theory of recovery was based upon false imprisonment. Under this count plaintiff alleges that he was cross-examined by Harrison for approximately 5K hours with regard to alleged thefts by plaintiff from Ideal. He alleged that repeated demands were made upon him that he sign a confession of his stealing equipment and he was informed that if he did not, he would be placed in jail and prosecuted by the local authorities. He characterized the interview as a “Star Chamber” interrogation under wrongful arrest and continual threats of harassment by Steve Phillips. Munsell further alleged that at approximately 5:30 p. m. he signed a statement coerced and dictated by Harrison which was untrue in many respects, and that he admitted falsifying his time record which was in fact untrue, believing the execution of such statement would terminate the inquisition and he wanted to keep his job. Under Count 1 Munsell also alleged that by reason of the wrongful and false imprisonment he was embarrassed, greatly humiliated and suffered mental and bodily distress and has been greatly injured in his character and reputation and has been unable to obtain employment. He further alleged that the defendant had acted maliciously without good faith and with intent, design and purpose to injure him, well knowing that the restraint was unlawful. Under Count 1 plaintiff sought to recover $15,000 actual damages and $10,000 punitive damages.
Count 2 of the petition set forth the theory of invasion of the right of privacy. Plaintiff alleged that the special interrogator, Harrison, maliciously invaded his right of privacy and that he was coerced and induced by fright and false imprisonment to give a written statement to facts that were untrue. Plaintiff alleges that his coerced statement was sent and maliciously displayed to other persons, particularly members of plaintiff’s union and personnel within Ideal’s organization, and subsequently disseminated throughout the trucking industry without the authority and consent of plaintiff. By way of damages plaintiff alleged that he had been refused further employment with Ideal and that he has been held up to public disgrace and ridicule in the community, that he had sustained and will continue to sustain mental suffering and distress and that he has been deprived of his high standing among his fellow workers and has been refused employment. For the violation of his right of privacy under Count 2 plaintiff sought to recover $15,000 actual and $10,000 punitive damages.
In Count 3 the plaintiff again alleged the allegations of Counts 1 and 2 and further stated that at the time of the commission of the grievances he was a person of good name and reputation; that on or about November 12, 1968, and prior thereto the defendant did maliciously publish false and untrue statements concerning plaintiff which were first distributed through Ideal’s warehouse. He alleged that the coerced written statement was subsequently disseminated throughout the trucking industry in the area and that the material disseminated consisted of false, defamatory, libelous and slanderous words to the effect that plaintiff was a thief and falsified his time records which the defendant knew or should have known were false and untrue. This count is obviously based on the theory of libel and slander and by way of damages plaintiff alleged that he has been greatly damaged in his good name, and has been deprived of public confidence, has been subjected to embarrassment, harassment, humiliation, anxiety and mental suffering and has been the subject of ridicule and scorn. Under Count 3 plaintiff sought to recover $15,000 actual and $10,000 punitive damages.
Count 4 set forth a cause of action based upon wrongful discharge from employment. After realleging the facts heretofore recited in Counts 1, 2, and 3, plaintiff alleged that he was employed by Ideal Food Stores as a truck driver pursuant to a labor management agreement between Ideal and plaintiff’s union. The union contract was in effect and did not terminate until November 2, 1970. Plaintiff alleged that the employment contract was not complied with in that defendant Ideal failed to give plaintiff notice by registered mail of his discharge; that he was denied an investigation as to his discharge; and that he was wrongfully discharged and has been refused work and his wages without just cause. By way of damages plaintiff alleged that he had been denied work under his employment contract and had been refused wages which would amount to $25,800 from November 12, 1968, to November 3, 1970, and he prayed for $25,800 actual damages and $10,000 punitive damages as the result of the wrongful discharge from his employment.
To the petition of the plaintiff the defendant Ideal Food Stores filed its answer to Count 1 admitting that plaintiff was in Ideal’s office on November 12, 1968, and that at that time he did sign a handwritten “statement”. Defendant denied the other allegations in Count 1 of plaintiff’s petition and specifically denied that plaintiff was ever threatened, arrested or imprisoned at the time alleged. As to Count 2 Ideal denied the allegations of plaintiff’s petition and specifically denied that it invaded plaintiff’s right of privacy, maliciously or otherwise. As to Count 3 Ideal denied that it libeled or slandered the plaintiff or that it had disseminated any false or untrue material whatsoever and further alleged that any communications whether written or oral between Ideal and the union relating to plaintiff’s discharge from employment were unqualifiedly privileged and hence will not support a claim for libel or slander. As to Count 4 pertaining to wrongful discharge defendant admitted the existence of the union contract under which plaintiff was employed and denied the other allegations of Count 4. By way of counterclaim defendant Ideal Food Stores sought to recover from the plaintiff Munsell the sum of $1560, the sum of money which plaintiff admitted in his “statement” he had received from defendant Ideal through false pretenses by padding his time reports. Plaintiff Munsell filed an answer to defendant Ideal’s counterclaim denying any indebtedness and specifically alleged that the coerced acknowledgment of indebtedness (referring to the “confession”) was void.
It should be noted that defendants Fred Harrison and National Business Security each filed an answer which denied the four counts of plaintiff’s petition. Later on January 2, 1970, a journal entry of dismissal was filed dismissing the case as to both of those defendants since they had settled with Munsell.
With the pleadings in this rather complex posture the case was brought to trial before a jury on April 21, 22 and 23, 1970. The evidence presented at the trial was hotly disputed. Plaintiff Mun-sell called Steve Phillips to testify. Phillips was the Director of Operations for Ideal Food Stores. It was he who called upon Fred Harrison to come in and interview Munsell. Mr. Harrison or other interrogators had been called in for this purpose 25 or 30 times in the past six years. Phillips recalled a similar interrogation taking place of other employees who were accused of eating Ideal’s fruit and the interrogator obtained and filed statements to that effect. He testified as to certain bad checks that had been written by Munsell in the past. Ideal had received several outstanding bad checks through the past 4 or 5 years. Phillips further testified that a letter was sent to Munsell dated September 17,1967, in regard to insufficient fund checks. The witness testified as to the time slip and driver’s report of Munsell dated October 25, 1968. He testified that Munsell had admitted padding this slip by adding a figure of two hours. Mr. Hawkins, an Ideal employee at Lubbock, Texas, had telephoned Phillips and requested him to check on that padded time slip since he had approved it for only three-fourths of an hour. In regard to the interrogation Phillips testified that it started between 1 and 1:30 in the afternoon on November 12, 1968, and was terminated the same day at approximately 5 or 5:30 p. m. This included the time for breaks which were taken. Mr. Munsell received a written notice that his employment was terminated but it was not sent registered mail. He further testified that Fred Harrison had advised Munsell in preparing the written statement. Phillips indicated that he had discussed Munsell with the president of the union and had informed him that the interview was to take place. A copy of the confession was kept by Harrison and a copy sent to the union. A report was made to the office of unemployment compensation that Munsell had been discharged for falsifying company records and the results were also sent back to the company office in Detroit. Concerning the copy of the statement that went to the union, Phillips testified this was done as definite proof of “what we felt was dishonesty and proof of our legality of discharge of the employee.” On cross-examination Phillips testified that National Business Security was hired by Ideal to check its employees insofar as honesty was concerned to try and weed out the dishonest ones. Phillips further testified that he discharged Munsell from his employment on November 12,1968, the reason being for violation of company policy against dishonesty. Pie described his office where the interview took place as being 14' x 14' with a desk, 3 or 4 chairs and a file cabinet. The chairs were comfortable and there was carpet on the floor. The one door was closed but never locked during the interview. He testified that he never anytime told Munsell he was under arrest, that there were no threats of any kind made, or promises of leniency; that Munsell was paid for his time during the interview. He remembered one break being taken during the afternoon at which time Munsell went to the coffee room. Munsell was advised that he was entitled to counsel and that he could leave anytime he wanted to. Phillips testified that during the interview they discussed the time card, the hot checks, excessive alcoholism and dishonesty. He said plaintiff was advised not to admit to anything that was not true or correct. He said the interview was brought about by complaints of a fellow driver and the call from Lubbock, Texas, concerning the time slip inaccuracy. Two warning letters had previously been sent by Ideal to Munsell. One dated January 24, 1968, was in regard to his failure in getting up which caused a delay in the delivery of groceries. Another letter was sent Munsell regarding delays caused by his failure to arise at the proper time. This second letter was dated February 8, 1968, and was designated as a “final warning.” In regard to Munsell’s bad checks, as far as Phillips knew they had been paid by deducting the amount thereof from Munsell’s expense vouchers. Ideal would then pay the checks.
The testimony of Lyman Munsell differed substantially from Phillips’ version of the interview. He testified that he was 52 years of age with an eighth-grade education. He had been employed with Ideal since 1956 in the capacity of a truck driver. He testified that before November 12, 1968, he had never been arrested or had a drinking problem. He liked his job with Ideal and he thought he had a good truck driving record. As to the interview he testified that he was introduced to the special investigator who told him he was in trouble. As to the padding of the logbook Munsell testified that they discussed how much time he had padded and he finally said he had padded 15 minutes per day, which figured over the years to $1500. He indicated that he did not recall that he had ever been told he could have a lawyer present and he did not think he could have a union representative there. Harrison told him what to write in the confession except the part of being sorry which he put in himself. He testified in substance that he thought he was entitled to be paid during the two horns the trailer was being loaded at Lubbock and it was a reasonable statement. He testified about being embarrassed after being discharged and he felt he was unjustly terminated. He told about having difficulty in getting employment in the trucking industry. At one point Munsell testified that he was advised by Phillips or Harrison that he could go to jail on the insufficient fund checks and that they hammered and hammered on him about selling company equipment such as tires and jacks. They also accused him of selling merchandise off of the trailer. They asked him at one time to go to the coffee room and he was tickled to get out of there because their hammering and hammering “will about beat you to death.” The door was closed but not locked. He was trying to protect his job and did not think he could leave. He thought if he left he would go to jail. At one point Harrison told Phillips to get the warrant because Munsell refused to admit selling merchandise off the trailer. Harrison told him what to write and he did not voluntarily and freely sign the statement. His reason for signing it was as follows:
“I figured if I didn’t sign it, well I’d always got along good with the company and trusted them and thought they did me and this come up and was trying to protect my job and sure as the world didn’t want to go to jail and that’s the reason I signed it.”
Munsell testified that he had been advised by another driver that he was going to get fired even before the day of the interrogation. The substance of Munsell’s testimony was that he was kept in the Ideal Company office involuntarily and against his will; that he was threatened with arrest and promised leniency if he would confess; there was coercion and duress involved in obtaining the statement; that he was not guilty of any dishonesty whatsoever and he should not have been fired. Plaintiff introduced into evidence, exhibit No. 9, which was a complaint about his treatment at the interview dated November 21, 1968, directed to his local union. The nature of his grievance was as follows:
“On Tuesday, November 12, 1968, I was called into Steve Phillip’s office. Steve introduced a man called Fred--Fred stated he was a special investigator. He did not advise me of my rights when he started the following interrogatories or at any time for that matter. He showed me an insufficient fund check I had written and threatened to have me put in jail because of it. They stated that if I would admit to stealing and selling a tire or tires and jack and other merchandise off the trailer they would forget everything. When I would not admit this, because I had not done it, they asked me to step outside. They later called me in and started pressing the question of padding my time sheet. They accused me of padding my time sheet 15 minutes a day which amounts to one coffee break of which everyone is allowed two a day. They dictated a four page letter for me to write stating that I padded my time sheet 15 minutes a day and had me sign it. I did this because I didn’t know what else to do because of the pressure they put on me. I feel I was unjustly accused of stealing and this has caused undue hurt, s/ Lyman Munsell.”
Fred Harrison’s version of the interview differed radically from Munsell’s version. He testified that he advised Munsell as to who he was and that he was not a policeman and that Munsell did not have to sit there and talk to him and could get up and leave anytime. He asked Munsell about selling a tire, jack and property of Ideal Food Stores and Mr. Munsell denied this. He visited with Munsell about the time sheets and Munsell advised him he had been padding his driving sheets since about two years after his employment. Munsell’s exact words were that it would amount to about 15 minutes per day. They then visited about the insufficient fund checks which Munsell readily admitted. Harrison admitted that he had been asked to assist in the wording of the statement by Mr. Munsell, which he did. The statement was dictated by Harrison and Munsell wrote it down. Everything in it was discussed prior to the writing of the statement. Harrison indicated there were two or three breaks during the afternoon at which time Munsell left the room and building. Munsell’s freedom was not restrained in any way and a warrant was never flashed in his face. Harrison never advised Munsell he was under arrest and Munsell never indicated he was under arrest nor did he act frightened in any way. No threats of any kind were made to Munsell. Although the door was closed it was never locked; no weapons were shown. Harrison advised Munsell he could seek the aid of an attorney at any time and Munsell stated he did not need one. Munsell was not forced to give a written statement. Mun-sell himself wrote the part in the statement that he was sorry he had caused trouble and also the part about wanting to repay the $1500. After the statement was made Harrison shook Munsell’s hand. There were other witnesses called by both plaintiff and defendant whose testimony was also conflicting. It is clear that the signed statement was displayed and discussed by Munsefl’s fellow employees at a union meeting.
At the close of the evidence counsel for Ideal submitted a number of requested instructions to the court which were refused before the case was submitted to the jury. In instructing the jury the trial court combined all four of the claims of the plaintiff into a single claim by which plaintiff sought a recovery in the amount of $70,800 actual damages and $40,000 punitive damages. The court submitted a single verdict form covering plaintiff’s claims and another verdict form covering the counterclaim of defendant Ideal. On April 23, 1970, the jury returned a verdict finding for the plaintiff Munsell against the defendant Ideal Food Stores in the amount of $30,012.45 actual damages and $0 punitive damages. The jury also returned a verdict on the counterclaim in favor of defendant Ideal Food Stores and against Lyman Munsell in the amount of $0. The trial court approved the verdict of the jury and entered judgment in favor of the plaintiff on the verdict. Defendant Ideal then filed a motion for a new trial and also a motion for a directed verdict which motions were overruled by the trial court. Ideal then filed a timely appeal to this court.
The appellant Ideal relies upon seven points and numerous sub-points upon each of which a claim of error is asserted. Most of the points are directed against the instructions which the court gave to the jury and the court’s refusal to give certain instructions requested by appellant. Appellant also raises a number of questions of law and also other trial errors.
As its first point on this appeal appellant contends that the court erred in applying the law on libel and slander. It is first urged that the court’s instructions on libel and slander were incomplete, ambiguous and confusing. The appellant contends that the alleged defamatory publication complained of here is a written statement which the plaintiff himself prepared. Appellant relies upon a general rule of law to the effect that a publication of a libelous and slanderous nature is insufficient to support an action for defamation where it is invited and procured by the plaintiff, or a person acting for him in the matter. (50 Am. Jur. 2d, Libel and Slander, § 149, p. 655; Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533.) The jury should have been instructed to the effect that if the plaintiff voluntarily prepared tihe statement with a reasonable belief that it would be disclosed to others, then plaintiff would not be entitled to recover from the defendant under Count 3. If however, the plaintiff prepared the statement as the result of coercion and against his will, then the fact he prepared it would not prevent plaintiff from recovering from the defendant. Obviously, what the rule mentioned contemplates is a situation where a plaintiff voluntarily participates in the publication of a defamatory statement. In that situation the defamation is deemed to be the result of his own voluntary act. We hold that the trial court should have instructed the jury on this point.
As its next ground for error Ideal contends that the delivery of the statement to the union by Ideal was a privileged publication or communication and that the trial court should have given an appropriate instruction in this regard. Privileged communications are often divided into two classes: Absolute privilege, and conditional or qualified privilege. It has been held that absolute privilege is recognized as applying to cases in which the public service or the administration of justice requires complete immunity as in legislative, executive or judicial proceedings, the occasion for the immunity being not so much for those so engaged as for the promotion of the public welfare. (Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P. 2d 396.) A qualified privileged publication is one made on an occasion which furnishes a prima facie legal excuse for making it unless some additional facts are shown which alter the character of the publication. It comprehends communications made in good faith, without actual malice and with reasonable or probable grounds for believing them to be true. Where a defamatory statement is made in a situation where there is a qualified privilege the injured party has the burden of proving not only that the statements were false, but also that the statements were made with actual malice — with actual evfl-mindedness or specific intent to injure. (Stice v. Beacon Newspaper Corporation, supra.) The question whether or not a publication is privileged is a question of law to be determined by the court. In the case at bar the appellant requested a specific instruction pertaining to qualified privilege. We hold that it was error for the trial court to fail to give an appropriate instruction on this subject. The trial court should have ruled as matter of law that the appellant Ideal in its position as an employer had an obligation under its contract with the labor union to make a report of the disciplinary action taken against an employee who was a member of the union. It is well recognized that a communication pertaining to the reasons for discharge of a former employee is qualifiedly privileged if made in good faith by a person having a duty in the premises to one who has a similar interest therein. This is true even though the communication contains a charge of crime. There is an extensive discussion on this subject in 50 Am. Jur. 2d, Libel and Slander, § 273, p. 791. For a case in Kansas involving a communication by an employer setting forth reasons for the discharge of a former employee we note the case of High v. Hardware Co., 115 Kan. 400, 223 Pac. 264. There this court held that the communication was conditionally privileged and that the defamed former employee could not recover from his former employer in the absence of actual malice. We have no hesitancy in holding that in the instant case a delivery by Ideal to Mr. Munsell’s union of a copy of the plaintiff’s statement was qualifiedly or conditionally privileged. Hence the trial court was in error in failing to give an instruction on this subject.
Appellant next urges that the trial court erred in giving Instruction No. 3 which defined libel per se. In the case at bar the statement which was delivered by Ideal to the union as the basis for Munsell’s discharge, clearly constituted an imputation of dishonesty since it charged falsification of driver’s reports and padding of time sheets. It is well nigh universally accepted that imputations made by an employer of dishonesty or unethical practices on the part of his employee are libelous per se. (50 Am. Jur. 2d, Libel and Slander, § 74, p. 578; 6. A. L. R. 2d 1008.) In the case at bar the trial court should have instructed the jury that the charges made by Ideal against Munsell were defamatory as a matter of law rather than giving a general definition of libel per se.
Appellant next complains that the trial court’s Instruction No. 4 did not adequately cover the subject of malice. The instruction given was as follows:
“Malice exists when an injurious act is done intentionally or with a recldess disregard for the rights of others with full knowledge of its nature, without just cause or excuse. It may exist in the absence of spite or ill will against any individual and will arise from a wanton disregard for the rights of others.”
Appellant’s requested Instruction No. 25 in substance requested the court to instruct the jury that since a qualified privilege existed in this case the jury should not find in favor of the plaintiff unless the words communicated were false and were communicated with express malice, that is, with the willful intention to do plaintiff an injury because- of hatred or ill will. We agree with the appellant that the instruction given on malice did not adequately cover the subject of actual malice as it is defined under the law of libel and slander. In this regard the definition of express malice should be noted in Stice v. Beacon Newspaper Corporation, supra, at page 65, where malice is defined as “actual evil-mindedness or specific intent to injure”.
As its second main point Ideal contends that the court below erred in its application of the law pertaining to invasion of the right of privacy. Ideal contends that the court erred in giving Instruction No. 7 because it did not properly instruct the jury as to the law on the right of privacy and because plaintiff offered no evidence as to the invasion of the right of privacy. Instruction No. 7 was the only instruction given to the jury on this subject and was as follows:
“Invasion of right of privacy is the wrongful intrusion of one’s private activities in such a manner as to outrage or cause mental suffering, shame and humiliation to a person of ordinary sensibilities.”
In Count 2 of his petition the basis of Munsell’s claim of invasion of the right of privacy is that the statement was coerced and was maliciously sent and displayed to plaintiff’s union and personnel within Ideal’s organization and subsequently was disseminated throughout the trucking industry. There is no evidence in the record to show that with the exception of plaintiff’s written statement any of the conversation which occurred during the interview was ever communicated by Ideal to anyone. Likewise, there was nothing in the evidence to show that the written statement itself was delivered by Ideal to anyone other than to Harrison and to the union. Does this constitute a violation to the right of privacy? This court recognized the right of privacy as a distinct right in Kunz v. Allen, 102 Kan. 883, 172 Pac. 532, and in Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P. 2d 808. In Kunz moving pictures were taken of plaintiff in a drygoods store without her knowledge. The films later were developed and exhibited at a local motion picture theater. A violation of the right of privacy was recognized. In Johnson an employee of Boeing Aircraft Company knowingly posed for a series of pictures with one of Boeing’s B-47s. The pictures were published in the Boeing Company publication and were also published nationally as a part of an advertisement for the Boeing Company. Some time later plaintiff brought an action for damages for the invasion of his right of privacy. In Johnson the right of privacy was defined generally as “the right to be let alone”. It was there suggested that the right of privacy is violated where there is an unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. The court found that plaintiff by his conduct had waived his right of privacy under all the facts and circumstances and denied recovery to plaintiff. It is clear from the decisions that only unwarranted invasions of the right of privacy are actionable. The corollary to this rule is that a “warranted” invasion of the right of privacy is not actionable. Appellant urges that we recognize and apply here the rule that the right of privacy does not prohibit the communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander. This rule is recognized in 41 Am. Jur., Privacy, § 20, p. 940; Brents v. Morgan, 221 Ky. 765, 299 S. W. 967, 55 A. L. R. 964; and in the first comprehensive article on the subject of the “Right to Privacy” in 4 Harvard Law Review 193, at page 216 published by Samuel D. Warren and Louis D. Brandéis in 1890. We hold that the rule is sound and should be applied in the case at bar.
We are also faced here with the fact that in the instant case plaintiff asserts a claim for an invasion of right of privacy and also asserts a claim of libel and slander both arising from the same alleged wrongful act on the part of Ideal. The difference between the torts of defamation and invasion of privacy is that a defamation action is primarily concerned with compensating the injured party for damage to reputation, while an invasion of privacy action is primarily concerned with compensation for injured feelings or mental suffering. (Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N. E. 2d 753; Brink v. Griffith, 65 Wash. 2d 253, 396 P. 2d 793.) In the instant case under Count 2 claiming invasion of the right of privacy the plaintiff sought damages by way of loss of employment, public disgrace in the community, and shame and mental suffering. Under Count 3 involving libel and slander plaintiff sought to recover as damages, injury to his good name and fame, loss of public confidence, embarrassment, harassment, humiliation, anxiety and mental suffering and being held in contempt, ridicule and scorn. We hold that under the circumstances of this case the plaintiff is seeking in Counts 2 and 3 to recover from the defendant the same damages for the same wrongful act.
' We hold that it was error for the trial court to submit the claim for invasion of the right of privacy under Count 2 to the jury for two reasons: First, under the circumstances the inquiry by Ideal and the communication was qualifiedly privileged and therefore was not an unwarranted invasion of the right of privacy; second, the claims under Counts 2 and 3 are in effect but one cause of action seeking to recover the same elements of damages for the same alleged wrongful act.
As its third point on this appeal appellant Ideal contends that the court erred in its application of the law on false imprisonment. The thrust of appellant’s argument is that the evidence presented at the trial did not establish a claim on the theory of false imprisonment for the reason that no actual restraint or detention of Munsell’s person was established. We can not agree with this contention. There was sufficient evidence in the record to make out a submissible case supporting Munsell’s theory that he remained at the interview under fear of coercion and because of threats. The nature of the action of false imprisonment is succinctly stated in Comer v. Knowles, 17 Kan. 436, by Justice Valentine as follows:
“False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by personal violence, or by both. It is not necessary that the individual be confined within a prison, or within walls; or that he be assaulted, or even touched. It is not necessary that there should be any injury done to the individual’s person, or to his character, or reputation. Nor is it necessary that the wrongful act be committed with malice, or ill-will, or even with the slightest wrongful intention. Nor is it necessary that the act be under color of any legal or judicial proceeding. All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which he fears to disregard.” (p. 440.)
Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P. 2d 269 cites Comer with approval. Counsel for the appellee cites cases from other jurisdictions involving the “interrogation” of employees by special detectives under circumstances similar to those present in the case at bar. These cases hold that physical restraint is not essential to false imprisonment if words and conduct induce reasonable apprehension that resistance or attempted flight would be futile. (Halliburton-Abbott Co. v. Hodge, 172 Okla. 175, 44 P. 2d 122; Dillon v. Sears-Roebuck Co., 126 Neb. 357, 253 N. W. 331; W. T. Grant Co. v. Owens, 149 Va. 906, 141 S. E. 860.) These decisions emphasize that there is a clear distinction between a lawful and orderly interrogation of or interview with an employee, to investigate that employee’s suspected irregularity, and a browbeating, third-degree inquisition. It is not for an employer or any private detective hired by it to take over the administration of our criminal laws and the functions of the county attorney. The record discloses clear-cut issues of fact on the claim of false imprisonment which were properly left for the consideration of the jury.
Ideal also complains of the court’s giving Instruction No. 8 which is identical with PIK 14.20. This instruction has been approved in Thompson v. General Finance Co., Inc., supra, at page 89. Appellant’s requested Instructions No. 7 and 9 were sufficiently covered by the court’s Instruction No. 8 and we find no error in the failure to give them. There was no instruction given on the measure of damages in an action for false imprisonment. If this case is retried, we suggest that the trial court consider PIK 14.22, which adequately and concisely covers that subject.
The appellant contends in its fourth point that the trial court erred in its application of the law of wrongful discharge from employment. It is first urged that the trial court should have ruled as a matter of law that the labor management agreement between Ideal and the union was not a contract of employment between Munsell and Ideal and therefore plaintiff had no right of action for damages by a breach thereof. We do not agree. Article I, Section 1 (b), of the contract which was admitted into evidence provided that the terms of the agreement had been made for all the employees in the bargaining unit whether they are members of the union or not. The law is clear that where a labor management contract contains provisions for the benefit and protection of the individual members of the union, an individual member of the union has the right to sue thereon for its breach. This modern rule is based on the theory that the individual employee is a third-party beneficiary and the union is agent of the individual employee; hence he has the right to sue for a breach of the contract affecting his rights. (Ryan v. Ryan, 156 Kan. 348, 133 P. 2d 119; Crisler v. C. K. Packing Co., 181 Kan. 118, 309 P. 2d 703; May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P. 2d 390.)
Appellant argues that the contract of employment was terminable at will, and therefore Munsell had no cause of action because of his discharge. We find this argument without merit because the contract itself provided for a fixed term of employment with specific provisions contained in the contract pertaining to discharge of an employee. Appellant further contends that the trial court erred in not giving any instruction at all in regard to the relative rights and liabilities under the contract as to the discharge of an employee. We agree with appellant that this was error. The only instruction having to do with the subject of wrongful discharge was Instruction No. 9 where all of the elements of damages as to all four claims were lumped together. The court should have instructed the jury in regard to those sections of the contract pertaining to discharge of an. employee. We note in particular Article 1, Section 6, of the contract which gives to management the right to discharge an employee for proper cause and also Article VIII, Section 1, which provides that the employer shall not suspend or discharge any employee without just cause. The latter provision also provides for giving notice, the right of an employee to have an investigation as to his discharge, and a right of appeal. If this case is retried, the court should give instructions covering the law pertaining to wrongful discharge under the employment contract in this case. We direct the parties’ attention to PIK (1968 Supp.) 18.52 for a pattern instruction governing the subj'ect of wrongful discharge. There should also be an instruction setting forth the elements of damages recoverable by a plaintiff for a breach of this kind of contract. Under the evidence presented to the court there is a disputed issue of fact whether or not Ideal had legal cause to discharge Munsell from his employment.
Appellant also argues that Munsell failed to comply with the provisions of the contract, Article VIII, Section 1, which required a discharged employee to appeal within 10 days from the time of his discharge. In this case the discharge took place immediately after the interrogation on November 12, 1968. We note that nine days later on November 21, 1968, Munsell filed a complaint with the union complaining that he had been unjustly accused of stealing and setting forth his objections to his wrongful discharge. In this written complaint he authorized the union to settle his complaint as it deemed proper and he agreed to accept and be bound by a settlement agreed to by the Union, or decided by any Grievance Committee authorized by contract to adjudicate disputes or grievances with his employer. This document delivered to his union office clearly constituted a request for an investigation of Munsell’s discharge. No formal investigation was ever provided Munsell and no grievance hearing was ever held. Under these circumstances it could hardly be contended that Munsell faded to take steps necessary to protect his rights under the contract after he was discharged by Ideal.
Points five and six raised by appellant on this appeal involve basically the same claims of error. Appellant Ideal contends that the complete set of instructions given by the court were incomplete, ambiguous and confusing and that in stating the nature of the case to the jury the court erred in failing to separate the various counts and causes of action. It is further urged that the court erred in submitting only one verdict to the jury thus allowing it to return one verdict determining damages in a lump sum under all four counts. We agree with appellant Ideal that the method used by the court in submitting the case to the jury was confusing and constituted reversible error. We find that the trial court was in error in combining all counts into a single cause of action. The court should have given appropriate instructions on each claim stating the nature thereof, the contentions of the plaintiff, the defenses asserted and further instructed as to the elements of damage recoverable under each claim. As indicated heretofore a motion for judgment on Count 2 pertaining to invasion of the right of privacy should have been sustained and that count should have been withdrawn from the jury. In this case requested instructions were submitted and a timely objection was made to the use of the single verdict by appellant prior to the submission of the case to the jury. We find no waiver of the claims of error asserted by Ideal on this appeal.
We also suggest that on retrial consideration should be given to an instruction pointing out the similarity of the elements of damages under the various causes of action and instructing the jury that double recovery for these items should not be allowed in the event they should find in favor of the plaintiff Munsell.
Under appellant’s seventh point it is contended that the trial court erred in refusing to let appellant cross-examine plaintiff about his criminal convictions subsequent to November 12, 1968. The trial court permitted cross-examination of plaintiff as to his convictions prior to November 12, 1968, the date of the interview but the court refused to permit questions as to convictions subsequent to that date. We find that this was error. Plaintiff’s character was put in issue by the very nature of the claims asserted and the damages sought. Plaintiff introduced a great deal of evidence in which he attempted to establish his good character. Appellant’s counsel in his cross-examination should not have been limited to criminal convictions which existed prior to the date of the interrogation November 12, 1968. It should be further stated that evidence of convictions of crimes involving dishonesty or false statement after November 12, 1968, were admissible to impair the credibility of the plaintiff under the provisions of K. S. A. 60-420 and K. S.A. 60-421.
So far as the record before us shows, no pretrial conference was held in this case pursuant to K. S. A. 60-216. We can conceive of no case where such a conference could have been used to better advantage. Properly conducted under the auspices of a judge, the issues could have been simplified, amendments to pleadings considered and made, admissions of fact and of documents obtained, and other agreements reached or orders made to aid in the orderly and expeditious disposition of the case. Non-use of the pretrial procedure, especially in complicated litigation, is neglect of an effective tool both for the trial of a particular case and for efficient judicial administration.
For the reasons set forth above the judgment of the trial court is reversed and the case is remanded to the district court for a new trial in a manner not inconsistent with this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Harman, C.:
In this divorce action the defendant husband appeals from the judgment awarding the plaintiff wife alimony and dividing the family property. No complaint is made with respect to the wife being granted the divorce or to the award of child custody and a child support order.
At the outset we have considered plaintiff’s several objections to appellate review of defendant’s complaints upon the ground of alleged waiver by him of such right by acquiescence in the judgment but we deem them of insufficient gravity to warrant discussion in this opinion. The record reveals defendant’s persistent challenge to the two items in the judgment he is now attacking and we proceed directly to the merits of the appeal.
At the time of the divorce hearing the parties had been married twenty-one years. They had three children, two who were independent and a sixteen year old girl living at home. Plaintiff was forty-one years of age. She had a real estate license and sold real estate on a part-time basis. She had sold three or four properties during the past three years and in January, 1969, had earned a $700.00 commission. Defendant’s age was not shown. He was employed by the Santa Fe Railway as a conductor. His gross pay in 1968 was $12,655 and he received an expense allowance of $503.00. The parties had acquired their residential property and three rental houses in Emporia, all subject to mortgage, as well as certain personalty.
The divorce hearing was concluded April 10, 1969, and the entire matter was taken under advisement by the court at which time the court requested further help from the parties in rendering a decision. On August 4, 1969, the court orally announced its decision in the presence of counsel for both parties and it signed a journal entry of judgment embodying that decision which journal entry was prepared by plaintiff’s counsel.
The court found defendant had been guilty of extreme cruelty toward plaintiff and it awarded her the divorce. Plaintiff was granted custody of the minor daughter, toward whose support defendant was ordered to pay $100.00 per month until further order of the court, plus her medical expense and railway insurance coverage.
By way of property division plaintiff was awarded the residence property and all household goods and furnishings, one of the rental properties, certain cemetery lots, all of the yard tools and equipment, a 1960 Ford half ton truck and a 1965 Chevrolet Caprice automobile. Defendant was awarded the other two rental properties, certain power tools and other tools and equipment, a 1969 Chevrolet automobile, a 1953 Chevrolet automobile and a 1948 Ford utility truck. The award of all realty was made subject to the indebtedness thereon. Plaintiff was awarded an alimony judgment against defendant in the sum of $20,000, to be paid at the rate of $150.00 per month until plaintiff’s death or remarriage, with any unpaid balance to constitute a lien against the real estate awarded to defendant. Additionally plaintiff was ordered to assume an indebtedness of the parties in the sum of $2,450 owing to plaintiff’s grandmother and defendant was ordered to assume an indebtedness of $1,900 owing to his mother. Defendant was ordered to pay plaintiff’s attorney fees.
Defendant-appellant’s first complaint is the trial court did not exercise its independent judgment in dividing the parties’ property and awarding alimony, nor did it consider all the relevant factors requisite to such determination but instead merely approved that which it mistakenly thought was the agreement of the parties with respect to property division and alimony. Plaintiff-appellee denies the court so acted. Both parties concede no such agreement was ever made between them. In an effort to resolve the matter we have reviewed the transcript as well as the record on appeal. Although the exact import of certain colloquy shown therein between court and counsel is not clear, we are unable to determine that the judgment appealed from was reached in the manner asserted by appellant. The record does reveal that before the conclusion of the hearing at which the court orally announced its decision the court was definitely advised no such agreement existed so that any misapprehension it may have had as to any matter was cleared up and dispelled prior to its formal entry of judgment.
Appellants principal contention is the trial court abused its discretion in making the property division and awarding appellee $20,000 in alimony. Appellant treats the two together, arguing that the total amount awarded to appellee was completely out of line in view of the parties’ financial position.
Rules applicable to division of property and alimony have been stated many times and need not be repeated (see Folk v. Folk, 203 Kan. 576, 455 P. 2d 487).
The property owned by the parties was divided in kind between them but to detail the evidence respecting it would serve no useful purpose. The difficulty were we to attempt to do so is that with respect to some of the property, no values were shown, and as to other items the testimony as to value either was of an inconclusive nature or varied widely. This is undoubtedly the reason the trial court was calling for help at the conclusion of the hearing and why it made no effort to place valuations on the property when nothing further by way of help was forthcoming. Taking the aspect most favorable to appellee as the prevailing party in the trial court it must still be conceded she received the major share although it would not be possible with any degree of accuracy to ascertain respective percentages. All relevant factors considered, including but not limited to the fact the divorce was granted because of appellant’s misconduct, the value and nature of the property shown, the amount of the indebtedness of the parties and their present and future earning capacities, we conclude the alimony judgment of $20,000 is excessive and should be reduced by the sum of $7,500, but remain payable at the rate of $150.00 per month as ordered. The decree is therefore modified to the extent the alimony judgment is reduced to the sum of $12,500, to be paid at the rate of $150.00 per month. In all other respects the decree is permitted to stand. The judgment, as modified, is affirmed.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This case arises out of the issuance of a traffic citation for double parking in violation of an ordinance of the city of Ogden, against the appellant, Lena B. Allen. The case was tried in the police court on November 25, 1969. The appellant was convicted, and on the same day she filed a notice of appeal to the district court, and pursuant to K. S. A. 15-515, she filed an appro priate recognizance which was approved by the police judge on that day.
Following the appellant’s trial in the police court and the perfection of her appeal, she inquired of her attorney when it would be necessary for her to appear in the district court. Counsel advised her he did not know at that time, but that when the case was docketed, and when he received the appearance docket from the clerk of the district court, he would advise her.
For reasons which are neither apparent nor understandable, there was an unexcusable delay of two months by the police court between the disposition of the case and the filing of the transcript on appeal with the clerk of the district court on January 27, 1970. The February term of the district court commenced on February 2, 1970, six days after the transcript was filed in the clerk’s office. The printed appearance docket of the district court serves as notice to attorneys that cases appearing thereon will be called for hearing at 10:00 a. m. on the first day of the term of the district court.
Prior to the filing of the transcript, the printed docket of the February term had been mailed by the clerk of the court to all attorneys with cases pending thereon. The appellant’s case was not on that docket. Her attorney in Junction City had no cases on the appearance docket, hence, he did not personally receive a copy of the printed docket, although a copy was mailed to other members of his law firm. Even if he had received a copy of the appearance docket, the appellant’s case was not docketed, and there would have been no reason to notify her that she need personally appear on February 2, 1970.
In the absence of notice from her attorney, the appellant did not personally appear on the opening day of the February term of the district court. On that day, her case was added to the docket, and on call of the docket, she not being present in person or by counsel, the district court dismissed the appeal, and remanded the case to the police court for disposition. Shortly thereafter, counsel checked with the clerk of the district court to see whether the appellant’s case had been docketed, and upon discovering the appeal had been dismissed, he forthwith filed a motion to reinstate the appeal. The motion was subsequently overruled by the district court.
Of the limited number of cases on the criminal docket of the February term, there were only two cases involving appeals from police or county courts. The appellant’s case was the most recent of all cases docketed. Neither the appellant nor her attorney had any actual knowledge the appeal had been docketed, nor was her appeal set for trial with actual notice thereof to the appellant or her attorney.
As indicated in the district court’s memorandum decision, the dismissal of the appeal and the subsequent refusal to reinstate it were premised upon two aspects: First, the rules of the Riley district court specifically require a criminal defendant to appear on the first day of the opening term for arraignment; and, second, that an appeal from a conviction in a police court is not perfected by the filing of an appropriate recognizance and the police judge’s approval thereof (K. S. A. 15-515, but rather, the defendant must appear on the first day of the term of court next following the filing of the appeal in order to perfect the appeal, hence, dismissal of the appeal was mandatory.
The appellant strenuously argues it was error for the district court to dismiss her appeal and refuse to reinstate it for the reasons stated in its memorandum decision. The points are well taken.
Rule No. 4 of the district court of the Twenty-first Judicial District reads:
“Defendants in all criminal cases shall appear at 10:00 o’clock a. m. on the first day of the term for arraignment.” (Emphasis supplied.)
It stands to reason that if a defendant were not required in a criminal case to be arraigned because that criminal case was a trial de novo from an appeal from the police court, then Rule No. 4 would not be applicable. There is no ambiguity in the district court’s rule, and it is unnecessary to belabor the issue by a protracted discussion of phrase.
Pursuant to K. S. A. 15-515, an appeal to the district court may be taken by the defendant from the police court of a city of the third class within ten days after conviction, and such an appeal is perfected upon the filing of a proper recognizance with sufficient security, when the recognizance is approved by the police judge. The statute reads:
“In all cases before the police judge, an appeal may be taken by the defendant to the district court in and for the county in which said city is situated; but no appeal shall be allowed unless such defendant shall, within ten days after such conviction, enter into recognizance with sufficient security, to be approved by the police fudge, conditioned for .the. personal appearance of the appellant before the district court of the county on the first day of the term thereof to answer the complaint against him.” (Emphasis supplied.)
What is necessary to perfect .an appeal from the police court to the district court is the execution of a recognizance with sufficient security and its approval by the police judge. The recognizance is conditioned for the personal appearance of the defendant before the district court on the “first day of the term thereof’ to answer the complaint against him, and presumably, for failure to appear, the bond could be forfeited and the. defendant remanded to custody. That question is not now before us, and the possibilities of a bond forfeiture are made merely as a passing comment. In short, there is nothing in the státutory language to indicate the subsequent appearance of the defendant is necessary to perfect the appeal, and that without such appearance, the jurisdiction of the district court does not attach. The statute clearly provides the recognizance is conditioned upon the appearance of the defendant at a time and place specified. The whole tenor of our decisions are in accord with this construction. (City of Kansas City v. Hescher, 4 Kan. App. 782, 46 Pac. 1005; City of Kansas City v. Fagan, 4 Kan. App. 796, 46 Pac. 1009.) See, also, Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749, and Topeka v. Durein, 78 Kan. 661, 97 Pac. 967.
It is sufficient to say, under the attending facts and circumstances, the district court erred in dismissing the appeal, and likewise erred in failing to reinstate it, based upon the same grounds it dismissed the appeal.
In deciding this case, we do not intend to limit the rule stated by this court, that courts have the inherent power to dismiss a case because of failure to prosecute with due diligence, under circumstances which warrant dismissal (City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849), so as to permit courts to clear their dockets in order to save time and expense and expedite the court’s business. (City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117.) However, as stated in Reddington v. Rank, 176 Kan. 484, 490, 271 P. 2d 807, it is also highly important that drastic procedure in dismissing an action involving the rights of citizens be exercised with utmost care.
For reasons heretofore set forth, the judgment of the district court dismissing the appeal and refusing to reinstate it, is reversed, and the cause is remanded to proceed to trial upon the complaint against the appellant.
It is so ordered.
Kaul, J., dissents. | [
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ORDER OF SUSPENSION
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Lester Dean Matthew, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Lester Dean Matthew, Sedan, Kansas, was guilty of violating Canon No. 15 of the Canons of Professional Ethics (198 Kan. xvn), and DR 1-102 (A) (5), DR 6-101 (A) (3), and DR 7-106 (C) (6) of the Code of Professional Responsibility (205 Kan. lxxvh), and
Whereas, The State Board of Law Examiners has made a written recommendation to this court that said Lester Dean Matthew be disciplined by “Suspension of the practice of law for an indefinite period” as provided by Rule No. 205 (m) (3), (205 Kan. lxh), and
Whereas, The said Lester Dean Matthew, pursuant to subdivision (n) of Rule No. 205 above, has, in writing, elected to accept such recommended discipline and to pay the costs of the proceeding, and
Whereas, Upon consideration of the record and being fully M-vised in the premises, the court accepts the recommendation of the State Board of Law Examiners.
It is, therefore, by the court Considered, Ordered and Adjudged that the said Lester Dean Matthew be, and he is hereby disciplined by this court by suspension of the practice of law for an indefinite period, and that he pay the costs of the proceeding. It is further Ordered that this Order of Suspension be published in the official Kansas Reports.
By order of the court, dated this 25th day of February, 1972. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant pleaded guilty to the offense of robbery in the first degree (K. S. A. 21-527) and received the statutory sentence (K. S. A. 21-530), from which judgment he now appeals. Prosecution was commenced under our former criminal procedural code and appellant has elected to be proceeded against under that code, as permitted by K. S. A. 1971 Supp. 22-4602.
Notice of intention to impose the habitual criminal act upon conviction was served on appellant prior to the time he withdrew a previous plea of not guilty and entered his plea of guilty.
Appellant’s sole contention upon appeal is:
"It was improper for the court to accept appellant’s plea of guilty as he was coerced by the State of Kansas into entering his plea of guilty by the appellee filing its notice that if the appellant was convicted that the appellee would ask that appellant be sentenced under the provisions of K. S. A. 21-107a.”
Present counsel represented appellant at the time he pleaded guilty and was sentenced. Although the record of the proceedings at which appellant’s plea was entered is silent on the matter, his counsel concedes there was plea discussion resulting in a plea agreement and appellant got exactly what he bargained for, that is, the habitual criminal act was not invoked and the sentence imposed was made to run concurrently with another sentence he was then serving. Disposition of the appeal is governed by State v. Byrd, 203 Kan. 45, 453 P. 2d 22, in which we held:
“A guilty plea induced by a prosecuting attorney’s promise not to invoke the Habitual Criminal Act (K. S. A. 21-107a) is not rendered involuntary for that reason alone. To render such a plea involuntary the discussion and circumstances leading to the guilty plea must be of a nature to deprive the plea of a voluntary character.” (Syl. fl.)
In State v. Kelly, 204 Kan. 715, 466 P. 2d 350, we stated:
“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.” (Syl. If 2.)
See also No. 46,056, State v. Williams, 208 Kan. 480, P. 2d 493, 258, this day decided.
The record on appeal discloses no irregularity or illegality in the proceedings and nothing going to jurisdiction of the court. It contains no indication of coercion. To the contrary it reveals that after pleading guilty, appellant stated in response to questioning by the court he understood the charge and the statutory penalty, he was entering the plea of guilty because he believed he was guilty as charged, he had robbed the James Liquor Store on the particular date charged, he was entering the plea of guilty freely and voluntarily on his part, he understood his right to a jury trial and the fact a jury panel was then present in court but desired to waive trial by jury, he had talked the case over with his attorney with whose services he was satisfied, and he wanted the court to accept his. plea of guilty. Upon allocution he offered nothing in abatement of sentencing.
It affirmatively appears appellant entered his plea of guilty voluntarily and intelligently and the sentence imposed thereon must be upheld. Beyond this, however, and as a salutary aid in determining whether a plea of guilty is voluntarily and intelligently made, we know of no reason why plea discussion resulting in a plea agreement should not be disclosed to the trial court by the parties, or why the fact should not be elicited by that court, where it exists.
In State v. Byrd, supra, we recognized the propriety of plea discussion and plea agreement and that the interest of the public in the effective administration of criminal justice will be served if proper guidelines are followed. We enumerated guidelines and held:
“Plea discussions are proper if carried on in compliance with the guidelines set forth in this opinion, provided the plea agreement resulting from the discussions is consistent with the fair and effective administration of criminal justice.” (Syl. ¶ 2.)
In Byrd we noted that in February, 1967, standards relating to the practice of negotiating pleas of guilty had been recommended by the Advisory Committee on the Criminal Trial to the American Bar Association Project on Minimum Standards for Criminal Justice. Those standards have now received ABA approval (Standards Relating to Pleas of Guilty, Approved Draft, 1968), they appear fair, just and workable and we add our stamp of approval to them.
Standards 1.5 and 3.3 (b) of the Approved Draft contemplate disclosure to the court of the fact of a negotiated plea. Where plea discussion has resulted in a plea agreement, we believe bringing the matter into the open at the time the plea is entered will go far in producing a determination acceptable to all that the plea was voluntarily and intelligently made. Disclosure in open court will provide additional assurance that proper safeguards have been observed once a plea of guilty has been accepted and, at the same time, tend to dispel much of the sinister aspect heretofore attached to the practice by reason of its cloak of secrecy. We commend such disclosure.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action for workmen’s compensation benefits. The Examiner made an award for temporary total disability at the rate of $49.00 per week. The Workmen’s Compensation Director, on an application for review and modification, modified the award to a finding of 100% loss of use of the right hand and for amputation of the left index finger making a total of 190.7 weeks at $49.00 per week.
On appeal to the District Court, the ruling of the Director was affirmed. The claimant appeals from this judgment.
The question on appeal is whether the claimant is entitled under the facts to an award of temporary total disability or is limited to an award for scheduled injuries as found by the trial court.
The claimant testified that his previous work experience was that of a truck driver, farm laborer, and worker in the oil field. That he was fifty years of age, married and had three children. That he had worked for the respondent for about one year prior to the accident and this work called for manual labor which required considerable lifting of weights of 35 to 40 pounds and sometimes 100 to 150 pounds and that the job also required a great deal of stooping and bending, working overhead and in all weather conditions.
He further testified that on the day of the accident a 22 foot pipe with a swab on the end dropped directly on his hands. That as a result he sustained a traumatic amputation of the first and second fingers of the right hand into the knuckle of the right hand, a partial amputation of the thumb of the right hand and an amputation of the first finger of the left hand below the second joint. That the accident occurred on September 25, 1967, and that his right arm and shoulder started giving him difficulty in January of 1968. He further stated that his right shoulder hurts and on many occasions it hurts nearly all day; that he cannot extend his right arm full length without pain; and that he cannot lift his right elbow over his head.
Larry L. Axhne, placement director with the Associated Personnel Technicians, testified that the claimant had an IQ of 93 which is below the average for the general population.
Harry Thornton, an interviewer for the Kansas State Employment Service, testified that he had been unable to place the claimant in any employment, but he felt there might be some jobs claimant could do after vocational rehabilitation.
Bentley Barnabas, an industrial psychologist, testified that claimant might possibly qualify as a flagman or operate an elevator if it had power-driven doors. He also stated that claimant could not do the same or similar work as he had previously done.
Roy B. Coffey, M. D., testified for the claimant stating that on the right hand the claimant had a 25% loss of use of the thumb or a 60% loss of the use of the right hand and 100% loss of use of index finger on the left hand. That further the claimant suffered from bicipital tendonitis in the right shoulder which he felt was probably a temporary loss and he did not rate it but felt it had need of further treatment. That although plaintiff was right handed, his upper right arm measured 91 inches in circumference and the left 10/2 inches, and the right forearm measured 9 inches while the left forearm measured 10 inches. He further testified that all of the injuries were in his opinion related to the accident which the claimant had sustained and that while he considered the shoulder difficulty to be secondary he did feel that it was a direct result of the injury. That in his opinion the claimant had a 25% impairment of the body as a whole as a result of his injury to his hands and it was too early to arrive at a permanent disability rating to the shoulder. That he would not pass this man for a pre-employment examination on any type of heavy labor and that he would not pass him for any type of oil field work other than the reading of gauges and so forth. That in his opinion this man is out of any occupation that requires hand work, tool work, lifting or other heavy labor.
Based on this undisputed evidence, the Examiner found the claimant was temporarily totally disabled as a result of the injury to his right hand and to the index finger of his left hand. The Examiner also found that the shoulder difficulties aggravated his disability and that the difficulty is either (a) a direct result of the injury, or (b) an aggravation during the normal course of treatment, and not of a referral or causalgia nature as was the case in Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2d 271.
The Director, in modifying the award, found the only disability of a permanent nature was the injury to the right hand and to the left index finger and compensation was limited to the scheduled injuries, and otherwise affirmed the award of the Examiner.
The District Court on appeal found the following:
“If a workmens compensation act were being drafted in the light of the facts in this case, it would be reasonable to assume that it would be worded in such a way that this claimant would be entitled to an award of total permanent disability. This is the claimant’s disability when measured by any realistic standard.
“Under the wording of the Kansas act, however, his compensation must be limited to scheduled injuries: complete loss of use of the right hand plus loss of the left index finger. Since the Kansas Supreme Court declined to soften the occasional unfairness of our scheduled injury statute in Wammack v. Root Manufacturing Co., 184 Kan. 367, 336 P. 2d 441 (1959), and Rogers v. Board of Public Utilities, 158 Kan. 693, 149 P. 2d 632 (1944), it would seem improper for a trial court to attempt to do so.
“Neither is the court justified in utilizing the tendonitis in claimant’s shoulder to convert his permanent injuries into a classification of temporary total disability. Viewed in a way most favorable to claimant, the shoulder difficulty is only temporary in nature and results from injury to the hand, a scheduled injury. It is not a separate injury by accidental means; he is not disabled because of the shoulder, but he is disabled because of the injury to the two hands.
“Counsel for respondent will please prepare and circulate a journal entry affirming the award as made by the Director.”
There appears to be no question that the claimant is totally disabled from obtaining and retaining work of the same kind and character he was able to perform prior to his injury. We must determine, however, whether the claimant’s award under our Workmen’s Compensation law is limited to scheduled injuries as defined in K. S. A. 44-510. The answer to this question is based on the nature and effect of the injury to claimant’s right shoulder. We can safely say that the injury to the shoulder contributed to the claimant’s total disability even though he was considered totally disabled without the shoulder injury by the trial court.
The trial court stated that it was prevented from granting a temporary total disability award by reason of Wammack v. Root Manufacturing Co., supra, and Rogers v. Board of Public Utilities, supra.
In the Rogers case, the claimant suffered two hernias which could not be surgically repaired because of the claimant’s diabetic condition. We denied relief beyond the statutory schedule and in so doing stated:
“We turn now to consideration of those of our decisions where, even though the original injury was a scheduled one, an additional award beyond the statutory schedule was allowed because of subsequent unusual and extraordinary conditions. Appellee cites Bidnick v. Armour & Co., 113 Kan. 277, 214 Pac. 808, and Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684. He places particular emphasis on the Chamberlain case and asserts it is authority for the award made by the commissioner and the trial court in the instant proceeding. We do not agree. Without entering into a detailed discussion regarding the doctrine announced in those decisions it can be summarized by stating it is applicable only in cases where some subsequent complication, distinct and apart from the scheduled injury itself as originally sustained, but resulting from its sufferance, has developed and affects that portion of the body originally injured or some other portion or member of it and results in further and additional temporary or permanent disability. A careful and painstaking review of the record fails to disclose any evidence establishing such a situation in the case at bar. The only injuries suffered by appellee were the hernias herein referred to. The diabetes which prevented a successful operation was something which for years prior to the occurrence of the injuries had been a constant source of trouble and treatment. Subsequent complications were not established by evidence. • ■ .” (pp. 701, 702.) (Emphasis supplied.)
We also stated as a further basis for denying relief that diabetes was not caused by the accident; however, the italicized portion of this quote appears to directly support claimant’s position. Claimant’s shoulder injury was the result of a subsequent complication distinct and apart from the injury to the hands as originally sustained, but resulting from the injury to the hands.
In the Wammack case, the claimant suffered an injury to the thumbs of each hand and we held following the Rogers case that the award was limited to the schedule. There was no claim in Wammack of other injuries and therefor it has no application here.
Appellee argues that the award of the trial court should be affirmed by reason of the provisions of K. S. A. 44-510 (3) (c) (23) which states:
“Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section, and no additional compensation shall be allowable or payable for either temporary or permanent disability. . . .”
We construe this statute to be inapplicable to a situation where the injured claimant has a compensable injury to some part of the body not specifically scheduled.
We conclude that neither the provisions of K. S. A. 44-510 (3) (c) (23), nor the Rogers or Wammack cases, prevented the trial court from awarding claimant total temporary disability.
Appellee argues that there was substantial evidence to support the finding that the claimant’s shoulder injury was a temporary disability. With this we agree; however, temporary disability is compensable under the Workmen’s Compensation Act until the temporary disability ceases to exist. The record in this case discloses no evidence that the shoulder is not now disabling and does not 'continue to contribute to claimant’s disability.
In this situation the trial court, after finding the claimant was totally disabled, should have found as a matter of law that claimant was entitled to a temporary total disability award. Even though no specific finding was made by the trial court that the shoulder injury contributed to the total disability of claimant, we feel justified by tire undisputed facts in the record in finding this was true. It may be argued that since the trial court found only a temporary injury to shoulder the disability has now ceased. This may be the factual situation now, but until evidence to this effect is placed in the record no court can act on this supposition.
In Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684, the claimant, a flour mill worker, suffered an injury to several of his fingers and later developed a virulent infection by reason of the injury to the fingers. We said:
“Before examining this question more closely let us note clearly the instant situation. The claimant injured a finger. In and of itself the injury might not have materially affected any other part of his body, although the injury to the finger might be permanent. But he suffered a virulent infection of a character which Doctor Schaffer testified is frequently found in flour mills. This infection spread to his hand and threatened the loss of his right arm and even spread to his left arm. The infection necessitated several operations and kept the patient in the hospital for many weeks. Two employees might have suffered the same injury to a finger, and one get the infection and the other not get it. The infection, it is true, is clearly traceable to the injury which furnished the occasion for its entering the body, but by no means does such infection always take place after such injury. In fact it is the exception rather than the rule. Under these facts are we required to say that after the patient had been confined in the hospital and totally disabled for many weeks and that thereafter his only permanent disability was the partial loss of the use of the third finger, compensation for the latter precludes allowance for the former? Such an illogical result should not be reached unless the language of the statute unquestionably requires it.” (pp. 940, 941.)
This case supports appellant’s position that the accident resulting in injury to claimant’s hands need not injure the shoulder at the same time in order for the shoulder injury to be compensable. Also see Reed v. Clay Center Concrete & Sand Co., 184 Kan. 374, 336 P. 2d 405.
Appellee stresses Riggan v. Coleman Co., supra, wherein a workman lost the use of his right arm and then developed headaches and pain in the neck, shoulders and head as a result of causalgia. Causalgia was described as: “. . . a very common accompani ment of severe injury where there is either nerve or blood vessel injury to an extremity.” (p. 236.)
We further stated:
“At this point it should be repeated the foregoing testimony stands alone and added that nowhere in the record is there any evidence to the effect that either appellee’s shoulder, neck or head were directly injured or affected by the stamping machine responsible for the accident or that the referred pain causing his additional temporary total disability was distinct and apart from the disability for which he was awarded compensation as a scheduled injury.” (p. 236.)
This case is distinguishable. The testimony here reveals that the claimant suffered from bicipital tendonitis of the right shoulder and atrophy of the right arm as a direct result of the injury and not as a referred pain or discomfort resulting from the injury to a scheduled member. The disability in the Riggan case fails to meet the requirement that the subsequent complication must be distinct and apart from the scheduled injury.
In Honn v. Elliott, 132 Kan. 454, 295 Pac. 719, Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540, and Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952, one or more scheduled injuries were involved and were controlled by the provisions of K. S. A. 44-510 (3) (a). The facts in these cases do not require an application of this statute or the cases construing the same.
We find that when a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.
Appellees filed a motion to dismiss this appeal and we granted appellees the right to present their motion at the time of oral argument. The basis of the motion was that claimant had accepted the final compensation payment under the award entered by the trial court and therefor acquiesced in the judgment preventing appeal.
Appellees cite K. S. A. 44-528, which provides that anytime before a final payment is made pursuant to an award it may be reviewed by the Director upon good cause shown and upon application by either party. This statute is not applicable to a final payment made under an award which is on appeal to this Court. K. S. A. 44-556 provides that compensation payable under a district court decision is not stayed pending appeal. It logically follows that if payments are not stayed on appeal the claimant is entitled to receive them.
We hold that the acceptance of a final payment under an award made by the trial court is not an acquiescence in the judgment that would prevent a claimant from seeking a review of the decision on appeal.
We conclude that the trial court erred in finding that the claimant’s injury was not a general body disability and in not entering an award for total temporary disability.
Reversed and remanded with directions to proceed in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action to recover benefits under a group insurance policy brought by an employee insured thereunder. The insurance policy was issued by the appellant Continental Casualty Company to provide disability insurance coverage to the employees of Tracor, Inc., of Austin, Texas, benefits payable under the policy were set forth in a schedule attached to tibe certificate of insurance issued to each individual employee. The master policy was in the possession of the employer Tracor. Premiums on the policy were paid one-half by the employer and one-half by the employee. Participation in the group insurance plan was voluntary.
As an employee of Tracor, Inc., the appellee Charles A. Ogden was issued a certificate of insurance dated September 1, 1966, to which was attached a schedule of benefits reciting a monthly sickness indemnity of 50% of the employee’s salary subject to a maximum per month of $1000. It is undisputed that appellee Ogden was an employee of Tracor, that he was an insured under the master policy and that a certificate of insurance was issued to him providing disability benefits as set forth heretofore. It is also undisputed that Ogden became disabled and was last employed by Tracor on February 28, 1968. Ogden made a claim under the insurance policy and commencing on May 28, 1968, Continental made monthly payments of 50% of Ogden’s salary as of the date of his disability which payments were in the amount of $670 each. Payments were made at this rate through the month of January 1969. At this point the controversy arises.
It is clear from the evidence that the master policy was modified by an endorsement having an effective date of January 1, 1967, by agreement of Continental and the employer Tracor. The insurance contract was amended to reduce the monthly sickness benefits to 50% of a maximum salary of $1000 less any sums paid under workmen’s compensation or occupational disease benefits or payments under the Social Security Act. It is clear from the evidence that effective with Ogden’s disability he received social security payments in the amount of $337.20 per month. Continental contended that he was entitled to receive only the disability benefits contained in the amended schedule which became effective January 1, 1967, which provided for a deduction of social security benefits received by a disabled employee rather than disability payments in accordance with the original schedule of benefits dated September 1, 1966, which paid to a disabled employee a flat 50% of his salary without a deduction for social security benefits. The parties could not agree. Ogden then brought this action seeking to recover a judgment for the monthly disability benefits accruing from February 1969 to the time of the filing of the petition provided for under the original schedule of benefits effective September 1, 1966. Ogden also included in his petition a second cause of action for a declaratory judgment asking the court to determine under the contract the benefits to which Ogden was entitled in the future. In its answer Continental joined in the request for declaratory relief to determine the benefit payments to be made to Ogden under the policy. Ogden also prayed in his petition that he be awarded a reasonable attorney fee under K.S.A. 1969 Supp. 40-256 (now K.S.A. 1971 Supp. 40-256).
The case was tried to the court without a jury. Ogden testified in his own behalf regarding his employment by Tracor and the execution of an application by Ogden for disability income insurance under the group insurance policy with Continental. Ogden testified that about a month after completing the application form he received the certificate of insurance having an effective date of September 1, 1966, to which was attached the original schedule of benefits mentioned heretofore providing for a flat 50% of Ogden’s salary. Ogden further testified that he paid each month one-half of the insurance premium and that he never received any further communication or material regarding the insurance coverage after receiving the original certificate of insurance. He categorically denied having received any notice of change in disability benefits under the group policy.
Appellee’s wife Lou Anne Ogden testified that she performed the functions of secretary and bookkeeper to her husband and this included the filing and preserving of papers with regard to insurance. She opened the United States mail received at the Ogden home and examined it. She denied that appellee had received any notice of change of disability benefits from Continental by this means.
The only witness testifying for Continental was Oscar Dean Cruse, the manager of personnel administration for Tracor at the time Ogden was employed there. Mr. Cruse testified that in November or December of 1966 a change in the disability benefits was discussed by Tracor and Continental Casualty Company. In order to avoid an increase in insurance rates it was agreed that the group insurance policy should be amended to provide benefits at the same rate for all Tracor personnel and that for all employees the monthly benefits should be one-half of employee’s salary less any statutory benefits including social security. Cruse testified that the master policy was amended to reduce the benefits effective January 1, 1967. After the amendment was made Continental prepared a new certificate of insurance for each employee reflecting the change in benefits and these were delivered to Tracor personnel department. A request was made by Continental that Tracor distribute the new certificates of insurance to its employees. The matter of distribution was left up to Tracor. Mr. Cruse testified that the new certificates of insurance were hand-carried to the employees of Tracor by the inter-company mail service. The new schedule of benefits was also noted in an article discussing the Tracor insurance program published in the company’s newspaper “Tracor Today”. Cruse testified that the new certificates of insurance were received in his office from Continental but he was unable to say whether a certificate for each insured employee was received. No list was made by Cruse of the certificates received. Cruse did not personally distribute the certificates nor did he personally supervise the two women who distributed them. No checklist system was employed by which he could check if each person had been notified nor was any other record of distribution of the amended certificates made. In regard to the article in the company newspaper, Cruse testified that there was nothing in the article that notified employees that the disability benefits described were a change from those available at an earlier date nor was the article directed to the attention of employees for the purpose of advising them that their insurance benefits had been changed. Ogden testified that he had received no new certificate of insurance reflecting the change in benefits and stated that he did not read the article in “Tracor Today” which discussed the company’s insurance program.
On the basis of the evidence presented at the trial the court found that notification to Ogden was necessary before a modification of disability benefits could be made effective as to him and that under the evidence Ogden had not received notification of the amendment to the insurance program by which the benefits were reduced. On Ogden’s first cause of action the court rendered judgment against Continental as of November 19, 1969, in the amount of $6,700 with interest. On Ogden’s second cause of action the court entered a declaratory judgment finding that Ogden was entitled to future benefits under the policy in accordance with the original schedule attached to the certificate of insurance dated September 1, 1966, without the modification reducing disability payments to the extent of social security payments under the endorsement to the policy dated January 1, 1967. The question of an allowance of attorney’s fees to Ogden was reserved to be presented at a later date. At a subsequent hearing the trial court denied Ogden’s application for an allowance of attorney’s fees for the reason that Continental had acted in good faith in denying Ogden’s claim under the policy. Continental filed a timely appeal with this court on the issue of the extent of its liability under the group insurance policy. Ogden filed a timely cross-appeal from the order of the trial court denying him an allowance of attorney’s fees.
The appellant Continental’s first point raises the question whether modification or cancellation of a group insurance policy can be effective without notice to the employee insured thereunder where the employee contributes to the payment of the insurance premiums. The issue presented is one of first impression in Kansas. It is clear that in other jurisdictions the weight of authority holds that without reasonable notice to the contributing employee, neither the employer nor the insurance company may cancel or modify the benefits under a group insurance before liability has attached so as to deprive the employee or his beneficiary of rights under the policy. There is an extensive annotation on this subject at 68 A. L. R. 2d 249. All aspects of the problem presented in the cancellation and modification of group insurance policies are treated there, including the question of notification to the insured employee. An analysis of the cases from other jurisdictions discloses that one circumstance of the insurance arrangement which appears to have an important bearing upon the decision as to the necessity of notice is whether or not the employee contributes to the payment of insurance premiums.
The rationale of the decisions is that where the employee pays a portion of the premiums he has valuable rights in the policy and therefore notice should be given him of any modification of the contract which might effect those rights. The reason for the rule of notice is to enable him to exercise any conversion privilege available under the terms of the policy or, in the absence of such a provision, so that the insured may obtain similar insurance protection on his own account elsewhere. (Fagan v. John Hancock Mutual Life Insurance Company, 200 F. Supp. 142 [D. Kan. 1961]; Butler v. Eq. Life Ins. Society, 233 Mo. App. 94, 93 S. W. 2d 1019; Poch v. Equit. L. Assur. Soc., 343 Pa. 119, 22 A. 2d 590.) We hold that the rule of the majority of the jurisdictions of which the foregoing decisions are representative is grounded on sound considerations of policy. The requirement of notice to the employee of policy modifications in no way abridges the contractual rights of the insurance company or the employer, while at the same time preventing loss to the employee as a result of the unilateral actions of others of which he is not even aware.
In its second point the appellant Continental contends that the trial court erred in its failure to find that Ogden was given proper notice of the modification made to his group insurance policy. At the trial of this case a disputed issue of fact was presented to the trial court. The trial court found under the evidence that actual notice of the modification of the group insurance policy was never given to Ogden prior to the time his disability occurred. In his testimony the appellee Odgen categorically denied any notice of the amendment to his group insurance policy reducing disability benefits. Lou Anne Ogden likewise denied receipt of such notice. Continentals only witness, Oscar Dean Cruse, testified that he had no personal knowledge that an amended certificate of insurance pertaining to Ogden was ever even delivered to Tracor by Continental; nor could he testify to his knowledge that Ogden had received any actual notice of the modification of the policy. We have no hesitancy in holding that there was substantial, competent evidence to support the finding of the trial court that appellee Ogden did not receive notice of modification of the group insurance policy prior to the date his disability occurred.
As its third point on this appeal the appellant Continental urges that since, Tracor, Inc., the employer of Ogden, had actual knowledge of the modification of the insurance policy, such knowledge must be imputed to Ogden as a matter of law. It is clear from the record in this case that the question of any agency relationship was never presented to the trial court. As pointed out heretofore the only evidence offered by appellant was the testimony of Oscar Dean Cruse, Tracors manager of personnel administration. His testimony in no way sought to establish an agency relationship between the employer Tracor and the appellee Ogden. Nowhere in his testimony was anything said concerning the relative responsibilities of the employer and its employees in the administration of the group insurance program. The issue of agency is clearly a new theory which was first presented on appeal to this court. The rule is well established in this jurisdiction that a litigant is bound by the theory on which his case was submitted to the trial court. This court on appeal will not consider a case on a theory other than that adopted by the parties in the court below. (Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091.) The desirability of such a rule is apparent in the case at bar. Whether an employer is the agent of the insurance company or the agent of its employees under a group insurance policy depends upon a variety of factors to be determined from the specific insurance policy and the relative responsibilities thereunder in each individual case. Such an issue could not responsibly be determined without the opportunity of the trial court to examine the specific group insurance policy involved. In the instant case the master policy in which these matters are presumably set out was never introduced into evidence and is not contained in the record. Here there was no evidence for the trial court to consider on the issue of agency. It made no determination one way or the other and the issue is not now before this court.
We turn now to appellee’s cross-appeal. It is contended by the appellee Ogden that the trial court erred in failing to award him an allowance of attorney’s fees pursuant to K. S. A. 1969 Supp. 40-256 (now K. S. A. 1971 Supp. 40-256). Under this statute attorney fees are recoverable from an insurance company when the denial of liability was made “without just cause or excuse”. Generally it is a question of fact for the district court as the trier of the facts to determine whether or not an insurance company has refused to pay the full amount of an insured’s loss “without just cause or excuse”. (Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P. 2d 756.) In the case at bar the trial court was required to consider the testimony of Ogden and his wife and also the testimony of Oscar Dean Cruse in determining whether or not Ogden had received notice of the amendment to the group insurance policy. There was also involved a question of law of first impression in Kansas. Under the circumstances we hold that the trial court did not abuse its discretion in denying appellee attorney’s fees in this case.
For the reasons set forth above we find no merit in either the appeal or cross-appeal and the judgment of the trial court is therefore affirmed. | [
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The opinion of the court was delivered by
Nuss, J.:
A jury convicted Bobby L. Johnson of one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a). The Court of Appeals affirmed in State v. Johnson, 34 Kan. App. 2d 612, 122 P.3d 397 (2005).
We granted Johnson’s petition for review pursuant to K.S.A. 20-3018(b), and he now raises three issues on appeal:
1. Did the district court have jurisdiction to convict Johnson of aggravated indecent solicitation of a child?
2. Did the district court err in refusing to admit a police report for the purpose of impeaching a witness?
3. Did the prosecutor s comments during closing argument deprive Johnson of a fair trial?
We reverse the conviction and remand with instructions to vacate the sentence because of error on issue one, which makes the remaining issues moot.
FACTS
In March 2002, the mother of D.M. (also D.A.M.), date of birth December 12,1997, and I.M., began dating the defendant, Bobby L. Johnson. She introduced her two children to Johnson several months later.
On or around July 2, 2002, Johnson drove 4-year-old D.M. and I.M. to Lake Shawnee to watch fireworks without their mother. Two days later D.M. told her mother that she did not want to go anywhere with Johnson because he did something “nasty.” D.M. stated that when Johnson took her to the park, he made her sit in the truck while he “wiggled his weaner . . . until milk came out.” According to D.M., Johnson offered her cotton candy if she would drink the milk, but she declined. Upon hearing D.M.’s story, her mother called the police.
D.M. informed the police that some of Johnson’s “milk” had gotten on her clothing. Based on this information, police collected clothing that was possibly worn by D.M. at the time of the incident. KBI testing indicated that seminal fluid matching Johnson’s DNA was present on D.M.’s shorts.
Johnson was charged with one count of aggravated indecent liberties with a child, i.e., lewd fondling, in violation of K.S.A. 21-3504(a)(3)(A). The charge was later replaced by the solicitation version of aggravated indecent liberties with a child, (a)(3)(B) of K.S.A. 21-3504.
At trial, D.M. testified that during the trip to the lake, she and her brother I.M. played on the playground equipment while Johnson sat in his truck. At some point, D.M. wet her pants and went back to the truck; I.M. continued to play. D.M. stated that she got into the truck by herself with Johnson in the front seat while he was “moving his private around.” When asked to clarify what “private” meant, D.M. pointed between her legs. She testified that Johnson’s hand was “moving around” until white “[m]ilk came out.” The “milk” got on Johnson’s clothes and D.M.’s pants.
Johnson denied being at the park alone with the children. He further denied asking D.M. to “lick” his penis in exchange for cotton candy. Because D.M’s mother owed Johnson $250 for getting her out of jail, Johnson believed that she was merely trying to avoid the debt. Johnson testified that after engaging in intercourse with the mother, he ejaculated in a condom, and fell asleep; however, when he woke up, the condom was gone. According to Johnson, the mother stated that she “took care of that.”
In addition to the formal charge, the State also proposed a jury instruction based upon aggravated indecent solicitation of a child under K.S.A. 21-3511(a), purportedly a lesser included offense of K.S.A. 21-3504(a)(3)(B). It never amended the complaint to include this charge. Johnson did not object to the instruction and agreed that it was proper.
The jury acquitted Johnson of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(B) but convicted him of the purported lesser included offense of aggravated indecent solicitation under K.S.A. 21-3511(a). He was sentenced to probation with an underlying 20-month prison sentence. The Court of Appeals affirmed Johnson’s conviction.
ANALYSIS
Issue: The district court did not have jurisdiction to convict Johnson of aggravated indecent solicitation of a child.
Johnson argues that the district court lacked jurisdiction to convict him of aggravated indecent solicitation of a child. More specifically, he asserts that this crime was not charged and does not constitute a lesser included offense because all of its statutory elements are not identical to some of the elements of the crime charged. See K.S.A. 2006 Supp. 21-3107(2)(b).
If Johnson is correct regarding the lack of identical elements, the district court had no jurisdiction over the lesser offense. As we stated in State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000), “ If a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.’ ” A judgment for an offense where the court is without jurisdiction to decide the issue is void. State v. Belcher, 269 Kan. at 8.
Whether jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Rupnick, 280 Kan. 720, 741, 125 P.3d 541 (2005). Additionally, to the extent resolution of this issue necessitates interpretation of a statute, this court’s review is unlimited. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).
Initially, Johnson was charged under K.S.A. 21-3504(a)(3)(A)— aggravated indecent liberties with a child. The statute states in relevant part:
“(a) Aggravated indecent liberties with a child is:
(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.”
Perhaps because the initial charge under (a)(3)(A) requires actual physical contact, the State replaced it with subsection (a)(3)(B) of K.S.A. 21-3504: “soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy tire sexual desires of the child, the offender or another.” Based upon subsection (a)(3)(B), the jury was instructed that the State had to prove:
“1. That the defendant solicited D.A.M. to engage in fondling or touching or [sic] tlie person of another, Bobby L. Johnson, in a lewd manner, with the intent to arouse or satisfy the sexual desires of the child or the defendant.
“2. That at the time of the act, D.A.M. was a child under die age of 14; and
“3. That this act occurred on or about the 2nd day of July, 2002, in Shawnee County, Kansas.” (Emphasis added.)
Johnson asserts that the charged offense, K.S.A. 21-3504 (a)(3)(B), is not applicable to the present facts because the statute prohibits soliciting a child to engage in lewd fondling or touching of the person of another — not the offender. Johnson cites State v. Dickson, 275 Kan. 683, 69 P.3d 549 (2003), in support. There, this court construed K.S.A. 21-3505(a)(3), which prohibits “causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.” (Emphasis added.) After reviewing the legislative history regarding amendments to K.S.A. 21-3505(a), this court concluded that “legislative history and legislative intent that reasonably can be inferred support a construction of K.S.A. 21-3505(a)(2) and (3) as prohibiting the accused’s engaging in sodomy with a child and the accused’s causing a child to engage in sodomy with a person other than the defendant or animal respectively.” (Emphasis added.) 275 Kan. at 693. Because the evidence at trial did not address a third party, this court reversed Dickson’s criminal sodomy conviction. 275 Kan. at 695. Johnson argues that Dickson is analogous to the present case because K.S.A. 21-3504(a)(3)(B) “even more clearly requires a showing of involvement of a third party.”
The State responds that Dickson is not applicable because there tire court did not construe the statutes at issue in this case. The State maintains that unlike in Dickson, the plain language of the statute in the present case does not require the involvement of a third party:
“[The Legislature] set out one provision covering factual scenarios where the fondling or touching actually occurred, K.S.A. 21-3504(a)(3)(A), and one provision where the fondling or touching is merely requested by the defendant, 21-3504(a)(3)(B). As such, the State argues that interpreting the ‘person of another’ in 21-3405(a)(3)(B) to include the defendant himself does not make that provision identical to any other provision of 21-3504, as was the effect of such interpretation under 21-3505 [by the Dickson court].”
After reviewing Dickson, the Court of Appeals agreed with Johnson — that the phrase “person of another” requires a third party. 34 Kan. App. 2d at 615. We agree. The plain language of the statute does not support the State’s interpretation. See State v. Denney, 278 Kan. 643, 650, 101 P.3d 1257 (2004) (when a statute is plain and unambiguous, the court must give effect to the intent of the legislature as expressed rather than determine what the law should or should not be).
As stated previously, K.S.A. 21-3504(a)(3)(B) criminalizes “soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another(Emphasis added.) Notably, the second half of the statute differentiates among (1) the child, (2) the offender, or (3) another. The legislature could have easily written the first part of the statute to include “fondling or touching of the offender or another” but apparently chose not to do so. Similarly, subsection (a)(3)(A) differentiates between “the person of either [1] the child or [2] the offender.” The plain and unambiguous language of (a)(3)(B) — “person of another” — requires a third party.
Although the Court of Appeals agreed that Johnson could not have been convicted of the charged crime, it noted that Johnson was instead convicted of the purported lesser included offense. 34 Kan. App. 2d at 615. It then addressed whether aggravated indecent solicitation of a child under K.S.A. 21-3511(a) qualifies as a lesser included offense of K.S.A. 21-3504(a)(3)(B).
The court first recited the language of K.S.A. 21-3511(a) and observed that its element of “an unlawful sexual act” was expressly defined in K.S.A. 21-3501(4). 34 Kan. App. 2d at 616. It then continued the analysis by comparing the elements of the principal crime with those of its purported lesser included offense:
“Comparing the elements of the principal charge with those of the [purported] lesser included, aggravated indecent liberties with a child is established by proof of the following elements: (1) soliciting, (2) a child under the age of 14, (3) to engage in lewd fondling or touching of the person of another, (4) with the intent to arouse or satisfy the sexual desires of the child, the offender, or another. See K.S.A. 21-3504(a)(3)(B). In contrast, aggravated indecent solicitation of a child, as the jury was instructed in this case, is established by the following elements: (1) enticing or soliciting; (2) a child under the age of 14; (3) to commit or submit to an unlawful sexual act. See K.S.A. 21-3511(a). As noted above, ‘unlawful sexual act’ is expressly defined by statute to include aggravated indecent liberties with a child. See K.S.A. 21-3501(4).” 34 Kan. App. 2d at 616.
The Court of Appeals then concluded that aggravated indecent solicitation qualified as a lesser included offense and consequently rejected Johnson’s argument that the district court was without jurisdiction to convict.
“Given this strict application of the elements test, we are at a loss to identify any element of the lesser charge (as applicable to Johnson) that is not also included in the principal charge. K.S.A. 21-3511(a) criminalizes any solicitation of a child under the age of 14 to engage in conduct that includes by definition aggravated indecent liberties. Whereas the principal charge here was limited to ‘soliciting the child to engage in any lewd fondling or touching ... of another,’ the purported lesser included offense was not limited to acts involving a third person, but clearly included, these elements. Applying the identity of elements test, we have no difficulty concluding that all of the elements of the lesser included offense are among the statutory elements required to prove the principal crime charged. [Citation omitted.]” 34 Kan. App. 2d at 616.
We need not review the court’s overall conclusion because the exact question before us is much more narrow. As Johnson’s petition for review articulates his argument, the jury instruction based upon K.S.A. 2005 Supp. 21-3511(a) encompasses Johnson’s solicitation of D.M. to engage in lewd fondling or touching only of Johnson or D.M. Consequently, it cannot be a lesser included offense of K.S.A. 21-3504(a)(3)(B) which requires solicitation by Johnson of D.M. to engage in fondling “the person of another,” i.e., not Johnson.
We observe that according to the given instruction for aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a), the State had to prove:
“1. That the defendant solicited or enticed D.A.M. to commit or submit to an unlawful sex act;
“2. That at the time of the act, D.A.M. was a child under 14; and
“3. That this act occurred on or about the 2nd day of July, 2002, in Shawnee County, Kansas.” (Emphasis added.)
We further observe that the instructions specifically defined the solicited or enticed “unlawful sex act” as “lewd fondling or touching of the defendant or D.A.M., a child who is under 14, with the intent to arouse or satisfy the sexual desires of D.A.M. or the defendant.” (Emphasis added.)
We acknowledge that the Court of Appeals is correct that K.S.A. 21-3501(4) broadly defines the solicited or enticed “unlawful sexual act” as including, among other things, “any . . . aggravated indecent liberties with a child” — which can include the person of another. Among other things, however, the State must prove an unlawful sexual act, which is accomplished by proving the elements of one of the crimes listed in the definition of unlawful sexual act. In that endeavor, the elements of that particular crime, e.g., aggravated indecent liberties with a child, necessarily become incorporated into the elements of the crime of aggravated indecent solicitation of a child.
By proposing a jury instruction that limited solicitation of an unlawful sexual act to “lewd fondling or touching of the defendant or D.A.M.” — not the person of another — the State essentially chose to prove as Johnson’s solicited unlawful sexual act the version of aggravated indecent liberties with a child contained in K.S.A. 21-3504(a)(3)(A). As a result, in order for aggravated indecent solicitation in this case to be a lesser included offense of the version of aggravated indecent liberties actually charged — (a)(3)(B)—lewd fondling or touching of the offender or the child must be an element of both crimes. See K.S.A. 2006 Supp. 21-3107(2)(b) (stating the strict elements test). K.S.A. 21-3504(a)(3)(B), however, requires tire touching of a third person. Because all of the elements of the lesser crime, K.S.A. 21-3511(a)-necessarily incorporating K.S.A. 21-3504(a)(3)(A) — are not identical to some of the elements of the crime charged, K.S.A. 21-3504(a)(3)(B), aggravated indecent solicitation in the present case is not a lesser included offense of aggravated indecent liberties. While it may be a lesser charge, it is not a lesser included charge.
Because K.S.A. 21-3511(a) was not specifically stated in the complaint or was not a lesser included offense of one that was, the district court lacked jurisdiction to convict Johnson of that crime. The conviction is reversed.
Johnson’s agreement at trial that the jury instruction was proper does not change this analysis. In Belcher, 269 Kan. at 9, discussed previously, this court cited State v. Chatmon, 234 Kan. 197, 671 P.2d 531 (1983). In Chatmon, the defendant himself requested and received an instruction on rape’s lesser included offense of batteiy. When he was convicted of batteiy, he argued the instruction was clearly erroneous, while the State responded that the error was invited. Chatmon rejected the State’s assertion, holding that “[a] judgment of the offense of battery where the court is without jurisdiction to decide the issue is void.” 234 Kan. at 205.
Because of our reversal, it is unnecessary to address Johnson’s remaining claims. See State v. Belcher, 269 Kan. at 9.
Reversed and remanded with instructions to reverse Johnson’s conviction and vacate the sentence. | [
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The opinion of the court was delivered by
Davis, J.:
Breland Davis appeals his conviction of first-degree premeditated murder, contending that the trial court committed reversible error by: (1) admitting hearsay evidence in violation of his confrontation rights; (2) refusing to give a cautionary instruction regarding accomplice testimony; (3) refusing to instruct the jury that “mere presence” at a crime scene does not necessitate a finding of guilt; and (4) committing cumulative error that requires reversal of his conviction. Davis also claims that the trial court assessed BIDS fees without first making findings regarding his ability to pay or the financial burden the fees would impose. We affirm defendant’s conviction and sentence but reverse and remand on the BIDS fees question for a hearing regarding defendant’s ability to pay such fees.
The defendant, Breland D. Davis, and the victim, Maurice Williams, were friends and lived close to one another. However, a few days before the murder of Williams, the defendant became upset with Williams because Williams had not stepped in when one of their other friends was “jumped” at Davis’ apartment.
John Dickerson was a cousin of the defendant, and according to all the evidence at trial he was involved in the murder of Williams. On the night of the murder, John Dickerson was at the house of Latasha Kines. She testified at trial over defendant’s hearsay objection that while she was engaged in sexual intercourse with Dickerson, he received a call on his cell phone. She stated that Dickerson told her the call was from his cousin, the defendant, who she overheard saying on the phone that he “had this nigger in the house and he wanted to kill him.” The objection related to the hearsay statement of Dickerson: “It is my cousin Breland.” After this call, Dickerson left Kines’ house and returned sometime later with defendant and others.
At Dickerson’s request, Kines drove him and the others to Davis’ house. The defendant followed in Dickerson’s vehicle. Once they all arrived at defendant’s house, Kines was told to stay in her car while the others went inside. After awhile, she left her car, went up to the house, and entered into the kitchen, where she saw blood on the kitchen floor. Dickerson again told Kines to wait in her car. The others later returned to the cars, and Kines was told to pop the trunk. She did so and felt a heavy load put in the trunk of the car. The defendant told Kines to drive to Grove Park. At the park, Kines again popped the trunk, then waited in the car as defendant and one other person carried something in a blanket; Dickerson waited outside the car. After leaving Grove Park, Kines was told to stop at a dumpster, where she popped the trunk once again and stayed in the car.
Early the next morning, a man looking for aluminum scraps in a dumpster found a rug and some sheets that he thought he would salvage for his sister. When he returned home, he saw that there was hlood on the rug and sheets, so he turned them over to the authorities. When the rug was shown on the evening news with a request for information, Williams’ grandfather, with whom he lived, called and identified the rug as belonging to Davis. He also filed a missing person report for Williams.
A number of people testified at trial that Davis had bragged to others regarding Williams’ murder. Davis’ cousin, Lavelle Griffin, also testified that Davis had shown him the gun used to kill Williams, a .410 shotgun, and had explained that they put a potato over tire gun to muffle the sound when Williams was shot. In addition, Griffin overheard that Williams’ body was buried in Grove Park.
The victim’s blood was found at the defendant’s apartment and on Davis’ shoelace. The victim’s body was found at Grove Park, where Kines stated that Davis and the odiers had dumped it the night of the victim’s murder. The blood on the rug and sheets found in the dumpster matched the victim’s DNA.
1. Admission of Hearsay Evidence in Violation of Confrontation Rights
The defendant claims that the admission over his hearsay objection of Latasha Kines’ trial testimony that Dickerson told her, “It is my cousin, Breland,” violated his rights of confrontation under the United States and Kansas Constitutions. His argument rests upon State v. Bratt, 250 Kan. 264, 270, 824 P.2d 983 (1992) (citing Idaho v. Wright, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 [1990]; Ohio v. Roberts, 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 107 S. Ct. 2531 [1980]). More specifically, the defendant argues that there was no showing that the hearsay statement was sufficiently reliable, either because it was subject to a firmly rooted hearsay exception under Kansas law or that it had other particularized guarantees of trustworthiness.
The trial court admitted Kines’ testimony under the hearsay exception in K.S.A. 60-460(d)(3), explaining:
“Under the grounds alleged under K.S.A. 60-460(d)(3), [i]f the declarant is unavailable, I find that Mr. Dickerson is unavailable, as a witness, by the declarant at a time when the matter had been recently perceived by the declarant. It was almost, again, based on the purported testimony I have heard, it is almost contemporaneous with the statement being made. Mr. Dickerson’s statement of what Mr. Davis had said was almost contemporaneous with that statement. While the declarant’s recollection was clear, I think that would be. And was made in good faith. I have no reason to find that it wasn’t made in good faith, and, again, under the circumstances shown by the purported evidence, based on statements of the attorneys, I find no incentive to . . . falsify or distort. So under (d)(3), I would allow the statement of Ms. Kines.”
The above findings echo the requirements of K.S.A. 60-460(d)(3):
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when tire matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
This court reviews a trial court’s determination that hearsay is admissible under a statutory exception, such as K.S.A. 60-460(d)(3) here, for an abuse of discretion. “ The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). However, Davis does not challenge tire trial judge’s determination that Dickerson’s statement was admissible under K.S.A. 60-460(d)(3).
Instead, Davis contends that the admission of Dickerson’s statement violated his constitutional right to confront witnesses against him. This court’s confrontation analysis is undertaken without def erence to the trial court’s interpretation of the law. State v. Bailey, 263 Kan. 685, 697, 952 P.2d 1289 (1998).
During the pendency of defendant’s case before this court, the United States Supreme Court decided Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). There, the Court considered two consolidated cases — one from Washington, involving the admissibility of statements during a 911 call, and one from Indiana, involving the admissibility of statements made to police officers at a crime scene — to determine whether the statements in each case violated the respective defendants’ rights under the Sixth Amendment’s Confrontation Clause. Before undergoing an analysis of each of the statements, however, the Court explained that it “must decide . . . whether the Confrontation Clause applies only to testimonial hearsay.” 547 U.S. at 823.
This issue was considered but tabled by the Court in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). In that case, the Court declined to “definitively” hold that “the Confrontation Clause [applies] only to testimonial statements, leaving tire remainder to regulation by hearsay law.” 541 U.S. at 61. Instead, Crawford stated that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” 541 U.S. at 68.
In Davis, the Court clarified that nontestimonial hearsay does not implicate the Confrontation Clause at all. As the Court explained:
“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 1777 (2004), we held that this provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase ‘testimonial statements.’ Only statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. See [Crawford, 541 U.S. at 51]. It is the testiirwnial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Emphasis added.) 126 S. Ct. at 2273.
After Davis, the test to determine whether the admission of a hearsay statement violates a defendant’s rights under the Confrontation Clause turns on whether the statement is testimonial. If a statement is found to be testimonial, it must be excluded unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68. If a statement is not testimonial, tiren it does not implicate the Confrontation Clause, and the only consideration before the court is whether it may be admitted under one of the statutory exceptions to Kansas hearsay law. See Davis, 126 S. Ct. at 2273-74. A trial court’s determination of whether a statement is admissible under the Kansas hearsay statutes is reviewed by this court for an abuse of discretion, which includes a determination that the trial court’s discretion was exercised in light of a correct understanding of the applicable law. White, 279 Kan. at 332; Bailey, 263 Kan. at 697.
This confrontation analysis substantially alters the analysis of statements under the Confrontation Clause in this court’s previous decisions. See, e.g., State v. Lackey, 280 Kan. 190, 199, 120 P.3d 332 (2005), cert. denied 126 S. Ct. 1653 (2006); State v. Meeks, 277 Kan. 609, 613-14, 88 P.3d 789 (2004); State v. Betts, 272 Kan. 369, 382-84, 33 P.3d 575 (2001); State v. McKinney, 272 Kan. 331, 342-44, 33 P.3d 234 (2001); State v. Deal, 271 Kan. 483, 500-01, 23 P.3d 840 (2001); Bailey, 263 Kan. at 692-94; Bratt, 250 Kan. at 269-70. In particular, the Davis analysis is markedly different from die confrontation analysis in Bratt, on which the defendant relies in his brief, which employed the two-prong unavailability and reliability test set forth in Ohio v. Roberts, 448 U.S. 56, regardless of the testimonial character of the statement in question. To the extent that the analysis in previous decisions of this court differs from the Confrontation Clause analysis set forth in this opinion, these previous decisions are overruled.
The United States Supreme Court has not provided a “comprehensive definition” of what causes a statement to be “testimonial” for purposes of the Confrontation Clause. See Davis, 547 U.S. 822; Crawford, 541 U.S. at 68; Lackey, 280 Kan. at 200-01. This court need not consider such a definition in this case, however, because Davis concedes that the hearsay statement by Dickerson to Kines was not testimonial. Because the hearsay statement was nontestimonial, the trial court’s admission of that statement does not implicate Davis’ rights under the Confrontation Clause of the United States or Kansas Constitution.
Davis’ rights under the Confrontation Clause were not violated when the trial court admitted the hearsay statement by Dickerson to Kines. Furthermore, Davis does not contend that the trial court abused its discretion when it admitted the statement under K.S.A. 60-460(d)(3). Therefore, the trial court did not err when it allowed Kines to testify as to Dickerson’s hearsay statement.
2. Refusal to Give an Accomplice Instruction
Davis claims the trial court committed reversible error when it refused to grant his request for a cautionary instruction on accomplice testimony regarding Kines’ trial testimony. When considering the refusal of the trial court to give a specific instruction, the evidence is viewed in the light most favorable to the party requesting the instruction. State v. Lutter, 27 Kan. App. 2d 858, 860, 10 P.3d 16, rev. denied 270 Kan. 902 (2000).
“A trial court has discretion in giving instructions to the jury. On appeal, tire instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts. [Citation omitted.] . . . When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If tire instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they maybe in some small way erroneous. [Citation omitted.]” State v. Johnson, 255 Kan. 252, 256-57, 874 P.2d 623 (1994).
The requested instruction, PIK Crim. 3d 52.18, pertains to accomplice witness testimony and specifically provides that it applies to witnesses who testify that they were “involved in the commission of the crime with which the defendant is charged.” Thus, the threshold question is whether Kines can be considered an “accom plice” within the meaning of the instruction. The relevant case law suggests that she cannot.
This court has explained that, “[a]s to the accomplice instruction, PIK Crim. 3d 52.18 defines an accomplice as one who testifies that he or she was involved in the commission of the crime with which the defendant is charged.” State v. Abel, 261 Kan. 331, 336, 932 P.2d 952 (1997), disapproved in part on other grounds State v. Mathenia, 262 Kan. 890, 898-99, 942 P.2d 624 (1997). In that case, the defendant Abel was charged with and convicted of felony murder, aggravated burglary, and aggravated robbery. On appeal, Abel asserted that the trial court should have provided the cautionary accomplice instruction regarding two of the State’s witnesses. This court summarily rejected Abel’s argument, finding that the contention that “an accomplice instruction was required fads as there was no testimony that either [witness] acted as [an accomplice] in the murder, aggravated burglary, or aggravated robbery charged.” 261 Kan. at 336; see also State v. Noriega, 261 Kan. 440, 447, 932 P.2d 940 (1997), disapproved in part on other grounds State v. Mathenia, 262 Kan. 890, 898-99, 942 P.2d 624 (1997) (“Noriega’s argument that an accomplice instruction was required fails as there was no testimony that either [witness] acted as [an accomplice] in the murder, aggravated burglary, or aggravated robbery charged.”).
Similarly, in State v. Humphery, 267 Kan. 45, 47, 978 P.2d 264 (1999), the defendant was convicted of felony murder, aggravated burglary, and criminal possession of a firearm. At his trial, Simmons, a witness for the State, testified that she was present when the victim was killed and identified Humphery as tíre killer. Another witness, Kelsey, also testified that he was present and identified Humphery as the shooter. On appeal, the defendant argued that, while it was not requested, the court should have given an accomplice instruction with regard to these two witnesses’ testimony. 267 Kan. at 62.
This court rejected the defendant’s argument that an accomplice instruction was required, because the witnesses were not accomplices within the meaning of the instruction. 267 Kan. at 62-63. The Humphery court explained:
“Simmons does not fit the definition of an accomplice .... The entire basis of her testimony was that she had sex with [the victim] and directed him to drive to [the place where he was shot], but she was not involved in the robbery or the murder in any way. Some of the evidence presented at trial could sustain the inference that Simmons was involved in the crime, but she is not an accomplice as contemplated by the jury instruction on accomplices. . . . Furdier, it cannot be said that Simmons or Kelsey were accomplices under a conspiracy theory because there was no evidence of a conspiracy.” 267 Kan. at 62-63.
In State v. Gholston, 272 Kan. 601, 35 P.3d 868 (2001), cert. denied 536 U.S. 936 (2002), where Gholston was convicted of first-degree murder, this court again held that an accomplice instruction was not required where there was no evidence that the witness in question was an accomplice. At trial, the court admitted both live testimony and tape-recorded statements of Berger, who had at one time been “considered by the police as an accomplice in the shooting.” 272 Kan. at 616. Apparently, at some time prior to trial, the detective on the case had threatened to prosecute Berger for the crime of accessory to murder if she did not cooperate. Berger later testified that she was with Gholston the night of the shooting and had gone with him and a group to the convenience store, and identified Gholston as the shooter.
Among other arguments, Gholston argued on appeal that tire court should have given the cautionary instruction regarding accomplice testimony with reference to Bergers statements. This court reasoned that
“although [the detective] Hennessy told Berger that her actions on the night of the shooting could result in the charge of murder as an aider and abettor, there is no evidence that Berger had knowingly associated or participated in the crime. ... In statements to Gholston’s attorney, Berger stated that she never saw the gun in the car, she never saw Gholston get out of tíre car with a gun, and she never saw the gun until she saw Gholston shooting. In a taped interview with Hennessy, Berger stated diat she did not know Gholston had a gun until the shooting stalled.” 272 Kan. at 618.
In light of the lack of evidence that would link Berger as an accomplice, this court held that “the judge was not required to give an accomplice instruction.” 272 Kan. at 618.
The record establishes that Kines was not “involved in the commission of the crime with which [Davis was] charged,” and thus was not an accomplice within the meaning of the requested instruction. There is no evidence that Kines was present at the time that the victim was murdered, nor was she involved in the planning of the murder. Davis argues that Dickerson may have made statements that Kines was present at the time of the killing, but these “statements” were only mentioned at trial in the form of a cross-examination question by Davis’ counsel:
“Q. [Defense Counsel] . . . Did Detective Chisholm also tell you that John said you were present during the shooting?
“A. [Kines] Yes.
"Q. Was that true?
“A. No.
“Q. So you weren’t there when the shooting happened?
"A. No.”
This implication by Davis’ counsel offers no substantive evidence that Kines was present when the victim was killed. On tire contrary, the only evidence at trial regarding Kines’ whereabouts and involvement was offered by Kines herself; she testified that she was not present. Moreover, there was no evidence that she otherwise participated in the planning or commission of the murder, other than the events, described in her testimony, which occurred “after the fact.”
Defendant argues that being a mere, accessory after the fact is enough to warrant an accomplice instruction. Defendant relies upon State v. Rakestraw, 255 Kan. 35, 871 P.2d 1274 (1994), where this court reversed the defendant’s conviction of second-degree murder because the trial court erred by admitting a redacted, out-of-court statement of the defendant, depriving him of a fair trial. 255 Kan. at 35, 46. In addition to its holding, this court also agreed that the trial court should have provided an accomplice instruction with regard to statements made by a witness named Harris. 255 Kan. at 46. The Rakestraw court explained in this regard:
“At trial, the defendant requested an accomplice instruction, but the trial judge denied the request on the basis that being charged as an accessory would not make Harris an accomplice. Only if Harris had been charged with the same crime would he have been an accomplice. While it is true that Harris was not charged with murder, Billingsley [a codefendant] at least implicated Harris in the beating. Although Billingsley denied witnessing the beating, he placed Harris at the scene, and his defense counsel tried to cast doubt on Harris’ claim that he was not involved in the fight and was spattered with blood only while trying to render aid to the victim. Upon remand, it would be appropriate for the trial court to grant the defendant’s request and give the cautionary instruction on accomplice testimony. We need not and do not decide whether the failure to give such an instruction was reversible error. We do conclude that the question is close enough for us to advise tire court to give a cautionary instruction on accomplice testimony if Harris testifies at the new trial.” 255 Kan. at 46.
Davis argues that these statements in Rakestraw indicate that this court has “recognized the propriety of giving the cautionary instruction in cases where the witness’ testimony would only render the witness an accessory after the fact, not an aider and abettor.” Davis misconstrues Rakestraw, which explained that the accomplice instruction would be appropriate because there was evidence and testimony at trial that indicated that the witness was involved in the commission of the murder. Furthermore, this court did not state that a failure to provide the instruction, even when it was requested in such circumstances, was reversible error. Instead, the court counseled that an accomplice instruction would be “appropriate” in the new trial. See 255 Kan. at 46. Thus, Rakestraw provides no basis for Davis’ argument here that Kines’ participation in events after the murder would make her an accomplice within the meaning of the instruction.
According to Davis’ brief, “[wjhether [Kines] actually admitted to being involved before the murder is irrelevant to the analysis. She was, by her own testimony, involved in the events of that evening.” This court has specifically rejected tire idea that mere “involvement in events” makes a witness an accomplice within the meaning of PIK Crim. 3d 52.18. See Gholston, 272 Kan. at 618. Instead, the witness must have been involved in the commission of the crime with which the defendant is charged. There is no evidence here to support Davis’ claim that Kines was an accomplice within the meaning of PIK Crim. 3d 52.18. Thus, the accomplice instruction was neither required nor appropriate.
3. Refusal of a Mere Presence Instruction
Davis also asserts that this court should reverse due to the trial court’s refusal to provide an instruction that mere presence at the crime scene is not evidence of guilt. While Davis did not submit jury instructions before trial, his counsel at trial requested that such an instruction be given. The court agreed that the proposed “mere presence” instruction was a correct statement of the law, but refused to give the instruction since it was already giving the aiding and abetting instruction under PIK Crim. 3d 54.05. However, the court did state that Davis’ counsel could describe the law on “mere presence” in his closing argument, which he later did.
The aiding and abetting instruction provided by the trial court, stated:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, [or] procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
See PIK Crim. 3d 54.05.
In general, when considering the refusal of the trial court to give a specific instruction, the evidence is viewed in the light most favorable to the party requesting the instruction. State v. Lutter, 27 Kan. App. 2d 858, 860, 10 P.3d 16, rev. denied 270 Kan. 902 (2000). In cases where a defendant objects to instructions, this court is required to consider the instructions as a whole and not isolate any one instruction. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006). “ ‘ “If the instructions properly and fairly state law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.” ’ ” State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004) (quoting State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 [2002]).
Davis’ proposed instruction is a correct statement of the law that “mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of a crime.” State v. Wakefield, 267 Kan. 116, 121, 977 P.2d 941 (1999). While an appellate court must usually view the evidence in the light most favorable to the defendant when a proposed instruction has been refused, this court has specifically stated that a “mere presence” instruction need not be included when the trial court provides the aiding and abetting instruction in PIK Crim. 3d 54.05. State v. Hunter, 241 Kan. 629, 638-39, 740 P.2d 559 (1987). In Hunter, this court explained that previous cases had held that “the PIK instruction given clearly informed the jury that intentional acts by a defendant must be proved to convict for aiding and abetting and, thus, proof of mere association or presence would be insufficient to convict. Therefore, the refusal to give defendant’s requested instruction was not error.” 241 Kan. at 639.
This court had the opportunity to reconsider the Hunter rule in State v. Pink, 270 Kan. 728, 738-39, 20 P.3d 31 (2001), in the context of a similar proposed instruction that “mere association” does not establish guilt as an aider or abettor. Instead of reversing Supreme Court precedent, the Pink court found that “[i]t is well established under Kansas cases that the concept of ‘mere association’ which is embodied in the instruction set forth above and the refusal of the trial Court to give an additional instruction on mere association is not erroneous. [Citations omitted.]” 270 Kan. at 739. Thus, the court held that the trial court’s refusal to give a “mere association” instruction was not error.
Davis acknowledges that our decision in Hunter states that the trial court was not required to give his proposed instruction, but nevertheless argues that this decision should be “reconsidered.” According to Davis in his brief, “[s]ome jurors may be inclined to apply the idea of guilt by association,” and “the jury should have as much information of and guidance on the law as possible” to prevent misunderstanding. Because the “mere presence” instruction would have been a correct statement of the law, Davis argues that “[t]here simply is no good reason for refusing to give the instruction.”
We disagree and reject defendant’s request to reexamine our holding in Hunter. The defendant’s argument is based upon speculation that a jury might convict based upon defendant’s mere presence. However, this court has stated that “[j]uries are presumed to have followed the instructions given by the trial court. [Citation omitted.]” State v. Tyler, 251 Kan. 616, 638, 840 P.2d 413 (1992). In addition, this court has explained that “[e]rror cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused. [Citations omitted.]” State v. Osbey, 238 Kan. 280, 286, 710 P.2d 676 (1985). There is no evidence that any of the jurors actually misunderstood the requirement that the State must prove intentional acts to prove guilt. We conclude that the aiding and abetting instruction adequately encompassed the “mere presence” rule, and that it was not reversible error for the trial court to refuse to give the instruction in this case.
4. Cumulative Error
Davis next argues that, even if the events described in Issues I through III — the admission of Kines’ testimony regarding John Dickerson’s statement, “It is my cousin Breland,” when he received a phone call; the trial court’s refusal to give a cautionary instruction regarding accomplice testimony; and the trial court’s refusal to give an instruction that “mere presence” does not amount to guilt— were not in and of themselves reversible error, the cumulative effect of these events denied Davis his right to a fair trial.
In State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006), this court recently explained:
“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. [Citation omitted.]”
With the exception of the final assignment of error by the defendant, the record simply does not support all other errors raised, and therefore the record does not support a claim of cumulative error.
5. BIDS Fees Assessment and Ability to Pay
In his final issue raised on appeal, Davis asserts that the trial judge improperly assessed fees to be paid to the Board of Indigents’ Defense Services (BIDS), including $7,000 in attorney fees and $50 in administrative costs, without first considering the financial resources of Davis or the burden that the fees would impose.
At sentencing, the trial judge did not discuss the BIDS fees or attorney fees at any length, but simply assessed against Davis, among other court costs and compensation, “$7,000 as partial reimbursement to the State of Kansas for the cost of your court appointed attorney” and a “$50 fee to BIDS. That’s the Board of Indigent [sic] Defense Services in Topeka . . . .” The judge did not explain the origins of these numbers, nor did he make any findings on the record regarding Davis’ ability to pay the fees. Davis now argues that, because the trial court failed to malee these findings, this court should reverse the judge’s assessment of the BIDS fees against him. We agree.
This court recently resolved these issues in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). In that case, Robinson was convicted of felony possession of marijuana and misdemeanor possession of drug paraphernalia. In addition to his incarceration and probationary sentences, the sentencing court assessed BIDS attorney and administrative fees of $745 and $50, respectively. Robinson challenged the assessment of these fees on the ground that the sentencing judge failed “to explicitly consider [his] ability to pay and the financial burden payment would impose at the time of the assessment,” and claimed a due process violation because the judge did not consider the validity of the fees. 281 Kan. at 539.
On appeal, this court rejected the due process claim but reversed the trial court’s assessment of the BIDS fees on Robinson’s first claim. 281 Kan. at 548. In particular, the court held that a trial court must consider a defendant’s ability to pay and the hardship that a fee would impose at the time payment is ordered. 281 Kan. at 543. As the Robinson court explained:
“The language of K.S.A. 2005 Supp. 22-4513(b) clearly requires a sentencing judge, ‘in determining the amount and method of payment’ of BIDS reimbursement, i.e., at the time the reimbursement is ordered, to ‘take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.’ The language is mandatoiy; the legislature stated unequivocally that this ‘shall’ occur, in the same way that it stated unequivocally that the BIDS fees ‘shall’ be taxed against the defendant. Compare K.S.A. 2005 Supp. 22-4513(a), (b). The language is in no way conditional. There is no indication that the defendant must first request that the sentencing court consider his or her financial circumstances or that the defendant must first object to the proposed BIDS fees to draw the sentencing court’s attention to those circumstances.” 281 Kan. at 543-44.
The Robinson court also rejected the State’s waiver argument where the State argued, as it does here, that the waiver provision in K.S.A. 2005 Supp. 22-4513(b) indicates that an assessment of a defendant’s ability to pay and the financial burden imposed by a fee should be assessed after a defendant has petitioned for waiver of an assessed BIDS fee. This court explicitly found this argument to be without merit. According to the court’s reasoning, “the fact that the statute also permits a defendant to petition for waiver does not change the mandatory language or mean the waiver procedure is intended as a substitute for the sentencing court’s initial consideration of a defendant’s finances.” 281 Kan. at 544.
The court concluded its discussion of Robinson’s BIDS fees with three instructions regarding the proper application of its ruling:
“First, the sentencing court, at the time of initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court’s decision. Without an adequate record on these points, meaningful appellate review of whether the court abused its discretion in setting the amount and method of payment of the fees would be impossible. [Citation omitted.]
“Second, a sentencing court’s failure to include such explicit consideration of the defendant’s financial circumstances in the record does not render the sentence associated with the resulting assessment ’illegal/ as that term is used in K.S.A. 22-3504. As we have already said, the assessment itself is not punitive; it is not a punishment or part of the sentence at all. . . .
“Third, and finally, we . . . recognize that subsection (a) of K.S.A. 2005 Supp. 22-4513 states that taxation of ‘all expenditures’ by BIDS shall occur and that neither subsection (a) nor subsection (b) explicitly states consideration of a defendant’s financial resources must occur ‘at sentencing.’ However, reading the subsections together, this is their practical effect. The consideration must occur, and sentencing is the proceeding that routinely addresses BIDS reimbursement.” (Emphasis added.) 281 Kan. at 546-47.
In the instant case, the sentencing judge made no explicit, on-the-record finding at the original assessment of BIDS fees against Davis regarding his ability to pay the fees or the financial burden the fees would impose. The statutory framework under which Davis’ BIDS fees were imposed was identical to that discussed in Robinson. Thus, while the sentencing court’s failure to make on-the-record findings regarding Davis’ fees does not affect the legitimacy of Davis’ conviction or sentence, it nevertheless is cause for reversing the court’s BIDS assessment. We therefore reverse the BIDS assessment and remand for an assessment consistent with this court’s opinion in Robinson.
The conviction of defendant is affirmed; the BIDS assessment is set aside, and the case is remanded for an assessment consistent with Robinson. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs are Indian Tribes that filed an action in the United States District Court seeking an order enjoining Kansas officials’ enforcement of the motor-fuel tax law, K.S.A. 79-3401 et seq. (Act), and a determination that the Act does not authorize assessment of tax on motor fuel delivered and sold by a Nebraska tribal corporation to tribes in Kansas for on-reservation retail sale. Injunctive relief was granted by tire federal district court, see Winnebago Tribe of Nebraska v. Stovall, 205 F. Supp. 2d 1217 (D. Kan. 2002), and Winnebago Tribe of Nebraska v. Sto vall, 216 F. Supp. 2d 1226 (D. Kan. 2002), and affirmed by the Tenth Circuit Court of Appeals, 341 F.3d 1202 (10th Cir. 2003). Federal District Judge Thomas Marten certified the following question of law' to this court pursuant to K.S.A. 60-3201:
“DOES THE KANSAS MOTOR-FUEL TAX, K.S.A. 79-3401 ET SEQ., IMPOSE FUEL TAX COLLECTION OR PAYMENT RESPONSIBILITY UPON NON-RESIDENT INDIAN TRIBES WHO IMPORT FUEL FROM OUTSIDE KANSAS AND DELIVER THE FUEL TO OUTLETS IN INDIAN RESERVATIONS WITHIN THE STATE OF KANSAS?”
FACTS:
The federal district court’s order certifying the question to this court was precipitated by the Indian Tribes’ motion for summary judgment. In its order, the federal district court made findings of fact and set out the parties’ arguments before concluding that certification was appropriate in the absence of controlling precedent on an issue that may be determinative of the case. With the references to the district court record omitted, the following statement of facts is quoted from the federal district court’s order:
“Plaintiff Winnebago Tribe of Nebraska is a federally-recognized American Indian Tribe organized under the Indian Reorganization Act of 1934, 25 U.S.C. § 476, and is the beneficial owner of and exercises jurisdiction over the Winnebago Tribe of Nebraska Indian Reservation. The Winnebago reservation is located in northeast Nebraska, and is not contiguous to Kansas. Ho-Chunk, Inc., and plaintiff HCI Distribution are corporations organized under the laws of the Winnebago Tribe. HCI is wholly-owned by Ho-Chunk Inc., which in turn is wholly-owned by the Winnebago Tribe.
“The Winnebago Indian News, dated January 18, 2005, indicates that Ho-Chunk, Inc., the parent company of HCI Distribution, had 2003 non-gaming revenues of $80 million and was ‘featured in Inc. magazine as one of the 500 fastest growing companies in the United States.’
“According to the website maintained by the plaintiff Winnebago Tribe, Ho-Chunk, Inc., is apparently a holding company with the following ‘business list’: HCI Distribution (tobacco and gasoline products); Heritage Express (convenience stores specializing in discount gas and cigarette sales); AllNative.com (Native American e-commerce site); Blue Earth Marketing (marketing, advertising and graphic design); AHNative Office (office products, machines, furniture); Indianz.com (Native American Indian news); AllNative Systems (communications solutions); Dynamic Homes (modular housing manufacturer); HCI Construction (solutions for individual and commercial building); Ho-Chunk Community Development (501(c)3 nonprofit corporation); REZ Cars (used car dealership). The 2001 Annual Report for Ho-Chunk Inc. states that ‘Ho-Chunk, Inc. was established so that tribal business operations would be free from political influence and outside the bureaucratic process of the government.’
“On May 8, 2001, HCI mailed to the Kansas Department of Revenue both an Application for Motor Vehicle Fuel and Special Fuel Importer/Exporter License and an Application for Motor Vehicle Fuel and Special Fuel Distributor’s License. Along with these applications, HCI mailed a Motor Vehicle Fuel and Special Fuel Importer/Exporter Bond in the amount of $5,000.00 and a Motor Vehicle Fuel and Special Fuel Distributor’s Bond in the amount of $1,000.00.
“On May 11,2001, the Department returned the Application for Motor Vehicle Fuel and Special Fuel Distributor’s License and the Motor Vehicle Fuel and Special Fuel Distributor’s Bond to HCI by mail.
“According to HCI employee Crystal Appleton, when she received tire returned application and bond, she called the Department to ask why the documents were returned. The Department representative told her that the Department did not require that HCI obtain a distributor’s license, and that tire only license that HCI needed was an importer/exporter license. According to the defendant, HCI would not qualify for a distributor’s license because they indicated they did not have a place of business in the State of Kansas.
“The Department .issued to HCI a Motor Fuel Importer/Exporter License with an effective date of May 4, 2001, instead of a distributor’s license.
“Plaintiff Sac and Fox Nation of Missouri is a federally-recognized American Indian Tribe.
“The Sac and Fox Nation wholly owns and operates two retail gas stations— the Trad’n Post in Reserve, Kansas, and the Sac & Fox Truck Stop in Powhattan, Kansas. Both of these tribally-owned businesses are located on land held in trust by the United States for the benefit of the Sac and Fox Nation.
“Plaintiff the Iowa Tribe of Kansas and Nebraska is a federally-recognized American Indian Tribe. The Iowa Tribe wholly owns and operates a gas station in Kansas on land held in trust for tire Iowa Tribe by the United States of America.
"Plaintiff the Kickapoo Tribe of Indians of the Kickapoo Reservation is a federally-recognized American Indian Tribe. The facts are disputed as to the location of the Tribe’s gas stations. According to plaintiffs, the Kickapoo Tribe owns and operates two gas stations in Kansas located on lands within the exterior boundaries of the reservation pursuant to Treaties executed in 1854. According to defendants, the only gas station of the Kickapoo mentioned in the complaint is a ‘Truck Plaza’ which sits outside the boundaries of the Kickapoo Tribe’s reser/ation.
“HCI began selling fuel to the Kansas Tribes in August 2001. The Winnebago Tribe has transported the fuel sold to tire Kansas Tribes by tanker trucks from Nebraska to the Kansas Tribes’ tribal gas stations.
“At no time did the Winnebago Tribe ever purchase or receive tire subject fuel in Kansas from any person, and the fuel was not stored and did not come to rest in Kansas before its delivery by tire Winnebago Tribe to the Kansas Tribes’ fácil itíes. The Winnebago Tribe did not and does not own or lease storage facilities, transfer facilities, mixing facilities, offices or any other facilities within Kansas.
“On September 10, 2001, shortly after the Winnebago Tribe started selling motor fuel to the Kansas Tribes, defendant Lochow of the Kansas Department of Revenue sent a letter to the Winnebago Tribe. Lochow stated that HCI, as a licensed importer under tire Act, was required to report and remit Kansas fuel taxes on deliveries of fuel to any retailer in Kansas regardless of location.
“John Blackhawk, Chairman of the Winnebago Tribe, responded to Lochow’s letter on Septamber 18, 2001, writing that tire Winnebago Tribe disputed that Kansas had the right under federal law to tax the sales to fire Kansas Tribes.
“On October 17, 2001, Charles Reomer of the Kansas Department of Revenue responded to Blackhawk’s letter by once again demanding payment of the fuel tax, and stating that ‘[ujnder Kansas law, tax is due upon importation of motor fuel by the distributor of first import.’
“On April 8, 2002, defendant Scott, designee of tire Director of Taxation, Kansas Department of Revenue, submitted an Affidavit and Application for Arrest Warrant that led to the seizures of property and other actions that necessitated this lawsuit. The affidavit and application stated that ‘the distributor, importer or manufacturer on or before the 25th day of each month, shall render to the director at the director’s office in Topeka, Kansas a report “certified to be true and correct showing the number of gallons of motor fuel imported.” See K.S.A. 79-3410.’ In fact, Section 79-3410 of the Act states that the report must show ‘the number of gallons of motor-vehicle fuels or special fuels received by such distributor, manufacturer, importer, exporter or retailer during the preceding calendar month’.
“On the following day, April 9, 2002, the defendants seized the following property of HCI: two trucks, two tanker trailers, fuel and fuel oil, two black permit books and shipping papers. The parties dispute whether the seizures occurred with prior notice. On the same date, the Department of Revenue entered orders for jeopardy assessment and issued tax warrants against HCI and the individual plaintiffs. The plaintiffs also allege that the defendants also initiated criminal proceedings against plaintiffs HCI, Chairman Blackhawk and Lance Morgan, but the evidence fails to support the contention, and defendants deny it. The record shows only that criminal proceedings were commenced by the State of Kansas.
“According to the defendants, HCI transports the fuel in its own trucks, and the contracts entered into between the Kansas Tribes and HCI appear to be ‘destination contracts,’ under which title would not pass until HCI tendered tire fuel in Kansas.
“Plaintiffs Sac and Fox Nation and Iowa Tribe do not know where the contracts with FI Cl were entered into. The Kansas Department of Revenue has ruled that the state fuel tax in issue is imposed on a distributor when such fuel is first received in the State of Kansas at its business.
“In February, 2002, the Department of Revenue introduced a new fuel tax bill that proposed to replace the ‘distributor of the first receipt’ language with a phrase stating that ‘the incidence of the tax is imposed when the fuel is received.’ This same Senate bill proposed to amend the definition of received’ to include language that the fuel is received ‘in the case of imports, other than by pipeline, upon entry into this state’ thereby defining ‘received’ for the first time to encompass nonresident importers. SB 537 was never enacted into law.
“The Internet sites of the Sac and Fox and the Kickapoo Tribes solicit customers to travel to their casinos via state highways.
“HCI uses Kansas highways in making its deliveries. HCI imports fuel into Kansas in making deliveries to the Kansas tribes. HCI must cross the Kansas State line to reach the Kansas Tribes’ properties in Kansas, located in Brown County, Kansas. The distance from Emerson, Nebraska, referred to in the plaintiffs’ complaint as the site of FICl’s blending facility, to Reserve, Kansas (near the Sac and Fox reservation), is approximately 170 miles. The distance from Emerson, Nebraska, to White Cloud, Kansas (near the Iowa reservation) is approximately 176 miles. The Kickapoo reservation is further south, in the southwest part of Brown County.
“KDR’s bond application form for importers/exporters has provided for some years:
WHEREAS, The above-named principal is an importer/exporter within the provisions of the motor fuel tax laws of the state of Kansas, and is required by such law to render certain sworn statements and reports and pay certain motor fuel taxes, interest and penalties, all to the Director of Taxation, Kansas Department of Revenue, Topeka, Kansas, and to otherwise comply with the provisions of said laws[.]
“KDR’s ‘distributors’ tax return, form MF-52, used by both distributors and importers, requires reporting of, and taxes, motor fuel ‘received or imported,’ and has for years.
“Plaintiff HCI submitted to KDR on or about May 14, 2001, a ‘Motor Vehicle Fuel and Special Fuel Importer/Exporter Bond’ which contained language identical to that in KDR’s bond application form. HCI also filed distributor’s tax returns with KDR for the months May, June, July, August, September, October, November, December 2001; January, February, 2002, reporting ‘0’ gallons of fuel ‘received or imported.’ HCI’s tax returns filed with KDR for September, October, November, December, 2001, and January, February 2002 ‘falsified the number of gallons of motor fuel actually delivered into Kansas associated with the delivery of motor fuels to the Kickapoo, Iowa Tribe and Sac Fox.’ HCI ceased filing distributor’s -tax returns with KDR in March 2002.
“HCI’s ‘Application for Motor Vehicle Fuel and Special Fuel Importer/Exporter License’ was signed by Lance Morgan, and indicated that statements contained therein were true and correct and that HCI consented to certain service of process provisions. In their answer to defendants’ request for admission no. 4, the plaintiffs Winnebago/HCI indicated that ‘Lance Morgan had no actual authority to waive HCI’s sovereign immunity and that in the absence of such authority no valid waiver of HCI’s sovereign immunity was ever effected under the rules for effecting such waivers that are set forth in HCI’s Articles of Incorporation.’
“Former Secretary of Revenue Stephen Richards provided testimony to the 2002 Senate Taxation Committee regarding Senate Bill 537 concerning why moving the motor fuel tax to the rack was good tax policy. Former Secretary of Revenue Stephen Richards also provided at that time a diagram indicating the state of the KMFTA as concerned importers and distributors, and indicating that the tax is due on the first import. Shirley Sicilian, for Director, Policy and Research, KDR, gave testimony to tire 1998 Kansas legislature regarding Senate Bill 421 that the intent of the bill was to malee clear that the tax was on the distributor not die retailer.
“In May 1994, the Kansas legislative Division of Post-Audit (‘LPA’) conducted a performance audit of KDR’s enforcement of die KMFTA and discussed die state of the KMFTA, including that importers pay tire motor fuel tax.
“According to the evidence supplied by defendants, Importers, as distinguished from distributors, have paid Kansas motor fuel tax on motor fuel imported into Kansas for at least the past 23 years, and KDR is unaware of any information tiiat they did not pay the tax for the 49 years prior to that. Plaintiffs have cited one instance of another importer who has left payment of the tax to its retailer.”
DISCUSSION
Statutory basis for tax liability. The Kansas motor-fuel tax law, K.S.A. 79-3401 et seq., imposes a tax that is used for the construction and maintenance of public highways. K.S.A. 79-3402. “A tax per gallon ... is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever.” K.S.A. 2005 Supp. 79-3408(a). “Unless otherwise specified in K.S.A. 79-3408c, and amendments thereto, the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once. Such tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer or importer in this state and paid in the manner provided for herein . . . .” K.S.A. 2005 Supp. 79-3408(b).
According to KDR, HCI is an importer of motor fuel from Nebraska into Kansas for the purpose of selling or delivering it. KDR’s asserted basis for HCI’s tax liability is that “[w]hen HCI’s trucks cross the Kansas state line with a delivery destination to the Kansas tribes in Kansas, such is a taxable event, and tax is imposed in a nondiscriminatory manner on every importer, Indian or other wise.” (KDR cites Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566, 582 [10th Cir. 2000], cert. denied 531 U.S. 1144 [2001], for the proposition that the tax is nondiscriminatory, which is not at issue here.)
HCI’s position is that it is not hable for payment of the tax under the express terms of the Act because it does not receive fuel within Kansas and it is not a distributor.
KDR contends that importers as well as distributors bear the incidence of the Kansas motor fuel tax. With regard to HCI’s receiving fuel, KDR states that it “has interpreted the terms ‘received’ and ‘receipt,’ as applied to importers, to mean when the importer delivers fuel into Kansas” because an importer with no place of business in this state “cannot ‘receive’ fuel in Kansas in any fashion other than to import it by bringing it across the Kansas state line for purposes of use, sale, or deliveiy in Kansas.” Seemingly conceding that its interpretation is not to be found in the express language of the statute, KDR urges the court to apply the rule of statutory construction called operative construction.
The doctrine of operative construction of statutes provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 317, 22 P.3d 600 (2001).
In this regard, the United States Supreme Court has stated that to sustain an agency’s application of a statute, “ ‘we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.’ ” Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965) (quoting Unemployment Comm’n v. Aragon, 329 U.S. 143, 153, 91 L. Ed. 136, 67 S. Ct. 245 [1946]).
The taxable event. KDR’s position is that the taxable event is HCI’s tank trucks crossing the state line from Nebraska into Kansas. In other words, HCI’s trucks crossing the state line constitutes HCI’s receipt of the fuel in Kansas for purposes of the Act. KDR interprets the terms “received” and “receipt,” as applied to a person with no place of business in this state, to mean when the person crosses the state line to deliver fuel within the state of Kansas.
There is a definition of “received” in the Act, K.S.A. 79-3401(p). HCI quotes the statutory definition for the proposition that 79-3401(p) excludes persons who import motor fuel into the state of Kansas by truck. K.S.A. 79-3401(p) states:
“ ‘[R]eceived’ means motor-vehicle fuel or special fuel produced, refined, prepared, distilled, manufactured, blended or compounded at any refinery or other place, in the state of Kansas by any person, or imported into this state from any other state, territory, or foreign countiy by pipeline or connecting pipeline at a pipeline terminal or pipeline tank farm for storage, shall be deemed to be received’ by such person thereat when the same shall have been loaded at such refinery, pipeline terminal, pipeline tank farm or other place, into tank cars, tank trucks or other container, or placed in any tank from which any withdrawals are made direct into tank cars, tank trucks or other types of transportation equipment, containers or facilities.”
This expansive definition anticipates a number of different ways in which motor fuel is treated and transported.
First is motor-vehicle fuel or special fuel that is refined, prepared, distilled, manufactured, blended, or compounded at any refinery or other place in the state of Kansas by any person. The first category does not apply to the motor fuel at issue in this case, which is blended in Nebraska by HCI before being transported into Kansas.
Second is motor-vehicle fuel or special fuel imported into this state from any other state, territory, or foreign country by pipeline or connecting pipeline at a pipeline terminal or pipeline tank farm for storage. This part of the definition is read by HCI to apply only to fuel imported into Kansas by pipeline. KDR does not contend that 79-3401(p) applies to importation of fuel by truck.
HCI’s contention in quoting the 79-3401(p) definition of “received” is that it includes only fuel manufacturers and pipeline importers. According to HCI, when determining whether persons other than fuel manufacturers and pipeline importers, such as truck importers, are subject to the Kansas motor fuel tax, the ordinary meaning of received would apply. The ordinary meaning involves a transfer of possession to that person, and, because there is no transfer of possession to HCI in Kansas, it does not receive fuel within this state and is not hable for payment of the tax.
As the federal district court judge noted, in 2002 KDR introduced a fuel tax bill, SB 537. Among its proposals was one to amend the definition of received to add at the very end language that the fuel is received “in the case of imports, other than by pipeline, upon entry into this state” and another to replace the “distributor of the first receipt” language in what is now 79-3408(b) with the phrase “the incidence of the tax is imposed when the motor fuel is received.” The proposed legislation was not enacted. Unenacted amendments to the motor-vehicle fuel tax law are no bases for deciding whether the fuel imported by HCI is received in this state. But the amendments’ being suggested by KDR indicates that it recognized that the current statutory language may not expressly support its enforcement practices. There is no question, however, that KDR enforces the fuel tax against importers under an operative construction of the statute. See Performance Audit Report of KDR’s Enforcement of Kansas Motor Fuels Tax by the Legislative Division of Post Audit, and Testimony on SB 537 of Secretaiy of Revenue, Stephen Richards.
Another argument raised by HCI is that interpreting the statutory definition so that “received” may mean the importation of motor-vehicle fuel into this state from any other state creates the possibility of impinging on the power to regulate commerce among the States, which is vested in Congress by Art. I, § 8, cl. 3 of the federal Constitution. However, we will not consider this issue since it is neither included in the certified question nor could it properly have been included in the certified question. The certification procedure is designed to allow this court to answer “questions of law of this state.” K.S.A. 60-3201. The issue that was certified to this court does not include the question whether tire Commerce Clause of the federal Constitution is implicated by the State’s application of its motor fuel tax law, and the purpose of the certification act would not be served by this court’s considering a federal constitutional question.
Distributor/importer. HCI contends that the Act imposes the fuel tax only on distributors and that it is not hable for the fuel tax because it is an importer, not a distributor. The State’s position is that HCI is hable for the fuel tax because the Act imposes the tax on importers as well as distributors, and, in any event, the statutory definition of distributor includes importers.
HCI’s construction of the Act is grounded in its contention that the legal incidence of the tax is imposed by a single sentence of a single provision of the Act, the first sentence of K.S.A. 2005 Supp. 79-3408(b). It provides: “Unless otherwise specified in K.S.A. 79-3408c, and amendments thereto, the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel and such taxes shall be paid but once.”
HCI relies on Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 163 L. Ed. 2d 429, 126 S. Ct. 676 (2005), and Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 132 L. Ed. 2d 400, 115 S. Ct. 2214 (1995). The issue in the present case is not the same as that in Prairie Band, but the court’s holding is instructive and the position taken by the Kansas Department of Revenue (KDR) in Prairie Band set the stage for consideration of the present case.
In Prairie Band, the Potawatomi Nation, wanting to sell motor fuel unburdened by upstream taxation, challenged imposition of the Kansas motor fuel tax on the non-Indian distributor that supplied fuel to the Potawatomi-owned gas station on reservation property. The Tenth Circuit Court of Appeals held that application of the Kansas tax to fuel received by a non-Indian distributor before being delivered to the Potawatomi station was invalid under the interest-balancing test of White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 65 L. Ed. 2d 665, 100 S. Ct. 2578 (1980). The Supreme Court reversed.
In the scheme for analyzing Indian tax immunity issues, “the ‘who’ and the ‘where’ of the challenged tax have significant consequences” and the “ ‘initial and frequently dispositive question ... is who bears the legal incidence of [the] tax.’ ” 546 U.S. at 101 (quoting Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458, 132 L. Ed. 2d 400, 115 S. Ct. 2214 [1995]). The first rule is that, absent congressional authorization, states are absolutely barred from placing the incidence of a tax on a tribe or on tribal members for sales made inside Indian country. Chickasaw, 515 U.S. at 458. Where a State asserts authority over the conduct of non-Indians engaging in activity on a reservation, competing interests are to be balanced. Bracker, 448 U.S. at 144. But the Bracker interest-balancing test does not apply where the State asserts its taxing authority over non-Indians off the reservation. The Supreme Court determined that, in Kansas’ imposition of motor fuel tax on the non-Indian distributor of fuel for the Potawatomi gas station, the State was only asserting its taxing authority over non-Indians on non-tribal land. Thus, the motor fuel tax was not invalidated by Indian tax immunity because the incidence of the tax was not imposed on the Potawatomi. Dissenting justices disagreed that “Kansas’ placement of the legal incidence of the fuel tax” is as “clear and certain as the State suggests and the Court holds.” 546 U.S. at 119. Among the provisions cited by the dissenting justices was K.S.A. 2005 Supp. 79-3409, which authorizes distributors to pass on the tax to retailers. The majority, however, looked only at direct placement of the incidence of the tax.
With regard to placement of the incidence of the tax, the majority’s position reflected that voiced by the State of Kansas at oral argument:
“JUSTICE O’CONNOR: Weil, what event triggers, if you will, the incidence of the tax on the distributor?
“MR. OLSON: It’s—
“JUSTICE O’CONNOR: Is it — is it die obligation — is it die minute the fuel is brought into Kansas? Is it when it is delivered to die distributor?
“MR. OLSON: It’s—
“JUSTICE O’CONNOR: Or is it later?
“MR. OLSON: The statute explicitly says, Justice O’Connor — diis is on page 2 of die petition — die incidence of this tax is imposed on the distributor of the first receipt of the motor fuel. And then Section — that’s Section 3408(c) — Section 3410 then describes, in a little bit more detail, the physical operation of die reports that the distributor has to make, and the distributor has to pay the tax.
“JUSTICE O’CONNOR: So, the distributor gets the fuel and. incurs the obligation at that point, whether or not it’s resold.
“MR. OLSON: That’s correct.
“JUSTICE GINSBURG: But doesn’t incur it, or gets a credit or gets it back, if it sells to die United States or if it sells out-of-State. In other words, it’s not just the receipt.
“MR. OLSON: It’s — Justice Ginsburg, it is the receipt that triggers the liability for the tax.”
“JUSTICE SCALIA: Aren’t there usually two incidents? You talk about the incident of die taxes on a person, but it’s also on an event. And what event is— in your — in your judgment is—
“MR. OLSON: Well, the statute could not be more clear, Justice Scalia. It is the receipt by the distributor of the fuel. That is what the statute says. It is as plain —
“JUSTICE STEVENS: But if the fuel—
“MR. OLSON: — as it could be.”
HCI cites Prairie Band and Chickasaw for the proposition that an express statutory imposition of legal incidence of a tax is dispositive. In both Prairie Band and Chickasaw, the argument being made was that the legal incidence of the fuel tax fell on Indian retailers when the upstream taxpayers passed the cost through. In the absence of dispositive language in the Oklahoma motor fuel tax law, the Supreme Court in Chickasaw concluded that the legal incidence of the tax fell on die retailer rather than the distributor. 515 U.S. at 461. Distinguishing between the economic incidence and the legal incidence of the tax in Prairie Band, the Supreme Court rejected the argument, stating:
“Kansas law specifies that ‘the incidence of the [the motor fuel] tax is imposed on the distributor of the first receipt of the motor fuel.’ Kan. Stat. Ann. § 79-3408(c) (2003 Cum. Supp.). We have suggested that such ‘dispositive language’ from the state legislature is determinative of who bears the legal incidence of a state excise tax. Chickasaw, [515 U.S.], at 461. But even if the state legislature had not employed such ‘dispositive language,’ thereby requiring us instead to look to a ‘fair interpretation of the taxing statute as written and applied,’ California Bd. of Equalization v. Chemehuevi Tribe, 474 U.S. 9, 11, (1985) (per curiam), we would nonetheless conclude that the legal incidence of the tax is on the distributor.
“Kansas law makes clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax. Section 79-3410(a) (1997) provides, in relevant part, that ‘[ejveiy distributor . . . shall compute and shall pay to the direc tor . . . the amount of [motor fuel] taxes due to the state.’ While the distributors are ‘entitled’ to pass along the cost of the tax to downstream purchasers, see § 79-3409 (2003 Cum. Supp.), they are not required to do so. In sum, the legal incidence of the Kansas motor fuel tax is on the distributor. The lower courts reached the same conclusion. 379 F.3d at 982 (‘The Kansas legislature structured the tax so that its legal incidence is placed on non-Indian distributors’); 241 F. Supp. 2d, at 1311 (‘[I]t is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors’); see also Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566, 578 (C.A.10 2000) (‘[T]he legal incidence of the [Kansas] tax law as presently written falls on the fuel distributors rather than on the Tribes’); Winnebago Tribe of Nebraska v. Kline, 297 F. Supp. 2d 1291, 1294 (Kan. 2004) (‘Under die Kansas statutory scheme, the legal incidence of the state’s fuel tax falls on the “distributor of first receipt” of such fuel’); Sac and Fox Nation of Missouri v. LaFaver, 31 F. Supp. 2d 1298, 1307 (Kan. 1998) (‘[T]he statutes are extremely clear in providing that die tax in question is imposed upon the distributor’). And die Kansas Department of Revenue, the state agency charged with administering die motor fuel tax, has concluded likewise. See Letter from David J. Heinemann, Office of Administrative Appeals, to Mark Burghart, Written Final Determination in Request for Informal Conference for Reconsideration of Agency Action, Davies Oil Co., Inc., Docket No. 01-970 (Jan. 3, 2002) (hereinafter Kansas Dept. of Revenue Letter) (‘The legal incidence of die Kansas fuel tax rests with Davies, the distributor, who is up-stream from Nation, the retailer’).” (Emphasis added.) 546 U.S. at 102-04.
In Prairie Band, the motor fuel retailer argued that the tax imposed on receipt of the fuel by distributors in fact was imposed on the retailer by being passed through from distributor to retailer. Thus, the question considered by the Supreme Court was whether the legal incidence of tax was imposed on the retailer or upstream of the retailer. The Supreme Court concluded that the legal incidence of the Kansas motor fuel tax fell on the upstream distributor.
The legislative history of K.S.A. 2005 Supp. 79-3408(b) supports the Supreme Court’s conclusion. It shows that the provision “[u]nless otherwise specified in K.S.A. 79-3408c, and amendments thereto, the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel” was added to the Act in 1998. L. 1998, ch. 96, sec. 2(c). According to the testimony of Shirley Klenda Sicilian, Director of Policy & Research for the Kansas Department of Revenue, the purpose of the provision was to distinguish between retailers and those upstream of retailers. The provision, according to Sicilian, was “intended to clarify that the legal incidence of the motor fuel tax is on motor fuel distributors, not retailers, and not customers.”
HCI’s contention is that the naming of distributors and the absence of any mention of importers or manufacturers in the singled-out sentence means that the tax is not imposed on importers or manufacturers. What the Supreme Court and the legislative history elucidate is that the placement of the legal incidence of the motor fuel tax is on tire distributor who is upstream from the retailer.
With HCI relying heavily on the first sentence of K.S.A. 2005 Supp. 79-3408(b), KDR directs the court’s attention to the second sentence of the same subsection, which provides that “[s]uch tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer or importer in this state and paid in the manner provided for herein.” (Emphasis added.) KDR contends that the second sentence of subsection (b) plainly provides that importers as well as distributors are liable for the fuel tax. We disagree.
In Prairie Band the Supreme Court interpreted K.S.A. 79-3401 et seq. to clearly impose the motor fuel tax on the distributor of first receipt. The Supreme Court found K.S.A. 79-3408 to be clearly dispositive of that question. The Supreme Court further rejected the arguments made by the Prairie Rand Potawatomi Nation that 79-3408(b) or any other provision of die motor fuel act altered their conclusion that the legal incidence of the Kansas motor fuel tax is on the distributor of first receipt.
The interpretation of a statute is a question of law over which this court has unlimited review. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutoiy scheme. Ordinary words are given their ordinary meanings. 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. O’Donoghue v. Farm Bureau Mut. Ins. Co., 275 Kan. 430, 66 P.3d 822 (2003). The right to tax must be strictly construed in favor of the taxpayer. “Tax statutes will not be extended by implication beyond the clear import of the language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced.” In re Tax Exemption Application of Kaul, 261 Kan. 755, 766, 933 P.2d 717 (1997).
KDR argues we should apply the doctrine of operative construction and adopt KDR’s interpretation of K.S.A. 79-3401 et seq. KDR proceeds to enumerate various rules of construction it has applied in construing the motor-fuel tax law to impose a fuel tax on importers as well as distributors. The problem with KDR’s argument is that K.S.A. 79-3401 et seq. is neither uncertain nor ambiguous. The Act unambiguously specifies that the distributor of first receipt is hable for payment of the tax, and it is paid only once. The Act does not impose the fuel tax on any other entity. We need go no further to determine the legislative intent and must give effect to that intent as clearly expressed in 79-3408(b). Absent uncertainty or ambiguity the doctrine of operative construction is not applicable. KDR cannot ignore the plain and unambiguous language of the statute, nor, for that matter, can this court. Where a statute is plain and unambiguous we must give effect to the legislative intent as expressed. For that reason, we cannot give KDR’s interpretation deference. As we previously noted, the Supreme Court in Prairie Band stated that even without the dispositive language of 79-3408(b), a fair interpretation of the taxing statute would lead it to the same conclusion. Further, the right to tax is penal in nature so that, where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to thé taxpayer. In re Tax Exemption Application of Kaul, 261 Kan. at 766. Even if a reasonable doubt existed, a favorable interpretation to HCI would lead to the same conclusion. We do not agree with KDR that importers are included within the meaning of distributors for the purpose of the Act.
At the time it considered the Indian Tribes’ motion for summary judgment, the federal district court concluded that HCI is not a distributor as that term is defined in 79-3401(f)(1): “The Winnebago Tribe cannot fall under (1) . . . since the fuel never comes to rest or storage in Kansas . . . .” The district court also noted that HCI’s application to KDR for importer and distributor licenses was approved only as to an importer’s license. With regard to the State officials’ position, which it did not adopt, the federal district court stated:
“The defendants point out that the critical ‘distributor of first receipt’ language in 79-3408(c) was only added in 1998 (1998 Kan. Sess. L., chapt. 96 § 2(c)), and argue that plaintiff s interpretation would imply that before that date the KMFTA would have the nonsensical result that no taxes would have been imposed on anyone. Rather, according to the legislative history submitted by defendants, this language was added merely to confirm that the tax should be imposed on distributors rather than retailers. Defendants point to the higher bond required of importers as opposed to distributors. K.S.A. 79-3403. And defendants point to K.S.A. [79]-3408(a) which provides that the tax is ‘imposed on the use, sale or delivery of all motor vehicle fuels . . . used, sold or delivered in this state for any purpose whatsoever.’ ”
KDR contends that the federal district court’s conclusion that HCI is not a distributor within the meaning of 79-3401(f)(1) is not binding on this court. The legal principle applicable in the present circumstances is the law of the case, which would continue in force a court’s decision on a rule of law in subsequent stages of the same case. This court, however, has tended to sparingly apply the law of the case rule. In State v. Finical, 254 Kan. 529, 532, 867 P.2d 322 (1994), the discussion of the rule limited it to appealable orders. And in State v. Collier, 263 Kan. 629, Syl. ¶ 2, 952 P.2d 1326 (1998), the court stated that
“[t]he doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process.”
In the present circumstances, where the district court’s conclusion that HCI is not a distributor was reached in the same order that certified the question of HCI’s tax liability to this court, no finality or efficiency is lost by this court’s reconsidering the matter. But, upon reconsideration, this court has no reason to reach any conclusion different from the federal district court because no additional insight or authority has been brought to this court’s attention.
KDR urges the court to take into consideration subsection (4), in addition to subsection (1), of the 79-3401(f) definition of distributor. K.S.A. 79-3401(f)(4) defines distributoras anypersonwho “received and, in any manner, uses, sells or delivers motor-vehicle fuels or special fuels in the state of Kansas on which the tax provided for in this act has not been previously paid.” Subsection (f)(4) appears to be a catch-all provision ensuring that someone will be deemed the distributor and tire tax will be paid in a transaction not involving a distributor as defined in subsections (f)(1) through (3). The federal district court concluded that HCI did not come within subsection (f)(4) because it does not purchase or receive fuel within the state of Kansas, and we agree.
Receipt is not defined in the Act as it relates to importing of motor fuel by truck. Thus in that regard, receipt is to be given its ordinary meaning. We agree with HCI that receipt involves the transfer of possession or control from one party to another party. The ordinary meaning of receipt “requires delivery or change of possession from the seller to the buyer . . . [t]aking physical possession of goods.” Black’s Law Dictionary 1268 (6th ed. 1990). Webster Third New International Dictionary defines receipt as “3: the act or process of receiving ... 4: something (as food, goods, money) that is received.” There was no delivery or receipt when HCI’s fuel truck crossed the Kansas state line. Delivery and receipt of the fuel occurred later at the tribal gas stations.
We interpret K.S.A. 79-3401 et seq. to impose the legal incidence of tax upon the distributor of first receipt of the motor fuel. We have concluded that HCI is not a distributor and it did not receive the motor fuel in Kansas. We therefore hold that under the facts submitted by the certifying court, the answer to the certified question is no.
Luckert, J., not participating.
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The opinion of the court was delivered by
Rosen, J.:
John Henry Horton appeals his 2004 conviction for first-degree felony murder. Horton’s conviction stems from the 1974 disappearance and death of 13-year-old Liz Wilson.
FACTS
On Sunday, July 7,1974,13-year-old Liz Wilson went swimming with her 11-year-old brother John at the public swimming pool in Prairie Village, Kansas. Liz and John lived about 3 or 4 blocks north of the swimming pool, and they often walked to the pool together. The campus for Shawnee Mission East High School is between what was the Wilsons’ house and the swimming pool, so Liz and John usually walked past the front of the high school and cut across the high school parking lot to get to the swimming pool.
Liz and John left the pool at approximately 7:15 p.m. John ran ahead of Liz because he wanted to get home first. When John reached the middle of the high school parking lot, he heard Liz call his name and saw her running toward him. John ran faster up the hill on the south side of the high school. When he reached the corner of the high school, he looked back and saw Liz near the front edge of the high school parking lot, coming towards him. John waited in front of the high school for a couple of moments, then peeked around the front of the school to look for Liz. John did not see Liz, so he ran to the other side of tire high school to see if she had gone another way. When he did not see her, he ran home.
John returned home without Liz and began watching television. John’s parents arrived home about 30 minutes later and asked about Liz. John did not know where Liz was, so her parents began calling friends and neighbors to try to locate her. Unable to find Liz, the Wilsons recruited some neighbors to search for her inside and outside of Shawnee Mission East High School. The Wilsons also contacted police.
The defendant, John Henry Horton, was employed as a custodian at Shawnee Mission East High School. While checking the employee time cards for the high school, the police noticed that Horton had been working at the time of Liz’ disappearance and had taken a nearly 3-hour dinner bréale shortly after the time that Liz was last seen in the high school parking lot. Officers went to Horton’s home in Independence, Missouri, on the morning of July 8, 1974, to question him. Horton’s wife told the officers that Horton was at an unemployment office.
After locating Horton at the unemployment office, the officers questioned him about Liz’ disappearance. Horton denied any knowledge of Liz’ disappearance and gave the officers permission to search his car. In the trunk of Horton’s car, officers found three bottles of chloroform; a can of ether; a nearly full gallon bottle of sulfuric acid; a butcher knife; brown cords; and two canvas trash bags. In the passenger compartment of his car, the officers found two throw rugs, a pillow, and a long hair. Horton gave the officers permission to seize the items, and the officers placed them in the trunk of the patrol car without individually bagging them to prevent contamination. The officers did not see any blood in Horton’s car.
Horton admitted taking the items found in his trunk from Shawnee Mission East High School while he was scavenging through the building. Horton said he planned to give the butcher knife to his wife and use tire sulfuric acid for an experiment. Horton told police that he intended to get high by inhaling the chloroform and ether.
After the officers removed the items from Horton’s trunk, they inquired about the clothing Horton had been wearing the previous day. Horton advised the officers that his clothing was at home, so the officers followed Horton back to his house. Horton’s clothing was dirty and his shirt had some holes in the back of it. The officers requested permission to seize Horton’s clothing, and Horton consented.
While they were at Horton’s house, the officers observed fresh scratches on Horton’s forehead and behind his right ear. The officers asked Horton to accompany them to the Prairie Village police station for additional questioning. Horton voluntarily accompanied the officers to the police station and cooperated throughout the interview. Horton removed his clothing, allowing officers to observe more scratches on his back, forearm, and thigh. Horton explained that he had gotten the scratches while he was working on his car. Police also noticed that Horton’s underwear was bloody. The blood was identified prior to trial as Horton’s wife’s blood consistent with Horton’s statement during the initial questioning that he had had intercourse with his wife while she was menstruating.
During his interview with the police, Horton recounted his activities on die day Liz disappeared. Horton reported for his shift at the high school a few minutes before 3 p.m. His supervisor advised him that the other custodian would not be working that day and instructed him to water the trees near the library entrance on the south side of the high school. The library entrance is near the sidewalk leading from the high school parking lot to the front of the school’s main building, along the route John and Liz normally walked to and from the swimming pool. Horton began watering die trees and admitted that he was watering the trees at approximately 7:30 p.m. Horton told police that he finished watering the trees at about 8:05 p.m. and then clocked out for his dinner break. Horton stated that he left the school and started having car trouble, so he pulled into a grocery store parking lot and worked on his car for about 2 hours. Horton returned to the high school a few minutes after 10 p.m., pulled inside the garage door in the school receiving area, exited his car, and crawled underneath his car to work on it. Horton told police he left after working on his car for a few minutes.
The day after Liz’ disappearance, police also interviewed some cheerleaders from Shawnee Mission East High School who had been practicing on the school lawn that Sunday afternoon. The cheerleaders told police that a custodian had approached them and asked if they needed to come into the school building. One of the cheerleaders stated that the custodian specifically asked her if she wanted in die building. When the cheerleader declined, the custodian told her there was a band concert and asked if she wanted to come inside for the band concert. Contrary to the custodian’s statement, the school did not have a band concert scheduled for July 7, 1974.
Two days after Liz’ disappearance, two teenaged girls, Beth and Mary, advised police that they had a conversation with a custodian at the high school on the day of Liz’ disappearance. Both girls identified Horton as the custodian. Beth and Mary had been playing tennis at the Prairie Village public tennis courts near Shawnee Mission East High School and the Prairie Village public swimming pool. As Beth was walking home past the library entrance of the high school, Horton approached her and inquired about the time. Beth told him it was around 7:20 p.m. Horton then asked if she had seen the other custodian and stated that he needed someone smaller to stand on his shoulders to help him shut off the water. At that point, Beth’s tennis partner, Mary, walked up and joined the conversation. The girls resumed walking home without assisting Horton. Contrary to Horton’s statement regarding the location of the water valve, it was about 1 foot above the ground on the side of the building.
In January 1975, a contractor found a human skull near 105th Street and Lackman Road in Lenexa, Kansas, at the construction site for the JC Penney Distribution Center. At that time, the area was undeveloped, consisting of alfalfa pastures owned by a dairy farmer. After the skull was found, police searched the area and found several other human bones. In February 1975, a farmer who had baled the alfalfa from the pastures during the summer of 1974 found a human bone in a bale of hay. The farmer estimated that the bale with the bone had been cut in July 1974. About the time the hay had been cut, the farmer remembered smelling a strong odor in the alfalfa field. The farmer attributed the odor to something dead but did not observe anything dead.
The county coroner sent the bones to a forensic anthropologist for identification. The forensic anthropologist concluded that all the bones originated from the same person, whom he identified as a 12- to 14-year-old female Caucasian. The Wilson family recovered the remains and buried them in Iowa. The grave site was exhumed in 2003 for DNA testing. The DNA testing confirmed that the bones are the remains of Liz Wilson.
By 2001, the case remained unsolved. Prairie Village police reopened the case and began investigating again. In 2003, the State charged Horton with first-degree felony murder for the death of Liz Wilson. The State’s theory was that Horton used chloroform to kidnap Liz for the purpose of sexually molesting her and accidentally killed her by applying too much chloroform.
At trial, the State presented testimony from the cheerleaders, the tennis players, and employees of Shawnee Mission East High School, along with various law enforcement officers and FBI agents who had interviewed Horton and other witnesses. In addition, the State presented evidence that police had found hairs inside the high school building near the library entrance, inside the passenger compartment of Horton’s car, and inside one of the canvas bags from Horton’s trunk. An FBI hair analyst from Washington, D.C., testified drat in 1974 he compared the hairs from the car and the school with hairs on a brush taken from the Wilson home. The evidence established one hair found in Horton’s vehicle to be “microscopically like” and another to be “microscopically similar” to some of the hairs found on the brush. The FBI analysis was not sufficient to establish tire gender of the person from whom the hair samples originated or to positively identify tire source of the hair. In the absence of a known head hair specimen from Liz, the FBI report refused to assess the significance of the similarities between the hairs. Rather, tire report concluded only that the possibility of tire hairs originating from the same individual could not be eliminated. Further, the hairs were not available for defense counsel to examine or test for DNA because the FBI had destroyed tire hairs in approximately 1985.
To establish Plorton’s intent to sexually molest Liz, the State presented evidence from Joy Creager, who had lived across the street from Horton in 1974. Joy testified that she was 14 years old in 1974 and had been friends with Horton’s niece Cindy, who was living with Horton and his wife during the summer of 1974. Over Horton’s objection, Joy Creager testified that she and Cindy accompanied Horton to a nearby golf course one night to get high. According to Joy, Horton held a rag with chloroform under her nose until she passed out. When she regained consciousness, one leg of her pants had been removed and Horton was over her with his fingers in her vagina. Cindy recalled using chloroform with Horton and Joy at the golf course but testified she had observed no sexual abuse of Joy by Horton. Although Joy was aware of Liz’ disappearance and observed police at Horton’s house in 1974, she admitted that she had never told anyone about the incident at tire golf course until law enforcement officers contacted her in 2002.
A jury convicted Horton of first-degree felony murder. The district court sentenced Horton to life in prison. Horton appeals his conviction directly to this court pursuant to K.S.A. 22-3601(b)(l).
ANALYSIS
K S.A. 60-455 Evidence
Horton first argues that the district court improperly admitted Joy Creager’s testimony regarding the incident at the golf course when Horton allegedly encouraged Joy to sniff chloroform and then sexually molested her. Horton argues that the evidence is inadmissible pursuant to K.S.A. 60-455 as a prior bad act. The State argues that the evidence was admissible to show plan, identity, and intent.
When reviewing a district court’s decision to admit evidence, an appellate court first determines whether the evidence is relevant. Once relevance is established, an appellate court must apply the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the district court’s discretion, depending on the contours of the evidentiary rule in question. Reviewing whether the district court properly admitted evidence pursuant to K.S.A. 60-455 requires the court to review the legal basis for the district court’s decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo. State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Before admitting evidence of other bad acts or prior crimes, the district court must determine whether the evidence is relevant to any disputed material fact other than the defendant’s propensity to commit a crime. Although K.S.A. 60-455 includes a list of potential material facts that may be established by evidence of prior bad acts, the list is not exclusive. Once relevance is established, the district court must weigh the probative value of the evidence against its prejudicial effect. If die evidence is more probative than prejudicial, the district court may admit the evidence. When evidence of other bad acts or crimes is admitted pursuant to K.S.A. 60-455, tire district court should give the jury a limiting instruction regarding the evidence. Gunby, 282 Kan. at 49.
The first test for admitting evidence of other crimes or bad acts is relevance to prove a disputed fact. Relevant evidence is broadly defined as “evidence having any tendency to prove any material fact.” K.S.A. 60-401(b). Before evidence can be considered relevant, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. Gunby, 282 Kan. at 47. The relevancy of prior crimes evidence turns on the similarity of the crimes. It is insufficient to show that the crimes are violations of the same or similar statutes. Rather, there must be underlying facts which demonstrate that the prior or other bad act was committed in such a manner as to raise a reasonable inference that the same person committed both offenses. State v. Higgenbotham, 271 Kan. 582, 589, 23 P.3d 874 (2001).
The State relies on State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992), to support its argument that Joy Creager’s testimony was properly admitted pursuant to K.S.A. 60-455. The State asserts that Grissom is instructive because the Grissom court upheld the defendant’s convictions for three counts of murder even though the victims’ bodies were never found and the State could not establish tire victims’ causes of death.
However, the State’s reliance on Grissom is misplaced because Grissom is factually distinguishable. In Grissom, the State had conclusive physical evidence linking Grissom to each victim. Police found a drop of blood from one of the victims and identification cards with Grissom’s photograph in a car that had been rented by one of the victims. In addition, an eyewitness testified about renting a storage unit to a woman matching the description of one of the victims and a man matching Grissom’s description. The eyewitness testified that the woman used one of the victim’s names and an address associated with Grissom’s alias. Other witnesses testified that they observed credit cards belonging to two of the victims in Grissom’s car. Moreover, Grissom made statements connecting himself to each victim. In this case, the only evidence with the potential to link Horton to Liz is the hair analysis, which cannot be used for a positive identification, and without a known sample from the victim the significance of the findings is unknown. There are no eyewitnesses who observed Liz with Horton, and the police did not find any of Liz’ belongings in Horton’s possession. Unlike the defendant in Grissom, Horton did not malee any statements linking him to Liz.
The State’s reliance on Grissom is also misplaced because tire 60-455 evidence presented in that case was similar to the crimes at issue, making the evidence relevant to a disputed material fact. In Grissom, the State sought to establish Grissom’s identity, preparation, opportunity, and plan by introducing evidence from a young woman named Michelle Katf, who testified that she awoke to find a man with a gun in her apartment at approximately 2:00 to 2:30 a.m. the week before the first victim disappeared. The man struggled with Katf, then forced her to leave her apartment. After exiting from the apartment with the man, Katf attempted to escape and started screaming. A struggle ensued, and the man ran off. Katf observed a car resembling Grissom’s car drive away. Katf testified that Grissom’s physical characteristics were consistent with her attacker’s. Katf also testified that there were no signs of a forced entry into her apartment, indicating that her attacker had used a key. Police found a master key to Katf s apartment complex in Grissom’s car. 251 Kan. at 877-78.
The Grissom court upheld the admission of Katf s testimony under K.S.A. 60-455 to prove Grissom’s plan, opportunity, and preparation. 251 Kan. at 924-25. The circumstances of Katf s abduction were similar to the circumstances surrounding the disap pearance of the missing women in several ways. First, the time frame of Katf s abduction was similar to the three other victims. Katf was abducted during the early morning hours 1 week before the first victim disappeared. Similarly, the evidence surrounding the other victims’ disappearances implied that they were abducted during the early morning hours. Second, Katf and the three other victims shared similar characteristics. All three victims and Katf were single, young women living in apartment complexes. Third, Grissom had keys to Katf s and the other three victims’ apartments. Neither Katf s nor the other victims’ apartments showed signs of a forced entry, indicating that the abductor had a key. Fourth, Katf s apartment, like the missing women’s apartments, was undisturbed. Nothing was stolen and nothing appeared to be out of place. These similarities made Katf s testimony relevant to establish Grissom’s identity and preparation as the abductor of the three missing women.
In this case, the State fails to demonstrate sufficient similarity between Liz’ disappearance and death and Joy Creager’s allegations of sexual abuse. The only similarity appears to be the girls’ ages. Liz was 13 years old, and Joy was 14 years old. Joy testified that she willingly accompanied Horton to a nearby golf course for the purpose of getting high by inhaling chloroform. Joy stated that Horton poured the chloroform on a rag and handed it to her. When Joy did not like the smell, Horton encouraged her to inhale the chloroform by pushing the rag back to Joy’s face. After she had inhaled the chloroform, Joy testified she passed out and awoke to find her pants off and Horton’s fingers in her vagina. However, there is no evidence that Liz inhaled chloroform, no evidence that Liz was rendered unconscious by chloroform, and no evidence that Liz was sexually molested. Because there is no evidence to establish a similarity between what happened to Joy and what happened to Liz, Joy’s testimony is not relevant to prove any disputed material facts. Consequently, we must conclude that the district court erred when it allowed Joy to testify without requiring sufficient similarity between Liz’ disappearance and death and the prior bad act alleged by Joy.
The erroneous admission of prior crimes or bad acts does not require automatic reversal. Rather, the court must determine whether the erroneous admission of the evidence was harmless. Gunby, 282 Kan. at 59. K.S.A. 60-261 sets forth the harmless error rule, which provides:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to die court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in die proceeding which does not affect the substantial rights of tire parties.”
The State’s theory of the case was that Horton kidnaped Liz to sexually molest her and accidently killed her in the process. In order to establish Horton’s intent to sexually molest Liz, the State relied only on Joy’s testimony, which implied that Horton had a propensity to sexually molest adolescent girls. Without Joy’s testimony, there is no evidence that Horton intended to sexually molest Liz. Thus, we must conclude that the erroneous admission of Joy’s testimony affected Horton’s substantial rights and is inconsistent with substantial justice. Accordingly, we cannot conclude that the erroneous admission of the evidence was harmless.
We appreciate the tragic circumstances surrounding the death of Liz Wilson and the need for finality and accountability of those responsible for her murder. All murders, and especially child murders, cry out for resolution and the need to bring killers to justice. However, any conviction resulting from Liz Wilson’s death must be based on evidence that is relevant and satisfies the basic requirements for admissibility as set forth by Kansas law. Here, the trial court ignored a basic standard which has been a part of Kansas law for over 40 years by failing to require the State to show not just a sufficient similarity but any similarity between Liz Wilson’s disappearance and death and the alleged prior bad act. See State v. Wright, 194 Kan. 271, 275, 398 P.2d 339 (1965) (stating that under 60-455, “evidence of other similar offenses could be admissible to prove identity of the person committing the offense”). Conse quently, we reverse Horton’s conviction for first-degree felony murder.
Motion to Dismiss
Horton argues that the district court should have granted his motion to dismiss after the preliminary hearing. According to Horton, the district court should not have combined the hearing on the State’s motion to admit evidence of prior crimes with the prehminary hearing. Horton asserts that the district court erroneously relied on inadmissible evidence to support its conclusion that there was probable cause to bind him over for trial.
When an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing is harmless unless the error caused prejudice at trial. State v. Henry, 263 Kan. 118, 129, 947 P.2d 1020 (1997). The error Horton claims from the preliminary hearing involves Joy’s testimony. Based on our conclusion that the admission of Joy’s testimony was prejudicial at Horton’s trial, we conclude that the consideration of Joy’s testimony at the preliminary hearing is not harmless error.
K.S.A. 2005 Supp. 22-2902(3) requires the district court to bind the defendant over for trial if “from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant.” When reviewing tire district court’s probable cause finding, an appellate court conducts a de novo review of the evidence. State v. Kraushaar, 264 Kan. 667, 670, 957 P.2d 1106 (1998).
The State charged Horton with felony murder based on the underlying felony of kidnapping for the purpose of committing indecent liberties with a child, pursuant to K.S.A. 1973 Supp. 21-3401 and K.S.A. 1973 Supp. 21-3420(b). Because the criminal statutes and penalties in effect at the time of the crime apply, we must apply the definition for felony murder in effect on July 7, 1974. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004).
In 1974, first-degree murder was defined as follows:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” K.S.A. 1973 Supp. 21-3401.
K.S.A. 1973 Supp. 21-3420(b) provided:
“Kidnapping is the taking or confining of any person, accomplished by force, threat, or deception, with the intent to hold such person . . . [t]o facilitate flight from or the commission of any crime.”
The applicable version of K.S.A. 1973 Supp. 21-3503 defined indecent liberties with a child as follows:
“(1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
(a) The act of sexual intercourse;
(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
To analyze whether the district court properly denied Horton’s motion to dismiss, we must review the facts presented at the preliminary hearing to determine whether they are sufficient to establish that a felony was committed and that there was probable cause to believe that Horton committed the felony. See K.S.A. 2005 Supp. 22-2902(3). “ ‘Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain reasonable belief of the accused’s guilt.’ ” Henry, 263 Kan. at 130 (quoting State v. Butler, 257 Kan. 1043, 1059, 897 P.2d 1007 [1995]).
The State presented evidence that Liz was last seen near the parking lot of the Shawnee Mission East High School shortly after 7:15 p.m. on July 7, 1974. In January 1975, a contractor found a human skull near 106th Street and Lackman Road in Lenexa, Kansas. After searching the area, police found several other human bones. In February 1975, a forensic anthropologist who examined the bones found in Lenexa concluded that the bones were the remains of a 13-year-old Caucasian girl. Later DNA testing confirmed that the bones found in 1975 shared the same genetic markers as Carol Wilson, Liz’ mother. This evidence established a homicide.
To establish probable cause that Horton committed felony murder based on kidnapping for the purpose of committing indecent liberties in accordance with the State’s complaint, the State had to prove that Horton:
(1) Caused Liz’ death;
(2) while in the process of taking or confining Liz by force, threat, or deception;
(3) with the intent to facilitate fondling or touching Liz in such a way as to arouse or satisfy his or another’s sexual desires. At the preliminary hearing, the State presented evidence that
Horton was working as a custodian at Shawnee Mission East High School at the time of Liz’ disappearance. Horton’s shift began at 3 p.m., and his duties included watering some trees near the sidewalk that connected the parking lot to tire front of tire school building. A 15-year-old girl who had been playing tennis at tire nearby tennis courts spoke with Horton near the trees at about 7:20 p.m. Horton approached the girl and inquired about the time. Horton then asked the girl if she had seen the other custodian because he needed someone to stand on his shoulders and help him turn off a water valve. Horton did not ask the girl to stand on his shoulders, but she presumed he was asking her to help him. About that time, tire girl’s tennis partner approached and the two girls walked away without helping Horton. A school employee testified that the water spigots were outside the building approximately 1 foot above the ground.
Although Horton normally took his dinner break at 7:30 p.m., he did not clock out for dinner until 8:09 p.m. on the day Liz disappeared. Horton did not clock back in the rest of the evening, but told police that he returned to the school about 10:45 p.m.
The day after Liz disappeared, officers from the Prairie Village Police Department confiscated a bottle of sulfuric acid, a can of ether, three bottles of chloroform, two canvas bags, and a knife from the trunk of Horton’s car. Horton admitted taking the items from the school and told investigators that he planned to inhale the chloroform.
Horton’s niece Cindy, who was a teenager in 1974, testified that she lived with Horton and his wife in 1974. Cindy testified that she and a neighbor girl named Joy Creager had accompanied Horton to a nearby golf course and Horton had brought some chloroform. Cindy told law enforcement agents that Horton encouraged Joy to sniff the chloroform and that Joy had passed out.
The State presented testimony from an anesthesiologist regarding the effects of chloroform. Chloroform was used as an anesthetic in the early 1900’s, but medical professionals stopped using it because it was dangerous and had bad side effects, like nausea, vomiting, and hallucinations. According to the anesthesiologist, chloroform can cause death by cardiac arrest or asphyxiation if the person’s tongue falls into the posterior pharynx and blocks the person’s airway.
Although the State presented evidence that Liz died, it did not present any evidence regarding the cause of Liz’ death. The doctor’s testimony that chloroform can be fatal does not support an inference that Liz died due to chloroform inhalation. Likewise, Horton’s possession of chloroform does not support an inference that Liz died due to chloroform inhalation because'the State failed to present any evidence to indicate the amount of chloroform that was in the bottles. Without that evidence, there is no support for the inference that Horton used some of the chloroform in the bottles to ldll Liz.
The State’s evidence established that Horton was at the high school when Liz was last seen, and he took an extended dinner break shortly after the time that Liz was last seen. Horton also had access to a potentially lethal chemical. The circumstantial evidence that Horton was working near the place where Liz was last seen and had a potentially lethal chemical in his trunk is insufficient to convince us that a person of ordinary prudence and caution would conscientiously entertain reasonable belief that Horton killed Liz.
Likewise, we find that the State has failed to establish any evidence that Horton kidnapped Liz. At Horton’s trial, the State presented evidence regarding hairs found inside the high school and Horton’s car. However, the State did not present any evidence regarding the hairs at the preliminary hearing. Without any physical evidence to establish a possible link between Liz and Horton’s car or the high school building, there is insufficient evidence to convince us that a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Horton lad-napped Liz.
Finally, we find no evidence to support the State’s theory that Horton intended to commit indecent liberties with Liz. There is no evidence that Liz was sexually molested. Without Joy Creager’s testimony, the only evidence that could be construed to infer Horton’s intent is the tennis player’s testimony that she presumed Horton wanted her to stand on his shoulders to shut off a water valve. However, Horton did not attempt to touch the girl or force her inside the building. We find this evidence insufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that Horton intended to sexually molest Liz.
Because the State failed to present sufficient evidence to convince a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that Horton committed felony murder while kidnapping Liz for the purpose of committing indecent liberties, there is no probable cause to support binding him over for trial. As a result, we must reverse the district court’s decision to deny Horton’s motion to dismiss. Horton’s conviction for felony murder is reversed and the complaint against him is dismissed.
Although Horton’s conviction must be reversed and the complaint dismissed, we are not by this opinion precluding any future prosecution on new charges. Consequently, we will briefly address Horton’s evidentiary issues in the event the State attempts to try Horton again. Horton argues that the district court improperly admitted hair evidence, physical evidence from his car, police records, and testimony from an accident reconstruction expert. The first test for the admission of evidence is relevance. Gunby, 282 Kan. at 47. After relevance is established, this court must apply the rules of evidence either as a matter of law or in the exercise of the district court’s discretion depending on the contours of the applicable rule. 282 Kan. at 47.
Hair evidence
Horton argues that the hair evidence should not have been admitted during his trial because the hairs were subject to contami nation and had been destroyed, preventing him from performing potentially exculpatory DNA testing or impeaching the State’s expert. The hair evidence was relevant because it was the only possible physical link between Horton and Liz.
The failure to positively identify a piece of evidence does not preclude the admission of the evidence. The lack of positive identification affects the weight of the evidence as opposed to its admissibility. State v. Haddock, 257 Kan. 964, 983, 897 P.2d 152 (1995) (upholding the admission of wood chips found in the defendant’s shoes even though the State could not conclusively establish that the wood chips came from the woodpile where the victim’s body was found); State v. Wimberly, 246 Kan. 200, 207, 787 P.2d 729 (1990) (allowing the admission of fingerprints even though there were other, unidentified fingerprints at the scene of the murder); State v. Giddings, 226 Kan. 110, 115, 595 P.2d 1115 (1979) (admitting bullets found in the defendant’s home that were similar to bullets that had been in the victim’s possession without conclusively identifying them as the victim’s bullets). In this case, the State’s inability to positively and indisputably identify the source of eveiy hair that was compared does not preclude the admission of the evidence. Rather, the possibility for contamination affects the weight to be given the evidence. The juiy bears the responsibility for weighing the evidence, resolving conflicts in the testimony, and drawing reasonable inferences to determine the ultimate facts. Wimberly, 246 Kan. at 207. Thus, the district court was not required to exclude the hair evidence because of its potential for contamination.
Likewise the district court properly admitted the hair evidence even though some of tire actual hairs had been destroyed and were not subject to additional testing by Horton. To challenge the destruction of evidence, Horton must establish that the State acted in bad faith. See State v. Finley, 273 Kan. 237, 240-41, 42 P.3d 723 (2002). The determination of whether the State acted in bad faith is based on whether the law enforcement agency knew about the exculpatory value of the evidence at the time the evidence was lost or destroyed. 273 Kan. at 241. In this case, the evidence was destroyed in approximately 1985, before law enforcement agencies could predict that DNA testing would become available or that Horton would be brought to trial in 2004. Horton fails to establish that the FBI acted in bad faith when it destroyed the hair evidence. Consequently, we find no error in the district court’s decision to admit the hair evidence.
Physical evidence from Hortons car
Horton asserts that the district court should have suppressed the physical evidence taken from his car because there was no indicia of reliability in the State’s chain of custody and no reasonable certainty that the objects were securely maintained to prevent alteration. Horton’s argument is based on the police officer’s failure to individually package each item before placing it in the trunk of his police car. This evidence is relevant because it links Horton with a potentially lethal substance, a weapon, and a means of moving a body.
A party offering an object into evidence must show with reasonable certainty that the object has not been materially altered since the object was taken into custody. However, tire party is not required to keep the object under lock and key or continuously sealed up. The test for chain of custody is a reasonable certainty that the object has not been materially altered. Any deficiency in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. McGhee, 226 Kan. 698, 703, 602 P.2d 1339 (1979). In this case, an officer testified that the objects appeared to be the same objects that were collected in 1974. Thus, the district court properly admitted the objects from Horton’s car for the jury to consider.
Police Records
Horton complains that tire district court improperly admitted the transcript of his interview with the Prairie Village police and allowed police officers to testify by reading from their reports. Horton’s statement is relevant because it provides Horton’s account of his activities on the day Liz disappeared and his purposes for the items in his trunk. The officers’ testimonies were relevant because they established Horton’s presence in the vicinity where Liz was last seen alive.
We find no merit to Horton’s claims. The transcript of Horton’s out-of-court statements to police was admissible pursuant to K.S.A. 60-460(g), which provides an exception to the hearsay rule for admissions by a party. See also State v. Watkins, 219 Kan. 81, 89-91, 547 P.2d 810 (1976) (allowing the transcript of defendant’s statement to police to go to the jury room without also sending transcript of defendant’s testimony at trial). Likewise, the district court properly allowed the officers to use their reports to refresh their memories. See State v. Kelly, 19 Kan. App. 2d 625, 628-29, 874 P.2d 1208 (1994) (quoting McNeely v. Duff, 50 Kan. 488, Syl. ¶ 1, 31 Pac. 1061 [1893]).
Accident Reconstruction Expert
Horton argues that the district court improperly admitted a report by an accident reconstruction expert with the Kansas Highway Patrol. Horton asserts that the diagram and report improperly clarify witness testimony based on speculation. The accident reconstruction expert prepared a diagram showing the possible path of travel for Liz, John, and the tennis players. The diagram was based on the police reports from the interviews with John and the tennis players. Using a 1999 study entitled Acceleration and Speeds of Young Pedestrians by Rodney Vaughan and John Bain, the accident reconstruction expert hypothesized that it took Liz between 13.3 seconds and 53 seconds to reach Horton’s location near the trees after John observed her in the parking lot.
Horton did not object to the accident reconstruction expert’s testimony or reports and has failed to preserve this issue for appeal. A party must raise a timely and specific objection at trial to preserve the issue for appeal. K.S.A. 60-404; State v. Torres, 280 Kan. 309, 319, 121 P.3d 429 (2005).
We reverse Horton’s conviction for felony murder, vacate his sentence, and dismiss the complaint against him.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Schroeder, J.:
These four appeals from the district courts of Kingman, Pratt, Harper and Barber Counties involve only one question. That question is whether or not the board of county commissioners and the county clerk are proper parties defendant in a tax protest action filed by Panhandle Eastern Pipe Line Company (plaintiff-appellant) pursuant to K. S. A. (now K. S. A. 1971 Supp. ) 79-2005.
The parties were permitted to consolidate these cases with the understanding that the decision in one case would control the decision in the other cases.
A petition was filed and service was obtained on all the defendants demanding the return of ad valorem taxes collected by the county. Appellant alleged the taxes were illegally levied against plaintiff’s property in the county, that payment was made to the county treasurer under protest, and that said taxes should be refunded. Appellant made the county treasurer and various other state and county officials parties defendant in the action. Thereafter, the board of county commissioners and the county clerk filed a motion to dismiss the action as to them for the reason they were not indispensable, necessary or proper parties defendant. The trial court sustained this motion to dismiss in each of these four actions and plaintiff has appealed to this court.
Our decision in Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490 P. 2d 399, and cited as being determinative in Panhandle Eastern Pipe Line Co. v. Tieperman, 208 Kan. 252, 491 P. 2d 959, is controlling. In that case, heard subsequently to the trial court’s ruling on the question, this court held that the board of county commissioners and the county clerk, being county officers having governmental functions on the county level, are at the very least proper parties defendant in a tax protest action filed under K. S. A. (now K. S. A. 1971 Supp.) 79-2005. The question presented herein is identical with the question presented and determined in Panhandle Eastern Pipe Line Co. v. Tieperman, supra, and we adhere to our determination therein.
The orders dismissing the boards of county commissioners and the county clerks from these actions are reversed and the cases are remanded for proceedings consistent herewith.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action by Fireman’s Fund American Insurance Companies for damages against its agent, Central Securities, Inc.
On June 2, 1969, this case came on for trial before a jury, and after each of the parties made their opening statements the trial court, without motion, rendered a summary judgment for the defendant. Plaintiff appeals.
We must determine whether or not there was a genuine issue as to any material fact based on the pleadings, depositions, answers to interrogatories, and admissions.
The petition disclosed that the plaintiff is an insurance corporation and that defendant was the authorized agent of the plaintiff for the purpose of securing insurance business; that on or about February 11, 1965, defendant solicited and received an application for fire insurance on premises owned by one Nellie J. Myers; that as a result of the application and representation made therein the plaintiff issued a policy of insurance on said premises insuring against loss by fire; that the risk assumed by plaintiff was based upon the representation made by said Nellie J. Myers that the building was being used as a wholesale paper warehouse; that subsequent to the issuance of such insurance policy the occupancy and use of said premises was changed and the new use was for the fabrication of polyurethane; that the fire risk involved in use of said premises for the fabrication of polyurethane was greater than the risk assumed by plaintiff under its original policy and the underwriting standards of plaintiff prohibited the latter risk; that the defendants received due notice of the change in occupancy and use of said premises, but failed to notify plaintiff of said change; that subsequently, while said policy was in force said premises were destroyed by fire and the amount of the loss was paid to the insured; that if defendants had notified plaintiff of said change the policy of insurance would have been canceled by the plaintiff; and that said loss was caused by the negligence of the defendants in failing in their duty to advise the plaintiff of said change in occupancy and use.
Counsel for plaintiff in his opening statement digressed from the allegation of the petition that the policy of insurance would have been canceled upon notification of the change in use of the premises, saying:
“The reason we feel this way is this: first of all — and as it will develop through the testimony and the exhibits — fire insurance companies have what they call Underwriters — some work for them. And in this particular case this is what happened. They also have engineers. These engineers along with the Kansas Inspection Bureau it totally separate, but our own company engineer goes out and looks at a building of this kind and determine whether or not we should cover it by insurance. It depends on the structure of the building and what the tenants are doing and so on. Then, they decide, number one, whether or not they are going to insure it or not. They pass the information to the company’s Underwriters and it is their function to determine whether they will insure it or not, and if they do, they will determine what, if any changes, will be made; if the sprinkler system is good, if the venting system is good, or what not.
“We contend we never had the opportunity to do this. We were never notified. We contend the insurance agent who was notified should have by law under his obligation notified the company so we could have made these inspections and could have made the changes.”
Following the opening statement of the defendant, the trial court commented that even if plaintiff’s case would have been proven as alleged it would not have been a case that could have been “submitted to the jury for the reason that the theory of damages in this case is based on speculation and conjecture and uncertainty.” It further stated that “if the agent had notified the company of the increased hazard then the company might have taken action which would or could have reduced the loss or eliminated the loss, and whether it would have or could have is simply speculation.”
We have decided that opening statements of counsel are merely permissive and not obligatory; that they are generally mere outlines of anticipated proof; and that they are not considered as a complete recital of the facts to be produced on contested issues. We have stated that unless the opening statements understandingly admit facts that preclude recovery no judgment should be entered thereon. (Hengel v. Thompson, 176 Kan. 632, 272 P. 2d 1058.) We have also stated that where there is doubt or ambiguity in such a statement the counsel who made it is entitled to the presumption that he did not intend to make an admission that would be fatal to his client’s case. (Hengel v. Thompson, supra; Rodgers v. Crum, 168 Kan. 668, 215 P. 2d 190.)
Applying these rules to counsel’s opening statement we conclude that he did not admit any facts that precluded recovery and even though the statement could be considered ambiguous he is entitled to the presumption that he did not intend an admission fatal to his client’s cause.
The record discloses that an employee of the plaintiff testified to the following by deposition:
“. . . that we would have canceled this policy or asked for the cancellation of this policy. I do not know of any circumstances where we would have continued this policy in effect until the next policy date.”
Also, in answer to an interrogatory plaintiff stated:
“The general company policy, and common sense, prohibits the issuance of fire insurance policy on premises used for fabricating of polyurethane where the plaintiff has never had an opportunity to examine an engineering report or become notified as to the identity of the occupant of the building insured or have the opportunity to check the same.”
K. S. A. 60-256 (c) states:
“(c) . . . The judgment sought shall be rendered forthwith if 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 a judgment as a matter of law. . . .”
The trial court failed as required by this statute, to consider the deposition and the answers to interrogatories, each of which clearly disclose plaintiff’s position and contention. If it were necessary to support plaintiff’s cause of action to prove the policy of insurance would have been canceled upon notification that there was a change in the use of the premises, we hold that such proof was admissible herein.
We do not imply from the foregoing that plaintiff does not have a cause of action based on lack of opportunity to inspect because of failure to notify. A decision on this point is not necessary to this opinion and we feel that this issue could be more confidently determined after evidence is introduced and the question fully briefed.. We do note, however, that defendant failed to cite any authorities which support a rule of law to the effect that plaintiff is prohibited from recovery under either of these theories.
Summary judgment should not be granted on the belief that a party cannot prevail upon a trial. It is not unusual that the findings of a trial court will not be in accord with the findings of a jury. In order to dispose of litigation by summary judgment it must be conclusively shown that the cause of action or defense is completely without merit and it would be futile to try the action. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.)
The trial court, on the basis of the opening statement of the plaintiff, entered summary judgment for the defendant. In view of what has been herein said, this action was not a satisfactory method of settling the disputed issues of fact in this case.
We find that the trial court erred in granting summary judgment herein.
The judgment is reversed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
Appellant was convicted by a jury of first degree robbery and he appeals, alleging three trial errors all relating to the court’s instructions to the jury. They will be discussed as presented in his statement of points.
"1. The Court failed to instruct the jury of a lesser included offense, namely, receiving stolen property.”
The court’s proposed instructions were discussed in chambers. Appellant’s retained counsel, Mr. Tyler C. Lockett, suggested an instruction on receiving stolen property, but the trial court was dubious about its propriety. The prosecutor, Mr. David P. Calvert, would have been delighted to have the instruction as a place for "the jury to compromise — a prior trial having ended in a hung jury— but thought the charge would be error. The discussion ended:
“The Court: I’m kind of afraid it might be error. But, would it be error if both of you requested it?
“Mr. Calvert: I have never run across that problem before.
“Mr. Lockett: I think it is the duty of the State, if they think it is error, to object.
“Mr. Calvert: Yeah.
“Mr. Lockett: I think there is something about ambushing the Court, isn’t there? It is error, I’m sure, Your Honor. Receiving stolen property is a separate and distinct crime.
“The Court: I always thought it was.
“I believe I better overrule that objection Tye. I don’t want to foul up the law in the state.
“What other objections?
“Mr. Lockett: That is the only one we’d have, Your Honor.”
All involved at the trial level thus agreed that the suggested instruction would have been improper. We also agree.
Although neither party cites a case dealing directly with the distinction between robbery and receiving stolen property, we have said several times that the latter offense is separate and distinct from, and not included in, the offense of larceny. It was recently restated in State v. Omo, 199 Kan. 167, 172, 428 P. 2d 768:
“Based upon the testimony of Tony Pinzino offered by defendant and already stated, defendant requested the trial court to submit an instruction to the jury that he might be found guilty of the offense of receiving stolen property. This request was refused. Defendant asserts the refusal as error, in effect arguing the offense of receiving stolen property is a lesser degree of the crime of larceny which was charged. Not so. The offenses of larceny of property and receiving stolen property are separate and distinct crimes (State v. Fields, 70 Kan. 391, 78 Pac. 833; State v. Wasinger, 133 Kan. 154, 298 Pac. 763). The trial court properly refused the request.”
The same reasoning that led to this conclusion convinces us that receiving stolen property is not a lesser offense in a charge of robbery, and an instruction on it would therefore have been erroneous.
“2. The Court failed to properly instruct the jury on a question submitted to the Court after deliberation on the date of the preliminary hearing and the date the alibi was filed by the defendant.”
The record shows the following proceedings after the jury had retired to deliberate:
“The Court: Let the record show the jury is in the box, defendant is in the courtroom, counsel are present.
“I have received two questions, written questions from Mr. Botteri, the foreman of the jury. No. 1: ‘At what time following the robbery was the preliminary hearing held?’ In response to that question, I’m going to have the reporter read back the testimony of Mr. Lon Stockton wherein that was brought out.
“On question No. 2, “What date was the notice of alibi filed,’ I can’t give you the actual date because that is not in evidence. I can’t give the jury any new evidence at this point. I have instructed the jury already, though, that an alibi is a proper defense and that I can simply tell you in answer to question No. 2 that the alibi was legally and properly filed.
“(Thereupon, the reporter read back a small portion of Mr. Stockton’s testimony; . .
The court could, of course, have ascertained from the file the date that appellant’s alibi notice was filed, and it appears that die testimony read to the jury relating to question number one was about a week in error. However, this court can perceive no way in which either date could have been material to the issue of guilt; we see no error in the trial court’s response to the jury’s questions, and certainly see no prejudice to the appellant.
“3. The Court failed to properly instruct the jury following the testimony of the State which was prejudicial, immaterial and irrelevant.”
This claim is based on the testimony of one of the arresting officers. On direct examination he testified only that he conducted a line-up in which appellant was a participant. On cross-examination appellant went far beyond the scope of the direct by asking the officer about his interrogation of the appellant. After eliciting that appellant had been properly warned of his rights, counsel asked generally what the conversation between the two had been. This opened a whole new area of inquiry, and resulted in the following exchange on redirect:
“Q. Did you have any further conversation with him at that time?
“A. At what time?
“Mr. Lockett: I’m going to object to that as being a shotgun question on redirect. If he wants to specifically go into it — it just opens up the door for anything.
“The Court: I kind of think maybe you’re right. Sustained.
“Q. (By Mr. Calvert) Did you have any conversation with Mr. Morris about his philosophy?
“Mr. Lockett: I’m going to object, Your Honor, that is not material.”
“Mr. Calvert: Well, now, we’re talking about this conversation, Your Honor.
“The Court: Yeah, I think it is material. Overruled. He may answer.
“A. Yes.
“Q. (By Mr. Calvert) What was that?
“A. He told us that he hated white people because we had suppressed his race for—
“Mr. Lockett: I object to this, Your Honor. It is really not material and the only thing it is designed for is to inflame the jury. It has nothing to do with this case.
“Mr. Calvert: Let me ask a specific question.
“The Court: I think I’ll strike that last statement from the record. But, go on. I don’t want any inflammatory evidence. I’ll strike that last one from the record. Go ahead.
“Q. (By Mr. Calvert) Did you have any conversation with him about his jobs?
“A. Yes, sir.
“Q. What was that?
“A. He told us that he didn’t believe in working, that he was a hustler and that throughout his lifetime he had not worked more than a total of—
“Mr. Lockett: I object to this, Your Honor. It has no materiality in this case.
“The Court: Overruled. Proceed.
“A. (Continuing) And that throughout his lifetime he had worked no more than a year and a half. He said that he was not a thief, but he would clip people. I asked him what he meant by clipping people and he said that if he was somewhere, such as a bar, and someone had a pocket full of money and they fell asleep around him, they were asking for their money to be taken and that he would do this.
“Mr. Calvert: No further questions.”
This testimony, for our purposes, has two aspects. The injection of appellant’s alleged racism was rejected by the court, and ordered stricken on the court’s own initiative. We have no doubt that the court would have gone further and admonished the jury to disregard it had he been requested to do so at the time. Failure to make such a request may have been the result of counsel’s decision to let well enough alone — further discussion might only have served to emphasize the objectionable testimony. The fact remains that no such request was made.
The second aspect of the testimony, relating to appellant’s professed vocation of “clipping” people, may be justified as legitimate redirect examination. As noted above, the conversation was brought into the case for the first time by appellant. Under familiar rules, the opposing party is generally permitted to explore an entire transaction or conversation only partially explained. The common term for what appellant did is “opening the door.” The scope of permissible examination under these circumstances is largely within the discretion of the trial court. See Frame, Administrator v. Bauman, 202 Kan. 461, Syl. ¶¶ 1 and 2, 449 P. 2d 525; State v. Hubbard, 126 Kan. 129, 266 Pac. 939, 58 A. L. R. 327.
But assuming this testimony was not admissible — and its connection with a first degree robbery charge is at best tenuous — appellant has not made any affirmative showing of prejudice resulting from this brief interlude in a trial requiring two full days of testimony. He does not show, for example, that it was emphasized or even mentioned by the state in its closing argument. In addition, the only error now claimed with respect to any of the testimony is the court’s failure to admonish or instruct the jury, and no request that it do so was ever addressed to the trial court. As we have said, this court “has long been committed to the rule a party is in no position to complain of the failure to give an unrequested instruction (State v. Turner, 114 Kan. 721, 723, 220 Pac. 254; State v. Linville, 150 Kan. 617, 621, 95 P. 2d 332; State v. Gatewood, 169 Kan. 679, 685, 221 P. 2d 392).” State v. Graham, 172 Kan. 627, 629, 242 P. 2d 1067.
No reversible error having been shown, the judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Foth, C.:
The issue presented to the trial court was whether the driver of a truck was using it with the implied permission of his employer at the time he was involved in a collision, so as to bring his use of the truck within the coverage of the “omnibus clause” of the employer’s liability insurance policy.
The suit originated as one against both John P. Whalen and Field Queen, Inc., his employer and owner of the truck, for damages sustained by plaintiffs as a result of the collision. On motion for summary judgment it was determined that Whalens operation of the truck at the time of the collision was not in the course of his em ployment, and his employer Field Queen was dismissed as a party defendant. No question is raised as to the propriety of that ruling.
The original suit proceeded to trial against Whalen alone, and resulted in judgments for plaintiffs aggregating $2480.81. They thereupon instituted the instant garnishment proceedings against Manufacturers and Wholesalers Indemnity Exchange, the appellee, which was Field Queen’s liability insurance carrier. Manufacturers answered the order of garnishment by generally denying any indebtedness or liability to Whalen. Plaintiffs put the present matter in issue by filing replies to these answers, alleging the issuance of the liability policy to Field Queen and asserting that Whalen was an “insured” under the omnibus clause of the policy in that he was driving the truck with the permission of Field Queen at the time of the collision.
The omnibus clause was in a common form, extending the policy’s coverage to Field Queen as the named insured and also to “any person while using an owned automobile . . . provided the actual use of the automobile is by the named insured or with [its] permission.” (Italics added.)
The issue of coverage thus joined was tried to the court, as provided by K. S. A. 60-718 (as amended). The permission claimed was implied permission, not express. Plaintiffs, having the statutory burden of proof introduced their evidence and rested; Farmers moved “for a directed verdict based on plaintiffs’ evidence, or, in the alternative, for an order of involuntary dismissal.” The motion was sustained, and plaintiffs appeal.
In their statement of points plaintiffs’ sole claim is:
“The trial court erred in dismissing the garnishment proceeding at the conclusion of the evidence presented by the plaintiffs where such evidence, construed in a light most favorable to the plaintiffs, made a prima facie, case to establish that defendant Whalen had implied permission to use the insured vehicle at the time of the accident.” (Emphasis added.)
The emphasized language demonstrates, we think, a basic misconception of the function of the trial court in ruling on a motion for involuntary dismissal under K. S. A. 60-241 (b), leading to a similar misconception of our role on appellate review of such a ruling.
In Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, we definitively determined that in ruling on such a motion the trial court, sitting without a jury, is entitled to weigh the plaintiff’s evidence as if he were adjudicating the case on the merits. In so holding we expressly overruled Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575. See also, In re Estate of Ewers, 206 Kan. 623, Syl. ¶ 1, 481 P. 2d 970. MackeyWoodard was followed by Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445, where we summarily disposed of a contention that the trial court was required to overrule such a motion because, on some reasonable inferences to be drawn from plaintiff’s evidence, a prima facie case for relief was made. Most lately, in Wiley v. Board of Education, 205 Kan. 585, 470 P. 2d 792, we followed this line of reasoning to its ineluctable conclusion that on appellate review our search is only for “substantial evidence” to support the trial court’s findings, and that in examining the findings for that limited purpose we must view the evidence in the light most favorable to the party prevailing below. In short, we look at these findings of fact in the same manner we do any other findings of a fact-finding tribunal.
On the motion the court below made the following oral findings, later incorporated in substance in the journal entry:
“ — that there was no express permission of use of the pickup truck in question by John P. Whalen, employee of Field Queen, Inc.
“Second, that as a matter of law, the facts and circumstances as revealed by evidence of the plaintiff does not constitute implied permission on the part of John P. Whalen, and as a result thereof there is no coverage under the omnibus provision of the insurance policy.”
The second is the crucial and only disputed finding. It seems to us that implied permission is a question of ultimate fact. Like negligence, it becomes a question of law only when reasonable minds could not reach different conclusions. We think this is the sense in which trial court found that “as a matter of law” the facts and circumstances did not constitute implied permission — no implication of permission was compelled by the evidence. Our chore, then, is to determine whether there was substantial evidence which, given the benefit of all reasonable inferences, would support the trial court’s finding of “no implied permission.”
The only evidence introduced on the trial of the garnishee’s liability was the testimony of Whalen. His testimony supporting the trial court’s conclusion was:
(a) The collision occurred on a Sunday, when he was using the truck to arrange a “coming home” party for his son.
(b) This use had no connection with his employer s business, but was purely personal.
(c) While he had used the truck before for personal business, he had never done so without express permission.
(d) On the day of the collision he had tried twice to obtain permission by telephone. When he was unable to reach his supervisor he felt it necessary to leave a note that he had taken the truck, even though it was not a business day.
(e) Other employees had used the truck for personal business without express permission, but he was reluctant to name such employees because he was afraid they would be fired if their employer were to find out about such use.
This evidence, in our view, amply justifies the finding of the trial court that the pattern of prior conduct did not show implied consent. Certainly we cannot say it compelled the contrary finding.
The view we take of the case renders unnecessary a discussion of the trichotomy of views now extant concerning the extent to which deviation from the purpose for which express permission is granted must go before reaching the outer bounds of implied permission. See, e. g. anno., 5 A. L. R. 2d 600, 622. It similarly renders unnecessary a recitation of that portion of Whalen’s testimony from which the trial court might have inferred that implied permission did exist.
In holding as we do we have not ignored and do not necessarily disagree with those authorities which hold that a prior course of conduct between employer and employee may indicate such acquiescence on the part of the employer as to amount to implied permission. Compare Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498, with National Farmers Union Property & Cas. Co. v. Farm Bureau Mutual Ins. Co., 194 Kan. 93, 397 P. 2d 81. The closest factual case cited to us by plaintiffs is Turner v. Great American Insurance Company, 424 F. 2d 694 ( 6th Cir. 1970), where the court held summary judgment against implied permission was improper in the face of evidence of invariable grants of express permission. Varying circumstances might lead to varying conclusions, the court held, but whether the particular circumstances there showed “implied consent” was a question of fact to be determined by the trier of fact, not a question of law to be determined by the court on summary judgment. The circumstances here were found, as a matter of fact and by the trier of fact, not to show implied consent.
The judgment is affirmed.
approved by the court.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Rosen, J.:
Charles Adams petitioned this court to review the Court of Appeals’ opinion, which affirmed his convictions for possession of cocaine, conspiracy to sell cocaine, attempted sale of cocaine, possession of hydromorphone, possession of drug paraphernalia for selling drugs, possession of marijuana, and possession of paraphernalia for ingesting drugs. We granted Adams’ petition for review on the limited issue of his sentence. However, we do not reach Adams’ sentencing issue because his convictions must be reversed due to the violation of his statutory right to a speedy trial. Because the facts leading up to Adams’ arrest are unnecessary for resolving the issue, we will limit the recitation of the facts to those applicable to his speedy trial issue.
The State charged Adams with possession of cocaine, conspiracy to sell cocaine, attempted sale of cocaine, possession of hydromorphone, possession of drug paraphernalia for selling or distributing drugs, possession of marijuana, and possession of drug paraphernalia for using drugs. Adams’ first trial began on January 27, 2004, and ended in a mistrial on the same day. The district court scheduled Adams’ new trial to begin on March 5, 2004, and reinstated his bond. Because the district court set the trial on March 5, 2004, as a third priority, it had to reschedule the trial again for May 25, 2004.
On May 21, 2004, the prosecutor contacted the district court judge and expressed his concern that Adams would not appear for trial because officers planned to serve him with an arrest warrant on other charges. The district court judge contacted Adams’ defense counsel, who advised the court that Adams would appear as scheduled, regardless of the outstanding arrest warrant. Nevertheless, the district court cancelled Adams’ jury trial and set the matter for a status conference if Adams appeared.
Adams appeared with his defense counsel as scheduled on May 25, 2004. At the status conference, the district court attempted to schedule Adams’ trial date on July 7, 2004, with a third priority setting. However, when the prosecutor indicated a conflict with that date, the district court offered to set the matter as a first priority on August 17,2004. Adams’ defense counsel had another trial scheduled on that day, so tire court set Adams’ trial to begin on August 18, 2004.
Immediately before Adams’ trial on August 18, 2004, Adams’ defense counsel moved for dismissal based on a violation of Adams’ statutory right to a speedy trial. The State argued that Adams acquiesced to continuing the trial to August 18, 2004. The State also argued that Adams had caused the delay by committing the additional crimes that led to the arrest warrant. After listening to a recording of the proceedings on May 25, 2004, and the arguments of counsel, the district court denied Adams’ motion.
A jury convicted Adams of possession of cocaine, conspiracy to sell cocaine, attempted sale of cocaine, possession of hydromorphone, possession of marijuana, and two counts of possession of drug paraphernalia. The district court sentenced Adams to a total term of 99 months in prison. The Court of Appeals reversed the attempted sale of cocaine conviction and affirmed Adams’ other convictions and sentences. State v. Adams, 35 Kan. App. 2d 439, 131 P.3d 556 (2006). The matter is before us on Adams’ petition for review.
Although Adams raised the statutoiy speedy trial issue before the district court, his appellate counsel failed to raise the issue on appeal. Appellate courts do not ordinarily consider issues that are not raised by die parties. However, we have the power to address such issues in exceptional circumstances, where the consideration of the issue is necessary to serve the ends of justice or prevent the denial of fundamental rights. State v. Puckett, 230 Kan. 596, 600-01, 640 P.2d 1198 (1982) (affirming the Court of Appeals’ sua sponte reversal of seven fraud convictions because the elements instructions were defective); see also State v. Washington, 275 Kan. 644, 677-80, 68 P.3d 134 (2003) (considering sua sponte the effectiveness of defense counsel at sentencing, vacating defendant’s sentence, and remanding for resentencing); State v. Frazier, 248 Kan. 963, 973-74, 811 P.2d 1240 (1991) (reversing defendant’s conviction sua sponte because the defendant was a juvenile and the district court did not have jurisdiction); State v. Jones, 11 Kan. App. 2d 612, 613, 616, 731 P.2d 881 (1987) (finding K.S.A. 21-3734[1][c] unconstitutional even though the defendant did not raise the issue). An appellate court should allow the parties an opportunity to brief the issue before the court decides the case. This may be done by requiring the filing of supplemental briefs or by setting the case for reargument. 230 Kan. at 601.
Because Adams raised the statutory speedy trial issue before the district court and the resolution of this issue serves the ends of justice by reversing Adams’ convictions and vacating his sentences, we believe this case presents the exceptional circumstances necessary for raising the statutory speedy trial issue sua sponte. In addition to impacting Adams’ incarceration and criminal history, the resolution of the issue at this point serves the ends of justice by promoting judicial economy. If we had refused to address the issue, Adams would be forced to file a K.S.A. 60-1507 motion on the grounds of ineffective assistance of appellate counsel, thereby requiring the additional use of judicial resources. Addressing the issue now also serves the ends of justice by preventing the denial of Adams’ statutory right to a speedy trial. While we stress that it is not our role to search for errors on behalf of litigants, we note that the speedy trial error in this case was inherently obvious from a cursory reading of the record. We further note that we had provided the parties with an opportunity to address this issue at oral argument and through supplemental briefs.
Resolution of a statutory speedy trial issue is a question of law subject to de novo review. State v. McGee, 280 Kan. 890, 891-92, 126 P.3d 1110 (2006). K.S.A. 2006 Supp. 22-3402 establishes a statutory right to a speedy trial, providing, in pertinent part:
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(5) The time for trial may be extended beyond die hmitations of subsections (1) and (2) for any of the following reasons:
(a) The defendant is incompetent to stand trial. If the defendant is subsequendy found to be competent to stand trial, die trial shall be scheduled within 90 days of such finding;
(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section. If die defendant is subsequently found to be competent to stand trial, the trial shall be scheduled within 90 days of such finding;
(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe diat such evidence can be obtained and trial commenced within the next succeeding 90 days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than 90 days, and the trial is commenced within 120 days from the original trial date;
(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground.
“(6) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.”
A defendant who is not in custody solely for the crime charged is entitled to be brought to trial within 180 days after arraignment. State v. Abel, 261 Kan. 331, 335, 932 P.2d 952 (1997). The State bears the responsibility for ensuring that the accused is provided with a speedy trial in accordance with K.S.A. 2006 Supp. 22-3402. The defendant is not required to take any affirmative action to ensure that his or her right to a speedy trial is observed. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). However, a defendant waives his or her statutory right to a speedy trial by requesting or acquiescing in the granting of a continuance. Defense counsel’s actions are attributable to the defendant in calculating speedy trial violations. State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002).
Adams’ first trial ended in a mistrial on January 27, 2004. Pursuant to K.S.A. 2006 Supp. 22-3402(2) and (6), Adams’ statutory speedy trial period ended on July 26, 2004. Adams’ trial began on August 18, 2004, 23 days after his statutory speedy trial period ended.
The State contends that Adams waived his right to a speedy trial by acquiescing to the continuance until August 18,2004. However, this argument is not supported by the record. Neither the State nor Adams filed a motion to continue. The State initiated the cancellation of Adams’ jury trial on May 25, 2004, by advising the district court of its assumption that Adams would not appear due to an outstanding arrest warrant. Although Adams’ defense counsel advised the court that Adams would appear, the district court can- celled the trial based on the State’s assumption that Adams would not appear. When Adams appeared as scheduled on May 25, 2004, the court provided two dates for trial. The first date was July 7, 2004. The State advised the court of a conflict on that date, so the court offered to set Adams’ trial for August 17, 2004. Because Adams’ defense counsel had another trial scheduled for August 17, 2004, the district court set Adams’ trial as the first priority case on August 18, 2004. The State did not request an earlier setting, and Adams’ defense counsel did not object to starting the trial on August 18, 2004. Although Adams’ defense counsel accepted the August 18, 2004, trial setting, his acceptance is neither an acquiescence to a continuance nor the equivalent of a waiver of Adams’ .statutory right to a speedy trial. The State, not Adams, was responsible for ensuring that Adams was tried before the statutory speedy trial deadline expired. See White, 275 Kan. at 598.
Next, the State argues that Adams failed to assert his right to a speedy trial when defense counsel did not object to the August trial setting. The State relies on State v. Fitch, 249 Kan. 562, 819 P.2d 1225 (1991), and State v. Sherman, 217 Kan. 326, 536 P.2d 1373 (1974), for the proposition that Adams’ failure to object to the trial setting waived his statutory right to a speedy trial. However, Fitch and Sherman do not support the State’s proposition. Fitch involved a constitutional speedy trial analysis rather than a statutory speedy trial analysis. 249 Kan. at 563. Sherman involved a delay resulting from the defendant’s requests for continuances and failure to appear. 217 Kan. at 329. In this case, Adams did not request a continuance or fail to appear. We find no merit in the State’s argument, which would require us to abrogate the longstanding rule that defendants are not required to take any affirmative action to enforce their statutory right to a speedy trial.
Finally, tire State asserts that Adams was not prejudiced by the delay. However, this argument fails to consider the language of K.S.A. 2006 Supp. 22-3402(2), which mandates a trial within 180 days without considering whether tire defendant is prejudiced by any delay longer than 180 days. Thus, we cannot attribute the delay from May 25, 2004, to August 18, 2004, to Adams, regardless of whether Adams was prejudiced by the delay.
K.S.A. 2006 Supp. 22-3402(2) requires an accused on bond to be tried within 180 days. The 180-day period for Adams expired on July 26, 2004. The State failed to perform its statutory duty to bring Adams to trial by July 26, 2004. Accordingly, we reverse all of Adams’ convictions, vacate his sentences, and dismiss the charges against him.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
This appeal arises from the district court’s denial of defendant Larry Shopteese, Jr.’s motion to withdraw his no contest pleas to one count of first-degree murder and one count of aggravated burglary. Shopteese asserts that his marginal I.Q., coupled with his unmedicated mental illness, rendered his pleas involuntary.
Factual and Procedural Background
On February 19, 2002, Cletuis Samqua and his daughter, Judy, arrived home to find Shopteese in their living room. Although details were disputed, the results of the encounter were that Shopteese shot and killed Cletuis and took money from Judy before she fled to a neighbor’s house. Shopteese took firearms from the home and money from Cletuis’ wallet. He then fled into nearby woods, where he lived on berries and pond water for 2 days before he was apprehended.
Shopteese was charged with felony murder, aggravated robbery, aggravated battery, aggravated burglary, burglaiy, and theft. Counsel was appointed, and Shopteese entered a not guilty plea. Eventually, this lawyer withdrew, and a new lawyer was appointed. In early December 2002, the new lawyer sought and obtained a competency evaluation of Shopteese.
Dr. David Elsbuiy, of the Kanza Mental Health and Guidance Center, filed a report on December 16, but Elsbury was unable to make a determination of Shopteese’s competency. Elsbury’s report noted that Shopteese had finished eighth grade, had unsuccessfully attempted to obtain a GED, and functioned between a second- and fourth-grade level. Shopteese was “oriented to time, place, person, and situation” and “alert and capable of listening and following instructions”; however, Shopteese reported hearing voices and “shushing sounds” that interfered with his ability to concentrate or follow conversations. Shopteese also reported visual hallucinations, such as floating animals. Elsbury suggested that Shopteese “demonstrated the capacity to understand his current legal situation and could name and generally describe the charges against him”; he also had “a good capacity to understand and disclose to counsel available pertinent information surrounding the alleged offenses.....He wants to protect himself in the legal process and use his attorney in that task.” However, Elsbury noted: “The defendant has a weak understanding of the possible pleas and what they mean. The defendant’s view of the possible consequences if found guilty seem incomplete and he doesn’t appear to have an adequate grasp of the seriousness of the charges and the full range of penalties that could be levied against him.” Elsbury diagnosed Shopteese with “Psychotic Disorder, Not Otherwise Specified” and “Mild Mental Retardation.”
Elsbuiy recommended Shopteese be sent to Larned State Security Hospital (Larned) for further evaluation. After a hearing on December 20, the district court judge entered an order consistent with the recommendation.
Shopteese was admitted to Lamed on January 7, 2003, and remained there for evaluation and treatment for 3 months. A March 5, 2003, report by Dr. J.L.L. Femando suggested Shopteese was not competent to stand trial at that time, although he probably would become competent in the foreseeable future. Fernando noted that defendant reported vague hallucinations, which, Fernando suggested, could be related to head trauma or “huffing” of gasoline vapors. Femando also noted Shopteese’s limited intelligence, his distracted nature, his low cognitive functioning, and his illiteracy. Fernando suggested these attributes hindered Shopteese’s competence and would make it difficult for him to work with an attorney “in the preparation and presentation of a legal defense.” Femando nevertheless concluded that Shopteese’s “borderline intellectual functioning” was not the primary reason for his confused thoughts, and that “treatment in the form of psychotropic medication would likely allay his symptoms.” Like Elsbuiy, Fernando diagnosed Shopteese with “Psychotic Disorder, Not Otherwise Specified” and what he called “Borderline Intellectual Functioning.”
The district court judge held a competency hearing on March 21, 2003, and, based on Fernando’s report and testimony along with Elsbury’s report, found Shopteese incompetent to stand trial. The judge ordered Shopteese committed for additional evaluation and treatment at Larned for 3 more months.
On May 21, 2003, Dr. Dara Johnson of Larned informed the court that Shopteese remained incompetent to stand trial but certified that he had a substantial probability of attaining competency in the foreseeable future. Johnson recommended Shopteese remain at Larned, which he did.
On September 5, 2003, Dr. Leonardo Mabugat of Lamed submitted a report indicating Shopteese was then competent to stand trial, despite Mabugat’s agreement with Shopteese’s earlier diagnoses of “Psychotic Disorder, Not Otherwise Specified, and Borderline Intellectual Functioning.” Mabugat’s examination revealed that Shopteese “displayed good understanding of the courtroom proceedings, the roles of the participants in a criminal trial and his expected behavior in court. He expressed his willingness to work with his attorney” and “expressed his intention to remain at [Larned] instead of going back to court to face his legal problems.” In Mabugat’s opinion, Shopteese had begun malingering. He “was seen to deliberately give indirect responses to convince the team he was not competent to stand trial.” Shopteese was taking sleep and antipsychotic medication. “In order to remain competent and maintain affective stability,” the Larned staff recommended that Shopteese continue these medications.
Based on the Larned reports, the district court judge set Shopteese’s trial for February 2, 2004.
On January 2, 2004, Shopteese’s counsel submitted a new motion to determine competency, accompanied by an affidavit from Dr. Robert Barnett, an expert hired to testify concerning a mental disease or defect defense.
On January 29, 2004, the State filed an amended complaint charging only felony murder, aggravated robbery, and aggravated burglary. Shopteese and die State eventually agreed that Shopteese would plead no contest to the murder and aggravated burglary charges, in exchange for the State’s dismissal of the remaining aggravated robbery charge. Shopteese’s counsel filed a statement regarding plea negotiations, affirming that he had explained to his client the details of the charges, the possible sentences, the effect of the pleas, and the fact that the judge alone would decide on sentences. Counsel further affirmed that Shopteese understood and that it was Shopteese’s decision to enter the pleas.
The district judge’s January 30, 2004, plea hearing journal entry states:
“[T]he defendant satisfactorily assures the Court that he enters the plea of no contest to Counts I and III of the State’s amended complaint with full understanding of the nature and consequences of the plea, with full knowledge of the constitutional rights which he has as a defendant and of the specific constitutional rights he is waiving by entering his plea.”
During the plea hearing, the following colloquy occurred:
“Q. [The Court]: Are you under any order of disability based upon a mental illness petition to your knowledge?
“A. [Defendant]: No, sir.
“Q. Are you taking any prescription medication?
“A. Yes, sir.
“Q. Would you tell me what that is if you know?
“A. Geodon and Trazodone.
“Q. Are you taking those regularly?
“A. Yes.
“Q. Are they prescribed by a doctor?
“A. Yes.
"Q. And have you taken them within the last 7 days?
“A. I ran out of medication, sir.
“Q. When?
“A. Let’s see, I ran out of them I think it was Monday.
“Q. Do they know that?
“A. Yes.
“Q. And are they obtaining those for you?
“A. I put in a request for them to see the doctor but the doctor hasn’t come in yet.
“Q. So you’re awaiting to go see the doctor?
“A. Yes.
“Q. Are you feeling physically sick today?
“A. No.
“Q. Can you understand what I’m saying?
“A. Yes, sir.
“Q. Are you seeing anything floating in the air or anything like that?
“A. Yes, sir.
“Q. What?
“A. A 3-D version of everything. I’m cross-eyed, sir.
“Q. So that’s what you’re having trouble with is your eyes are cross and that causes you to have blurred vision?
“A. Yes, sir.
“Q. Can you hear me though?
“A. Yes, sir.
“Q. I see that you’re wearing glasses. Are the glasses not strong enough to correct your vision problem?
“A. I had them since I was 13, sir.
“Q. But it’s not affecting your ability to visit with Mr. Tuley or hear what I’m asking you is it?
“A. No, sir.
“Q. Are you feeling any pains or problems because you haven’t had that medication in the last couple days?
“A. No, sir.
“Q. Are you taking any land of over-the-counter medication like Advil or Tylenol or anything like that?
“A. No, sir.
“Q. Are you taking any land of herbal supplements like echinacea or any of those kind of things?
“A. No, sir.
“Q. Are you under die influence of any alcohol, intoxicant of any land, cereal malt beverage, beer, liquor, wine, nonprescribed drugs, or toxic vapors or inhalants?
“A. No, sir.
“Q. Are you taking any land of substances drug or otherwise that would defeat your ability to think clearly, focus your attention on the issues before you, to communicate with others including Mr. Tuley your attorney, and to make important personal decisions on your own?
“A. No, sir.
“Q. Do you want me to bréale tíiat one down?
“A. I understand, sir.
“Q. Mr. Shopteese, when I asked you a couple of questions about, were you having trouble seeing things or seeing things?
“A. Yes, sir.
“Q. You indicated you see things in 3-D because you’re cross-eyed?
“A. Yes, sir.
“Q. That isn’t that you’re seeing buildings flying around and things like that, it just happens to be it blurs your vision?
“A. No, sir it’s not all, but I have otíier I don’t know how you would say visions, but they’re just it’s just a big story to talk out.
"Q. You’re not having one of those today are you?
“A. Yes, I am.
“Q. Are you having it right now?
“A. Yes.
“Q. What are you seeing?
“A. Well, like different — I look at the wall or so and it has looks like they’re all red, all red different designs, like people.
“Q. Now, are they doing anything to you, Mr. Shopteese, are they scaring you?
“A. Every time I turn to look at something different it stays the same picture and just floats.
“Q. All right, Mr. Shopteese, have you been able to understand what we’re talking about today?
“A. Yes, sir I understand.
“Q. These things whatever this is that you visualize on the wall or anything like that, that’s not affecting your ability to listen and make your decision today is it?
“A. I’ve learned to try to block that out.
“Q. Okay. And that’s part of the cross-eye that you have or the vision problem that you have; is that correct?
“A. Yes, sir.
“Q. All right. And that’s your physical vision. That’s you looking through your eyeballs, correct?
“A. Yes, sir.”
On March 10, 2004, the district judge sentenced Shopteese to life without parole for 20 years on the murder conviction, to run consecutive to a term of 34 months’ imprisonment for aggravated burglaiy.
Six days later, Shopteese sent a handwritten note to the district judge, saying he “would like to appeal [his] case & [he] would like to go to trial.” He sent a second note on March 25, saying he was having trouble reaching his attorney but would “like to put in a motion to go to trial and appeal [his] case.” Shopteese’s appointed counsel had filed a notice of appeal on March 15.
On March 31, Shopteese sent a third letter saying: “I would like to withdraw my Plea” because “I did not know what would happin [sic], I wouldn’t have took in the Plea, the Plea was not followed and I didn’t want to take the Plea. I would like to go to trial.”
Shopteese’s counsel died January 23,2005, and new counsel was appointed on the appeal. The case was remanded to the district court for a hearing on Shopteese’s request to withdraw his pleas.
At the hearing, counsel argued: (1) Shopteese did not understand the nature of the plea agreement and knew only what he was assured by his appointed counsel at the time, i.e., that the sentences would run concurrent rather than consecutive and that he would be eligible for parole after 15 rather than 20 years; and (2) the signature on the plea agreement filed with the court was not Shopteese’s signature. Counsel also asked the court to take judicial notice of record information on Shopteese’s marginal I.Q. and mental illness.
Shopteese testified at the motion hearing. He acknowledged he was present at the plea hearing and signed something at a table in open court, but he said tire document he signed was not the plea agreement. He maintained that he had not seen or read the plea agreement that appeared in tire record until the week of the hearing on his motion to withdraw his pleas. Had he seen it earlier, he asserted, he would not have agreed to it. Shopteese suggested that a KBI employee had forged his signature on the agreement in the court file. Shopteese also testified that the document he had signed said “I plead no contest that the judge saying that I’m such a young age, I plead no contest to 15 years and be eligible for parole right after that.” He said his mother and his former counsel’s secretary had copies of the correct document. Shopteese testified on cross-examination that he did not remember the court showing him the plea agreement in the record or asking him if he understood that tire court was not bound by his counsel’s motion for concurrent sentences. When confronted with the plea hearing transcript, he suggested that it was “a lie.” He admitted, however, that he did not have any complaint until after sentencing. On redirect, Shopteese said he had understood the plea agreement to mean he would receive concurrent sentences and would be eligible for parole after 15 years. Had he known the plea agreement would permit him to receive consecutive sentences and go without a chance at parole for 20 years, he would not have entered into it.
After a lengthy discussion about what transpired at the plea hearing, the district judge made specific findings that Shopteese had been informed of the potential range of sentences and of his rights, including those he was waiving by pleading no contest. The judge also found that Shopteese was aware the court was not bound by any sentencing recommendation. The judge recited portions of the transcript from the plea hearing in which Shopteese’s signature was authenticated. The judge then made findings that Shopteese had been represented by competent counsel; that he had not been misled, coerced, mistreated, or unfairly taken advantage of; that the plea was freely, fairly, and understanding^ made; and that Shopteese met the requirements for mental competence. The judge noted that Shopteese
“had a sufficient present ability to consult with his attorney which he showed with a reasonable degree of rational understanding. He appeared to understand the questions I was asking. He was able to malee a proper response .... He understood what he was there for. He understood what the charges were. . . . [H]e met the standards for mental competence.”
Based on these findings, the district judge concluded that the there was no manifest injustice requiring withdrawal of Shopteese’s pleas.
Analysis
At the outset, we observe that the issue Shopteese now raises— his marginal I.Q. and unmedicated mental illness rendered his no contest pleas involuntary — was never raised before the district judge. Issues not raised before the district court cannot generally be raised on appeal. See State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). Exceptions to this general rule may be granted if (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground. State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006).
Because Shopteese’s argument that a court’s acceptance of a plea by an incompetent defendant implicates due process, see Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960); we choose to address the merits to serve the ends of justice and prevent denial of a fundamental right.
Regarding our standard of review, the denial of a motion to withdraw a plea after sentencing lies within the trial court’s discretion. An appellate court will not disturb the decision absent an abuse of that discretion. See State v. Harned, 281 Kan. 1023, Syl. ¶ 1, 135 P.3d 1169 (2006); State v. Muriithi, 273 Kan. 952, 955, 46 P.3d 1145 (2002); State v. Bey, 270 Kan. 544, Syl. ¶ 3, 17 P.3d 322 (2001). Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. State v. Edgar, 281 Kan. 30, 36-38, 127 P.3d 986 (2006). The defendant bears the burden of establishing such an abuse of discretion. Bey, 270 Kan. at 545-46.
Subsection (a) of K.S.A. 2006 Supp. 22-3210 sets out the requirements for accepting a guilty or no contest plea:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enter such plea in open court; and
(2) in felony cases the court has informed tire defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) tire court is satisfied that there is a factual basis for tire plea.” (Emphasis added.)
To be constitutionally valid, guilty or no contest pleas and their resulting waiver of rights “ 'not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Edgar, 281 Kan. at 36-37 (quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 90 S. Ct. 1463 [1975]). The term “voluntary” implicitly requires that the defendant be competent. See Van Dusen v. State, 197 Kan. 718, 722-25, 421 P.2d 197 (1966).
As Shopteese argues, competence is defined by statute. “[A] person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to malee or assist in making his defense.” K.S.A. 22-3301(1).
“ ‘[I]f die accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly 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.’ [Citation omitted.]” Van Dusen, 197 Kan. at 722-23
It is undisputed here that Shopteese’s competency was initially dubious. He was evaluated and treated for a period of 9 months at Lamed State Security Hospital and was eventually pronounced competent to stand trial. While the initial finding of incompetence was based primarily on Shopteese’s inability to “appreciate the seriousness of the potential consequences” of the charges, the majority of the reports on his condition stated that he appeared to understand the nature of the legal proceedings against him and was able to communicate with his lawyer.
“Although a competency determination is not dispositive of whether a plea was knowingly and voluntarily made, ... it does provide evidence that tends to contradict the defendant’s contention that he was somehow mentally or emotionally disturbed to the point that he could not understand the plea proceedings.” State v. Morris, 254 Kan. 993, 1005, 869 P.2d 739 (1994). Still, the voluntariness of a plea can be determined only by considering all of the relevant circumstances surrounding it. Brady, 397 U.S. at 749; Muriithi, 273 Kan. at 962-63.
When all of the circumstances surrounding this proceeding are considered, they tend to support the district judge’s ruling on Shopteese’s motion. The transcript of Shopteese’s plea hearing contains 45 pages. On 30 of those 45 pages, the district judge direedy addressed Shopteese, making painstaking inquiry, to which Shopteese made appropriate responses.
At the hearing on the motion to withdraw, the same district judge who took Shopteese’s pleas evaluated this plea hearing transcript. He noted that Shopteese was originally charged with six counts; that he had been informed at the preliminary hearing and at arraignment of the potential sentences for each of tiróse charges; that the plea agreement was reached after negotiation between the parties; that four of the charges had been dismissed in exchange for defendant’s no contest pleas to the remaining two; and that “[t]he Court then spent a significant period of time on the issue of the plea. The Court as it does in each case, went through a providential inquiry to determine whether [defendant] understood what was, what the plea was, what the [ejffect of the plea was.” This was a fair description of what occurred at the plea hearing. The district judge conducted a thorough discussion with Shopteese to discern his intent and his ability to pursue that intent without confusion or coercion. Also appropriately, the judge evaluated at the motion hearing whether Shopteese had been represented by competent counsel; whether he had been misled, coerced, mistreated, or unfairly taken advantage of; and whether the pleas were freely, fairly, and understanding^ made. Those were the correct inquiries to determine manifest injustice. On the last issue in particular, the judge stated:
“The Court made a significant inquiry in this case regarding first of all [defendant’s] competence to enter the plea. Whether he was on any medication, whether he had any trouble hearing me. I went through a series of questions to which he made responses. At no time during die sentencing hearing did Mr. Shopteese look confused. At times [his counsel] would interject statements in the transcript, but the answers were being made by Mr. Shopteese in direct response to my questions.”
In addition, at the time of the pleas, the judge asked Shopteese if he was on any medication. Shopteese indicated that, while he had been on medication, he had run out. However, he denied having any pain or any problems from not taking the medication. Although he said he was seeing “a 3-D version of everything/’ he attributed this to the fact he was cross-eyed and his vision blurred. He said these issues were not affecting his ability to visit with his attorney or hear the court. He also affirmed that he was not “taking any land of substances drug or otherwise that would defeat [his] ability to think clearly, focus [his] attention on the issues before [him], to communicate with others . . . and to malee important personal decisions on [his] own.” When Shopteese responded “No, sir,” the judge asked if he wanted that question broken down, and Shopteese let the judge know that was not necessary. Later in the plea hearing, the judge asked Shopteese again about his vision, specifically, whether anything he was seeing was scaring him. Shopteese again was reassuring; and he affirmed that his vision issues were part of his crossed eyes, that he had learned to block them out, and that they were not affecting his ability to listen or to make a decision.
We agree with the district judge that consideration of all of the circumstances surrounding Shopteese’s pleas leads to the conclusion that he had
“a sufficient present ability to consult with his attorney which he showed with a reasonable degree of rational understanding. He appeared to understand the questions I was asking. He was able to make a proper response .... He understood what he was there for. He understood what the charges were. . . . [H]e met the standards for mental competence.”
Moreover, we note this conclusion is further supported by Shopteese’s later efforts to withdraw his pleas. His communication to the court reflected an understanding of his pleas and their consequences.
We therefore hold there was no manifest injustice in this case; the district court did not abuse its discretion in denying Shopteese’s motion to withdraw his pleas.
Affirmed.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action by Warren E. Redding and the Wyandotte County Mobile Homes Association to restrain John O. Slaughter, as License Inspector of Kansas City, Kansas, from enforcing Sections 37-48 and 37-49 (operating trailer court without a license) of the city’s ordinances.
In the same proceedings the city filed an application to restrain the plaintiffs from operating their mobile home courts without first obtaining a license, and after a hearing before the trial court judgment was entered for die defendant permanently enjoining the plaintiffs from so doing. The plaintiffs appeal from this judgment.
A decision in the case follows a correct interpretation and construction of ordinances 37-1(4) and 37-1(6). The plaintiffs con tend that the ordinances are applicable to trailer courts as distinguished from mobile home courts and the defendants contend that the reference to trailer courts in said ordinances includes mobile home courts as operated by the plaintiffs. The ordinances are as follows:
“Sec. 37-1(4). Trailer coach. Any vehicle or structure designed and constructed in such manner as will permit occupancy thereof as sleeping quarters for one or more persons, or the conduct of any business, profession, occupation or trade (or use as a selling or advertising device), and so designed that it is or may be mounted on wheels and used as a conveyance on highways or city streets, propelled or drawn by its own or other motive power.
“Sec. 37-1(6). Trailer court. Any park, trailer park, trailer court, court, camp, site, lot parcel or tract of land designed, maintained or intended for the purpose of supplying a location or accommodations for any trailer coach or trailer coaches and upon which any trailer coach or trailer coaches are parked, including all buildings used or intended for use as part of the equipment thereof, whether a charge is made for the use of the trailer court and its facilities or not. ‘Trailer court’ shall not include automobile or trailer sales lots on which unoccupied trailers are parked for purposes of inspection and sale.
“Sec. 37-48. Required. It shall be unlawful for any person to establish, operate or maintain, or permit to be established, operated or maintained upon any property owned or controlled by him, a trailer court within the limits of the city, without having a current and valid license so to do issued by the city.”
In 1967, the plaintiff Redding was acquitted in the District Court of Wyandotte County in a trial before a jury in which the central issue presented to die jury was whether said ordinances applied to Redding’s mobile home court operation.
In 1969, complaints were filed against the plaintiff Redding and other members of the association under the same ordinances based on the theory that there was a continuing violation. On May 10, 1969, this action was filed.
In the trial before die court the only testimony introduced was that of Warren E. Redding, plaintiff, and that of Ray E. Fransham, President of the plaintiff mobile home association.
A summary of the evidence discloses these distinctions between a trailer court and a mobile home court. A trailer is a vehicle capable of being moved without a special permit while a mobile home requires a special permit. The tenants in a trailer court are more or less temporary while the tenants in a mobile home court are more or less permanent. The charge for occupying a trailer court is approximately three dollars to five dollars a day while the charge for occupying a mobile home court is approximately one dollar per day. Guests of a trailer court are not taxed as residents while occupants of a mobile home court are taxed as residents. Trailer courts are required to collect state sales taxes while mobile home courts are not required to collect state sales taxes.
In addition to the foregoing, plaintiffs point out that the National Electrical Code has been substantially adopted by the city as its electrical code and it distinguishes between mobile homes and travel trailers. The code requires that for a mobile home the electrical nameplate show that the unit is wired for a 115/220 volt 40 or 50 ampere connection. The nameplate for a travel trailer is required to show wiring for a 110/125 volt AC service. The power supply for a mobile home is discussed as ranging from a minimum of 40 amperes to in excess of 100 amperes. The power supply for a travel trailer is discussed as ranging from beneath 15 to 30 amperes. The plaintiffs also state that Sec. 37-22 of the ordinances calls for electrial service for trailer coach spaces of 110/115 volts at not less than 30 amperes capacity and that this is in accord with the maximum anticipated under the National Electrical Code for travel trailers, but is far substandard to that required by the National Electrical Code for mobile home use.
Plaintiffs further argue that the city, in discussion of a proposed ordinance for zoning, intends to distinguish between mobile homes and travel trailers. We recognize that said ordinances were enacted in 1953 at a time when mobile homes and mobile home courts were in their infancy and had not reached the degree of popularity and extensive use that exists today. We feel that the evidence clearly establishes a distinction between trailer coaches and mobile homes. The city contends that even though these distinctions may exist the ordinances involved are broad enough to include the mobile home courts operated by the plaintiffs.
Sec. 37-1(4) defines a “trailer coach” as being a “vehicle or structure . . . used as a conveyance on highways or city streets. . . .” While all the other provisions of this ordinance could apply to both trailer coaches and mobile homes, as herein distinguished, we have difficulty of applying the excerpted portion of the ordinance to mobile homes. The word “conveyance” imports an act of transporting persons or property. A mobile home does not transport persons or property; to the contrary, a mobile home may be transported.
The ordinance is penal in nature and must be strictly construed the same as a criminal statute. It is a fundamental concept of individual human rights that a criminal statute should not be extended by the courts to include acts of conduct not clearly within the provisions of the statute. (State v. Waite, 156 Kan. 143, 131 P. 2d 708.)
We conclude that Sec. 37-1(4), defining a trailer coach, does not include a mobile home.
Sec. 37-1(6), defining a trailer court, provides that it is a place where a trailer coach may be located. Having concluded that a trailer coach does not include mobile homes, it also follows that a trailer court is not a place intended for use by mobile homes.
We hold that the provisions of 37-1(4) and 37-1(6) of the ordinances of Kansas City, Kansas, are not applicable to mobile home courts and that the injunction granted by the court should be set aside. We also hold that plaintiffs are entitled to an injunction against the defendants, enjoining them from prosecuting the plaintiffs for violations of the provisions of said ordinances. In view of our conclusions, appellants’ other specifications of error need not be considered.
The judgment is reversed and remanded with directions.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Beier, J.:
In this direct appeal from his conviction of first-degree murder and aggravated robbeiy on retrial, defendant Joseph Dodds Morton alleges that (1) prosecutorial misconduct in the first trial barred a new trial on a first-degree murder charge; (2) the district court’s original ruling on a motion in limine excluding certain expert testimony should have controlled the issue on retrial; and (3) the State failed to prove premeditation beyond a reasonable doubt.
Defendant’s initial convictions stemmed from a March 2001 robbery of a grocery store at which he had been employed; during the robbery, Morton shot and killed the store manager. At Morton’s first trial, the jury unanimously found him guilty of first-degree murder and aggravated robbery, although jurors were unable to agree on whether the underlying first-degree theory was premeditation or felony murder. On direct appeal, we determined that the prosecutor had committed reversible misconduct by suggesting that premeditation can take place in an instant; she had held up her hand in the shape of a gun and pretended to pull its trigger, saying: “One squeeze of the trigger is all it takes.” State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004). At the time, we declined to find the prosecutor s conduct deliberate. But we agreed that, given some jurors’ reluctance to convict on the basis of premeditation, the misconduct was not harmless beyond a reasonable doubt. 277 Kan. at 585-86.
On remand, before retrial, Morton filed a motion to dismiss the first-degree murder charge. He argued that intentional prosecutorial misconduct in his first trial barred a new proceeding on that charge under the Double Jeopardy Clause. See U.S. Const. Amend. 5; U.S. Const. Amend. 14; Kan. Const. Bill of Rights, § 10. The district court rejected the defendant’s motion, noting that our opinion clearly contemplated a new trial on both the first-degree murder and aggravated robbery counts.
Morton also sought on remand to enforce an in limine order entered before his first trial. That order had prevented the State from presenting the testimony of Dr. William Newhouse, a ballistics expert who intended to testify that the fatal shot was fired from 15 inches to 18 inches away. At a preliminary hearing before the first trial, the district court granted a defense motion in limine because the State had produced Newhouse’s report just a few days before trial was scheduled to begin. At that point, Morton was unable to prepare adequately for trial regarding the expert’s findings; he was incapable of retaining his own competing expert; and he would have been prejudiced had tire testimony been permitted. During the first trial, the coroner, Dr. Erik Mitchell, testified that the fatal shot was fired from “intermediate range,” meaning from between several inches and 3 feet away. He also testified that the path of the bullet through the victim’s body was roughly horizontal to tire floor.
On remand, defendant argued that the law of the case restricted the district court from reconsidering its previous ruling on the limine motion. After a hearing, the district court reversed its earlier position and permitted Newhouse to testify in the new trial. The fear of prejudice from late disclosure of Newhouse’s report had dissipated during the time it took Morton to appeal and obtain reversal and remand. The district court also concluded that the law of the case doctrine applied only to preclude relitigation of issues decided on appeal. The suppression of the Newhouse testimony at the first trial was not raised on Morton’s appeal.
At the second trial, the jury again unanimously found defendant guilty of first-degree murder and aggravated robbery. Again, jurors could not agree on the underlying theory on tire murder charge. Defendant received the same sentence as he had received after his first trial.
Prosecutorial Misconduct as a Bar to Retrial
The Double Jeopardy Clause of the United States Constitution protects 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 tire same offense. See, e.g., State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 [1969], overruled on other grounds Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 [1989]). We have previously recognized that the language of the Fifth Amendment to the United States Constitution guarantees no greater double jeopardy protection to an accused than does § 10 of the Kansas Constitution Bill of Rights; the provisions are coextensive. See Schoonover, 281 Kan. at 474; State v. Thompkins, 271 Kan. 324, 336-37, 21 P.3d 997 (2001); State v. Williams, 268 Kan. 1, 6, 988 P.2d 722 (1999).
The Kansas Legislature attempted to codify the constitutional guarantees against double jeopardy in K.S.A. 21-3107 and K.S.A. 21-3108. Thompkins, 271 Kan. at 336-37; Williams, 268 Kan. at 6-7. K.S.A. 21-3108 provides, in pertinent part, that a second prosecution is not barred if a subsequent proceeding resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the defendant was adjudged not guilty.
Whether a particular criminal defendant’s protection against double jeopardy was violated is a question of law over which we have unlimited review. See Thompkins, 271 Kan. at 337.
Generally, in Kansas, “[a]n accused waives his right to plead double jeopardy when after conviction he applies for and is granted a new trial.” State v. Bloomer, 197 Kan. 668, 675, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967). Further, “when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. [Citations omitted.]” State v. Osburn, 216 Kan. 638, 641-42, 533 P.2d 1229 (1975).
There is, however, a recognized exception to this general rule for certain egregious prosecutorial misconduct, under the authority of Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982).
In that case, Bruce Kennedy had been charged with theft. A series of sustained objections prevented the prosecutor from eliciting certain testimony. The prosecutor nevertheless returned to the well one more time. He asked the witness if the reason he had never done business with the defendant was the defendant’s status as a crook. Defendant’s resulting motion for a mistrial was granted. After a second trial led to his conviction, Kennedy persuaded the Oregon Court of Appeals that double jeopardy should have barred the retrial because the prosecutor’s conduct in the first trial was “overreaching.” 456 U.S. at 668.
The United States Supreme Court reversed the Oregon Court of Appeals and remanded for further proceedings, but it noted that double jeopardy would bar retrial if the prosecutor had intentionally provoked the defendant’s request for mistrial. 456 U.S. at 676-79.
We have discussed Kennedy on several previous occasions. See State v. Williams, 268 Kan. 1, 7, 988 P.2d 722 (1999); State v. Muck, 262 Kan. 459, 467, 939 P.2d 896 (1997); State v. McClanahan, 259 Kan. 86, 102, 910 P.2d 193 (1996); State v. Cady, 254 Kan. 393, 399-400, 867 P.2d 270 (1994).
In Cady, the defendant argued to this court that Kennedy should be extended to cover situations when a defendant obtains reversal of a conviction because of prosecutorial misconduct. 254 Kan. at 399. We declined to do so and remarked on the limits of the Kennedy rule in this way:
“Kennedy applies to situations where the defendant’s request for mistrial was inevitable because the prosecution subverted the defendant’s right to a fair trial. . . .
“. . . [A] defendant should be allowed to freely choose whether he or she should request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into the choice, the choice is not freely made, and the prosecution has subverted the defendant’s rights protected by the Double Jeopardy Clause of the Constitution.” Cady, 254 Kan. at 399-400.
Our subsequent discussions of Kennedy have consistently enforced these limits. Without prosecutorial intent to provoke the defendant into moving for a mistrial, the Kennedy rule does not apply. See Williams, 268 Kan. at 7 (“Intentional prosecutorial conduct motivated by a desire to obtain a conviction but not by a desire to provoke the defendant into moving for a mistrial maybe grounds for a mistrial but it does not preclude retrial of the case.”); Muck, 262 Kan. at 470 (quoting Kennedy, 456 U.S. at 675-76) (“ ‘Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, .... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’ ”); McClanahan, 259 Kan. at 102 (“In evaluating [misconduct], the question remains whether the prosecutor’s intentional attempt to introduce inadmissible evidence substantially prejudiced the defendant’s right to a fair trial and required the defendant to ask for a mistrial. . . . [I]f the defendant was forced into requesting a mistrial by the prosecutor’s intentional misconduct, retrial would be barred by K.S.A. 21-3108[1][c] and by the Double Jeopardy Clause of the Kansas and United States Constitutions”). We have yet to apply Kennedy to bar retrial on double jeopardy grounds, although we have remanded for a supplemental finding of fact “on the issue of whether or not the actions of the prosecutor prompting the mistrial motion were done with the intention of goading [defendant] into requesting a mistrial.” Muck, 262 Kan. at 470 (citing State v. Rademacher, 433 N.W.2d 754, 757 [Iowa 1988], for a similar remand disposition).
We note that other jurisdictions also have interpreted Kennedy narrowly. See, e.g., United States v. Gilmore, 454 F.3d 725, 730 (7th Cir. 2006) (prosecutor s inadvertent mistake in opening, although it necessitated mistrial, did not bar retrial under Kennedy exception where there was no intent to precipitate mistrial, reprosecute defendant); United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003) (prosecution did not purposely elicit prejudicial hearsay evidence to goad defendant into seeking mistrial; thus retrial did not violate double jeopardy; evidence against defendant convincing; defendant had moved for mistrial three times before introduction of hearsay; prosecution did not stand to gain from mistrial, because witnesses from Haiti beyond district court’s subpoena power); United States v. Santos-Garcia, 313 F.3d 1073, 1080 (8th Cir. 2002) (when defendant’s motion gives rise to mistrial, reprosecution prevented only if prosecution’s conduct giving rise to successful motion intended to provoke defendant); United States v. Oseni, 996 F.2d 186, 187-88 (7th Cir. 1993) (government cannot dismiss, reprosecute if case going badly; it cannot engage in trial misconduct intended to precipitate motion for mistrial by defendant; yet “fact that the government blunders at trial and the blunder precipitates a successful motion for a mistrial does not bar a retrial”); Rogers v. Goord, 371 F. Supp. 2d 348, 354 (W.D. N.Y. 2005) (mere bad faith conduct, harassment by prosecution resulting in mistrial insufficient to preclude retrial on double jeopardy ground; rather, court must determine whether prosecutor actually intended to provoke mistrial); State v. Thomas, 275 Ga. 167, 167-68, 562 S.E.2d 501 (2002) (where prosecutor stood to gain by aborting trial because expert’s testimony favorable to defendant, record established prosecutor intended to goad defendant into moving for mistrial; double jeopardy bars retrial); State v. Keenan, 81 Ohio St. 3d 133, 141, 689 N.E.2d 929 (1998) (Kennedy will apply to bar retrial if prosecutorial misconduct was calculated to goad defendant into seeking mistrial, but Kennedy not extended to bar retrial where prosecutorial misconduct basis for appellate reversal).
Defendant urges us to apply Kennedy here because in his view, the prosecutor committed deliberate misconduct during the first trial in order to get a new trial in which she could introduce New-house’s previously excluded testimony. We see no support in the record for this position. There is no indication that the.prosecutor intended to provoke defendant into moving for mistrial. Indeed, there was little motivation for her to do so. The testimony of the coroner already gave rise to a reasonable inference of a purposeful killing, rather than the random firing that defendant asserted. We therefore decline defendant’s invitation to liberalize application of the Kennedy rule to fit the facts of this case. Kennedy requires something more than misconduct, even intentional and reversible misconduct, in order to bar retrial. It requires that the prosecutor intended to provoke a mistrial, to goad a defendant into sacrificing his or her choice to live with the outcome from the first jury. This outcome is consistent with our opinion on Morton’s first appeal. We concluded then that the evidence of Morton’s premeditation was not “weak,” but the juiy’s apparent hesitation on that issue made the prosecutor’s misstatement of the law significant enough to require reversal. Morton, 277 Kan. at 585. Yet we observed that the statement did not appear to be deliberate or the product of ill will. Furthermore, it was tempered by the prosecutor’s correct definition of controlling law in her multiple references to the jury instructions. Morton, 277 Kan. at 585. Under these circumstances, Kennedy did not bar retrial on double jeopardy grounds.
Reconsideration of Motion in Limine
In his brief on this appeal, the defendant cites the law of the case, the mandate rule, the protection against double jeopardy, and a pretrial motion to enforce the previous limine order in support of his position on this issue. However, the district court’s decision was based solely on the doctrine of the law of the case. Generally issues not raised below may not be raised on appeal, State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006), but this court may reach a legal theory first asserted on appeal if (1) it involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the judgment of the trial court was right for the wrong reason. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). We choose to address the merits of each of defendant’s arguments on the chance that refusal to do so would endanger a fundamental right.
The law of the case doctrine has long been applied in Kansas and is generally described in the following manner:
“ ‘The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses tire practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.’ ” State v. Collier, 263 Kan. 629, 631, 952 P.2d 1326 (1998) (quoting 5 Am. Jur. 2d, Appellate Review § 605).
The doctrine was first stated by the United States Supreme Court in Himely v. Rose, 9 U.S. (5 Cranch) 313, 3 L. Ed. 111 (1809) (court will not revisit issues finally decided by it in previous appeal), and Skillern's Ex’rs v. May’s Ex’rs, 10 U.S. (6 Cranch) 267, 3 L. Ed. 220 (1810) (once issues finally decided, lower court has no choice but to follow mandate). Kansas adopted the doctrine in Headley v. Challiss, 15 Kan. 602, 605-06 (1875); and the cases stating the rule since are “legion in number.” See Collier, 263 Kan. at 632. Under the rule, it is clear that, when a second trial or appeal is pursued in a case, the first decision is the settled law of the case on all questions addressed in a first appeal. Reconsideration will not be given to such questions. Waddell v. Woods, 160 Kan. 481, Syl. ¶ 3, 163 P.2d 348 (1945).
The problem with applying the doctrine to prevent the district court’s reconsideration of the defense motion in hmine regarding Newhouse’s testimony is that the issue of that testimony never arose on Morton’s first appeal. In such a situation, the district court had the discretion, and perhaps even the duty, to consider the issue anew on remand.
Likewise, the mandate rule, codified in K.S.A. 60-2106(c) and stating that the Supreme Court’s mandate and opinion “shah be controlhng in the conduct of any further proceedings necessary in the district court,” is inapphcable. See Collier, 263 Kan. at 635 (discussing K.S.A. 60-2106 and the “mandate rule”); Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, Syl. ¶ 1, 1 Pac. 69 (1883). The admissibility of Newhouse’s testimony was not addressed in Morton’s first appeal or in the mandate to which it gave rise. Thus there was nothing to “control” the conduct of the district court on this issue.
Morton can get no farther with his argument that the State acquiesced in the district court’s original ruling by failing to cross-appeal or his argument that the State should be precluded from benefitting from admission of Newhouse’s testimony at a retrial necessitated by prosecutorial misconduct. The State had no duty to cross-appeal the original motion in limine ruling, and we have already fully discussed and rejected defendant’s assertion of double jeopardy protection.
Having established that neither law of the case, the mandate rule, nor double jeopardy required the district judge to exclude Newhouse’s testimony on retrial, we briefly address the merits of the renewed motion in hmine filed by the defense. Our first inquiry is relevance. “ ‘Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.’ ” State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005) (quoting State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 [2004]). Abuse of discretion is the appropriate standard of review for a district court’s ruling on such a motion. The party challenging the ruling bears the burden of showing an abuse of discretion. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004); State v. Abu Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002).
There is no doubt that Newhouse’s testimony concerning the distance from the muzzle of the gun to the victim was relevant. The shorter the distance, tire less likely members of the jury would accept defendant’s version of what happened, i.e., that he fired a shot merely to scare tire victim, without looking where the gun was pointing. Moreover, the testimony was admissible under K.S.A. 60-456(b), which permits expert testimony “in the form of opinions or inferences . . . as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” Finally, the original reason the district court had excluded tire testimony — to avoid the prejudice of unfair surprise — no longer applied. Under these circumstances, we conclude that there was no abuse of discretion in the district court’s decision to permit the Newhouse testimony on retrial.
Sufficiency of Premeditation Evidence
Our standard of review on sufficiency claims is often recited:
“ “When die sufficiency of evidence is challenged in a criminal case, die standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, die appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.’ ” State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005) (quoting State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 [2003]).
Morton raised this argument in his first appeal, and we decided it against him, determining there was “ample evidence to support premeditation.” See Morton, 277 Kan. at 583.
“ ‘Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.’ ” State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]). Several factors may give rise to an inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v. Scott, 271 Kan. 103, 109, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Moreover, premeditation and deliberation may be inferred from the established circumstances of a case, provided die inference is a reasonable one. State v. Scott, 271 Kan. at 108; see also State v. Jones 279 Kan. 395, 404, 109 P.3d 1158 (2005).
There was as much or more evidence of premeditation on Morton’s retrial. It established that Morton decided ahead of time to rob the store. He stole a gun from his mother; he prepared an excuse for his presence at the store in the event someone asked why he was there; he parked across the street and observed the traffic in the parking lot, timing his entry so that he would be alone with the manager. After he entered the store, he left and went back to his car, where he sat for several minutes thinking through his plan and again deciding to proceed. He entered the store a second time, followed the manager to the office, took the money, and shot the store manager in the face. The jury heard that the shot was fired from 15 inches to 18 inches away from the victim. Jurors also knew Morton heard the victim fall but left the store. They knew he got in his car but returned a third time to steal or destroy security cameras and videotape. Later that evening, Morton bought drugs and played pool. Still later, he offered to pay a friend to destroy the security videotapes. He then fled the state. Morton, 277 Kan. at 582-83. We still have no hesitation in holding there was ample evidence to support premeditation.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from an order of the district court of Cowley County, dismissing a tract of land from a master condemnation proceeding, and the subsequent overruling of the appellant Laurence Scudder’s motion to intervene.
On March 13, 1970, the State Highway Commission negotiated with the owner of real estate in Cowley County, and purchased her fee simple title to the tract in question. Previously, and on September 26, 1961, the owner of the land executed a farm lease in favor of the appellant to the land in question, together with other agriculture lands, for a term of fifteen years, commencing September 1, 1961. In consideration therefor, the appellant agreed to make certain improvements in the future, and to pay the lessor one-third of all crops, as and for all rentals. The lease was duly recorded in Cowley County on September 27, 1961.
On March 26, 1970, the Commission commenced a condemnation proceeding pursuant to K. S. A. 26-501, et seq., for the purpose of acquiring certain interests in land in Cowley County to facilitate the construction of a limited access four lane highway. The petition filed in the condemnation proceeding included the tract of land purchased from the owner on March 13, 1970, which was designated as tract No. 28, and alleged the Commission sought a permanent easement containing 12.82 acres, and a temporary easement containing 15.85 acres, in the tract. The petition reflected the appellant held a leasehold interest in the property. Both the owner and the appellant were named as defendants in the proceeding. Subsequently, the appellant received notice of an appraisers’ hearing to be held in the district courtroom in Winfield on May 5,1970, at 10:00 a. m.
On April 28, 1970, the Commission, upon discovery of the inclusion of tract No. 28 in the master condemnation, filed a motion to dismiss and delete that tract upon the ground the interest required for highway purposes had been previously acquired by “other means.” On the same day, April 28, the district court sustained the Commission’s motion, and ordered tract No. 28 deleted from the condemnation proceeding, and that the named defendants, the owner and the appellant, be dismissed from the proceeding as owners of the tract.
Subsequently, the appraisers’ report determining damages to property taken and to the remainder, was approved by the district court. The report did not include the tract in question. On May 18, 1970, the Commission paid into the court the total award, appraisers’ fees, and costs, as approved by the court, thereby vesting title in the Commission to the interests in the tracts condemned. (K. S. A. 26-507.)
Thereafter, and on May 21, 1970, the appellant filed a motion to intervene in the master condemnation, to assert his defense and make his claim for damages as set forth in his proposed answer attached thereto. The motion was argued and overruled on June 10, 1970, and the appellant perfected this appeal.
At the outset, it should be noted the Commission has not acquired tire appellant’s leasehold interest to the land in question, either by purchase or by eminent domain. However, we are advised the Commission has constructed the highway over, and has used and possessed the tract of land in question.
As indicated, the appellant was served with notice of the master condemnation by mail on or about April 25, 1970, all pursuant to K. S. A. 26-504 and 26-506. No irregularities are asserted in that respect. The appellant contends he had a right to be heard on the motion to dismiss and delete him as a party defendant, and the ex parte dismissal was improper. He further contends that, as an “owner” of the tract by virtue of his recorded farm lease, he had a right to intervene in the action once he had been originally included, and the failure of the district court to allow intervention was error. The appellant’s contentions are not well taken.
This court has held on numerous occasions that proceedings in eminent domain instituted pursuant to K. S. A. 26-501, et seq., as amended, are administrative and inquisitional in character. Prior to the taking of an appeal from the award of the appraisers pursuant to K. S. A. 1971 Supp. 26-508, the code of civil procedure has no application, since the special statutory procedures are fully prescribed. As such, the eminent domain proceeding is not a proper forum for. litigating the right to exercise the power of eminent domain, of to determine the extent of that right. (Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189; State v. Boicourt Hunting Ass'n, 177 Kan. 637, 282 P. 2d 395; Kansas Homes Development Co. v. Kansas Turnpike Authority, 181 Kan. 925, 317 P. 2d 794; Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338; Smith v. Kansas Turnpike Authority, 183 Kan. 158, 325 P. 2d 63; Andres v. State Highway Commission, 185 Kan. 554, 345 P. 2d 1004; State Highway Commission v. Hembrow, 190 Kan. 742, 378 P. 2d 62, and Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373.) That being the case, the appellant had no right to be heard on the motion deleting tract No. 28 from the master condemnation, or dismissing him as a party defendant from the proceeding. (K. S. A. 26-507.)
The appellant argues that if the code of civil procedure does not apply, the Commission had no right to file a motion to dismiss in the master condemnation. The point is not well taken. The motion to dismiss and the subsequent order sustaining the motion, are procedural methods by which the condemner can upon its initiative abandon all, or certain tracts, in the master condemnation. Accurate property records require such mechanics, and to say that a mere motion to dismiss places the procedure within the scope of the- code of civil procedure oversimplifies the issue. All that need be said is to point out the condemner had the authority pursuant to K. S. A. 26-507 to abandon the condemnation as to a particular tract or tracts, prior to its tender to the clerk of the district court of the amount of the appraisers’ award, fees, and court costs, or until 30 days has expired after the filing of the appraisers’ report. Thereupon, the condemnation is deemed abandoned. (State v. Boicourt Hunting Ass’n, 183 Kan. 187, 326 P. 2d 277; Howard v. State Highway Commission, 181 Kan. 226, 311 P. 2d 313.)
We conclude the Commission had authority to request the dismissal of the appellant’s tract from the proceeding, and, as indicated, he had no right to be heard on that motion, nor did he thereafter, under the facts and circumstances, have standing to intervene. The tract of land in question had been dismissed from the proceeding, and the appraisers had made no award, determining damages in favor of the appellant, and to his remaining leasehold interest. However, as hereafter noted, he is not now in a position to contend he has no forum to litigate his right to just compensation. (Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186; Urban Renewal Agency v. Decker, supra.)
The decision in this case is not intended in any way to give comfort to the Commission. It had no lawful right to the possession and use of the appellant’s interest in the land. (Weast v. Budd, 186 Kan. 249, 253, 349 P. 2d 912.) The issue considered on appeal was one of procedural consistency, and in no way alters the appellant’s right to commence an action under implied contract to recover the amount of damages sustained by him for the interest taken and used by the Commission for highway construction. The action on implied contract is by way of inverse condemnation and the same rules of law apply as to the determination of a right to damages, and the measure of damages, as in condemnation proceedings. (State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132; Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287; Dugger v. State Highway Commission, supra; Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934.)
Finally, it should be pointed out that leasehold interests are compensable when taken for a public purpose. (State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850 [set aside on different grounds in State Highway Commission v. Safeway Stores, 170 Kan. 545, 228 P. 2d 208]; Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943; Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539; Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 468 P. 2d 95.) See, also, Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N. W. 2d 865.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a suit for money judgment for material and services rendered. Primarily the account was for recovery for certain steel cylinders which defendant allegedly failed to return to plaintiff. Trial to the court resulted in a judgment for plaintiff from which defendant appeals.
Although there was some dispute in the evidence the background of the action may be summarized as follows:
Oxygen Service Company is now a division of plaintiff-appellee Jay-Ox, Inc. Prior to its merger with Jay-Ox it commenced in 1960 selling to defendant-appellant Square Deal Junk Company, Inc. oxygen and acetylene gas contained in steel cylinders. When the cylinders were empty they were to be returned to Oxygen Service for refilling and reuse. The tanks remained either the property of Oxygen Service or one of its suppliers. Business was conducted on an open running account. Appellant was charged for gas, cylinders, and other supplies and repairs and was given credit for cylinders returned. Upon occasion appellant paid for damaged or lost cylinders. Invoices reflecting the number of cylinders outstanding were rendered at the time of each delivery and complete monthly statements were also rendered dining the period of the account.
The basis for appellee’s suit was that appellant had failed to return all the cylinders delivered to it. In support appellee offered in evidence, and the trial court received, certain of its business records consisting of ledger sheets and copies of invoices. The trial court rendered judgment for appellee for $3,838.81 which, under the measure of damages applied, essentially allowed recovery for approximately seventy cylinders. Further facts will be stated in discussing the issues raised upon appeal.
Appellant contends the action was not timely commenced under the applicable statute of limitations. For present purposes the action may be said to have been commenced March 23, 1967, when Oxygen Service filed its petition against appellant. The first time appellee voiced concern to appellant because of a shortage of cylinders was in December, 1964. In February, 1965, invoices were delivered to appellant wherein appellee sought to collect demurrage for the missing cylinders. Appellant contends the action is one governed by that which is now K. S. A. 1971 Supp. 60-513 which in part provides:
“Actions limited to two years. The following actions shall be brought within two (2) years: . . .
“(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.”
Broadly speaking, the arrangement by which appellant secured possession of the cylinders might be termed a bailment; however, it was one which arose by implied contract. Merchandise and services were requested and received. The invoices used by appellee and which accompanied each delivery contained this proviso:
“By accepting these cylinders you have agreed that the cylinders shown on this invoice remain the property of OXYGEN SERVICE COMPANY; these cylinders are NOT SOLD and they are not transferable and are for your use only; each cylinder will be returned promptly when empty; . . . that if
cylinders are lost or damaged in any way, or not returned within 90 days from date of shipment, they will be paid for immediately upon request, at OXYGEN SERVICE COMPANY’S then current retail new cylinder values.”
In Gets v. Mathes, 128 Kan. 753, 280 Pac. 759, this court held:
“Where the scope of a bailee’s obligation is defined in a written contract, his liability to the bailor is specifically governed thereby, and not by the general law of bailments.” (Syl. ¶[ 1.)
Under some circumstances a bailor may have an election of remedies to pursue for conversion of the property; he may have an action in tort based upon the wrongful act of conversion, or he may proceed in contract for failure to redeliver the property (8 Am. Jur. 2d, Bailments, § 289).
Appellee’s theory from the beginning in asserting this claim has been that its action is one in contract. Under the particular facts disclosed we think it appropriate that the action be so treated.
As we construe the arrangements revealed by the conduct of the parties over several years, it amounted to a bailment for an indefinite period; hence the cause of action did not accrue until there was a refusal of a demand for the cylinders (8 Am. Jur. 2d, Bailments, §291).
Whether appellant’s refusal to account for the cylinders came as early as December, 1964, or February, 1965, as asserted by appellant, is immaterial (there is evidence the refusal actually came much later as appellant continued accepting cylinders until October, 1965, hedging meanwhile as to an accounting). In any event the action was commenced well within the three year period of time authorized for actions upon implied contracts (K. S. A. 60-512 [1]).
Appellant asserts the court erred in permitting appellee to amend its petition during the trial of the action. The complaint arises from the fact the petition was initially filed in the name of Oxygen Service as though it were a completely separate legal entity. The evidence revealed it and another company merged into Jay-Ox, Inc. during some period of its business dealings with appellant but it continued to operate under the same trade name as a division of Jay-Ox. The trial court permitted an amendment to reflect these facts under what is now K. S. A. 1971 Supp. 60-215 (a), naming appellee as successor in interest to Oxygen Service.
Appellant contends there was no action brought by a proper party plaintiff and it makes some vague argument it did not have the notice necessary to defend properly in that it had not been able through discovery procedures to inquire as to all the relevant facts. We fail to perceive how appellant has been misled or how it has been prejudiced by the amendment. We note that many of the printed invoices, delivered long before the commencement of litigation, expressly revealed that Oxygen Service was a division of Jay-Ox. We see no abuse of judicial discretion in the amendment (for general statement of applicable rules see Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, Syl. ¶ 1, 484 P. 2d 38).
The principal error alleged by appellant is the admission into evidence over its objection of certain of appellee’s business records. These two challenged exhibits consisted of pages number 14 through 38 of appellee’s ledger sheets, comprising original records reflecting appellee’s business transactions with appellant during the period from January 2, 1962, to September 13, 1968.
Generally these pages showed debits and credits for merchandise delivered per invoices, credits reflecting payments, and a running cylinder inventory. This inventory showed cylinders delivered and the number returned for each transaction and the total number not yet returned. The first thirteen sheets of this ledger were missing, the testimony being that a search had been made but they had become either lost or destroyed. The missing pages apparently covered business transactions during the period from October, 1960, to January, 1962. The crunch, so far as appellant is concerned, lies in the fact that the first item on the first page of the challenged exhibits, page No. 14 (evincing a transaction dated January 1, 1962, wherein two cylinders of gas were delivered and two empty cylinders were returned), reflects that a total of 73 cylinders (65 oxygen and 8 acetylene) were then not returned.
Appellant argues that the exhibits constituted an incomplete record beginning with a cumulative inventory unsubstantiated by admissible evidence, that they were not made in the regular course of business, were untrustworthy and should not have been received. We cannot agree.
When the exhibits were offered as business entries pursuant to K. S. A. 60-460 (to), the “shop book” exception to the hearsay rule, the trial court was required to find prior to their admission that they were made in the regular course of business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. There was an explanation as to why the first thirteen pages of the ledger were not produced and the trial court in its admission of the challenged records made the requisite finding. We see no reason to disturb that foundation finding respecting the admissibility of the challenged exhibits.
Appellant contends that a lump sum figure may not be used as a starting point of the running inventory record of the missing cylinders shown in the two exhibits. It argues that a book of account must be admitted in its entirety, citing some authority in other jurisdictions to that effect. It seems clear that here the transactions between the parties respecting the cylinders had developed into the nature of an account stated. Over a period of several years both invoices and monthly statements (the latter consisting of copies of the ledger sheets) showing the number of cylinders not returned had been rendered to appellant and had never been challenged or questioned in any way. Whatever the rule may be elsewhere in Reed v. Thomas, 134 Kan. 849, 8 P. 2d 379, 84 A. L. R. 110, this court held:
“The bare statement of a balance due, if accepted as correct, may constitute an account stated, even if it is not accompanied by an account of the items, under the rule that if a fixed and certain sum is admitted to be due for which an action would lie, that will be evidence to support a claim on an account stated.” (Syl. ¶1.)
In further support of the reliability of the challenged exhibits the trial court had before it a letter dated June 18, 1960, written by appellant to National Cylinder Gas Company in which it acknowledged it then had on hand a total of 57 oxygen and acetylene cylinders which had not been returned. This letter was received in evidence over appellants objection based upon relevancy, which objection has been renewed here. We think the trial court properly received and considered the exhibit. The testimony was that National Cylinder had for a previous period of time furnished appellant with the gas used by it and National’s account with appellant was then transferred to and taken over by appellee with the knowledge and consent of appellant. In his trial testimony appellant’s president tacitly conceded having a quantity of cylinders on hand at the time of National’s transfer of the account to appellee but he did not know how many. He testified his company had loaned gas cylinders to approximately fifteen customers over the years; he thought, but was not sure, that all these customers had returned the cylinders. He also denied having received any statements from appellee showing how many cylinders appellant had been charged with; however, this testimony was wholly refuted by appellee’s evidence which must now be accepted.
In this same connection appellant asserts the evidence failed to show that appellee owned the cylinders in question. This, along with most of the other issues at trial, was primarily a question of fact. There was evidence appellee was either the owner or the lessee from National Cylinder of all the cylinders in question and thus entitled to maintain the action.
Appellant complains as to the amount of the judgment allowed, saying the ordinary measure of damages for a tortious conversion of property (fair market value) would have been proper instead of that used, that as an alternative only a depreciated value for used cylinders should have been used, and in no event should the price stated in the invoice have been applied because it in effect constituted a penalty not favored in law. The trial court had before it considerable testimony respecting the nature and use of the cylinders under the custom of that particular industry. It was shown that appellee was liable to pay to National for each leased cylinder not returned the then current retail new cylinder value, which price at all times pertinent herein was the sum of $54.50. Invoices used by appellee and appellant contained the same proviso and on previous occasions appellant had in fact paid appellee for lost or damaged cylinders at the rate of $54.50 per cylinder. There was evidence the cylinders are distinctively marked by each company using them and are not reusable by other companies; hence there is no market for used cylinders. The cylinders are virtually indestructible with proper handling and depreciation is not a significant factor in determining their value. The trial court’s judgment amounted approximately to a finding for appellee for a recovery of 70 cylinders valued at the current retail new cylinder price of $54,50 each. We have already upheld appellee’s theory that its action sounds in contract rather than in tort and under the circumstances we see no reason to disturb the amount of the judgment rendered.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Ronald E. Martin, was convicted of aggravated robbery and aggravated assault. He has appealed.
One question, only, is presented on appeal: Did the trial court err in failing to instruct the jury as to the limited purposes for which an independent offense may be considered under K. S. A. 60-455? An understanding of this question requires a brief recital of the evidence disclosed by the record.
The victim was a Wichita resident who became depressed because his wife had left him. Seeking solace, he became engaged in a three-day session with John Rarleycorn. On the evening of the third day he felt the urge to travel and procured a taxicab about 10:30, in which he began his peregrinations, still taking a nip now and then. About 2:00 in the morning he changed cabs.
As the driver of the second cab helped him make the change, the victim said he wanted a woman to come over to his house and help him clean up and cook him a steak. At this time he appeared to be inebriated. The cab driver obligingly took him to a place on Murdock where they met Edna Edwards, Jr., Martins co-defendant. Edwards was given a ten-dollar bill to find a girl and the three men proceeded to the 1100 block on Broadway where Mr. Edwards left the cab and returned in a short time with two women and a man. The girls got into the cab which was then driven to tire victim’s home. At this point the two girls, the victim and the cab driver all entered the house. A couple of minutes later, while a check was being written to pay the taxi fare, the two girls left the house but the cab driver remained and cooked some food while the victim continued to imbibe.
About 4:45 the same morning the defendant and a girl appeared at the door of a house just five or six locations from where the victim lived, while a second man lurked in the background. They awoke the neighboring householder who went to the door and was asked where the heavy-set fellow was. The householder responded that no heavy-set man was there. The couple kept insisting, however, and the woman said she had been there earlier that evening. Finally, the defendant struck the unsuspecting householder twice, the final blow hitting his nose and causing it to bleed. Thereupon the householder prudently closed the door.
Between 4:45 and 5:00 the defendant Martin, together with Edna Edwards, Jr., and the two women, appeared at the victim’s home where all four were admitted. An attack upon the victim ensued during which he was knocked to the floor and stabbed several times with a knife. Thereafter, the quartet took French leave, taking with them various items of property and a considerable sum of money.
At the trial, evidence was introduced of Martin’s early morning visit to the neighboring home and of Martin’s assault upon the man who lived there. The defendant contends this evidence related to an independent offense, that it was only admissible under the provisions of K. S. A. 60-455, as tending to prove motive, identity, intent, plan, opportunity, etc., and that an instruction should have been given to the effect that such evidence could be considered only for those limited purposes. In support of this position the defendant cites our recent case of State v. Roth, 200 Kan. 677, 438 P. 2d 58, wherein we held that a limiting instruction must be given, even without request, when evidence of an independent offense is introduced for purposes set forth in K. S. A. 60-455.
On the other hand, the state maintains that evidence of the attack upon the nearby householder was admissible in its own right as bearing directly on the crimes with which Martin was being tried. Accordingly the state argues that no limiting instruction was required to be given in this case.
We believe the state’s position is correct. The defendant’s visit to the neighbor’s home looking for the heavy-set man, a description which we are advised fit the victim, and the defendant’s unprovoked battery upon the hapless gentleman who opened the door are part and parcel of the sequence of events leading directly to the assault and the robbery which occurred a few minutes thereafter. This evidence had relevance other than as to character or disposition; it possessed evidential value to show commission of the crimes themselves, and was admissible for that purpose.
K. S. A. 60-455 does, it is true, prohibit proof of a defendant’s disposition to commit crimes as a basis for an inference that he committed an offense on a specific occasion, except where such evidence is admissible to prove some relevant fact such as motive, intent, plan, etc. (State v. Whiters, 206 Kan. 770, 481 P. 2d 992.) This, however, is not to say that evidence directly relating to the commission of the offense charged is not independently admissible —and without limiting instructions — even though it could also have been admitted under 60-455 for limited purposes. Even though evidence may be inadmissible on the issue of character, it may be relevant otherwise — and thus be admissible.
The admissibility of evidence tending directly to establish a crime is not destroyed because it discloses the commission of another and separate offense. Such is the rule generally and it has long been followed in this jurisdiction. In the early case of State v. Folwell, 14 Kan. *105 [2d Ed. 88], this court held:
“Testimony is admissible that tends directly to prove the defendants guilty of the crime charged, although it may also tend to prove a distinct felony, and thus prejudice the accused.” (Syl. ¶ 1.)
More recent cases expound the same principle. In State v. Crowe, 207 Kan. 473, 475, 486 P. 2d 503, the court enunciated the rule in this fashion:
“. . . Evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show another or a greater crime than that charged . . .”
The subject is treated in 1 Wigmore on Evidence, 3d Edition, §§ 215-218, pp. 710-719.
Evidence of what occurred at the neighbor s home that morning was relevant to the commission of the offenses charged against the defendant in more than one respect. It placed the defendant and his female companion, who had been in the victim’s home a short time before, within the immediate vicinity of the crimes which were committed and with which the defendant was charged. It provided the basis for a reasonable inference that both the defendant and the woman were searching for the victim. It tended also to establish identity, intent and motive; and it negatived mistake.
In short, it is our belief that the testimony of the innocent householder who was so wantonly and inexcusably attacked was admissible independently of K. S. A. 60-455, and that no error was committed by the court in admitting the same without a limiting instruction.
The judgment of the trial court is affirmed. | [
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Per Curiam,-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Stanley L. Wiles, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violations of Kansas Rules of Professional Conduct (KRPC) including KRPC 1.4(a) (2006 Kan. Ct. R. Annot. 386) (communication), KRPC 1.15(a) (2006 Kan. Ct. R. Annot. 435) (safekeeping property), KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation), KRPC 3.4(d) (2006 Kan. Ct. R. Annot. 472) (fairness to opposing party and counsel), and KRPC 8.4(c) and (d) (2006 Kan. Ct. R. Annot. 510) (misconduct).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The panel made the following findings of fact and conclusions of law together with its recommendations to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Stanley L. Wiles (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 12266. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Kansas City, Missouri. . . . The Kansas Supreme Court admitted the Respondent to the practice of law in the state of Kansas on February 26, 1985. Additionally, the Missouri Supreme Court admitted the Respondent to the practice of law in the state of Missouri on April 26, 1969.
“DA8866
“2. From die tíme he first start[ed] practicing law in 1969, and continuing until October 2002, the Respondent did not have a client trust account. In October 2002, tire Respondent first opened a trust account.
“3. On April 8, 2003, die balance of the Respondent’s client trust account was insufficient to cover the checks, witiidrawals, deductions, and charges presented for payment. Specifically, at the beginning of die day on April 8, 2003, the Respondent had $8,451.66 in his client trust account. During that banking day, two checks were presented for payment. Check number 1333 in the amount of $9,050.30 was presented to the bank. Additionally, check number 1337 in the amount of $171.00 was presented to the bank. Even diough there were insufficient funds in die account to cover the checks, die bank paid the checks. After the bank fees were assessed, the Respondent’s client trust account had a negative balance of $556.29.
“4. Thereafter, US Bank forwarded a notice of insufficient funds regarding the Respondent’s client’s trust account to the Office of die Disciplinary Administrator. The Disciplinary Administrator docketed die notice as a complaint. On April 17, 2003, the Disciplinary Administrator forwarded the notice to the Respondent and requested that the Respondent provide a written response to the complaint. Disciplinary Administrator’s Exhibit 1.
“5. On April 22, 2003, the Respondent wrote to Stanton Hazlett to explain the first incident of insufficient funds. The Respondent explained:
7 went to U.S. Bank earlier and checked on my account status. I was informed that I had an extra $600.00, above what I had noted in my checkbook as being in my account. I assumed tiiat I had an extra $600.00 in my account, that I had not accounted for in my account. That is the sole reason why this account was overdrawn. Once I discovered the Bank made a mistake, I prompdy deposited over $516.20, leaving my bank account with a positive balance.’
“6. On April 10, 2003, the Respondent deposited a check in die amount of $4,790.00, bringing die account balance to $4,233.71. In the following day, checks, withdrawals, deductions, or charges in the total amount of $1,339.49 were presented to the bank.
“7. On April 15, 2003, the check the Respondent deposited, in die amount of $4,790.00, was returned. After die bank fee was assessed, the Respondent’s client’s trust account had a negative balance in die amount of $1,549.22.
“8. Again, US Bank forwarded a notice of insufficient funds regarding the Respondent’s client’s trust account to die Office of the Disciplinary Administrator. The Disciplinary Administrator docketed the notice as a complaint. On April 24, 2003, the Disciplinary Administrator forwarded the notice to the Respondent and informed him that die notice would be investigated.
“9. On April 17, 2003, the Respondent deposited $1,800.00 to cover die deficiency.
“10. On April 29, 2003, the Respondent wrote to Mr. Hazlett to explain the second incident of insufficient funds. The Respondent explained:
T settled a case on behalf of a client of mine with Progressive Insurance Company for $4,790.00. Unfortunately, I did not endorse the settlement check. When Progressive Insurance Company got the check back, Progressive Insurance sent the check back to US Bank. This settlement check went back to Minneapolis and came back to US Bank here in Kansas City, Missouri.
“When I was notified by US Bank that the check came back, I went to U.S. Bank, endorsed the settlement check, and redeposited the settlement check in my IOLTA Account.’
“11. On May 5, 2003, Robert R. Straub, Investigator/Examiner for the Disciplinary Administrator’s office wrote to the Respondent, informed the Respondent that he would be conducting an audit on the Respondent’s client trust account, and requested various documents.
“12. On June 5, 2003, the Respondent provided Mr. Straub with some records. However, the records were not complete. Mr. Straub conducted an audit and noted several deficiencies. First, the Respondent failed to provide a complete set of bank statements. The Respondent did not provide all of the deposit slips. Finally, the Respondent failed to provide all of the check stubs.
“13. Thereafter, on June 25, 2003, Mr. Straub again wrote to the Respondent. Mr. Straub informed the Respondent that he failed to provide complete records. Mr. Straub enclosed an investigative subpoena, requiring the production of the following records:
‘The Stanley L. Wiles Trust Account IOLTA account #1-455-9001-5346 starting with the date that the account was opened (September 2002) including all monthly Bank Statements, cancelled checks (front and back of cancelled checks), individual client ledgers (reflecting all receipts and disbursements), and check register (or check stubs) through current date.’
“14. On July 11, 2003, the Respondent wrote to Mr. Straub. The Respondent assured Mr. Straub that he would comply with the subpoena by delivering the requested documents on July 25, 2003.
“15. On July 25, 2003, the Respondent delivered various documents in response to the subpoena. In his cover letter, the Respondent stated that he had enclosed all the checks, checks stubs, and monthly bank statements that he had in his possession.
“16. However, the Respondent did not enclose all of the documents described in the subpoena. The Respondent provided bank statements for only five of the nine months he had had his client trust account. The Respondent failed to provide copies of any deposit slips. The bank statements did not identify the source of the funds deposited. Additionally, the Respondent failed to provide 32 checks that had cleared die account. Further, die records provided by the Respondent established that he paid his secretary from his client trust account. Finally, the records provided by the Respondent also established that he withdrew cash from his client trust account on numerous occasions. The Respondent failed to maintain adequate records to track the cash withdrawals.
“17. On August 12,2003, Mr. Straub again wrote to the Respondent and again stated that he did not provide complete records. Additionally, Mr. Straub advised tile Respondent of the many deficiencies with his client trust account. Mr. Straub went on to explain to the Respondent what he needed to do to be in compliance with KRPC 1.15. Mr. Straub provided the Respondent with a copy of‘Money of Others’ published by the Kansas Bar Foundation. Finally, Mr. Straub informed the Respondent that he would return for another audit in 120 days.
“18. In January, 2004, Mr. Straub contacted the Respondent to conduct a follow-up audit. The Respondent informed Mr. Straub that he could not provide the recent client trust account records, because he had provided them to the Missouri disciplinaiy authorities.
“19. Mr. Straub had been in contact with the Missouri disciplinaiy authorities regarding the Respondent. The Missouri disciplinary authorities informed Mr. Straub that they did not have any recent client trust account records. Mr. Straub called the Respondent back to discuss this matter with him. The Respondent informed Mr. Straub that he was doing nothing different and that he had not made any changes in accordance with Mr. Straub’s recommendations and the ‘Money of Others’ pamphlet. Mr. Straub determined that a follow-up audit would not serve any purpose and concluded his investigation.
“DA9402
“20. On December 17, 2001, the Respondent filed a personal injury suit in behalf of his client, Jody Lawson, against Conopeo, d/b/a Unilever Cosmetics International, also known as Calvin Klein Cosmetics, for the alleged flare up from a candle. On December 16, 2002, the Respondent voluntarily dismissed the suit following discovery disputes with opposing counsel. On June 3, 2003, the Respondent refiled the suit. Judge James Smith was presiding.
“21. After refiling the suit, the defendant made discovery requests. The Respondent failed to comply with the discovery requests. As a result, opposing counsel forwarded a ‘Golden Rule’ letter to the Respondent. The Respondent failed to respond to the discovery requests. Opposing counsel filed a motion to compel. Approximately a week prior to the hearing on the motion to compel, the Respondent called opposing counsel and stated that he had die responses in hand. Opposing counsel agreed to cancel the hearing as soon as the responses were received.
“22. The Respondent failed to provide responses to the requests for discovery and the Respondent failed to attend the hearing on the motion to compel. The Court granted tire motion to compel and provided the Respondent with 10 days to provide the responses to discovery. The Respondent did not provide the responses to the requests for discovery within the 10 days.
“23. Thereafter, opposing counsel filed a motion, seeking sanctions for the Respondent’s failure to comply with the requests for discovery. The Respondent failed to appear at the hearing on the motion for sanctions. The Court granted the motion and ordered that the Respondent pay $400.00 in reasonable costs and attorney fees related to bringing a motion to enforce discovery.
“24. The Respondent did not comply with the Court’s order. Thereafter, the defendant filed a motion to dismiss for failure to comply with court order. On May 25, 2004, the Court granted the defendant’s motion to dismiss and ordered that the Respondent pay $1,500.00 in reasonable costs and attorney fees related to bringing the motion to dismiss for failure to comply with court order.
“Reciprocal Discipline from. Missouri Perrine Representation
“25. James Perrine was involved in an automobile accident on April 28,2002, involving both personal and property damage to Mr. Perrine.
“26. Thereafter, Mr. Perrine hired the Respondent to represent him in the matter. The Respondent settled Mr. Perrine’s case on December 14, 2002, for $4,504.00. The Respondent paid Mr. Perrine his share of the proceeds, retained a portion for attorney’s fees, and further retained the sum of $1,756.98 to pay Mr. Perrine’s medical providers. The Respondent advised Mr. Perrine that he would pay those medical providers.
“27. The Respondent failed to place the money retained from Mr. Perrine’s settlement proceeds to pay medical providers in his client trust account.
“28. The medical providers were not paid until March 14, 2003. In the interim, Mr. Perrine received letters and telephone calls from creditors advising him that he had bills outstanding.
“Guy Representation
“29. In 1998 or 1999, Ronald Guy retained the Respondent to represent him regarding injuries Mr. Guy suffered at BMG Maintenance Company. The Respondent was retained to represent Mr. Guy in both a workers’ compensation case against his employer and a civil suit against the manufacturer of a chemical that Mr. Guy alleged caused his physical problems. The Respondent settled the workers’ compensation case to Mr. Guy’s satisfaction.
“30. On June 21, 2001, tire Respondent filed a civil suit against the manufacturer in the Circuit Court of Jackson County, Missouri, in behalf of Mr. Guy. Thereafter, on December 27, 2002, the Respondent filed a notice of dismissal. The Court dismissed [the] case without prejudice on January 3, 2003.
“31. On July 9, 2003, Mr. Guy filed a complaint with the Missouri disciplinary authorities, complaining that tire Respondent was not providing adequate communication regarding the status of the case. On September 4, 2003, the Respondent responded to Mr. Guy’s complaint. The Respondent stated that he dismissed Mr. Guy’s case because he was having difficulty in getting an expert witness to testify in Mr. Guy’s behalf. The Respondent stated that he planned to refile Mr. Guy’s case before the statute of hmitations ejqpired. On December 15, 2003, the Respondent refiled Mr. Guy’s case.
“Ivy Representation
“32. In October or November, 2002, Jerry Ivy retained the Respondent to represent him in a personal injury claim that arose out of a motor vehicle accident which occurred on October 10, 2002. Mr. Ivy was treated for his injuries at Marvin’s Midtown Chiropractic Clinic, LLC, 811 East Linwood Boulevard, Kansas City, Missouri 64109. Mr. Ivy’s bill with Marvin’s Midtown Chiropractic Clinic totaled $2,130.00.
“33. On April 2, 2003, the Respondent settled Mr. Ivy’s personal injury claim with the insurance company for $4,790.00. The Respondent asked Marvin’s Midtown Chiropractic Clinic whether it would accept $750.00 as full payment for Mr. Ivy’s bill. Marvin’s Midtown Chiropractic Clinic rejected the Respondent’s offer and informed the Respondent that it would accept $1,500.00 as a full compromise of Mr. Ivy’s bill.
“34. In the Respondent’s settlement distribution with Mr. Ivy, the Respondent retained $1,500.00, in April, 2003, to pay Mr. Ivy’s bill with Marvin’s Midtown Chiropractic Clinic. The Respondent did not retain the $1,500.00 in Iris client trust account.
“35. The Respondent did not pay the clinic with the settlement proceeds that he retained.
“36. On October 7, 2003, the Respondent again wrote to Marvin’s Midtown Chiropractic Clinic asking whether they would accept $750.00 as full settlement of Mr. Ivy’s bill. Again, Marvin’s Midtown Chiropractic Clinic rejected tire offer and demanded that they be paid tire $1,500.00 which was withheld from the settlement for the payment of Mr. Ivy’s bill with Marvin’s Midtown Chiropractic Clinic.
“37. As of March 26, 2004, the Respondent sent Marvin’s Midtown Chiropractic Clinic a check for $750.00. Marvin’s Midtown Chiropractic Clinic rejected the Respondent’s check. On April 16, 2004, a year after retaining the money, the Respondent finally paid Marvin’s Midtown Chiropractic Clinic $1,500.00.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that in DA8866 the Respondent violated KRPC 1.15(a), in DA9402 the Respondent violated KRPC 3.2, KRPC 3.4(d), and KRPC 8.4(d), and pursuant to Kan. Sup. Ct. R. 202 in the reciprocal discipline case from Missouri, the Respondent violated KRPC 1.4(a), KRPC 1.15(a), and KRPC 8.4(c).
“DA8866
“2. Attorneys must safeguard their clients’ property. See KRPC 1.15(a). The Respondent failed to safeguard his clients’ property by allowing his client trust account to have a negative balance. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).
“3. KRPC 1.15(a) also requires attorneys to retain complete records of their client trust account for five years after the representation is complete. In this case, the Respondent opened his client trust account in October 2002, during the time when the Respondent’s previous disciplinary case was pending before the Court. In June 2003, Mr. Straub first requested and, eventually, subpoenaed the Respondent’s trust account records. The Respondent never provided complete records to Mr. Straub. Accordingly, the Hearing Panel concludes that the Respondent’s unwillingness or inability to provide appropriate records of his client trust account amounts to a violation of KRPC 1.15(a).
“4. Finally, KRPC 1.15(a) prohibits attorneys from commingling their funds with the funds of their clients. The Hearing Panel concludes that by withdrawing cash from the client trust account and by paying his secretary directly from his client trust account, the Respondent commingled his funds with the funds of his clients in violation of KRPC 1.15(a).
“DA9402
“5. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite Ms. Lawson’s case. The Respondent dismissed the case one year after filing it. Then, after he refiled it, he failed to comply with the discovery requests, which eventually led to the dismissal of the case. Accordingly, the Hearing Panel concludes that the Respondent failed to make reasonable efforts to expedite Ms. Lawson’s litigation consistent with her interest, in violation of KRPC 3.2.
“6. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically, ‘[a] lawyer shall not . . . fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’ In this case, the Respondent failed to provide responses to discovery as requested by Ms. Crawford and as ordered by the Court. Eventually, the Court awarded opposing counsel sanctions and dismissed the case because of the Respondent’s failure to respond to discovery. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
“7. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to comply with requests for discovery, when he failed to respond to the ‘Golden Rule’ letter, when he failed to respond to the motion to compel, when he failed to appear in Court regarding opposing counsel’s motions regarding discovery, and when he failed to respond to opposing counsel’s motion to dismiss. The Court suffered actual prejudice as a result of the Respondent’s failures in this regard. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“Reciprocal Discipline Case from Missouri
“8. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ The Missouri Supreme Court concluded that the Respondent violated Rule 4-1.4(a), 4.1.5(b), 4.1.15(a), and 4-8.4(c).
“9. Missouri Rule 4-1.4(a), 4-1.5(b), 4-1.15(a), and 4-8.4(c), are identical to KRPC 1.4(a), KRPC 1.5(b), KRPC 1.15(a), and KRPC 8.4(c).
“10. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to keep Mr. Guy reasonably informed about the status of the representation. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“11. The Missouri Supreme Court concluded that the Respondent violated Rule 4-1.5(b) by failing to retain client funds in Respondent’s client trust account. Missouri Rule 4-1.5(b) relates to fees, is identical to KRPC 1.5(b), and provides, ‘[w]hen the lawyer has not regularly represented tire client, the basis or rate of the fee shall be communicated to tire client, preferably in writing, before or within a reasonable time after commencing the representation.’ It appears that the Court intended to find a Rule 4-1.15(a) violation in this regard. Rule 4-1.15(a) is identical to KRPC 1.15(a) which provides:
‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of die representation.’
Because the Respondent failed to retain Mr. Perrine’s funds in a client trust account, tire Hearing Panel concludes that tire Respondent violated KRPC 1.15(a).
“12. Additionally, the Respondent failed to retain Mr. Ivy’s funds in a client trust account. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a) in this regard.
“13. Again, KRPC 1.15(a) prohibits attorneys from commingling their funds with the funds of their clients. In this case, the Respondent failed to hold the property of his clients, Mr. Perrine and Mr. Ivy, separate from his own property. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a) in this regard.
“14. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty, fraud, deceit, or misrepresentation when he used monies retained from Mr. Perrine’s settlement which was to be paid to Mr. Perrine’s medical providers, to pay the Respondent’s ongoing office expenses. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“15. Additionally, the Respondent engaged in conduct that involved dishonesty, fraud, deceit, or misrepresentation when he retained $1,500.00 which he represented he would use to pay Mr. Ivy’s medical bill and instead used the funds to pay ongoing expenses of his law practice. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide reasonable communication. The Respondent also violated his duty to his clients to safeguard their property. Finally, the Respondent violated his duty to the public and tire legal profession to maintain personal integrity.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused injury to his clients and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found tire following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions in Kansas and eight occasions in Missouri.
“On August 19, 1991, a Hearing Panel of the Kansas Board for Discipline of Attorneys issued a final hearing report directing the Disciplinary Administrator to informally admonish the Respondent for having violated MRPC 1.1.
“On October 27, 1997, a Hearing Panel of the Kansas Board for Discipline of Attorneys issued a final hearing report directing the Disciplinary Administrator to informally admonish the Respondent for having violated KRPC 1.8(e).
“On December 6, 2002, the Kansas Supreme Court published an order censuring tire Respondent for having violated KRPC 1.1, KRPC 1.3, 1.4(a), KRPC 1.5(d), and KRPC 1.15(a).
“On November 8,1998, the Missouri disciplinary authorities forwarded a letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4-1.4.
“On July 21, 1999, the Missouri disciplinary authorities forwarded a second letter of admonition to the Respondent for having violated Rule 4-1.3, Rule 4-1.4, and Rule 4-8.4(d).
“On June 5, 2000, the Missouri disciplinary authorities forwarded a third letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4.1-4.
“On November 2,2000, the Missouri disciplinary authorities forwarded a fourth letter of admonition to the Respondent for having violated Rule 4-1.4.
“On November 2, 2000, the Missouri disciplinary authorities also forwarded a fifth letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4-1.4.
“On August 3, 2001, the Missouri disciplinary authorities forwarded a sixth letter of admonition to die Respondent for having violated Rule 4-1.15(b).
“As a reciprocal discipline case to die censure issued by die Kansas Supreme Court, on June 17, 2003, die Missouri Supreme Court indefinitely suspended the Respondent’s license to practice law. However, die Court suspended the imposition of the suspension and placed the Respondent on probation.
“Thereafter, the Missouri Supreme Court found that the Respondent violated die terms and conditions of his probation. As a result, the Court extended the period of probation.
“On February 7, 2005, a Missouri Disciplinary Hearing Panel concluded that the Respondent violated Rule 4-1.4, Rule 4-1.5(b), Rule 4-1.15(a), and Rule 4-8.4(c), as detailed in paragraphs 23 through 35 in the Findings of Fact and paragraphs 8 dirough 15 in the Conclusions of Law above. The Missouri Disciplinary Hearing Panel recommended that die Respondent be disbarred. The Missouri Supreme Court declined to disbar the Respondent. Ratiier, on September 20, 2005, the Court suspended die Respondent from the practice of law in the state of Missouri. The Respondent may not apply for reinstatement until September 1, 2007.
“Furthermore, the Respondent has been suspended from the practice of law before the United States District Court for the Western District of Missouri. Additionally, die United States District Court for the District of Kansas issued an order of interim suspension to the Respondent.
“Dishonest or Selfish Motive. The Respondent engaged in conduct that involved dishonesty in die reciprocal discipline case from Missouri. Accordingly, the Hearing Panel concludes that a portion of the Respondent’s misconduct was motivated by dishonesty.
“A Pattern of Misconduct. Included in this case are three complaints, DA8866, DA9402, and the reciprocal discipline case from Missouri. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on 11 occasions. Some of the previous cases have included violations of the rules violated in this case. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.4(a), KRPC 1.15(a), KRPC 3.2, KRPC 3.4(d), KRPC 8.4(c), and KRPC 8.4(d). As such, the Respondent committed multiple offenses.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1985 and tire Missouri Supreme Court admitted the Respondent to practice law in 1969. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 33 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at tlie time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client/ Standard 4.12.
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client/ Standard 4.42.
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding/ Standard 6.22.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to tire profession, and causes injury or potential injury to a client, the public, or tire legal system/ Standard 7.2.”
RECOMMENDATION
The Deputy Disciplinary Administrator recommended that the respondent be disbarred. The panel recommended indefinite suspension. As noted by the hearing panel, there was no evidence presented that any clients of respondent suffered financial loss as a result of his misconduct. Accordingly, based upon the findings of fact, conclusions of law, the aggravating factors, the lack of mitigating factors, and the standards listed in their final report, the panel recommended that respondent be indefinitely suspended from the practice of law in this state.
DISCUSSION
The respondent filed no exceptions to the panel’s findings and the panel’s recommendation of indefinite suspension from the practice of law.
We have considered the final hearing report of tire panel and the record on appeal; we adopt the findings of fact and conclusions of law, and a majority of this court agrees with the recommendations of the panel. The findings and conclusions establish by clear and convincing evidence that respondent violated KRPC 1.4(a) (2006 Kan. Ct. R. Annot. 386) (communication), KRPC 1.15(a) (2006 Kan. Ct. R. Annot. 435) (safekeeping property), KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation), KRPC 3.4(d) (2006 Kan. Ct. R. Annot. 472) (fairness to opposing party and counsel), and KRPC 8.4(c) and (d) (2006 Kan. Ct. R. Annot. 510) (misconduct).
The respondent reserved his right to argue in mitigation of the panel’s recommended discipline. However, respondent spent most of his time before this court either defending his actions or contending that either the charges were not that serious or that most attorneys practice the same way.
The respondent’s misconduct is serious. His conduct involving dishonesty and conversion of a client’s property without more would normally warrant disbarment, as recommended by the Disciplinaiy Administrator. A majority of the court accepts die panel’s recommendation of indefinite suspension as the appropriate discipline. A minority of this court would disbar respondent.
It Is Therefore Ordered that respondent, Stanley L. Wiles, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), and in the event respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2006 Kan. Ct. R. Annot. 327).
It Is Further Ordered that this opinion be published in the official Kansas Reports and diat the costs herein be assessed to respondent. | [
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The opinion of the court was delivered by
Kaul, J.:
This appeal arises from proceedings instituted pursuant to the Kansas Buyer Protection Act, K. S. A. 1971 Supp. 50-601, et seq., hereafter referred to as the act. It was enacted by the 1968 Legislature for the purpose of protecting buyers against fraud and certain other practices by or on behalf of sellers. The act also granted the attorney general and county attorneys certain powers and duties for the enforcement thereof. This appeal brings the act before this court for the first time. The issues herein involve procedures under enforcement provisions of the act.
The appellant, Jim McPherson, does business as Keystone Reader’s Service. He is engaged in the business o£ selling magazine subscriptions in Wichita and vicinity.' After an investigation of certain sales practices used by appellant, the county attorney of Sedgwick County caused a petition for injunction, civil penalties and other relief to be filed in the district court. The petition enumerated a number of sales practices engaged in by appellant, which were alleged to be in violation of the act.
After negotiations between the county attorney and appellant, an arrangement was arrived at whereby appellant agreed to enter into an “Assurance of Discontinuance of Unlawful Practice”, pursuant to provisions of 50-610 of the act.
On October 2, 1969, the county attorney presented to the district court a petition for approval of the “Assurance of Discontinuance of Unlawful Practice”, pursuant to further provisions of- 50-610. The appellant appeared pro se and also filed an “Entry of Appearance”, which included this statement:
“. . . The undersigned further agrees that the court, after approving the Assurance of Discontinuance of Unlawful Practice, shall retain jurisdiction for the purpose of affording either party further relief upon proper' notice to the other party.”
The district court, after being advised in the premises, approved the assurance. Eliminating formalities, the order of the cotut reads:
“The Court, being duly advised in the premises, finds the Assurance of Discontinuance of Unlawful Practice should be approved.
“It Is Therefore Ordered, Adjudged and Decreed that the Assurance of Discontinuance of Unlawful Practice entered into herein by and between the County Attorney of Sedgwick County, Kansas, and Jim McPherson d/b/a Keystone Reader’s Service be approved.
“It Is Further Ordered, Adjudged and Decreed that the Respondent pay any and all court costs that are taxed and assessed in this case and in any future related proceedings.
“It Is Further Ordered, Adjudged and Decreed that the court shall retain jurisdiction of this case for the purpose of affording either party further relief upon proper notice to the other party.
. “Dated this 2nd day of October, 1969.”
After the approval of the assurance nothing further occurred until March 11, 1970, when a deputy county attorney filed several pleadings. He first filed an affidavit in contempt stating that appellant had violated several provisions of the assurance. In the affidavit the deputy county attorney prayed that process be issued for appellant to be brought before the court to. be proceeded against for indirect contempt. At the same time, the deputy county attorney filed a “Motion for Citation in Contempt” in which it was also alleged that appellant had violated the terms of the assurance in a number of particulars. A few hours later, on the same day, the deputy county attorney filed an “Accusation in Contempt” in which several of the provisions of the assurance were again set out and acts alleged in violation thereof. The prayer of the accusation asked that McPherson be adjudged guilty of indirect contempt and punished by a fine of $10,000, pursuant to K. S. A. 1971 Supp. 50-611.
On the same day, March 11, two orders of the trial court were entered. One directed appellant to appear before the court on March 20, 1970, to show cause why an accusation should not be filed against him. The second order directed appellant to appear on March 20, 1970, and show cause why he should not be proceeded against for indirect contempt.
On March 20,1970, a hearing was had wherein appellant admitted that he had failed to do certain acts required of him in the assurance. The trial court found appellant guilty of indirect' contempt óf court and sentenced him to pay a fine of $10,000, which order was suspended and appellant was put on probation from payment of the fine for a. period of one year on condition that he make restitution to all persons whose contracts were cancelled. The court ordered that all contracts between appellant and any other person, which were made in violation of the terms of the assurance, and consummated between the dates of October 2, 1969, and March 20, 1970, be cancelled within ten days and restitution made, except that any person who had so contracted with appellant could reaffirm the contract if desired, but the reaffirmation had to be in writing.
On March 30, 1970, appellant filed a motion seeking to modify the court’s order of March 20, 1970. The motion was overruled. On April 17, 1970, the trial court issued an order directing the sheriff to arrest appellant and confine him pending a hearing to determine why his probation should not be revoked. At this point, from our examination of the somewhat confusing record, it appears that appellant filed this appeal and further activity in the trial court ceased. In any event, appellant comes before this court in the position of having been convicted of indirect contempt by the court below.
In substance appellant claims: (1) The trial court lacked jurisdiction to find contempt; (2) the trial court failed to make a finding of what order or injunction of the court appellant was found to have violated or what conduct of appellant was in violation of an order of the court; (3) there was no evidence before the trial court to support its judgment; (4) that improper procedure, was followed by the county attorney in an effort to secure compliance with the assurance; and (5), therefore, the trial court lacked authority to order cancellation of contracts.
K. S. A. 1971 Supp. 50-602 declares certain business practices, described in general terms, to be unlawful. Broad investigatory powers are conferred upon the attorney general in sections 50-604 to 50-607, inclusive, and by 50-614, the same authority is granted to a county attorney. Under 50-608 the attorney general, when he has reasonable cause to believe a person is engaging in unlawful practices, is empowered to seek an injunction against the continuation of such practices. After providing for notice and service thereof the section further provides:
". . . The court may make such orders or judgments as may be necessary to prevent the use or employment by a person of any prohibited practices, or which may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any practice in this act declared to be unlawful, including the appointment of a receiver or the revocation of a license or certificate authorizing that person to engage in business in this state, or both, in cases of substantial and willful violation of this act.” (K. S. A. 1971 Supp. 50-608.)
Instead of pursuing a judicial course of action leading to an injunction and other relief provided for in 50-608, the county attorney agreed to accept from the appellant an “Assurance of Discontinuance of Unlawful Practice” provided for by 50-610 which reads:
“In the enforcement of the provisions of this act, the attorney general may accept an assurance of discontinuance of any practice deemed in violation of the provisions of this act from any person engaging in, or who has engaged in, such practices. Any such assurance shall be in writing and shall be filed with and subject to the approval of any district court having venue as provided in section 13 [50-613] of this act. A violation of such assurance withfin] six (6) years of the filing thereof shall constitute prima facie proof of a violation of the provisions of this act. Such assurance of discontinuance shall not be considered an admission of a violation for any purpose.”
A civil penalty is provided as a means of compelling compliance with injunctions and orders of the court by the terms of 50-611, which reads:
“A person who violates any court order or injunction issued pursuant to this act shall forfeit and pay to the general fund of the state of Kansas a civil penalty of not more than ten thousand dollars ($10,000), to be fixed by the court. For the purpose of this section, the district court issuing any order or injunction shall retain jurisdiction. In such cases, the attorney general acting in the name of the state may petition for the recovery of civil penalties.”
Consideration of the act as a whole indicates that the attorney general or a county attorney may take one of three courses of action, he may pursue injunctive relief to a final judgment under 50-608; he can accept an assurance under 50-610, or he could pursue a course of action which would culminate in a combination of both, that is the acceptance of an assurance coupled with an injunction to provide for compliance therewith.
In the instant case, the county attorney in accepting the assurance agreed not to proceed further with his statutory action, which was described as a “Petition for Injunctive, Civil Penalties and Other Relief.” In this connection paragraph two of the assurance reads:
“It now appearing that the Respondent is willing to enter into an agreement to terminate the practices complained of by the County Attorney of Sedgwick County, Kansas, and that the County Attorney of Sedgwick County, Kansas, is willing to accept this Assurance of Discontinuance of Unlawful Practice, pursuant to the Kansas Buyer Protection Act (K. S.A. 50-610), in lieu of proceeding with the statutory action heretofore filed in the District Court of Sedgwick County, Kansas, Case No. C-17497, the Respondent enters into this assurance without admitting that he has violated the provisions of the Buyer Protection Act.”
Following paragraph two, the assurance sets out in detail a number of practices which appellant agreed to discontinue and further that appellant agreed to adhere to and comply with all applicable provisions of the “Selling Code for Paid-During-Service Subscription Agencies”, which are specifically set forth in the assurance.
Appellant also agreed to pay all court costs assessed in connection with the proceedings.
The final paragraph of the assurance reads:
“Pursuant to the Kansas Buyer Protection Act (K. S. A. 1968 Supp. 50-610), evidence of a violation of this Assurance of Discontinuance of Unlawful Practice shall constitute prima facie proof of violation of the applicable law as cited herein above in any civil action or proceeding hereafter commenced by the Attorney General or any county attorney of the State of Kansas.”
The affidavit in contempt, the accusation in contempt, and the motion for citation in contempt are all premised on the assumption that appellant had violated some order of the court and, hence, he could be compelled to show cause why he should not be proceeded against and adjudged guilty of indirect contempt. The affidavit, the accusation and the motion each set out alleged violations of the assurance, but in no instance is there an allegation that any specific order of the court was violated. In other words, the county attorney proceeded as though the approval of the assurance transformed it from an agreement with appellant into an order of the court. Actually, the only obligation to the court, imposed upon the appellant by the order of approval, was to pay any costs assessed which had been agreed to by appellant in the assurance. In all other respects the assurance was an agreement between the county attorney and appellant as to what henceforth would be unlawful practices in his business. Also, certain standards were set out, which must be met in order that practices would be acceptable.
By the terms of the assurance and in accordance with the provisions of 50-610, evidence of the violation of any of the provisions thereof would constitute prima facie proof of a violation of the act in any civil action or proceeding commenced thereafter. The trouble is that the county attorney, by the terms of the assurance, accepted it in lieu of proceeding with his original injunction action, which he did not reinstate, nor did he seek any other orders of the court upon obtaining evidence of appellant’s misdeeds.
The deputy county attorney proceeded to institute contempt proceedings as though an injunction had been granted and was in force. In fact the only order of the court in effect on March 11, 1970, was the approval of the assurance. The only direction of that order, which imposed an obligation on appellant, was the taxing of costs about which there was no complaint. The order of the trial court approved the assurance, but it did not include the terms thereof or adherence thereto by appellant as a part of the order of the court. Perhaps appellant would not have agreed to the assurance had the conditions referred to been included therein.
On March 11, 1970, appellant was actually charged with violations of the assurance. None of the pleadings filed specified any injunction or order of the court which appellant was alleged to have violated. In short, there was no basis for an accusation in contempt at this juncture of the proceedings; hence the corut was without jurisdiction.
This is not to say that an injunction compelling adherence could not be coupled with or entered in conjunction with an order of approval, but no such action was taken in the instant case.
In a comprehensive analysis of the provisions of the act (Vol. 38' J. B. A. K., p. 11, Travers review of “The New Kansas Buyer Protection Act.”), Professor Travers points out that the advantage to the state in accepting an assurance is that the burden of establishing conduct proscribed by the act is avoided and that after accepting an assurance the state in suing to enjoin a violation thereof need only show, that the terms of the assurance have been violated to establish a prima facie case, thus shifting to appellant the burden of showing that his conduct was not in violation.
On the other hand, Professor Travers also notes inducements to a defendant to sign an assurance:
“. . . First, violation of an injunction will subject a defendant to liability for a civil penalty of $10,000 whereas violation of an assurance will lead only to a suit for an injunction under the circumstances outlined above.. Second, the act provides that an assurance ‘shall not be considered an admission of a violation for any purpose. . . (Vol. 38 J. B. A. K., p. 57)
The statement of the proceedings (no stenographic transcript was made) at the hearing on March 20, 1970, shows that appellant admitted violations of the assurance in four particulars, but there is no showing that he at any time admitted or conceded that he had violated any order or injunction of the court. Appellant’s admissions of violations of the assurance cannot be construed to amount to a plea of guilty to a charge of indirect contempt. His admissions were directed to violations of the assurance; they were not made as answers to a charge of contempt.
Since the appellant was not charged with or shown to be in violation of any order of the court, the contempt conviction cannot stand. Moreover, the proceedings leading to conviction are faulty in several other respects.
Under the provisions of K. S. A. 20-1201 all classes of contempts of court must be proceeded against only as prescribed in K. S. A. Chap. 20, Art. 12. Informalities in procedure are not permissible.
In addressing itself to contempt procedures in Hartman v. Wolverton, 125 Kan. 202, 263 Pac. 789, this court said:
“Since contempt of court may be punished by fine and by imprisonment, a person charged with contempt is entitled to know the nature and cause of the accusation against him. The informality in procedure in cases of indirect contempt adverted to in the case of State v. Cutler, 13 Kan. 131, is no longer considered permissible (State v. Anders, 64 Kan. 742, 68 Pac. 668). Process to bring the accused before the court must be founded on affidavit showing the contempt, except in cases not material here, and when the accused is brought before the court a written accusation setting forth succinctly and clearly the facts constituting the contempt must be filed. (R. S. 20-1204.) The accused may waive the filing of an accusation by answering the charge contained in the affidavit (Butler v. Butler, 82 Kan. 130, 133, 107 Pac. 540), but the authority of the court to punish rests on a written charge in some form showing the contempt. . . (p. 205.)
Under the provisions o£ K. S. A. 20-1205 the taking of testimony and the preservation thereof is mandatory and a requisite of jurisdiction. In this connection it was stated in In re Gambrell, 160 Kan. 620, 164 P. 2d 122:
“The statute (G. S. 1935, 20-1205) provides for review of contempt proceedings on appeal. In part it reads:
“ ‘That the testimony taken on the trial of any accusation of contempt shall be preserved, and any judgment or conviction therefor may be reviewed.’
‘In this case the testimony was not preserved, hence the opportunity to have it reviewed on appeal was frustrated. Cases have reached this court, both on appeal and by habeas corpus. Beoause of the inadequacy of the record in this case the accused was justified in proceeding by habeas corpus. It has been held that habeas corpus by one committed for contempt raises jurisdictional questions only. Contempt is a proceeding somewhat arbitrary at the best, and the absence of essential proceedings in the record constitutes a showing of the lack of jurisdiction.” (p. 623.)
In view of what has been said the judgment convicting appellant of indirect contempt is set aside and the cause is remanded to the district court.
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The opinion of the court was delivered by
Kaul, J.:
This action stems from an intersection automobile accident which occurred on April 28, 1968, in the city of Prairie Village. The intersection of Mission Road and Tomahawk Road was controlled by traffic lights. Plaintiff was westbound on Tomahawk Road and defendant was southbound on Mission Road. Both parties claimed a green light when they entered the intersection.
This appeal is from a verdict and judgment in favor of plaintiff in a second trial of the action. The first trial resulted in a de fendant’s verdict. Plaintiff’s motion for a new trial was sustained on the ground of error in admitting into evidence, over plaintiff’s objection, a diagram of the scene of the accident drawn by an officer of the Prairie Village Police Department, who was not called as a witness by either party.
The sole issue on appeal is whether the trial court abused its discretion in granting plaintiff a new trial.
During the first trial, in plaintiff’s case in chief, Richard Blum, a Prairie Village Police Officer, was called as a witness. He was the first officer to arrive at the accident scene and according to police department procedure he became the officer in charge of the investigation. It was his duty to obtain factual information— names, addresses, etc. — and to render aid to the injured. Officer Albers, of the Prairie Village Police, was the second officer to arrive. It was his duty to take photographs, make measurements and diagram the accident scene. Albers prepared a diagram which was attached to the police department accident report.
On direct examination Blum was asked to draw a rough diagram of the intersection on a blackboard in the courtroom. He drew the diagram from a “schematic” which he said he had prepared the previous day. From memory and by referring to the diagram of Albers, Blum located the vehicles of plaintiff and defendant as they were following the accident. Blum testified that he did not observe any skid marks at the scene, and he did not draw any on the blackboard diagram.
On cross-examination Blum was interrogated concerning two sets of parallel lines shown on the Albers diagram. One set of lines was drawn in a westerly direction from Tomahawk Road out into the intersection and then are shown to curve to the left or south. On each of these lines the figure 40 appears. The other set of parallel lines was drawn in a southerly direction on Mission Road out into the intersection and curved to the right or west before meeting the first set of lines drawn on Tomahawk Road. On each of the two lines drawn on Mission die figure 30 appears. The two sets of parallel lines were not otherwise labeled, identified or explained by any other figure, marks or notes appearing on the diagram.
Plaintiff objected when Blum was asked to draw the two sets of parallel lines on his blackboard diagram and the objection was sustained. Defendant continued cross-examination of Blum and established that the Albers diagram was attached to the official police report of the accident. The diagram was detached from the rest of the report, marked defendant’s Exhibit N and admitted into evidence over plaintiff’s objection.
Blum further testified that although not labeled as such, the parallel lines appeared to be skid marks. Blum was further questioned by defendant concerning lateral movements of defendant Zane’s car after the impact. He testified that according to his recollection the Zane vehicle was moved in a lateral direction about ten feet to the west after the impact. On redirect examination Blum was questioned concerning the fact there were no skid marks shown on the diagram indicating lateral movement of Zane’s car. When asked if this meant there were no skid marks made by the lateral movement of Zane’s car, Blum answered:
“No, sir, it means that the officer who diagramed this particular accident did not put them in, if they were there.”
Blum again testified that he did not see any skid marks himself.
In ruling on plaintiff’s motion for a new trial, the trial court had this to say:
“And the Court, after having considered said Motion for a New Trial, finds it should be and is hereby granted and sustained. The controlling reason for the granting of the new trial is founded on the fact the Court feels it committed error in receiving the intersection drawing as given by a witness in this cause that was prepared by another officer, who was not, of course, called, was not available for cross-examination. This report did give signs of skid-marks, and these were, of course, exhibited to the jury. And these were bald conclusions on the part of the officer who was not called. The Court feels that this did have an affect upon the results in this case; or if it did not, that it probably could have had an affect on the jury. For that reason, the Court is going to grant and sustain the motion.”
On appeal defendant argues the diagram was admissible and if not, then at most, the admission thereof was harmless error and thus the trial court’s granting of a new trial was an abuse of discretion.
The granting of a new trial is governed by the provisions of K. S. A. 60-259 (now 1971 Supp.) of the new Kansas Code of Civil Procedure. Where one of the grounds specified in the statute is shown to exist, the granting of a new trial rests in the judicial discretion of the trial court and an order granting or refusing a new trial will not be reversed on appeal unless a clear abuse of discretion is shown. (Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522; and Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P. 2d 398.)
We do not believe a clear abuse of discretion is shown in this case.
It must be conceded that generally official traffic accident reports are admissible unless they contain information barred by the hearsay rule or conclusions of the officer making the report. Recent cases in which the admissibility of such reports was considered are set out in McElhaney v. Rouse, 197 Kan. 136, 415 P. 2d 241. In the McElhaney case, upon which defendant relies heavily, we held that an accident report prepared by the testifying witness, Lt. Myers, was not erroneously admitted. It was pointed out in the opinion that the report contained no conclusions of officers or statements of third party witnesses such as recorded in the objectionable reports considered in McGrath v. Mance, 194 Kan. 640, 400 P. 2d 1013; and Letcher v. Derricott, 191 Kan. 596, 383 P. 2d 533. In McElhaney, Lt. Myers had prepared the report and was on the witness stand subject to cross-examination; in the instant case Officer Albers was not in court.
In the case at bar we are not concerned with the admissibility of the full report. The diagram was detached and only it was submitted to the jury.
Generally, a diagram illustrating the scene of an accident and the relative location of objects, if proved to be correct, is admissible in evidence to enable the jury to understand and apply the established facts to the particular case. (8 Am. Jur. 2d, Automobiles and Highway Traffic, § 977, p. 528.) However, where marks or notations, the import of which is not clear, appear upon a map or diagram and the person who made them is not produced as a witness, the map or diagram containing such marks is inadmissible. (29 Am. Jur. 2d, Evidence, § 784, pp. 854, 855.)
In the instant case, as shown by Blum’s testimony, the diagram was not only incomplete but contained marks, the import of which Blum had no firsthand knowledge. In order to make the diagram meaningful or understandable to the jury, an attempt was made to have Blum make assumptions and conclusions since he had not observed any skid marks at the scene. He testified there was lateral movement of defendant’s car after impact, but he was unable to state whether there were actually marks on the pavement, indicating lateral movement, or whether Albers merely omitted them from the diagram.
The trial court was fully aware of the issues framed by the evidence and the impact of the admission of the diagram under the circumstances. After observing the witnesses and hearing all of the testimony, the court exercised its discretion and found the admission of the diagram was prejudicial to the plaintiff. Under such circumstances we are unable to say that a clear abuse of discretion is shown in granting plaintiff a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, G:
This is an appeal by a plaintiff franchisor in an action brought by it to restrain an individual franchise from violating a covenant not to compete in the business of preparation of tax returns upon termination of the franchise. The issue here is the validity of the restrictive covenant.
The action was submitted to the trial court for determination upon undisputed facts which may be summarized as follows: Plaintiff H&R Block, Inc. is a corporation engaged in franchising individuals and other concerns to operate a business solely for the preparation of income tax returns and services incident thereto under the name of H&R Block.
On or before January 1, 1961, plaintiff and defendant Earl Lovelace entered into the following written agreement:
“Agreement, made and entered into this _ day of_, 19-between H&R Block, Inc., a_corporation, First Party, and Earl Lovelace, 600 East Madison of Yates Center, Kansas, Second Party:
“Whereas, First Party is engaged in the business of franchising individuals and concerns to operate a service dealing exclusively with the preparation of tax returns; and
“Whereas, Second Party desires to operate such a service;
“Now, Therefore, Be It Agreed:
“1. First Party agrees:
“a. To franchise Second Party to operate a business solely concerned with the preparation of tax returns, to be located within 5 miles of Yates Center, Kansas.
“b. To refrain from competing with Second Party during the term of this Agreement within said 5 mile area.
“c. To permit Second Party to operate under the name of H & R Block, and since First Party desires to increase the prestige and prominence of such name on a national basis, the use of any other name in connection with the preparation of tax returns, by Second Party is expressly prohibited.
“d. To explain fully and to instruct Second Party in the operational details of the business, in consideration wherefor Second Party agrees to spend three (3) days in Kansas City, Missouri in November.
“e. To advise Second Party in the selection and location of an office or offices.
“f. To furnish Second Party with information necessary to establish an operating budget.
“g. To design forms to be used in the preparation of tax returns and advise as to quantities needed.
“h. To furnish Second Party with all specialized forms and equipment (not required by the normal accounting business) deemed necessary by the First Party for the Second Party to efficiently operate the business. Any equipment or supplies will be furnished F. O. B. point of origin and installed and maintained in good working condition by Second Party. Should this contract be terminated, any equipment or remaining supplies will be returned to the First Party in good condition.
“i. To train employees of Second Party in the matter of preparing returns, customer relations and H & R Block procedures, provided that such training shall take place in Kansas City, Missouri only, at a time designated by First Party.
“j. To furnish and pay for all promotion and advertising deemed advisable by First Party.
“k. To assist Second Party in any tax and management problems which may arise during the period of this Agreement.
“2. Second Party agrees:
“a. To operate under this Agreement a tax return business under the name of H & R Block.
“b. To prepare quality returns accurate to the best of Second Party’s knowledge and to be checked thoroughly before they shall be returned to clients.
“c. To maintain office hours from 9 A. M. to 6 P. M. during weekdays and Saturdays during the tax season, to wit: at least the first Sunday after January 1st through April 15th, Second Party’s office or offices to be neat and orderly at all times and with sufficient personnel to promptly accommodate all clients.
“d. To furnish sufficient time to supervise properly and efficiently the operations of the business.
“e. To furnish duplicate copies of receipts of all funds of every kind and character received by Second Party, such copies to be sent to First Party semi-weekly together with re-cap sheets, with further provision that Second Party’s books and records shall be open to inspection by First Party at all times.
“f. To adhere to the basic schedule of charges of First Party.
“g. To attend our employee training in Kansas City during January in the first year of this agreement.
“3. In consideration of the foregoing, Second Party agrees to pay First Party a sum equal to 60% of the gross receipts received by Second Party. Reports of such receipts through the 15th and last day of each month shall be submitted to First Party within 5 days after the end of such respective periods. Payment shall be due within 30 days after each report period.
"a. If payment, however, is made within 5 days after a report period, a discount of 10 percentage points from established rate shall be allowed. For example, for the first half of January of the first year, if payment is remitted by January 20th, only 50% is due. Otherwise 60% must be paid by February 15th.
“b. Attached hereto is a list of prior clients whose tax returns were prepared by Second Party. Any money received from a listed client shall be deducted from the applicable report before multiplying by the appropriate percentage.
“4. Both parties agree to perform this Agreement faithfully at all times. If Second Party, however, shall breach any provision herein in any respect, this Agreement shall be automatically terminated and, in addition to any other amount which Second Party shall owe to First Party, Second Party shall pay to First Party the sum of $1,000.00 as liquidated damages. Furthermore if Second Party shall sell, assign, transfer, terminate or breach the contract he shall not enter into competition directly or indirectly with First Party for a period of five (5) years thereafter. Title to all books, records, files and lists of clients of Second Party shall remain in him, provided however, that if he shall breach the contract, such title shall be forfeited and shall vest in First Party, who shall also be entitled to possession of such books, records, etc.
“5. The term of the Agreement shall be for a period of four (4) years from the date hereof, with further provision that it shall be automatically renewed for successive periods of one (1) year each unless cancelled by serving written notice so to cancel on the other party no less than 120 days prior to an anniversary date.”
Pursuant to this agreement, on January 1, 1961, defendant commenced the operation of a tax return business in Yates Center under the name H & R Block, which he continued to operate during the income tax seasons of 1961 through 1968.
On October 29, 1968, defendant gave plaintiff notice of his intent to terminate the contract and on January 1, 1969, he commenced an income tax preparation business under his own name at the same location in Yates Center at which he had conducted business under the Block name and he has continued to operate an office at that location in competition with plaintiff since that time.
On March 17, 1969, plaintiff commenced this action by the filing of its petition in which it sought damages for breach of contract and an order restraining defendant “from competing with the plaintiff for a period of five (5) years from the termination of said contract as provided by the aforesaid agreement.”
Thereafter defendant answered, alleging among other defenses that the purported restriction of competition contained in paragraph 4 of the franchise agreement was an unreasonable restraint of trade and contrary to public policy. At a pretrial conference issues were defined and the trial court made the following ruling:
“I do not find that the defense of the ultra vires act is good. I think this is not such a skilled profession as would be prohibited by our law, and taking judicial notice of the number of people that are practicing preparation around.
“I feel that the contract contemplates throughout that the restriction upon Lovelace for his activity subsequent to the termination of it, is the five mile radius surrounding Yates Center, and this is the only area in which it could have any effect.
“I am also taking notice of the fact that there are one or two other tax services over there that I have noticed, which are not Block, and are not Lovelace, so I think this service is open to the public, and I think in view of these findings, I cannot sustain the motion either on the basis that it is suppressive, unconscionable and burdensome, or impossible performance.”
On February 27, 1970, the case having been submitted for determination upon the pleadings and certain stipulations made at pretrial conference, the court rendered its final decision as follows:
“The contract in essence permits the defendant to operate a business concerned with the preparation of tax returns to be located within five miles of Yates Center, Kansas. The plaintiff agrees to refrain from competing within the five mile area during the term of the agreement, and the defendant is permitted to operate under the name of the plaintiff. In addition, the plaintiff obligated itself to instruct the defendant in the operational details of the business, advise as to preparation of returns, to train employees of the defendant in preparation of returns, to promote and advertise as it might deem advisable and to assist the defendant in tax and management problems. The defendant agreed to operate a tax return business under the plaintiff’s name, to prepare quality returns accurately, and among other things to adhere to the basic schedule of charges of the first party. Certain provisions were devoted to the manner in which the second party was to pay the first party for what essentially is the use of its name and such professional help as the first party could give to the second party. Paragraph 4 of the agreement provided for faithful performance and the effect of a breach of the agreement on the part of the second party-defendant. Paragraph 5 of the agreement sets forth that the term thereof was to be four years from its date and that it was automatically renewed for successive periods of one year each unless cancelled by the service of written notice on the other party no less than one hundred twenty days prior to the end of a term.
“As previously noted, there is no provision in the contract with respect to any obligations on the part of H & R Block in the event it should have breached the contract. Paragraph 4 refers only to the obligations of the defendant in the event of his breach.
“That defendant has breached the agreement by terminating it not in conformity with paragraph 5 thereof, seems implicit from the pleadings on both sides. Thus, for determination are the rights of the parties under paragraph 4.
“At the last conference I indicated I felt that the restriction on the defendant from entering into competition directly or indirectly with the plaintiff for a period of five years after the breach of the contract meant that he could not engage in the tax return preparation business in an area within five miles of Yates Center for such period. I have concluded that this view is incorrect and the proper interpretation of this provision of the contract is that the defendant is precluded from practicing such business anywhere for a period of five years.
“Further, I conclude that no sale or other transfer of business occurred at the incidence of the contract or upon its breach by the defendant. The covenant against competition, is therefore, in the nature of a penalty. It should be added that defendant had no corresponding protection against plaintiff in the event of plaintiff’s breach. The covenant against competition is unenforceable. Tong v. McArthur, 121 Kan. 820.
“If it can be rationalized that a sale or transfer of a business took place at the execution of the instant agreement and further fhat fhe agreement was in the nature of a partnership arrangement with a covenant against competition upon the partnership dissolution or the agreement was in the nature of an employment contract with the defendant agreeing not to compete upon his ceasing such employment, then I believe the contract is not enforceable because it is unreasonable as to time. The test as to time is reasonableness as to the covenanter, as to the covenantee and as to the general public. See annotation at 45 A. L. R. 2d 77. Without any evidence whatever it seems that a five year period goes far beyond what Block needs timewise to protect its name and business against this defendant, particularly if the protection is beyond the environs of Yates Center, and to keep Lovelace from practicing this business for five years seems far beyond the pale of reasonableness in such a calling as tax return preparation.
“The territorial restraint which, I believe, actually extends to the world, or, at least wherever Block is now or may during the five year period commence doing business, is per se unreasonable. See the extensive annotation on covenants as to competition-area, which appears in 46 A. L. R. 2d 119.
“It appears, therefore, that the plaintiff is entitled to judgment for $1,000.00, same being the liquidated damages agreed to by the parties in the event of a breach by the second party; that the injunction sought by the plaintiff should not issue. It does appear, however, that the defendant should be restrained from any further identification with the plaintiff in the practice of his business, which is to say, he should not advertise in any manner which indicates that he once was associated with the plaintiff, nor use signs or other identification which would tend to associate him with the plaintiff in the eyes of the undisceming public.”
Judgment was entered in accord with ihe foregoing memorandum. Plaintiff has now appealed from that part of the judgment which denied its request for injunctive relief restraining defendant from competing with plaintiff in the business of income tax return preparation.
Plaintiff contends the trial court erred in finding that the covenant against competition extended to the world and precluded defendant from carrying on an income tax business anywhere and in holding accordingly that it was unenforceable, and further that the court erred in finding the covenant unreasonable as to time and unenforceable for that reason.
This court has dealt many times with the law governing non-competition clauses in agreements of various types (see 2 Hatcher’s Kansas Digest, rev. ed., Contracts, §§ 52, 58; 3A West’s Kansas Digest, Contracts, §§115-117). Most often the agreements have been incident to the sale or transfer of a business; however, the rule is well established that such a clause is good if it is ancillary to any' lawful contract (John Lucas & Co. v. Evans, 141 Kan. 57, 40 P. 2d 359), subject, of course, to the test of reasonableness of the covenant and whether it is inimical to the public welfare (Mills v. Cleveland, 87 Kan. 549, 125 Pac. 58).
Although there is no rigid, absolute norm by which tihe reasonableness of a covenant against competition may be determined, rules evolving generally from this line of decisions are to the effect that the rights of the promisee, the promisor and the general public are to be taken into account; area and time limitations must be reasonable under the facts and circumstances of the particular case (Heckard v. Park, 164 Kan. 216, 188 P. 2d 926, 175 A. L. R. 605). It is. readily apparent the governing rules are equitable in nature as they must be where courts are called upon to resolve conflicts between, basic principles of law, the conflicting rules here being (1) under the common law agreements in restraint of a person’s right to exercise his trade or calling were void as against public policy (54 Am. Jur. 2d, Monopolies, etc., § 511) and (2) contracts of persons sui generis are to be enforced.
In determining the question of reasonableness a distinction has sometimes been made between covenants incident to an employment contract and those ancillary to a sale or other transfer of a business, practice or property. Where distinctions have been made courts of equity have been less prone to enforce restrictive covenants between employer and employee than where the restriction is part of a contract for sale of a business in which good will may be a part of the property sold, and such courts have construed the former more strictly against the employer-promisee in determining their reasonableness (for comprehensive analysis and summary on .this aspect and on the subject of covenants against competition generally, see 41 A. L. R. 2d 15, 20-33; 43 A. L. R. 2d 94, 109-115; 45 A. L. R. 2d 77, 96-98; 46 A. L. R. 2d 119, 142-146).
Reasons given for distinctions made between employer-employee and sale covenants are trenchantly stated in Arthur Murray Dance Studios of Cleveland v. Witter, 105 N. E. 2d 685, (CP, Ohio, 1952) as follows:
“. . . the snow-balling weight of authority in England and the United States recognizes a distinction. In contrasting the employee covenant with the sale covenant, some of the typical pronouncements are — the employee covenant is more critically examined, more strictly construed — it is construed favorably to tire employee — it is viewed with askance and more jealously — it is not viewed as liberally or with the same indulgence — it is looked upon with less favor, more disfavor — courts are more loathe, less disposed and more reluctant to sustain or enforce it — not identical tests but different considerations apply— there is more freedom of contract between seller and buyer than between employer and employee, — the latitude of permissible restraint is more limited between employer and employee, greater between seller and buyer. The following are some of the reasons given for making the above distinction. The average, individual employee has little but his labor to sell or to use to make a living. He is often in urgent need of selling it and in no position to object to boiler plate restrictive covenants placed before him to sign. To him, the right to work and support his family is the most important right he possesses. His individual bargaining power is seldom equal to that of his employer. Moreover, an employee ordinarily is not on the same plane with the seller of an established business. He is more apt than the seller to be coerced into an oppressive agreement. Under pressure of need and with little opportunity for choice, he is more likely than the seller to make a rash, improvident promise that, for the sake of present gain, may tend to impair his power to earn a living, impoverish him, render him a public charge or deprive the community of his skill and training. The seller has the proceeds of sale on which to live during his period of readjustment. A seller is usually paid an increased price for agreeing to a period of abstention. The abstention is a part of the thing sold and is often absolutely necessary in order to secure to the buyer the things he has bought. Usually the employee gets no increased compensation for agreeing to the abstention; it is usually based, on no other consideration than the employment itself.” (pp. 703-704.)
We think the sounder line of reasoning, as well as the weight of authority elsewhere, supports the view such distinction should be made.
The agreement before us is neither a contract of employment nor one for sale of a business, but rather that which in the modem business world has now come to be known as a franchise. In its simplest terms a franchise is a license from tire owner of a trademark or trade name permitting another to sell a product or service under that name or mark. More broadly stated, the franchise has evolved into an elaborate agreement under which the franchisee undertakes to conduct a business or sell a product or service in accordance with methods and procedures prescribed by the franchisor and the franchisor undertakes to assist the franchisee through advertising, promotion and other advisory services. The franchise may encompass an exclusive right to sell the product in a specified territory (see 15 Business Organizations, Glickman, Franchising, § 2.01).
For our purpose here it is not necessary to categorize the franchise nor to distinguish it from other relationships, such as employee vis-a-vis independent contractor or the like, and we would not be heard to do so. Suffice it to say under the contract here defendant operated under plaintiffs name in providing a service in which enterprise plaintiff retained a considerable amount of operational control including the prescribing of office hours, fees to be charged, methods and forms to be used, accounting periods, advertising and promotion and training of personnel, and upon breach of the contract by defendant, title to and possession of books, records, flies and client lists vested in plaintiff.
Under these narrow facts we are inclined to the view the contract is more akin to one of employment than to a contract for sale or disposition of a business and sufficiently of that character to make strict construction against the promisee appropriate.
In the light of the foregoing principle we turn to the question of the territorial extent of the restriction contained in the contract. The trial court determined it to be without limitation. Plaintiff urges that, construing the entire agreement from its four comers, the covenant contained in paragraph 4 was intended only to prohibit competition by defendant within five miles of Yates Center — a reasonable limitation which should now be imposed on defendant. The difficulty is, paragraph 4 does not so state — rather it contains no limitation of any kind. That the parties knew how to fix specifically a territorial Hmitation is demonstrated by the fact subparagraphs a and b of paragraph 1 of the agreement do exactly that in prescribing a location for the franchised operation and in specifying an area in which plaintiff would not compete. Had it been the intention of the parties, and particularly the plaintiff (presumably the draftsman for the agreement), to limit the extent of the restrictive covenant as to defendant’s competition it would have been simple so to state as was done in paragraph 1.
Plaintiff calls attention to the case of Foltz v. Struxness, 168 Kan. 714, 215 P. 2d 133, in which a territorial limitation of one hundred miles from the city of Hutchinson, contained in a covenant not to compete, was reduced by the trial court to a radius of five miles from the city and enforced, which action was upheld by this court. Reliance upon this decision is misplaced in that the facts as well as the posture of the ruling upon appeal are distinguishable from those at bar. There the contract was between an older doctor with an established medical practice in the city of Hutchinson and a young doctor seeking a location. The contract of employment was for a period of one year, at the end of which a partnership was to be negotiated to carry on the practice, the terms of which were left subject to further mutual agreement. Both parties were found by the trial court to have acted in good faith in attempting, albeit unsuccessfully, to negotiate that partnership agreement. Clearly the contract contemplated a transfer of a proprietary interest in an established practice. Moreover, the trial court there, applying equitable doctrine, reduced the territorial limitation under the particular facts of the case. The trial court here did not do so and we are not under the circumstances inclined to write a new contract for the parties.
We think the trial court correctly construed the contract as one intended to prohibit competition by defendant anywhere, and, accordingly, properly declined to enforce it because of unreasonableness as to territorial extent.
The enterprise was for a service activity of a local nature, that is, one generally sought and obtained by the customer locally. Unlimited territorial restriction was unnecessary and unjustifiable for plaintiff’s protection and therefore unreasonable.
Once it is determined the covenant was unenforceable because of the extent of the territorial restriction, consideration of other matters raised becomes unnecessary.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
In this malpractice action plaintiff has sued to recover damages for injuries sustained by her which she claims resulted from defendants’ negligence in administering x-ray treatments in a course of radiotherapy for Hodgkin’s disease.
While the appeal was pending both defendants died. The First National Bank & Trust Company of Salina was duly appointed and qualified as administrator of the estate of Phillip M. Platten, M. D., deceased, and has been, by order of this court substituted as an appellee herein. Phyllis E. Ripley was duly appointed and qualified as executrix of the estate of G. Sherman Ripley, M. D., deceased, and has been, by order of this court, substituted as an appellee herein.
The question on appeal is when did the applicable statute of limitations commence to run?
Plaintiff filed her petition on March 13, 1968. Defendants filed an answer in the form of a general denial, and as an affirmative defense specifically pleaded that plaintiffs right of action as set forth in her petition did not accrue within two years next before the commencement of this action.
Depositions were taken of plaintiff, both defendants, and Dr. Terry E. Lilly, Jr., a Kansas City, Missouri, physician, who had been consulted by plaintiff.
Defendants filed a motion for summary judgment on the ground that plaintiffs action was barred by the two-year statute of limitations set forth in K. S. A. 60-513 (now 1970 Supp.).
Plaintiff filed a motion for partial summary judgment on the issue of the statute of limitations.
The trial court overruled plaintiff’s motion and sustained defendants’ motion. The trial court rested its conclusion on a finding to this effect:
‘In this case the fact of injury not only became ascertainable to the plaintiff before March 13, 1966, but she also had full knowledge of the fact of the bum injury and its progression to ulceration before that time.”
On appeal, plaintiff proposes two theories for reversal. First, she urges this court to adopt either the so-called “continuous treatment” rule, or the “physician-patient relationship” rule under either of which the statute of limitations is tolled with respect to a malpractice action while the defendant physician continues treatment for the injury involved. On this premise, plaintiff claims she is entitled to summary judgment on the limitations issue. Secondly, plaintiff claims the material facts as to whether her injury was substantial or reasonably ascertainable on March 13, 1966, are very much in dispute and cannot be determined as a matter of law. On this theory plaintiff asserts the trial court’s summary judgment should be reversed and the issue of limitations be determined on trial.
In the spring of 1964 physicians at the Kansas University Medical Center diagnosed plaintiff’s condition as Hodgkin’s disease and recommended radiation therapy in the area of her neck. She was referred to defendants who were physicians and radiologists practicing in Salina, which was near her home in Canton. Defendants accepted the pathological diagnosis of the Medical Center physicians and planned a course of treatment based thereon.
Plaintiff first reported to Dr. G. Sherman Ripley, one of the defendants, on May 22, 1964. Concerning this first contact, Dr. Ripley testified as follows:
“Then I prescribed the X-ray treatment and I explained to her that I thought she would go through them without any particular complications and that sometimes patients feel nauseated at the time of the treatment and that we would take care of that with medication, towards the end of the treatment her skin would be a little red and would later tan, and I tried to relieve her of any apprehension.”
Plaintiff was given a course of twenty treatments with no significant after effects. She did contract a sore throat near the end of the treatment period.
In November of 1965 plaintiff noticed lumps in the groin area. After an examination by her family physician, the lumps were removed and sent in for laboratory examination. Plaintiff reported to the Kansas University Medical Center in January of 1966, where her condition was diagnosed as a reoccurrence of Hodgkin’s disease in the left groin area. She was once again referred to defendants for x-ray therapy. Dr. Platten saw the plaintiff on January 28, 1966, at which time he concluded that plaintiff’s condition was “Stage 3 Hodgkin’s disease, disseminated,” which he described in these words:
“Reoccurrence of Hodgkin’s disease below the diaphragm in a patient previously having the disease primary above the diaphragm is' classified as a Stage 3 Hodgkin’s disease case. These are not all incurable, but the prognosis for a cure is less than SO percent.”
Dr. Platten described his treatment plan in this manner:
“A. We wanted to deliver a maximum tumor dose to the entire right pelvis and whether she should tolerate 3,000 R in air through that original converging beam portal would have to be judged on the — her systemic reaction to the volume of tissue treated, and her skin reaction. In other words, that would define tolerance, what we could administer based on her general clinical condition and the skin.
“Q. Then you go on to say, ‘It then may be possible to add a third straight AP port to give a total tumor dose calculated at midpelvis of 4,000 R.’
“A. Yes.
“Q. What is a straight AP port?
“A. I started out with two converging beams AP, meaning anterior-posterior, then using the time dose relationship, it is of critical importance in radiotherapy, having used these converging anterior fields, I would then treat a lateral area directed at the deep pelvic nodes and then a posterior area, that then would allow a long interval of time for the skin on the front of her pelvis to recover normally and possibly tolerate additional radiation if the other portals didn’t permit delivery of this critical 4,000 R tumor dose.”
A course of twenty treatments was planned. The first treatment was given on January 28, 1966. During this treatment, administered by Dr. Platten, plaintiff testified that she first felt a strange “crawling like” sensation and so informed Dr. Platten. Plaintiff received a second treatment on January 31, at which time Dr. Platten found that plaintiff had an abnormal slcin reaction to the original treatment on the 28th and that there was more redness of the skin than he expected. Plaintiff complained of some pain in both of her ankles. Concerning plaintiff’s condition on January 31, Dr. Platten testified as follows:
“A. Yes. There was pre-tibial edema, and I took her very, very seriously and I was extremely concerned that she had diseased nodes in both sides of her pelvis that were blocking the lymphatics or the veins draining her legs. I told her I had no explanation for it, I couldn’t understand it, but that I was going to cut down the total dose and switch to a straight AP portal.
“Q. Did you tell her that you suspected that she had cancerous infection of the lymph nodes that was interfering with the drainage of her legs — you did not tell her that, did you?
“A. In my judgment on that date with her state of mind, it would have been wrong.
“Q. I assume by that answer you did not tell her.
“A. I did not tell her.”
As indicated, the treatment was reduced on January 31. Plaintiff was given further reduced x-ray dosages on February 2, 4 and 7, at which point the radiation treatments were discontinued because of a skin reaction. Treatment was prescribed for the skin reaction and plaintiff continued to see defendants.
On March 2, 1966, she was examined by both defendants who noted the slcin reaction was subsiding. Plaintiff was seen again by Dr. Platten on March 11, when he described her reaction as slowly healing.
At the suggestion of her mother and sister, plaintiff had made arrangements for consultation with Dr. Terry E. Lilly, Jr., of Kansas City, Missouri, on March 12, 1966. At this time, plaintiff described the skin reaction condition as “the top was off the treatment area, it was open, raw and draining.” Dr. Lilly discussed with plaintiff the difference between the results of the treatment to the neck and to the groin and told her that “she was a living example of successful and unsuccessful therapy.” Dr. Lilly’s consultation pertained primarily to a skin graft as a remedy. He testified that his impression was “that there had been a radiation reaction with breakdown.” Dr. Lilly confirmed the opinion given by defendants after their examination of plaintiff on March 11, that the area was healing. Our scrutiny of Dr. Lilly’s testimony reveals that he made no diagnosis or prognosis as to plaintiff’s injury, nor did he advise her in so many words that it was the result of a radiation bum.
Defendants argue that plaintiff had ascertained that she had sustained a substantial or real bum injury shortly after the termination of treatments in February of 1966, and that, in any event, she either was or should have been made so aware by her consultation with Dr. Lilly on March 12, 1966, one day more than two years preceding the filing of her petition.
Subsequent to the commencement of the limitation period, plaintiff continued under the care of defendants. She was seen by Dr. Ripley on March 22, 27 and 29. With respect to . these visits, Dr. Ripley testified that there was marked healing in the area of the reaction, that it was continuing to improve and would heal itself.
Dr. Platten continued to see plaintiff through the summer and fall of 1966, and testified that as late as October she showed improvement and that spontaneous healing could not be ruled out.
It appears that the first time defendants suspected any kind of permanent damage, stemming from the radiation treatments, was on July 22, 1966, when Dr. Ripley examined plaintiff and learned for the first time that she had some swelling and soreness in the left hip, which was lateral to the inguinal treatment area.
Dr. Ripley’s testimony, concerning the July 22 examination, appears in part as follows:
“Q. And is that the first time you had any evidence in the way of symptoms to lead you to believe there had been damage to the deeper tissue or reaction in the deeper tissue than the merely the affliction of the skin that was apparent that you observed?
“A. This is the first time she showed any secondary signs of injury to the lymphatic or presence (sic) too of perhaps tumors which might cause this reaction.
“Q. The answer to the question is yes? This is the first tíme there was an indication of any interference with the skin, below the skin, a reaction to the tissue or damage?
“A. Well, in a radiation reaction we assume there is also damage below the skin areas as radiation is impossible to produce without damage to normal tissue. At any depth it will penetrate and could be demonstrated by the microscope, it is a matter of recovery.
“Q. I understand that is true, but it isn’t normal nor is it inherent in the treatment that you have danger to the extent causes swelling and interference with fluid movement in that area?
“A. That is true.
“Q. Is that correct?
“A. Yes, sir.
“Q. All right, this is the first time that you had noticed danger to that extent whether theoretically there may be danger to the skin, danger to this extent, this is the first indication of it?
“A. If it was damaged, yes.
“Q. If it was damaged as distinguished from a tumor?
“A. Right.
“Q. Are you saying you don’t know which one it is and you don’t know actually to this day?
“A. No.
“Q. Would the fact she hasn’t had a reoccurrence of the tumor and that probably radiation caused the damage, would this be a fair statement with this much time having passed?
“A. I don’t know there is proof she didn’t have a tumor in that area.”
“Q. Is there any proof she does?
"A. No.”
Plaintiff argues that Dr. Ripley’s testimony clearly demonstrates that, even to the treating physicians, there was no indication prior to July 22 that the injury involved more ihan damage to superficial tissue, which would heal itself, and that the damage to underlying tissue and permanent damage to plaintiff’s left leg was first indicated at this time.
It was not until December of 1966 that plaintiff was finally advised that the ulcer in the groin area, which resulted from the radiation treatment, was not going to heal of its own accord and would require surgical repair. Plastic surgery was performed on plaintiff, consisting of a series of five major and two minor operations. The first plastic surgery was performed in January 1967, and the last in January 1968.
The applicable statute of limitations is 60-513 (4), supra, which requires plaintiff’s cause of action to recover damages to be filed within two years after her cause of action accrued. K. S. A. 60-513 was enacted in 1964 (amended in 1968, now K. S. A. 1970 Supp.), as a part of our new civil code of procedure. No change was made in the classification of actions subject to the two-year limitation period except that they were stated in separate numbered items. The significant change was the addition of a new provision specifying when a cause of action shall be deemed to have accrued. It reads:
“The cause of action in this section 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, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
The new provision works an abrupt change in the previous law with respect to malpractice actions, which was established by consistent holdings of this court in Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475; Becker v. Floersch, 153 Kan. 374, 110 P. 2d 752; Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348; and Hill v. Hays, 193 Kan. 453, 395 P. 2d 298. The rule was firmly established that the statute of limitations begins at the time the tort is committed. Even though the court seemed to recognize the harshness of the old rule in Hill v. Hays, supra, it was not altered — the court adhering to the philosophy that limitations are created by statute and are legislative, not judicial acts.
The court’s reluctance to decree judicial legislation noted in Hill soon became of no moment as a result of the legislature’s action in adding the provision interpreting the term “accrued” when the applicable statute of limitations was reenacted in the form of 60-513, supra.
Under the new provision the period of limitation does not commence until the act giving rise to the cause of action first causes substantial injury, or in the alternative, if the fact of injury is not reasonably ascertainable until some time after the initial act, then not until the fact of injury becomes reasonably ascertainable to the injured party.
We turn now to the application of the statute to the facts in the case at bar. We are of the opinion the evidence was not sufficiently conclusive on either of the two statutory conditions for the trial court to resolve, as a matter of law, the issue raised by the statute of limitations. The testimony of none of the parties deposed shows conclusively that the negligent acts alleged had caused substantial injury on March 13, 1966. It is true that plaintiff knew she had an unhealed sore on March 12, when she saw Dr. Lilly, but both Dr. Lilly and Dr. Ripley, who had seen plaintiff the previous day, described the condition then as slowly healing and that the conservative treatment which plaintiff was then undergoing would likely result in a complete healing.
Later, on March 22, Dr. Ripley found a marked healing in the area of reaction. In connection with his examination of March 22, Dr. Ripley’s testimony reveals the difficulty in measuring, with any degree of medical certainty, plaintiff’s condition in terms of "substantial injury” with respect to radiation reaction. He testified that normally there would be an observable reaction on most cases of the type of radiation used in cancer therapy.
With respect to reaction to radiation therapy, Dr. Ripley testified:
“Q. (By Mr. Martin) Let’s get at it this way. Normally, you would find reaction in some sort or another to radiation therapy?
“A. In varying degrees, yes, sir.
“Q. In varying degrees, but usually you get some sort of reaction? It may be sore throat or reddening of the neck as she got on the first treatment, or it might be reddening or bronzing of an area like which occurred in her groin?
“A. Some types of radiation, there are different qualities of radiation and quantities. There would be an observable reaction on most cases of the type of radiation we are talking about, or cancer, there is reaction.
“Q. Then you say in most types of radiation therapy for cancer you do observe some sort of reaction.
“A. Yes, sir.
“Q. And the degree of that reaction may vary in a good number of circumstances, dosage of the treatment, age, condition of the patient, condition of the area you are trying to treat, and the location, the inner location of cancer cells you are trying to reach, is that a fair statement?
“A. Yes, sir.
“Q. And so that they, the appearance of a reaction is not necessarily alarming to you as a physician nor should be alarming to a patient that is being treated for cancer because you expect some reaction, is that right, sir?
“A. The first part is correct, it wouldn’t be alarming to me, it might be alarming to some patient unless they have been told a brief reaction might occur.
“Q. All right, when you get a reaction on the part of the patient that is being treated for cancer, is this something you expect?
“A. Yes, sir.
"Q. Then, as long as that reaction is within normal bounds, that it takes a course which doesn’t indicate that it is going to be permanent or something like that, is it correct you normally explain to these people they are going to get a reaction to this type of treatment because that is what you expect?
“A. Yes.”
We believe a fair analysis of the testimony of the three physicians deposed clearly indicates that as of March 13, 1966, none of them had made a diagnosis or prognosis of plaintiff’s condition in terms of substantial injury since it was too early to do so with reference to the time of the treatments and the healing condition of plaintiff at the time. We do not believe that plaintiff’s knowledge of her condition from her own observation, and that acquired from her physicians, is sufficient to justify a determination, as a matter of law, that she knew or could have reasonably ascertained on March 13, 1966, that she had suffered substantial injury caused by the alleged negligent treatment of defendants.
Plaintiff alleges in her petition that she did not know that she had been injured and the fact of her injury was not reasonably ascertainable to her until surgery was prescribed in January of 1967. Since the evidence presented, as we see it, is inconclusive as to what point in time plaintiff’s injury could be said to be substantial or reasonably ascertainable, we conclude that plaintiff should be afforded an opportunity to prove that she neither knew nor could reasonably have been expected to know of defendants’ alleged negligence until the date alleged in her petition. A summary judgment based on the premise that plaintiff on March 13, 1966, knew or could have reasonably ascertained that she had suffered substantial injury resulted from alleged acts of negligence by defendants necessitated a finding of fact which was, we believe, in good faith disputed.
Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P. 2d 535, was an action brought by a workman against his employer for personal injuries arising out of a disease allegedly resulting from the conditions of his employment. In reversing a directed verdict on the issue of the statute of limitations, we said:
“Without getting into specifics, we incline to the belief it was for the jury to determine in this case when plaintiff’s disabling disease and its cause became manifest or when, in the exercise of due care, the same was reasonably ascertainable. . . . We are of the opinion that the evidence as to what if any medical advice plaintiff received, and whether he was or should have been aware of the actual state of his health and the connection between his employment and the pulmonary fibrosis ravaging his lungs, was not sufficiently con- elusive for the trial court to resolve, as a matter of law, the issue raised by the statute of limitations.” (pp. 189-190.)
In George v. W-G Fertilizer, Inc., 205 Kan. 360, 469 P. 2d 459, which involved the application of K. S. A. 60-513 (2), we said:
“. . . The evidence was in dispute as to when the ‘fact of injury’ first became reasonably ascertainable to plaintiffs and, thus, was an issue for determination by the trier of fact. . . .” (p. 366.)
Summary judgment may be proper on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time when the statute commenced to run. (City of Ulysses v. Neidert, 196 Kan. 169, 409 P. 2d 800; and Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693.) But where the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact.
What has been said effectively disposes of this appeal. However, since plaintiff has devoted a considerable portion of her brief in support of her claim for partial summary judgment on the limitations issue, we shall give her arguments brief consideration.
Plaintiff strenuously urges that the time when a cause of action in malpractice shall be deemed to have accrued should be extended through the period of time that the “physician-patient relationship” continues or while the physician continues to treat the patient for the injury which resulted from the negligent act. The two proposals of plaintiff are commonly designated as the “physician-patient relationship” and the “continuous treatment” doctrines both of which have considerable support. (See 80 A. L. R. 2d, Anno., p. 368, and cases cited therein, and A. L. R. 2d Later Case Service, 1971 Supplement, 80 A. L. R. 2d pp. 30-33 inch; and Cornell Law Quarterly, Vol. 47, No. 3, p. 339.) An example of the application of the “physician-patient relationship” doctrine may be found in Hundley v. St. Francis Hospital, 161 Cal. App. 2d 800, 327 P. 2d 131; 80 A. L. R. 2d 360, and the “continuous treatment” doctrine in Borgia v. City of New York, 12 N. Y. 2d 151, 237 N. Y. S. 2d 319.
An examination of the cases in which either of the two doctrines was adopted reveals that generally the treatment was a judicial effort to soften the harshness of the statutory accrual rule existing in the particular jurisdiction at the time. The Kansas legislature preempted policy making on the subject by enacting in 1963 the additional provision of 60-513 and has given the matter further consid eration by enacting in 1970 additional provisions relating to injuries resulting from ionizing radiation. (See K. S. A. 1970 Supp. 60-513a, 60-513b and 60-513c.) The legislature did not see fit to mention either “physician-patient relationship” or “continuous treatment” as an element in measuring the time in which a cause of action accrues. We are not inclined to do so by judicially legislating. This is not to say that evidence stemming from “physician-patient relationship” or “continuous treatment,” when relevant, would not bear upon the issue as to when substantial injury becomes reasonably ascertainable.
The Kansas provision has an outside limitation of ten years, but otherwise is essentially what has been identified as the “discovery rule.” In judicially adopting the “discovery rule” in Johnson v. Caldwell, 371 Mich. 368, 123 N. W. 2d 785, the Michigan Supreme Court observed that since 1949 the trend has been toward the “discovery rule,” which the corut defined in these terms:
“. . . Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act. . . .” (p.379.)
We conclude the trial court properly overruled plaintiffs motion for summary judgment but erred in sustaining defendants’ motion.
The judgment is reversed and the case remanded to the trial court for further proceedings. | [
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The opinion of the court was delivered by
Fontron, J.:
The roots of this appeal go back to a cold February morning in Canton, Kansas, nearly five years ago, when a fire consumed the Friendly Chevrolet garage owned by the plaintiff, W. A. Schmidt. At the time of this unfortunate occurrence, one of Mr. Schmidt’s employees was working on a propane truck of Fanners Co-op Grain and Supply Company (herein called Co-op) which was brought to the garage for emergency repairs, carrying a load of some 1200 gallons of liquid propane.
Mr. Schmidt filed suit against Co-op and its insurance carrier, Farmers Elevator Mutual Insurance Company, to recover his loss. The basis of his claim was that the .driver of the truck was negligent in failing to turn off the main tank or shutoff valves and in failing to drain the lines and hoses before the vehicle was garaged, thus allowing gas to escape which ignited and caused the fire. Co-op and its insurer denied negligence and filed a cross-petition for loss of Co-op’s truck and for loss of Co-op’s time, claiming negligence on Schmidt’s part.
The City of Canton, whose building adjoined the garage, together with a tenant therein, Masonic Lodge No. 197, thereupon bestirred themselves and instituted suit against both Schmidt and Co-op to recover their respective damages caused by the fire. A sim ilar action was also initiated against Schmidt and Co-op by American Legion Post .No. 197 for damage resulting to its property from the conflagration. At a later date, Travelers Insurance Company was substituted as plaintiff in place of the Legion, inasmuch as it had paid the Legion for its loss. To complete the picture, a second insurance carrier, Iowa Kemper Mutual Insurance Company, intervened in the action between Schmidt and Co-op to recover from them jointly the amount it had paid the owner of the building wherein the fire occurred.
All claims, demands and counterclaims were consolidated for trial. The jury, in its infinite wisdom, denied Schmidt’s claim against Co-op, and Co-op’s claim against Schmidt, but returned verdicts against both Schmidt and Co-op in favor of the City of Canton, Masonic Lodge No. 197, Travelers Insurance Company and Iowa Kemper Insurance Company.
Mr. Schmidt, alone, has appealed, all others apparently being satisfied with the outcome.
Before considering the points raised on appeal which, incidentally, do not include insufficiency of evidence, a brief statement of facts will be in order.
The pump mounted on tire truck in question had ceased to function on that cold windy day while the driver was delivering propane to Co-op’s customers. A hurry-up call was placed to Mr. Schmidt who, although busy, agreed to take a look at it. The truck was then driven to the garage by its regular driver, Mr. Holloway, who parked it at a point designated by Schmidt approximately 20 feet from a steam cleaner and 50 feet from a hot-water heater. Both had pilot lights. Also in the building were two overhead heaters with pilot lights. Holloway had not drained the system of pipes and hoses used in delivering propane gas to his customers, nor had he closed the main or shutoff valves on the tanks.
After the truck was parked, Schmidt directed his mechanic, Lawrence Heim, to work on it. Heim discovered that a key which connected tire power take-off with the shaft had been sheared off. He then attempted by means of a hammer and drift punch to drive the shaft back to get to the key. During this process he heard a hissing sound and saw a circle of liquid coming out of the pump. Immediate action then ensued on the part not only of Mr. Heim but also of Mr. Holloway, who was watching Heim work. Heim at once crawled from beneath the truck and attempted to drive it out the back door, while Holloway held the door open. As the truck was halfway through the door an explosion was heard and fire started coming out around the cab. At this Juncture both men prudently departed from the scene.
As we have previously said, Co-op and its insurance carrier filed a cross or counterclaim against Schmidt, and Schmidt’s first claim of error is that the trial court erred in overruling (1) his motion for summary judgment against the counterclaim and (2) his motion for a directed verdict relating thereto.
This court has never been called upon to determine whether an order overruling a motion for summary judgment is a final and appealable order. Neither are we called upon to decide that question in this case. The jury made this question of no consequence when it failed to return a verdict on Co-op’s counterclaim against Schmidt.
Similarly, no error may be said to stem from the trial court’s denial of Schmidt’s motion for a directed verdict aimed at the cross-claim even though, we might add, this court has held that no appeal lies from the overruling of such a motion. (Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 668; Palmer v. Julian, 161 Kan. 619, 170 P. 2d 813; Moon v. Lord, 172 Kan. 139, 238 P. 2d 506.)
It is next contended that the trial court erred in rejecting the proffered testimony of Mr. Schmidt relating to his reason for making no inspection of the truck and asking no questions as to its condition at the time it was brought to his garage. The gist of Schmidt’s reply was that he was not familiar with or schooled in handling propane products or propane trucks, while Co-op had been in the business some twelve or fifteen years; that he had every reason to assume its employees were schooled to handle propane safely, and he relied on that assumption.
Whether or not the proffered evidence was admissible, we can hardly view its exclusion as being prejudicial, since most of the ground had already been covered by Mr. Schmidt when he testified that he had never handled propane and knew nothing about its properties; that he knew nothing about the arrangement of the piping, valves or connections on a butane truck; that he had never been schooled or trained in the handling of butane and had never handled any; that Co-op had been in the propane business for twelve or fifteen years, whereas he, Schmidt had never been engaged in that business; and that the handling or transportation of propane-gas was not in his line of business, but was in Co-op’s.
In Shepard v. Dick, 203 Kan. 164, 170, 453 P. 2d 134, we said that the exclusion of evidence is not prejudicial where the facts are otherwise shown and that a party who seeks reversal of a judgment because of excluded evidence has the burden of showing prejudice as well as error.
Whether Mr. Schmidt, as he attempted to testify, was entitled to rely on the assumption that Co-op’s employees had exercised due and reasonable care under the circumstances was an ultimate fact to be decided by the jury, and Schmidt’s personal and self-serving opinion in regard thereto would have been an invasion of the jury’s province. The trial court did, moreover, correctly instruct the jury that:
“A person has no duty to anticipate negligence on the part of others, and, in the absence of knowledge or notice to the contrary, is entitled to assume, and to act on the assumption, that others will exercise ordinary care.”
A further allegation of error goes to the rejection of a proffer of certain testimony on the part of Merton Hickman, a deputy fire marshal. Mr. Hickman had identified Kansas Administrative Regulation 22-8-321, entitled “Parking and Garaging LP-Gas tank vehicles.” This regulation sets forth several precautions to be followed when it becomes necessary to garage such a vehicle for servicing or repairs.
After the regulation was offered, Mr. Schmidt sought to make the point that its provisions applied in this case only to Co-op, as a handler of propane products, and not to himself, as a garage owner. Ostensibly it was for this purpose that questions were propounded to Mr. Hickman as to whether he knew of any law or regulation (1) which “would have made it improper for Mr. Schmidt to have accepted this butane truck into his garage for repair, provided the owners thereof had complied with all the safety regulations as promulgated by the State Fire Marshal” or (2) which “required that all fires of every kind and character be turned out in a garage when a vehicle with propane gas tanks is brought into the garage for repair, provided the precautions as provided by the State Fire Marshal’s regulations had been complied with by the owner.” The answers were expected, of course, to be negative.
We believe the questions as phrased do not actually reach the question of whether the state regulation imposes obligations on a garage owner accepting a propane truck for repairs. Beyond that, however, the fundamental objection to the questions, as we view them, is that they ignore the obligation imposed by the common law upon each and every person to exercise due and reasonable care under the circumstances which confront him.
Long ago this court ruled that tihe common law imposes liability upon a party who through negligence or carelessness causes or sets a fire which results in damage to the person or property of another. (Emerson v. Gardiner, 8 Kan. *452 [2d Ed. 303]; Johnston v. Marriage, 74 Kan. 208, 86 Pac. 461.)
Similar fault appears to inhere in the instruction which Schmidt requested after Hickman s proffered testimony was rejected:
“You are instructed that there is no law or any regulation by the State Fire Marshal which requires that all fires, open flames similar sources of ignition be extinguished before a truck with propane tanks is taken into a. garage.”
Assuming for the moment, however, that the testimony sought to be elicited from Mr. Hickman should have been admitted— or in the alternative that the instruction should have been given— we doubt it can be said that prejudice ensued.
Mr. Schmidt himself stated on the stand that he assumed there were state regulations with regard to a dangerous activity like this but that he never gave them any thought; that he was aware that propane was a dangerous substance, and valves can leak; that there is danger in working on propane trucks loaded with gas under pressure when they are taken into a building whose doors are closed, because leaks can always occur one place or another; that thirty years ago a fire had resulted when his people were working on the pump of a butane truck. Mr. Heim, Schmidt’s employee, also admitted he knew there was danger if he jarred anything loose and if gas escaped that it could very well contact the pilot light about twenty-five feet away.
It is next contended that the trial court erred in refusing to give Schmidt’s requested instruction on intervening cause. We believe this claim of error cannot be upheld. The court instructed at some length on the subject of proximate cause. We believe its instructions were adequate to cover the field in this area. The refusal of an instruction which has been requested is not error where the substance thereof is covered by other instructions. (Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 300 Pac. 1108; Marsol Credit Co. v. Blacker, 150 Kan. 477, 95 P. 2d 285.)
The plaintiff also argues that the trial court erred in failing to instruct the jury upon the issues and upon the burden of proof. We find difficulty in following this argument. The record discloses the corut included a separate instruction on burden of proof, which we deem adequate, and we judge that the issues were sufficiently outlined throughout the instructions as a whole. Moreover, we find nothing in the record indicating that Schmidt requested further amplification of the instructions given (Bank v. Abbott, 104 Kan. 344, 346, 179 Pac. 326) or that he filed any objections to the instructions which were given. K. S. A. 60-251(5) provides that no party may assign as error the giving of an instruction unless he specifically objects thereto and states the basis thereof, except where the instruction is clearly erroneous.
When Schmidt originated these proceedings, he named as parties defendant both Co-op and its insurance carrier, Farmers Elevator Mutual Insurance Company (herein called Farmers Mutual). The two defendants reciprocated by counter-claiming against Schmidt both for loss of the truck, for which Farmers Mutual had reimbursed Co-op under its insurance policy, and for Co-op’s own loss of time. At a later date, however, Farmers Mutual apparently had qualms about remaining in the lawsuit and it proceeded to file a motion for its dismissal. The motion was sustained and that ruling is also' assigned as error.
In our judgment the dismissal was incorrectly entered. This court has held, in an unbroken line of decisions, that an insurance carrier may be joined as a defendant in a tort action along with its insured, where the insurer has provided a liability policy to be filed with the State Corporation Commission under the provisions of K. S. A. 66-1,128 for the purpose of enabling the insured to obtain a certificate or license as a public, contract or private carrier of property. (Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Amon v. Lueck, 194 Kan. 89, 397 P. 2d 365.)
Farmers Mutual admitted, in response to plaintiff’s request for admissions, that it had filed its certificate of insurance with the Kansas Corporation Commission covering the operation of all motor vehicles operated by Co-op; that Co-op held KCC permit No. 26,552 for the use and operation of the truck; and that Holloway was operating the truck within the scope of his employment. In our view these admissions bring the case squarely within the boundaries of the doctrine espoused in the foregoing cases.
The record, it is true, shows that Holloway signed an affidavit to the effect he operated the truck without & KCC permit because it was operated locally and within a radius of 25 miles from Canton. We deem it immaterial that the truck was so employed. By Farmers Mutual’s own admission its liability policy covered all vehicles operated by Co-op, including the truck in question.
But was the dismissal of Farmers Mutual from the lawsuit prejudicial to Mr. Schmidt? We are hard pressed to understand how the continued presence of the insurance carrier in this case could have had any bearing on the ultimate issues of liability between Schmidt and his multiple adversaries.
We vaguely sense, as we read between the lines of Schmidt’s brief, that perhaps he considered his position would have been improved had the insurance company been kept in the case as one of his opponents. But our statute, K. S. A. 60-454, forbids the use of such an inflammatory word as “insurance” during trial of a damage action, and our cases have upheld the hypothesis that mention of the odious term may not be breathed, lest prejudice arise. In all candor we cannot say that under the present state of our law prejudicial error was committed in removing Farmers Mutual from the jury’s view.
Finally Mr. Schmidt contends the trial court erred in denying him the right to make the closing argument and in permitting Travelers Insurance Co., the City of Canton, Masonic Lodge No. 197 and Iowa Kemper Insurance Co. to take over the favored closing spot.
The journal entry reflects that prior to trial all parties stipulated that “the order for presentation of evidence should be Schmidt, Farmers Co-op, and lastly, Travelers, Iowa Kemper, Canton and Lodge No. 197.” Closing arguments appear to have proceeded in the same sequence, with Schmidt being allowed twenty minutes to open, Co-op then having forty minutes, Schmidt following with twenty minutes, and Travelers Insurance, et al., bringing up the rear with an allotted forty minutes, twenty-five of which were used. No objection to this order of precedence is shown to have been made by Mr. Schmidt, or by any other litigant.
In general it may be said that the party having the burden of proof is entitled to open and close when the time arrives for final arguments. This rule, as we stated in Railroad Company v. Johnson, 74 Kan. 83, 96, 86 Pac. 156, “is the orderly method of procedure universally adopted by the courts.”
The rule works smoothly when litigation is not complicated by cross demands, counterclaims or intervening causes of action. But where, as here, a trial is more complex, with the burden of persuasion resting on more than a single proponent, the issue is not quite so simple; in the absence of agreement the trial court must then be entrusted with discretion to designate the order in which final arguments may be presented. In 88 C. J. S., Trial, § 43, p. 107, we believe the rule is properly defined:
“. . . Where two actions between the same parties and involving the same transaction are consolidated for trial, plaintiff in each action being defendant in the other, it has been held necessarily within the discretion of the court to determine which party may open and close . . .”
Corroboration of this principle is found in White v. White, 99 Kan. 133, 160 Pac. 993:
“When a case involves two cases of action and the burden of the first is on the plaintiff and the burden rests on the defendant in the second, it is not important which litigant is permitted to open and close the argument to the jury so long as each has a fair opportunity to present and argue his side of the controversy.” (Syl. f 3.)
Certainly no abuse of discretion can be charged against the trial court in this instance. It was logical for the court, in the absence of objection, to determine that the closing arguments should follow the same pattern that the parties themselves had set for the presentation of their evidence.
Mr. Schmidt refers to the closing argument of counsel for the Travelers’ group as being prejudicial, yet we find nothing in the record to indicate that he interposed any objection thereto at the trial. Hence that matter is not subject to appellate review. (State v. Nusbaum, 52 Kan. 52, 34 Pac. 407; St. L., Ft. S. & W. Rld. Co. v. Irvin, 37 Kan. 701, 16 Pac. 146; Roda v. Williams, 195 Kan. 507, 515, 407 P. 2d 471.)
We conclude that the judgment of the court below must be affirmed.
O’Connor and Prager, JJ., not participating.
Fatzer, C. J., dissents from (2), (3) and (4) of paragraph 8 of the syllabus and the corresponding portions of the opinion.
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The opinion of the court was delivered by
Schroedeb, J.:
This is an appeal in an ad valorem tax action wherein Northern Natural Gas Company (plaintiff-appellant) sought to recover a portion of its 1969 taxes paid under protest in Rice County, Kansas, pursuant to the provisions of K. S. A. 79-2005. The district court of Rice County, Kansas, denied relief.
This case is a sequel to the one filed by Northern in the district court of Pawnee County wherein it challenged the order of the State Board of Tax Appeals determining the statewide 1969 ad valorem tax assessment of Northern’s interstate natural gas pipeline operating property located in Kansas.
Here Northern seeks to assert the same issues concerning the validity of the state-wide assessment determined in the Pawnee County case. (Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147.)
Northern in this action also challenges the valuation and assessment of its property in Rice County at the local level, which it claims results in discrimination against it.
All issues were determined adversely to Northern by the trial court.
In Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490 P. 2d 399, the court decreed that the validity of an assessment of property of an interstate public utility on a state-wide basis cannot be challenged in a protest action. The court held:
“Where the property of an interstate public utility is assessed by the State Director of Property Valuation, as authorized by K. S. A. 79-1404 Fifteenth, the procedure and method of judicial review provided in K. S. A. 1969 Supp. 74-2426 (now L. 1971, eh. 249, § 1) is exclusive and the assessment may not be challenged in an action to recover protested taxes under K. S. A. 79-2005 (now L. 1971, ch. 303, § 1.)” (Syl. f 1.)
As a result of Bender Northern is bound by our decision in Northern Natural Gas Co. v. Dwyer, supra, upholding the order of the State Board of Tax Appeals assessing Northern’s public utility property on a state-wide basis at 30% of justifiable value.
The trial court’s erroneous consideration of the issues asserted by Northern as to the state-wide assessment is a nullity. The trial court had no jurisdiction to consider it. Failure to cross-appeal the trial court’s denial of the Director’s motion to dismiss does not preclude the appellate court from raising the issue on its own motion. (Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P. 2d 828.) The issue presented on this appeal, therefore, is limited to matters concerning the assessment of Northern’s property at the local level in Rice County.
In the pretrial order filed May 28, 1970, in Rice County Northern contended the ad valorem taxes were assessed to Northern on a state-wide level of 30% of justifiable value, whereas all other property in Rice County was assessed at a level of 21% resulting in an imbalance of assessment and a lack of equalization.
It is to be noted no challenge was made concerning the parties defendant in this action. They include, among others, Jean Williams, County Treasurer of Rice County; Arthur Harvey, County Clerk, ex officio County Assessor; the Board of County Commissioners of Rice County, Dale Evans, Carl Frederick and John Burge, members of the Board of County Commissioners of Rice County; and Ronald F. Dwyer, Director of the Property Valuation Department of the state of Kansas.
On the issue material to this appeal the trial court made what it denominated “Findings of Fact and Discussion of Testimony” (filed June 12, 1970) where it said in part:
“Dr. Francis O. Woodard is the economist who, along with Mrs. Bonnie Hiclde, prepared the real estate assessment ratio study for the State of Kansas. The data which is deemed pertinent for this study is evaluated by county clerks in accordance with directives for valuation as advanced by Mr. Dwyer. It would seem that any final determination of what data would be used for the study would be made by Mr. Dwyer or his employees. Under date of April 9, 1968, Mr. Dwyer advised all county commissioners that his department was attempting to improve the study.
“Against this background, it is difficult to understand the attempt made by witnesses for defendants to discredit the validity of this study. The mechanics of the study was fully explained by Dr. Woodard. His testimony in support of the reliability of the study was believable. Against this, there was the unsupported assertion by the county clerk that in his opinion all property in Rice County was assessed at 30% of true value. The adverse testimony of Robert Taggart does not stand up under the most elementary analysis. The adverse testimony of John Green was burdened by lack of any real qualification of familiarity with real estate values in Rice County.
“Accordingly, it is found that the 1968 ratio study provides a meaningful guide, and in this case, the best evidence as to the relationship between assessed values of Rice County real estate and justifiable or true values of Rice County real estate. It is noted that the Board of Tax Appeals in Docket # 2206-9, Item 5, made a contrary finding. This may have been made on evidence similar to that introduced in this case. In 1968, Rice County real estate as a whole was assessed at 21% of fair value. Rural realty was assessed at only 19% of fair value and urban realty was assessed at 30% of fair value.” (Emphasis added.)
The trial court in what is denominated “Conclusions of Law” stated in part:
“The equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Section One of the Eleventh Article of the Kansas Constitution requires a uniform and equal rate of assessment and taxation. Even so, reasonable departures from uniformity and equality are excused as inevitable.
“Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117 (1969), does not control this case. That case is interpreted to mean that a difference in assessment ratios within a county of 14% of value for property generally as compared to 30% of value for a particular property is so disproportionate as to stongly suggest, and probably require a finding of, constructive fraud. There is nothing to tell a trial court how much closer the ratio of assessments must be before a finding of lack of constructive fraud should be made. In Beardmore, the variance was a little more than one to two. In this case now being decided, the variance is a little less than two to three. This difference between the two cases is weighed as being sufficient to warrant a finding that the variance between pertinent ratios in Rice County does not constitute constructive fraud. It is the judgment of the court that this is the proper finding based upon a full consideration of the case with its many complexities.
“A court is not empowered to grant a taxpayer relief in a tax protest action simply because it believes there are better methods to arrive at fair value than that employed by valuation officials if the value actually determined by the valuation officials appears to be within reason.
“The plaintiff has failed to meet his burden of proving by the most believable evidence that its 1969 Bice County valuation and assessment is illegal or excessive.” (Emphasis added.)
Northern contends its right to equal treatment under the Federal and State Constitutions was violated when the taxing officials knowingly assessed its property at 30% of justifiable value, while other property of the same class in Rice County was assessed at 21% of justifiable value. It points to the findings of the trial court which it says are clear except for the fact the trial judge did not grant the relief indicated to tíre taxpayer wronged by such discrimination.
It is clear that grossly excessive valuation of property for ad valorem tax purposes contravenes the due process clause of the Fourteenth Amendment to the United States Constitution and requires no showing of discrimination. (Great Northern Ry. v. Weeks, 297 U.S. 135, 80 L. Ed. 532, 56 S. Ct. 426.)
The right to equal treatment in matters of taxation is also a federal right. In Hillsborough v. Cromwell, 326 U. S. 620, 90 L. Ed. 358, 66 S. Ct. 445, relied upon by Northern, the court said:
“The equal protection clause of the Fourteenth Amendment protects the individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class. The right is the right to equal treatment. He may not complain if equality is achieved by increasing the same taxes of other members of the class to the level of his own. The constitutional requirement, however, is not satisfied if a state does not itself remove the discrimination, but imposes on him against whom the discrimination has been directed the burden of seeking an upward revision of the taxes of other members of the class. Sioux City Bridge Co. v. Dakota County, 260 U. S. 441, 445-447; Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247; Cumberland Coal Co. v. Board of Revision, 284 U. S. 23, 28-29. . . .” (pp. 623, 624.)
The right to equal treatment in matters of taxation is also a right protected by Article 11, Section 1 of the Constitution of the state of Kansas. The equal protection clause of the Federal Constitution and the state constitutional provisions pertaining to equality and uniformity of taxation are substantially similar, and in general what violates one will contravene the other. (Associated Rly. Equipment Owners v. Wilson, 167 Kan. 608, 208 P. 2d 604.)
This court has ample authority to grant complete relief to a taxpayer who feels aggrieved by reason of discrimination in a tax protest case under the provisions of K. S. A. 79-2005. Cases in which relief was granted are Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117; Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315; and Kansas City Southern Rly. Co. v. Board of County Comm'rs, 183 Kan. 675, 331 P. 2d 899.
It is Northern’s contention that the trial court’s findings leave no room for doubt that Northern was assessed knowingly at 30% of justifiable value while other taxpayers of the same class in Rice County were assessed at 21% of justifiable value; and that the Property Valuation Department in Rice County has clearly failed to carry out its statutory duty to equalize assessments.
The culprit in this case is the official state ratio study. On the record here presented its invalidity for valuation and assessment purposes in Rice County is demonstrated.
The 1968 Kansas Real Estate Assessment Ratio Study was compiled pursuant to K. S. A. 79-1435 to 79-1444, inclusive. The 1968 report in its foreword specifically states that it is “prepared for the purpose of reflecting the relationship of assessed value to sales price of real estate.” (Emphasis added.) Note this does not say it reflects the relationship of assessed value to the “justifiable value” (See K. S. A. 79-501 and K. S. A. 1968 Supp. 79-503).
In Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551, the assessment ratio studies for several years were introduced in evidence to establish the real estate ratio assessment for 1965. There was no evidence offered in support of the studies, and the county assessor testified he had little faith in them. The trial court refused under those circumstances to find there was a deliberate assessment of real estate at 21% of justifiable value, as the studies purported to show, and a judgment entered for the defendants was affirmed on appeal.
In Beardmore v. Ling, supra, a different situation confronted the court. There the trial court found that the median assessment ratio of real estate in Hodgeman County for 1965 was 14%. The evidence of the county assessor himself, fully supported this finding, which was said to be binding on appeal, and the court granted relief requested by the plaintiffs to recover the taxes paid under protest.
A review of the foregoing cases, together with others touching upon the use of the Kansas Real Estate Assessment Ratio Study, where attempts are made to establish discrimination in the valuation and asssesment of property, does not indicate that the validity of an assessment depends on the judgment of the trial court on matters of valuation.
This court has consistently adhered to the principle that the assessment and valuation of property are administrative functions, not judicial ones, and that courts will not substitute their judgment for that of the assessing authority in the absence of fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud. This principle has been based upon the considerations of constitutional law, on the nature of the assessment and valuation functions, and on an inherent lack of power in the courts. (Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982.)
On the record here presented the Rice County clerk-assessor, Arthur Harvey, testified that in Rice County both personal property and real property were appraised at 30% of justifiable value, notwithstanding the ratio study. He said the ratio study was not accurate. According to his testimony he considered the items enumerated in the statutes (K. S. A. 79-501 and K. S. A. 1968 Supp. 79-503). Mr. Harvey testified:
“. . . he considered the items enumerated in the statutes in making an appraisal and assessment of real property and said these items were classification of land, size of land, location, depreciation including physical deterioration or functional or economic or social obsolescence, cost of reproducing improvements, productivity of land, earning capacity, capitalization of net income, rental value, sale value in the open market, comparable values, and the selling price. That he had over 8,000 parcels to assess each year and that he did not personally make a study of each but used township board members and realtors or former realtors to assist him. That he changed reports to him from these helpers with the advice of the County Commissioners. He testified he used capitalization of net income in some instances but that he wasn’t clear on it. He stated he also used selling price in arrival at fair and justifiable value, and that he determined the weight to give selling price by talking to the County Commissioners and getting their opinion because they are the members of the board which might eventually determine it.”
Mr. Harvey identified a letter addressed to the Rice County Board of County Commissioners dated April 9, 1968, signed by Ronald F. Dwyer, Director of the Property Valuation Department, requesting cooperation to improve the ratio study, urging county officials to take an interest in the study. The letter was introduced as plaintiff’s Exhibit No. 55.
The foregoing testimony of Mr. Harvey was dubbed by the trial court as “the unsupported assertion by the county clerk,” after the trial court found that the “data which is deemed pertinent for this study [the official state ratio study] is evaluated by county clerks in accordance with directives for valuation as advanced by Mr. Dwyer.”
Mr. Harvey, the official county assessor of Rice County, testified:
“. . . I do not know whether or not my office, or the Board of County Commissioners of Rice County, Kansas, made any objection to the property valuation department for the ratio study for Rice County for the year 1968, even though we are requested to do this if we feel it is inaccurate.
"Q. (By Mr. Bush) When you reviewed the ratio study then, and you were convinced that the level of assessment in Rice County was 30%, did you then advise the state property valuation department that you felt the ratio study was inaccurate?
“A. I doubt if we did. I doubt if we did.”
It is readily apparent Mr. Harvey made no evaluation of the data deemed pertinent for the ratio study in accordance with directives for valuation advanced by the State Director of Property Valuation.
Ronald, F. Dwyer, the State Director of Property Valuation, under whose direction the ratio study is conducted, as a party defendant in this action, and represented in the trial court by counsel of the Department of Property Valuation and also by an assistant attorney general, attacks the ratio study as being unreliable to establish justifiable value for real estate in Rice County. His letter to the county clerk of Rice County, written prior to the initiation of this litigation, indicated his lack of confidence in the reliability of the ratio study and the failure of the county officials to cooperate in making the ratio study for Rice County meaningful.
The State Board of Tax Appeals, when it heard Northern’s appeal from the order of the Director’s state-wide assessment of Northern’s property, found:
“. . . The Ratio Study relates assessment levels with limited sales, but does not afford direct comparison with all elements included in justifiable value in accordance with K. S. A. 79-501 and 79-503, as amended, . . .”
The foregoing finding of the Board was before the trial court in this action.
Our court has repeatedly said that the ratio study, standing alone, is not conclusive evidence of justifiable value in establishing a basis for comparison in determining uniformity of values for assessment purposes. (Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791; Beardmore v. Ling, supra; Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149; and Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147.)
In the Panhandle case, above cited, the court said there are too many speculative elements involved and too few properties are subject to sale for the ratio study to be relied on for appraisal purposes.
The court in Panhandle recognized recent legislative enactment in 1969 (K.S.A. 79-503 [/], L. 1969, ch. 433, § 10) providing:
“. . . The ratio study shall not be used as an appraisal for appraisal purposes.”
The 1969 enactment was said at least to indicate that the legislature was not out of harmony with the decisions of this court.
Here the record made before the trial court establishes the urban real property assessment in Rice County was at 30% of justifiable value; the personal property assessment in Rice County was 30% of justifiable value; the oil and gas assessments in Rice County were at 30% of justifiable value; and public utilities in Rice County were assessed at 30% of justifiable value in accordance with the best judgment of the Director of Property Valuation. (See Northern Natural Gas Co. v. Dwyer, supra.)
As for “rural property” assessed in Rice County for the year 1968, the appellant must be content to rely only upon a median figure shown by the Kansas Real Estate Assessment Ratio Study for Rice County. This simply means that at least one-half of the property sold in Rice County and reported for the ratio study was assessed higher than the median ratio based upon sales.
In the year 1968 sales of “rural property” reported pursuant to statutory directives to the Director of Property Valuation were all inclusive. In 1969 the legislature changed the law. The change now appears as an amendment to 79-503 (L. 1969, ch. 433, § 10) wherein “rural property” is classified by dividing it into six catagories as follows: (1) Agricultural investment; (2) agricultural non-investment; (3) homesites; (4) planned subdivisions; (5) spot industrial and commercial; and (6) recreational. By this new enactment the legislature is undoubtedly attempting to clarify the confusion resulting from the sales ratio study reports made in prior years.
The record discloses the testimony of an expert real estate appraiser, Robert Taggart, employed by the Director of Property Valuation to analyze rural sales of real property which occurred in Rice County in 1968. An exhibit prepared under his supervision was put in evidence (Defendants’ Exhibit No. 57). The exhibit discloses some rural property was sold on long-term contracts at a relatively low rate of interest not commonly found in the market. Rural property sold to contiguous owners or to those seeking to enlarge their holdings or farming operations comprised twenty-five transactions. Transactions involving the sale of rural property within the family comprised fourteen transactions. These transactions accounted for the bulk of the fifty-seven rural property sales in Rice County in 1968.
The exhibit discloses a fluctuation in the relationship of assessed value to sales price for those tracts sold ranging from 1% to 65%.
Mr. Taggart testified his analysis showed these sales did not represent accurate market price and required adjustment. He made specific reference to instances of sales of adjoining landowners, within families, sales which changed property to higher and more profitable uses, trades, contract sales, and estate sales. He found fifty-two sales out of a total of fifty-seven, which in his opinion did not reflect fair market value. The total Rice County rural property sales used in the 1968 ratio study comprised only 1.33% of Rice County rural land. Of the 455,939 acres of taxable land in Rice County only 6,108 acres were sold in 1968 and reported in the ratio study.
A ratio study to be valid and meaningful as evidence in a case of this nature must begin with a sound premise. That is, the ratio study should reflect the relationship of assessed value of real property to the “justifiable value” of such real property, which is the statutory criterion upon which the assessment rate is to be applied.
The Kansas Real Estate Assessment Ratio Study for Rice County in 1968 reflected only the relationship of assessed value to sales price of real estate. Sales price is not “justifiable value,” which valuation and assessing officials of the state are required to determine after giving consideration to the mandatory statutory factors enumerated in K. S. A. 1968 Supp. 79-503, by applying administrative judgment. (See K. S. A. 1968 Supp. 79-1435, 79-1436 and 79-1437.)
In determining the validity of assessments of real property for taxation, the essential question is whether the standards prescribed by 79-503, supra, have been considered and applied by taxing officials, or intentionally and grossly disregarded. (Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59.) Compliance with the provisions of the statute are mandatory upon assessing officials in assessing real property, but the factors or combinations thereof to be considered in determining justifiable value may not all be pertinent to a specific property. What factors apply depends on the individual type of property, after consideration has been given to all of the factors. (Northern Natural Gas Co. v. Dwyer, supra.)
K. S. A. 1968 Supp. 79-503 (i) reads: “sale value on open market with due allowance to abnormal and inflationary factors influencing such values;”
“Sales price” does not embrace completely the single factor (i) in 79-503, supra.
It is apparent the legislature by enacting 79-503, supra, intended to avoid the effect of abnormal and inflationary factors which influenced the values of real property subject to ad valorem taxation. Ry “due allowance” in 79-503 (i), supra, the legislature intended that valuation and assessing officials in the exercise of their administrative judgment should discount abnormal and inflationary factors affecting the sales value on the open market of real property being valued and assessed for ad valorem tax purposes. (Northern Natural Gas Co. v. Dwyer, supra.)
The foregoing discussion has been focused upon only one of the mandatory statutory factors in 79-503, supra. What becomes of the other ten factors enumerated? Under Garvey these must all be considered and those pertinent to a given class of property must be applied. The concluding paragraph in 79-503, supra, reads:
“It shall be unlawful to determine justifiable value of real property in any manner other than authorized and provided for in this section. Any person authorized to assess or equalize property shall consider class, location, productivity, rental values and capitalization."
By using the word “shall” the legislature requires assessing officials to specifically consider class, location, productivity, rental values and capitalization. These factors all apply to rural property which is now classified as “agricultural investment” (L. 1969, ch. 433, § 10). It is defined as including those properties presently used and operated as units with a source of economic life from the production of agricultural products that originate from land productivity. By the foregoing it is apparent the legislature intended to command assessing officials to use the income approach, as well as other approaches, in determining the justifiable value of real property. Of course, application of the statutory factors to determine justifiable value falls within the domain of administrative judgment and discretion.
Dr. Francis O. Woodard, an economist, who is chairman of the Department of Economics at Wichita State University and Director for the Center of Business and Economic Research at the University, testified that he had been serving as the statistical supervisor for the preparation of the sales ratio study for Kansas; that he was responsible for compiling such statistical report in 1968; that the data is original material collected by the registers of deeds and county assessors in each county; that the data cards are forwarded to the Property Valuation Department where they are edited, as to whether they should properly be included in the study; and after this has been determined, the cards are sent to him for calculation.
He testified if the local official in the county knows of some reason which would require the exclusion of the particular sale from the ratio study, this should be indicated on the card in the appropriate place; that if the various transactions involve factors such as family sales, trades, enlargement of present operations, etc., the card should have it on there — “If the county official is energetic enough, yes, that would be on there;” that if the card comes to him he should have all the information the Property Valuation Department had in evaluating the card; but the Property Valuation Department considers some of the things on the cards and discards certain ones which are not sent to him.
The substance of his testimony is that if the local officials know factors affecting sales of real property, and if they make an entry on the card concerning it; and if the Property Valuation Department under the direction of the Director edits the cards and performs its function with respect to each sale, the cards he receives for statistical compilation have been purified for the study.
Dr. Woodard testified he was not an appraiser, but an expert economist. In his opinion, the sales ratio study “if properly conducted is the best measure of the level of assessment that is available on a testing basis.” He said: “I doubt if everyone knows all the facts behind every sale, but in my opinion the sales alone denote market value.” (Emphasis added.)
Northern asserts Dr. Woodard’s testimony to sustain its burden of proof to show discrimination against it by the assessing officials, but on this point the extent to which Dr. Woodard may have ventured in his testimony beyond the statistical compilation of sales data reported to him on the cards represents an attempt to repeal K. S. A. 79-501 and K. S. A. 1968 Supp. 79-503, which commands valuation and assessing officials of the state to value real property at its justifiable value for ad valorem tax purposes in accordance with its provisions.
The testimony of Dr. Woodard, which the trial court characterized as believable, fully explaining the mechanics of the study, was said by the trial court to support the reliability of the study.
Roth the Director and the county clerk-assessor of Rice County, whose compliance with K. S. A. 1968 Supp. 79-1435, 79-1436 and 79-1437 is required to give the Kansas Real Estate Assessment Ratio Study in Rice County any substance, reflecting the level of assessment to the sales price of real property, challenge the validity of the study for 1968 in Rice County, because it is premised upon the sales price of real estate sold in Rice County in 1968, and does not reflect the assessment level of real property in relation to “justifiable value” (defined by 79-503, supra).
The trial court found Rice County real estate as a whole in the year 1968 was assessed at 21% of “fair value.” That finding based upon minimal sales of real estate in Rice County in 1968 has not been equated to “justifiable value” (as defined in K. S. A. 1968 Supp. 79-503) by any evidence in the record whatever. We need not burden this opinion with an attempt to construe the trial court’s finding, because the trial court has placed its own construction on the finding by concluding that Northern has failed to meet its '“burden of proving by the most believable evidence that its 1969 Rice County valuation and assessment is illegal or excessive.”
If the trial court meant by its finding that Rice County real estate as a whole in the year 1968 was assessed at 21% of “justifiable value” (as defined in K. S. A. 1968 Supp. 79-503), there is no evidence in the record whatever to support such finding. On the record here presented the 1968 sales ratio study for Rice County would not support such finding.
Sales price of real property alone, which is the evidence in this case, does not establish “justifiable value” (as defined by 79-503, supra) for ad valorem tax assessment purposes. Nowhere in the record does the Kansas Real Estate Assessment Ratio Study for the year 1968 purport to embrace consideration of the mandatory factors enumerated in 79-503, supra, to reflect the level of assessment in relation to the justifiable value of real estate. Justifiable value (as defined by 79-503, supra) is the only valid premise upon which a meaningful assessment ratio study could be predicated as applied to the facts in this case.
K. S. A. 79-1439 (L. 1963, ch. 460, § 1) requires that all real and tangible personal property, which is subject to general property taxes, shall be assessed uniformly and equally at 30% of justifiable value. To grant Northern relief by assessing its property at less than 30% of justifiable value would discriminate against all taxpayers in Rice County who are assessed at 30% of justifiable value. Discrimination, in our opinion, is not rectified by creating more discrimination, as the facts in this case would indicate should Northern be permitted to recover the taxes it paid under protest.
We conclude that Northern has failed in its burden of proof to establish conduct by the assessing officials so arbitrary, oppressive and grossly discriminatory as to constitute constructive fraud voiding the assessment. (Sebits v. Jones, supra.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is the second time Marie Countryman, widow of M. B. Countryman, has appealed from an order denying her claims against his estate. The decision of the first appeal is reported as In re Estate of Countryman, 203 Kan. 731, 457 P. 2d 53. The parties have stipulated that the record in the prior proceeding should be considered in this proceeding, and we incorporate herein what we said in our prior opinion.
In that opinion we found error in the trial courts judgment as to two of appellant’s several claims and remanded the cause for further hearing on the merits of those two claims.
The first was her claim for pasture rent on the home place, of which she was the life tenant under the will, and which was used during part of the summer of 1964 to pasture cattle which had belonged to the decedent. These cattle were part of the residuary estate, in which the executors were to share individually.
After a hearing on remand the trial court filed a memorandum opinion, and as to this point entered the following findings and conclusions:
“1. At the time of his death on March 25, 1964, decedent M. B. Countryman, owned certain cattle listed in the inventory of his estate as follows:
184 cows
6 bulls
45 mixed
13 mixed and yearlings
100 calves on the cows.
“2. All of the cattle were bequeathed by the terms of the will to Wilber E. Countryman and Dorothy Lucas, whom he appointed as executors of his will.
“3. Claimant, Marie Countryman, was devised the Home place consisting of 1,160 acres, until her death or remarriage. She had about 18 head of her own cattle, pastured all over.’
“4. The cattle of decedent were pastured on the Home place; on the Horn property which belonged to decedent’s grandchildren, subject to a reserved life estate in decedent; and, on the Richolson property, in which decedent and claimant both had an undivided one-half interest. The Horn property consisted of 420 acres and the Richolson property of 280 acres.
“5. Of the above cattle about 86 head were pastured .on the Home place at the time of decedent’s death, and about that number remained there until June 21,1964.
“6. The 45 mixed cattle were soon sold, in April 1964, and claimant is not claiming rent for them. They had been kept in the feed lot.
“7. The other cattle remained on the property where they were until after the appointment of the executors. Mrs. Countryman continued to look after all the cattle. She was assisted by Donald Hebb, who was hired by Wilber Countryman and Dorothy Lucas, as individuals, to help look after the cattle.
“8. The Probate Court of Elk County appointed Wilber Countryman and Dorothy Lucas executors on May 11, 1964. At about that time there was a conversation in which claimant, the executors, and attorney Noel Mullendore took part concerning payment of rents. Mr. Mullendore said the executors might owe Mrs. Countryman rent, but he was not sure. Wilber Countryman and Dorothy did not at any time agree to pay claimant rent for the Home place.
“9. The pasture season in Elk County lasts from about mid-April to mid-October.
“10. The evidence is not very clear as to the times of events concerning the selection and purchase of cattle by Mrs. Countryman. As nearly as I can determine, at about the time of the appointment of the executors or prior thereto Mrs. Countryman had expressed a desire to purchase some of the cattle belonging to the estate, and the respondents agreed that she might do so. The cattle were under quarantine because of Bang’s disease and could not be sold on the open market. On about June 21, 1964, claimant, respondents and certain other individuals met together at the Home place. All the cattle belonging to the estate were brought together there and Mrs. Countryman indicated the ones she wished to buy. She selected 108 cows, with which there were 33 calves, and 3 bulls. These were ‘cut out’ or separated from the rest of the herd and those not selected were taken back to other pastures. The 108 cows with calves and the 3 bulls remained on the Home place thereafter. The parties did not agree as to the price to be paid by claimant at that time, and payment was not made then but the parties had agreed on the method by which the price would be established. In the latter part of July, 1964 Mr. Mullendore wrote a letter to Mrs. Countryman asking whether she desired to purchase the cattle, but in the meantime, Mr. Mullendore had not talked to respondents about it. Mrs. Countryman had the cattle appraised on about October 9, 1964, and soon afterward the price to be paid by claimant was determined. She paid for the 108 cows with 33 calves and 3 bulls in die early part of November, 1964.
“11. Wilber Countryman testified that additional calves were bom to the 108 calves after June 21, 1964, but that he did not know what happened to them. Mrs. Marie Countryman testified she did not get them. There is not sufficient evidence to solve the mystery of the missing calves.
“12. The executors paid the taxes on the Home place for the year of 1964 in the amount of $1,090.00.
“13. The fair and reasonable market, rental value of the Home place for pasture purposes for the pasture season of 1964 was $30 per head. On a per acre basis, the fair rental value was $4 per acre for the year.
“14. The exact amount of pasture land used by respondents is not clearly shown, but it would appear that about 910 acres of the 1,160 acres in the Home place were used.
“15. The executors took possession of only so much of the Home place as was necessaiy for the management of the estate and did not unnecessarily deprive claimant of the right to possess so much of the real estate as they did not need.
“16. The sale of the catde by respondents to claimant was completed on June 21, 1964. It had been agreed prior to that time that the price would be established by an appraisal by a commission man, Marion Ray. The evidence is conflicting, but it seems probable that, as testified by Wilber Countryman at the first trial, Mr. Ray was there twice: on June 21, 1964 and on October 9, 1964.
“17. The executors first took possession of 910 acres of the Home place on May 11, 1964, and retained possession thereof until June 21, 1964. From and after June 21, 1964, Marie Countryman had complete possession of the Home place.
“Conclusions of Law as to Claim foe Pasture Rent
“1. The burden of proof was upon the claimant to establish her right to recover rent and, if established, the burden was on her to show the basis for and the amount of such rent.
“2. Other than for statutory exceptions, to constitute a claim or demand against the estate of a decedent on obligation must have accrued during the lifetime of the decedent.
“3. An estate is not liable for contracts, express or implied, created by an executor or administrator in connection with, the management of the estate. The executor or administrator may be personally hable.
“4. An estate is not hable for the trespasses or other torts of an executor or administrator committed with managing the assets of the estate.
“5. ‘Rent’ is the compensation or return of value given at stated times for the possession of lands and tenements corporeal. (In re Perlmutter’s Will, 282 N. Y. S. 282.) Without possession there is no obligation to pay rent. (Grommes v. St. Paul Trust Co., 147 Ill. 634, 35 N. E. 820) ‘/F/ or the tenant can make no return for a thing he has not.’ (Hoeveler v. Fleming, 91 Pa. 322.)
“6. An executor has a right to the possession of his decedent’s real estate until the estate is settled, but in the absence of testamentary direction to the contrary, his right of possession is permissive only and the possessory rights of a devisee are not excluded until the executor has asserted his right to possession. (Quoted from the opinion of the Supreme Court of Kansas in this case.)
“7. In the absence of a stipulation to the contrary, one does not have to pay rent for possession to which he has a right by statute.
“8. In this case, the executors assert the right to possession of 910 acres of the Home place from the time of their appointment on May 11, 1964, until June 21, 1964, and at the latter date their possession ceased. The action of the executors in continuing to maintain cattle of the estate on the land of the decedent, as was done in this case, constituted ‘asserting their right to possession.’
“9. The executors did not bind the estate to pay rent.
‘TO. The executors could not bind the estate to pay rent.
“11. There was no contract for rent between claimant and respondents.
“12. There is no evidence of trespass by executors upon the Home place.
“13. If there were trespasses by the executors upon the Home place, the estate would not be liable for such.
“14. The claim for pasture rents by Marie Countryman should be denied. Costs should be assessed against the claimant.
“15. If claimant were entitled to recover rent against the estate, the reasonable rental for the 910 acres for the 41 days from May 11, 1964 until June 21, 1964, would be $588.24. However, if claimant were entitled to collect rent upon the Home place from the estate, then she would be liable for the taxes. The executors paid those taxes in the amount $1,090, and would be entitled to have that payment set off against Mrs. Countryman’s claim. Therefore, there would be nothing due to Mrs. Countryman from the estate.”
The critical finding, as we see it, is that the executors took possession of the pasture in question, and did so in their representative capacity. Their statutory right to assert such possession was recognized and discussed in our prior opinion in this case, and in cases cited therein, particularly Riling, Executor v. Cain, 199 Kan. 259, 428 P. 2d 789. In Riling we distinguished an executor’s permissive right to take possession of his decedent’s real estate from his duty to take possession of the personalty.
In addition to the “compelling reasons” for taking possession referred to in Riling, supra, 199 Kan. at 263, we believe the statute gives an executor discretion to assert the right during the period of administration — at the very least where it is reasonably related to the custody, management and preservation of the assets of the estate.
The duty here was to marshal the assets of the estate and to take possession, along with other personalty, of the cattle here in question. These particular cattle, it appears, were under quarantine, so the executors were required to keep them for the time being. The question was, where? They chose to use a portion of the home place, which they had a right to use under the statute. We believe this was a reasonable choice under the circumstances, and we concur in the trial court’s conclusion that their making it did not subject the estate to liability for rent.
What personal liability the executors might have incurred had their choice been dictated by whim or malice, or had they extended their occupancy beyond the territorial and temporal boundaries reasonably required to carry out their duties, is not before us.
The second issue heard by the trial court on remand was appellant’s claim to a tract of land known as the Richolson property. This claim was based on an alleged oral contract with the decedent whereby, if she would join in the execution of a deed to decedent’s grandchildren of a tract known as the Horn place, she was to have decedent’s undivided one-half interest in the Richolson property. This issue was remanded because the trial court had decided it on appellant’s deposition only, rejecting her offer of live testimony to amplify or explain what we regarded as meager details of the alleged contract.
Such testimony was received, and led to the following findings:
“1. Claimant and decedent were married on September 4, 1943. At that time decedent owned a considerable amount of property but claimant owned very little — probably about $100 in addition to her personal effects.
“2. By the terms of their antenuptial agreement, executed the date of their marriage, claimant and decedent agreed that real estate acquired during their marriage as a result of their joint efforts should be jointly owned and upon the death of M. B. Countryman claimant would have an undivided one-half interest therein. The agreement also provided that both parties would have the right to own, control and dispose of their separate property the same as if the marriage relationship did not exist.
“3. After the marriage, claimant worked hard upon the property of decedent and upon the property jointly acquired. She worked much the same as an able-bodied man would in the handling and caring for cattle.
“4. The parties carried out the terms of their agreement as property or income was acquired. That is, they divided up the income at the close of each year; and, they took the title to real estate according to the source of the funds used to pay for it, sometimes in the name of claimant, sometimes in the name of decedent, and sometimes in the names of both. Documentary evidence indicates that it was the practice of decedent to give claimant more than her one-half share of the income each year. This factual conclusion is orally disputed by claimant, but she did not come forward with a reasonable explanation that would indicate otherwise, although it appeared that records were available to show, in most instances, what the transactions between the parties were.
“5. On January 26, 1946, claimant and decedent acquired the real property referred to as the Richolson property. Each paid one-half the purchase price from his or her separate bank account and they took the tide in both their names as tenants in common.
“6. On May 1, 1948, decedent completed the purchase of the property known as the Horn place. The deed was dated October 29, 1947. Decedent paid for the Horn place from his own separate funds and claimant did not pay any part of the purchase price. Title was taken in the name of decedent alone.
“7. On July 31, 1948, decedent deeded the Horn place to his grandchildren. Claimant joined in the deed. The decedent reserved a life estate solely in himself, and did not include claimant as a life tenant.
“8. The deed was executed at the office of attorney Noel Mullendore.
“9. The terms of the antenuptial agreement provided that if either party desired to transfer or convey any property owned separately by him or her then the other party was obligated to join in the conveyance.
‘TO. Mrs. Countryman claims that she was promised decedent’s half interest in the Richolson property for joining in the deed. I do not find in the evidence clear, cogent and convincing proof that a meeting of the minds took place in this regard. The evidence does not show that there was consideration for such an agreement. As against the oral self-serving testimony of claimant, supported by that of her sister, the following facts appear, among others, in the evidence which seem to refute such a contention:
“a. Claimant failed to mention such an agreement or procure a deed to carry it out on July 31, 1948.
“b. Claimant failed to mention such an agreement at the time of the execution of the codicil on May 14, 1963.
“c. Claimant did not mention such an agreement to any other person or do anything consistent with such an agreement at any time during the lifetime of decedent.
“d. Decedent, in the presence of the claimant, during his lifetime, refuted the possibility of such an agreement in the office of attorney Noel Mullendore.
“e. As previously mentioned, the life estate was reserved solely in the name of decedent.
“11. If an agreement did exist whereby decedent promised claimant his one-half of the Richolson property, claimant fully knew her rights on July 31, 1948, and could have enforced the agreement at that time or, at least, during the lifetime of the decedent within the period of time limited by statute thereafter.”
As matters of law the court concluded, first, that appellant had failed in her proof of an agreement. In addition it concluded that there was no consideration for such agreement if any was made, that there was no resulting or implied trust, and that she was barred both by the statute of limitations and by laches.
In our view the first conclusion, based on finding number 10, was wholly sufficient to support the judgment. The court correctly applied a “clear, cogent and convincing” standard to appellant’s proof of the alleged oral contract as noted in our previous opinion in this case, 203 Kan. at 738-39, and cases cited. See also In re Estate of Billinger, 208 Kan. 327, 491 P. 2d 924. When appellant’s evidence of the agreement fell short of that standard, for reasons set forth in its findings, the trial court denied her claim.
This is a negative finding of fact in its purest form, and could be disturbed on appeal only if it were the result of “arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice.” American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561, Syl. ¶ 1. See also Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670, Syl. ¶ 6, and cases cited in our previous opinion herein, 203 Kan. at 739. Clearly none of these elements were present here, where the trial court gave sound reasons for its finding that appellant had failed to sustain her burden of proof.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Foth, C.:
This is an appeal by the defendant husband from a judgment granting a divorce to the plaintiff wife, and from those aspects of the decree dealing with alimony and the division of the parties’ property.
The record reflects the parties’ marriage in 1940, a joint struggle of twenty-nine years to raise plaintiff’s two sons by a prior marriage and a daughter born to the parties in 1951, and the accumulation of assets totalling $13,750, subject to outstanding debts. Such domestic difficulties as the parties may have had reached a peak in the winter of 1967-68. Plaintiff testified as to numerous quarrels, her husband’s threats, his drinking, her resulting fear of him and calls to the police, and the nervous condition engendered in both her and their daughter. Plaintiff moved from the home in the early spring of 1968, and this action was filed in July of that year.
Appellant’s answer denied all and contained a counterclaim alleg ing her removal from the home, that it was no longer possible for the parties to live together as man and wife, and praying that a divorce be granted to him.
During the year and a half of separation and the year the action was pending plaintiff went daily to appellant’s home where she cleaned house, washed clothes, ironed, did mending and made the bed. This continued until June 10, 1969, a month before trial, when she was told that appellant had changed the lock on the house. Three efforts at reconciliation were summarily rebuffed by appellant.
Appellant here contends that the trial court erred in granting a divorce because the plaintiff’s testimony was not corroborated as was required by former K. S. A. 60-1609 (d), in effect at the time the action was tried in July, 1969. The issue does not appear to have been pressed at trial. The bulk of plaintiff’s testimony dealt with the contributions she and her sons had made over the years to the support of the family unit through their work, and the receipt through her inheritance of the bulk of the parties’ assets. The trial court’s findings of fact deal almost exclusively with the details of the financial struggle; only in his conclusions of law does he make a general finding that plaintiff is entitled to a divorce. In the same vein, appellant’s testimony went largely to minimizing his current capability to pay alimony. As a result we find the trial court prefacing his findings of fact by the statement:
“This is a divorce action. Each of the parties employed counsel following a separation resulting from endless quarrels. The only real problem presented to the Court is a proper division of the property and alimony.”
Nevertheless, appellant cites our cases holding that corroboration was essential under the applicable statute and its predecessors, that courts could not waive this statutory requirement and that the corroboration must have pertained to the statutory grounds for divorce. Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Lindeman v. Lindeman, 195 Kan. 357, 404 P. 2d 958; Walton v. Walton, 166 Kan. 391, 202 P. 2d 197; Frye v. Frye, 134 Kan. 3, 4 P. 2d 415. Those principles were undoubtedly applicable. On the other hand, “This court has said that corroboration is not necessary to support every allegation throughout the course of mistreatment or every detail of a plaintiff’s testimony.” Gardner v. Gardner, 192 Kan. 529, 531, 389 P. 2d 746. The requirement was that . . the corroboration should be such as will tend to establish some fact or facts testified to by plaintiff so as to make her testimony more probable and legally acceptable.” Hoppe v. Hoppe, 181 Kan. 428, 431-2, 312 P. 2d 215. Such evidence could be circumstantial as well as direct, and if convincing to the trier of facts a judgment based thereon will not be disturbed on appeal. Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95. See also Carter v. Carter, 191 Kan. 80, 379 P. 2d 311; Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.
Here the challenged corroborating testimony was given by the Stockton chief of police. Essentially he testified to receiving marital disturbance calls from plaintiff on six or seven occasions during the winter of 1967-68; that she reported being afraid of appellant, who was said to be drinking heavily; that he responded to each call and talked to appellant on each occasion; that appellant, although he wasn’t drunk on any of these occasions, may have been drinking, may have been mad on occasion and may have argued. We believe this testimony, while meager, was sufficient to lead the trial court to conclude, as it obviously did, that plaintiff’s testimony as to the fact and cause of the parties’ quarrels was true. This was sufficient to justify the decree.
What we have said largely disposes of appellant’s claim with respect to the property settlement. Relying largely on Moran v. Moran, 196 Kan. 380, 411 P. 2d 677, he urges that because the corroboration was insufficient the divorce decree must fall, and the property division, which may have been based on an erroneous conception of his “fault,” must fall with it.
In Moran the trial court had awarded a divorce to each party, based on the fault of the other. This court found the claim of fault on the part of the husband to be wholly uncorroborated. Since it appeared that the amount of alimony granted the wife had been determined by the trial court in the light of its (erroneous) finding that the wife was entitled to a divorce, in remanding the case this court directed the trial court to reconsider the amount of alimony. The case is inapplicable because here we find no error in granting the divorce. In addition, there is no showing that the property division was influenced by a finding of fault or anything other than a weighing of the contributions made by the parties to the marital estate. No other basis for attack on this exercise of the trial court’s discretion is put forth or is apparent to the court. The property division must therefore stand.
Appellant’s final contention is that the trial court erred in granting judgment to plaintiff in the sum of $1,800, denominated “tem porary support.” The petition contained no prayer for temporary support or temporary alimony, and the plaintiff made no application for any during the pendency of the action. A pre-trial conference was held on the same day as and immediately prior to the trial itself, at which the following colloquy occurred:
“The Court: Do you agree that $13,750.00 is substantially the value of the assets in this case?
“Mr. Krysl (plaintiff’s counsel): I think that sure covers it all.
“Then, against that we have indebtedness — excuse me, Judge, there isn’t quite $2,000.00 in savings. Mrs. Marshall told me that there is $600.00 left in tile savings account. She spent the rest of it. We can account for it, Judge. I would say this for the records that she hasn’t had any money from the defendant in ’68 or ’69. In 1968 she had $250.00. In 1967 she had a total of $1,075.00 that he gave her to run the house and so forth. She spent most of that for support.
“The Court: The case was filed on what date?
“Mr. Krysl: July, I believe, last year; it has been on file 12 months.
“The Court: It is agreed he has not paid her any support money during the twelve months.
“Mr. Krysl: That is right. She has been employed during the time.
“The Court: He has a duty to support her. I am going to charge $1800.00 for her support, which taken off that $2,000.00, makes the figure $200.00.”
The result was the following paragraph in the journal entry:
“9. Defendant having paid no temporary support to plaintiff, she is hereby awarded judgment against defendant in the sum of $1800.00 for temporary support during the pendency of this action.”
From the foregoing it is difficult to determine whether the amount awarded was in fact intended to be temporary support, or whether it was either permanent alimony or part of the property settlement. In any event the court’s action must be based on statutory authority. Thus we have said:
“The power to grant a divorce is statutory and does not come through the common law. . . . The doctrine of alimony is based upon the common-law obligation of the husband to support the wife, which is not removed by his misconduct. The right of the courts, however, to grant alimony is statutory, and the general rule is that courts of equity have no power to decree permanent alimony in the absence of statutory authority.” (Hendricks v. Hendricks, 136 Kan. 69, 70, 12 P. 2d 804.)
We have also said, many times, that a trial court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and that its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse. See, e. g., Folk v. Folk, 203 Kan. 576, 455 P. 2d 487, and cases cited therein.
Nevertheless, the court’s action must comply with our statutes. It may, while the action is pending, provide for “the support, if necessary, of either party. . . .” (K. S. A. 60-1607 (c).) In its final decree it may divide property “in a just and reasonable manner,” (K. S. A. 1970 Supp. 60-1610 (b)) and may award either party future support “in such amount as the court shall find to be fair, just and equitable under all of the circumstances.” (Id., (c).)
On this record there was no showing of “necessity” for temporary support — instead, the record indicates that the award and its amount were both plucked out of the air by the court on its own motion, and only on the day of trial. Hence, despite the label attached to it, the $1,800 could not have been “temporary support.”
The trial court’s rationale is at best unclear, but apparently the award stemmed from a conviction that a husband has an unqualified duty to support his wife, to be enforced whether the wife requests it or not. This concept does not square with the provisions of 60-1610 (c) authorizing an award of alimony to either party regardless of fault, as explicated by such cases as Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; and Saint v. Saint, 196 Kan. 330, 411 P. 2d 683. Even so, such an award must be based on some evidence. Compare Craig v. Craig, 197 Kan. 345, 416 P. 2d 297, with Brooker v. Brooker, 199 Kan. 783, 433 P. 2d 363. As noted above, there was no evidence here supporting the figure of $1,800.
This portion of the judgment might be sustained as part of the property settlement if it were possible to infer that it was so intended. The record, however, does not seem reasonably susceptible to such interpretation. We are therefore forced to conclude that the item of “temporary support” is without statutory or evidentiary basis, and its inclusion in the judgment was error.
Accordingly the judgment is reversed as to the award of temporary support found in paragraph 9 of the journal entry. In all other respects the judgment is affirmed.
APPROVED BY THE COURT.
Owsley, J., dissents on the ground that the judgment should be affirmed in toto. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against the respondent, Michael J. Waite, of Leavenworth, an attorney admitted to the practice of law in Kansas in 1978.
A panel of the Kansas Board for Discipline of Attorneys held a hearing on the formal complaint on September 12, 2006. The respondent appeared pro se. In its final hearing report, the panel found that respondent had violated Kansas Rules of Professional Conduct (KRPC) 1.5 (2006 Kan. Ct. R. Annot. 401) (fees), KRPC 1.15 (2006 Kan. Ct. R. Annot. 435) (safekeeping property), and KRPC 1.16 (2006 Kan. Ct. R. Annot. 448) (terminating representation), as well as Kansas Supreme Court Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (failure to file an answer to the formal complaint). The panel recommended the imposition of a 1-year suspension from the practice of law. The respondent did not file exceptions to the final hearing report.
FACTS
The complaint herein arises from a contract in professional services to be rendered by respondent to James Jay Wright. The contract provides as follows:
“ATTORNEY-CLIENT CONTRACT
“This Agreement, made this 22nd day of May 2003, by and between James Jay White, hereinafter referred to as Client, and Michael J. Waite, Attorney at Law, hereinafter referred to as Attorney:
‘WITNESSETH: That for and in consideration of the mutual promises herein made by the parties hereto, it is mutually agreed as follows:
“1. That client hereby employs and retains said Attorney to defend Client on one criminal case involving the charge of Murder in the Second Degree in the District Court of Leavenworth County, Kansas.
“2. Attorney hereby accepts said retainer and employment and agrees to render diligent and faithful service in the premises to the best advantage and interest of the Client.
“3. Client agrees to pay Attorney, for his services to be rendered pursuant to said employment, the sum of $10,000.00. Said fee to be paid as follows:
a) $1,000.00 down as partial retainer
b) $500.00 per month for eighteen (18) months until $9,000.00 balance is paid in full.
c) Said funds to be paid out of account # [account number deleted] Fort Leavenworth Credit Union.
Any additional fees to be determined at a later date.
“4. Client agrees to pay all actual necessary expenses incurred by Attorney in connection with Court action.
“5. Client also agrees to allow Attorney access to his account to pay any future expense of client. In particular, Attorney is allowed to retain and pay for the services of a private psychiatrist/psychologist for a competency and sanity exam.
“In Witness Whereof, said parties have hereunder set their hands this 22nd day of May 2003.
“James Jay White, Client
“Michael J. Waite, Attorney”
The panel found that between May 22, 2003, and May 3, 2004, respondent withdrew $20,950 from the designated account of which he deposited $1,850 in the client’s commissary account at his place of detention. After the client learned respondent had exceeded the $10,000 contract authorized withdrawals, he terminated the fee contract. Respondent then refunded $4,040 to the client. This left respondent with a net $14,860 from the client. No expenses have been claimed. The representation was terminated prior to trial or plea with minimal activity on respondent’s part. The respondent testified that under the contract he was entitled to the $14,860. The panel concluded that $10,000 was the maximum fee to which respondent was entitled.
The panel made detailed and well-reasoned findings of fact and conclusions of law. Based thereon, the panel recommended a 1- year suspension with the condition that restitution in the amount of $4,860 be paid to the client. Normally the final hearing report would be substantially reproduced in this opinion. However, because of an unusual subsequent development, little would be gained by its inclusion herein.
Shortly before the February l, 2007, hearing before this court, the following stipulation was filed by the parties:
“STIPULATION
“The Office of Disciplinary Administrator and the Respondent enter into a Stipulation as follows:
“1. The Hearing Panel of the Kansas Board for Discipline of Attorneys held a hearing on September 12, 2006.
“2. The Hearing Panel submitted a Final Hearing Report finding that the Respondent violated KRPC 1.5, 1.15, and 1.16.
“3. The Hearing Panel recommended that the Respondent be suspended from the practice of law for a period of one year.
“4. The Respondent has taken no exceptions to the Final Hearing Report.
“5. The Respondent has been disciplined by published censure, supervised probation and two informal admonitions previously.
“6. The Petitioner and Respondent stipulate that they have held a discussion wherein the parties agree that indefinite suspension is a more appropriate sanction than the recommendation of the Hearing Panel and the parties agree to recommend indefinite suspension to this Court on February 1, 2007.
“7. The Respondent and Petitioner stipulate that the Respondent has significant health problems which he must address and that a suspension of one year will be insufficient to address the health problems and insufficient to protect the public.
“8. The parties stipulate that there are three other cases pending, none of which involve dishonesty or misuse of client money and the parties stipulate that an attempt will be made to resolve these three additional cases in an informal manner.
“9. The Respondent and Petitioner are well aware that this Court is not bound by this Stipulation or by any other recommendation which may be made to this Court and that the Court will determine the appropriate discipline after consideration of all information submitted to the Court.
This Stipulation was entered into on this 24th day of January, 2007 and respectfully submitted to the Court.
“Frank D. Diehl, #09392 Deputy Disciplinary Administrator
“Michael J. Waite,#09763 Respondent”
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Violations of KRPC 1.5, 1.15, and 1.16 as well as Supreme Court Rule 211 (b), as found by the panel, have been established. Further, respondent has filed no exceptions to the final hearing report. Therefore, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2006 Kan. Ct. R. Annot. 295); In re Devkota, 280 Kan. 650, 655, 123 P.3d 1289 (2005).
As previously noted, the panel recommended the discipline of a 1-year suspension with the condition that respondent be required to make restitution to the client in the amount of $4,860. In the subsequent stipulation, the parties agree that indefinite suspension is the appropriate discipline. Recommendations as to the appropriate discipline to be imposed are advisory only, and the court may impose sanctions greater or lesser than the recommendations. Supreme Court Rule 212(f) (2006 Kan. Ct. R. Annot. 295).
We conclude that the appropriate discipline to be imposed is indefinite suspension with the condition that respondent must show that $4,860 in restitution has been paid to the client, James Jay White, before any application for reinstatement will be considered.
It Is Therefore Ordered that Michael J. Waite be indefinitely suspended from the practice of law, effective tire date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243).
It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
Davis, J. not participating.
Buser, J., assigned. | [
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The opinion of the court was delivered by
NUSS, J.:
This is a personal injury and wrongful death action arising out of a pickup truck rollover. The district court held that the pickup was personally owned by the driver s son and therefore not covered by the son’s corporation’s insurance policy issued by Canal Insurance Company (Canal). As a result, the court granted Canal’s motion for summary judgment against plaintiff Warner. The Court of Appeals affirmed in Warner v. Stover, No. 94,766, unpublished decision filed June 30, 2006. We granted Warner’s petition for review pursuant to K.S.A. 20-3018(b).
The sole issue on appeal is whether the district court erred in granting summary judgment to Canal. We hold that tire court so erred; we reverse and remand.
FACTS
On December 25, 2002, Arthur Neil Warner (Warner), his wife Patricia Ann Warner, and Vivian Dunn were passengers in a 2002 Ford F250 pickup truck driven by Robert Harry Stover (Robert). When the pickup was just east of Dalhart, Texas, it hit a patch of ice, slid into a ditch, and rolled twice. Patricia Warner was killed, and Warner suffered injuries.
The pickup’s certificate of title and registration listed only Robert’s son, Charles Stover (Stover). Farmers Insurance Company (Farmers) provided insurance coverage for the pickup, the only vehicle insured under the Farmers policy. The policy’s named insured was Stover. Stover reported the accident to Farmers, which eventually paid its policy limits of $25,000 to Warner for his injuries and $25,000 for his wife’s wrongful death.
Stover is also the president and owner of Western Liquid Express, Inc. (Western), of Topeka. Western’s trucks transport building materials, farm machinery, and parts. Western’s vehicles are covered by insurance with Canal Insurance Company in the amount of $1,000,000 per occurrence.
Warner, individually and on behalf of the surviving heirs of his deceased wife, filed an action against Robert and Canal for his personal injury and her wrongful death. Canal was allegedly a proper party pursuant to K.S.A. 66-1, 128 and case law interpretations of the statute. Warner alleged, among other tilings, that Canal insured Western’s vehicles and that Western’s policy insured the pickup at the time of the accident. As partial support, Warner alleged that the pickup was being operated pursuant to a Kansas Corporation Commission (KCC) permit issued to Western.
At the close of discovery the district court eventually granted Canal’s motion for summary judgment. The court concluded that Canal’s insurance policy only provided coverage for vehicles owned by Western, that the truck was “owned and titled” to Stover personally, and that consequently no Canal coverage existed.
The district court later denied Warner’s motion for reconsideration, again specifically addressing the ownership issue: “The bottom line, in the Court’s view, is that ownership of the vehicle controls the coverage question and vehicle ownership in Kansas is controlled by title and registration. In the case at bar, that is with the individual defendant alone.”
Trial proceeded against Robert and judgment was entered against him in the amount of $607,990.80. On June 30, 2006, our Court of Appeals affirmed the district court’s summary judgment.
ANALYSIS
Issue: The district court erred in granting summary judgment to Canal because genuine issues of material fact existed.
Warner argues that the district court, as affirmed by the Court of Appeals, relied upon disputed material facts in granting summary judgment. Canal vigorously denies any genuine issue of material facts.
Our standard for reviewing summary judgments is well-known:
“Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply tire same rules and where we find reasonable minds could differ as to the conclusions clraionfrom the evidence, summary judgment must be denied.” [Citations omitted.]’ ” (Emphasis added.) State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
As summarized by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 91 L. Ed 2d 202, 106 S. Ct. 2505 (1986), in this case we must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
We continue our analysis by examining the language of the Canal insurance policy. The interpretation is a question of law which we make de novo. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 89 P.3d 536 (2004). In that examination, if the policy language is clear and unambiguous, it must be construed in its plain, ordinary, and popular sense and according to the sense and meaning of the terms used. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003).
According to Section A.I of the insurance policy, Canal agreed:
“The company will pay on behalf of tire insured all sums which the insured shall become legally obligated to pay as damages because of
bodily injury or property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, of an owned automobile or of a temporary substitute automobile . . . .”
Section A.III of the policy defined “insured” as the named insured or any other person while using an owned automobile with the permission of the named insured.
Section A. VII defined “Owned automobile” as “(a) an automobile which is owned by the named insured and described in the declarations; or (b) an automobile ownership of which is newly acquired by the named insured during the policy period.”
Under the plain language of the policy, tire named insured is Western; Robert initially qualifies as an insured because indisputably he was using the pickup with the permission of Western. The question remains whether Robert was using a Western “owned automobile.” While under the plain language of the policy the district court was correct in holding that “ownership” was important to the coverage issue, we conclude the court was incorrect in holding that “title and registration” is dispositive of the ownership question and in holding that Stover, personally and absolutely, owned the “owned automobile.” As we stated in Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 84, 211 P.2d 113 (1949): “A person may actually own an automobile and thus have an insurable interest in it and yet not have legal evidence of title.”
More specific guidance on ownership is contained in Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 49 P.3d 511 (2002). There, while driving a patrol car, a Jefferson County deputy sheriff collided with an uninsured driver. The deputy brought an action against the county’s automobile insurance carrier to recover uninsured motorist benefits. The insurance carrier argued that its named insured, “Jefferson County, Kansas,” did not actually own the patrol car because the title listed “Jefferson County Sheriff Dept.” as the owner. 274 Kan. at 234. Despite the carrier’s assertion that “ownership and legal title are presumed to be one and the same concept in defining the scope of insurance coverage” (274 Kan. at 234) and despite the sheriff s department’s listing on the title, the Tyler court concluded that the county’s insurance policy provided coverage, citing Weaver v. Hartford Fire Ins. Co., 168 Kan. 80.
The Court of Appeals distinguished Tyler by noting that there the patrol car was actually listed in the county’s policy as a “covered vehicle.” By contrast, the Canal policy did not specifically list the pickup as a covered automobile. Slip op. at 6. We find this distinction to be potentially relevant to a trier of fact on the issue of ownership, but not dispositive on that issue in a motion for summary judgment. An endorsement to the Canal policy, Form MCS-90, specifically addresses the impact of a vehicle’s nonlisting, providing in relevant part:
“In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility of requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.” (Emphasis added.)
We acknowledge a substantial amount of evidence suggests Stover’s personal ownership of the pickup. Farmers insured the pickup, and only the pickup, under a policy showing Stover as the named insured. The accident report shows only Farmers as the pickup’s insurance carrier. Stover reported the accident to Farmers which paid its policy limits. The certificate of title shows Stover’s name, not Western’s; indeed, Stover testified that he owned the pickup. He also testified that the pickup was not used in Western’s business and that the day of the accident, the pickup was being used for personal business — transporting people to a K-State football bowl game.
While the certificate of title shows Western’s address, Stover testified that he often used Western’s address as his own. Additionally, the named insured on the Canal policy is Western Liquid Express, Inc., and the pickup was not identified on the policy’s schedule of equipment.
On die other hand, when resolving all facts and inferences which may reasonably be drawn from the evidence in favor of Warner, evidence suggesting Western’s ownership of the pickup is sufficient to prevent us from declaring that the evidence is so one-sided that Canal must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251.
The transfer of title from Foster Ford-Mercury as the pickup dealer to the purchaser, Charles Stover, in October 2001 listed Western’s address, -not Stover’s. The later accident report shows the pickup owner as “Charles Stover Western Liquid Express,” and lists Western’s address. Farmer’s policy, while specific to the pickup, also showed Western’s address.
Additionally, in November 2001, Stover applied for a “title-apportioned registration” for the pickup with the Kansas Department of Revenue. While he listed his personal address, Western’s Carrier Account Number and its MC number with the KCC appear on the application. Because Stover testified that had previously obtained such prorate license tags on 8-10 of his personal vehicles through out the years in order to save sales tax, a reasonable jury could find that this particular application was not by mistake.
The following month, December 2001, Western faxed its “truck list” to the KCC as Western’s 2002 request for KCC authorization and cab cards for the listed vehicles. See K.S.A. 66-1,139. Included among Western’s 23 vehicles was the pickup. In early January 2002, the KCC faxed a responsive “cab card” letter to Western listing Western’s 23 vehicles which were KCC-authorized to operate in 2002; the pickup was included. In a later affidavit to the district court, Stover characterized Western’s listing of the pickup with the KCC as a Western mistake. He attached a copy of a faxed reply sent within 30 minutes of his receipt of the KCC fax, asking for a vehicle to be deleted from Western’s list and another one to be added. While his affidavit states the pickup was to be deleted and a Mack truck to be added, his fax shows the word “delete” with an arrow apparently pointing to a 1984 Mack truck; the accident pickup is circled.
According to a KCC affidavit attached to Warner’s motion for reconsideration, the KCC instead deleted the 1984 Mack truck and added a different Mack truck “[pjursuant to the instructions from Western” in the fax. The affiant, the KCC’s Kathy Swank, declares that the pickup remained on the KCC-authorized list because Western’s fax “did not deal with the [pickup] nor did it contain any instructions relating to the [pickup].”
Swank’s affidavit also revealed she had reviewed Western’s files which disclosed that as of the date of the accident, the pickup was still listed as an authorized vehicle under Western’s KCC authority; that as of the date of the accident, the insurance company listed with the KCC for Western was Canal; and that the official truck list filed by Western (in December 2001 for the year 2002) shows that Western owned the pickup and that it should be included as an authorized vehicle under the KCC authority for Western.
We acknowledge Stover alleges that his January 2002 fax was his attempt to correct Western’s mistake and to have the pickup deleted from Western’s list of KCC-authorized vehicles. Nevertheless, Swank’s affidavit also discloses that the renewal truck list filed by Western for 2003 — received by the KCC on December 30, 2002, 11 months after Stovers correcting fax — still listed the pickup as one owned by Western that should be listed under Western’s KCC authority for 2003. Because there apparently was no testimony regarding the intent behind this latter listing of the pickup, Canal speculated during oral arguments that this was yet another Western mistake. However, it also candidly acknowledged that the listing possibly could instead be viewed as a ratification of the earlier Western “mistake.” Ratification is a question of fact. Cf. Cherryville Grain Co. v. First State Bank of Edna, 25 Kan. App. 2d 825, 830, 971 P.2d 1204 (1999); see also Romero v. Bank of the Southwest, 135 N. M. 1, 6, 83 P.3d 288 (2003) (ratification is best reviewed as an issue of fact). As a result, the Court of Appeals’ conclusion that the pickup “once had been mistakenly listed with the KCC as a business vehicle,” is a factual determination based on conflicting evidence that should not be made when reviewing a summary judgment. Slip op. at 7.
Swank’s affidavit also revealed that the pickup was not deleted from the KCC list of authorized vehicles until December 29,2003, when the KCC received the pickup-less 2004 renewal list from Western. Indeed, the record on appeal contains a copy of an internet motor carrier search in March 2003 for Western that listed the pickup as one of the vehicles under Western’s KCC permit for 2003. Consequently, as Swank’s affidavit declares, at tire time of the accident in 2002, the pickup was still operating under a prorated license issued under Western’s KCC motor carrier identification number.
Canal objected to the Swank affidavit at the district court level, particularly because of its alleged untimeliness. During oral arguments, however, it conceded that this court could consider it on appeal. Moreover, while a Canal representative testified that Canal was unaware that the pickup had ever been listed with the KCC as a business vehicle or that it operated pursuant to a Kansas prorate tag, this testimony merely demonstrates that genuine issues of material fact clearly exist on die subject of the pickup’s ownership.
Canal also argues as an apparent fallback position that no genuine material issue of fact remains on the subject of whether the pickup was actually used in Western’s business. In particular, Canal argues: “In order to effect the provisions and a claim under this direct action statute [K.S.A. 66-1,128], Warner was required to prove that Stover was operating the Ford F-250 vehicle as a motor carrier in the business of Western Liquid Express, Inc., at the time of the accident. Sterling v. Hartenstein, 185 Kan. 50, 341 P.2d 90 (1959).” (Emphasis added.) Canal points to the uncontroverted testimony of Robert and Stover about the lack of business use, argues that consequently no insurance coverage can possibly be found, and concludes that summary judgment is therefore proper.
We begin by observing that no “business use” requirement appears in Canal’s policy. It plainly provides:
“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
bodily injury or property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance, or use ... of an owned automobile.” (Emphasis added.)
As for reliance upon Sterling, Canal’s assertion is an overreading of that case, as the following background demonstrates. Under K.S.A. 66-1, 128, a motor carrier of property such as Western must file with the KCC a KCC-approved liability insurance policy, or else certification of such insurance, before being able to obtain an operational certificate, permit, or license from the KCC. A plaintiffs ability — based upon K.S.A. 66-1, 128 — to bring a direct action against an insurance company before judgment is rendered against its insured motor carrier had been judicially created in Dunn v. Jones, 143 Kan. 218, 53 P.2d 918 (1936). Nineteen years later in Johnson v. Killion, 178 Kan. 154, 283 P.2d 433 (1955), as the Sterling court itself observed, this court addressed the situation where the KCC had issued the permit and insurance had been obtained, but the policy had not been filed with the KCC. This court nevertheless held that a direct action could be brought against tire defendant insurance carrier.
The Sterling case 4 years later addressed a deficiency in addition to the one described in Johnson: The motor carrier was not only without a permit or license from the KCC, but its insurance policy also had not been filed there. The trial court dismissed tire insur anee carrier as a defendant, holding it was not a proper party under K.S.A. 66-1, 128. In reversing and remanding, this court said:
“[A]n insurance carrier furnishing liability insurance to a motor carrier may be joined with such motor carrier as a party defendant and held directly hable to a plaintiff injured by the negligent operation of a motor carrier on the highways of this state, even though such motor carrier does not have a permit or license from the State Corporation Commission under the Public Motor Carrier Act, where:
“1. The motor carrier was required under the Public Motor Carrier Act of this state to have a license,
“2. The policy of insurance issued the motor carrier was a liability insurance policy of the type required of a licensed motor carrier in the State by G.S. 1957 Supp., 66-1, 128, and
“3. The motor carrier was at the time of the accident being operated on the highways of this state in the business for which a license or permit was required, and in contemplation of which the insurance policy was issued by the insurance carrier for compliance with the Public Motor Carrier Act.” (Emphasis added.) 185 Kan. at 59.
The Sterling court’s ruling was in direct response to the plaintiff s petition alleging that the truck was being used in the defendant’s dairy business at the time of the accident. The court merely reinstated the direct action against the insurance carrier and ordered that a copy of the insurance carrier’s policy be produced to the plaintiff. In short, the court simply did not reach Canal’s issue: whether business use was a requirement for insurance coverage.
Canal’s argument also is inconsistent with the public protection principle contained in the motor carrier statutes. See K.S.A. 66-1, 128 (No operating permit shall be issued to a motor carrier unless and until applicant has filed with the KCC a liability insurance policy which adequately protects the interest of the public.). See also K.S.A. 66-1, 126 (person who operates as a carrier without first obtaining a certificate, permit, or license shall be guilty of a misdemeanor). We have interpreted K.S.A. 66-1, 128 to expand a plaintiff s rights to proceed directly against a motor carrier’s insurance company. See Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976). We will not, however, judicially constrict a plaintiff s insurance contract-based ability to recover under such a policy. Cf. Farm Bureau v. Mut. Ins. Co. v. Old Hickory Cas. Ins. Co., 248 Kan. 657, 659-60, 810 P.2d 283 (1991) (“When an insur anee contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made.”).
While we reject Canal’s argument that lack of business use is dispositive of the issue of insurance coverage, we acknowledge that evidence of business use — or lack thereof — can be relevant to the issue of pickup ownership and may be considered for that reason by the trier of fact on remand.
In our view, summary judgment was granted prematurely. We invite the parties to more fully develop and clarify the legal theories and defenses which they believe may control this case including, but not limited to, those that may be suggested by policy endorsement Form MCS-90. We further invite the parties to clearly notify the district court of the same.
The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed, and the case is remanded to that court for further proceedings.
Luckert and Johnson, JJ., not participating.
Larson, S.J., assigned.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Rosen, J.:
On Februaiy 13, 2008, when Louie R. Martin was released on postrelease supervision, he was given an expiration of postrelease supervision date of June 29, 2009. Shortly after his release, the Kansas Legislature passed an amendment to K.S.A. 21-4608, which impacted Martin’s previously imposed postrelease expiration date by extending it nearly 11 years. After the enactment of the 2008 amendment to K.S.A. 21-4608, the Kansas Parole Board (Parole Board) informed Martin that his new postincarceration supervision discharge date was April 13, 2020. Martin filed a petition seeking a writ of habeas corpus, which was denied by the district court. Martin appeals.
Procedural History
Beginning in 1988, Martin committed a series of unrelated criminal offenses in three Kansas counties. These sentences were combined into an aggregate sentence of 8- to 30-years, under the indeterminate sentencing scheme in effect at the time. The Kansas Department of Corrections calculated a sentence-begins date of November 8, 1990.
• Because Martin’s convictions included a conviction for aggravated battery, which would be a level 4 nondrug felony under the sentencing guidelines, pursuant to K.S.A. 21-3414(a)(l)(A), the Department of Corrections determined that he was not eligible for retroactive application of the sentencing guidelines. Under the indeterminate sentencing scheme, Martin was eligible for parole after 4 years and for conditional release after 15 years. Parole is discretionary with the Parole Board, but conditional release is mandatoiy. Martin would have remained on parole until the expiration of his 30-year sentence or until otherwise discharged by the Parole Board.
While serving this aggregated sentence, Martin was convicted of a new crime of aggravated battery, in Reno County, case No. 99-CR-48, for an offense occurring December 4, 1998. On July 9, 1999, Martin was sentenced to 32 months, consecutive to die underlying 8- to 30-year indeterminate sentence, with 24 months’ postrelease supervision.
On April 2, 2004, the Parole Board ordered Martin to serve to his conditional release date on the 8- to 30-year sentence due to his violent behavior in prison and new crime during incarceration. Martin’s conditional release date was calculated to be October 26, 2005. Pursuant to K.S.A. 21-4608(e)(2), on that date, Martin began serving the 32-month sentence imposed in the Reno County case.
On February 13, 2008, Martin was released on postrelease supervision. The certificate of release states that Martin “shall be under the jurisdiction of the Kansas Parole Board and the Secretaiy of Corrections until the expiration of the period of post release supervision, plus the amount of good time credits earned and retained by the inmate, to wit, June 26, 2009.” This period of post- release supervision reflects the 24 months imposed on the 1999 conviction pursuant to K.S.A. 1993 Supp. 21-4608(e)(2).
On August 1, 2008, the Parole Board informed Martin that his previous postincarceration supervision discharge date of June 26, 2009, had been extended to April 13, 2020. This change was made pursuant to 2008 H.B. 2707, which amended K.S.A. 21-4608. Martin filed a petition for writ of habeas corpus against the Parole Board on April 15, 2009, claiming that the change in his postincarceration supervision discharge date is an unlawful ex post facto law.
On May 19,2009, the district court held a hearing on the matter. The parties presented arguments on whether the Parole Board was the proper party and whether the 2008 amendment to K.S.A. 21-4608(e) was unconstitutional. On October 5, 2009, the district court filed a written order, finding that the Parole Board was the proper party and that the Secretary of Corrections was not a necessary party. The court also found that the 2008 amendment was not unconstitutional because Martin’s supervision will not last beyond the 30-year sentence imposed in 1991; therefore, the court dissolved Martin’s writ of habeas corpus and dismissed the case. Martin appeals the district court’s denial of his habeas corpus petition.
Analysis
Martin claims that the 2008 amendment to K.S.A. 21-4608(e)(2) is an impermissible ex post facto law because the Parole Board applied the amendment to extend his postrelease supervision from June 26,2009, to April 13,2020. Before we can determine whether this amendment is an impermissible ex post facto law, we must consider the meaning and effect of the 1993 version of K.S.A. 21-4608(e)(2). In December 1998, when Martin committed the new offense of aggravated battery, the 1993 version of K.S.A. 21-4608(e)(2) provided:
“If a person is sentenced to prison for a crime committed on or after July 1, 1993, while the person was imprisoned for an offense committed prior to July 1, 1993, and the person is not eligible for the retroactive application of the sentencing guidelines act, the new sentence shall not be aggregated with the old sentence but shall begin when the person is paroled or reaches the conditional release date on idle old sentence, whichever is earlier. If the offender was past the offender’s conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when the person is ordered released by the Kansas parole board or reaches the maximum sentence date on the old sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law. The period of postrelease supervision shall be based on the new sentence.’’ (Emphasis added.) K.S.A. 1993 Supp. 21-4608(e)(2).
A plain reading of the statute provides that the offender will serve the old sentence until parole or conditional release, at which time the offender will serve the new sentence. After completing the new sentence, the offender will be released on postrelease supervision, the term of which is determined by the new sentence. This reading of the statute is consistent with the Parole Board’s interpretation and practice until the 2008 amendment.
Based on the 1993 version of K.S.A. 21-4608(e)(2), Martin’s 32-month sentence for the 1998 aggravated battery began on October 26, 2005, the day after his conditional release date on the old aggregated sentence. After serving the 32-month sentence, Martin was released on postrelease supervision on February 13, 2008. At that time, the Parole Board correctly calculated the expiration of Martin’s postrelease super-vision, including good time credits, to be June 26, 2009. In order to reach that conclusion, the Parole Board disregarded any remaining parole time on Martin’s indeterminate sentence and consistent with the plain meaning of K.S.A. 21-4608(e)(2), calculated the postrelease supervision period solely on the basis of the new sentence.
In fact, the legislative history for the 2008 amendment supports our conclusion that our reading of the 1993 version is consistent with the interpretation and application of the statute by anyone who dealt with the statute. Both the House and the Senate Judiciary Committees heard testimony from Tom Stanton of the Kansas County and District Attorneys Association. Mr. Stanton sought “to correct an anomaly in the law which currently acts to free persons who have been convicted of crimes for which the sentence is life from post-release supervision.” Minutes, House Judiciary Committee, March 17, 2008 (statement of Thomas R. Stanton, Deputy Reno County District Attorney, President of the Kansas County and District Attorneys Association); Minutes, Senate Judiciary Committee, February 6, 2008 (statement of Thomas R. Stanton, Deputy Reno County District Attorney, President of the Kansas County and District Attorneys Association). The Parole Board also presented testimony to both committees. The Parole Board’s memorandum indicates that it was reluctant to release offenders on parole due to the shortened postrelease time. The Parole Board sought to have the amendment apply to all indeterminate sentences, such as we have in this matter, rather than only to life sentences. Minutes, House Judiciary Committee, March 17, 2008 (statement of Patricia Biggs, Kansas Parole Board, and written memorandum from the Kansas Parole Board); Minutes, Senate Judiciary Committee, February 6, 2008 (statement of Robert Sanders, Kansas Parole Board, and written memorandum from the Kansas Parole Board).
The Parole Board now contends that its previous interpretation has the absurd result of allowing a prisoner to shorten his or her sentence by committing a new crime while imprisoned. Unfortunately, the legislative history on 1993 S.B. Bill 423 is silent on the intent of K.S.A. 21-4608(e)(2). Minutes, House Judiciary Committee, March 24, 1993 (Testimony presented this bill as classification of previously unranked crimes, reconciliation of conflicts in the severity level of crimes, and creation of the border boxes.); Minutes, Senate Judiciary Committee, March 19,1993 (Testimony presented this bill as classification of previously unranlced crimes, reconciliation of conflicts in the severity level of crimes, creation of the border boxes, changes of the severity level of certain crimes, and clarification on the retroactivity of the sentencing guidelines to ease the workload on staff by ekminating the need to prepare a report for inmates who were not eligible for retroactive application of the law.). However strange this result may seem in isolation, the legislature may have intended to shorten postrelease supervision terms — the recodification of the criminal code and change to presumptive sentencing grids was intended, at least in part, to reduce prison populations and divert offenders to community-based corrections options. See Report on Kansas Legislative Interim Studies to the 1992 Legislature, Presumptive Sentencing and Recodification of the Criminal Code (Proposal No. 13).
The Parole Board now advances a new construction of K.S.A. 1993 Supp. 21-4608(e)(2) that is contrary to the Board’s application of the statute to Martin when he was released on postrelease supervision in February 2008. Under the Parole Board’s new reading of K.S.A. 1993 Supp. 21-4608(e)(2), the last two sentences of the subsection only apply to those inmates who had reached their conditional release date prior to the commission of a new crime and, therefore, are inapplicable to Martin. Under this theory, the statute gives no guidance on the period of postrelease supervision for an inmate in Martin’s situation. This reading is completely nonsensical, considering that the Parole Board would now apply the 2008 amendment of the last sentence (which under this theory would not apply to Martin) to Martin despite the fact that the sentence structure and organization of this section was not changed by the amendment.
Finally, any attempt of the Parole Board to read the 1993 version and the 2008 version of K.S.A. 21-4608(e)(2) to have the same meaning runs afoul of tire presumption that the legislature does not revise an existing law without intending to change the law as it existed prior to the amendment. State v. Preston, 287 Kan. 181, 184, 195 P.3d 240 (2008) (“Moreover, when the legislature revises an existing law, we presume that it intended to change the law as it existed prior to the amendment.”).
We do not pass judgment on the logic or illogic of a statute that allowed an offender to shorten his period of postincarceration supervision by committing another crime while serving his original prison sentence. The 1993 version of K.S.A. 21-4608(e)(2) did just that, while the 2008 amendment to K.S.A. 21-4608(e)(2) calculates postincarceration supervision “based on the longest term of post incarceration supervision imposed for all crimes upon which sentence was imposed or until discharged from supervision by the Kansas parole board.”
Ex Post Facto
“The constitutionality of a statute is a question of law over which this court has unlimited review.” State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002). “The United States Constitution’s ex post facto prohibition forbids legislative enactment of any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed.” Stansbury v. Hannigan, 265 Kan. 404, Syl. ¶ 1, 960 P.2d 227 (1998).
“Two critical elements must be present for a criminal or penal law to be ex post facto. It must be retrospective, that is, it must apply to events occurring before its enactment, and it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable.” Stansbury, 265 Kan. 404, Syl. ¶ 2.
The 2008 amendment to K.S.A. 21-4608(e) changed subsection (2) and added subsection (3), as.follows:
“(2) If a person is sentenced to prison for a crime committed on or after July 1, 1993, while the person was imprisoned for an offense committed prior to July 1, 1993, and the person is not eligible for the retroactive application of the sentencing guidelines act, the new sentence shall not be aggregated with the old sentence but shall begin when the person is paroled or reaches the conditional release date on the old sentence, whichever is earlier. If the offender was past the offender’s conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when the person is ordered released by the Kansas parole board or reaches the maximum sentence date on the old sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law. The period of postrclcasc post incarceration supervision shall be based on the new sentence longest term of post incarceration supervision imposed for all crimes upon which sentence was imposed or until discharged from supervision by the Kansas parole board. The term of post incarceration supervision imposed by this paragraph shall apply retroactively to crimes committed prior to the effective date of this act.
“(3) As used in this subsection, post incarceration supervision’ includes parole and postrelease supervision.” 2008 H.B. 2707.
K.S.A. 2008 Supp. 21-4608(e)(2) explicitly states that it is to apply retroactively, satisfying the first element of an ex post facto law: “The term of post incarceration supervision imposed by this paragraph shall apply retroactively to crimes committed prior to the effective date of this act.”
We have not addressed whether an increase in the period of parole or postrelease supervision constitutes an increase in punishment for ex post facto purposes, but the period of parole or post-release supervision is undeniably part of the sentence imposed. Under the sentencing guidelines, “the sentencing court shall pronounce the complete sentence which shall include the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision at the sentencing hearing.” (Emphasis added.) K.S.A. 2010 Supp. 21-4704(e)(2). Under the indeterminate sentencing scheme, “[t]he period served on parole or conditional release shall be deemed service of the term of confinement.” K.S.A. 22-3722. Other jurisdictions have come to a similar conclusion. United States v. Paskow, 11 F.3d 873, 877-78 (9th Cir. 1993) (holding that changes to either parole or supervised release could violate ex post facto principles); In re Stanworth, 33 Cal. 3d 176, 188, 187 Cal. Rptr. 783, 654 P.2d 1311 (1982) (holding that a change in the standards used to determine the length of a parole term violated the ex post facto clause); Byrnes v. Board of Parole and Post-Prison Supervision, 134 Or. App. 296, 300, 894 P.2d 1252 (1995) (“Because parole is a component of a sentence, no law that increases the term of parole may be applied to a convicted person to the person’s detriment if the law was adopted after the date on which the person committed the underlying crime.”). For these reasons, we hold that a change to the period of parole or postrelease supervision is a change in punishment for ex post facto considerations.
Because the 2008 amendment to K.S.A. 21-4608(e)(2) is retrospective and changes the term of postrelease supervision, the law violates ex post facto protections if it acts to the detriment of the offender. See Stansbury, 265 Kan. at 417 (holding that the 1993 amendment to K.A.R. 44-6-124[g][6], which changed the calculation of good time credits to the detriment of the offender, was an impermissible ex post facto law). Here, Martin, who was on post-release and had received a correctly calculated certificate of release, was clearly disadvantaged when the Parole Board recalculated the termination of his postrelease supervision extending it from June 26, 2009, to April 13, 2020. Martin’s 32-month guide lines sentence and 24-month postrelease supervision period supplanted his parole period on the indeterminate sentences. As a result, the 2008 amendment to K.S.A. 21-4608(e)(2) cannot be applied to Martin without running afoul of ex post facto protections.
Because the 2008 amendment to K.S.A. 21-4608(e)(2) is an impermissible ex post facto law as applied to Martin, Martin’s original postrelease supervision expiration date of June 26, 2009, is effective.
Reversed. | [
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The opinion of the court was delivered by
Kingman, O. J.:
The sheriff’s return on the summons in this case is, that it was executed “by leaving a copy thereof at the usual place of residence of the defendant.” A motion was made to set aside the return. On this motion an affidavit was read which shows that the defendant is a non-resident, and had been for several months before this action wss commenced, and had no residence in this State; that the copy of the summons was left at the house of the father of the defendant, who makes the affidavit. The court set aside the sheriff’s return.
Can a sheriff’s return be thus shown to be false? This is a subject much discussed in this country by the courts, and no uniformity of decision is to be found. It is a general rule of the English common law that the court will not try the truth of an officer’s return on a motion to set aside the proceedings, but the party must resort to his action against the sheriff for false return: Comyn’s Dig., Bei/wrn, E, 2. The English rule is convenient, and under the practice there is not open to the objections that lie to it in this country where the statutes have made such radical changes in process as well as in practice. At common law the action was commenced by a service of the writ by the officer. The declaration was afterwards served by delivering a copy, and this service was to be proved by affidavit; and unless special bail had been taken, the personal service of the declaration was necessary: Com. Dig., Met., Pleader G, 1; nor would a declaration be delivered till the defendant appeared or was in custody': Com. Dig., Pleader, G, 2. Under such a system a judgment without actual notice was almost an impossibility, and the rule as to the conclusiveness of the officer’s return was founded in convenience, without likelihood of its working injustice. In the systems of practice adopted in this country, the safeguards being removed, it has become necessary to adapt the rule to the altered condition of the law. The sheriff not only executes original process by service upon the defendant personally, but by leaving a copy at his usual place of residence. The sheriff also determines whether a minor is over fourteen years of age, and serves accordingly. He also determines who is president, mayor, chairman, or chief officer of a board of directors; and also what is the usual place of business of a corporation, and who has charge thereof, and serves his process accordingly. Is his determination of such questions final? Must the defendant suffer the judgment to stand in such cases, and resort to his remedy against the officer? It must be borne in mind that no rights of third parties have intervened, but the only parties interested are before the court. The controversy is material, involving questions vital in their character, and going directly to the jurisdiction of the case. We find upon examination that the courts have generally held the sheriff’s return an mesne and ji/nal process conclusive between the parties and privies, though this is by no means a rule of universal application; but that in cases of original process there has been a general disposition to let in the truth. This is still more necessary under article four of our code. Without farther discussion we will refer to some of the adjudged cases to show that the original doctrine is much modified to correspond to the changes in our practice. In Connecticut the courts have always held the rule to be that the sheriff’s return was onlj prima facie evidence: Watson v. Watson, 6 Conn., 334. In New Hampshire a case precisely like the case at bar arose, and the defendant was allowed to show the falsity of tbe sheriff’s return, as was done in' this case: Wendell v. Mugridge, 19 N. H. 112. In Rowe v. Table Mountain Water Co., 16 Cal., 441, it was held the return of the sheriff that the persons on whom the summons was executed were the president and secretary of the company was jprima facie evidence that they were such officers, and in the absence of any showing to the contrary allowed the judgment to stand. In Carr v. Commercial Bank of Racine, 16 Wis., 50, the sheriff’s return was served on “ H. S. D., President,” and judgment was taken by default. Upon affidavits showing that H. S. D. was not president or any other officer of the bank at the time of service, the judgment was set aside as rendered without first having jurisdiction of the person. See also Smith v. Law, 5 Iredell, 197; 4 Rand, 189; Freeman v. Cruikshanks, 3 McCord R., 84; Fleece v. Goodman, 1 Duvall, 306; Castner & Hinckly v. Symonds, 1 Minnesota. So far the authorities go. Our code has liberal provisions to prevent the multiplicity of suits when the matter in controversy can be settled in one action. In the course taken with this case in the court below the action was direct to settle the question in dispute, and was in the precise spirit of the code. To have refused to hear the affidavits and give judgment against a party not served, and drive him to an action against the sheriff for a false return for his redress, would neither have been justice nor in accordance with the code.
We are aware it is a question of evidence and not of pleading; but we know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where their place of business is; and when the statute made it the duty of the sheriff to ascertain these facts it did not make his return of such facts conclusive. Of his own acts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought not to be held conclusive. How it may be on mesne and final process we need not determine. In such cases both parties are in court and can have amendments to return made if the sheriff is convinced of his error. ¥e only determine just the case before us. "We think the court decided correctly, and the judgment is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Conrad E. Doudin, of Wichita, an attorney admitted to the practice of law in Kansas in 1994.
On January 11,2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent’s motion for continuance, dated January 25,2010, was granted by order dated January 29, 2010. The respondent filed an answer on August 9, 2010, and on August 14, 2010, he mailed a probation plan to the office of the Disciplinary Administrator and the hearing panel.
On August 18, 2010, a panel of the Kansas Board for Discipline of Attorneys conducted a hearing on the formal complaint at which the respondent was personally present and was represented by counsel. The parties submitted a joint stipulation of facts to the hearing panel.
Following the hearing, the panel determined that respondent had violated KRPC 1.1 (2010 Kan. Ct. R. Annot. 406) (competence); 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); 1.15 (2010 Kan. Ct. R. Annot. 505) (safekeeping property); 3.2 (2010 Kan. Ct. R. Annot. 539) (expediting litigation); 8.1(b) (2010 Kan. Ct. R. Annot. 594) (failure to respond to lawful demand for information from disci plinaiy authority); Kansas Supreme Court Rule 207(b) (2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file answer in disciplinary proceeding). The panel filed a final hearing report, the relevant portions of which are as follows:
“FINDINGS OF FACT
“DA10328
“2. In 2006, Reynaldo Cantu retained the Respondent to represent him in an effort to modify visitation with his child. The Respondent and Mr. Cantu had a disagreement about whether Mr. Cantu continued to owe die Respondent for previous work performed. Regardless, in October, 2006, the Respondent agreed to file a motion to modify visitation. The Respondent failed to prompdy file the motion. The Respondent did not file the motion until May 11, 2007.
“DA10343
“3. In July, 2007, Cecelia Smith retained die Respondent to represent her in a divorce for $500.00. Mrs. Smith paid the Respondent with two checks in the amount of $250.00 each. One check was cashed, the odrer check was not. The Respondent did not immediately enter his appearance in behalf of Mrs. Smith. The Respondent did not keep Mrs. Smith apprised of die hearings, nor did he keep her apprised of the status of her case. Eventually, Mrs. Smith terminated the Respondent’s representation. Thereafter, die Respondent refunded $500.00 to Mrs. Smith.
“DA10561
“4. In December, 2007, Denise Ziegler-Mellott retained the Respondent to represent her in a bankruptcy case. On February 22, 2008, the Respondent filed a chapter 7 bankruptcy petition. Thereafter, on June 2,2008, the Court discharged Ms. Ziegler-Mellott in bankruptcy. Ms. Ziegler-Mellott filed a disciplinary complaint against the Respondent. The Respondent was notified of the disciplinary complaint. David Moses, a member of the Wichita Ethics and Grievance Committee, was assigned to investigate the complaint.
“5. On July 18, 2008, Mr. Moses wrote to the Respondent and requested that he provide a response within 10 days. The Respondent failed to provide a timely response. Approximately three weeks later, the Respondent retained counsel to represent him in the disciplinary proceedings.
“6. By letter, counsel for tire Respondent assured Mr. Moses that tire Respondent would provide a response to the complaint by August 29, 2008. The Respondent failed to provide a response to the complaint by August 29, 2008.
“7. On January 8, 2009, Mr. Moses wrote to counsel for the Respondent and required that the Respondent’s response be provided no later than January 12, 2009. On January 12, 2009, the Respondent provided Mr. Moses with a response to Ms. Ziegler-Mellott’s complaint.
“8. On January 15, 2009, Mr. Moses wrote to counsel for the Respondent. In the letter, Mr. Moses requested that the Respondent provide a copy of the Respondent’s file pertaining to Ms. Ziegler-Mellott’s bankruptcy, a copy of the Respondent’s payroll records from the Respondent’s office from January, 2008, through July 8, 2008, and all personnel and payroll records pertaining to Ms. Ziegler-Mellott.
“9. Mr. Moses and counsel for the Respondent spoke by phone regarding Mr. Moses’ request. Mr. Moses asked to have the information delivered to his office. Counsel for the Respondent insisted that Mr. Moses come to counsel’s office to retrieve the files. Mr. Moses never received the requested records.
“10. On February 10, 2009, Mr. Moses wrote to counsel for the Respondent, reminding him that he had previously requested that he provide certain documentation in behalf of the Respondent. Mr. Moses insisted that he receive the information no later than February 12, 2009. Mr. Moses never received the requested information.
“DA10732
“11. A contractor that owed Ben and Melissa Crabtree’s lawn care business $70,000, failed to pay the bill, causing the business to be unable to meet its obligations. Thereafter, in December, 2008, Mr. and Mrs. Crabtree retained the Respondent to file a bankruptcy case for the business and to send a demand letter to the contractor.
“12. On December 9, 2008, Mr. and Mrs. Crabtree met with the Respondent and provided him with paperwork. At that time, a written fee agreement was executed. The agreement required a total payment of $1,300.00 with $758.00 identified as a ‘fixed minimum fee’ and the remaining $542.00 identified as ‘advanced costs’ to be ‘placed in attorney’s trust account.’ Mr. and Mrs. Crabtree paid the Respondent $1,300.00 with two money orders. The receptionist who received the $1,300.00 told Mr. and Mrs. Crabtree that she did not know what to do with the money orders. The receptionist told Mr. and Mrs. Crabtree that she would deposit the money orders into her personal bank account.
“13. Between December 9,2008, and December 24,2008, Mr. and Mrs. Crab-tree personally entered into negotiations with the contractor. On December 24, 2008, the contractor paid Mr. and Mrs. Crabtree’s business in full. Because of the payment, Mr. and Mrs. Crabtree no longer needed to pursue the protections offered by bankruptcy for their company.
“14. On December 26, 2008, Mr. and Mrs. Crabtree notified the Respondent that they no longer needed his services. In early January, 2009, the Respondent informed Mr. and Mrs. Crabtree that they would receive a partial refund of the money paid to him. Additionally, he agreed to provide Mr. and Mrs. Crabtree with a copy of tire demand letter.
“15. Because Mr. and Mrs. Crabtree did not receive a refund or a copy of the demand letter, February 10, 2009, they filed a complaint against the Respondent. After die disciplinary complaint was filed, the Respondent provided Mr. and Mrs. Crabtree with a full refund of the $1,300.00. The refund check was not drawn on die Respondent’s trust account, rather it was drawn on the Respondent’s operating account. The Respondent never provided Mr. and Mrs. Crabtree with a copy of the demand letter.
“16. On February 19, 2009, the Disciplinary Administrator wrote to the Respondent, enclosed a copy of Mr. and Mrs. Crabtree’s complaint, and requested that he provide a response to the complaint within 20 days.
“17. On February 23, 2009, Jeffrey Jordan, the Chairman of the Wichita Ethics and Grievance Committee, wrote to the Respondent regarding Mr. and Mrs. Crabtree’s complaint. Mr. Jordan requested that the Respondent provide a timely response to the complaint.
“18. On February 26, 2009, Mr. Moses, the attorney appointed to investigate this complaint, wrote to the Respondent and requested that the Respondent provide his written response and a complete copy of his file within 10 days.
“19. On March 12, 2009, Mr. Moses wrote to the Respondent for a second time. In that letter, Mr. Moses requested that the Respondent provide a written response and a complete copy of his file by March 20, 2009.
“20. On June 9, 2009, Mr. Moses wrote to the Respondent for a third time. In that letter, Mr. Moses informed the Respondent that he would be completing his investigation and if the Respondent wanted his response to be considered, it would have to be received by June 12, 2009.
“21. On June 10, 2009, counsel for the Respondent provided the Respondent’s response to Mr. and Mrs. Crabtree’s complaint.
“22. On June 15, 2009, Mr. Moses wrote to counsel for the Respondent and requested that he provide the Respondent’s file, billing records, trust account records, and confirmation that Mr. and Mrs. Crabtree’s money orders were deposited into the Respondent’s trust account. Mr. Moses never received the requested information.
“DA10750
“23. On March 19, 2007, Luther M. Patton died testate. Luther’s son, Larry Patton, retained the Respondent to probate the estate. Larry Patton paid the Respondent $500.00 for the representation. The Respondent requested that Larry Patton provide a list of assets and debts of the estate. On March 30, 2007, Larry Patton provided the requested information to the Respondent.
“24. Neither Larry Patton nor his family heard anything from the Respondent until October 29,2007. At that time, Larry Patton came to the Respondent’s office and signed the petition for informal administration and a family settlement agreement.
“25. The Respondent did not file the petition and the agreement until December 21, 2007. The Respondent failed to attach any exhibits, failed to place an advertisement in the newspapers as a notice to creditors, and faded to have Lany Patton execute an oath as executor. No testamentary letters were ever issued to Lany Patton.
“26. Throughout 2008, Larry Patton attempted to learn the status of the probate case from the Respondent. The Respondent assured Mr. Patton that ‘all was well’
“27. Later, Larry Patton approached James L. Hargrove and asked general questions regarding the probate of an estate. As a result, Mr. Hargrove looked into the Patton estate and contacted the Honorable Charles M. Hart, the judge assigned to hear the probate case.
“28. On March 4, 2009, Judge Hart contacted the Respondent and requested that he deliver the file and the $500 retainer less the fifing fee to Mr. Hargrove. Mr. Hargrove received the file and a refund of the fee. The refund check was not drawn from the Respondent’s trust account.
“29. Mr. Hargrove determined that the petition for informal administration and a family settlement agreement should not have been filed. Thereafter, Mr. Hargrove dismissed the probate case.
“30. The Respondent should not have required a retainer, as he should have been paid through the estate by order of the court. Additionally, the Respondent should not have agreed to handle a probate matter as he had no experience in probate cases.
“31. On March 17, 2009, Mr. Hargrove filed a complaint against the Respondent. On March 20, 2009, the Disciplinary Administrator wrote to the Respondent, enclosed a copy of Mr. Hargrove’s complaint, and requested that the Respondent provide a written response to the complaint within 20 days.
“32. On March 26, 2009, Mr. Moses, the attorney assigned to investigate Mr. Hargrove’s complaint, wrote to the Respondent and requested that the Respondent provide a written response to Mr. Hargrove’s complaint within 10 days.
“33. On June 9,2009, Mr. Moses wrote to the Respondent. Mr. Moses informed the Respondent that if he wanted his response considered he would have to forward it by June 12, 2009.
“34. The Respondent never provided a written response to Mr. Hargrove’s complaint.
“35. To further the investigation of DA10328, DA10732, and DA10750, the Disciplinary Administrator’s auditor contacted the Respondent to audit his attorney trust account. The auditor requested that the Respondent schedule an appointment to allow the auditor to conduct the audit. The Respondent failed to cooperate by scheduling the appointment. As a result of the Respondent’s lack of cooperation, an audit of his attorney trust account was never completed.
“CONCLUSIONS OF LAW
“1. Based upon the stipulation of the Respondent and the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.2, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent violated KRPC 1.1 in his representation of the estate of Luther M. Patton when he unnecessarily filed a probate case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients in this case. Specifically, the Respondent failed to provide diligent representation to Mr. Cantu, Ms. Smith, and the Patton estate. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“4. KRPC 1.4(a) provides that‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately inform Ms. Smith, Mr. and Mr. Crabtree, and Larry Patton of the status of the representations. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard his client’s property when he failed to deposit unearned fees paid by Mr. and Mrs. Crabtree and Larry Patton into his attorney trust account. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.15.
“6. An attorney violates KRPC 3.2 if he fails to malee reasonable efforts to expedite litigation consistent with the interests of his client. In representing Ms. Smith, the Respondent failed to expedite Ms. Smith’s case by failing to timely enter his appearance. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“7. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to forward a written response to the initial complaint filed by Larry Patton — he had been instructed to do so in writing by the Disciplinary Administrator and by the investigator. Because the Respondent knowingly failed to provide a written response to the initial complaint filed by Larry Patton as requested by the Disciplinary Administrator and the investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b). The Hearing Panel also concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) when he failed to cooperate with the Disciplinary Administrator’s auditor in scheduling and conducting an audit of the Respondent’s attorney trust account.
“8. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel’ Kan. Sup. Ct. R. 211(b).
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to his clients to properly safeguard their property. Finally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to Iris clients and actual injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct — five separate complaints were filed against the Respondent. Much of the Respondent’s misconduct was repeated misconduct.
“Multiple Offenses. The Respondent committed multiple offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.2, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to cooperate in the investigation of Larry Patton’s complaint. Additionally, the Respondent failed to file an Answer in this case. Finally, the Respondent failed to cooperate with the Disciplinary Administrator’s auditor in scheduling and conducting an audit of the Respondent’s attorney trust account. As such, the Hearing Panel concludes that the Respondent obstructed the disciplinary proceeding.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas in 1994. As such, at the time the misconduct commenced, the Respondent had been practicing law for 13 years. The Hearing Panel concludes that 13 years of practice constitutes substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. It does not appear that the Respondent’s misconduct was motivated by dishonesty or selfishness. As such, the Respondent’s lack of a dishonest or selfish motive mitigates the misconduct.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent has certainly suffered personal and emotional problems detailed in his testimony. While the Hearing Panel does not believe that the Respondent’s personal problems contributed to his trust account violations, it appears that his personal problems may have contributed to the Respondent’s lack of diligence and communication.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent entered into a stipulation and admitted to many of the alleged violations. As such, the Hearing Panel concludes that the Respondent generally cooperated.
“Remorse. At the hearing, the Respondent expressed remorse for engaging in the misconduct.
“In addition to the abovecited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injuiy to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘4.52 Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended. Counsel for the Respondent recommended that the Respondent’s request for probation pursuant to Kan. Sup. Ct. R. 211(g) be granted and that he be subject to supervision for a period of three years.
“Kan. Sup. Ct. R. 211(g)(3) dictates when a Hearing Panel is permitted to recommend probation in a disciplinary case, as follows:
‘The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to die hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(in) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
The Hearing Panel concludes that probation is not appropriate in this case. The Respondent failed to provide his plan of probation at least 10 days prior to the hearing on the Formal Complaint. The Respondent’s plan of probation is dated August 14, 2010, four days prior to the hearing on this matter. The Respondent’s plan is not workable, substantial, or sufficiently detailed to correct the misconduct in this case. The Respondent failed to put the proposed plan of probation into effect prior to the hearing on the Formal Complaint. The Respondent testified that it had been four or five months since he had seen his counselor. Finally, placing the Respondent on probation is not in the best interests of the legal profession or the citizens of the State of Kansas.
“Before making a recommendation in this case, the Hearing Panel is compelled to address two matters raised at the hearing on the Formal Complaint.
“First, the Hearing Panel heard testimony from the Respondent and a proffer of evidence from counsel for the Respondent and the Deputy Disciplinary Administrator regarding whether the Respondent cooperated in the investigations of Ms. Ziegler-Mellott’s complaint and Mr. and Mrs. Crabtree’s complaint. The gist of the evidence is that shortly after the Ziegler-Mellott complaint was filed and well before the Crabtree and Hargrove complaints were filed, the Respondent retained D. Lee McMaster to represent him in the disciplinary proceedings. As a result, the attorney investigator appointed to investigate these matters contacted Mr. McMaster to obtain information from the Respondent. According to the proffer, Mr. McMaster did not forward the requested materials to tire investigator due to a personality conflict between the two of them. The Hearing Panel carefully considered whether the actions of counsel should be imputed to the Respondent and concluded that the Respondent acted as the Disciplinary Administrator and the Kansas Board for Discipline of Attorneys would hope — he hired an attorney to represent him and that he is not responsible for the actions or inaction of his counsel. Accordingly, the Hearing Panel concludes that the Respondent did not violate KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) regarding the Ziegler-Mellott case and the Crabtree case.
“Second, during his closing argument, counsel for the Respondent argued that as attorneys we need to ‘take care of our own.’ As a result of Mr. McMaster’s comments, the Hearing Panel feels compelled to clarify its role in the disciplinary system. The Hearing Panel is generally charged with three jobs. The Hearing Panel must listen to all of the evidence and make factual findings. Next, the Hearing Panel must apply those facts to the rules and determine whether the Respondent has violated any of the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules. Finally, the Hearing Panel must consider the rule violations in light of the American Bar Association’s Standards for Imposing Lawyer Sanctions and malee a recommendation to the Kansas Supreme Court. In rendering a recommendation, the Hearing Panel must be mindful that the public and the legal profession deserve to be protected from attorneys who have caused harm. The Hearing Panel is not required nor is it permitted to shield a lawyer from the effect of failing to comply with his duties as an attorney.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of one year. The Hearing Panel further recommends that the Respondent undergo a hearing pursuant to Kan. Sup. Ct. R. 219 prior to consideration of reinstatement.
“Costs are assessed against the Respondent in an amount to be certified by the Office of fire Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties. From this, we determine whether violations of the KRPC exist and, if they do, what discipline should be imposed. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” Patterson, 289 Kan. at 134 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The evidence presented in this case, including the parties’ joint stipulation of facts, clearly supports the KRPC and Supreme Court Rules violations identified by the panel. As a practical matter, we find those violations are sufficient to warrant the imposition of the sanction set forth below. Nevertheless, we pause to comment on the panel’s determination that respondent did not violate KRPC 8.1(b) and Supreme Court Rule 207(b) in the Ziegler-Mellott and Crabtree cases because he had retained counsel.
We certainly understand that the Disciplinary Administrator and the Kansas Board for Discipline of Attorneys would want to encourage attorneys faced with a disciplinary complaint to retain counsel. However, every attorney admitted to practice law in this state is charged with the individual, independent responsibility “to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.” Supreme Court Rule 207(b) (2010 Kan. Ct. R. Annot. 308). A respondent who retains an attorney to represent him or her in a disciplinary proceeding is not relieved of the responsibilities in KRPC 8.1(b) and Supreme Court Rule 207(b) to cooperate with and provide information to the Disciplinary Administrator. Retaining counsel simply reassigns those responsibilities to the attorney who is acting on respondent’s behalf. Retained counsel must comply with those duties just as thoroughly as if respondent is communicating directly with the Disciplinary Administrator’s office. It is only under the unusual circumstance when respondent could not reasonably know that retained counsel was violating the rules as respondent’s representative that respondent may argue he or she should be insulated from retained counsel’s failure to comply. In other words, contrary to the panel’s suggestion, rules violations by a retained attorney may be imputed to the respondent unless the respondent demonstrates he or she could not reasonably know that retained counsel was obstructing the investigation.
As noted, the hearing panel recommended that respondent be sanctioned with a 1-year suspension with the requirement of a reinstatement hearing. Respondent asked that he be placed on probation under the plan he had submitted to the hearing panel. As noted by the hearing panel, respondent had not complied with our rules governing probation at the time of the hearing. See Supreme Court Rule 211(g)(3) (2010 Kan. Ct. R. Annot. 327). Even at the hearing before this court, respondent had yet to implement the plan. Moreover, we agree with the hearing panel’s assessment that probation is not appropriate for the respondent.
“The recommendation of the panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2010 Kan. Ct. R. An-not. 345). The number and nature of respondent’s violations indicate an inability or unwillingness to accept and perform the most basic and fundamental responsibilities of an attorney. We believe that to adequately protect the public the respondent should be sanctioned with an indefinite suspension. Prior to being reinstated, respondent will need to demonstrate that he has adequately addressed the mental and emotional problems he claims to suffer and that he has a working knowledge of client trust accounts and law office financial management.
Conclusion and Discipline
It Is Therefore Ordered that Respondent, Conrad E. Doudin, be and he is hereby indefinitely suspended from the practice of law in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that Respondent will comply with Rule 218 (2010 Kan. Ct. R. Annot. 370) and will undergo a Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370) hearing prior to being readmitted to practice law in Kansas.
It Is Further Ordered that the costs of these proceedings be assessed to the Respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action by Nichols to recover for injuries alleged to have been committed by the railway company. The petition of the plaintiff set forth that there was a contract between the parties; that the defendant undertook to carry the plaintiff as a passenger in a car used among other things for that purpose, from the State Line near Kansas City to and beyond Monument Station, for a certain hire and rewwrd, and that while so carrying the said plaintiff the said injuries were caused through the negligence of the agents and servants of the defendant. But the said petition was -not true, and there was no evidence to sustain some of the most material portions of it. We have all the evidence before us, and from that it unquestionably appears that there was no contract entered into between the plaintiff and the railway company; the plaintiff was not a passenger, within the true legal signification of the term; he did not get into or ride in any passenger oar, and he did not pay or agree to pay any Twre or rewa/rd for his passage. The only connection that the plaintiff had with the railway company was as follows: He went on the train without purchasing any ticket, not into any passenger car, but into the baggage car, and into that portion of the baggage car which was used and occupied exclusively by the United States Express Company for their business, and remained there until he received the injuries of which he now complains. When the conductor of the train met him in the baggage car, he did not offer to pay his fare, but aEowed himself to be introduced to the conductor as an express messenger. He was so introduced by Porter Warner, who had been up to that time, and then was, in fact, the'regular express messenger for that train. And Warner also represented to the conductor that he “ was learning Nichols the run.” During the trip the plaintiff acted as express messenger, having the keys, and assisted Warner in handling and delivering the freight of the express company. The conductor, supposing the plaintiff to be an express messenger, and therefore entitled to ride in the baggage car, and to ride free, or rather supposing that his fare was paid or arranged for by the express company in their contract with the railway company, aEowed him to ride in the baggage ear, and collected no fare from him. The conductor made no contract with the plaintiff, but aEowed him to ride on the contract made between the plaintiff’s supposed employer, the express company, and the conductor’s employer, the railway company. The conductor supposed that the plaintiff was riding in the baggage car, and free, by authority as high as that under which he himself acted, and by an authority which he had no power to revoke. The conductor therefore did not attempt to confer upon the plaintiff any right to ride upon that train, but simply left the plaintiff with the right which he supposed the plaintiff already had, independent of any authority from himself. But the plaintiff had no such right, nor any right there. He was not an express messenger, nor was he in the employ of the express company in any manner whatever. He was there simply by a private arrangement between himself and Warner, and one MeNanghton, an agent of the express company at the State Line, “ for billing and transferring and delivering goods for the express company.” He was there simply learning the route, so that he might be able to take the place of Warner during Warner’s absence. But he was not there by any authority of the express company. Neither Warner, nor McNaughton, nor both together, had any authority to put him there. None but the president, vice president, or general superintendent of the express company had any such authority, as is shown by the evidence. But the plaintiff did not even have the authority or consent of the local superintendent of the express company. Therefore he had no right whatever on said train.
Before proceeding further, perhaps, it would be proper to state that the said baggage car ran off the track and was upset, about three miles east of Monument Station, because of a “ low joint ” in the rail, and injured the plaintiff and one or two others; that “none of the passenger coaches went off the track, so as to injure the coaches or any passengers;” that there were only about twenty passengers on the train during that trip, and that “ there was room in the passenger cars for some fifty or sixty more passengers than were on the train;” that “the rules of the company prohibited passengers from riding in the express, •mail, or baggage cars;” that the plaintiff was so injured as to impair his mind; and that the verdict of the jury and the judgment of the court were in favor of the plaintiff for $22,500.
Now, so far as the argument or the decision of this case is concerned, it will be admitted that all the rulings of the court below were correct if the plaintiff had been a passenger within the true sense of that term. Also, that a regular express messenger is a passenger entitled to receive the same care as any other passenger, so far as the same can be exei’cised toward him, although nothing be paid for his transportation except what the express company pays to the railway company for transportation generally of their freight and agents. Also, that any person may be a passenger, entitled to all the rights and privileges of other passengers, without the payment of any fare, if he be on the train with the intention of being a passenger, and with the consent of the company or its officers, provided said consent be obtained without any fraud, or provided said company or its officers have a full knowledge of all the facts. Also, that a regular passenger may be allowed by the conductor the privilege of walking through the cars, or getting on the platform, or into the baggage car, without forfeiting any of his rights as a passenger. And also, that the obligations of common carriers of passengers do not rest wholly or even mainly upon contract, but principally upon the laws of the State in which such carriers do business. But it will not be admitted that any and every person who may enter a car or go upon a train is a passenger, or entitled to all the rights and privileges of a passenger. The employees of the railway company are not passengers, although they may do more riding upon the road than any other class of persons. See the numerous decisions concerning the liability of railroad companies for injuries done to their employees through the negligence of other employees: Shearman and Redfield on Negligence, 101 to 127, ch. 6, and cases there cited. 1 Redfield on Railways, 520 to 537, and cases there cited. Where employees ride upon the road in consequence of their employment, and as employees, paying no fare, they are not passengers, although they may at that time, and on; that particular train, not be performing any service for the company: Higgins v. H. & St. Jo. R. R. Co., 36 Mo., 418, 432, et seq.; Gilshannon v. Stony Brook, 10 Cush., 228; Seaver v. Boston & Me. R. R. Co., 14 Gray, 466; Russell v. Hudson River R. R. Co., 17 N. Y., 134. A person who enters the cars to see a friend safely seated, is not a passenger: Lucas v. New Bedford R. R. Co., 6 Gray, 64. A person who rides upon the engine of a train with the consent of the engineer, but contrary to a rule of the company, of which he is informed, is not a passenger: Robertson v. N. Y. & E. Railway Co., 22 Barb., 91. And generally, whenever a person goes upon a train or on any part of the train without authority, he is not a passenger: Moss v. Johnson, 22 Ill., 633. It is probably true that the obligation of a common carrier of persons does not rest wholly or even mainly upon contract, but still no person can become a passenger except by a contract either express or implied. “ A passenger is a person who undertakes with the consent of the the carrier to travel in the conveyance provided by the latter, other than in the service of the carrier as such:” Shear, and Redf. on Neg., 292, sec. 262. It is true, that whenever a person who desires to become a passenger on a railroad does all that the law and the rules of the company require of him for that purpose, it will be presumed that the company has given its consent, and that the requisite contract has been made; for in such a case the company could not legally withhold its consent. But whenever it is shown that- such person has not done what is required of him, no contract will be presumed. It will then devolve upon such person to show affirmatively that a contract has been made — to show affirmatively that the consent of the company has been given.
In the present case the plaintiff did not do what was required of him in order that he might become a passenger; he did not himself make a contract with the railway company, or any of its agents; and he had no right to ride under the contract made between the express company and the railway company. The consent obtained from the conductor was the consent that an express messenger might ride in the baggage car, and without paying his fare. Such consent did not apply to the plaintiff. But if it be said that the conductor applied it to the plaintiff, then it may be answered that it was so done under a misapprehension, induced by the plaintiff himself in allowing himself to be introduced to the conductor as an express messenger, and represented to be such, when in truth and in fact he was not such messenger. This was a legal fraud upon the conductor, and upon the railway company, whatever may have been the intentions of the plaintiff.
There was but little conflict in the evidence in this case— none upon the points we have been discussing. Therefore, whether the plaintiff was a passenger or not was purely a question of law. If he was a passenger, he was undoubtedly entitled to recover, for the railway company was unquestionably guilty of some negligence in allowing the track of the railway to get out of repair. Whether he was a passenger or not seems to have been considered by the court below as resting almost exclusively upon the moral intentions of the plaintiff. If the plaintiff honestly believed that he did right in doing as he did, or if he honestly believed that the circumstances of the case gave him the right to do as he did, then, according to the view of the court below, he was a passenger. But on the other hand, if he knowingly practised a fraud and deception upon the conductor whereby he was allowed to ride in the baggage car without the payment of fare, he was not a passenger. This theory seems to have run through the whole charge of the court, and the whole case seems to have turned upon it. The court below, therefore, erred in its charge, in some of the instructions that it gave and in some of the instructions that it refused. We think, however, that it made no difference how honest the plaintiff was, nor how he viewed the transaction in its moral aspect.
Eor the reason that the court erred in charging the jury, and for the reason that there was no evidence to sustain some of the material allegations of the petition, the court also erred in overruling the defendant’s motion for a new trial. The judgment is reversed and a new trial ordered.
Kingman, C. J., concurred.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Luckert, J.:
An appellate court’s jurisdiction depends on several factors, including the timely filing of a notice of appeal. In this appeal, it is undisputed that the notice was not filed by the statutory deadline. Nevertheless, K.S.A. 60-1507 movant William D. Alb-right asks for a waiver of the rule as a remedy for tire deficient performance of his appointed counsel. As evidence of his contention that he received ineffective assistance of counsel, he cites his appointed counsel’s failure to timely file a notice of appeal from the district court’s judgment denying his K.S.A. 60-1507 motion.
His argument was rejected by the Court of Appeals, which dismissed his appeal on June 25, 2009. On petition for review, the parties suggest there is tension in the holdings and rationale of this court’s decisions in State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008); Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007); Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007); Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004); and State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The variance in the holdings and rationales of those decisions, according to the parties, make it unclear whether there is or should be a recognized exception allowing an out-of-time appeal if the delay resulted from ineffective assistance of appointed 60-1507 counsel.
After discussing the rationale and holding of each of these decisions, we conclude the Court of Appeals should not have dismissed Albright’s appeal because appointed counsel’s performance was deficient and the appropriate remedy is to exercise jurisdiction over Albright’s appeal. Therefore, we remand to the Court of Appeals for its consideration of the merits of Albright’s appeal.
Facts and Procedural Background
Albright was convicted in 1999 of premeditated first-degree murder and received a hard 40 life sentence. This court affirmed in State v. Albright, 271 Kan. 546, 24 P.3d 103 (2001). Then, Alb-right pursued postconviction 60-1507 relief on the basis of ineffective assistance of trial counsel; the Court of Appeals reversed in an unpublished decision and remanded for a new trial. State v. Albright, No. 90,216, 2004 WL 1041350 (Kan. App. 2004) (unpublished opinion). In his second trial, Albright was again convicted of premeditated first-degree murder and received a hard 40 life sentence. His conviction and sentence were affirmed in State v. Albright, 283 Kan. 418, 153 P.3d 497 (2007).
On March 12, 2008, Albright filed the pro se 60-1507 motion that underlies this appeal. The district court appointed counsel to represent Albright and scheduled a preliminary hearing. At the request of the district court, Albright’s appointed counsel filed a motion clarifying the issues to be addressed at the hearing and asserted three claims of ineffective assistance of trial counsel: (1) counsel failed to interview an alibi witness, (2) counsel failed to present evidence showing that the fingerprints of an individual other than Albright were found at the site of the murder, and (3) counsel failed to request a change of venue.
At a preliminary hearing, after receiving limited evidence (specifically, Kansas Bureau of Investigation fingerprint reports) and hearing appointed counsel’s arguments, the district court found that Albright’s allegations did not present substantial issues of fact requiring an evidentiary hearing. Consequently, on October 14, 2008, the court denied Albright’s 60-1507 motion.
No timely appeal was filed. Then, on February 4, 2009, Albright inquired of the district court whether an appeal had been filed in his case. On February 17, 2009, Albright filed a pro se notice of appeal, accompanied by a motion in which he argued that he should be permitted to file his appeal out of time because “[p]etitioner was represented by appointed counsel and as a result of his ineffectiveness failed to properly and timely file a Notice of Appeal in the instant matter.” Months later, he filed another pro se notice of appeal and a motion for appointment of appellate counsel. New counsel was appointed to represent Albright in a hearing pursuant to Ortiz, 230 Kan. 733. Instead of proceeding with a hearing, however, tire district court approved an “Agreed Order Allowing Docketing of Appeal Out of Time,” in which the parties stipulated that Albright “would present evidence at a State v. Ortiz hearing that he was not fully informed of his appeal rights in this case.”
An appeal was docketed, but the Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction due to Albright’s failure to file the notice of appeal within the 30-day limitation of K.S.A. 60-2103(a). After receiving the parties’ responses, the Court of Appeals dismissed Alb-right’s 60-1507 appeal, citing to Guillory, 285 Kan. 223.
Albright filed the petition for review, which we granted, giving us jurisdiction under K.S.A. 20-3018(b). Before us, the State filed a supplemental brief in which it stipulated for “purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for [appointed] counsel’s failure, Albright would have taken a timely appeal.”
Analysis
Principles of Law/Standard of Review
Generally, when presented with a 60-1507 motion, a district court has three options. First, it may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case it wifi summarily deny the motion without appointing counsel. Second, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and records, and then appoint counsel and hold a preliminary hearing to determine whether in fact the issues in the motion are substantial. Trotter v. State, 288 Kan. 112, Syl. ¶ 13, 200 P.3d 1236 (2009); Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007). In this case, the district court selected the third option.
Regardless of which option is followed, a request for postconviction relief filed under K.S.A. 60-1507 is a civil proceeding and is governed by the rules of civil procedure. Supreme Court Rule 183(a) (2010 Kan. Ct. R. Annot. 255); State v. Richardson, 194 Kan. 471, 472-73, 399 P.2d 799 (1965). Accordingly, the procedure for appeal of a judgment in a 60-1507 proceeding is found in K.S.A. 60-2103(a), which governs appeals in civil cases and includes the requirement that a notice of appeal must be filed within 30 days from the entry of judgment. In this case, the parties agree that Albright’s notice of appeal was filed after the 30-day deadline.
The filing of a timely notice of appeal is jurisdictional. Generally, the failure to file a timely notice of appeal requires dismissal of the appeal. See Patton, 287 Kan. at 206; State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004); see also Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel). There are exceptions to this rule, however. See, e.g., K.S.A. 60-2103(a) (recognizing exception if party failed to learn of judgment because of “excusable neglect”); Schroeder v. Urban, 242 Kan. 710, 713-14, 750 P.2d 405 (1988) (recognizing “unique circumstances” exception if an untimely filing was result of good faith reliance on court’s error in extending time for filing appeal when it had no authority to do so); Brown, 278 Kan. at 483-85 (recognizing ineffective assistance of appointed counsel exception in 60-1507 proceeding by applying Ortiz exceptions); cf. Ortiz, 230 Kan. at 735-36 (recognizing limited exceptions if criminal appeal is untimely filed). Albright seeks application of one or more of these exceptions or the extension of an exception to cover his situation.
The issues of whether an exception will be recognized in this situation and, more generally, whether there is subject matter jurisdiction present questions of law that are subject to unlimited review. A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010); Patton, 287 Kan. at 205.
Consequently, it was appropriate for the Court of Appeals to question whether it had subject matter jurisdiction. Albright does not dispute that procedure, but he argues the Court of Appeals erred in applying Guillory, 285 Kan. 223, to his appeal and in failing to recognize the application of the exceptions recognized in Ortiz, 230 Kan. 733, and applied in Brotan, 278 Kan. 481. The State also questions whether Guillory controls this appeal, but it disputes Albright’s contention that the Ortiz exceptions apply to 60-1507 appeals, and it argues that our decision in Patton, 287 Kan. 200, brings the holding in Brown into question. The State points out that we must also consider the analysis in Kargus, 284 Kan. 908, and determine whether it has any application.
Because Albright seeks the application of the Ortiz exceptions, we begin our discussion with that case and will then discuss how Guillory, Brown, Patton, and Kargus impact the application of the Ortiz exceptions to these facts.
Ortiz
The Ortiz exceptions recognize that an untimely appeal may be allowed in the direct appeal from a conviction and sentence if a criminal defendant either (1) was not informed of the right to appeal at sentencing or by counsel, (2) was indigent and not furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. at 735-36; see State a. Phinney, 280 Kan. 394, Syl. ¶ 3, 122 P.3d 356 (2005).
Ortiz does not directly support Albright’s argument, however, because, under its facts, the holding applies to direct appeals of a criminal defendant. The decision does not answer the question of whether an exception applies if an untimely notice is filed in a collateral attack on a criminal conviction that is brought by a civil petitioner, such as in this 60-1507 action. Hence, for the Ortiz exceptions to apply, we must extend the exceptions to 60-1507 actions in which counsel has been appointed to represent
“[a] prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” K.S.A. 60-1507(a).
Albright suggests that, like a defendant in a criminal case, a prisoner who seeks relief from a criminal judgment is entitled to effective assistance of appointed counsel and, if appointed counsel fails to meet this obligation, the prisoner has a due process right to continue an appeal.
Albright’s argument highlights a divide that is created by K.S.A. 22-4506(b) and Supreme Court Rule 183(m), the provisions authorizing the appointment of counsel for some 60-1507 movants but not others. K.S.A. 22-4506(b) limits the right to appointed counsel to those cases in which the district court finds that the 60-1507 motion “presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person.” Rule 183(m) extends that right to an appeal from a 60-1507 judgment, stating: “If a movant desires to appeal and contends he or she is without means to employ counsel to perfect the appeal, the district court shall, if satisfied that the movant is an indigent person, appoint competent counsel to conduct such appeal.” (2010 Kan. Ct. R. Annot. 257).
Albright argues the extension of the Ortiz exceptions to cases in which a 60-1507 movant has appointed counsel was recognized in Broum, 278 Kan. 481.
Brown
As Albright points out, Brown, like Albright, was provided with appointed counsel by the district court after Brown filed a pro se 60-1507 motion alleging ineffective assistance of trial counsel. After appointing counsel, the district court held a nonevidentiary hearing and denied the motion. Brown was not aware of any of the district court’s actions because appointed counsel failed to inform Brown of his appointment, of the hearing, of the court’s decision, or of the right to appeal. Further, counsel did not file an appeal. Brown, 278 Kan. at 482.
Over 2 years later, Brown learned of the outcome of his case and filed an untimely appeal, along with a motion asking the district court to permit the appeal. The district court denied the motion, citing Robinson v. State, 13 Kan. App. 2d 244, Syl. ¶ 4, 767 P.2d 851, rev. denied 244 Kan. 738 (1989) (holding there is no constitutional right to counsel or the effective assistance of counsel in a 60-1507 proceeding and, therefore, dismissal of the action because counsel failed to timely perfect appeal does not violate due process).
On appeal Brown argued “he should be allowed to file the appeal out of time pursuant to notions of due process and fundamental fairness and per State v. Ortiz, 230 Kan. 733.” Brown, 278 Kan. at 482-83. In response, the State argued that Ortiz did not apply and that there is no constitutional right to effective assistance of counsel in 60-1507 motions.
In sorting out these contentions, the Brown court acknowledged there is no constitutional right to the assistance of counsel in a 60-1507 proceeding because a 60-1507 proceeding is a civil action, not criminal, and the Sixth Amendment to the United States Constitution applies only to criminal proceedings. Nevertheless, K.S.A. 22-4506(b) grants a statutoiy right to counsel in some 60-1507 proceedings, and the court considered whether that statutory right included the right to effective assistance of counsel. The court referred to K.S.A. 22-4522(e)(4), which requires the Board of Indigents’ Defense Services to adopt rules and regulations that establish qualifications, standards, and guidelines for public defenders, appointed counsel, and contract counsel, and thereby suggests standards of competence are required for counsel. Brown, 278 Kan. at 484. In addition, the Brown court looked to other jurisdictions where courts held that some standard of competence is required by appointed counsel and quoted the following from the Tenth Circuit Court of Appeals:
“ ‘Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.’ ” (Emphasis added.) Brown, 278 Kan. at 484 (quoting Cullins v. Crouse, 348 F.2d 887, 889 [10th Cir. 1965]).
The Brown court was persuaded by this analysis and affirmatively declared that Brown had a right to the effective assistance of his 60-1507 appointed counsel. Further, the court concluded that appointed counsel’s failure to timely notify Brown of an adverse decision in the 60-1507 proceeding and of the right to appeal that decision resulted in the denial of Brown’s statutory right to effective assistance of counsel, entitling him to take his appeal out of time. In so holding, this court overruled any contrary language in Robinson, 13 Kan. App. 2d 244, or its progeny. Brown, 278 Kan. at 484-85.
Guillory
Three years later, however, this court denied another 60-1507 movant the right to file an untimely appeal. In Guillory, 285 Kan. 223, which is the decision relied on by the Court of Appeals in dismissing Albright’s appeal, the court ruled that the Ortiz exceptions did not save Guillory’s out-of-time appeal.
Relying on this holding, the Court of Appeals in this case issued an order to show cause why Albright’s appeal should not be dismissed. In the order, the Court of Appeals stated:
“The court notes the April 29,2009, order in which the parties agreed to accept the untimely notice of appeal as timely filed, on the theory that Appellant’s counsel failed to perfect his appeal. However, where a defendant files an untimely appeal from the denial of a K.S.A. 60-1507 motion, the exceptions of State v. Ortiz are inapplicable and the appeal must be dismissed. Guillory v. State, 285 Kan. 223, Syl. ¶ 3, 170 P.3d 403 (2007).”
Albright argues that this statement of the Guillory holding is overly broad because it ignores the facts of Guillory, specifically that Guillory was not represented by appointed counsel. The State agrees. Albright further argues the facts of this case and of Brown are distinguishable from Guillory because a district court appointed counsel to represent Brown and Albright.
As Albright notes, Guillory presented a different situation from Brown because Guillory acted as a pro se petitioner throughout the district court proceeding and did not have counsel to file an appeal when the district court entered a summary denial of Guillory’s 60-1507 motion, i.e., a denial that occurred without the appointment of counsel or a hearing. Nevertheless, Guillory, like Brown, contended that his case fell within the first Ortiz exception (failure to be informed of his right to appeal). He asserted that the principles of fundamental fairness require that a 60-1507 movant who has not been provided with appointed counsel should either be informed of the right to appeal by the court or be permitted to appeal the denial out of time. Albright makes the same argument.
The Guillory court clearly rejected the notion that a 60-1507 movant can rely on the first Ortiz exception in order to file an untimely appeal. Guillory, 285 Kan. 223, Syl. ¶ 3. The Guillory court explained:
“A fatal flaw in Guillory's argument is that the first Ortiz exception, excusing an untimely notice of appeal where the defendant was not informed of the right to appeal, was based on the fact that a criminal defendant has a statutory right to be advised of his or her right to a direct appeal. K.S.A. 22-3424(f) requires the sentencing court to inform criminal defendants of the right to appeal. See Phinney, 280 Kan. at 402 (discussing K.S.A. 22-3424[f], which requires trial court to advise defendant in a criminal case of right to appeal, and noting State v. Willingham,, 266 Kan. 98, 100-01, 967 P.2d 1079 [1998], and Ortiz indicate fundamental fairness requires that criminal defendant be advised of rights to direct appeal). In contrast, there is no statutory requirement that the district court advise a K.S.A. 60-1507 petitioner of the right to appeal the decision on his or her petition.” Guillory, 285 Kan. at 228.
Consequently if Albright’s argument is founded on the first Ortiz exception only, the Court of Appeals was correct in dismissing this appeal. But it is not. Before us, Albright’s counsel clarified that, although reasserting his request that this court recognize that a district court has a duty to inform a 60-1507 movant of the right to appeal, Albright also relies on the third Ortiz exception (counsel failed to perfect and complete an appeal). According to Albright, he had presented this issue to the Court of Appeals through (1) his focus on ineffective assistance of appointed counsel in his February 2009 pro se motion and (2) his contention there is “prima facie” evidence of ineffective assistance of appointed counsel. He further argues that Guillory did not address the third Ortiz exception. Rather, the Guillory court drew no conclusion regarding the rights of a 60-1507 movant who has appointed counsel. In that regard, he argues, the Guillory court did not overrule Browns conclusion that a 60-1507 movant who had appointed counsel had the right to file an out-of-time appeal as a remedy for appointed counsel’s deficient conduct.
We agree with these arguments. Contrary to the Court of Appeals’ conclusion in this case, the Guillory court did not reject the potential application of the third Ortiz exception in cases where the district court had determined that the 60-1507 movant had met the threshold to have counsel appointed. In fact, the Guillory court went out of its way to distinguish Brown by noting that “at the heart” of the Brown court’s reasoning was the notion that, under statutory mandate, appointed counsel must provide at least minimally competent assistance. Guillory, 285 Kan. at 228. The Guillory court reasoned the same consideration could not apply to a pro se 60-1507 movant, such as in Guillory’s case. The Guillory court reiterated that there is no statutory right to counsel at the district court level for indigent 60-1507 movants “until they meet the threshold showing of substantial legal issues or triable issues of fact.” Guillory, 285 Kan. at 228. A pro se 60-1507 movant who fails to meet this threshold does have a right to appointment of counsel on appeal “but not until after a notice of appeal has been filed.” Guillory, 285 Kan. at 228-29; see Supreme Court Rule 183(m). Thus, the court indirectly confirmed that the second Ortiz exception could not apply — there is no obligation to appoint appellate 60-1507 counsel unless counsel had been appointed for purposes of the proceedings in the district court or until after the notice of appeal has been filed. As far as the filing of a timely notice of appeal is concerned, a pro se 60-1507 movant is “in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel.” Guillory, 285 Kan. at 229. Consequently, this court concluded it had no jurisdiction to consider Guillory’s untimely appeal from the district court’s summary denial of the 60-1507 motion. The appeal was dismissed. Guillory, 285 Kan. at 229.
Although the Guillory court did not specifically say its decision had no impact on the application of the third Ortiz exception or the portion of the Brown decision that discussed the impact of counsel’s deficient performance in not fifing an appeal, the court’s efforts to distinguish Brown suggest that its holding regarding the third Ortiz exception has no application to cases where counsel was appointed. Rather, after the Guillory decision, Brown continues to be potentially applicable to the third Ortiz exception. Albright met the threshold for having and did have appointed counsel, so Guillory does not foreclose the possibility that he has a remedy under the third Ortiz exception.
Patton
The State does not dispute that conclusion but argues Brown was undercut by the subsequent decision in State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008), which it argues “changes the analysis.”
Essentially, the Patton decision clarified the parameters of the Ortiz exceptions and defined the process for analyzing whether Ortiz mandates an out-of-time appeal in direct appeals from a criminal judgment. The court emphasized that “[w]e set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal.” Patton, 287 Kan. at 217. This limitation to direct appeals means that the decision cannot be read to expressly overrule any decisions relating to postconviction proceedings, including Guillory or Brown. Nevertheless, the State argues that the decision undercuts the application of Ortiz to statutory procedures — such as this 60-1507 action — because the Patton court found that each Ortiz exception was rooted in the constitution. The Patton court explained:
“It is evident to us today that what have come to be known in Kansas as the three ‘Ortiz exceptions’ are grounded not only in fundamental fairness . . . but in the Sixth Amendment right to counsel. The first of the exceptions- — applicable when a defendant was not informed of the right to appeal — goes to procedural due process alone. The second and third exceptions — applicablewhen a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal — go to the right of counsel and effectiveness of counsel.” Patton, 287 Kan. at 218-19.
As for the first Ortiz exception (failure to be informed of the right to appeal), based on procedural due process, Patton clarified that a criminal defendant may qualify to take a late appeal “if he or she has been denied basic procedural due process, i.e., timely and reasonable notice and an opportunity to be heard.” Patton, 287 Kan. at 219. The Patton court went on to describe three Kansas statutes providing specific procedural safeguards of the right to appeal by certain criminal defendants. See K.S.A. 22-3210(a)(2) (district court accepting felony guilty or nolo contendere plea must inform criminal defendant of his or her waiver of right to appeal any resulting conviction); K.S.A. 22-3424(f) (at sentencing, district court must inform criminal defendant of his or her right to appeal the conviction and right to appeal in forma pauperis if unable to pay costs of an appeal); K.S.A. 22-4505 (district court must inform indigent criminal defendant of right to appeal the conviction and right to have appointed counsel and transcript of trial record for purposes of appeal). Patton indicated that due process is denied by the district court’s failure to abide by these statutes as they have been interpreted by earlier Kansas case law. None of these statutes pertain to postconviction appeals of 60-1507 decisions.
Therefore, with regard to the first Ortiz exception, Patton does not overrule Guillory or change Guillory’s conclusion that “there is no statutory requirement that the district court advise a K.S.A. 60-1507 petitioner of the right to appeal the decision on his or her petition.” Guillory, 285 Kan. at 228. If anything, the Patton analysis reaffirms that the first Ortiz exception is unavailable to a 60-1507 movant.
Regarding the second Ortiz exception (defendant not furnished with counsel to perfect an appeal), the Patton court clarified the exception is based on the right to counsel under the Sixth Amendment to the United States Constitution and “applies only to defendants who were indigent when they desired to take a timely appeal.” Patton, 287 Kan. at 223. The court recognized that a criminal defendant who had appointed counsel at the district court level is entitled to have appellate counsel appointed. The court explained that a criminal defendant who had retained counsel through sentencing proceedings but can no longer afford to retain counsel for his or her direct appeal must make a timely motion for appointment of appellate counsel.
Nothing in Patton’s discussion of the second Ortiz exception changed Kansas precedent holding that the Sixth Amendment right to counsel does not apply to a 60-1507 motion. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009) (no constitutional right to effective assistance of counsel in a 60-1507 action); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) (same); Taylor v. State, 251 Kan. 272, 279-80, 834 P.2d 1325 (1992) (no constitutional right to counsel in 60-1507 proceeding), disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997). Nor does Patton change the fact that under certain circumstances, postconviction petitioners are statutorily entitled to have counsel appointed to represent them. See K.S.A. 22-4506(b); Supreme Court Rule 183(m) (2010 Kan. Ct. R. Annot. 255).
As for the third Ortiz exception (counsel failed to perfect and complete an appeal), based on the ineffective assistance of counsel, Patton reiterated that a late appeal is allowed if a defendant was furnished counsel for the purpose of an appeal or has retained counsel but counsel failed to perform. See Wilkins v. State, 286 Kan. 971, 981, 190 P.3d 957 (2008) (Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel). The third exception does not focus on whether counsel has been assigned to a case through any particular mechanism but “on whether that lawyer performs up to a minimum constitutional standard once that assignment is made.” (Emphasis added.) Patton, 287 Kan. at 223-24. If counsel has failed to file or perfect a criminal defendant’s direct appeal, prejudice is presumed, but the defendant must still demonstrate that he or she would have taken a timely appeal. Patton, 287 Kan. at 225.
As the State argues in this case, the cited authorities and references to a constitutional dimension indicate the Sixth Amendment is the source of the third Ortiz exception, and the Sixth Amendment does not apply in a civil proceeding. Hence, the State makes a valid point that Brown’s reliance on Ortiz is called into question by Patton.
In response, Albright argues that the Patton court did not intend to limit the application of the third Ortiz exception to the Sixth Amendment right to counsel. Any legal representation of a litigant, under either constitutional authority or statutoiy authority, must be effective, he argues. Therefore, if appointed counsel in 60-1507 proceedings fails to appeal the district court’s denial of the 60-1507 motion, an untimely appeal should be permitted under the third Ortiz exception.
We agree with Albright that 60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel’s performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal. We do not agree, however, that it is the third Ortiz exception that allows an appellate court to accept jurisdiction. We reach these conclusions through several steps of analysis.
First, Patton does not discuss Brown much less overrule it. Even after Patton, this court has upheld the declaration in Brown that effective assistance of counsel is required where a postconviction petitioner is represented by appointed counsel. Robertson v. State, 288 Kan. at 229 (citing Brown for support in holding that counsel representing defendant on motion for postconviction relief was not authorized to act as an objective assistant to the court or to argue against his client’s position). In fact, we once again emphasized that “[ajppointment of counsel in a K.S.A. 60-1507 proceeding should not be a useless formality.” Robertson, 288 Kan. at 228. Indeed, today, we reaffirm this conclusion.
Second, even though the doctrinal basis for the third Ortiz exception is the Sixth Amendment right to counsel, a right that does not attach in Albright’s civil case, the rationale in Brown accounted for this doctrinal distinction but concluded that, regardless of the source of the right, a right to counsel, to be meaningful, necessarily includes the right to effective assistance of counsel. Hence, Pattons implicit conclusion that Ortiz was not available to someone in Brown’s (or Albright’s) situation does not mean the right to effective assistance of 60-1507 counsel has been eviscerated.
Third, albeit before the decision in Patton, we extended the Brown rationale by applying it to other statutoiy procedures, specifically, to the petition for review process. See, e.g., Kargus v. State, 284 Kan. 908, Syl. ¶ 1, 169 P.3d 307 (2007) (“A defendant who has been convicted of a felony and has appealed directly from that conviction has a statutory right to effective assistance of counsel when filing a petition for review in the direct appeal.”); Swenson v. State, 284 Kan. 931, Syl. ¶ 1, 169 P.3d 298 (2007) (“Appellate counsel’s filing of a petition for review 31 days after a Court of Appeals’ decision falls below an objective standard of reasonableness and effectively denies a defendant a statutory right to counsel. As a remedy, appellate counsel is allowed to file a petition for review out of time.”). Patton discussed Kargus, noting the Kargus decision “exposed the possibility of analytical tension and confusing overlap among Ortiz” and decisions regarding the test for determining whether counsel had been ineffective. Patton, 287 Kan. at 216. Then, in discussing the third Ortiz exception, the Patton court adopted the view we had taken in Kargus regarding the test to be employed to determine whether a court would apply an exception to the rule that an appeal (or, in Kargus’ circumstance, a petition for review) must be timely filed.
Kargus
In Kargus, we dealt with a situation similar to this case in that there is no constitutional right to counsel for the purpose of filing a petition for review of an unfavorable Court of Appeals’ decision, just as there is no constitutional right to counsel for a postconviction 60-1507 proceeding. Kargus, 284 Kan. at 911-12; see, e.g, Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982) (no Sixth Amendment right to counsel in discretionary appeals); Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993) (no constitutional right to counsel in petition for review process allowed by K.S.A. 20-3018[b] seeking this court’s discretionary review of an unfavorable decision by the Court of Appeals). Nevertheless, in Kargus we extended Brown and recognized there is a right to effective assistance of counsel, even where the right to counsel is based on a statute, not the Constitution. Kargus, 284 Kan. at 916 (statutory “right to counsel in the direct appeal of a felony conviction extends to all levels of the state appellate process, including the filing of the petition for review” and that right “includes the right to effective assistance of counsel”).
That right to effective assistance of counsel did not mean, however, that the Ortiz exceptions applied. In fact, we found that the third Ortiz exception did not apply because the doctrinal basis for it was both constitutionally and statutorily distinct from Kargus’ situation in which appointed counsel failed to seek this court’s discretionary review of the Court of Appeals’ decision. Nevertheless, we concluded it was appropriate to apply the same test the United States Supreme Court had applied in a Sixth Amendment setting to determine if appointed counsel had represented his or her client effectively. Kargus, 284 Kan. at 928. This test was stated in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
In Flores-Ortega, the United States Supreme Court was faced with an ineffective assistance of counsel claim arising after appointed counsel failed to file a direct criminal appeal. The Court concluded that the traditional two-prong test used to determine the merits of an ineffective assistance of counsel claim, which are stated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), applied in a situation where counsel’s performance resulted in the forfeiture of a proceeding. Under the Strickland test, it must be established that counsel’s conduct (1) fell below an objective standard of reasonableness and (2) resulted in prejudice to the defendant. Strickland, 466 U.S. at 687; see Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the Strickland stan-. dard).
But the Flores-Ortega Court also determined that the Strickland test had to be applied in a somewhat different way when a procedure had been forfeited. Addressing the first prong, the Court explained:
“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S. Ct. 961, 143 L. Ed. 2d 18 (1999) (‘[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit’). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. [Citation omitted.]” Flores-Ortega, 528 U.S. at 477.
Hence, the Court concluded that when counsel failed to file an appeal, the inquiry of whether counsel’s conduct fell below an objective standard did not need to focus on whether the appeal had been filed but on whether counsel discussed the right to appeal with his or her client and whether the client requested an appeal.
Likewise, the second prong of the Strickland test — determining whether the defendant was prejudiced — required some adjustment. The Flores-Ortega court explained that courts applying Strickland
“ ‘normally apply a “strong presumption of reliability” to judicial proceedings and require a defendant to overcome that presumption,’ [citations omitted], by ‘showing] how specific errors of counsel undermined the reliability of the finding of guilt.’ [Citation omitted.] Thus, in cases involving mere ‘attorney error,’ we require the defendant to demonstrate that the errors ‘actually had an adverse effect on the defense.’ [Citations omitted.]” Flores-Ortega, 528 U.S. at 482.
This presumption and the requisite showing of a different outcome could not be applied, the Flores-Ortrga court concluded, when counsel failed to file an appeal. The Court explained:
“Today’s case is unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel’s deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel’s deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether. . . . [T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because ‘the adversary process itself has been rendered ‘presumptively unreliable.’ [Citation omitted.] The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any ‘ “presumption of reliability,’ ” [citation omitted], to judicial proceedings that never took place.” Flores-Ortega, 528 U.S. at 483.
As a result, the Court reasoned, a presumption of prejudice should be applied to situations where a defendant “demonstrate [s] that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484.
In Kargus, we adapted the Flores-Ortega standard to the situation where appointed counsel failed to file a petition for review. Kargus, 284 Kan. at 928. The Flores-Ortega approach was adopted, without need for adaptation, in Patton as the standard for applying the third Ortiz exception. Patton, 287 Kan. at 224-25.
Hence, although the Patton analysis was premised on a Sixth Amendment right to counsel and Kargus on a statutory right to counsel, both recognized that, if the law grants a right to counsel, then effective assistance of counsel must be provided. As Brown concluded, no reason exists to carve out a weaker right to counsel in a 60-1507 action, which, as interpreted in Supreme Court Rule 183, may include the right to appellate counsel in certain circumstances. Rather, if a district court appoints counsel to represent a 60-1507 movant after finding the motion presents substantial questions of law or triable issues of fact and the movant is indigent, the movant has a right to receive effective assistance of counsel. Brown, 278 Kan. at 483-84.
Further, as analyzed in Patton and Kargus, regardless of whether that right is based on the constitution, statute, or both, if it is alleged that appointed counsel’s deficiencies resulted in the loss of the ability to pursue a procedure, the Flores-Ortega standard is to be applied. Under that standard, as modified for a 60-1507 proceeding: (1) If the movant requested that an appeal be filed and it was either not filed at all or was not timely filed, appointed counsel was ineffective and the untimely appeal should be allowed; (2) a movant who explicitly told his or her appointed counsel not to file an appeal cannot later complain that, by following instructions, counsel performed deficiently; or (3) in other situations, such as where appointed counsel has not consulted with the movant or the movant’s directions are unclear, the movant must demonstrate a reasonable probability that, but for appointed counsel’s deficient failure to either consult with the movant or act on the movant’s wishes, an appeal would have been filed. The movant need not show that a different result would have been achieved but for appointed counsel’s performance.
Applying a similar test in Kargus, we remanded to the district court for a determination of which of these circumstances applied and whether an out-of-time filing of a petition for review would be an available remedy. Here, a remand to the district court is not necessary because, recognizing the potential that the reasoning of Kargus might apply, the State, in its appellate brief, indicated its “willing[ness] to stipulate for the purposes of this appeal that (a) Albright was furnished an attorney for the purpose of an appeal, (b) the attorney failed to perform, and (c) but for counsel’s failure, Albright would have taken a timely appeal.” Given this stipulation, we can conclude Albright’s appointed counsel performed deficiently in failing to file a 60-1507 appeal. As in Kargus, we recognize that the remedy for appointed counsel’s deficient performance is to accept subject matter jurisdiction of Albright’s appeal.
Consequently, we reverse the Court of Appeals’ order denying jurisdiction and remand to the Court of Appeals for consideration of the merits of Albright’s appeal of the district court’s denial of his K.S.A. 60-1507 motion.
Reversed and remanded with directions to the Court of Appeals.
Buser, J., assigned. | [
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The opinion of the court was delivered by
Yalentine, J.:
If the record of the case brought to this court is a true record of the proceedings in the court below (which probably it is not,) the case must have been prosecuted, defended, and tried with but little regard to established rules of practice. From the record brought to this court it would seem probable that the court below committed several errors, but none of them are made sufficiently to appear to authorize our interference. Many of the errors assigned in the petition in error seem now to be abandoned; and even those which seem to be relied on in counsel’s brief are not sufficiently shown by the record to authorize a reversal of the judgment.
It is very doubtful whether the petition below states facts sufficient to constitute a cause of action; but no objection was made to it in the court below, and none is made here. The record does not purport to contain all the evidence; and such of the evidence as it does contain was objected to without any reason being given in the court below why it was objected to. Neither does the record purport to contain all the instructions given by the court to the jury, or refused to be given; and not one of the instructions given or refused was excepted to. The defendant below (plaintiff in error) moved the court for a new trial, but no reason is given in the record why a new trial was asked.
The first point made in plaintiffs’ brief is upon a ruling of the court below made during the examination of Stephen S. Sharp as a witness for defendant in error. The record reads as follows: “Plaintiff here offered to prove by this witness that the work of grading and filling the street in front of the Gano House was done in an wishillful, careless <md negligent mamner, to which defendants objected on the ground that the allegations of the petition would not admit of such proof, which objection was overruled and exceptions taken.” Now it will be admitted that the defendant below had the right to grade the streets adjacent to the plaintiff’s house, and was liable only to the plaintiff for negUgenee in doing the same; that negligence, unskillfulness, or carelessness was in fact, or should have been the real _gist of the controversy; and that if the petition did not allege that the grading was done negligently, unskillfully, or carelessly, so as to injure the plaintiff, the court erred in its ruling. We are inclined to think (though we have some doubts) that the allegations of the petition in this respect, and upon the objections made in this manner, were sufficient. But even if they were not sufficient, even if the ruling,of the court abstractly considered was erroneous, still the supposed error was not material,- for the witness did not give a word of testimony that tended to show that the grading was done care lessly, iinskillfully or negligently. Hence we should disregard such supposed error. Civil code, §§ 140, 304.
* As to the points made upon the instructions we shall not consider them as no exception was taken to any one of them: Code, §§ 276, 299, et seq.; Granger Iron Co. v. Street, 19 Ohio, 300; Kline v. Wynne, 10 Ohio St., 223, 226, et seq. See also French v. Millard, 2 Ohio St., 45; Sieglebright v. Hammond, 19 Ohio, 337; Blaney v. Hoke, 14 Ohio St., 295; Nichols v. Dusenbury, 2 N. Y., 284; Jones v. Osgood, 6 N. Y., 233; Hunt v. Maybee, 7 N. Y., 266, 273; Caldwell v. Murphy, 11 N. Y, 416; Oldfield v. N. Y. & H. R. R. Co., 14 N. Y., 310, 321; Nevins v. Bay State, 4 Bosw., 236; Varnum v. Taylor, 10 Bosw., 148; Magee v. Badger, 30 Barb., 247, 264; Cronk v. Canfield, 31 Barb., 171; People v. Horton, 4 Park. Cr., 223.
The judgment of the court below must be affirmed.
Kingman, O. J., concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Yalentine, J.:
This is an original action of quo warranto, brought by the plaintiff Edward Borton, to inquire by what authority the defendant J. Jay Buck assumes to exercise the duties of the office of justice of the peace in and for the city of Emporia, Lyon county.
The plaintiff filed his petition, and the defendant demurred thereto on the ground that the petition does not state facts sufficient to constitute a cause of action. The petition states in substance among other things that in April, 1869, the Township of Emporia in said county contained within its boundaries the Town of Emporia, an incorporated village; that in said April said Borton and Felix G. Hunt were elected justices of the peace for said Township; that they both resided in the Town of Emporia; that in April, 1870, the Town Of Emporia contained more than two thousand inhabitants, and was organized into a city of the second class; (Gen. Stat., 154, ch. 19, § 1; Laws of 1870, p. 114, ch. 49, § 1;) that the said Borton and Hunt continued to reside and hold their said offices in and for said city of Emporia; that in April, 1871, one justice of the peace only was elected, to-wit, said Hunt, who was his own successor ; that there has not been any successor to Borton elected; that said Borton still remains a justice of the peace in and for said city, and that the defendant has usurped said office.
Does this petition state facts sufficient to constitute a cause of action? It will undoubtedly be admitted tbat it states facts sufficient to sbow that the defendcmt bas no right or title to said office; but does it state facts sufficient to sbow tbat tbe flwmbiff bas any sucb right? This is tbe only question in tbe case. It is claimed by tbe defendant, and we think rightly, tbat if tbe petition does not state facts sufficient to sbow tbat tbe plaintiff is entitled to tbe office then tbe plaintiff bas no right to commence or prosecute tbis action, tbat in sucb case tbe County Attorney or tbe Attorney General only could commence or prosecute tbe action: Gen Stat., 760, code, § 654. Tbe real question then is, whether tbe plaintiff bas shown by bis petition tbat be bas a legal right to said office.
Tbe plaintiff was elected a justice of tbe peace in April, 1869, and unless bis office should become vacant by death, resignation, or removal therefrom, or by bis removal from tbe township, be would hold tbe same until April, 1871, (art. 3, § 9 constitution,) and until bis successor should be elected 7J , or appointed and qualified. (Art. 3, § 12, const.) Now, as neither death, resignation, nor removal bas intervened to produce any vacancy in said office, bow can it be said tbat said office bas ever become vacant? Tbe plaintiff still resides where be resided when be was elected, and bas not been removed from bis office by any legal proceedings. Then why does not tbe plaintiff still continue to be a justice of the peace? ~We think no satisfactory reason can be given why be does not.
Emporia Township was divided by operation of law. Tbe Town of Emporia became a city of more than two thousand inhabitants, and under tbe statutes first above cited was organized into a city of tbe second class; and also under tbe law it became a township for tbe purpose of electing justices of tbe peace, etc.: (Gen. Stat., 1092, cb. 110, § 48.) Tbe balance of Emporia township of course also became a township. Therefore two townships for tbe purposes of justices of tbe peace, etc., were created out of Emporia township as it existed before tbe division. Before tbe division tbe plaintiff resided in what was called tbe Town of Emporia; after the division he resided in the same place, but which was then called the city of Emporia, and under the provisions of § 49 of the chapter just cited he became a justice of the peace of that portion of Emporia township which had formerly constituted the Town of Emporia, but which after the division constituted the city of Emporia. Iiis successor has never been elected or qualified (the qualification only is material,) and therefore he still remains a justice of the peace for the city of Emporia: Art. 3, § 12, Const.; State v. Lusk, 18 Mo., 333; People v. Whitman, 10 Cal., 38; Commonwealth v. Hanley, 9 Penn. St., 513. This seems clear to us.
"We have carefully examined all the points made by counsel for defendant and do not consider them sufficient for the purpose he has made them. We (Lo not think that it is necessary that every justice of the peace shall have precisely the same jurisdiction, or the same duties to perform. But if it is necessary, then the act imposing additional duties upon justices of the peace of cities would be void, and such void act would not oust such justices from their offices. Neither do we think that it is necessary that all the townships in the state shall have precisely the same powers, or precisely the same number and kind of officers, any more than it is necessary that all the cities or all the counties in the state shall have precisely the same powers,- and precisely the same number and kind of officers. The constitution nowhere defines the powers or duties of townships, or the number or kind of officers that a township shall have. (Art. 9, § 2, Const.) This is all left to be prescribed by the legislature.
Neither does it appear to us that sections 48 and 49 of the “Act relating to Townships and Township Officers,” (Gen. Stat., 1092,) are unconstitutional, as is contended by counsel for defendant. While we feel clear that section 49 is not unconstitutional so far as it affects this case, we , „ „ , , , ’ . also, alter a careful consideration of ail the possible divisions of townships that may be made, are unable to see how it would in any case be unconstitutional. Even if the division should work an increase of the number of the justices in any township it would not be unconstitutional for that reason, because the number of justices may rightfully and legally be increased by the legislature. (Art. 3, § 9, Const.)
The plaintiff does not hold his office by virtue of any election or appointment of the legislature. He holds it under an election of the people; and he still remains a justice of the peace for at least a portion of the people who elected him, and for a portion of the territory for which he was elected. We do not understand that the defendant claims that the legislature could by law legislate a justice of the peace out of office; but he does claim that the plaintiff was elected justice of the peace for Emporia township; that when said township was divided that that portion of the township not included within the city of Emporia became Emporia township; that the city became another township; that the plaintiff could act as justice only for the township for which he was elected, and therefore when the division was made that it was necessary for the plaintiff to remove into that portion of Emporia township which was not included in the city of Emporia. This claim of the defendant presupposes that said sections 48 and 49 are unconstitutional, which we do not admit.
As the city of Emporia of itself, after the division, constituted a township, there can be no good reason given why it may not as well called “ Emporia township ” as that portion of the township outside of the city, suppose it will hardly be claimed however that a justice of the peace is elected for a mere name, or for a township of a certain name. We suppose it will hardly be claimed that the mere name is of any great importance. If the township of Emporia had been equally divided and one-half called Neosho Township and the other half called Cottonwood Township we hardly suppose that it would be claimed that the plaintiff would thereby be ousted from his office, or that his office would thereby become vacant; and yet there would be no Emporia township in which he could hold his office. In fact, when a township is divided neither portion can technically be said to be the old township, unless a half can be said in such cases to be tbe whole. In this connection we would refer to the ease of The State v. Dilloway, 31 N. J., 12, and the other cases cited in the brief of counsel for plaintiff. The defendant claims that the case of The State v. Messmore, 14 Wis., 163, and perhaps one or two other cases, are against this view. The cases that he refers to are not parallel however with this. The Wisconsin case comes the nearest. That was an action to determine whether the defendant Messmore was circuit judge of the sixth judicial circuit; but as both the statutes and the constitutional provisions under which he claimed to hold differ from ours the decision in that case is not authority in this. We presume that decision was correct under the Wisconsin constitution and laws, but still there is very great room to doubt its correctness there, and it certainly would not be law here.
J. Jay Bucle, defendant, for the motion.
Pmjgles c& Plumb, for plaintiff, in opposition.
The demurrer to the petition is overruled, and judgment is rendered for the plaintiff in accordance with his petition.
All the Justices concurring.
Antee the foregoing opinion was filed, the defendant Bucle filed a motion for leave to answer the plaintiff’s petition. This motion was supported by affidavit, and accompanied by a copy of the answer sought to be filed. The motion was heard and decided at the January Term, 1872. The facts alleged in the answer are fully stated in the following opinion of the court denying the motion:
The opinion of the court was delivered by
Yalenitne, J.:
This case was heard and decided at the last term of this court upon the petition of the plaintiff and the demurrer thereto of the defendant. The demurrer was overruled, and judgment rendered for the plaintiff on the petition. The defendant now asks to file an answer to the petition. He has shown by affidavit that he has used sufficient diligence, and that he is entitled to file the answer provided it states any defense to the plaintiff’s petition. The proposed answer is submitted with the affidavit for our inspection. The facts which the answer sets forth present only two new questions — only two questions which have not already been considered and decided in this case. First, it shows that at the regular election held in the city of Emporia on April 3d, 1871, one G. W. Frederick was duly elected a justice of the peace for the place now claimed by the plaintiff, but that said Frederick declined, to qualify, and has never qualified; that after he was duly declared to be elected, and on the 5th of April, 1871, Frederick, by “ a written communication to the Governor of Kansas, refused to qualify to said office, and requested the said governor to appoint and commission this defendant (Buck) to said office of justice of the peace for said city.” Second, the answer also shows that on the 6th of April, 1871, the governor appointed the said defendant to said office, and that afterwards the said defendant duly qualified.
Are these facts a good defense to the plaintiff’s action? Or, in other words, upon the admitted facts set forth in the plaintiff’s petition, and these facts, is the plaintiff, or is the defendant, entitled to the said office of justice of the peace ? The plaintiff was the justice of the peace April 3d, 1871; at that time Frederick was elected his successor; two days thereafter the votes were canvassed; Frederick was declared elected, and he declined to qualify; on the third day after the election the defendant was appointed by the governor; the defendant qualified; Frederick never qualified. Who, then, is the justice of the peace? Our statutes give a justice of the peace twenty days after he has been notified of his election within which to qualify:- Gen. Stat., 1085, ch. 110, § 16. And it might be very seriously questioned whether the refusal of a justice of the peace to qualify, at any time previous to the expiration of the twenty days, would be of any force or effect, or whether an appointment of of another person to such office, founded upon such refusal, would be of any validity.
Could not the justice-elect, after he had refused to qualify, change his intentions within the twenty days, and then qualify? But without expressing any opinion upon this question, we shall pass to the others. The first question is, whether the election of Frederick, and his refusal to qualify, vacated the office held by the plaintiff. We think it did not. We have no statute or constitutional provision in this State, as they have in some of the other States, providing that if the successor to any person in office shall fail to give bond or qualify, that the office shall be deemed vacant. And hence any decision in any State, founded upon such a statute or constitutional provision, can have no application in this State] On the contrary, we have a constitutional provision that declares that “All judicial officers shall hold their offices until their successors shall have been qualified.” (Const., Art. 3, § 12.) This provision does not declare that a judicial officer shall hold his office until his successor shall refuse to qualify; or until after the time for him to qualify has elapsed; but it declares that such judicial officer shall hold his office until Ms successor shall have been qualified. And if his successor should never qualify, it would seem to follow as a necessary corollary, that such judicial officer could, if he should choose, continue to hold his office indefinitely. Under this constitutional provision, we think Borton, the plaintiff, continued to legally hold the office of justice of the peace, notwithstanding that his intended successor was elected and refused to qualify.
This brings us to the second question, which is:. Was the act of the governor appointing the defendant a justice of the peace valid? It seems to be the policy of this State that all judicial officers shall be elected by tfie people. All are originally elected. The governor can appoint judicial officers onlv to . -, -, . . . ,,, _ ml yacancies, and ins appointees hold only till the _ , x x , „ J next regular election, etc., (Const., art. 3, § 11,) when their successors should be elected by the people: State, ex rel. Watson, v. Cobb, 2 Kas., 32, 53 to 56. And as almost every judicial officer who holds over after his term has expired, was elected by the people, we would expect to find that he would continue to hold his office under the constitution until his successor could be elected by the people, and that the governor could appoint only in a case where the office was absolutely vacant; and such we thint the constitution does provide. The governor can appoint only to fill vacancies. The constitution provides that, “ In case of vacancy in any judicial office, it shall b& filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” Const., art. 3, § 11. Now the office in the present ease was not vacant; it was already filled, and legally filled; and how an office filled can be an office vacant is not easily understood. There is no provision for the governor to remove a judicial officer, or to vacate his office. He cannot create a vacancy; he can only appoint when the “vacancy shall have happened
But it is claimed by the defendant that the office was vacant in one sense, though filled in another, when the said appointment was made. Even if this were true, (and that words can be used in different senses cannot be denied,) still it it was not vacant in the sense contemplated by the constitution: Commonwealth v. Handy, 9 Penn. St., 513; State v. Lusk, 18 Mo., 333. In order to prove that the office was vacant in the sense used in the constitution, the defendant lays down the following propositions: The term of office of a justice of the peace is just two years, and no more; the term of office of the plaintiff expired on the 5th of April, 1871, at the time when his successor was duly declared to be elected; after that time, and until his successor was qualified, he was filling a portion of his successor’s term, and not a portion of his own term. Now admit that all of these propositions are true, and still they do not prove what the defendant claims for them. An office is an entire thing; it is a unity, although it may be composed of many terms. It is not two. offices because it may. be composed of two terms. However many terms it may be composed of, it is still only one office. And although an officer’s term may have expired, if he holds over he is still filling the office. An officer is as much filling the office after his successor has been elected, and before he has qualified, if we consider that he is then filling a portion of his successor’s term, as though we should consider him to be filling an extended portion of his own term. If he is filling a portion of his successor’s term, he is doing so under and by virtue of the constitution, the highest authority known to our State government; and how can his right to so fill it be abridged by the governor? A person may be elected to a.judicial office when there is no vacancy, and qualify and take the office on the very day that his predecessor’s term expires, or at any time afterwards within the time prescribed by law; but a person cannot be appointed to a judicial office unless an absolute vacancy has already occurred. He cannot be appointed in contemplation of a vacancy, which it is supposed may in the future be created.
It seems to be admitted by the defendant that if that portion of time, after an officer’s successor has been elected and before he has qualified, is a portion of this officer’s original term, then, that there was no vacancy in the case for the governor to fill. Our decision is that as Frederick never qualified, he never became a justice of the peace, but that the plaintiff continued to hold the office; that he continued to be the justice of the peace, and that there was no vacancy in the office for the governor to fill; and therefore that the plaintiff continues' to hold the office, and that the defendant has no right thereto.
The defendant, who is a lawyer, has been his own counsel in this case. And he has shown by his ability in presenting his side of the same to this court, not only that he is amply competent to fill the office of justice of the peace, but that he needed no other counsel to assist him in this court. If we have erred, it is certainly not his fault.
Tbe motion, for leave to file an answer will be overruled, and tbe judgment heretofore rendered will be allowed to remain in full force.
All the Justices concurring.
I * Tee court use the term, “any person in office" 3STo such provision exists as to Township officers, which class includes Justices of the Peace. But as to County officers, see §179, ch. 25, Gen. Stat., p. 294; The State, ex rel., v. Matheny, 7 Kas., 327. And as to State officers, see § 81, ch. 103, Gen. Stat., p. 989. — Reporter.]
[ * This should probably be qualified so as not to include the office of Prodate Judge, said office being a County Office: §§ Si, 86,179, ch. 25, Gen. Stat. See note, ante p. 312. — Reporter.] | [
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The opinion of the court was delivered by
Brewer, J.:
Appellant was convicted of the crime of grand larceny and sentenced to confinement and hard labor for two years in the state penitentiary. Oí this judgment he now complains, and alleges several errors. First, that the information upon which he was tried was not properly verified. It was verified by the prosecuting attorney, upon information and belief We think that was sufficient. The law contemplates a verification by tbe prosecuting attorney as an oificial act. A party accused has a right to a preliminary examination, and a finding of probable cause before be can be placed upon his final trial. At such examination be can be beard by bis counsel and witnesses. It is made the duty of tbe prosecuting attorney by § 68 of tbe code of criminal procedure to inquire into all cases of preliminary examinations which have resulted adversely to the accused. If in bis judgment no information ought to be filed, be is required to prepare and file a statement in writing of bis reasons therefor, which being approved by tbe court terminates tbe prosecution. No verification is required to this statement. Yet it is as potential in favor of tbe defendant, as tbe information is against him. Again, in extreme cases the judge may require tbe prosecuting attorney to file an information against a supposed criminal, and compel compliance by attachment, fine and imprisonment. (Code of Crim. Procedure, § 71, den. Stat., p. 832.) Surely tbe law does not contemplate tbe absurdity of requiring an officer to swear positively to tbe existence of facts of which be bas no personal knowledge, and punishing by fine and imprisonment a failure to comply with this requirement. It would be more consonant with tbe spirit' of tbe criminal law to punish the officer for taking such an oath, than for refusing to take it. Tbe rule may be different where a private individual verifies tbe information, for with him it is voluntary and not an official act. However, it will be time enough to consider that question when it is properly before us. This whole method of prosecuting by information was in use in Michigan some years before it was adopted here, and this identical question was passed upon by tbe supreme court of that state. "We cannot do better than quote tbe forcible language of Judge Christiancy, of that court, as reported in Washburn v. The People, 10 Mich., 385: “"Why mention the prosecuting attorney at all, if the facts are to be sworn to on personal knowledge? He is no more likely to have personal knowledge of such facts than any other person, though he is from his official duties more likely to be informed of the nature of the evidence. Tlie statute seems to contemplate the verification by a single person only, and makes no provision for compelling the attendance of witnesses for such purpose, or for requiring them to testify. The object of this verification is not, as in the ‘ examinations ’ alluded to, to satisfy the court that the defendant is guilty. It is not for the purpose of evidence which is to be weighed and passed upon, but only, as we think to secure good faith in the institution of the proceedings, and to guard against groundless and vindictive prosecutions; and this object is fully met by the previous examination and a verification upon belief.”
II. When the case was called for trial defendant filed an affidavit that he desired to call the presiding judge as a witness in his behalf, and moved the court to order the election of a jU(%e Pro ^6m- This motion the record shows was oyerruled, but thereupon the presiding judge declined to sit in the case, and directed the election of a judge pro tern., which was accordingly had, and the trial proceeded with under the direction of thejpro tern, judge thus elected. As the defendant obtained that which he sought, we fail to see any error of which he can complain. Whether the reason given was good or not, if the act ordered was proper, no error lies.
III. The remaining errors alleged consist in the reception and rejection of testimony, and the giving and refusal of instructions. But at the outset we are met by a counter objection that there is no legal bill of exceptions in the record, and therefore none of these alleged errors are before us. It is claimed that the supposed bill of exceptions was signed and filed out of term. If so it never became a part of the record, and must be wholly disregarded. Brown v. Rhodes, 1 Kas., 359. The defendant was tried at the February Term 1871 of the district court of Douglas county. The verdict was rendered on the 8 th of March. On the 9th of March the bill of exceptions was presented. From the 9th the court adjourned until the 21th of March. It then met and adjourned until the 10th of April. From that day it adjourned to tbe 28th of April, upon which day tbe motion for a new trial was overruled, and this bill of exceptions was signed and filed, over the objection of the prosecuting attorney. All this was done in open court. That it was done under the direction of tbe judge pro tem. can make no difference, for by § 8 of tbe act concerning district courts, Gen. Stat. p. 305, the judge pro tem. has “the same power and authority, as the regular judge, while holding court, and in respect to cases tried before him.” But it is urged that the February Term of the district court of Douglas county was ended by operation of law before tbe day upon which this bill of exceptions was signed and filed. Section 4 of an act concerning district courts, Laws 1869, p. 119, provides that “ the terms of court in the fourth judicial district shall commence as follows: In the county of Anderson on the second Monday of March; * * * * in the county of Douglas on the second Monday in February, on the third Monday in August,” etc. The second Monday in March, 1871, was the 13th of that month. Upon that day then the regular term of court in Anderson county commenced. Upon that day too it is claimed the term of the district court of Douglas county by necessity closed; for it is said that the court is considered in session from the commencement to the close of the term, and if the term did not close in Douglas county at the time it commenced in Anderson there would be “ two terms of the district court in session in the same district at the same time, doing business and trying cases, with but one district judge.” It does not appear from the record that there was practically any such difficulty as that suggested; or that the judge of the district court was attempting the physical impossibility of a personal presence in Garnett and Lawrence at the same time, or even that the judge fro tem. was engaged in holding court in Douglas on the same days that the regular judge was holding court in Anderson county — a question, by the way, which may involve considerations very different from that presented by this record. So far as appears here, (for we cannot presume difficulties and collisions when none are shown,) tbe district court of Douglas county was adjourned by order of tbe judge from a day prior to tbe commencement of tbe regular term in Anderson county to a day subsequent to its close. "Was such adjournment ulPra vwesf and did the term lapse notwithstanding such order? This is the naked question. The legislature have named the day for the opening of a term, but have not for the closing. That is confided to the discretion of the judge, and is determined by the amount of business and the necessity of suitors. By § 10 of the amendments to the code of civil procedure in 1870, (Laws 1870, p. 174,) actions are “triable at the first term of the court after the issues therein, by the times fixed for pleading, are or should have been made uj> ten days before the term.” It may often hajjpen that the time is insufficient to dispose of all the triable actions in one county before the day fixed for the commencement of the term in another. Has the law given to a party the right to have his case tried at a given term, and at the same time denied to the court the power to secure that right? Again, §10 of the act concerning district courts, Gen. Stat., p. 308, provides that the “judges of the several district courts shall have the power to hold such special and adgowrnecl terms in any county in their respective districts as they may deem necessary.” For special terms, notice is required; but for an adjourned term a simple order adjourning the court to a given time, is all that is necessary. A special term is a separate, independent term. An adjourned term is but a continuation ■ — a part of the regular term. Giving the district court power to hold an adjourned term, gives it power, not to adjourn from day to day, but to adjourn over a length of time, over intervening obstacles to the holding of court. It seems to contemplate just such an exigency as the present, where the business in one county is incomplete and yet the day fixed for the commencement of the term in another has arrived. -The time of such adjournment is not restricted, unless it is deemed to be by the commencement of the succeeding regular term in that county. Being but a continuation, a part of the regular term, the unfinished business may be completed, bills of exceptions signed, etc. Again, while it is true there is a sense in which it may be said that the court is considered in session from the commencement to the close of the term, and this theoretical continuity involves the presence in the county of all the officers of the court, including the judge, yet there is a practical limit to the application of this doctrine beyond which an attempt to carry it involves a manifest absurdity. Supposing that a judge holding court in some adjoining county during the present week should adjourn for a day, and come here to attend the State Fair, and that during that day an exigency should arise in his county which demanded the immediate exercise of the restraining power of an injunction, to whom shall the application therefor be made? By § 239 of the civil code the district judge, “or in his absence from the county, the probate judge” may grant an injunction. Now, by the strict theory of the continuity of the term, the district judge is present in the county, and therefore the probate judge has no jurisdiction. As a matter of actual fact he is absent from the county, and therefore the probate judge has jurisdiction. Unquestionably the latter view is correct, and illustrates a practical limitation to the idea of the continuity of a term. "We conclude then that the adjournment of the district court from the 9th to the 21th of March was not ultra m/res, that the term did not lapse on the 13th of March, and that the bill of excejfiions is a part of the record, and that the errors alleged in it are proper subjects for our consideration. In coming to this conclusion it is a satisfaction to know that thus we are not estopped by a technical objection from an examination of this case on its merits, and the defendant deprived by an error which he could not help (for he presented his bill of exceptions on the 9th of March,) of a full examination of his alleged grievances in the ultimate court of his state.
Eecurring then to the bill of exceptions, we find the following questions presented: The crime charged was the larceny of packages from the possession of the Express Company which through its agent was bringing them from places along the line of the Leavenworth, Lawrence and Galveston railroad on the evening train to Lawrence. On the trial it was proven that John Mack was tbe messenger of the Express Company, that he came up witb tbe train on tbe night in that be bad. tbe custody of tbe packages charged to have been lost; that about two hours after tbe arrival of tbe train which brought him and tbe packages to Lawrence, said Mack called at tbe bouse of witness, James 0. Horton, and made statements to Horton in relation to tbe packages in controversy, and their loss; that John Mack is dead. It was then asked of tbe witness Horton to state to tbe jury what John Mack then said in relation to tbe loss of the packages, and when the same were lost. Tbe proof was objected to by defendant as incompetent and hearsay testimony, which objection was overruled by tbe court, and defendant excepted. Tbe witness thereupon testified to Mack’s declarations alleging tbe loss of tbe packages, when and where be bad lost them, etc. Tbe defendant insists that this testimony is incompetent because it is hearsay. We fail to see any rule of evidence by which this testimony can be made competent. It is not proving tbe testimony given on a former trial by a witness since deceased, but tbe voluntary statement of such deceased person. It was not a declaration against tbe interest of tbe party making it, for. Mack being in possession and responsible for tbe safety of tbe packages, bis statements suggesting larceny by another, are in excuse of bis own conduct, and tending to exonerate himself from liability or suspicion. Instead of being against interest, they are strongly and plainly in his interest. Nor are they admissible as part of tbe res gestee. In order to make a declaration evidence upon this ground there must be a principal fact which it attends, and whose character it serves to explain. There must be concurrence in point of time between tbe act and tbe declaration; otherwise it is but a narrative of what has been or an assertion of what will be done. Mr. Justice Fletcher in giving tbe opinion in Lund and Wife v. Inhabitants of Tyngsborough, 9 Cush., 41, discusses this question at' some length and witb great perspicuity. We quote a few sentences: “If a declaration lias its force by itself as an abstract statement, detached from any particular fact in question, depending for its effect on the credit of the person making it, it is not admissible in evidence. Such a declaration would be hearsay; as, where the holder of a check went into a bank, and when he came out said he had demanded its payment. This declaration was held unadmissible to prove a demand, as being no part of the res gestee. This statement was mere narrative, wholly detached from the act of demanding payment which was the fact to be proved.” Chief Justice Hosmer, in Enos v. Tuttle, 3 Conn., 250, says that declarations to become part of the res gestee “ must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.” See also 1 Greenleaf Ev., § 108; 4 Gray, 41, 584; Farmer v. Turner, 1 Iowa, 53; Ellsins v. Hamilton, 20 Vt., 627; Noyes v. Ward, 19 Conn., 250.
The declarations of Mack were not eotemporaneous with any act connected with the larceny. They do not purport to be statements concerning what is transpiring, but a narration of something which has already transpired. They qualify and explain no present act. They are but a history of the past; and whether that past be two hours or two years old cannot affect the principle. They are but hearsay. Nor does the fact that the witness is dead, and no better evidence than his statements of what transpired can be produced, affect the rule. Hearsay is but hearsay, whether the party whose statements are sought to be introduced be living or dead. This error is a material one. We cannot say how far it affected the minds of the jury in coming to their conclusion; but that it might have some influence, is evident. A great many other questions are presented in the bill of exceptions, but as this disposes of the case, and the other questions may not arise on a second trial, we forbear any dicussion of them.
The judgment of the district court will be reversed and a new trial awarded, and the defendant will be returned from the penitentiary and delivered over to the jailor of Douglas county to abide tbe order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Ejngman, O. J.:
This was an action brought by Seibert as the assignee of William IT. R. Lykins against James E. True. Ey the pleadings it became in effect an interpleader to ascertain who was entitled to the money, True admitting that he owed it to somebody, and asking the court to determine to whom he should pay it. The case was tried by the court, and special findings of fact made, and judgment entered accordingly.
The counsel for plaintiff in error' claim that this is a chancery case, and that this court must proceed with it as though it was an original case, and inasmuch as all the evidence is in the record, this court must proceed as the court of review formerly did on appeals in chancery cases, ^ x x ° ' and, disregarding tlie findings of tlie court below,
examine the evidence as though it was originally given in this court. The counsel overlooks a material change made in the code as to the manner of taking evidence in chancery cases, a change which compels corresponding action on the part of this court. In chancery cases, before the code, all the evidence was originally presented to the chancellor in writing, and the reviewing court had the same opportunities to form an opinion on it that the chancellor had. Rut under the code the court, when it tries a case hears oral testimony, and has the same opportunities to judge of the credibility and weight of testi mony that a jury has. The court, like a jury, sees the witness, observes his intelligence, his leanings, and his manner as a witness, and can thus form a more correct judgment of the value of the testimony than this court can. Therefore this court will not set aside the findings of a court, even in an equitable proceeding, unless from an examination of the record we are able to say that the findings are wrong. A careful examination of the evidence in this case authorizes us to say that the findings are amply supported by the evidence.
The findings will be of themselves a sufficient history of the case to enable the reader to understand the decision of this court. They are as foliows:
“On or about the 17th of April, 1867, George A. Matthews purchased of one Michael Driskell thirty head of cattle, and paid part of the purchase money to said Driskell, and gave his note for the sum of $1,325 for the balance due, payable to the order of said Driskell in ninety days after date, with interest. The note was dated April 17th, 1867. Of the cash payments made by said Matthews to said Driskell on said cattle, the said Wm. H. R. Lykins advanced to said Matthews the sum of $250, and said Lykins signed said note of $1,325, jointly with, and as the security of, said Matthews, and took from said Matthews a bill of sale for said thirty head of cattle. Said bill of sale is absolute on its face, and purports to be for the consideration of $1,500; but it was intended and considered by the parties as a chattel mortgage, and as a security for the said $250 advanced by said Lykins, and also to indemnify him as the- surety on said note,.and no other consideration passed. Matthews owned and possessed seven other head of cattle, not included in said chattel mortgage, making in all thirty-seven head of cattle owned by said Matthews. On or about the 1st of May, 1867, Matthews employed the True Brothers to herd and take care of said cattle, and the said True Brothers gave a receipt for the thirty-seven head of cattle in the name of W. Ií. R. Lykins. The True Brothers took charge of said cattle, and in a few days thereafter Matthews went south to Texas, to purchase cattle, and has never returned to this section of the state. About the last of June or first of July, Lykins said be bad a letter from said Matthews directing the cattle to be sold and the money applied to the payment of said note to Driskell. Before said note fell due it was purchased by defendant “Winters, of Driskell, who indorsed and transferred it for a full and valuable consideration. Lykins paid on said note to the said defendant Winters, shortly after the same fell due, the sum of $200, and $50 in October, 1867, making in all $250. The court find that the balance of said note, with the interest thereon, is due to the said defendant Winters, amounting to the sum of $1,211.82. The court further find that after the death of said Matthews, and on or about the 4th of October, 1867, said Lykins sold the thirty-seven head of cattle to the defendant James E. True for the sum of $1,880.67, which said sale has since been duly ratified by the said R. W. Sparr, administrator of the estate of the said George A. Matthews deceased; and that said sum of money is now in the hands of the said True, to be paid over to the parties entitled thereto; that of this sum $1,524.60 are the proceeds of the cattle embraced in said chattel mortgage, and $356.07 thereof are the proceeds of the balance of said cattle, after paying all expenses. The court find that the said Winters repeatedly called on said Lykins for the payment of said Driskell note, after the same became due; that the said Lykins promised the said Winters to, pay said note, and lift the same, as soon as'the cattle embraced in said chattel mortgage were sold. The court further find that at the time of the sale of said cattle to said True, as aforesaid, the said Matthews was dead; and that after the death of the said Matthews the said Sparr was duly appointed administrator of his estate, by the probate court of Douglas county, and qualified as such;.that on the 10th of October, 1867, said Lykins made a general assignment of all his property, debts, claims, and dioses in action, including said claim of $1,880.67 against said defendant True, unto the plaintiff Seibert for the benefit of the creditors of said Lykins, without preference; and that said defendant True has been garnisheed on said claim at the suit of "Win. Rosenthal v. W. H. R. Lykins in the district court of Eranklin county.
“ Upon these facts the court find as matter of law, that the plaintiff Seibert is entitled to a judgment against the said True for the sum of $312.78, the balance of the proceeds of the mortgaged property, after paying the said Winters the amount due on the said Driskell note; that the said Winters is entitled to a judgment against the said Time for the sum of $1,211.82, the amount now due -of principal and interest on the said note to Driskell, and assigned to the said Winters; that the said Sparr, as administrator of the said Matthews deceased, is entitled to a judgment against the said True for the sum of $356.07, the jxroceeds of said cattle not included in said chattel mortgage.” Judgment was rendered accordingly, to be suspended as to Seibert until the garnishee suit of Rosenthal should be determined.
As the claims of Winters and Sparr rest on a different basis, they necessarily require a separate examination; and Winters’ claim will first receive our attention. In answer to observations made by the counsel for plaintiff in error, we will remark that the whole evidence places Winters’ claim in a more favorable light than the findings of the court, as it has impressed us. Lykins’ testimony is full on this point; not only his representations to Winters, when the note was due, that the cattle were to be sold to pay the note, but he testifies that “ It was understood between Mr. Matthews and myself’ that when I realized on the cattle I should pay the Driskell note out of the jxroceeds.” It is true that he elsewhere states that the $250 advanced to Matthews to pay Driskell on the cattle was a part of the consideration for which the bill of sale was made, and this is doubtless, true; nor are the statements at all conflicting. It was unquestionably thought the proceeds of the sale of the cattle would pay what they cost; that is, both amounts. The fall of the value of cattle disajpointed both parties. There was a loss. The testimony is reconcilable only on the hypothesis that the Driskell note was first to be paid. Such a view harmonizes the testimony of Lykins with itself, and with the testimony of Winters as to the representations made to him by Lykins when the note became due. While we have thus gone beyond the findings, to the evidence, ' our decision will be based on the findings only. We can go behind the findings to see that they are supported by the evidence; and when that fact is ascertained we look to them to them to see if they support the judgment.
The law of the ease is, that a surety holds all securities that he takes, in trust, not only for the other sureties, if there are any, but for the creditors also, until the debt is gQ jong as the trust fund can be reached. 1 Story Eq. Jur., §§ 499, 502; New Bedford Institution for Savings v. The Fairhaven Bank, 9 Allen, 175; Moses et al., v. Murgatoyd, et al., 1 Johns. Ch., 119; Phillips v. Thompson, 2 J. C., 418. In Ten Eyck v. Holmes, 3 Sanf. Ch., the vice-chancellor says: “This principle was settled a century and a half ago;” and for a recent illustration of it refers to Curtis v. Tyler and Allen, 9 Paige, 432. This last cited case holds the principle fully. See also the note to Deering v. Earl of Winchelsea, in 1 Leading Cases in Equity, 162, 163, 164, where the authorities sustaining this doctrine are collated. Nor does it make any difference that the creditor did not rely originally upon tlie credit of such collateral security, or know of its existence.
Applying this principle to the case before us, and it clearly sustains the decision of the court as to the claim of Winters as against Lykins; and his assignee is in no better position. It is further urged that there is no proof of Lykins’ insolvency, and no finding of any such fact. It is in proof that he had made an assignment of all his property, including the fund in controversy, for the benefit of his creditors; and that fact is found by the court. Whether this is prima facie evidence of insolvency, we need not determine, for Winters’ rights were not dependent upon that fact. (See Curtis v. Tyler and Allen, supra.) Winters was not bound to wait until the fund went into the hands of the assignee, and assert his rights there. It was a better time for all parties to settle the disputed questions in this action. Winters was entitled to the payment of his debt in full, if the sale of the cattle mortgaged was sufficient. . .
Sparr’s claim, as administrator, rested on a much simpler foundation. Matthews owned the seven head of cattle — had always owned them since he bought them; and the testimony is clear that they remained his at the time of his death. Such being the case, and his administrator having ratified the sale made by Lykins to True, was entitled to the money for which they were sold. Lykins5 possession of these seven head, (if such a fact is to be assumed from the receipt given from Time to Lykins, and witnessed by Matthews,) was only as agent for the sale of them; and such agency expired with the death of Matthews, and Matthews5 administrator was entitled to the property. If Matthews died indebted to Lykins, his estate is bound for it; and, as far as the assets go, will pay it. There is nothing to show that Lykins had any preference over any other creditor.
Certain other questions were pressed in the argument, which will now receive attention. It is claimed that there was no proof of the death of Matthews. The letters of , , . . . . n , __ aamimstration were m evidence, and this was all the testimony on this point; and this was enough to make a friona facie case. 1 Greenl. Ev., § 550.
Again; it is claimed that a letter written to Sparr by Lykins, after his assignment, was improperly admitted in evidence. The record does not show any such letter; and as it was received subject to objections, and the record purports to contain all the evidence, it is presumed the letter was excluded.
Another objection is, that Sparr was allowed to testily as to the contents of a written contract between the decedent Matthews, and Wright and Posey. Witness had seen the contract in the hands of Seibert, and the testimony is this: “It was a contract by which Wright and Matthews were partners, and purchased a lot of Texas cattle of Posey, and agreed to pay therefor on reaching ing Kansas with the cattle.” This was all the testimony about the contract. This testimony was clearly incompetent, as no effort was shown to obtain the contract itself. But the fact was immaterial, and was admitted subject to objection as is frequently done where the same tribunal hears the testimony and decides the case, and as appears was done in this case. The fact was not only immaterial, but plainly appears not to have had any influence in the findings of the court, as not one of the facts found in the slightest degree depends upon the contract between Matthews and Wright as to the Texas cattle. The error therefore is not one for which the judgment will be reversed. The judgment is affirmed.
Brewer, J., concurring.
Valentine, J., not sitting in the ease. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an action to restrain the collection of taxes. It was brought in the district court of Saline county, and upon final trial there judgment was rendered for defendants. The taxes were levied for the year 1868, and their collection was stayed for two years by an injunction from the U. S. courts granted on the application of some of the stockholders of the company plaintiff. That suit was dismissed, and thereupon the c efendants, as officers of Saline county, were preparing to enforce the collection when this action was brought.
In the case of the Mo. River, Ft. Scott & Gulf R. R. Co. v. Morris, Treasurer Bourbon county, 7 Kas., 210, this court had under consideration the question under what circumstances an injunction should be granted to restrain the collection of taxes, and the conclusion reached was that “ irregularities in the assessment made by the county clerk will not render the taxes founded upon such assessment void, and that a court of equity will not set aside such a tax, nor grant an injunction to restrain its collection, unless its collection would be inequitable and unjust, and the party seeking such a remedy must be prepared to do equity.” To the rule thus enunciated we adhere, and adhering to it find a solution of most of the questions presented in this case.
It is not pretended that the taxes were illegal, nor that the property assessed was not subject to taxation, nor is there anything in the agreed statement of facts tending to show that the assessment was excessively high, or even approximating the actual value of the property assessed. Under such circumstances it would seem to be grossly unjust to other tax-payers to release this one from the obligation to contribute its proportion to the support of the government which equally protects all. It is claimed that the proceedings to assess and value the property were so different from those required by law that the whole were void, and that there was in truth no assessment of the plaintiff’s property upon which to base the levy of a tax, and also that the raising of the valuation by the board of county commissioners was without authority and void. It is objected to the assessment that the affidavit attached to it is not in the form prescribed by the statute. This is true. The act concerning taxes (Gen. Stat., ch. 107, §§ 87, 63,) gives the forms of affidavits to be attached by assessors to their returns of real and personal property respectively. The affidavit in this case does not conform strictly to either. It is an affidavit that “ we have set forth all property which by law we were required to list in behalf of the Union Pacific Railway Co., E. D., according to the best of our knowledge, and have not exceeded the true amount thereof.” As long, however, as there is an affidavit which shows that the assessment has been truthfully made by the assessor, even though it does not conform to the letter of the statute, we do not think that a court of equity ought to interfere by injunction. IVEore than that, it may be questionable whether any affidavit is required of the county clerk when he makes an assessment in pursuance of the power conferred by § 53 of the act concerning counties and county officers: Gen. Stat., p. 266. It is further objected that the assessment is made by the deputy assessor and county clerk jointly; that this duty is devolved by the statute upon one or the other separately, and that it is not contemplated that they should divide the responsibility by uniting in discharging this duty. This is unquestionably correct. No joint assessment is provided for. Individual responsibility is sought. But this assessment is the assessment of the county clerk. It is his judgment of the value of the property assessed. That some one else agrees with him as to the value only strengthens the presumption in favor of its correctness. It is not a case where, three acting, the judgment of one may be overborne by the opinions of the other two. ¥e cannot see how the plaintiff suffers wrong when two men, either of whom might make the assessment, agree as to the valuation. Again, it is objected that there is no sufficient description of the property assessed, no proper distinction between tbe real and personal property, that tbe supposed assessment is not entered in a tabular form in a book, but simply returned on a slip of paper, and that it does not purport to be an assessment and list, but is simply a statement of property in the possession or under tbe control of tbe plaintiff March 1st, 1868. Tbe agreed statement of facts shows that tbe following paper was returned to tbe county clerk in relation to tbe assessment of railroad property for 1868:
“ ‘ Statement of railroad property in tbe county of Saline, in tbe possession or under tbe control of tbe Union Pacific Eailway Company, E. D., liable to taxation March 1st, 1868:— 32 miles of railway, including road-bed, track, bridges, water and wood stations, and apportionment of locomotives, cars of all kinds, but without depot buildings or depot grounds, (wood, office furniture, depot apparatus, and money, which last named articles were assessed separately,) at $10,000 per mile, total value, $320,000.’ ”
We think there can be little difficulty in reading this as a listing and assessment of tbe railroad property in that county for taxation. And as the assessment of both real and personal property is made by tbe same person, and as since 1869 tbe taxes on them are collected in tbe same manner, we fail to see bow a mingling of real and personal property in one assessment can have prejudiced tbe plaintiff, or what ground it furnishes for tbe interposition of a court of equity.
In regard to tbe raising of tbe valuation we might, perhaps, with some propriety waive any consideration of it, in this case, for tbe reason that tbe record does not show that tbe plaintiff ever paid or offered to pay tbe taxes on tbe basis of tbe valuation of tbe county clerk, and it might be time enough after that was done to consider whether the assessment was properly raised. But this application is addressed to a court of equity, and having the necessary parties before us, we have concluded to dispose of all tbe questions and thus settle tbe whole.matter in difference without further litigation. The- assessment as returned includes real and personal property. The valuation was raised by tbe board of county commissioners from $10,000 per mile to $16,000 per mile. There is nothing to show whether this increase was on account of the real or personal property. We cannot presume in favor of the county that it was on account of the real. To uphold it it must be shown that all the steps necessary to give the county commissioners authority to act in respect to either real or personal property were taken. Now it has been decided by this court at the present term in the case of the Comm’rs of Leavenworth Co. v. Lang, (ante, 284,) that the county board has no power to increase the valuation of personalty without notice to the party “that he may have an opportunity of showing that his statement or return of the assessor was correct.” Now the agreed statement of facts, (for this case was tried on an agreed statement of facts, and hence comes before us as it did before the district court,) fails to show the service of any such notice. True, the notice of the meeting of the county commissioners as a board of equalization was published in the county paper, but that board had authority only in reference to realty, and notice of its meeting calls the attention of tax-payers only to such property. The county board raised the valuation of plaintiff’s property on the 10th of July, 1868. The agreed statement recites that “Notice was given to the principal accounting officers of the Union Pacific Eailway Co., E. D., at St. Louis. Mo., and also to the Sup’t of said Eailway Co., at Lawrence, Kansas, or at Kansas City, Mo., by the county clerk of Saline county, by mailing to their address, in the fore part of July, 1868, to the following effect: that they should appear and show cause why the assessment upon the railroad track and other realty appurtenant thereto should not be raised by the board of county commissioners for the county of Saline.” This is all that there is in reference to notice. It is insufficient. It amounts to no more than the notice in the papers. It respects only the realty; more than that, we are not informed by this agreed statement whether these officers of plaintiff were addressed at the places of their residence or business, or where they could be reached by letter. We cannot take judicial notice of the place where plaintiff has its officers. But again, it does not appear that the notice was given in time. It is said to have been mailed in the “ fpre part of July.” That is indefinite. Was it before the 10th, the day upon which the valuation was raised, or after? Who can tell? If before, was it mailed in time to enable the officers, after receipt, to reach Saline and make their showing by the 10th? The law requires that notice be given “ that he may have an opportunity of showing,” etc. No such notice is shown to have been given. It does not appear that plaintiff had any opportunity of showing that the original valuation was correct. Under these circumstances it seems to us that the act of the county commissioners in raising the valuation was without authority and void.
The case will therefore be remanded to the district court of Saline county with instructions that if the plaintiff shall, within such reasonable time as shall be fixed by said court, pay the taxes due upon the basis of the valuation fixed by the county clerk, to-wit, $10,000 per mile, then a perpetual injunction shall be decreed as prayed for, otherwise the judgment heretofore entered in favor of the defendants shall be affirmed. The costs in this com! will be divided equally between the parties.
All the Justices concurring. | [
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Hie opinion of the court was delivered by
Kingman, C. J.:
This case was tried by the court. Special findings of fact and conclusions of law were found by the court, to which all parties excepted, and the case is brought to this court. A brief statement of the case is as follows: On the 5th of April, 1858, Naomi Oasebolt, being the owner of the N.’W.i of Sec. 29, in Township 19, of Eange 12, in what is now Lyon county, conveyed the same by deed of general warranty to Henry Gunlde in fee simple. This deed purports upon its face to have been for the consideration of $500; in fact it was a voluntary conveyance without any consideration. Henry Gunlde having died, and his widow having intermarried with Samuel S. Chapman, Naomi Casebolt in 1869 filed her petition against the plaintiffs in error, and the children of Henry Gunlde, setting up that Henry Gunlde by fraud had induced her to execute the deed as a deed in fee simple to himself, representing that the deed was a conveyance to himself in trust for his children, and she being quite ill and relying on said representations signed the deed believing it to be as represented, and praying that the deed might be declared void. Plaintiffs in error answered denying that the deed was obtained by fraud or misrepresentations. The children of Henry Gunlde answered through their guardian ad litem, and by amendments made their answer conform to the findings of the court. The judgment in substance was that the deed from Naomi Case-bolt to Henry Gunlde be reformed as of the date when it was made, so as to be a conveyance by Naomi Casebolt of the land therein described to Henry Gunlde and to John Gunlde, Martha Ann Gunlde, Freddr Gunlde and William Gunlde, children of said Henry Gunlde, as tenants in common during the natural life of said Henry Gunlde, and at his death to his said children in fee simple. The facts as found by the court fairly sustain the judgment.
The first point made in this court is, that the findings of fact are not sustained by the evidence. Reluctant as this court has ever been to interfere with the decisions of a court or jury on questions of fact, we cannot escape the conclusion in this case that the court erred as to the facts found. The only witness who testified as to what was the understanding that the deed was to contain, is Mrs. Casebolt herself. She testifies that she was quite ill; that she was carried to town by Mr. Gunlde; that the deed was drawn and presented to her, that she never read it or heard it read, but having confidence in Mr. Gunlde, who had married her niece, and believing the deed to be drawn according to the previous understanding between herself and Mr. Gunkle, she signed and acknowledged it without a knowledge of its contents. The understanding between herself and Gunkle was, that the deed should contain stipulations for the maintenance of witness during her lifetime, and subject to that charge to Henry Gunkle and his children. Further explaining, she said she was to have it while she lived, then the children to have it, and Gunkle was to raise the children on it. This testimony is nowhere contradicted in the record. Without it, there is nothing that would authorize any relief whatever. There is much other evidence introduced tending to show that Gunkle had repeatedly made admissions that would be inconsistent with the belief that the deed was to himself in fee simple; but they are all in harmony with, although they do not go so far as the testimony of this witness. The reasons given by Mrs. Oasebolt are natural and sensible, and her testimony is the only evidence that "shows the understanding on which the deed was made, and must have been believed, for without proof that there was some understanding on her part as to what the conveyance was to be, which was not realized by the deed, there could be no relief whatever. This testimony will not support the finding on which the judgment is based.
This conclusion results in setting aside the judgment rendered. And as all the defendants in error excepted to the conclusions of the court below, and made many exceptions to the rulings of the court in receiving and rejecting evidence, which rulings are not now before us for decision, a final judgment cannot be ordered by this court, but the case must be sent back for a" new trial. When the exact facts are ascertained will be a suitable time to determine what relief is authorized by law. At present we can only say that we have seen no case, nor are we aware of any principle, that will sanction a decree so reforming a deed of gift as to make it a deed to other parties, without the consent and against the efforts of the maker of the deed, as was done in this case. As the facts may justify some relief we send the case back for further proceedings.
All the Justices concurring. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against the respondent, James M. Roswold, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1994.
On June 15, 2010, the Disciplinary Administrator’s office filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on July 7, 2010. A hearing was held on die complaint before a panel of the Kansas Board for Discipline of Attorneys on August 24, 2010, where the respondent was personally present and represented by counsel. The hearing panel determined respondent violated KRPC 1.1 (2010 Kan. Ct. R. Annot. 406) (competence); 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); 1.5(d) (2010 Kan. Ct. R. An-not. 458) (fees); 5.1(a) and (c)(2) (2010 Kan. Ct. R. Annot. 573) (responsibilities of partners, managers, and supervisory lawyers); 5.5(b) (2010 Kan. Ct. R. Annot. 579) (unauthorized practice of law); 8.4(a) (2010 Kan. Ct. R. Annot. 603) (misconduct); and Supreme Court Rule 116(a) (2010 Kan. Ct. R. Annot. 202) (admission pro hac vice of out-of-state attorney). After the hearing’s conclusion, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
FINDINGS OF FACT
“2. In 1990, tire Missouri Supreme Court admitted the Respondent to the practice of law. At drat time, the Respondent began working for Deacy & Deacy in Kansas City, Missouri. In 1993, the Respondent left the Deacy firm and joined Copilevitz, Bryant, Grey & Jennings, P.C. At the Copilevitz firm, the Respondent began working for Mark Schmid. [Footnote: Mr. Schmid was licensed to practice law only in the state of Missouri.]
“3. In 1994, while employed by the Copilevitz firm, the Respondent sought and obtained a license to practice law in Kansas. The Respondent remained at the Copilevitz firm, working for Mr. Schmid until 1995. At that time, Mr. Schmid formed his own firm and the Respondent left the Copilevitz firm to work for Mr. Schmid as an associate.
“4. Thereafter, in 1999, the Respondent and Mr. Schmid formed a partnership, Schmid & Roswold, P.C. Throughout the time that they practiced together, their practice included personal injury, worker’s compensation, and medical malpractice litigation.
“5. On February 10,2004, [J.C.]... contacted Mr. Schmid regarding a potential medical malpractice case against four physicians, Johannes Heynes, Michael McCoy, James Fischer, and Craig Vosburgh. Mr. Schmid accepted the representation and agreed that the firm would bring suit in Kansas against the four physicians in behalf of [J.C.].
“6. After agreeing to represent [J.C.], Mr. Schmid discussed the case with the Respondent. Mr. Schmid prepared the petition for the Respondent’s signature. The Respondent reviewed and signed the petition. On March 18, 2004, the petition was filed in the Shawnee County District Court, case number 04C00393. The Respondent was the attorney of record in case number 04C00393.
“7. At no time during the pendency of case number 04C00393, did the Respondent apply for the limited admission of Mr. Schmid to the practice of law in Kansas for the purposes of representing [J.C.] pursuant to [Supreme Court Rule]116. Even though he was not admitted to practice in Kansas, Mr. Schmid was lead counsel in [J.C.]’s case. The Respondent merely reviewed and signed pleadings for Mr. Schmid.
“8. In April, 2004, the Respondent received a letter from the court advising that case number 04C00393 had been placed on the court’s docket for setting or dismissal on July 9, 2004, pending service, submission of a case management order, request for a scheduling conference, and/or the completion of discovery.
“9. On July 16, 2004, the court dismissed case number 04C00393 without prejudice. At that time, the Respondent and Mr. Schmid allowed the case to be dismissed because they had been unable to find and qualify a medical expert as to the qualify of care provided by the physicians.
“10. On December 31, 2004, the Respondent refiled [J.C.]’s suit against the four physicians in the District Court of Shawnee County, Kansas, case number 05C00011. Again, the Respondent reviewed and signed the pleadings. The Respondent was, likewise, the attorney of record in 05C00011.
“11. Again, at no time during the pendency of case number 05C00011, did the Respondent apply for the limited admission of Mr. Schmid to the practice of law in Kansas for the purposes of representing [J.C.] pursuant to [Supreme Court Rule] 116. Mr. Schmid continued to be lead counsel for [J.C.] and, practically speaking, did all the work on [J.C.j’s case. The Respondent merely reviewed and signed pleadings for Mr. Schmid.
“12. On October 23, 2006, the Respondent dismissed Dr. Heynes and Dr. McCoy because he had been unable to find an expert witness to establish their negligence.
“13. On April 30, 2007, Dr. Fischer filed a motion for summary judgment. On May 4, 2007, Dr. Vosburgh filed a motion for summary judgment. The motions were received by Schmid & Roswold, P.C. and were directed to Mr. Schmid. Mr. Schmid did not inform the Respondent that Drs. Fischer and Vosburgh had filed motions for summary judgment. Mr. Schmid intentionally concealed the motions from the Respondent.
“14. On May 24, 2007, Mr. Schmid wrote to [J.C.], mentioned the summary judgment motions, provided a detailed summary of the case status, and recommended settlement. Mr. Schmid, however, did not prepare responses to the motions for summary judgment.
“15. Thereafter, on July 13, 2007, the court issued a memorandum opinion and entry of judgment, granting the remaining defendants’ unopposed motions for summary judgment and dismissing [J.C.j’s case against the remaining two physicians, Dr. Fischer and Dr. Vosburgh. Mr. Schmid did not inform [J.C.] or the Respondent that [J.C.j’s case had been dismissed. Mr. Schmid intentionally concealed the court’s memorandum opinion and entry of judgment from the Respondent.
“16. In August, 2007, Mr. Schmid spoke by telephone with [J.C.] regarding her case. Mr. Schmid falsely told her that nothing had changed regarding the case prospects and he would see what he could do to get it resolved.
“17. On October 10, 2007, Mr. Schmid spoke with [J.C.] by telephone again. At this time, Mr. Schmid indicated that he believed that he could settle the case for approximately $30,000. [J.C.J authorized Mr. Schmid to settle the case for between $30,000 and $35,000.
“18. On December 16, 2007, Mr. Schmid again spoke with [J.C.] by telephone. During that conversation, Mr. Schmid falsely informed [J.C.] that he had settled the case for $32,500.
“19. On December 17, 2007, [J.C. j came to the offices of the Respondent and Mr. Schmid. Mr. Schmid presented [J.C.] with a settlement sheet. According to the settlement sheet, Mr. Schmid had advanced $17,676.14 in expenses, Schmid & Roswold, P.C. was entitled to a fee of $10,833.33, and [J.C.j’s net recovery was $3,990.53.
“20. Mr. Schmid presented [J.C.] with a release and a trust account check in the amount of $3,990.53, dated December 17, 2007. At no time, did the Schmid & Roswold, P.C.’s trust account have monies belonging to [J.C.].
“21. [J.C.] was not satisfied with the way in which the settlement proceeds were divided. As a result, she contacted Gary White, an attorney in Topeka, Kansas. Mr. White looked into the case for [J.C.] and learned that the last two remaining defendants in 05C00011 had been granted summary judgment in July, 2007. Mr. White informed [J.C.] of his findings.
“22. On December 21, 2007, [J.C.] contacted Mr. Schmid and informed him that she was very unhappy with the settlement and that she was considering filing a bar complaint. Mr. Schmid agreed to meet [J.C.] to discuss the matter further.
“23. On December 28, 2007, Mr. Schmid met with [J.C.] in Topeka, Kansas. At that time, Mr. Schmid provided a check to [J.C.] in the amount of $10,833, the amount that he had previously claimed was his fee.
“24. On January 18, 2008, Mr. White wrote to [J.C.] concerning the assistance he had provided her and dechning to represent her further. In the letter, Mr. White detailed the conduct of Mr. Schmid. Mr. White sent a copy of the letter to the Disciplinary Administrator.
“25. Throughout the time that Schmid & Roswold, P.C. represented [J.C.], the Respondent never met [J.C.]. The Respondent failed to seek the limited admission of Mr. Schmid pursuant to [Supreme Court Rule] 116. Despite the fact that the Respondent was attorney of record in both cases filed in the District Court of Shawnee County, Kansas, the Respondent did nothing to ensure that [J.C.] was adequately represented.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulation and the above findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5(d), KRPC 5.1(a), KRPC 5.1(c)(2), KRPC 5.5(b), KRPC 8.4(a), and [Supreme Court Rule] 116, as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to exercise appropriate thoroughness and preparation in his representation of [J.C.]. Despite that he was attorney of record in both cases filed in the District Court of Shawnee County, Kansas, the Respondent took no action to ensure that [J.C.] was adequately represented. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent was responsible for the representation of [J.C.]. He was the attorney of record in the cases filed in her behalf. In order to provide diligent representation to [J.C.], the Respondent would have had to take a more active role in her representation. Thus, the Hearing Panel concludes that the Respondent failed to diligently and promptly represent [J.C.] in violation of KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent was attorney of record and responsible for keeping [J.C.] apprised of the status of the case. The Respondent never met with nor communicated with [J.C.], The Respondent failed to take an active role in the case and thus was kept in the dark about the filing of the motions for summary judgment and the ultimate dismissal of 05C00011 as it pertained to Drs. Fischer and Vosburgh. Because the Respondent failed to adequately communicate with [J.C.], the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. Contingent fee agreements must be in writing. KRPC 1.5(d) provides the requirement in this regard:
‘A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (f) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. All such expenses shall be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing tire client’s share and amount and the method of its determination. The statement shall advise the client of the right to have the fee reviewed as provided in subsection (e).’
The Respondent entered into a contingency fee agreement with [J.C.] but failed to reduce the agreement to writing. Thus, the Hearing Panel concludes that the Respondent violated KRPC 1.5(d).
“6. KRPC 5.1(a) provides:
•‘A partner in a law firm and lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.’
The Respondent was a partner in the firm and had appropriate managerial control and authority. The Respondent was the only Kansas attorney and was, as a result, the defacto managing partner for all'Kansas cases. In this case, the Respondent failed to ‘malee reasonable efforts to ensure that the firm [had] in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct’ with regard to [J.C.]’s case. KRPC 5.1(a). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.1(a).
“7. In certain circumstances, one lawyer will be held responsible for another lawyer’s violations of the rules of professional conduct. KRPC 5.1(c)(2) provides the rule in this regard:
‘A lawyer shall be responsible for another lawyer’s violation of the rules of professional conduct if. . . the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.’
Clearly, Mr. Schmid violated the rules of professional conduct with regard to his representation of [J.C.]. Further, the Respondent stipulated that he violated KRPC 5.1(c)(2). As such, the Hearing Panel concludes that the Respondent had comparable managerial authority and he knew of Mr. Schmid’s conduct at a time when its consequences could have been avoided or mitigated, but that he failed to take reasonable remedial action and, thus, violated KRPC 5.1(c)(2).
“8. KRPC 5.5(b) prohibits attorneys from ‘assisting] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.’ The Respondent knew Mr. Schmid did not have a license to practice law in the State of Kansas. Additionally, the Respondent knew that Mr. Schmid was meeting with, advising and otherwise representing [J.C.] in a Kansas case. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 5.5(b).
“9. ‘It is professional misconduct for a lawyer to . . . [v]iolate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.’ KRPC 8.4(a). The Respondent knowingly assisted Mr. Schmid in the violations of the Kansas Rules of Professional Conduct when he allowed Mr. Schmid to meet with, advise, and otherwise represent [J.C.] in a Kansas case. As a result, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a).
“10. [Supreme Court Rule] 116(a) provides as follows:
‘Any attorney not admitted to the practice of law in Kansas but who is regularly engaged in the practice of law in another state, territory of the United States, or the District of Columbia, and who is in good standing pursuant to the rules of the highest appellate court in that jurisdiction, may on motion be admitted to practice law in the courts or any administrative tribunal of this state for the purpose of a particular case only upon showing that he or she has associated an attorney of record in the case who is regularly engaged in the practice of law in Kansas and who is in good standing under all of the applicable rules of the Kansas Supreme Court. The Kansas attorney of record shall be actively engaged in the conduct of the case; shall sign all pleadings, documents, and briefs; and shall be present throughout all court or administrative appearances. Service may be had upon the associated Kansas attorney in all matters connected with the case with the same effect as if personally made on the outofstate attorney within this state.’
The Respondent violated [Supreme Court Rule] 116(a) when he failed to have Mr. Schmid admitted pro hac vice in [J.C.]’s case. The Respondent entered his appearance and the Court would have no way of knowing that the Respondent was not actively engaged in the conduct of the case. Accordingly, the Hearing Panel concludes that the Respondent violated [Supreme Court Rule]116(a).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal profession to comply with the rules of the Kansas Supreme Court.
“Mental State. The Respondent negligendy violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his client and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in die degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. Previously, die Respondent entered the Attorney Diversion Program. The diversion agreement required the Respondent to create a diary system to track cases. While the Respondent successfully completed the terms and conditions of diversion, he failed to adequately adopt such a diary system. Had he done so, the misconduct in this case might have been avoided.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct that spanned a six year time period. According to the Respondent’s testimony approximately 10 other cases were similarly situated. The Respondent’s pattern of misconduct included neglecting to track cases where he was attorney of record and fading to ensure that Mr. Schmid was admitted pro hac vice in Kansas cases where appropriate. Had the Respondent been regularly conducting a modest check of the open cases, he could have easily detected Mr. Schmid’s misconduct.
“Vulnerability of Victim. [J.C.] was vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Missouri Supreme Court admitted the Respondent to the practice of law in 1990. Four years later, the Kansas Supreme Court admitted the Respondent. Accordingly, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent has attempted to right Mr. Schmid’s wrongs and otherwise rectify the misconduct.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent cooperated during the hearing and fully and freely acknowledged his transgressions and those of Mr. Schmid.
“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 presented the testimony of two character witnesses. Additionally, the Respondent provided letters in support of the Respondent’s character. As such, the Hearing Panel concludes that the Respondent enjoys a good reputation among his peers.
“Imposition of Other Penalties or Sanctions. The Respondent has had other penalties or sanctions imposed upon him by the lawsuit that was filed against him. However, the Respondent did not suffer a personal financial loss as a result of the suit.
“Remorse. At the hearing on this matter, the Respondent expressed remorse for having violated the Kansas Rules of Professional Conduct.
“In addition to the abovecited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.
‘8.3(b) Reprimand is generally appropriate when a lawyer:. . .has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended for a period of six months. Counsel for the Respondent recommended that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the disciplinary panel’s findings, and the parties’ arguments to determine whether KRPC violations exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of .the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In this case, respondent filed no exceptions to the panel’s final hearing report. Accordingly, the report’s findings and conclusions are deemed admitted. Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344). And for the most part, our own review of the record satisfies us that the panel’s findings of fact are supported by clear and convincing evidence and justify its conclusions of laws. But we take exception to the panel’s determination that respondent’s violations resulted entirely from negligence. We find the record supports a different conclusion that respondent knowingly disregarded his professional responsibilities, especially as it concerns Schmid’s unauthorized practice of law in Kansas.
We base this conclusion on the panel’s findings that respondent: (1) knew Schmid was meeting with, advising, and representing J.C. in her Kansas lawsuit when Schmid was not authorized to practice law in Kansas and not admitted pro hac vice by the district court; (2) knowingly assisted Schmid in the unauthorized practice of law by signing notices to take depositions that only Schmid planned to attend; and (3) knew about a prior problem relating to Schmid’s representation of clients in a Kansas-based case. As to this latter point, the record reflects respondent entered into a diversion agreement with the Disciplinary Administrator regarding Schmid’s handling of a Kansas workers compensation case and was aware there was a civil lawsuit against respondent’s law firm concerning the same incident. This knowledge coincided with respondent’s representation of J.C. We further note the panel found there were approximately 10 other cases involving circumstances similar to those in J.C.’s case, which led the panel to conclude that respondent engaged in a pattern of misconduct spanning a 6-year time period. We agree with that conclusion.
From these circumstances, we find respondent was more than negligent. He had actual knowledge of at least some of the ethical violations to which he has admitted. In some other incidents, respondent remained purposefully oblivious to the pitfalls attendant to a law practice straddling different states when the firm’s attorneys were not authorized to practice law in one of those states. Therefore, we reject the panel’s broad determination that respondent acted negligently in all instances of cited misconduct. We further find, as did the panel, that Schmid’s failure to comply with Supreme Court Rule 116 (2010 Kan. Ct. R. Annot. 202) led to many of the enumerated violations of the Rules of Professional Conduct. This finding underscores the rule’s importance and merits some additional comments.
Supreme Court Rule 116(a) provides for admission pro hoc vice in a specific case filed in Kansas only if: (1) out-of-state attorneys are in good standing with the respective jurisdictions in which they practice; and (2) the out-of-state attorney associates with an attorney of record who regularly practices law in Kansas. The rule requires the Kansas attorney be “actively engaged” in the conduct of the case; sign all pleadings, documents, and briefs; and be present throughout all court or administrative appearances. The admission of an out-of-state attorney to appear pro hac vice is a privilege authorized and regulated by this rule and always subject to judicial discretion. Skahan v. Powell, 8 Kan. App. 2d 204, 208, 653 P.2d 1192 (1982).
The rule serves as the procedural vehicle through which out-of-state attorneys are permitted on a temporary basis to involve themselves directly in litigation filed in Kansas courts. But the rule’s purpose is to protect the public by ensuring familiarity with state law and local practices. Thornburg v. McClelland, 186 Kan. 20, 22, 348 P.2d 617 (I960) (“[ljawyers not regularly practicing in the state are not usually familiar with the law and procedure thereof and . . . the public is entitled to have adequate counsel”). Without admission pro hac vice, out-of-state attorneys appearing in Kansas courts, or actively participating in pretrial proceedings such as depositions or mediations, would be engaged in the unauthorized practice of law in this state. See In re Anonymous, 932 N.E. 2d 1247, 1249 (Ind. 2010) (“Indiana co-counsel is subject to discipline if the out-of-state attorney fails to satisfy the requirements of the rule governing temporary admission.”).
We have found the unauthorized practice of law to be contrary to the public interest and within the court’s obligation to protect the public by maintaining appropriate standards for representation of litigants in Kansas courts. State ex rel. Stephan v. Williams, 246 Kan. 681, Syl. ¶ 4, 793 P.2d 234 (1990) (“The Kansas Supreme Court has the inherent power to prescribe conditions for admission to the bar and to define, supervise, regulate, and control the practice of law in Kansas.”); State ex rel. Stephan v. O’Keefe, 235 Kan 1022, 1036, 686 P.2d 171 (1984) (“In the interpretation of the laws and administration of justice it is essential that there be members of the bar with ability, adequate learning and sound moral character. One of the important functions of this court is to admit only such persons to the practice of law in the courts of this state.”); State ex rel. Boynton v. Perkins, 138 Kan. 899, Syl. ¶ 3, 28 P.2d 765 (1934) (“One of the important functions of this court is to . . . prevent the practice of law by unauthorized persons.”). See also In re Hughes, 833 N.E.2d 459, 460 (Ind. 2005) (violation of professional conduct rule against unauthorized practice of law for Indiana lawyer to permit Michigan attorney to handle depositions and mediation in Indiana case); Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119, 129, 70 Cal. Rptr. 304, 949 P.2d 1( 1998) (“Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so.”).
Applications to appear pro hac vice must be filed as soon as reasonably possible with the court or administrative tribunal where the case is pending. Supreme Court Rule 116(b). And to ensure compliance with the rule, admission pro hac vice is necessary before out-of-state counsel’s active involvement with any pretrial proceedings associated with the Kansas litigation. Here, respondent testified it was his practice not to seek Schmid’s admission pro hac vice until there was an actual court appearance in a case. This, respondent conceded, resulted in Schmid participating in depositions, other pretrial matters with opposing counsel, and even mediation, without ever complying with Supreme Court Rule 116. Schmid eventually was able to begin withholding information from respondent and manipulating the client precisely because respondent was not “actively engaged” in what was happening in J.C.’s litigation and had a practice of not seeking Schmid’s temporary admission pro hac vice as soon as reasonably possible as required by the rule. Respondent’s conduct ignored his responsibility not to assist in the unauthorized practice of law and treated his ethical duty to invoke the temporary pro hac vice admission process for out-of-state attorneys as something minor and perfunctory.
That said, we emphasize our rule does not require local counsel to actively present the case in person each time there is a proceeding. Oswald v. State, 214 Kan. 162, 166, 519 P.2d 624 (1974). But it does require local counsel’s substantive attention by being actively engaged in the conduct of the case, signing all court filings, and being present at all court or administrative appearances. What constitutes “court or administrative appearances” is universally understood to include appearances before the court or tribunal, but it does not necessarily extend to attendance at discovery depositions or mediations unless so ordered by the court or required by local rule. See, e.g., 4th Judicial District Court local rule 4.203 (2009) (“Local counsel shall be required to appear at the taking of depositions, unless excused by prior order of the Court, where it appears that counsel’s presence will not be necessary.”); 18th Judicial District local rule 206 (2008) (“Local counsel shall be required to appear at the taking of depositions, unless excused by prior order of the Court, where it appears that counsel’s presence will not be necessary.”).
District courts, of course, may require local counsel’s attendance — or excuse it — at any pretrial proceeding except court and administrative appearances as specified by Rule 116. Courts and tribunals handling a particular matter are best equipped to decide if local counsel’s attendance at depositions or mediations is necessary. And local counsel should be clear on the expectations of the trial court or tribunal while serving in a local counsel capacity. But just because local counsel may not be required to attend a deposition or mediation does not mean an out-of-state attorney may take or defend a deposition, or participate in mediation, without first having been authorized by the district court through Supreme Court Rule 116 to be admitted to practice law in this state for that particular case. The purposes behind the rule would be meaningless without this first step of applying for admission pro hac vice and having out-of-state counsel formally enter an appearance early in the proceedings. As noted above, respondent’s failure to ensure compliance with Supreme Court Rule 116 led to many of the enumerated violations against him.
With respect to the discipline to be imposed, the panel’s recommendation is advisory only and does not prevent the court from imposing different discipline. In re Cline, 289 Kan. 834, 846, 217 P.3d 455 (2009); Supreme Court Rule 212(f) (2010 Kan. Ct. R. Annot. 344). In this case, the panel recommended public censure and the Disciplinary Administrator’s office argued for a 6-month suspension.
We find the panel’s recommendation inadequate given the severity of these offenses. A majority of the court finds a 1-year suspension from the practice of law is the more appropriate penalty but believes respondent should have an opportunity to be reinstated after the first 6 months of suspension as provided below. A minority of the court would impose a longer suspension.
At oral argument, respondent admitted his violations of the Supreme Court Rules for attorney discipline and focused our attention on his considerable efforts to rectify the harm caused to his clients and others. He also outlined ways he has modified his case management practices to avoid future problems. He further noted he has formed a new firm, without Schmid, and practices with another attorney who participates in handling his cases. Respondent asked the court to take these endeavors into consideration, which we have. But we find they are not sufficient to mitigate the seriousness of respondent’s admitted KRPC violations. This misconduct caused direct harm to J.C., as well as to other clients shown by the record to have been victimized. In addition, and as found above, some of the misconduct was committed knowingly.
“Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.” Standard 6.22, American Bar Association Standards for Imposing Lawyer Sanctions.
“Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.” Standard 7.2.
Conclusion and Discipline
It Is Therefore Ordered that James M. Roswold be suspended for 1 year from the practice of law in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that respondent shall.comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered that respondent may seek early reinstatement by motion to this court. Prior to filing this motion, respondent must have the Disciplinary Administrator’s written approval. This approval may be sought by submitting any evidence the Disciplinary Administrator requires to demonstrate that: (1) effective case management procedures will be adopted for a law practice in which more than one attorney may work on a particular matter, including attorneys who are not licensed in the state where the litigation is filed; (2) respondent understands and agrees that all contingent fee agreements applicable to a case in which he or his firm is involved are in writing and conform to KRPC 1.5(d) (2010 Kan. Ct. R. Annot. 458); (3) reasonable protections are in place to manage trust accounts applicable to respondent’s practice; and (4) respondent fully understands his obligation as local counsel in any matter in which he may serve in that capacity. If the Disciplinary Administrator is satisfied respondent has met these conditions, plus any other conditions the Disciplinary Administrator determines appropriate, the Disciplinary Administrator’s written approval will be filed as an exhibit to respondent’s motion. Respondent may file a motion for early reinstatement any time after the first 6 months of his suspension.
It Is Further Ordered that if respondent does not move for early reinstatement as provided above, or is denied early reinstatement, and then seeks reinstatement after the 1-year suspension period, respondent shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered that the costs of these proceedings are assessed to respondent and this opinion shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Yalkntxne, J.:
In the court below Clay as plaintiff set forth in his petition, in one count, facts sufficient to constitute what were formerly known as the actions for false imprisonment and for malicious prosecution. He set forth that Bauer maliciously, illegally, and without probable cause caused the plaintiff to be arrested and imprisoned in tbe following manner: Bauer made an affidavit before a justice of the peace, not charging Olay with any offense, but stating that certain of Bauer’s hogs had been stolen and were then concealed by and on the premises of Olay; caused a search-warrant to be issued, with a clause illegally inserted therein for the arrest of Clay; caused Olay to be arrested thereunder and taken before the said justice and then caused Olay to be imprisoned by the justice in the county jail, etc. "Whether said affidavit charged any offense against Clay, or whether said clause in the warrant ordering the arrest of Olay was was legally or illegally inserted, are questions upon which with our view of this case it is unnecessary to express any opinion. It is claimed that the affidavit did not charge any offense against Olay because it did not state that Olay stole the hogs, nor that he had any knowledge that they had been stolen. And it is claimed that the clause inserted in the warrant for the arrest of Olay was illegally inserted, first, because the affidavit did not charge any offense, and second, because the law does not authorize such a clause to be inserted in a search-warrant. The facts set forth in the petition in the court below appear from the petition itself to have been parts of one continuous transaction, and therefore with regard to the imprisonment they really constituted but one cause of action. The illegal imprisonment of Olay commenced at the time he was first arrested and continued until he was discharged from the county jail. The answer of the defendant to said petition was a general denial. The case was tried before the court and a jury. “ The plaintiff to maintain the issue on his part offered evidence; and thereupon the defendant objected to any evidence being given under the pleadings in the case unless the plaintiff elected to try the action for malicious prosecution or for false imprisonment. Thereupon the .plaintiff elected to try his action for false imprisonment, and the action was proceeded with and tried upon and for false imprisonment.” But the whole trial of the cause shows that neither the plaintiff nor the court understood that the plaintiff was by this election required to be restricted within any narrow or unreasonable rules. Tlie plaintiff was allowed to prove all the material allegations of the petition concerning the imprisonment from the time the plaintiff was first arrested under the search-warrant until he was finally discharged from the county jail by giving bail. This we think was right.
Under the petition the plaintiff had the right to show that all or any portion of the imprisonment was illegal, and to show that it was illegal, first, because the proceedings under which it was effected were illegal and void, or second, because the proceedings were instituted by the defendant from malice and without any probable cause therefor. And the plaintiff would not be wholly defeated by a showing on the part of the defendant that a part of the imprisonment was legal if the other part was illegal, nor would he be defeated by a showing on the part of the defendant that the warrant under which the plaintiff was arrested was upon its face valid, so as to protect the constable who executed it, or even a showing that the whole proceedings were upon their face valid, provided the proceedings were insti- . tilted and the warrant procured by the defendant through m alice and without probable cause. Nor would the plaintiff be defeated by a showing that the defendant acted in good faith, and upon probable cause, (this was not shown however,) provided the whole of the proceedings of the justice were void. The trial below was a long and tedious one. Objections were made indiscriminately by counsel for defendant below to almost every ruling of the court, but the most of the rulings were so obviously correct that we do not think it is necessary to consider them specially or in detail. Under the petition the rulings of the court on the introduction of evidence was substantially correct. Slight and unimportant errors may possibly have been committed. The instructions to the jury were more favorable to the defendant than he had a right to claim. The verdict was amply sustained by the evidence, and the judgment followed the verdict.
The main difficulty in this ease, however, arises from the said election of the plaintiff below “ to try his action for false imprisonment.” If that election is to be construed as an elec tion to try the case as an old common-law action for false imprisonment, it is possible that some of the rulings of the court below were erroneous. But if it is to be construed as an election to try the case as an action for the wrongful imprisonment alone, without regard to any damages except such as flowed from the wrongful imprisonment, without regard to any other wrongs that may have been committed, without regard to the prosecution concerning the hogs on the search-warrant, without regard to whether the warrant for the arrest of the plaintiff was upon its face void or valid, without regard to whether the proceedings before the justice were void or valid, without regard to whether the action for the wrongful imprisonment should have been at common law prosecuted as an action of trespass or an action upon the case, then there was clearly no error. We think this latter construction is the correct one. It seems to have been the construction given by the court below, and by the plaintiff. And if it is the correct one, then we think the plaintiff had a right to recover for the wrongful imprisonment, even if it was such an imprisonment as could be sued for at common law only in an action on the case' — in such an action as would at common law have been technically termed an action for malicious prosecution. Who can suppose that the plaintiff intended to elect to try his case as‘an old obsolete common-law action, unknown to our code of practice? Under our code where a party has a cause of action containing all the elements of both malicious prosecution and false imprisonment, as understood at common law, he is not bound as he was at common law to prosecute for the one or for the other, but he may prosecute for his whole cause of action. For instance, ho may allege, in one count of his petition, and prove that he was arrested and imprisoned on a void warrant, and that the warrant was procured through malice and without probable cause. That there was a material difference at common law between malicious prosecution and false imprisonment is admitted; that malicious prosecution could be maintained in many cases where no arrest or imprisonment had ever been made, will also be admitted; but that there were may causes of action at common law wbicb contained all tbe elements of both actions, and could be prosecuted as either, must also be admitted. In tbe present action the plaintiff was not bound to make any election at all, and the court did not require him to do so. Hence we should construe his election very liberally in his favor.
The whole proceedings by which the plaintiff was arrested and imprisoned from beginning to end were malicious, and without probable cause. The proof showing that the justice ordered that Clay should be bound over for his appearance at court, or in default of bail that he should be committed to the county jail, is onlj prima fade and not conclusive evidence of prob-< able cans e.-Ash v. Marlow, 20 Ohio, 119; Ewing v. Sanford, 19 Ala, 605. The justice himself made a great mistake in not discharging Clay; but the evidence before the justice was not as clear and convincing that the proceeding was malicious and without probable cause as the evidence before the jury that tried this cause. Bauer’s hogs had not been stolen, and he had no right to believe or even suspect that they had been stolen. They were running at large, contrary to law; (Gen. Stat., 1011;) Clay took them up, as he had a right to do, under the stray law; (Gen. Stat., 1012, § 53;) and Bauer unquestionably knew that they were taken up. The evidence all tends to show this, and Bauer ought to have been required to pay for all the injuries that resulted from the wrongful imprisonment of Clay. The coiirt, however, allowed the plaintiff to recover damages for such imprisonment only up to the time of the preliminary examination before the justice. This ruling of the court would have been correct if the decision of the justice had been final and conclusive. But as we have already seen such decision of the justice was not final and conclusive. (20 Ohio, 119; 19 Ala., 605.) The plaintiff still had the right to show that the imprisonment that succeeded the preliminary examination was malicious, and without probable cause. If he had not such right, then of course the court below erred in allowing, as it did, the plaintiff to introduce evidence concerning such imprisonment, and the cost of being discharged therefrom, with all the circumstances connected therewith, in minute and circumstantial detail. The imprisonment tbat preceded tbe preliminary examination was wrongful for two reasons: first, it was procured through the means of void proceedings; second, it was procured through malice and without probable cause. But the imprisonment that succeeded the preliminary examination was wrongful only for one reason; it was procured through malice and without probable cause. The judgment of the court below nyist be affirmed.
Kingman, O. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought suit in the district court of Davis county to compel the conveyance by defendant to him of certain tracts of land. The findings and judgment of that court were against him, and he now seeks a reversal of that judgment. One ground upon which he asks a reversal is, that the findings are against the weight of the evidence; but inasmuch as the record does not show that all the evidence is preserved we cannot say whether the findings are against it or not. (5 Kas., 58.) This leaves tbe case for our consideration to stand upon the pleadings, the agreed statement of facts, and the findings of the court; and" the question is, do these warrant the judgment?
The defendant was seized of a tract of about 4,000 acres of land near Junction City. It was deemed best to divide the same among the stockholders, and on the 8th of April, 1869, the directors to accomplish this object passed the following resolution:
“1Resolved, That the lands of the Bridge Company be appraised on an equitable basis as possible, and that on the aggregate valuation of the lands scrip shall be issued to the parties in interest in proportion to their stock in said Company; that the lands shah be advertised to be sold for scrip or money at public auction, on the 20th day of April, 1869, at Junction City, Kansas, and that no lands be offered for less than their appraised value; and the remaining land, not sold, shall become the property of the parties holding the unsatisfied scrip; and when the lands are not purchased with scrip, but money is paid for a tract, the purchaser shall pay one-third in six, and the other in twelve months, with ten per cent, interest from date.”
■ The court found that this resolution did not express the intent and agreement of the directors, of whom plaintiff was one, (and who was present when the resolution was adopted,) but that by a mistake the words — “ at the appraised value ” — were omitted, when they should have been inserted, at the end of the words— “ and the remaining land not sold shall become the property of the parties holding the unsatisfied scrip ” — and the court decreed a reformation accordingly. The land was appraised, the scrip issued, the sale had, and all but a portion of the plaintiff’s scrip exhausted in the purchase of lands. As the lands sold in many instances for more than the appraised value, the amount of unsold land at its appraised value largely exceeded the amount of plaintiff’s scrip. The land remaining unsold amounted at the appraisement to $21,079.12. The unexhausted scrip to $13,879.25. Upon this plaintiff claimed all the unsold land, and brought this suit to compel a conveyance of the same to him. The decree reforming the resolution allowed him only an amount of land equal to his scrip.
It is urged as against this decree that “the resolution is the peremptory act of a constituent body, and not capable of reformation in chancery.” In the view we have taken of this case it is unnecessary to inquire how far a court of equity can interfere and correct resolutions and acts of directors of corporate bodies, for this decree has not taken from plaintiff any rights which he theretofore had, and of course is a mere nullity as affecting the rights of any not parties to this suit. Directors of a corporation, in reference to the corporate property, act in the relation of trustees. The stockholders are the cestuis que trust. The directors can make no disposition of the corporate property which shall not inure to the equal benefit of all the stockholders. If they attempt to divide, they must so divide that each shall receive his proportionate share. They cannot agree for and bind the stockholders to any other division. In the case before us, if any outsider bought land and paid cash for it, such money became the property, not of one director, nor of all, nor of one or a portion of the stockholders, but of the corporation, to be distributed, if distributed at all, to each stockholder in proportion to his interest in the corporation. So if any stockholder holding scrip bid upon any piece of land more than its appraised value such excess of bid inured to the benefit of the corporation in like manner, and not as plaintiff claims to the benefit of the one stockholder who did not bid. If the directors had made no mistake, and had intended to pass the resolution they did, it would have been powerless to divest any stockholder of his proportionate interest in the land, or to convey to any one more than such interest.
The judgment of the district court will be affirmed.
All the Justices concurring | [
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The opinion of the court was delivered by
Rosen, J.;
Randy Chavez appeals from the.sentence imposed following his guilty plea to one off-grid count of aggravated indecent liberties with a child, under Jessica’s Law, and one on-grid count of aggravated indecent liberties with a child.
The crimes for which Chavez was sentenced took place between February 2005 and April 2008. His counsel moved for a departure sentence to a guidelines sentence. The district court denied the motion and sentenced him to a 25-year term with lifetime parole and lifetime electronic monitoring for the off-grid conviction and a concurrent aggravated term of 100 months for the on-grid conviction. He took a timely appeal to this court under K.S.A. 22-3601(b)(1).
Chavez initially contends that the district court erred in sentencing him to a 25-year term under K.S.A. 21-4643(a)(l) instead of a 20-year term under K.S.A. 22-3717(b)(2). Whether the sentence was illegal is a matter of statutory interpretation, which is a question of law subject to unlimited appellate review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).
As a preliminary matter, the State contends that this court does not have jurisdiction to address this issue because Chavez did not object to the sentence at the time that it was pronounced. Although he did not make a contemporaneous objection, that failure does not preclude appellate resolution of this question.
Life sentences for off-grid crimes are not “presumptive sentences” within the meaning of the sentencing guidelines and therefore are not subject to the jurisdictional bar of K.S.A. 21-4721(c)(1). See State v. Ortega-Cadelan, 287 Kan. 157, 163-64, 194 P.3d 1195 (2008). Although Chavez did not challenge the legality of his sentence before the district court, K.S.A. 22-3504(1) permits this court to correct an illegal sentence at any time. See, e.g., State v. Reyna, 290 Kan. 666, 695, 234 P.3d 761 (2010). Because this issue invokes a strictly legal question regarding the jurisdiction of the district court to impose the sentence that it pronounced from the bench, the issue lies within the scope of appellate review, the appellant’s failure to object at sentencing notwithstanding.
K.S.A. 22-3717(b)(2) reads:
“Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638, and amendments thereto, an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1,1993, but prior to July 1,1999, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits and an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999, shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits.” (Emphasis added.)
Subsections (b)(1) and (b)(4) of K.S.A. 22-3717 govern certain murder convictions. Because he was not convicted of murder, Chavez concludes that he must be eligible for parole after serving 20 years of confinement.
Two other statutory provisions, however, when read together, imply incarceration for a minimum of 25 years.
K.S.A. 21-4643(a)(l) reads:
“Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless the court determines that the defendant should be sentenced as determined in paragraph (2):
“(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of K.S.A. 21-3504, and amendments thereto.” (Emphasis added.)
Chavez does not fit the exceptions of subsections (b) or (d), which refer to mandatory 40-year sentences and departures based on factors that the district court rejected in this case.
K.S.A. 22-3717(b)(5) reads:
“An inmate sentenced to imprisonment pursuant to K.S.A. 21-4643, and amendments thereto, committed on or after July 1, 2006, shall be eligible for parole after semng the mandatory term of imprisonment without deduction of any good time credits.” (Emphasis added.)
Reading K.S.A. 21-4643(a)(l) together with K.S.A. 22-3717(b)(5) leads to the conclusion that Chavez is subject to a minimum sentence of 25 years before he becomes eligible for parole.
When the provisions of two statutes are in conflict, the more specific statute governs. See, e.g., Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 282, 241 P.3d 15 (2010). K.S.A. 21-4643(a)(l) is the more specific statute because it makes explicit reference to aggravated indecent liberties with a child. Furthermore, a finding that K.S.A. 22-3717(b)(2) controls would turn K.S.A. 21-4643(a)(l)(C), which explicitly and specifically requires a 25-year minimum term for the very crime at issue here, into meaningless excess words in the criminal statute. The courts presume that the legislature does not intend to enact meaningless or useless legislation. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 570-71, 232 P.3d 856 (2010); State v. Hendrix, 289 Kan. 859, 863, 218 P.3d 40 (2009).
Chavez urges this court to invoke doctrines such as lenity to resolve the inconsistencies in the sentencing and parole statutes, as we recently did in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009). It is unnecessary, however, to turn to such interpretive rules in the present case.
In Horn, we addressed a situation in which the legislature, in the same legislative session, prescribed different sentences to be imposed for a single offense. We noted:
“[T]he legislature sent a mixed message during the 2006 session in which it adopted Jessica’s Law. That year, it also created the new crimes of terrorism (K.S.A. 21-3449) and illegal use of weapons of mass destruction (K.S.A. 21-3450). Both those statutes included attempts as a means of committing the crimes and clarified that the crimes were off-grid felonies. The legislature then took the further step of amending K.S.A. 21-3301(c), which ranks an attempt to commit an off-grid felony as a nondrug severity level 1, to specify that ‘[t]he provisions of this subsection shall not apply to a violation of attempting to commit the crime of terrorism pursuant to K.S.A. 21-3449, ... or of illegal use of weapons of mass destruction pursuant to K.S.A. 21-3450.’ Inexplicably, the legislature did not also include Jessica’s Law as an exception to K.S.A. 21-3301(c). In other words, the legislature demonstrated an ability to clarify when it did not want the sentencing provision of K.S.A. 21-3301(c) to apply to an attempt to commit an off-grid felony, but chose not to do so with Jessica’s Law.” Horn, 288 Kan. at 692-93.
In Horn, we were presented with the provisions of two separate statutes, K.S.A. 21-3301(c) and K.S.A. 21-4643(a)(l)(G), each of which plainly applied to the sentencing of attempted aggravated criminal sodomy. Our task was to determine which statute controlled Horn’s sentence. We applied the rule of lenity to resolve the conflict in favor of the accused. 288 Kan. 690, Syl. ¶ 3. We explicitly elected not to apply the rule of construction that a specific statute controls over a general statute. 288 Kan. at 692.
In the present case, however, the statutory construction task is different from that presented in Horn, in that we are called upon to reconcile two provisions within the same subsection of the same statute, i.e., subsection (b) of K.S.A. 22-3717. That circumstance triggers a responsibility that this court consider the various provisions of the act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. See State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
The conflict exists because Chavez’ conviction for the off-grid count of aggravated indecent liberties with a child subjects him to the parole eligibility provision of subsection (b)(2) because he was “sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999,” and at the same time subjects him to the parole eligibility provision of subsection (b)(5) because he was “sentenced to imprisonment pursuant to K.S.A. 21-4643, and amendments thereto, committed on or after July 1, 2006.” K.S.A. 22-3717(b)(2), (b)(5). In other words, the parole eligibility rules of subsections (b)(2) and (b)(5) overlap.
K.S.A. 22-3717(b)(2) was amended to its current form in 1999. L. 1999, ch. 164, sec. 20. K.S.A. 21-4643(a)(l) and K.S.A. 22-3717(b)(5) were enacted in 2006. L. 2006, ch. 212, secs. 2, 19. Subsection (b)(5) was added to K.S.A. 22-3717 by H.B. 2576, which explicitly referred back to the new provision in section 2 of the bill that established the 25-year mandatoiy minimum term of imprisonment which would become part of K.S.A. 21-4643, Jessica’s Law. L. 2006, ch. 212, sec. 19. Obviously, the addition of subsection (b)(5) was intended to make parole eligibility under K.S.A. 22-3717 comport with the newly created mandatoiy minimum terms of imprisonment under Jessica’s Law, to which the added subsection referred. The bill did not, however, change subsection (b)(2). In order to make its intention ciystal clear, the legislature could have added to subsection (b)(2) an exception for the new provision in subsection (b)(5), to go along with the existing exceptions for subsections (b)(1) and (b)(4). The failure to do so created the overlap.
Nevertheless, the general rule of strict construction of criminal statutes is constrained by the rule that the interpretation must be reasonable and sensible to effect legislative design and intent. State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009). Moreover, the rule of lenity is subject to the existence of “any reasonable doubt” as to the statute’s meaning. Horn, 288 Kan. 690, Syl. ¶ 3. Given the specific language of subsection (b)(5) as compared to the more general language of subsection (b)(2), together with the concurrent adoption of the mandatoiy minimum sentences in K.S.A. 21-4643 and the parole eligibility provision in K.S.A. 22-3717(b)(5), there can be no reasonable doubt that the legislature intended for a person convicted of aggravated indecent liberties with a child to be parole eligible only after serving the mandatoiy minimum sentence specified in K.S.A. 21-4643.
The specific statute controls and makes it clear that defendants who are subject to Jessica’s Law face a mandatory minimum term of not less than 25 years’ imprisonment before becoming eligible for parole.
Chavez next argues that the district court erred in denying his motion to depart to an on-grid sentence. This court applies an abuse of discretion standard when reviewing a district court’s determination of whether mitigating circumstances under K.S.A. 21-4643(d) are substantial and compelling reasons to depart to an on-grid sentence. State v. Spencer, 291 Kan. 796, Syl. ¶ 1, 248 P.3d 256 (2011). Judicial action that is arbitrary, fanciful, or unreasonable constitutes an abuse of discretion. An appellate court will not disturb a discretionary decision unless no reasonable person would have taken the view adopted by the district court. State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010).
In his motion, Chavez cited his relatively minor criminal history, his compliance with bond conditions, the support of his social community, a psychological evaluation indicating that he was at low risk for sexual recidivism and would be a suitable candidate for community supervision, and his expressed acceptance of responsibility for his actions. He requested a departure to a term of imprisonment of 89-100 months and a dispositional departure to a 60-month term of probation.
During sentencing, the district court made the following statement:
“Having regard for the nature and circumstances of the crime, the history, character and condition of the defendant, the lowest minimum term which, in the opinion of the Court, is consistent with the public safety, the needs of the defendant and the seriousness of the defendant’s crime, the Court makes the following orders: It is the judgment, order and sentence of the Court that the following sentences be imposed: I find the primary crime that controls the base sentence to be Count Four. It is an off grid felony, placing the defendant within a sentencing range of 25 years to life in prison.
“The Court has considered die defendant’s motion for durational-dispositional departure [and] has reviewed the statements presented to the Court on behalf of the defendant and the South Central Mental Health Counseling report dated July 14, 2009.1 have listened to the defendant.
“When I was reading this report, again, I would agree with the State, that the diagnosis here is of pedophilia and that these actions occurred over a three year period, between 2005 and 2008. According to the interview with the defendant, she was eight years old when this began and 11 years old when it ended. And the fact of the matter is, she tried on numerous occasions to get this activity to stop. She brought it to the attention of her mother. She brought it to the attention of her church officials, and nothing was done, until such time as she brought this matter to the attention of her school. The school contacted the proper authorities. The defendant had multiple opportunities to stop this horrendous activity and did not until he was arrested.
“Basically, sir, you destroyed your family. Apparently there is nobody here to speak on behalf of the minor child, which is veiy sad. I find absolutely no substantial and compelling reasons to depart either durationally or dispositionally. The motion will be denied and the defendant will be required to serve the sentence as imposed by the Court.”
When considering departures from an off-grid sentence, the district court does not simply add together the total number of mitigating circumstances and then contrast them with the total number of aggravating circumstances. Ballard, 289 Kan. at 1009. The district court expressly considered the mitigating factors that Chavez presented. The grounds given by the district court for denying the motionthe duration of the criminal activity, the vulnerability of the victim, and the harm the crimes causedwere reasonable. We cannot conclude that no reasonable person would have taken the action that the district court adopted.
Chavez further argues that the district court lacked jurisdiction to impose lifetime electronic monitoring as a condition of parole. This issue is governed by State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011), where we held that the statutory sentencing scheme does not provide sentencing courts with the authority to impose parole conditions, including electronic monitoring. We therefore vacate the portion of the sentence relating to electronic monitoring.
Chavez finally raises two issues that this court has previously decided adversely to his position. He contends the district court violated his right to have a jury decide the factors contributing to an aggravated grid box sentence under Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). This court has rejected this argument, and Chavez offers no grounds persuading us to change our position. See State v. LaBelle, 290 Kan. 529, 539, 231 P.3d 1065 (2010); State v. Houston, 289 Kan. 252, 278, 213 P.3d 728 (2009); State v. Johnson, 286 Kan. 824, 851-52, 190 P.3d 207 (2008) (because aggravated sentence remains within maximum statutory sentence, imposition does not violate constitutional right to trial by jury, and appellate courts lack jurisdiction to review presumptive sentence).
He also contends that his constitutional rights were violated because he was sentenced based on a criminal history that was not proved to a jury. This court has repeatedly rejected arguments of this nature. See, e.g., State v. Bonner, 290 Kan. 290, 305, 227 P.3d 1 (2010); State v. Raschke, 289 Kan. 911, 912, 219 P.3d 481 (2009); State v. Gonzalez, 282 Kan. 73, 115-18, 145 P.3d 18 (2006); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Chavez presents no new arguments suggesting that this court should revisit those decisions, and we decline to do so at this time.
The sentence of 25 years’ imprisonment without parole eligibility is affirmed. The parole condition of lifetime electronic monitoring is vacated. | [
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The opinion of the court was delivered by
Yaleniine, J.:
This was an action on a promissory note which reads as follows;
“$901.00. Topeka, Kas., March 1st, 1869.
“ Ninety days after date for value received I promise to pay to the order of E. A. Phillips nine hundred and one dollars at banking house of F. W. Giles & Co. A. Wilson.”
Said Phillips who was plaintiff below alleged in his petition that the said Wilson made said note on the first day of April, instead of alleging that the note was made on the first day of If arch, as the fact was. At the trial the plaintiff below offered this note in evidence. The defendant objected. “And thereupon the plaintiff asked leave to amend his petition, by striking out the word ‘ April ’ and inserting the word 4 March ’ in the fourth line from the top in the plaintiff’s petition, which leave was granted by the court; and thereupon the plaintiff amended his petition as asked; to all of which rulings and orders of the court the defendant at the time excepted.” This is the only ruling of the court below of which the plaintiff in error complains in this court. And this ruling we think was correct. Gen. Stat., 655, § 139; Fitzpatrick v. Gebhart, 7 Kas., 35. The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by.
Yalenunb, J.:
This whole case depends upon whether there was error in the instructions given and refused to be given by the court below to the jury. The plaintiff in error (defendant below) complains of one instruction asked by himself and refused as asked, but modified and given, and of two instructions asked by the defendant in error, and given. The record does not purport to contain all the instructions given or refused, and hence it is difficult for ns to determine whether the court below erred or not.
The action was one of slander for words spoked which were per se slanderous, words charging perjury; and, as the record comes to us, it would seem to be established that the words were spoken and published, and that they were false and malicious. The plaintiff below did not allege any special damages in his petition. The defendant helow set up certain facts in the second count of his answer which he claimed to be a complete defense to the plaintiff’s action. He gave evidence at the trial tending to prove these facts; and then upon the charge of the court to the jury he attempted to raise the question whether or not these facts were a complete defense. The court seems to have considered that these facts should be received and considered by the jury only in mitigation of damages. "Whether the defendant below succeeded in raising the question he desired to raise we think is doubtful; but conceding that he did, still we think the view of the case taken by the court below was the correct one.
The question is this: "When slanderous words which are per se actionable are spoken, “ in a moment of heat and passion, induced by any Tsomel improper conduct imme- ° u diately preceding on the part of the plaintiff,” are the said circumstances under which the words were spoken a complete defense to the action, or should they be considered by the jury only in mitigation of damages? We think they should be considered by the jury only in mitigation of damages. We are not aware that any court has ever decided that such circumstances were a complete defense, but many courts have decided that they should be received only in mitigation of damages: Hotchkiss v. Lathrop, 1 Johns., 286; Beardsley v. Maynard, 4 Wend., 336, and 7 id., 560; Gould v. Weed, 12 id., 12, 24; Dolevin v. Wilder, 34 How. Pr., 489, 496; Larned v. Buffington, 3 Mass., 553; Child v. Homer, 13 Pick., 503; McClintock v. Crick, 4 Iowa, 453; Ranger v. Goodrich, 17 Wis., 78; Brown v. Brooks, 3 Ind., 518; Powers v. Presgroves, 38 Miss., 227; Thophagen v. Carpenter, 1 City Hall R., 55; Duncan v. Brown, 15 B. Mon., 186; Steever v. Buhler, 1 Miles, 146; Else v. Ferris, Anthony N. P., 23; Wakeley v. Johnson, Ry. & M., 422; Watts v. Frazer, 34 Eng. Com. L., 82; Hosley v. Brooks, 20 Ill., 116, 119; Thomas v. Dunnaway, 30 id., 373; Botolor v. Bell, 1 Md., 173; Long v. Eakle, 4 id., 454; Davis v. Griffith, 4 Gill & J., 342.
The reasoning of the plaintiff in error is erroneous. 'He seems to claim that upon a petition in an action of slander such as this which alleges no special damages no n 7 , damages except exemplary damages can be recovered; and if the plaintiff himself is in any fault he cannot recover even exemplary damages. We think both of these claims are erroneous. On such a petition the plaintiff may recover for all'damages that are the necessary and natural result of the words spoken. (2 Gr. Ev., §§ 254, 420.) These are general damages, in contradistinction to special damages, and are not exemplary at all, but are strictly compensatory. There is nothing in this case that shows that the jury gave any but compensatory damages. The court did not instruct them that they might give exemplary damages; and as all the instructions are not brought to this court, we are at liberty to suppose that the court instructed them that they could not give exemplary damages. And as but little of the evidence has been brought to this court it must be presumed that the amount given by the jury was correct.
In an action like this, where the words spoken are actionable per se, damages are presumed, without any proof of actual damages, either general or special; (Newbit v. Statuck, 35 Me., 315; Williams v. Spears, 11 Ala., 138; Holt v. Schofield, 6 Term R., 619;) and if no special damages are claimed in the petition, no general damages proved, nor exemplary damages allowed by the jury, still the jury should allow nominal damages for the plaintiff. (2 Gr. Ev., §254.) In such a case as this the law would permit the jury upon proper testimony to allow exemplary damages; and whether they do allow such damages or not is a question for them under all the circumstances. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
ROSEN, J.:
Andre Bailey appeals from his convictions of one count of first-degree murder, two counts of aggravated robbery, one count of aggravated burglaiy, one count of criminal discharge of a firearm at an occupied building, one count of possession of marijuana with intent to sell, and one count of no tax stamp.
Late on August 10, 2007, Sade James picked up her friend Cheryl Starr for a night of drinking and partying. James exchanged text messages with Bailey and agreed to pick up Bailey and his friend DaQuan Dean. The group continued to drink and party, eventually stopping at the apartment of Cindale Terrell. The group continued to drink; Starr, Bailey, and Dean also smoked marijuana.
The conversation turned to guns, and Bailey produced a 9 mm handgun from his backpack. The group took pictures posing with the 9 mm and a shotgun that was located in the apartment. James drove the foursome to Starr’s house, where she ran inside after something. The group then returned to the apartment; Bailey and Dean went into the apartment and returned with the shotgun. They stopped at a QuikTrip and picked up something to eat.
Bailey had expressed a desire to go to a house where he knew they could get 18 “bricks” of marijuana. Bailey eventually gave James directions to the targeted house. James stopped at a cul-desac, and the three others left the vehicle and crossed a drainage ditch to the adjoining street. Later, Dean called James and directed her to move the car to the next street over.
At the house, Dean kicked in the door. Starr went into the living room, while Dean and Bailey continued to the back bedroom where Ricky Stewart, Meagon Hicks, and her youngest son were sleeping. Hicks’ 4-year-old son and 5-year-old daughter were asleep across the hall.
Hicks was awakened by Bailey holding a handgun in her face and demanding the “bricks.” Dean was standing in the bedroom doorway with a shotgun. Stewart eventually left the room with Dean to get a “brick” of marijuana. Stewart and Dean passed Starr in the living room and left the house.
Bailey hit Hicks on her forehead with the handgun, telling her to shut up. The older children awoke and entered the bedroom. Bailey shoved the older girl at Hicks and picked up the older boy and threw him on the bed. Bailey demanded Hicks’ purse; she denied having a purse. Bailey hit Hicks on the back of her head with the handgun, calling her a “lying bitch.” Bailey eventually found the purse and left the room.
Starr had left the house shortly after Dean left. Bailey left the house and met Starr on the sidewalk outside the house. Bailey asked where Dean was. Starr responded that she did not know and ran to the car. Starr met Dean running on the sidewalk; the two of them returned to the vehicle at nearly the same time.
Inside the residence, Stewart returned to the bedroom, attempting to comfort Hicks, and asked for the phone. Hicks told him the phone had been shut off and she did not know where it was. The couple, followed by Hicks’ 5-year-old daughter, went into the living room in search of keys to their vehicle. Hicks saw someone opening the front door and ran to push the door closed. Stewart pushed her out of the way and attempted to close the door himself. Moments later, Hicks heard several gunshots and Stewart screamed that he had been shot.
Starr reported hearing gunshots after she and Dean had joined James in the vehicle, but before Bailey returned to the car. James testified that she moved the vehicle again after Starr and Dean returned to the car, where she picked up Bailey. According to James, Bailey stated that he had returned to the house because he thought Dean remained inside and Bailey emptied his clip into the door. Starr testified that she did not remember any discussion after Bailey returned to the car.
Once inside the car, Bailey divided the money from Hicks’ purse, giving each person $86. Because Bailey felt sick, the group stopped at a QuikTrip and picked up water, cigarettes, and “blunt sticks.” Bailey vomited at a stop light. The group returned to Terrell’s apartment. At the apartment, a large quantity of marijuana, referred to as a “brick,” was divided among Bailey, Starr, Dean, and possibly Terrell.
Stewart died as a result of the gunshot wounds sustained from the gunshots fired through the door of Stewart’s home.
Because Bailey was 17 years old, charges were originally filed with the juvenile court. The State filed a motion pursuant to K.S.A. 2010 Supp. 38-2347, seeking to have the case transferred to adult court for prosecution. The motion was granted and Bailey was tried as an adult on the following charges: one count of first-degree murder, two counts of aggravated robbery, one count of aggravated burglary, one count of criminal discharge of a firearm at an occupied building, one count of possession of marijuana with intent to sell, and one count of no tax stamp. At trial, the evidence included testimony from James, Starr, and Dean. The jury returned a verdict of guilty on all counts.
Adult Certification
In 2006, K.S.A. 38-1636 was repealed; thereafter, K.S.A. 2010 Supp. 38-2347 has provided for the certification of juveniles as adults for prosecution. Bailey was certified as an adult on January 10, 2008, for crimes occurring in August 2007. The parties agree that K.S.A. 2010 Supp. 38-2347 controls.
The factors enumerated in K.S.A. 38-1636(e) and K.S.A. 2010 Supp. 38-2347(e) are identical except for the use of “juvenile” in place of the word “respondent.” Of potentially more import, K.S.A. 2010 Supp. 38-2347(f) requires that the court find “from a preponderance of the evidence” that the individual should be prosecuted as an adult for the offense, rather than finding “that there is substantial evidence” as required by K.S.A. 38-1636(f). The “preponderance of the evidence” standard is a more rigorous standard than “substantial evidence.” In re Due Process Hearing of Bailey, 233 Kan. 714, 722, 664 P.2d 1379 (1983) (quoting Town of Burlington v. Department of Ed., Etc., 655 F.2d 428, 431 [1st Cir. 1981]).
The statutory change applies to the standard used by the trial court, but does not change our standard of review. When a trial court considers a question of fact which must be proved by a preponderance of the evidence, this court’s review is limited to determining whether substantial competent evidence supports the trial court’s finding. See, e.g, State v. Loggins, 40 Kan. App. 2d 585, 588, 194 P.3d 31 (2008) (“Whether the State has met its burden to prove a prior conviction by a preponderance of the evidence is a question of fact, and an appellate court’s review is limited to determining whether substantial competent evidence supports the district court’s finding.”); State v. Thompson, 37 Kan. App. 2d 589, 593, 155 P.3d 724 (2007) (reviewing whether the State proved “by a preponderance of the evidence that the consent was voluntarily, intelligently, and knowingly given” under a substantial evidence standard).
“An appellate court reviews the trial court’s decision to authorize prosecution of a juvenile as an adult to determine whether there is substantial evidence in the record to support the decision.” State v. Davis, 37 Kan. App. 2d 650, Syl. ¶ 10, 155 P.3d 1207 (2007) (reviewing adult certification under K.S.A. 38-1636). This court does not review the analysis of the trial court; instead, the standard of review applies to the evidence. State v. Avalos, 266 Kan. 517, 521, 974 P.2d 97 (1999).
The journal entry indicates the following which support finding that the adult certification was proper: (1) the State’s motion for adult prosecution was pursuant to K.S.A. 2010 Supp. 38-2347; (2) Bailey did not contest the motion for adult prosecution; (3) the trial court accepted Bailey’s stipulation to the motion; and (4) the trial court considered each of the statutory factors listed in K.S.A. 2010 Supp. 38-2347. The troubling part of the journal entry is the concluding language: “Therefore, after considering all eight (8) factors pursuant to K.S.A. 38-1636(e), the Court finds that there is substantial evidence that the Respondent should be prosecuted as an adult for the offense(s) alleged in the amended complaint filed herein.”
Bailey argues that the trial court’s citation of the old statute invalidates the certification for adult prosecution; however, Bailey was unable to identify any factors in the current statute which were not considered by the trial court. The State points out that Bailey did not contest the adult certification and the trial court did consider the eight statutory factors. The State also asserts that the factors considered by the court, and listed in the journal entry, are sufficient to support a finding under either the “substantial evidence” standard or the “preponderance of the evidence” standard.
In State v. Smith, 268 Kan. 222, 246, 993 P.2d 1213 (1999), this court reversed a juvenile’s stipulation to adult prosecution because the trial court had not considered both the juvenile’s stipulation and evidence of the eight statutory factors. But in State v. Ellmaker, 289 Kan. 1132, 1148-50, 221 P.3d 1105 (2009), this court concluded that it had no jurisdiction to consider adult certification when the juvenile consented to the order and the trial court considered the eight statutory factors before waiving juvenile jurisdiction. In this case, the journal entry indicates that the trial court considered both Bailey’s stipulation and the eight statutory factors before waiving juvenile jurisdiction. But the trial court apparently reviewed the factors under the wrong standard; therefore, this court will review the adult certification using the facts found by the trial court.
The trial court made the following findings: (1) Bailey was 17 years old at the time of the offenses; (2) the seriousness of the alleged offenses is so great that the protection of the community requires criminal prosecution; (3) the offenses were committed in an aggressive, violent, premeditated, or willful manner; (4) Bailey was charged with first-degree murder and other offenses against persons; (5) Bailey had one prior adjudication as a juvenile offender; (6) Bailey had a history of antisocial behavior or patterns of physical violence; (7) there are no facilities or programs available which are likely to rehabilitate Bailey prior to the expiration of juvenile jurisdiction; and (8) the interests of Bailey or the community would be better served by criminal prosecution. These stip ulated facts provide substantial evidence to support the trial court’s decision to certify Bailey as an adult for prosecution.
Jury Instructions
Bailey raises several complaints about the jury instructions, specifically: (I) the felony-murder instruction did not properly instruct the jury on the issue of whether the underlying felonies had been completed before the commission of the murder; (2) the felony-murder instruction should have included a unanimity instruction on the underlying felonies; and (3) the felony-murder instruction should have defined “attempt.”
This court’s standard of review depends upon whether the challenged instruction was objected to at trial.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
“An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. [Citation omitted.] An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
Underlying Felonies
First, Bailey complains that the felony-murder instruction did not require the jury to determine whether the underlying felonies had been completed before the commission of the murder. Bailey argued generally against the felony-murder instruction during the instructions conference, but neither made a specific objection on this basis nor proposed juiy instructions that would have covered this issue. The State responds that PIK Crim. 3d 56.02 sufficiently requires the jury to find that the murder occurred during the commission of the underlying felonies, such that no additional instruction is necessary.
Whether an underlying felony has been completed prior to the commission of a felony murder is ordinarily a question of fact for the jury. State v. Hearron, 228 Kan. 693, 696, 619 P.2d 1157 (1980). However, this court has concluded that the PIK Crim. 3d 56.02 jury instruction properly instructs the jury and fairly states the law on this issue. State v. Jackson, 280 Kan. 541, 550-51, 124 P.3d 460 (2005) (citing State v. Beach, 275 Kan. 603, 625, 67 P.3d 121 [2003]). In Jackson, this court reviewed PIK Crim. 3d 56.02 under the more liberal standard because Jackson had requested a more specific jury instruction. See also State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009) (noting that this court has “previously approved the causation aspect of PIK Crim. 3d 56.02”).
In this case, Bailey did not request a specific jury instruction, nor did he make a specific objection to this instruction; therefore, the court reviews this issue under the stricter, clearly erroneous standard. The PIK jury instruction given in this case requires that the jury find that the murder occurred while the underlying felonies were being committed or attempted. Following the analysis of current case law, the jury’s verdict finding Bailey guilty of felony murder indicates that the jury found Bailey killed the victim during one of tire underlying felonies alleged.
Further, Bailey argues that the felony-murder instruction should not have included the underlying crimes of aggravated burglary and aggravated robbery because these crimes had been completed prior to the murder. Bailey objected to the instruction on this basis. The trial court ruled that completion of the underlying felony raised a fact question for the jury to decide. Bailey was allowed to argue this theory during closing arguments. Because Bailey objected to this instruction on this basis, the court must consider the instructions as a whole to determine whether the instruction fairly states the law as applied to the facts of the case.
The State argues that the facts support a finding that the murder occurred during the commission of the aggravated burglary, aggravated robbery, and criminal discharge of a firearm. The State contends that there was no break in the events between the aggravated burglary, aggravated robbery, and criminal discharge of a firearm. As the State points out, these events were closely related in time. All three underlying felonies occurred before Bailey re turned to the vehicle, where the proceeds of the robbery were divided.
Again, whether the underlying felonies were completed before the murder is ordinarily a fact question for the jury. Hearron, 228 Kan. at 696. The evidence shows that Bailey forcibly entered Stewart’s and Hicks’ home, stole drugs and money from them at gunpoint, and shot and killed Stewart — all before returning to the vehicle in which he arrived. Afterwards, he reunited with Dean, Starr, and James at the vehicle, where the stolen money was divided among the group. The evidence in this case would not support a finding that, as a matter of law, the aggravated burglary and aggravated robbery were completed before the murder. The decision on this issue was properly allocated by the trial court. The jury was properly informed, by the instructions and the arguments of counsel, that felony murder is committed only when the murder occurs during the commission of the underlying felonies. The jury, by its verdict, found that the murder occurred during the commission of one or more of the underlying felonies.
Unanimity Instruction
Bailey was charged with felony murder based on the following underlying felonies: aggravated burglaiy, aggravated robbery, or criminal discharge of a firearm. Bailey acknowledges that a unanimity instruction was not requested and no objection was made at trial; therefore, the court will use a clearly erroneous standard of review.
Bailey argues that the underlying felonies were multiple acts because the criminal discharge of a firearm was separated in time from the aggravated burglaiy and aggravated robbery. Bailey further claims that the criminal discharge of a firearm was motivated by a fresh impulse, that of finding and helping a codefendant, who Bailey believed had not left the house during the burglary and robbery. Such a claim stretches the imagination; even under Bailey’s version of the facts, his return to the house was a result of the uncompleted burglary and robbery.
The State maintains that this was an alternative means case, citing State v. Hooker, 271 Kan. 52, 57, 21 P.3d 964 (2001). In Hooker, the defendant was charged with felony murder based on either aggravated burglary or robbery. The court concluded that these underlying crimes were alternative means because the same facts justified both underlying crimes. Hooker, 271 Kan. at 59.
This court has ruled that different underlying felonies supporting a charge of felony murder are alternative means rather than multiple acts. State v. Becker, 290 Kan. 842, 235 P.3d 424 (2010) (holding that three kidnapping charges as the alternate underlying felonies for felony murder were alternative means); Hooker, 271 Kan. at 52, 59. When a single offense is alleged that may be committed in more than one way, the court is presented with an alternative means case. Becker, 290 Kan. at 855. When several acts are alleged, any of which could constitute the crime charged, the court is presented with a multiple acts case. Becker, 290 Kan. at 855.
In this case, a single offense was committed — the unlawful shooting of Stewart — which could have been committed during the aggravated burglaiy, aggravated robbery, criminal discharge of a firearm, or some combination thereof. Therefore, the charges of aggravated burglary, aggravated robbery, and criminal discharge of a firearm were alternative means of committing felony murder.
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, a court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, courts require that either the State elect the particular criminal act upon which it will rely for conviction or that the district court instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” State v. Dixon, 289 Kan. 46, Syl. ¶ 7, 209 P.3d 675 (2009).
As alternate means, the felony-murder instruction did not require a unanimity instruction. Bailey does not challenge the sufficiency of the evidence supporting each of the alternative means. The jury convicted Bailey of each of the underlying felonies, which would tend to support a holding that sufficient evidence supported each of die alternative means. As a result, there was no error in the failure to give a unanimity instruction.
Definition of Attempt
As requested in Bailey s proposed jury instructions, the second element of the felony-murder instruction given to the jury stated: “That such killing was done while in the commission of or attempting to commit aggravated robbery, aggravated burglary or criminal discharge of a firearm at an occupied building.” Neither Bailey’s proposed instructions nor the instructions given to the jury included a definition of “attempt.” Bailey now contends that the felony-murder instruction was clearly erroneous due to this omission. Bailey did not object on these grounds. When defendant’s requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal. State v. Patchett, 229 Kan. 163, Syl. ¶ 3, 621 P.2d 1011 (1981).
Further, the parties agree that there was no evidence at trial that the underlying crimes were attempted rather than completed and our review of the record leads to the same conclusion. In fact, the jury convicted Bailey of all three underlying felonies. Under these facts, the language “or attempting to commit” in the complaint and jury instruction was merely surplusage because there was no evidence that the underlying crimes were attempted rather than completed crimes. See State v. McCoy, 34 Kan. App. 2d 185, 191, 116 P.3d 48 (2005) (finding no reversible error when the trial court erroneously included an element of obstruction of legal process in an instruction for obstruction of legal duty when the instruction as a whole fairly instructed the jury). Although a proper jury instruction including this language would also define attempt, the inclusion of superfluous language in this instruction was harmless. Removing the extraneous language “or attempting to commit” in the jury instruction on felony murder would not have changed the outcome in this case. No rational jury could have found attempt under these facts.
Witnesses’ Fifth Amendment Privileges
Bailey argues that it was improper for the trial court to inform Starr that she did not have a Fifth Amendment privilege and to encourage Starr to testify. Bailey further argues that it was improper for the trial court to inform Dean that he did not have a Fifth Amendment privilege and to put Dean on the stand just so that Dean could refuse to testify. Bailey did not object when the testimony at issue was introduced to the jury. In order to preserve an issue for appeal, a party must raise a timely and specific objection at trial. State v. Horton, 283 Kan. 44, 63, 151 P.3d 9 (2007).
Further, the State contends that Bailey is without standing to assert the Fifth Amendment privileges of Starr and Dean. “The right against self-incrimination is personal to the witness, and the appellant in a criminal action has no standing to assert the witness’s privilege.” State v. Smallwood, 223 Kan. 320, Syl. ¶ 5, 574 P.2d 1361 (1978). In State v. Anderson, 240 Kan. 695, 732 P.2d 732 (1987), however, this court reviewed a defendant’s objection to testimony of a witness in alleged violation of the witness’ Fifth Amendment privilege without any discussion of the defendant’s standing on this issue. The court found that although the trial court erred in finding the witness had waived his Fifth Amendment privilege, the limited statements of the witness did not prejudice the defendant. Anderson, 240 Kan. at 700-01.
Finally, the Fifth Amendment privilege is not without limits. “The privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it.” State v. Longobardi, 243 Kan. 404, Syl. ¶ 1, 756 P.2d 1098 (1988).
Starr’s Testimony
At the time of Bailey’s trial, Starr was serving a 12-year sentence following her guilty plea to second-degree murder (reckless), two counts of aggravated robbery, and one count of aggravated burglary for her part in these events. The State issued a subpoena to compel her presence and testimony in the State’s case in chief. Starr was transported from the Topeka Correctional Facility to the Sedgwick County Detention Facility, where the prosecutor met with her to discuss the case. Starr said that she would not testify. The court conducted a hearing with counsel for the State, Bailey, Bailey’s counsel, Starr, and Steve Osbum, the attorney who had represented Starr during her criminal case. The court told Starr that the State had a right to call her as a witness and that Starr had no Fifth Amendment privilege because she had entered a guilty plea and had been sentenced on the case. Neither Starr nor her attorney objected to the court’s conclusion. Starr testified without objection.
Because Starr had entered a guilty plea to second-degree murder, two counts of aggravated robbery, and one count of aggravated burglary; had been sentenced on those charges; and had not filed a motion to withdraw her guilty plea, Starr had no Fifth Amendment privilege with regard to testimony related to those charges. See Longobardi, 243 Kan. 404, Syl. ¶ 1. Bailey points out that some of Starr’s testimony could expose her to criminal liability for crimes not included in her guilty plea. Starr admitted to possessing and using marijuana. Starr also admitted that she had not been truthful with the police at the time of her arrest. Bailey simply argued that all of Starr’s testimony was prejudicial to his case, without explaining how this potentially protected testimony specifically was prejudicial.
In fact, the arguably protected testimony tends to discredit Starr by exposing her as a drug user who was using drugs the night of the incident and was untruthful with police. It is the testimony that is clearly outside Starr’s Fifth Amendment privilege which related most directly to Bailey’s case and was the most prejudicial. Even if it was error to compel Starr to testify about certain matters that were outside of her guilty plea, that issue was not raised before the trial court and not properly preserved for appeal.
Deans Testimony
At the time of Bailey’s trial, Dean had entered a guilty plea, been sentenced, and filed a notice of appeal. Outside the presence of the jury, the court held a hearing at which Dean, through counsel, advised the court that he wished to assert his Fifth Amendment privilege and, failing that, did not wish to testify. The court found that Dean had no Fifth Amendment privilege to assert. Dean’s counsel did not object to this determination. Dean indicated he was not willing to testify despite the court’s decision, and the court advised Dean to speak with his counsel about the matter. Dean was called to testify without objection. Dean identified Bailey, admitted they were first cousins and good friends, and refused to testify further. Dean did not actually assert a Fifth Amendment privilege in front of the jury; instead he repeatedly stated, “I’m not testifying.” After dismissing the jury, the trial court found Dean in contempt for his refusal to testify.
Bailey argues that it was error to allow the State to put Dean on the stand knowing that he would refuse to testify. Bailey cites cases in which the witness had a valid Fifth Amendment privilege and was put on the stand for the sole purpose of asserting that privilege before the jury. State v. Crumm, 232 Kan. 254, 256-57, 654 P.2d 417 (1982) (finding no error in a trial court’s refusal to let the defendant ask questions to which the witness would assert a valid Fifth Amendment privilege); State v. Simpson, 29 Kan. App. 2d 862, 872-73, 32 P.3d 1226 (2001) (finding error when a witness’ attorney invoked the witness’ Fifth Amendment privilege in front of the jury). The State contends that Dean did not have a valid Fifth Amendment privilege. Further, the State argues that Dean was not called for the sole purpose of asserting his Fifth Amendment privilege before the jury; rather, Dean was called in hopes that he had decided to testify.
Bailey cites Anderson, 240 Kan. at 700-01, for the proposition that a witness retains his or her Fifth Amendment privilege through the course of the appeal. The witness in Anderson, however, did not have a pending appeal. That individual had entered a guilty plea but had filed a motion to withdraw the plea, which was denied; he had not yet been sentenced, nor had the appeal time run on the denial of his motion to withdraw his plea. Under those unique circumstances, the court in Anderson determined that the witness had a valid Fifth Amendment privilege. Anderson, 240 Kan. at 701. In Longobardi, this court specifically limited the Anderson ruling, stating: “We hold that once a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it, the privilege against self-incrimination ends after sentence is imposed. Syllabus paragraph 2 of Anderson is hereby limited to this ruling.” Longobardi, 243 Kan. at 409.
Because Dean had entered a guilty plea and had been sentenced, the trial court was correct in finding that Dean had no Fifth Amendment privilege protecting the events in this case. See Longobardi, 243 Kan. 404, Syl. ¶ 1. As Dean had no valid Fifth Amendment privilege, his refusal to testify before the jury is different than refusal by a witness called for the sole purpose of asserting a valid Fifth Amendment privilege to cause jury speculation.
Bailey argues that Dean’s limited statements were inherently prejudicial and that “the prejudice was compounded by the fact that before refusing to testify, [Dean] told the jury that he and [Bailey] were cousins and that they have been good friends and buddies for a long time.” At trial, Bailey’s theory was that (1) the events were separated in time because Bailey had returned to the house to “rescue” Dean, requiring that felony murder must have occurred during the unlawful discharge of a firearm; and (2) Dean, not Bailey, had been the actual shooter, i.e., Dean committed the unlawful discharge of a firearm. Dean’s testimony and subsequent refusal to testify further were not prejudicial to this theory; in fact, Dean’s testimony arguably bolstered Bailey’s position. In any event, any inference the jury made regarding Dean’s refusal to testify was inconsequential.
Affirmed.
Buser, J., assigned. | [
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The ojfinion of the court was delivered by
Yaeentine, J.:
In this case a judgment was rendered in favor of John B. Burnes, defendant in error and plaintiff below, and against William L. Smith, one of the plaintiffs in error, for the sum of $824, and an order was made against all the defendants below that Lot No. 12, in Block 39, in Leavenworth City, should be sold, without any right of redemption, to satisfy said judgment. The judgment was rendered on four promissory notes, the first three of which were given by William L. Smith to John B. Burnes, and the last was given by William L. Smith to Lewis Burnes. The first note was given November 8th, 1865, and the amount found due upon it was $400. The second note was given December 23d, 1865, and the amount found due ujjon it was $250. The third note was given August 18,1866, and the amount found due upon it was $40. The fourth note was given May 13, 1867, and the amount found due upon it was $134. Each of these notes was secured by a separate mortgage on said lot, each mortgage bearing even date with the note it was given to secure. At the time the last note and mortgage were given William L. Smith and his wife Mary Jane Smith waived the right of redemption under the provisions of the statute of 1867, which had then just then come into force, and which permitted them to do so. (Laws of 1867, p. 188.) Afterwards Lewis Burnes transferred this note and mortgage to John B. Burnes, the plaintiff below, who brought his action on this note and mortgage as well as on the three notes and mortgages that had been given to himself. There was no waiver of redemption in the notes and mortgages given to him. After the judgment and decree of the court below, an order of sale was issued, and said lot was sold thereon, and afterwards the sale was confirmed by the court and a deed was ordered to be made to the purchaser. After all of these proceedings had transpired in the court below, the plaintiff in error brought the case to this court, and now asks to have the whole of said proceedings reversed.
I. It is claimed here, and for the first time, that the petition below does not and did not state facts sufficient to authorize the court to make any order or decree as the court did, that the lot should be sold without any right of redemption. It is possible that if the objection to the p^p.^ pee:a made before the verdict of the 'jury, or before the decision of the court below, the objection should have been sustained. "We think that the statement in the petition was defective, and should have been held so, if it had been attacked at the proper time, and in the proper manner. But the objection now comes too late. The petition was not defective because it failed to state some material fact, but it was defective because it stated a material fact in a defective manner. It simply stated that “ the privilege of redemption had been waived” by the said Smith, without stating what redemption, or redemption from what, or redemption under what statute. Lender v. Caldwell, 4 Kas., 339. But these defects were undoubtedly supplied by the evidence, and the defective statement is cured by the finding of the court. It is a general primfijple of law, that where a material fact is stated in a pleading, but stated defectively, the defect will be cured by a verdict of the jury or a finding of the court.
It is also claimed by the plaintiffs in error, but incorrectly as we think, that the petition below did not sufficiently describe the lot.
II. It is also claimed that the court below erred in making the order and decree that the lot should be sold to satisfy the whole of said judgment, including the first three notes and mortgages, as well as the last note and mortgage without any right of redemption. This claim we think is well founded. The order or decree should have been so made that if the amount of the last note and mortgage with , the interest and costs thereon should be paid at any time before the sale, that upon a sale for the balance of the judgment the lot should be subject to redemption therefrom, as provided by law. Up to the date of the judgment there can be no question but that the defendants below at any time could have paid the last note, and allowed the judgment and decree to be rendered against them on the other three notes and mortgages. And in such a case no one would claim that the decree of foreclosure barring all right of redemption would be correct. And no sufficient reason can be given why the defendants should lose their right of redemption on a sale to satisfy the three first notes by failing to pay the last note before judgment.
III. There are a few other questions which the plaintiff in error attempts to raise in this case, only two of which as we think are of sufficient importance to be mentioned in this opinion. '
There was no formal levy of the order of sale on said lot. This we think was not necessary. The court had complete jurisdiction of the property without any formal levy. The court ordered that it be sold; and the sheriff had no power to seize or sell any more or any less than the specific lot which he was ordered to sell. Wheatly v. Tutt, 4 Kas., 195. The order' of sale was not a general execution which the sheriff could levy on any property.
The sale was at the court-house door. This we think was sufficient; for if the sale was at the court-house door, it must necessarily have been at the court-house, which is J 7 sufficient. (Gen. Stat., 718, § 462.) It is not claimed that there was any fraud practiced in conducting the sale.
We shall allow the defendants to have the judgment below modified in accordance with this opinion, although we cannot see that it will benefit them in the least. The sale was valid, and the reversal or modification of the judgment cannot affect the sale in any manner whatever. The title of the *1 , , - purchaser mil remain good, notwithstanding the modification of the judgment. (Comp. Laws, 202, § 458; Gen. Stat., 720, § 467.) With reference to the last note the plaintiff had a right to have the lot sold without any right of redemption; and this will uphold the sale even on petition in error. (See authorities cited in counsels’ brief.) If the defendants desired to redeem from the first three notes they should have taken steps to have the error of the distinct court corrected before any sale took place. But as they did not we do not now see that they have any remedy. Judgment modified.
Kingman, O. J., concurring.
Brewer, J., not sitting in the case.
[* The description in the petition was — “Lot No. 12, in Block No. 39, in the city of Leayenworth, in the county of Leavenworth.’1 The objection urged againstthis description was, that it was not stated that said lot was u in the original plat ” of said city.— Reporter.] | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, defendant in an action before a justice of the peace, appealed from a judgment against him to the district court, and there moved to dismiss the case. That motion was overruled, and this he claims was error. It was decided by this court in Brown v. Kimble, 5 Kas., 80, that the “ denial of a motion to dismiss an action made by the defendant is not one of the orders of the district court from which error lies to this court, until the final disposition of the action.” That decision disposes of this ease. See also Edenfield v. Barnhart, 5 Kas., 225.
All the Justices concurring. | [
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The opinion of the court was delivered by
Biles, J.:
This court considers for the first time whether a common-law tort for retaliatory discharge may be brought against an employer when an employee claims he or she was fired for filing a wage claim under the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq. The district court dismissed the lawsuit because there was no previously recognized exception to the terminable-at-will doctrine for discharging an employee for filing a KWPA wage claim. The district court also found there was an adequate remedy available under that Act. We hold the pleadings state a valid claim for retaliatory discharge, and the statutory remedies provided by the KWPA are an insufficient substitute for common-law remedies. As such, we reverse and remand for further proceedings.
Factual and Procedural Background
Robert L. Campbell was an at-will employee with Husky Hogs, L.L.C., for about 1 year when he filed a complaint with the Kansas Department of Labor (KDOL) alleging Husky Hogs was not paying him as required by the KWPA. Campbell was fired 1 business day after KDOL acknowledged receiving his claim. Campbell filed this lawsuit in Phillips County District Court alleging Husky Hogs terminated him for pursuing his statutory rights under the KWPA. Husky Hogs denied the allegation.
The company also filed a K.S.A. 60-212(b)(6) motion for judgment on the pleadings. It argued Kansas had not previously recognized a retaliatory discharge claim for alleging KWPA violations and no public policy reasons existed for allowing such a claim now. Campbell conceded the legal issue was one of first impression, but he argued Kansas public policy strongly favors wage earners and compliance with the statutory mandates, so his claim should qualify as an exception sometimes permitted at common law.
The district court granted Husky Hogs’ motion. It held Campbell’s termination did not violate Kansas public policy, even though it was required to assume the discharge resulted from filing the disputed wage claim. And the district court sua sponte determined that even if Campbell had stated a valid common-law retaliatory discharge claim, it was supplanted by the KWPA because that Act provides Campbell an adequate substitute remedy. Campbell filed a timely notice of appeal to the Court of Appeals. This court transferred the case pursuant to K.S.A. 20-3018(c) (transfer on court’s own motion).
Analysis
Standard of Review
Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. Ritchie Paving, Inc. v. City of Deerfield, 275 Kan. 631, 633, 67 P.3d 843 (2003). An appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiff s theory or any other possible theory. Bland v. Scott, 279 Kan. 962, 963, 112 P.3d 941 (2005) (quoting McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, Syl. ¶ 1, 35 P.3d 815 [2001], cert. denied 537 U.S. 841 [2002]).
Exceptions to the employment-at-will doctrine
Kansas historically adheres to the employment-at-will doctrine, which holds that employees and employers may terminate an employment relationship at any time, for any reason, unless there is an express or implied contract governing the employment’s duration. Morriss v. Coleman Co., 241 Kan. 501, 510, 738 P.2d 841 (1987). But there are specific statutory exceptions to this rule, such as terminations based on race, gender, or disability. See K.S.A. 44-1009 (It is unlawful for an employer to terminate or otherwise discriminate against a person because of race, religion, color, sex, disability, national origin, or ancestry or to commit other discriminatory employment practices listed in the statute.).
There are also exceptions recognized by Kansas courts through our case law. Over the past 30 years, exceptions to the at-will doctrine created a common-law tort for retaliatory discharge. These exceptions gradually eroded the general terminable-at-will rule when an employee is fired in contravention of a recognized state public policy. Ortega v. IRP, Inc., 255 Kan. 513, 518, 874 P.2d 1188 (1994) (“[I]t is clear that this state has recognized exceptions to the doctrine of employment-at-will when an employee is discharged in contravention of public policy.”); Anco Constr. Co. v. Freeman, 236 Kan. 626, Syl. ¶ 5, 693 P.2d 1183 (1985) (“When an employee is terminated in violation of federal public policy, however, no state cause of action is pled.”).
To date, this court has endorsed public policy exceptions in four circumstances: (1) filing a claim under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq.; (2) whistleblowing; (3) filing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2006) et seq.; and (4) exercising a public employee’s First Amendment right to free speech on an issue of public concern. Anco Constr. Co., 236 Kan. at 629 (workers compensation); Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685 (1988) (whistleblowing based on good-faith reporting of coworkers or employers infraction pertaining to public health and safety); Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 561, 108 P.3d 437 (2004) (FELA); Larson v. Ruskowitz, 252 Kan. 963, 974-75, 850 P.2d 253 (1993) (retaliatoiy discharge claim when a public employee is terminated for exercising First Amendment rights to free speech on an issue of public concern); see also Flenker v. Willamette Industries, Inc., 266 Kan. 198, 204, 967 P.2d 295 (1998) (whistleblowing based on good-faith reporting of federal Occupational Safety and Health Act violations); Coleman v. Safeway Stores, Inc., 242 Kan. 804, 815, 752 P.2d 645 (1988) (employer prohibited from terminating employee because of absence caused overruled on other grounds by Gonzalez-Centeno v. North Central Kansas Regional Juvenile Detention Facility, 278 Kan. 427, 101 P.3d 1170 (2004); Cox v. United Technologies, 240 Kan. 95, Syl., 727 P.2d 456 (1986) (recognizing tort of retaliatory discharge for filing a workers compensation claim but declining to apply it under specific facts of case), overruled on other grounds by Coleman, 242 Kan. at 813-15.
Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), was the first Kansas case recognizing a cause of action for retaliatory discharge. There, plaintiff alleged he was terminated for claiming workers compensation benefits against his employer. The Workers Compensation Act did not contain an express provision making it unlawful to terminate an employee for filing a claim. In fact, the Murphy court noted the legislature had considered amending the law to explicitly permit a retaliation claim on two occasions, but neither amendment passed. 6 Kan. App. 2d at 496. Nevertheless, the Court of Appeals held a strong public policy could be implied from the statutory scheme and that policy needed protection against job-related retaliation. It noted the Workers Compensation Act provided efficient remedies and protections for employees, was designed to promote the welfare of people in the state, and was the exclusive remedy available for injured workers. As such, “[t]o allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purposes of the act.” 6 Kan. App. 2d at 496. Four years later, the Court of Appeals’ analysis was affirmed by this court in Anco Constr. Co., 236 Kan. at 629, and then reaffirmed in subsequent cases. See Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 272 Kan. 546, 560-62, 35 P.3d 892 (2000); Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 132, 815 P.2d 72 (1991); Coleman, 242 Kan. at 810; Cox, 240 Kan. at 96.
Almost 2 decades after Anco Constr. Co., this court applied the same analysis recited in Murphy to recognize that a retaliatory discharge claim under FELA was necessary to protect an employee’s exercise of statutory FELA rights. Hysten, 277 Kan. at 561. In Hysten, a railroad employee filed a retaliatory discharge claim alleging the railroad retaliated against him for filing a tardy claim for work-related injuries. The railroad argued this was not a valid state law retaliatory discharge claim, but was instead dependent upon a federal policy. Disagreeing, this court held:
“Regardless of whether FELA or the Kansas Workers Compensation Act supplies the framework to support an injured worker’s pursuit of recovery, the public policy underlying that framework would be undermined if the worker could be fired for the exercise of his or her statutory right. Such a situation effectively releases an employer from the obligation of the statute. [Citation omitted.]” (Emphasis added.) 277 Kan. at 556-57.
The case law makes it obvious that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined. As such, the first question in analyzing Campbell’s claim becomes whether such a state public policy is found within the KWPA.
The public policy embedded in the KWPA
The parties dispute what authority may be considered when determining whether a strongly held public policy exists in this state. Husky Hogs argues the legislature must expressly declare a public policy against retaliatory job actions for filing a wage claim under the KWPA before Kansas courts may recognize a common-law tort of retaliatory discharge as an exception to at-will employment. But Campbell argues the test is not so strict and that public policy has been implied from statutory schemes. Campbell’s argument is consistent with Kansas case law.
We have stated that courts tasked with determining whether a public policy exists are faced with three situations: (1) The legislature has clearly declared the state’s public policy; (2) the legislature enacted statutory provisions from which public policy may reasonably be implied, even though it is not directly declared; and (3) the legislature has neither made a clear statement of public policy nor can it be reasonably implied. Coleman, 242 Kan. at 808. We also have held that public policy must be clearly declared by the constitution, statutory enactments, or the courts, and it must be “ ‘so united and so definite and fixed that its existence is not subject to any substantial doubt.’ ” Hysten, 277 Kan. at 555 (citing Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 [2000]). We also have acknowledged that while public policy may be determined by both the legislature and the courts, courts must respect legislative expressions when ascertaining whether a public policy exists. Coleman, 242 Kan. at 808.
As to this question, both parties refer us to the Kansas federal court decision in Kistler v. Life Care Centers of America, Inc., 620 F. Supp. 1268 (D. Kan. 1985), which suggested there was an express policy declaration governing a wage-related claim. In Kistler, the plaintiff alleged retaliatory discharge in federal district court, contending she was fired for testifying against her employer at an unemployment compensation hearing. Such hearings are provided for under K.S.A. 44-701 et seq. In determining Kansas public policy prevented a termination under those circumstances, the court held the legislature had “strongly expressed a policy against allowing employers to interfere with unemployment compensation hearings” by enacting K.S.A. 44-615. 620 F. Supp. at 1269. But the relevant portion of K.S.A. 2010 Supp. 44-615 states:
“It shall be unlawful for any person, firm or corporation to discharge any employee or to discriminate in any way against any employee because . . . such employee may testify as a witness before the secretary of labor, or shall sign any complaint or shall be in any way instrumental in bringing to the attention of the secretary of labor any matter of controversy between employers and employees as provided herein.” (Emphasis added.)
It is not immediately clear from the statute what provisions of the labor code are subject to the “as provided herein” language. And since K.S.A. 2010 Supp. 44-615 appears in Article 6 of Chapter 44, one interpretation could be that it applies only to Article 6 claims. The Kistler court did not address this ambiguity about the statute’s scope but simply assumed K.S.A. 44-615 applied to unemployment compensation hearings, which arise from Article 7. The court then held that K.S.A. 44-615 was an express declaration of public policy, so the plaintiff stated a valid retaliatory discharge claim. 620 F.2d at 1269-70. As a secondary holding, the Kistler court also noted that in workers compensation cases Kansas courts had stressed that a retaliatory discharge claim was necessary to preserve the purposes of the Workers Compensation Act. Applying this same rationale to the facts, the Kistler court held the same was true in the unemployment compensation case before it. 620 F. Supp. at 1270.
We must decide whether Kistler s extension of K.S.A. 44-615 to an Article 7 unemployment compensation claim as an express legislative statement of public policy against job retaliation was correct. If so, then there is a strong argument Campbell’s Article 4 claim seeking his unpaid wage is supported by an express legislative statement of public policy against retaliatory misconduct by employers. The question is whether “as provided herein” only refers to fhe Article 6 provisions or applies more broadly to other articles within Chapter 44. Answering this inquiry requires statutory interpretation, which is subject to unlimited review. Weber v. Board of Marshall County Commrs, 289 Kan. 1166, 1175, 221 P.3d 1094 (2009).
To interpret this statute, we first examine its plain language to ascertain legislative intent. If the language is not plain and unambiguous, we employ statutory construction or consult legislative history. In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009). But the statute’s language provides no clarity to our inquiry, so we consider the statute’s history.
K.S.A. 44-615 was enacted in 1920, L. 1920, ch. 29, sec. 15, along with several other provisions creating a Court of Industrial Relations and conferring certain rights and duties upon it. L. 1920, ch. 29, secs. 1-30. Its duties were later transferred to the Secretaiy of Human Resources (now Secretaiy of Labor), when subsequent amendments to K.S.A. 44-615 simply changed the governing body from that court to the Secretary. Compare L. 1920, ch. 29, sec. 15 with L. 1976, ch. 370, sec. 33; L. 2004, ch. 179, sec. 32. In other words, “as provided herein” was originally drafted to apply only to the other provisions adopted in the same bill from 1920. A comparison of the 1920 enactments to Article 6, L. 1920, ch. 29, secs. 3-28, shows they originally included what is now K.S.A. 44-603 through K.S.A. 44-628. Notably, neither the unemployment compensation provisions at issue in Kistler, nor the KWPA at issue in Campbell’s case, were part of these 1920 statutory enactments.
Given this history, and with nothing else to guide the analysis, we hold that K.S.A. 2010 Supp. 44-615 does not apply to any provision under any section in Chapter 44, except Article 6. See Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66 (2010) (Appellate courts must consider various provisions of an act in pari materia to reconcile and bring the provisions into workable harmony if possible.). We find Kistler s reliance on K.S.A. 44-615 misplaced in deciding that the legislature made an express statement against job retaliation in the context of an unemployment compensation hearing. But the Kistler court’s recognition of a retaliatory discharge claim under Article 7 may still be correct under its secondary holding that public policy may be inferred from the statutory right. We address next whether Campbell’s retaliatory dis charge claim may be implied from the KWPA’s statutory scheme. See Hysten, 277 Kan. at 556 (“We are attempting to discern the breadth and depth underlying public policy.”).
The KWPA was enacted in 1973. L. 1973, ch. 204, secs. 1-16. It is an expansive and comprehensive legislative scheme that is broad in its scope and the rights created for Kansas workers to secure unpaid wages earned from their labors. See K.S.A. 44-313 et seq. It is applicable to most Kansas employers. See K.S.A. 44-313(a). It requires, among various other provisions, that employers promptly pay wages and benefits (K.S.A. 2010 Supp. 44-314; K.S.A. 44-315). It also permits specific damages awards for willful nonpayment (K.S.A. 44-315); controls and limits wage withholdings (K.S.A. 2010 Supp. 44-319); prohibits waivers of the rights created (K.S.A. 44-321); and mandates that the Secretary of Labor enforce and administer the KWPA’s provisions through administrative proceedings, compulsory process to compel witness attendance and document production, and permits application to the district courts for citations in contempt (see K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a). The Secretary of Labor is expressly authorized to adopt such rules and regulations as are deemed necessary to accomplish the KWPA’s purposes. K.S.A. 44-325.
In Burriss v. Northern Assurance Co. of America, 236 Kan. 326, 333, 691 P.2d 10 (1984), cert. denied 474 U.S. 821 (1985), this court commented on the safeguards Kansas law has extended to wages and benefits earned by its workers, noting:
“Throughout the history of this state, the protection of wages and wage earners has been a principal objective of many of our laws. See, for example, K.S.A. 60-2307, originally enacted as G.S. 1868, ch. 38, § 6, providing that otherwise exempt personal property shall not be exempt from attachment or execution for wages; K.S.A. 44-312, enacted in 1901, giving preference to the payment of wages in the case of receiverships or assignments for the benefit of creditors; the statute restricting garnishment of wages, K.S.A. 60-2310, which reflects the rationale of G.S. 1868, ch. 80, § 490; and the wage payment act, K.S.A. 44-313 et seq., enacted in 1973. K.S.A. 40-3103, like the statutes mentioned above, gives preference to wage earners, in order that they and the families dependent upon them are not destitute.”
This language was repeated recently in Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 644, 154 P.3d 1080 (2007), in recognition of what the Coma court characterized as “the strong and longtime Kansas public policy of protecting wages and wage earners.” In Coma, we held that denying an undocumented worker access to KWPA’s statutory mechanisms for enforcing an employment contract would “directly contravene the public policy of the State of Kansas.” 283 Kan. at 645.
This court has recognized retaliatory discharge claims in different circumstances, including those in which employees are discharged for exercising a statutory right. Hysten, 277 Kan. at 561 (FELA); Anco Constr. Co., 236 Kan. at 629 (workers compensation). Campbell’s petition, which alleges an adverse job action against him for pursuing his statutory right to payment of earned but unpaid wages, clearly fits within this type. And it is meaningful that this statutory right relates to employment because it dovetails with much of our prior case law. For example in Hysten, which concerned the railroad employee terminated after filing a FELA claim for a work-related injury, this court held:
“The design and language of the Kansas Workers Compensation Act and the logic of Murphy, 6 Kan. App. 2d 488, persuade us that Kansas has a ‘thoroughly established’ public policy supporting injured workers’ rights to pursue remedies for their on-the-job injuries and opposing retaliation against them for exercising their rights. It matters not that the vehicle for that exercise is a federal rather than a state statutory provision.” 277 Kan. at 561.
That principle is applicable to the KWPA. We hold the KWPA embeds within its provisions a public policy of protecting wage earners’ rights to their unpaid wages and benefits. And just as we found a common-law retaliatory discharge claim when an injured worker is terminated for exercising rights under the Workers Compensation Act, we find such a cause of action is necessary when an employer fires a worker who seeks to exercise KWPA rights by filing a wage claim. To do otherwise would seriously undermine the public policy and the protections afforded by the KWPA. Cf. Hysten, 277 Kan. at 556-57.
Campbell’s petition states a claim for relief
Having determined a cause of action exists for retaliatory discharge based on the pursuit of a wage claim under the KWPA, we must next consider whether Campbell states such a claim. In his petition, Campbell alleges: (1) He filed a complaint with the KDOL alleging he was not being paid properly under the KWPA; (2) Husky Hogs terminated him after he filed the complaint only 1 business day after Campbell received acknowledgement that his complaint was filed; (3) the termination was in retaliation for fifing the complaint with the KDOL; (4) Campbell suffered damages, including lost wages, as a result of being terminated; and (5) his termination violated an important public policy under Kansas law. We resolved the public policy factor above.
In Rebarchek, this court held that the elements for a prima facie claim for retaliatory discharge for fifing a workers compensation claim are: (1) The plaintiff filed a claim for workers compensation benefits or sustained an injury for which he or she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff s workers compensation claim injury; (3),the employer terminated the plaintiff s employment; and (4) a causal connection existed between the protected activity or injury and the termination. 272 Kan. at 554.
As noted above, in reviewing a dismissal under K.S.A. 60-212(b)(6), appellate courts assume the facts alleged by plaintiff are true, along with any inferences reasonably drawn from them. Bland, 279 Kan. at 963. Given the similarities between alleging retaliatory discharge for fifing a workers compensation claim and fifing a KWPA claim, we find the allegations stated by Campbell sufficient to avoid dismissal at this early stage in the proceedings under our standard of review.
KWPA provides an inadequate substitute remedy
In addition to finding Campbell had not stated a claim upon which relief may be granted, the district court sua sponte held that the remedies available for violating the KWPA provided an adequate substitute remedy for Campbell’s common-law retaliatory discharge claim and dismissed the case on that alternative basis. Campbell disagrees, arguing the KWPA can only address his wage claim and noting the common-law remedies traditionally available for a wrongful termination claim, including punitive damages, are not permitted in the administrative action before the Secretary.
Under the alternative remedies doctrine, a state or federal statute could be substituted for a state retaliation claim — if the substituted statute provides an adequate alternative remedy. Hysten, 277 Kan. at 561; Flenker, 266 Kan. at 202-03. Therefore, the issue is whether the statutory remedy under the KWPA is adequate and thereby precludes the common-law remedy sought by Campbell.
In Hysten, when deciding whether FELA provided an adequate substitute remedy for the plaintiff s retaliatory discharge claim, this court examined whether the FELA and common-law actions were subject to the same procedures, allowed similar levels of claimant control, and made available the same damages. 277 Kan. at 562-64. We stated:
“We also do not regard the unavailability of compensatory damages for pain and suffering and punitive damages as trivial. As we recognized in Coleman, a retaliatory discharge action, such as the one Hysten brings here, is designed to redress a violation of state public policy. [Citation omitted.] The availability of compensatory damages beyond those designed to eliminate purely economic loss and particularly the availability of punitive damages can deter such violations. As Judge Posner said: ‘It is a grave matter for an employer to fire an employee for exercising a legal right.’ [Citation omitted.] Deterrence of such conduct is essential.” 277 Kan. at 563.
Similarly, the disparate processes and dissimilar remedies make it untenable to find the KWPA claim is an adequate substitute remedy for Campbell’s common-law retaliatory discharge claim. First, as discussed above, the district court’s holding is problematic because the wage claim redresses a different harm. The KWPA action and its statutory remedies relate to Campbell’s claim that Husky Hogs did not pay him all earned wages. But the retaliatory discharge claim would redress the employment termination. Since these causes do not address the same wrong, it is difficult to conclude the legislature supplanted the retaliatory discharge claim with KWPA.
But just as importantly, Campbell does not receive the same process under his KWPA claim as he would in litigating the wrongful termination claim. KWPA permits the Secretary of Labor to hold hearings and investigate alleged violations of the act. K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a. The Secretary or presiding officer determines whether the unpaid wage claim is valid, how much the employer owes in unpaid wages, assesses applicable damages, and may seek a contempt order in district court if the employer refuses to obey the Secretary’s order. K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a. But neither party in an administrative action has a right to a jury trial and the Secretary has considerable statutory discretion both to determine whether a dispute exists and to control the investigation of that dispute. See K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a. Regarding damages under the KWPA, the Secretary has authority to award the unpaid wages and damages for willful nonpayment, but they are limited to 1 percent of the unpaid wages for each day payment is not submitted up to 100 percent of the unpaid wages. K.S.A. 44-315.
While these statutory remedies may adequately compensate Campbell for his unpaid wage claim, it is difficult to see how they adequately compensate him for wrongful termination or provide a better deterrent for the retaliatory misconduct alleged. Retaliatory discharge is a tort. A tort is a breach of duty imposed by law. Under common law, Campbell may seek future iost wages, any other actual damages, and applicable remedies for pain and suffering, as well as punitive damages. See Hysten, 277 Kan. at 563.
This court has previously criticized the allocation of a common-law action to an administrative agency. See Hysten, 277 Kan. at 562; Flenker, 266 Kan. at 208-10; Coleman, 242 Kan. at 813-14. In this case, we hold the KWPA is not an adequate substitute remedy for Campbell’s common-law retaliatory discharge claim. The district court erred in so finding.
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The opinion of the court was delivered by
Brewer, J.:
Four points are presented for our consideration in this case. First, That the verdict and judgment are against the evidence. The question in issue was as to the making of a contract. This was affirmed by two witnesses, and denied by four. None of them were impeached. Interest might affect the testimony of the plaintiff, who was a witness in Ms own behalf, more than that of the other witnesses. Yet a fair question of fact was raised by the conflicting testimony, upon which the jury found in favor of the defendant in error. This finding the judge who heard and saw the witnesses, sustained. LYe should break in upon a well-settled rule of decision if under these circumstances we should disturb the verdict on this ground.
II. Plajntiff in error asked the two following instructions which were refused:
“10th.-If the jury believe from the evidence that the contract alleged to have been made by the plaintiff' with the defendant company was to procure Texas cattle to be driven to and loaded on the defendant’s cars, and shipped therefrom, situated in Abilene, Dickinson» county, Kansas, between March and December, 1869, in consideration of which service in whole or in part it is alleged that said defendant company offered to pay the plaintiff $2.50 jier car for each and every car-load of stock shipped from said yard so situate, such a contract, if actually made and entered into required the plaintiff to perform an act, and the plaintiff agreed thereby to do air act, in violation of the criminal law of this state, and is wholly void, and cannot be enforced in this court.
“ lltk.-If the jury believe from the evidence that a part of the inducement or consideration of the said contract consisted in procuring, through the efforts of the plaintiff, Texas stock or cattle to "be driven to Abilene, Dickinson county, Kansas, to be there shipped, such inducement and consideration being in violation of law render the said contract null and void.”
The refusal to give these instructions is alleged for error. We see no error in such refusal', for the reason that both these instructions fail to reach to the prohibition contained in what is popularly known as the “Texas Cattle Law.” The substance of that law is found in the first part of its first section, (Gen. Stat., p. 1014,) which is as follows:
“ No person or persons shall be allowed to drive or cause to be driven into the state of Kansas or through any part thereof any cattle from the Indian Territory south of Kansas, or from the state of Texas, that may have come into the state between the first days of March and December of each year.” •
Now the prohibition is not against driving into or through this state any Texas cattle, but only such as have come i/nto the state between the first days of March amd December. Texas cattle which enter the state during the remaining three months may be driven at any time of the year through any portion of the state without violation of the provisions of this statute. These instructions ignore this distinction. They are based upon the idea that the prohibition is directed at the time of driving, instead of the class of cattle driven. They would make it penal to drive Texas cattle through the eastern portion of the state between the first of March and December, no matter when tbe cattle came into the state. The court was right in refusing these instructions.
III. Plaintiff in error asked the two following instructions:
“ 6th.-If the jury believe from the evidence that a contract such as is set up in the plaintiff’s petition was entered into, and that a part of the consideration of the contract was that the plaintiff should use money or other illegal means to influence the legislation of the legislature of the state of Illinois upon the cattle importation question then pending before it such consideration would be illegal and void, and the contract made upon (either in whole or in part,) such consideration would be void.
£ 7th.-If the defendant was induced to promise an allowance to the plaintiff of $2.50 per car load of live stock shipped from plaintiff’s stock yards in 1869, at Abilene, by the plaintiff’s promise to spend money in Springfield, Illinois, for the purpose of influencing or defeating legislation in the Illinois legislature, during the winter or spring of 1869, such promise or agreement is void, and cannot be enforced in this court, and even though such inducement was only a part of the consideration of such promise or agreement.”
The latter one was refused, and the former given with this modification:
“The influences used to control or direct legislation must be of an illegal, fraudulent, or corrupt nature, such as bribery, using personal influence over members of legislature, making false statements, and such other undue means; but presenting a petition to the legislature calling attention to, or praying for legislation on some lawful or proper measure, publicly giving true information either orally or by printed matter, and other proper and lawful acts, would not be using improper, unlawful or undue means.”
Of the action of the court in refusing the one and modifying the other instruction plaintiff in error complains. There is no essential difference between these two instructions, and the giving of the one'obviated the necessity for the other; so that really the only question presented is as to the propriety of the modification made in the former. Was the plaintiff in error entitled to the first as presented, or was the modification necessary to present the law fully and correctly to the jury? We think the modification was necessary. The use of money to influence legislation is not always wrong. It depends altogether on the manner of its use. If it be used to pay for the publication of circulars or pamphlets, or otherwise, for the collection or distribution of information openly and publicly among the members of the legislature, there is nothing objectionable or improper. But if it be used directly in bribing, or indirectly in working uj> a personal influence upon individual members, conciliating them by suppers, presents, or any of that machinery so well known to lobbyists, which aims to secure a member’s vote without reference to his judgment, then it is not only illegal but one of the grossest infractions of social duty of which an individual can under the circumstances of the present day be guilty. It deserves not merely the condemnation of the courts but the scorn and scourging of every honest citizen. Por it is the way of death to republican institutions. The instruction as presented declared all use of money illegal, and contracts to use it void. This is not correct. It needed the modification given, which presented to the jury the circumstances under which the use of money is illegal and a contract to so use it void.
IY. It is claimed that there is no proof of performance by defendant in error of the contract which he testifies was entered into between him and plaintiff in error. The contract as alleged in the petition was as follows:
“The said defendant proposed to said plaintiff that if he, said plaintiff, would give to said defendant at Ms said stoch yards Ms labor, care, and diligence in obtai/wing for said defendant Ms stoch for shipment on defendant’s railroad, and would also superintend the loading of live stock on the cars of said defendant at the place aforesaid, the entire shipping season of live stock for the year 1869, that the said defendant would pay to said plaintiff the said sum of $2.50 at the end of the shipping season of said year for each and every car that was loaded with live stock for said year at the place aforesaid, which propositions on the part of said defendant were accepted by said plaintiff.”
In regard to this contract the testimony of defendant in error was: “ Mr. Perry said we have determined to give you $2.50 per car for each and every car load of live stock that you obtain and load on our ears at Abilene during the year 1869. I am not sure whether he said 1869 or the shipping season.” Afterwards on being questioned as to the voucher necessary to secure payment, Mr. Perry told him — as the witness testifies— “ At the end of the cattle-shipping season come down here and bring with you a certificate of the number of car loads shipped during the season and I will see that the money is paid to you here.” The witness testified that he procured a certificate of the kind indicated showing the shipment of 2,057 car loads, and took it to St. Lonis. He also introduced the deposition of the station agent of plaintiff in error at Abilene showing the number of car loads shipped from his yards during that season. This certainly makes out a prima facie case. But it is objected that he was not present at Abilene during the entire season; that though the contract was made on or about April 10th he did not reach Abilene till about the 1st of July. As against this it is sufficient to say that the president of the plaintiff in error at the time the contract was made told the defendant to go to Springfield and work there till the Illinois legislature adjourned, and then go to Kansas. The defendant in error testifies that he “ went to Springfield and remained there till the legislature adjourned, and then went to Kansas.” The record does not show when the legislature adjourned. Surely the plaintiff in error cannot complain of the conduct of defendant in error when such conduct was at its dictation. These being the, only important questions presented, and no error appearing in them, the judgment of the district court must be affirmed.
All the Justices concurring.
[* Amended by § 1, cli. 195, Laws of 1872, p. 387; and again amended by § 1, ch. 138, Laws of 1873, p. 262, — Reporter.] | [
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The opinion of the court was delivered by
Kingman, C. J.:
Two errors are urged in the brief and argument of plaintiff in error. First, that the mortgage sued on was invalid; second, that the court erred in finding that the land was not taxable in 1860.
I. On the same day that the land was entered the mortgage was executed. The consideration was the land-warrant sold to Pearsoll with which he entered the land. The warrant was sold with an understanding that the payment therefor should be secured by a mortgage as soon as the land was entered, and the mortgage was given in pursuance of such understanding. It is insisted that the mortgage is invalid because it is in contravention of the 13th section of the law of 1841 in relation to pre-emptions. It may well be doubted whether "Watterson is in a situation to raise this question. If the government waives the fraud of the pre-emptor and gives him a patent for the land, by what right does one holding under the pre-emptor complain? Again, under our statute it may be questioned whether a mortgage is such an alienation as is contemplated by the law referred to. It is often the only way in which the pre-emptor can raise the means to secure his land, and therefore is not within the spirit of the law. And a mortgage is of such a character in this state that it is difficult to consider it an alienation under the letter of the law. But the case as to this point may be decided without reference to these doubtful questions referred to, for the statute in the same section makes a saving in favor of bona fide purchasers for a valuable consideration. Now if the mortgagé can be held a conveyance under the statutes, then Kirkwood holds it as an innocent purchaser for a valuable consideration, and is not affected by the fraud of Pearsoll.
II. We think the court erred in holding that the land was not taxable in 1860. It was entered on the 28th of July, 1860, and thus became taxable for that year. The law in force was the law of the previous session. (Laws 1860, p. 203.) The learned judge who tried the case probably decided it by reference to § 12 of the act, which is somewhat obscure, and by itself is susceptible of an interpretation that the land must have been entered on or previous to the first day of May to to render it taxable for the current year; but a reference to subsequent sections of tbe act will be enough to show that such construction is wrong. By § 25 the commissioners meet as a board of equalization on the the third Tuesday of August. Section 67 is as follows: “The county board of equalization shall have power to enter on the tax roll any lands which may have been omitted by the assessor, provided the same shall have been entered or pre-empted before the first day of their session, and give the same a fair and just valuation.” So that any lands entered or pre-empted before the third Tuesday in August of that year were taxable for that year. This decision is not at all in conflict with the case of Taylor v. Miles, 5 Kas., 498, cited by defendant in error. That decision was a correct construction of the law of 1858. This law was wholly changed in 1860, and courts have to apply the law- in force.
The judgment is reversed and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Caplinger, J.:
In this direct appeal, Sterling Ray Hall, III, seeks reversal of his convictions of first-degree murder and criminal possession of a firearm. Hall asserts the prosecutor committed misconduct during closing argument by misstating the evidence and the law regarding the element of premeditation; by injecting his personal belief into closing argument; and by inflaming the passions of the jury by appealing to the jurors’ sense of responsibility. Further, Hall claims the district court erred by failing to provide the appropriate lesser included offense instruction for second-degree murder, PIK Crim. 3d 56.03. Hall also challenges the sufficiency of the evidence of his first-degree murder conviction, arguing the evidence of premeditation was insufficient to sustain the conviction, and he contends the cumulative effect of several alleged trial errors deprived him of a fair trial. Finally, he alleges his constitutional rights were violated by sentencing errors.
While we find that the prosecutor misstated the law as it related to the facts of this case regarding the defendant’s ability to premeditate the killing, we conclude this error did not prejudice the defendant’s right to a fair trial under the circumstances presented. We further hold the district court did not clearly err in failing to give the instruction for second-degree murder as a lesser included offense, PIK Crim. 3d 56.03, and the evidence of premeditation was sufficient to support Hall’s first-degree murder conviction. Finally, we find no cumulative trial or sentencing errors. Therefore, we affirm Hall’s convictions and sentences.
Factual and Procedural Background
We have briefly summarized below the facts developed at trial. Additional facts will be discussed as relevant to the issues raised.
In the early evening hours of May 15, 2008, Leona Pahmahmie agreed to pick up her friend, Brenda Rowe, at an apartment complex and drive her to the Regency Inn in Topeka. When Pahmahmie, accompanied by her cousins, Keith Buskirk and Karie Wahweotten, arrived at Rowe’s apartment, Rowe came out with Hall, whom Rowe identified only as her “bodyguard.” Rowe and Hall got in Pahmahmie’s car, and Pahmahmie drove to the Regency Inn and parked in the motel’s parking lot. While Rowe went inside to register for a room, Pahmahmie and the vehicle’s three passengers waited in the vehicle. Pahmahmie remained in the driver’s seat, Hall sat behind her in the back seat, Wahweotten sat in the front passenger seat, and Buskirk sat behind Wahweotten in the back seat.
Inside the motel lobby, Rowe encountered difficulties with the credit cards offered as payment for a room. Consequently, she remained inside the motel lobby for approximately 15 to 20 minutes. Meanwhile, from their vantage points in the vehicle, Pahmahmie and Buskirk could see a group of people sitting in an open corridor on the ground level several doors down from the main office. The individuals in that group included the victim, Pamela McMaster, her flaneé, Michael Scroggin, and their friend, Kenneth Blake. The three were sitting outside McMaster’s motel room drinking beer and barbecuing.
After Rowe had been gone approximately 15 minutes, Hall announced he was “ready to go do something” or “ready to go.” He got out of Pahmahmie’s car and stood for a moment or two near the front of the car before pulling the hood of his sweatshirt over his head. Hall then walked down the corridor where McMaster and her friends were seated, stopped directly behind McMaster, and shot her four times in the back. McMaster immediately folded over into Scroggin’s lap.
Hall then ran back to the vehicle carrying a gun, jumped in, and directed Pahmahmie to “just fucking go.” Simultaneously, Rowe returned to the car from die motel office.
Pahmahmie dropped off Hall and Rowe at a nearby restaurant. After Hall and Rowe ate, they went to a motel and later to Jill Waterman’s residence. There, Hall showered and changed clothes, leaving a bag of personal items in a storage room.
Two days later, police arrested Hall, Rowe, and Waterman, and then with Waterman’s consent, searched Waterman’s home. There, police discovered a bag containing a loaded .22 caliber handgun and some of the clothing Hall was wearing at the time of the murder. The State charged Hall with first-degree murder and criminal possession of a firearm, and he was convicted by the jury as charged.
Analysis
In this appeal of his convictions and sentences, Hall alleges multiple trial errors and two sentencing errors. We address each of these alleged errors in turn.
Prosecutorial Misconduct
Hall first asserts the prosecutor committed misconduct in closing argument by: (1) misstating a key witness’ testimony relevant to premeditation; (2) misstating the law regarding the element of premeditation as it applied to this case; (3) injecting his personal belief into closing argument; and (4) inflaming the passions of the juiy by commenting on the jurors’ responsibility.
Hall failed to object to any of the instances of prosecutorial misconduct of which he now complains. But because comments made in closing argument are not evidence, Hall was not required to contemporaneously object to preserve his claims of prosecutorial misconduct. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
We apply a two-step framework in analyzing prosecutorial misconduct claims. First, we determine whether the prosecutor’s comments were outside the wide latitude allowed prosecutors in discussing the evidence. If so, then we next consider whether those comments constituted plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. If we find plain error, we must reverse. See State v. Richmond, 289 Kan. 419, 439, 212 P.3d 165 (2009); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
A. Did the prosecutor make improper comments during closing argumentP
1. Misstatement of the evidence
Hall contends that in closing argument the prosecutor misstated Pahmahmie’s testimony regarding the statement Hall made as he waited in the vehicle immediately before the shooting.
During the State’s case-in-chief, Pahmahmie was asked if she recalled Hall saying something outside the vehicle. When she responded negatively, the prosecutor presented her with her state ment to police, which was admitted into evidence without objection as State’s Exhibit 97. In that statement, Pahmahmie indicated that just before Hall got out of the car, he said, “I don’t know, but I’m ready to do something.” After Pahmahmie was directed to read the relevant portion of her statement, she indicated her recollection had been refreshed and testified as follows:
“A. Before he got out he said he was ready to go.
“Q. Okay. That’s before he got out of the car?
“A. Uh-huh.
“Q. Okay. And he said what? I apologize.
“A. That he was ready to go do something. He was ready.
“Q. Ready to go and do something?
“A. Not ready to go and do — he just said he was ready to go.
“Q. Okay. Was he — could you easily understand what he was saying?
“A. I mean, yeah, he said it just quietly but, yeah.
“Q. Okay.
“A. I just took it as he was, you know, ready to go like I was ready to go.
“Q. You were ready to go too, right?
“A. Yeah.”
In his initial closing argument, the prosecutor twice referred to Pahmahmie’s testimony regarding Hall’s statement:
“What do you have from the individuals in the car? They’ve never talked to Mr. Scroggin, they’ve never talked to Mr. Blake. But what do they tell you? They tell you the individual that they identified as Mr. Hall got out of that vehicle, that Ms. Leona, who was closest to where he got out, said he said something to the effect, I’ve got to go do something. He deliberately got out of the car, said what he said. He then took several steps, stood by a wall looking at the car, takes a moment. He’s thinking about what he’s going to do next. He pulls a hood up, turns and walks down the hallway. . . .
“Now, the question then becomes premeditation. You heard the instruction. It means to have thought the matter over beforehand. Well, let’s look when that happened. . . . [Premeditation] simply requires him to form the thought prior to committing the act.
“Well, he deliberating [sic] gets out of the vehicle, he tells the individuals I’ve got to do something. He takes several steps. During that time period to the wall, he certainly could have turned around and got right back in the vehicle. He gets to the wall, and what does he do? He pulls up a hood.” (Emphasis added.)
On appeal, Hall contends the prosecutor committed misconduct when he twice told the jury that Hall said “I’ve got to go do some thing.” Hall contends “there was no such testimony at trial” and therefore the prosecutor was improperly stating facts not in evidence. Hall reasons that this misstatement was significant because the key issue at trial was premeditation, and the statement, “I’ve got to go do something,” indicated Hall intended to commit an act, i.e., he premeditated the killing, while the statement, “Fm ready to go,” merely indicated Hall was fidgety and tired of waiting in the car.
This court has repeatedly held that in closing argument, a prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. See State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008). “A prosecutor ‘is given wide latitude in language and in manner [of] presentation of closing argument as long as the argument is consistent with the evidence.’ [Citation omitted.]” State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008) (quoting State v. Scott, 271 Kan. 103, 114, 21 P.3d 516, cert. denied 534 U.S. 1047 [2001]). Further, when a prosecutor argues facts not in evidence, the first prong of the prosecutorial misconduct test is met, and we must consider whether the misstatement of fact constitutes plain error. State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004).
We do not agree with Hall’s characterization of the prosecutor’s summary of Pahmahmie’s testimony as being outside the evidence. Contrary to Hall’s suggestion, Pahmahmie did testify that Hall said he was “ready to go do something.” And significantly, although neither party mentions it, this testimony came after Pahmahmie’s recollection was refreshed with her statement to police in which she claimed that before getting out of the vehicle, Hall said, “ 1 don’t know but I’m ready to do something.’ ” Pahmahmie’s statement to police was admitted into evidence and available to the jury, and it was consistent with her testimony given immediately after seeing her prior statement at trial.
And while Pahmahmie did attempt to correct her statement to police and the statement she had just made at trial by saying that Hall said only that “he was ready to go,” that clarification does not change the fact that Pahmahmie’s statement to police and her statement at trial were both in evidence and thus supported the prosecutor’s comments in closing argument. We find no misconduct with respect to this issue.
2. Misstatement of the law
Pointing to the following excerpts from the prosecutor’s closing arguments, Hall argues the prosecutor committed further misconduct by twice misstating the law regarding the element of premeditation:
“Premeditation, don’t get confused about time either. As the instruction tells you, there’s no element of time necessary. It can be seconds, minutes, days. There’s no requirement of a period of time.
“... It isn’t about — it isn’t a matter of fact of how many things we’ve given you. It’s the quantity — it’s the quality of what we’ve given you. It’s the quality of what the witnesses told you about what occurred before he pulled the trigger the first time.
“You can even form premeditation after the pull of the first trigger, because remember, he pulls four times. He says there’s no evidence of the fact that the two on the bottom occurred before. Well, nobody made that statement. But what you did hear is that he fired and kept moving forward.” (Emphasis added.)
A defendant is denied a fair trial when a prosecutor misstates the law and the facts are such that the jury could have been confused or misled by the statement. State v. Bunyard, 281 Kan. 392, 404, 133 P.3d 14 (2006) (citing State v. Henry, 273 Kan. 608, 619, 44 P.3d 466 [2002]).
Hall argues that with the italicized comments above, the prosecutor effectively advised the juiy that premeditation can occur instantaneously — a premise repeatedly disapproved by this court. See, e.g., State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) (“We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous.”); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (Morton I) (reversible error for prosecutor to imply premeditation can be instantaneous); State v. Pabst, 273 Kan. 658, 662, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002) (Pabst II) (“A discussion of PIK Crim. 3d 56.04[b] in closing argument should avoid any temptation to use a synonym to convey the suggestion of 'an instant’ without using the actual phrase.”).
We have described premeditation as a “ 'state of mind’ ” that relates “to a person’s reasons and motives for acting as he or she did.” State v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 (2002) (quoting State v. Cravatt, 267 Kan. 314, 328, 979 P.2d 679 [1999]). PIK Crim. 3d 56.04(b) defines premeditation as “to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.”
Hall contends that by advising the jury that premeditation could be formed in “seconds, minutes, days,” the prosecutor implied that premeditation could be formed instantaneously. We disagree. In fact, the prosecutor specifically preceded his reference to “seconds, minutes, days” with the statement that “there’s no element of time necessary.” This language is consistent with PIK Crim. 3d 56.04, the pattern instruction given to the jury in this case, which provides that “there is no specific time period required for premeditation.” Thus, we conclude this particular statement did not misstate the law.
We are more concerned, however, with the prosecutor’s statement that Hall could have “form[ed] premeditation after the pull of the first trigger, because remember, he pulls four times.” Hall argues this was an improper statement of the law and mischaracterized the evidence in this case because there was no evidence that after pulling the trigger the first time, Hall had an opportunity to “have thought the matter over beforehand” or “formed the intent to kill before the act.”
Relying on State v. Saleem,, 267 Kan. 100, 977 P.2d 921 (1999), the State contends the prosecutor did not misstate the law because it was “theoretically possible for Hall to have instantaneously shot the victim on the first shot, but have fired the other shots with the plan to kill the victim.” The State concludes simply that “[s]tating that this was theoretically possible was not a misstatement of the law.”
In Saleem, this court rejected the defendant’s claim that the evidence of premeditation was insufficient to support his first-de gree murder conviction where the defendant instigated an altercation with the victim, fell to the ground, and then “had sufficient time to consider his actions as he arose from the ground and drew his weapon and fired not one but four shots.” 267 Kan. at 106.
Saleem is distinguishable for two key reasons. First, the issue before the court in that case was whether the evidence was sufficient to support the element of premeditation — not whether the prosecutor committed misconduct by misstating the facts or evidence regarding premeditation, the question we currently face. Further, Saleem does not stand for the proposition that when shots are fired in rapid succession, a defendant may form the requisite premeditation after the first shot and sometime between the next three shots, as the prosecutor suggested here. Rather, the court in Saleem clearly conditioned its finding on the specific circumstances before it — i.e., the defendant initiated an altercation and then fell down and got up before firing four successive shots. 267 Kan. at 106.
Here, on the other hand, there was no evidence of any interaction or altercation between Hall and the victim before the shooting. Rather, the evidence showed that the four shots that felled the victim were fired in rapid succession. The victim’s fiance Michael Scroggin, who was seated next to the victim, testified:
“Q: What happened next?
“A: As people come walking through the corridor, and then they walk out in the parking lot and go to their houses or whatever they’re doing, we kind of noticed, and then we go back, like I say, to the conversation. I noticed a man come through the opening of the corridor, and he had on a hooded sweatshirt. And for a split second, I thought it was kind of weird because it was really nice that day, but I didn’t think nothing about it. I turned back around and went right back to the conversation.
“Q: What happened next?
“A: The next thing I know, Pamela had been shot in the back. As quick as I realized that, that person was already gone, and then she folded up over into my lap. I actually didn’t even realize she was shot until after she folded up in my lap, then I could see the litde round blood splotches in her back.”
Similarly, Kenneth Blake, who sat directly across from the victim at the time of the shooting, testified, “He [Hall] kept on coming up, and came right up to the back of Pam and Mike, and reached in this area of his person, and pulled out a gun, and shot Pam four times in the back.”
The evidence showed that the shooter fired four shots in rapid succession, immediately killing McMaster. Therefore, when the prosecutor told the jury that Hall could have premeditated the murder after “the pull of the first trigger,” he essentially suggested that premeditation could have been formed instantaneously — a premise repeatedly disapproved by this court. As such, we conclude that the prosecutor misstated the law with respect to the facts of this case.
We will leave for another day the State’s assertion that it may be “theoretically possible” under the law to instantaneously and without premeditation fire an initial shot at a victim, but to then premeditate before firing additional shots. We are not faced with that question here, and the evidence in this case does not support the State’s theoretical argument.
3. Injecting personal belief into closing
Next, Hall claims the prosecutor committed misconduct in his closing arguments by inappropriately injecting his personal belief as to Hall’s guilt with the following statement:
“Like I told you in Voir Dire, that I would present all the evidence necessary to convict the defendant of first-degree murder. And I believe the evidence states for that fact that I’ve done that. But what I told you I would not be able to do is present you with why. The witnesses who saw it couldn’t tell you why.” (Emphasis added.)
A lawyer is prohibited from stating “a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Kansas Rules of Professional Conduct 3.4(e) (2010 Kan. Ct. R. Annot. 552); State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000) (Pabst I). The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. 268 Kan. at 510.
Hall argues the prosecutor’s comments here equate with the improper injection of personal beliefs found objectionable in Pabst I. We disagree. While we recognized in Pabst I that a prosecutor may not express his or her personal belief regarding the defendant’s guilt, the prosecutor here did not do so. Instead, he reminded the jurors that he had told them in voir dire that he would present the necessary evidence to convict the defendant, and he further informed them that he believed he had done his job. Accordingly, we do not find this statement to be improper.
4. Inflaming the passions of the jury
Pointing to the following statement in the prosecutor’s closing arguments, Hall claims the prosecutor inflamed the passions of the jury by suggesting that the jury had a responsibility to find Hall guilty of first-degree premeditated murder:
“Ladies and gentlemen, the blood on that sidewalk that was spilled that day is long since gone. The memories of that day though of the witnesses that you heard from are not. Thank goodness they were here to tell you what happened. And now it’s your responsibility to go back, view that evidence, not forget what happened, but expose what happened, and tell this man exactly what he’s guilty of First-degree premeditated murder and criminal possession of a firearm,. Thank you.” (Emphasis added.)
“Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006); see Tosh, 278 Kan. at 90, 98; Henry, 273 Kan. at 641. We have held that a prosecutor must guard against appeals to jurors’ sympathies or prejudices. Cravatt, 267 Kan. at 333.
More specifically, we have found a prosecutor’s comments to be improper when the prosecutor asked the jury to send a message to the community or a message that promotes a “fear in the neighborhood.” See Cravatt, 267 Kan. at 333-34. But see State v. Nguyen, 285 Kan. 418, 425, 172 P.3d 1165 (2007) (finding it permissible for prosecutor to ask for justice generally, as opposed to asking for justice for the victim).
In arguing the prosecutor’s comment here was improper, Hall relies on State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993), where this court found the prosecutor’s closing statement errone ously informed the jurors that they had a duty to send a message to the community. In Ruff, the prosecutor drew a strong objection from defense counsel when he commented to the jury, “ ‘[D]o not allow this conduct to be tolerated in our county.’ ” 252 Kan. at 631. In response, the trial court directed the prosecutor to “ ‘wind it up,’ ” and the prosecutor then again asked the jury to “ ‘[sjend that message’ ” by returning a guilty verdict. 252 Kan. at 631.
Noting that the district court approved the prosecutor’s remark after defense counsel’s objection, this court held in Ruff that the misconduct could have prejudiced the jurors and hindered them from considering only the evidence presented, thereby depriving the defendant of a fair trial. 252 Kan. at 636.
The prosecutor’s statement at issue in this case is distinguishable from the comment at issue in Ruff. Here, the prosecutor did not ask the jury to send a message; rather, he reminded the jurors of their responsibility to review the evidence and asked them to return a guilty verdict based on that evidence. While tire prosecutor did suggest to the jury that it “expose what happened,” we do not find this statement comparable to the “send a message” language utilized in Ruff.
B. Did the prosecutors misconduct affect the outcome of the trial?
Having found the prosecutor erred in suggesting Hall could have premeditated the murder after firing the first shot, we next determine whether this misstatement required reversal. Prior to our recent discussion in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), we applied the following diree-part test:
“ ‘(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in die minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ ” State v. Richmond, 289 Kan. 419, 440, 212 P.3d 165 (2009) (quoting State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008]).
However, in Ward we recognized that when, as here, the defendant argues that an error implicates the defendant’s rights under the United States Constitution, the statutory harmless error analysis under K.S.A. 60-261 and the federal constitutional error test under Chapman are the same. See State v. Ward, 292 Kan. at 562 (leaving open the question of what standard applies when errors are raised that do not implicate the federal Constitution). Specifically, we have modified the third factor of the second prong in our prosecutorial misconduct analysis to consider “whether the error affected substantial rights, meaning whether the error affected the outcome of the trial.” Ward, 292 Kan. 541, Syl. ¶ 6.
We further specified in Ward, that the State, as the party benefitting from an error of constitutional magnitude, must bear the burden of demonstrating “beyond a reasonable doubt that the error complained of . . . did not affect the outcome of the trial in light of the entire record.” Ward, 292 Kan. 541, Syl. ¶ 6.
We find no evidence in the record suggesting the prosecutor’s conduct in this case was gross and flagrant or exhibited ill will. However, the defendant urges us to find, as we did in Morton I, that die prosecutor’s error affected the outcome of the trial, requiring reversal.
In Morton I, the prosecutor pantomimed the firing of a gun while advising the jury that “ ‘[o]ne squeeze of the trigger is all it takes.’ ” 277 Kan. at 578. This court reasoned the prosecutor’s statement improperly implied to the jury that it could find the defendant instantaneously premeditated the killing. See 277 Kan. at 583-85.
Hall fails to note, however, that the Morton I court felt “compelled” to reverse despite finding “plenty of evidence of premeditation” because the jury in that case had indicated in the verdict form that it could not agree unanimously on the premeditation theory, thus indicating an uncertainty on the part of the juiy with respect to this theory. 277 Kan. at 585-86.
As in Morton I, here the State presented the jury with more than sufficient evidence of premeditation. Witnesses who waited in the car with Hall testified that before the shooting they saw Hall get out of the car, pause, and pull his hood over his head before walking down the corridor toward the victim and her friends. They then heard gunshots, saw Hall run back toward the vehicle with a gun in his hand, and heard Hall tell the driver of the vehicle to “just fucking go.” Further, police later found Hall’s clothes, including a dark hooded sweatshirt, and a gun in a bag at Waterman’s home, where Hall had been dropped off after the shooting.
However, in this case, unlike Morton I, we have no evidence indicating the jury experienced any difficulty in deliberating over the issue of premeditation. Nor, as discussed below, do we have any additional errors which, when considered with the prosecutor’s misstatement, require reversal, or any evidence that the prosecutor’s statements were deliberate. See, e.g., Cosby, 285 Kan. at 251-52 (cumulative effect of multiple instances of prosecutorial misconduct, coupled with prosecutor’s statement implying premeditation was instantaneous, denied defendant a fair trial and required reversal); State v. Holmes, 272 Kan. 491, 499-500, 33 P.3d 856 (2001) (prosecutor, after correctly informing the judge as to the law regarding premeditation, deliberately misstated the law in closing argument, requiring reversal).
Further, the jury was properly instructed in this case on the law regarding premeditation and also was instructed that arguments of counsel were not evidence. See, e.g., State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (prosecutor’s improper comment regarding premeditation was not reversible error when there was no evidence that prosecutor deliberately misstated the law, jury was given proper PIK instruction on premeditation, and jury was told that arguments of counsel were not evidence).
In light of the trial record as a whole, we conclude the State has demonstrated beyond a reasonable doubt that the prosecutor’s misstatement did not affect the outcome of the trial and does not require reversal.
Jury Instruction
Next, Hall claims the district court committed reversible error when it failed to provide the lesser included offense instruction found in PIK Crim. 3d 68.09. Hall concedes he did not request this instruction.
Because Hall neither requested the instruction nor objected to the district court’s failure to give the instruction, we review this issue under the clearly erroneous standard pursuant to K.S.A. 22-3414(3). “Instructions are clearly erroneous if there is a real possibility the juiy would have rendered a different verdict had the instruction error not occurred.” State v. Marler, 290 Kan. 119, 124, 223 P.3d 804 (2010) (citing State v. Vasquez, 287 Kan. 40, 51, 194 P.3d 563 [2008]).
“In reviewing jury instructions for error, we examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case. [Citations omitted.]” State v. Ellmaker, 289 Kan. 1132, 1139-40, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010).
In this case, the district court instructed the jury on first-degree murder and second-degree murder, including the following standard instruction for second-degree murder: “If you do not agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.” PIK Crim. 3d 56.03. The court did not instruct the jury according to PIK Crim. 3d 68.09, which provides:
“The offense of [first-degree murder] with which defendant is charged includes the lesser offense of [second-degree murder],
“You may find the defendant guilty of [first-degree murder] [second-degree murder] or not guilty.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, (he) or (she) may be convicted of the lesser offense only.
“Your Presiding Juror should mark the appropriate verdict.”
Hall contends that the “reasonable doubt” language of PIK Crim. 3d 68.09 upholds the defendant’s right to be presumed innocent until proven guilty under K.S.A. 21-3109, and the failure to give the instruction violated his right to due process.
We previously addressed this issue in State v. Massey, 242 Kan. 252, 262, 747 P.2d 802 (1987), and State v. Trujillo, 225 Kan. 320, 323, 590 P.2d 1027 (1979). In each case, the defendant made the same argument Hall makes here: The trial court should have instructed the jury that if there is a reasonable doubt as to which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only. See Massey, 242 Kan. at 262; Trujillo, 225 Kan. at 323.
In both cases, we recognized that PIK Crim. 3d 68.09 derives from K.S.A. 21-3109, which reads:
“A defendant is presumed to be innocent until tire contrary is proved. When there is a reasonable doubt as to his guilt, he must be acquitted. When there is a reasonable doubt as to which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.”
And while in each case we concluded the trial court erred in failing to instruct the jury in accordance with PIK Crim. 3d 68.09, we applied the clearly erroneous standard required by K.S.A. 22-3414(3) to find no reversible error given the overwhelming evidence against the defendant in each case. Massey, 242 Kan. at 262; Trujillo, 225 Kan. at 324.
As previously discussed, the State presented substantial evidence of premeditation in this case. Applying a clearly erroneous standard and the rationale of Massey and Trujillo to the evidence presented here, we are firmly convinced that there is no real possibility the jury would have rendered a different verdict had the district court instructed the jury in accordance with PIK Crim. 3d 68.09. Therefore, while the district court did err in fading to instruct the jury on PIK Crim. 3d 68.09, that error was not reversible.
Sufficiency of the Evidence
Hall challenges the sufficiency of the evidence of his first-degree murder conviction, arguing the State failed to prove premeditation beyond a reasonable doubt. Hall reasons the State failed to prove he formed the design or intent to kill before the shooting occurred because he did not know the victim, made no prior threats against her, and the shooting occurred very quicldy after he exited the vehicle.
“When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Prine, 287 Kan. 713, 738, 200 P.3d 1 (2009) (citing Vasquez, 287 Kan. at 59; State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 [2007] [Morton II]). In reviewing the sufficiency of the evidence, we do not reweigh the evidence or evaluate the credibility of witnesses. Rather, we leave that function to the jury. State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 (2002).
We have noted that direct evidence of premeditation is rare. Rather, the element of premeditation generally must be proven with circumstantial evidence. Such evidence, however, is “sufficient to establish even the gravest offenses, as in this case.” Doyle, 272 Kan. at 1162; see Cravatt, 267 Kan. at 328.
In Cravatt, the defendant shot the victim point blank between the eyes, killing him instantly. The court noted: “Other than the defendant’s alcohol consumption and statements made by him during the evening that persons, including the victim, were giving him a hard time at the party,” there was little evidence of a motive for the killing. 267 Kan. at 316. Nevertheless, the court rejected the defendant’s challenge to the sufficiency of the evidence of premeditation, noting the jury could infer premeditation from the established circumstances of the case provided the inference was a reasonable one. 267 Kan. at 329. Further, the court identified various circumstances from which a jury can infer premeditation:
“While premeditation to commit murder may not be inferred from the use of a deadly weapon alone, it may be inferred where other circumstances also exist. Circumstances which may give rise to the inference of premeditation include: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” Cravatt, 267 Kan. 314, Syl. ¶ 4.
Thus, while evidence of a motive is lacking in this case, the jury nevertheless could infer premeditation based upon the presence of several of the circumstances enumerated in Cravatt. Specifically, Hall utilized a .22 caliber handgun, and there was no provocation or altercation between Hall and the victim. In fact, Hall did not even know the victim. Further, the defendant’s conduct just prior to the killing, while not extensive, adds to the inference of premeditation.
Specifically, the victim and her friends were visible from Pahmahmie’s car where Hall waited for several mimltes while Rowe was inside. Just before getting out of the car, Hall indicated he was “ready to go” or “ready to go do something.” After getting out of the car, he paused for a moment, pulled up the hood of his sweatshirt, and walked down the corridor where the victim was sitting with her friends. He then shot-the victim four times, in the back, quickly returned to the car with the gun in his possession, and ordered Pahmahmie to “just fucking go.”
Considering the Cravatt factors and viewing all the evidence in the light most favorable to the State, we find the evidence more than sufficient to support an inference of premeditátion and consequently to support Hall’s conviction for first-degree murder.
Cumulative Error
Finally, as his last challenge to his convictions,.Hall argues that even if each of the alleged trial errors do not individually require reversal, the cumulative effect of those errors deprived him of a fair trial.
“ ‘Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant.’ [Citation omitted.]” Nguyen, 285 Kan. at 437 (quoting State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 [2006]).
We have found two trial errors. The prosecutor committed misconduct when he misstated the law on premeditation as it relates to the facts of this case. Additionally, the district court erred when it failed to instruct the jury in accordance with PIK Crim. 3d 68.09.
As we discussed, these errors considered individually do not necessitate reversal. Further, substantial circumstantial evidence supports the jury’s verdict. Accordingly, we conclude the cumulative effect of the two trial errors did not substantially prejudice Hall or deprive him of a fair trial, and we affirm his convictions.
Next, we turn to Hall’s allegations that the district court committed two sentencing errors.
Imposition of Consecutive Sentences
In his appeal brief, Hall argued the district court erred in imposing consecutive sentences for his convictions of first-degree murder and criminal possession of a firearm because the court failed to impose consecutive sentences on the record at the sentencing hearing.
At oral argument, Hall’s appellate counsel conceded that the sentencing transcript reflects the court’s imposition of consecutive sentences on the record in Hall’s presence in open court. Thus, no error occurred.
Apprendi/Ivory Challenge
Finally, Hall claims the use of his prior convictions in his criminal history to enhance his sentences without requiring the State to prove the convictions to a jury beyond a reasonable doubt is prohibited under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Hall recognizes that State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), controls this issue, but he asks that we reconsider our position in this case.
We decline to do so. We revisited this issue in State v. Fewell, 286 Kan. 370, 395-96, 184 P.3d 903 (2008), and specifically reaffirmed Ivory. Thus, we affirm Hall’s sentences.
Affirmed.
Caplinger, J., assigned. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought suit in the district court to recover of plaintiff in error the value of a mirror which he alleged was broken through its negligence. The petition charged that defendant was a common carrier; that as such it received the mirror to transport it to Leavenworth; that it failed to deliver the same in good order, but so negligently and carelessly handled it that it was broken and wholly lost to plaintiff. The answer alleged that the mirror was shipped under an agreement that the transportation should be at the plaintiff’s risk as regards breakage, and a release of all claims against the company therefor. The original shipment was in New York, but the agreement and release were to apply to all the companies over whose roads the mirror should pass. The special verdict found that the mirror was shipped under such an agreement and release. Upon this two points are made by counsel for plaintiff in error, and strenuously urged: lst.-That there is a variance between the allegations of the petition and the facts as found by the verdict, and such a variance as entitled the company to a judgment; and 2d.-That under the terms of the agreement and release the carrier is not responsible for the breakage and loss of the mirror. The determination of these two questions disposes of the case.
I. Something of an argument might be made to show that this was no case of variance, but rather a case in which only part of the allegations of the'petition are proven. But waiving this, and conceding it to be a case of variance, still as it is such a case as would manifestly require the court to give leave to amend the petition to conform to the facts proven, and as the defendant could not justly claim to be prejudiced by such amendment, we do not think the judgment ought to be disturbed because no formal amendment has actually been made.
II. Whether and to what extent a common carrier can restrict his liability by special contract are questions of profoundest importance. Tet, as the decision of this case does not necessarily require a determination of them, we forbear to express any opinion upon either; for the agreement made at the time of shipment, if good at all, operated only to relieve the carrier from his common-law liability as insurer, and left him liable for ordinary negligence as any other bailee for hire: 6 Howard, U. S., 378. Now the facts as found by the jury show to us, more than ordinary negligence on the part of the carrier in the handling of this mirror. It was placed on the levee along with agricultural implements, and other heavy freight, in a narrow passage way through which drays and other vehicles were passing, “ standing upon its end, and not sufficiently supported to prevent its being easily overturned by any slight collision,” and without anything placed in front of it to protect it from injury by passing vehicles. In this exposed condition it remained for some hours, and was finally struck by a passing dray, overturned, and broken. The learned judge who tried the case held this to be negligence, and properly so. A good many other points are made by counsel for plaintiff in error, bnt none of them are of sufficient importance to justify us in disturbing the judgment. The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Gillian Luttrell, of Overland Park, an attorney admitted to the practice of law in Kansas in 2006. On October 18, 2010, the respondent’s license to practice law was administratively suspended by the Supreme Court for failure to pay the attorney registration fee for 2010; failure to fulfill the minimum continuing legal education requirements; and failure to pay the continuing legal education annual fee, late filing fee, and noncompliance fee.
On September 21, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 28, 2010. The respondent failed to appear at this hearing. The hearing panel determined that respondent violated KRPC 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); 1.15(b) (2010 Kan. Ct. R. Annot. 505) (safekeeping property); Kansas Supreme Court Rule 207(b) (2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file answer in disciplinary proceeding). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
"FINDINGS OF FACT
“2. On October 18, 2010, the Kansas Supreme Court entered an order suspending the Respondent’s license to practice law in the State of Kansas for failing to pay the annual registration fee, for failing to fulfill the minimum continuing legal education requirements, and for failing to pay the continuing legal education annual fee, late filing fee, and noncompliance fee.
“DA10788
‘3. Dennis Moore retained the Respondent to defend him in a civil matter filed in the Douglas County District Court, T&J Holdings v. Jeff S. Ayers, Jason L. Ayers, Crystal L. Reischmen, Leah Chaffin, Dennis Moore, case number 08LM799, before the Honorable Paula B. Martin.
“4. Plaintiff s counsel served the Respondent’s client with requests for discovery. The Respondent failed to respond to the requests for discovery. Plaintiffs counsel filed a motion to compel and a motion for summary judgment. Plaintiffs counsel provided notice of the hearing, scheduled for November 21, 2008, to the Respondent. While the Respondent responded to the motion to compel, she failed to appear at the hearing. The court contacted the Respondent and learned that the Respondent had neglected to record the hearing on her calendar. As a result, the court rescheduled the hearing to December 19, 2008.
“5. On December 19, 2008, the Respondent appeared and informed the court and counsel that her client had been in an accident and was currently in a coma. The Respondent believed that her client would be sufficiently recovered to assist with discovery by February. The Respondent agreed to respond to discovery within 15 days of her client’s release from the hospital unless a doctor confirmed that he was not yet able to do so.
“6. Plaintiffs counsel repeatedly attempted to communicate with tire Respondent regarding Mr. Moore’s condition to no avail. The Respondent failed to keep plaintiff s counsel apprised of Mr. Moore’s condition or request for additional time to respond to discovery.
“7. Eventually, on April 6, 2009, plaintiff s counsel set the motion for summary judgment for hearing on April 17,2009, and provided tire Respondent with notice of the hearing. The Respondent, again, failed to appear in court.
“8. The court granted the plaintiff s motion for summary judgment and entered judgment for the plaintiff against the Respondent’s client in the amount of $3,317, plus interest and costs.
“9. On May 4, 2009, Judge Martin filed a complaint against the Respondent. The Respondent filed a response to the complaint, admitting her lack of diligence.
“DA11013
“10. On April 17, 2008, one day after returning from his deployment to Iraq, Brian Buttram received a copy of divorce papers which had been mailed to his grandparents’ house. Mr. Buttram’s wife filed an action in divorce on April 11, 2008.
“11. Also on April 17, 2008, Mr. Buttram traveled to Dennis Hawver’s office to retain Mr. Hawver to represent him in the divorce case. When Mr. Buttram arrived at Mr. Hawver’s office, he was told that Mr. Hawver was preparing to retire from the practice of law and that the Respondent was taking over Mr. Hawver’s law practice. Mr. Buttram paid Mr. Hawver $750.
“12. The Court entered a temporary order directing Mr. Buttram to pay monthly spousal maintenance in the amount of $600.
“13. At the time Mr. Buttram retained the Respondent, Mr. Buttram explained to the Respondent that one of his objectives in hiring her was to seek the modification of spousal maintenance order. The Respondent filed a motion to modify the spousal maintenance order. However, the Respondent did not diligently prosecute the motion. Approximately one year later, Mr. Buttram and his estranged wife negotiated a reduction in the spousal maintenance order.
“14. Mr. Buttram also made it clear to the Respondent that he wished to have the divorce action completed prior to his redeployment to Iraq in August, 2009. The Respondent failed to complete the divorce in the time frame requested by Mr. Buttram.
“15. Throughout the representation, Mr. Buttram called the Respondent by telephone on approximately 30 occasions. The Respondent returned only one of Mr. Buttram’s telephone calls.
“16. Weston Brown represented Mr. Buttram’s estranged wife. Throughout the representation, Mr. Brown had difficulty in maintaining communication with the Respondent. In April, 2010, Mr. Brown contacted the Respondent^] he indicated that the parties had resolved the last remaining issue, and requested that she take appropriate action to complete the case. To date, the Respondent has not taken any action to finalize Mr. Buttram’s divorce.
“17. On January 11, 2010, Mr. Buttram filed a complaint with the Disciplinary Administrator’s office. Carol R. Bonebrake, a member of the Topeka Ethics and Grievance Committee, was assigned to investigate Mr. Buttram’s complaint. The Disciplinary Administrator and Ms. Bonebrake directed the Respondent to provide a written response to the initial complaint. The Respondent never provided a written response to the initial complaint.
“18. Following the filing of die disciplinary complaint, Mr. Buttram did not terminate the representation. Likewise, the Respondent took no action to terminate her representation of Mr. Buttram.
“19. On June 29, 2010, Mr. Buttram spoke by telephone with the Respondent. During that conversation, the Respondent told Mr. Buttram that she had not returned his telephone calls because she [had] nothing new to tell him. The Respondent falsely indicated that Mr. Brown failed to proceed and that she was waiting on him to move forward with the divorce action.
“20. Following her suspension in October, 2010, the Respondent failed to inform Mr. Buttram that the Kansas Supreme Court suspended her license to practice law.
“21. Mr. Buttram’s divorce remains pending. At the time of the hearing on tire instant Formal Complaint, Mr. Buttram’s divorce case was set to be heard by the court on November 12, 2010.
“DA11014
“22. In July, 2008, David Lowe retained the Respondent to probate Mr. Lowe’s father’s estate. At that time, Mr. Lowe paid the Respondent $1,000 for the representation. Mr. Lowe’s estate included real property. A realtor found a buyer for the property, however, the Respondent’failed to take appropriate action to complete the sale. Eventually, Mr. Lowe retained Kirk Nystrom for the specific purpose of getting the sale of the real estate authorized and confirmed, so that the sale would not be lost. Mr. Lowe paid Mr. Nystrom $1,250 for that purpose. Mr. Nystrom effected the sale of the property. The Respondent failed to take any action to further the representation of Mr. Lowe’s father’s estate.
“23. On January 12, 2010, Mr. Lowe filed a complaint with the Disciplinary Administrator’s office. Ms. Bonebrake was also assigned to investigate Mr. Lowe’s complaint. The Disciplinaiy Administrator and Ms. Bonebrake directed the Respondent to provide a written response to the initial complaint. The Respondent never provided a written response to the complaint filed by Mr. Lowe.
“24. To date, the estate remains pending. Mr. Lowe cannot afford to retain Mr. Nystrom to close the estate.
“D All 103
“25. On Thursday, April 15, 2010, Robert Cooper, II, retained the Respondent to represent him in an action for divorce. Mr. Cooper paid the Respondent $500 for attorney fees and $160 for fifing fees. The Respondent deposited the attorney fees check on April 20, 2010.
“26. The Respondent assured Mr. Cooper that she would prepare the necessary paperwork and have it ready to sign the evening of April 15,2010. The Respondent failed to contact Mr. Cooper that evening.
“27. The next day, Friday, April 16, 2010, Mr. Cooper contacted the Respondent regarding the preparation of the pleadings. Mr. Cooper did not receive the documents from the Respondent that day.
“28. On Saturday, April 17, 2010, Mr. Cooper again contacted the Respondent about the pleadings. The Respondent assured Mr. Cooper that she would complete the pleadings that weekend and would be in touch with him to get them signed.
“29. Mr. Cooper did not hear from the Respondent that weekend. Mr. Cooper made several attempts to contact her and was unable to reach her until the following Thursday. At that time, Mr. Cooper told the Respondent that it was not going to work out for her to represent him in the divorce and terminated the representation.
“30. Mr. Cooper demanded a return of the attorney fees and the fifing fees. The Respondent returned Mr. Cooper’s check for the fifing fees and informed Mr. Cooper that she would have to prepare a fee statement of the work she completed on the case before she could refund the unearned fees. The Respondent, however, never provided Mr. Cooper with a fee statement or with a refund of unearned fees.
“31. On May 14, 2010, Mr. Cooper filed a complaint with the Disciplinary Administrator’s office. The Disciplinary Administrator directed the Respondent to provide a written response to Mr. Cooper’s complaint. The Respondent never provided a written response to the complaint filed by Mr. Cooper.
“32. Mr. Cooper filed suit against the Respondent in a small claims court. Mr. Cooper obtained a judgment against the Respondent for the unearned fees. The Respondent has not satisfied the judgment.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below. [Footnote: During the hearing on the Formal Complaint, the Deputy Disciplinary Administrator argued that the Hearing Panel should also find a violation of Kan. Sup. Ct. R. 208. It is appropriate to consider violations not specifically included in the Formal Complaint under certain circumstances. Only when the Formal Complaint alleges facts that would support a conclusion that the Respondent violated additional rules will considering additional violations be allowed. State v. Caenen, 235 Kan. 451, 45859, 681 P.2d 639 (1984). In this case, the Formal Complaint did not include any facts regarding the Respondent’s registration information which would support a conclusion that the Respondent violated Kan. Sup. Ct. R. 208. Thus, it appears that it is not appropriate to consider whether the Respondent violated Kan. Sup. Ct. R. 208.]
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings-. That rule provides, in pertinent part as follows
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, and regular United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, the Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, and regular United States mail, postage prepaid, to tíre Respondent’s current address in Overland Park. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent her clients in this case. The Respondent failed to provide diligent representation to Mr. Moore, Mr. Buttram, and Mr. Lowe. Because the Respondent failed to act with reasonable diligence and promptness in representing her clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when she failed to return telephone calls and otherwise communicate with Mr. Buttram and Mr. Lowe. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. Lawyers must deal properly with the property of their clients. Specifically, KRPC 1.15(b) provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall prompdy notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
The Respondent violated KRPC 1.15(b) when she faded to refund the unearned fees paid by Mr. Cooper.
“6. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides the requirement in this regard.
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to tire Disciplinary Administrator any information he or she may have affecting such matters.’
The Respondent knew that she was required to forward a written response to the initial complaint — she had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent knowingly failed to provide a written response to the initial complaint filed by Mr. Buttram and Mr. Lowe as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).
“7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint and by failing to file a written Answer to the Supplement to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duty to her clients to provide diligent representation and adequate communication. Additionally, the Respondent violated her duty to her client to adequately safeguard his property. Finally, the Respondent violated her duty to the profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly violated her duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to her clients and to the legal profession. As of the date of the hearing on the Formal Complaint, Mr. Buttram’s divorce case and Mr. Lowe’s probate case remained pending.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. She repeatedly failed to return Mr. Buttram’s telephone calls. Additionally, four complaints were filed against the Respondent. Three of the four complaints involve similar misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, Kan. Sup. Ct. 207, and Kan. Sup. Ct. R. 211. Accordingly], the Hearing Panel concludes that the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew she was required to file a written response to the initial complaints filed by [Mr. Cooper,] Mr. Buttram and Mr. Lowe. She had been instructed to do so in writing by the Disciplinary Administrator and by the investigators. Further, she filed a written response to the complaint filed by Judge Martin. Because the Respondent failed to provide written responses to three complaints and because the Respondent failed to file an Answer to the Formal Complaint, the Hearing Panel concludes that the Respondent engaged in a bad faith obstruction of the disciplinary proceeding.
“Vulnerability of Victim. Mr. Buttram and Mr. Lowe were vulnerable to the Respondent’s misconduct. As an active member of the military, who was deployed twice during the period of representation, Mr. Buttram was particularly vulnerable to the Respondent’s misconduct.
“Indifference to Making Restitution. To date, die Respondent has taken no action to make restitution to Mr. Cooper. As such, the Hearing Panel concludes that the Respondent is indifferent to making restitution.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. It does not appear that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in October, 2006. The Respondent’s misconduct began approximately 18 months following her admission to the practice of law.
“In addition to the abovecited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be suspended for a period of three years. The Deputy Disciplinary Administrator also recommended that the Respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to reinstatement. The Deputy Disciplinary Administrator’s recommendation is tantamount to a recommendation of indefinite suspension.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions. Moreover, we agree with the panel’s recommended discipline.
Conclusion and Discipline
It Is Therefore Ordered that Gillian Luttrell, be indefinitely suspended from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370) and that, in the event the respondent would seek reinstatement, she shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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Per Curiam:
This is an original proceeding in disciphne filed by the office of the Disciplinary Administrator against the respondent, Bart A. Chavez, of Omaha, Nebraska, an attorney admitted to the practice of law in Kansas in 1991.
On July 23, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). A hearing was held on the complaint before a panel of the Kansas Board for Disciphne of Attorneys on October 12, 2010, at which respondent presented an answer to the formal complaint. The hearing panel determined that respondent violated KRPC 3.5(d) (2010 Kan. Ct. R. Annot. 557) (engaging in undignified or discourteous conduct degrading to a tribunal); and 8.4(d) (2010 Kan. Ct. R. Annot. 603) (engaging in conduct prejudicial to the administration of justice). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas on April 26, 1991. The Respondent sought and obtained permission to transfer his license to inactive status in 1997. Additionally, the Nebraska Supreme Court admitted the Respondent to the practice of law. Finally, the Respondent regularly practices before the United States Department of Justice, Executive Office for Immigration Review (EOIR).
“3. On July 14, 2006, the Respondent entered his appearance as counsel of record in the Matter of Sindiso Luphahla, a case that was pending before the Elizabeth, New Jersey, Immigration Court. The case was transferred to the Dallas, Texas, Immigration Court and on October 16, 2006, the Respondent entered his appearance as counsel of record.
“4. Thereafter, the Court scheduled the ‘merits’ hearing for August 3, 2007.
“5. On July 19, 2007, Ms. Luphahla filed a motion to continue the hearing, asserting that the Respondent was unable to appear in court on the scheduled date. On July 21, 2007, the Court denied the motion to continue.
“6. On July 23, 2007, the Respondent filed a motion to withdraw as counsel of record for Ms. Luphahla. The following day, on July 24, 2007, the Court denied the Respondent’s motion to withdraw.
“7. On July 30, 2007, the Respondent filed a second motion to withdraw as attorney for Ms. Luphahla, alleging identical reasons for the withdrawal as the first motion to withdraw. That same day, the Court denied the Respondent’s second motion to withdraw.
“8. Later that day, Dallas, Texas, Court Administrator, Barbara Baker, called the Respondent to inform him that the Court had denied the Respondent’s second motion to withdraw. The Respondent became very upset and angry with Ms. Baker and engaged in a confrontational conversation with her using offensive and disrespectful language directed at Ms. Baker and the Court. During the conversation, the Respondent asked Ms. Baker to relay a message to the Court that he wished to have a telephonic hearing on August 4, 2007.
“9. Ms. Baker relayed the Respondent’s request and the Court denied the Respondent’s request. Ms. Baker called the Respondent a second time to inform him that the Court denied the Respondent’s request for a telephonic hearing. During die Respondent’s second telephone conversation with Ms. Baker, he again engaged in a confrontational conversation with Ms. Baker using offensive and disrespectful language directed at Ms. Baker and the Court.
“10. On August 1, 2007, the Respondent called the Court and asked to speak to Ms. Baker. The Respondent engaged in a third confrontational conversation with Ms. Baker using offensive language, disrespectful language, and profanity, directed at Ms. Baker and the Court.
“11. On August 3, 2007, the Respondent failed to appear at the Dallas, Texas, Immigration Court on behalf of Ms. Luphahla as ordered.
“12. On August 21,2008, Office of General Counsel for the EOIR filed a Notice of Intent to Discipline the Respondent, alleged drat the Respondent ‘engaged in contumelious or otherwise obnoxious conduct,’ and requested that the Respondent be suspended for a period of six mondrs.
“13. In April, 2009, the Respondent entered into a Setdement Agreement with the Office of General Counsel. In the agreement, the Respondent acknowledged tirat the Office of General Counsel had met its burden to prove that the Respondent engaged in professional misconduct. The agreement provided, in pertinent part, as follows:
‘4. Respondent consents to the imposition of a public censure and OGC agrees to accept a public censure in lieu of the sixmonth suspension that OGC proposed in die NID. Respondent’s public censure will be reflected on the EOIR internet website list of disciplined practitioners for a period of six months, and after six months it will be removed and placed on the EOIR internet website list of previously disciplined practitioners. OGC agrees to accept reduced discipline in light of Respondent’s recent diagnosis of bipolar condition and Respondent’s effort to seek medical attention for this condition.
‘5. Respondent agrees to send a written apology to Ms. Barbara Baker, Court Administrator at the Dallas, Texas, Immigration Court, within 30 days of the approval of this Setdement Agreement, with copies of his written apology sent to both the Adjudicating Official and OGC/EOIR Disciplinary Counsel.
‘6. Respondent agrees to arrange for the submission of quarterly reports for one (1) year from the date of the approval of this Setdement Agreement from the mental health professional treating him for his bipolar condition. Such reports shall be sent to EOIR Disciplinary Counsel at the address below. Respondent agrees to continue with the treatment plan set forth by his treating mental health professional, including therapy, drug treatment, and any other recommended course of treatment. If Respondent fails to continue under die care of a mental health professional or continue with the treatment plan developed for him, OGC may move to reopen this matter and seek a six-month suspension.’
“14. On May 4, 2009, the Adjudicating Official approved the Setdement Agreement and publicly censured the Respondent.
“15. On May 26, 2009, through counsel, the Respondent selfreported the incident to the disciplinary authorities in Kansas and Nebraska.
"16. On January 8, 2010, the Nebraska Supreme Court issued an opinion, imposing public reprimand on the Respondent.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact and the Respondent’s stipulation, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 3.5(d) and KRPC 8.4(d), as detailed below.
“2. KRPC 3.5(d) provides, in pertinent part, ‘[a] lawyer shall not: . . . engage in undignified or discourteous conduct degrading to a tribunal.’ In this case, the Respondent repeatedly engaged in ‘undignified or discourteous conduct degrading to a tribunal’ when he engaged in a confrontational and disrespectful conversation with Ms. Baker. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.5(d).
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he engaged in a confrontational and disrespectful conversation with Ms. Baker. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated, The Respondent violated his duty to the public and to the legal profession to maintain his personal integrity.
“Mental State. The Respondent negligently violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to Ms. Luphahla, the public, and the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent’s prior disciplinary history relates only to the discipline imposed by the EOIR and the Nebraska Supreme Court, based upon the same facts as the instant case,
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice in 1991. At the time of the misconduct, the Respondent had been practicing law for 16 years. Sixteen years constitutes substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. Other than discipline imposed based upon the facts in the instant case, the Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct was not motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent has been diagnosed with bipolar disorder. It appears that the three telephone conversations with Ms. Baker occurred during a time when the Respondent was experiencing a ‘manic’ phase of the bipolar disorder. Thus, the mental health disorder may have contributed to the misconduct.
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. Shortly after the Respondent’s confrontational and disrespectful conversations, he sought assistance and learned that he suffered from bipolar disorder. The Respondent has obtained treatment for the disorder. The Respondent continues in treatment, to date.
“Imposition of Other Penalties or Sanctions. The Respondent has been censured by the EOIR and by the Nebraska Supreme Court for the same misconduct.
■ “In addition to the abovecited factors, die Hearing Panel has thoroughly examined and considered the following Standard:
‘6.23 Reprimand is generally appropriate when a lawyer negligentiy fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be censured and the censure be published in the Kansas Reports. The Respondent joined the Disciplinary Administrator’s recommendation for published censure.
“Standard 6.23 is applicable to this case. Based upon this standard, the significant mitigating factors, the minimal aggravating factors, as well as the level of discipline imposed by the EOIR and the Nebraska Supreme Court, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law.
Regarding the discipline imposed, the panel’s recommendation is advisory only and does not limit this court’s discretion to impose other discipline. Supreme Court Rule 212(f) (2010 Kan. Ct. R. Annot. 344). Notwithstanding that discretion, we find the hearing panel’s recommendations to be appropriate here.
Conclusion and Discipline
It Is Therefore Ordered that Bart A. Chavez, be and is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Beier, J.:
This is a direct appeal from defendant Jerry D. Sellers, Jr.’s jury conviction on two counts of aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(3)(A). Sellers received a consecutive 72-month prison sentence on Count 1 and 59-month sentence on Count 2. The district court judge also ordered that Sellers be subject to lifetime postrelease supervision and lifetime electronic monitoring.
Sellers raises five issues for our consideration: (1) Whether the district judge erred in denying his motion for a psychological evaluation of the victim; (2) whether his convictions were multiplicitous; (3) whether the order for lifetime postrelease is unconstitutional; (4) whether the district judge erred in modifying his sentence; and (5) whether the district judge erred by ordering lifetime postrelease and lifetime electronic monitoring.
Factual and Procedural Background
The Incidents and Accusation
Sellers lived with C.M. and her 13-year-old daughter, M.R.C., in C.M.’s home. Sellers and C.M. had previously been deployed together in the Army National Guard, serving in Kuwait. Sellers’ relationship with M.R.C. became strained, and C.M. and M.R.C. began to argue about him. The worst of these arguments occurred in early December 2007.
On December 3, 2007, C.M. went to her sister’s home to talk about the situation. C.M. asked her sister to try to talk to M.R.C. to find out what was bothering her. The sister did as asked the same evening while making dinner with M.R.C. When M.R.C. learned from the sister that Sellers was going to ask C.M. to many him, M.R.C. told the sister that Sellers had touched her. Upon urging by the sister, M.R.C. also told C.M. that Sellers had touched her “up top and down below.”
Later that evening, C.M. told Sellers that M.R.C. had said he touched her breast and “down there.” C.M. told Sellers she would get him some help. When Sellers left for work the next morning, however, C.M. took M.R.C. to the police station to report the incident.
C.M. and M.R.C. arrived at the police station at 6 a.m. and met with Officer Joshua Lowe to give an initial report. Lowe interviewed C.M. and M.R.C. and prepared a report before referring the case to a detective for further investigation.
M.R.C. reported that Sellers put his hands up her shirt and felt her chest and touched her on her pubic area. Lowe asked a series of yes/no follow-up questions, including whether “Jerry had put his hands down her pants.” M.R.C said Sellers had not done so. M.R.C. believed that the touching incident occurred around Saturday, November 17, 2007. Lowe asked M.R.C. if she was home alone with Sellers when the touching occurred, and she replied that she was. In addition, in response to Lowe’s question about how Sellers went about touching her, M.R.C. said that Sellers just walked up and touched her.
Lowe eventually would testify that his purpose with the initial interview was to get enough information to see if the matter warranted calling in a detective to conduct a forensic interview.
At 10 a.m. the same day as the Lowe interview, Detective Michael Yoder interviewed M.R.C. at the Heart to Heart Advocacy Center. M.R.C. told Yoder that she did not get along with Sellers and worried that he would divert her mother’s affection. M.R.C. giving; she thought it happened on November 16.
Describing the incident, M.R.C. told Yoder that between 10 a.m. and 11 a.m., she went to lie down with her mother on her mother’s bed. M.R.C. lay on one side of the bed and her mother on the other, and the two held hands. Sellers joined them on the bed, lying between M.R.C. and her mother with his head level with M.R.C.’s waist. Sellers put his arm over M.R.C.’s leg, then moved his hand so it was between M.R.C. and the mattress, and then moved it from touching her stomach to her chest. M.R.C. told Yoder that when Sellers’ hand had reached her breast, he moved his hand around over her breast. Sellers then stopped touching M.R.C. and left the room to go check on the family’s dog, which was making noise in another room.
M.R.C. told Yoder that Sellers then came back into the room, checked to see if her mother was asleep, lay back down, and put his hand on M.R.C.’s leg. He moved his hand up to M.R.C.’s pubic area. Sellers then got off the bed again and walked over to her mother’s side of the bed to see if she was still asleep. He then walked to M.R.C.’s side of the bed and started to push M.R.C.’s shirt up. At that point, M.R.C. squeezed her mother’s hand and woke her up.
Yoder asked M.R.C. if there had been any other incidents in which Sellers touched her inappropriately; and she said there was another incident the previous Halloween. M.R.C. said that Sellers touched her on her buttocks when she, Sellers, and her mother were cooking in the kitchen. M.R.C. also reported a third incident, in which she hugged Sellers goodnight and he grabbed her on the buttocks.
The Charges and Pretrial Proceedings
Sellers was charged with three counts of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A). Count 1 was for touching M.R.C.’s breast on or about November 17, 2007. Count 2 was for touching M.R.C.’s pubic area on or about November 17, 2007. Count 3 was for touching M.R.C.’s buttocks around Halloween 2007.
At Sellers’ December 19,2007, preliminary hearing, M.R.C. testified. Her story about the touching on the bed around Thanksgiving was the same as that she had told to Yoder. On cross-examination, M.R.C. admitted that she initially dismissed the Halloween touching of her buttocks as accidental. She also admitted that she did not tell anyone about Sellers touching her until she learned about Sellers’ and her mother’s marriage plans and that this news upset her.
About a month after the preliminary hearing, Sellers filed a notice of alibi, stating that he was on duty with the Army National Guard on November 17, 2007, i.e., the date of the incidents supporting Counts 1 and 2.
The State filed its first amended complaint the next day, changing the dates for Counts 1 and 2 to “on or about November 24, 2007.”
A week later, Sellers served a motion for psychological evaluation of M.R.C. on the State. In his motion, Sellers argued that there was no evidence corroborating M.R.C.’s story. He further contended that M.R.C. had admitted that she was afraid Sellers’ interest in her mother would interfere with her mother’s affections for her. Sellers also argued that M.R.C. had demonstrated a lack of veracity by giving investigators two different stories about the circumstances of the Thanksgiving touchings and by changing their date from November 17 to November 24.
At Sellers’ second preliminary hearing on the first amended complaint, M.R.C. testified that her testimony at the first preliminary hearing was accurate except for the date underlying Count 1 and Count 2. M.R.C. testified that she had remembered a friend’s birthday party the night of November 24, which helped her to identify the correct date. At the conclusion of the evidence in the second preliminary hearing, the district judge determined there was probable cause to believe the touching charged in Counts 1 and 2 occurred on November 24.
The district judge also took up Sellers’ motion for the psychological evaluation of M.R.C. at the second prehminaiy hearing. Sellers argued that M.R.C. did not tell anyone about the incidents until weeks after they occurred; that there was no corroborating evidence; that M.R.C. and Sellers were having a lot of problems and that M.R.C. had been worried Sellers would take her mother away; and that the first prehminaiy hearing supported a need for counseling for M.R.C. The State responded by reviewing factors outlined in State v. Price, 275 Kan. 78, 61 P.3d 676 (2003), contending that M.R.C. did not demonstrate mental instability; that she did not demonstrate a lack of veracity; that she had not made similar charges in the past; that Sellers’ motion was merely a fishing expedition; that no other reasons existed to submit M.R.C. for evaluation; and that M.R.C. did not demonstrate difficulty with telling the truth. The district judge found M.R.C. credible, having seen her testify at both prehminaiy hearings. The judge also found that Sellers overstated the friction between himself and M.R.C. and that there was no history of mental instability on the part of M.R.C. The judge thus denied Sellers’ motion.
Sellers also filed a pretrial motion to the dismiss the charges, arguing that K.S.A. 21-3504(a)(3)(A) and the fife imprisonment punishment of Jessica’s Law violated the Due Process and Equal Protection Clauses of the federal Constitution, as well as the federal and state constitutional prohibition on cruel and/or unusual punishment. The district judge presumed the statutes were constitutional and denied the motion. Sellers also moved to dismiss either Count 1 or Count 2 as multiplicitous; the district judge took the motion under advisement.
Trial and Sentencing
At trial, the State called Yoder, M.R.C., Lowe, M.R.C.’s aunt, the mother of M.R.C.’s friend whose birthday party had been on November 24, 2007, and C.M. M.R.C. again testified to the events surrounding the Thanksgiving touchings and the Halloween touching. Her trial testimony about the Thanksgiving touchings was consistent with her statement to Yoder and her testimony at the first preliminary hearing, with the exception of the date being November 24 rather than about a week before. Cross-examination of M.R.C. established that she initially believed the Halloween touching to be an accident.
After the State rested, Sellers renewed his motion to dismiss arguing that Jessica’s Law was unconstitutional and that Counts 1 and 2 were multiplicitous. The district judge rejected the Jessica’s Law constitutional challenge and reserved ruling on the multiplicity issue.
The jury found Sellers guilty on Counts 1 and 2 for the Thanksgiving touchings and acquitted Sellers on Count 3 for the Halloween touching.
Sellers filed a motion for departure from the fife sentence and mandatory 25-year minimum of Jessica’s Law, arguing that he was a productive member of the community and a noncommissioned military officer with an excellent service record. Sellers also argued that there was little, if any, harm to the victim.
At his sentencing hearing, Sellers again argued that Counts 1 and 2 were multiplicitous. He also argued that the district court should grant him a new trial because the court should have ordered the psychological evaluation of M.R.C. The district judge rejected both arguments, ruling that the two acts of touching underlying Counts 1 and 2 were separate and that the second was motivated by a fresh impulse. The district judge also affirmed the previous rejection of Sellers’ argument that Jessica’s Law was unconstitutional.
Sellers did receive a departure from the life sentence and 25-year mandatory minimum of Jessica’s Law. The district judge handed down a 72-month sentence for Count 1 and a consecutive 59-month sentence for Count 2. The district judge also initially ordered 36 months’ postrelease supervision. After going off the record briefly, the judge reopened the record and corrected the 36-month postrelease period to life. He also imposed lifetime electronic monitoring.
Analysis
Psychological Evaluation of Victim
Sellers argues that the district judge erred in denying his motion for a psychological evaluation of M.R.C. On appeal, the State responds by saying that Sellers was unable to satisfy his burden to show the evaluation was compelled under State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979).
Our standard of review of the district judge’s decision on such a motion is abuse of discretion. See Price, 275 Kan. at 80 (quoting State v. Rucker, 267 Kan. 816, 821, 987 P.2d 1080 [1999]). Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. Price, 275 Kan. at 83 (citing State v. Saiz, 269 Kan. 657, 667, 7 P.3d 1214 [2000]).
Most recently, in State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010), this court stated that the determination of whether compelling circumstances existed to support an order for a psychological evaluation requires an examination of the totality of the circumstances in the case, considering the following nonexclusive list of factors:
“(1) whether there was corroborating evidence of the complaining witness’version of the facts,
“(2) whether the complaining witness demonstrates mental instability,
“(3) whether the complaining witness demonstrates a lack of veracity,
“(4) whether similar charges by the complaining witness against others are proven to be false,
“(5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and
“(6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.”
Here, Sellers does not argue that the fourth, fifth, or sixth factors apply. He focuses his arguments on the first three factors, which we discuss in order below.
On the first factor, corroboration, Sellers argues that there is little or no corroborating evidence in this case. Although we agree that M.R.C.’s repetition of her story to her aunt, her mother, and investigators was only repetition and did not qualify as corroboration in the strictest sense of the word, we note that the district judge’s decision to deny the psychological evaluation came at the end of the second preliminary hearing. In that hearing, M.R.C.’s mother testified tiiat she confronted Sellers with M.R.C.’s allegations, and he responded that M.R.C. had given him access to her breasts and moved her hips. Further, when M.R.C.’s mother asked Sellers why he had touched M.R.C., she reported that he had said, “I don’t know[;] I’m sick[;] maybe I like them like that.” M.R.C.’s mother’s testimony also supported peripheral details from M.R.C.’s recitation of her memories from the critical Thanksgiving 2007 weekend. For example, C.M. testified that she lay down for a nap that weekend and that M.R.C. and Sellers eventually joined her on the bed.
Regarding mental instability, Sellers relies in part on M.R.C.’s conflict with him and with her mother. To the extent he does so, a reasonable person could certainly conclude that he is unrealistic in his expectation of constant adolescent equanimity. Heated disagreements between adults and teenagers are more a norm than an aberration; and the existence of such disagreements, without more, does not demonstrate mental instability on the part of the teenagers. M.R.C.’s testimony at trial that her mother had sug gested counseling for herself, her mother, and Sellers also does not make a compelling case for teenage mental instability. And we note that the suggestion that M.R.C. could benefit from counseling originated with defense counsel at the first prehminaiy hearing.
Also in support of the second factor, Sellers asserts that M.R.C. may have been bipolar, but this assertion is nothing more than rank speculation. M.R.C.’s aunt testified at trial that bipolar disorder ran in M.R.C.’s family, and there was discussion during the first preliminary hearing of M.R.C.’s mother’s depression upon return from her military deployment. There is no testimony anywhere in the record that M.R.C. was ever tested for or diagnosed with this potentially serious mental illness. The mental instability factor demands “demonstrable evidence of a mental condition that requires further investigation, not the mere allegation of some untoward mental condition.” Berriozabal, 291 Kan. at 581.
As to the third factor, lack of veracity, Sellers points to two inconsistencies in M.R.C.’s versions of the Thanksgiving touching.
First, he relies upon M.R.C.’s change of date — from the Saturday before Thanksgiving 2007 to the Saturday after Thanksgiving 2007 — which followed his service of notice of an alibi defense for the first date. Second, he relies upon M.R.C.’s initial statement to Lowe that she and Sellers were alone on the Thanksgiving weekend when Sellers simply walked up to her and touched her, as compared to her statement to Yoder and repeated later testimony that she was on her mother’s bed with her mother when Sellers touched her.
The district judge made findings that guide our view of each of these inconsistencies, and the record on appeal supplies vital additional information.
On the date change, the district judge found that M.R.C.’s mother first suggested the November 17 date and that, upon M.R.C.’s further reflection, the date was corrected to November 24. From this finding and the totality of circumstances revealed by the remainder of the record on appeal, it is apparent that M.R.C. was eventually able to pinpoint the date exactly because she remembered additional details about the weekend after Thanksgiving, including the visit of a friend from out of town.
With regard to the second inconsistency, the district judge found that M.R.C. testified clearly about the circumstances surrounding the Thanksgiving touching and who was present. We also note that the record reflects Lowe’s pertinent characterization of his task in interviewing M.R.C. He testified that he merely took an initial report from M.R.C. and avoided getting too many specific details so that she could tell her story to a detective. In other words, Lowe’s mission was limited. His interview was designed only to determine whether there was an allegation that a crime occurred before referring the case to an investigator. He employed “yes or no” and leading questions to get the necessary information because M.R.C. did not volunteer information herself. The single inconsistency between the stray told to him and the subsequent stray may have been an artifact of vaiying interview techniques.
Our Price case considered an allegation of lack of veracity of a complaining witness and noted that the issue was whether die alleged untruthfulness related to the victim’s contact with the defendant. Price, 275 Kan. at 88. Here, the inconsistencies Sellers relies upon do relate to M.R.C.’s contact with him. However, a reasonable person could regard the two inconsistencies at issue here as isolated or “occasional” rather than indicative of general lack of veracity such that a psychological examination was compelled. See Berriozabal, 291 Kan. 568, Syl. ¶ 6 (merely occasional inconsistent statements by complaining witness do not compel psychological evaluation). We are also appropriately mindful that tbe district judge, who found no indication of lack of veracity on M.R.C.’s part, had the advantage of observing her demeanor on the witness stand. We, of course, do not.
Having fully reviewed and considered Sellers’ arguments on the three factors relevant to this issue, we hold that the district judge did not abuse his discretion in denying the motion for a psychological evaluation of M.R.C. Sellers did not meet his burden to demonstrate a compelling need for such an evaluation, under the totality of circumstances present in this case.
Multiplicity
The issue of multiplicity is a question of law, and this court’s review is unlimited. State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009) (citing to State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 [2009]); State v. McCarley, 287 Kan. 167, 177, 195 P.3d 230 (2008). In addition, questions of statutory interpretation and construction, on which multiplicity turns, are reviewed de novo on appeal.
“When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it. State v. Harris, 284 Kan. 560, 572, 162 P.3d 28 (2007); State v. Post, 279 Kan. 664, 666, 112 P.3d 116 (2005). The court will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).” Thompson, 287 Kan. at 243-44.
Sellers argues that Counts 1 and 2 arise from the same conduct and are thus multiplicitous. The State responds that there was a break between the touchings of M.R.C.’s breasts and pubic area and thus the conduct was not unitary. In the State’s view, a fresh impulse supported charging the touchings in two counts.
This court has defined multiplicity as “ ‘the charging of a single offense in several counts of a complaint or information.’ ” State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). A two-prong test determines whether convictions are for the same offense: “ ‘(1) Do the convictions arise from the same conduct and, if so, (2) by statutory definition are there two offenses or only one?’ ” Thompson, 287 Kan. at 244 (quoting Schoonover, 281 Kan. at 496). If the convictions are not based upon the same, or unitary, conduct under the first prong, then the analysis ends. Thompson, 287 Kan. at 244.
Our decision in Schoonover provided four guiding factors on the first prong:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” Schoonover, 281 Kan. at 497.
Sellers believes that the charged acts were part of a single, continuous behavior. The State relies upon Sellers’ exit from the room to check on the dog as a break in the action with significance to the third and fourth factor.
The district judge conceded that this case was a close one on the facts, but he ruled that the exit from the room justified the State’s decision to charge two crimes. He determined that Sellers had to make a conscious decision to reoffend when he came back into the bedroom and was motivated by a fresh impulse.
The sequence of events underlying Counts 1 and 2 occurred as follows, according to M.R.C.’s trial testimony:
• M.R.C. and her mother lay down on her mother’s bed in her mother’s room. M.R.C. was on the right and her mother was on the left. They were lying with their heads on the pillows, and M.R.C. was on her stomach, holding hands with her mother.
• Sellers lay down on his stomach between M.R.C. and her mother. Sellers was positioned on the bed so that his head was about waist-level with M.R.C. and her mother. Sellers puts his arm over M.R.C.’s legs.
• Sellers moved his right hand under M.R.C. and moved it up to her breast where he then moved his hand around.
• Sellers got up from the bed and left the room to check on the dog, who was making noise as though he was tearing up paper in the other room. Sellers was gone for 30 to 90 seconds.
• Sellers returned to the room and lay between M.R.C. and her mother again. He put his hand on the inside of M.R.C.’s left thigh and moved it up toward her pubic area. He reaches her “private part” and wiggled his fingers.
• Sellers stopped again and got up and walked around to M.R.C’s mother’s side of the bed to see if she was still sleeping.
• Sellers walked around to M.R.C.’s side of the bed and started to lift up her shirt.
• M.R.C. squeezed her mother’s hand and woke her.
The first and second Schoonover factors — whether the acts occurred at or near the same time and in the same location — are clearly met in this case. The fondling of M.R.C.’s breast and the touching of her pubic area occurred within minutes of each other, both on the bed in her mother s room. The more difficult questions, as the parties realize, arise out of the third and fourth Schoonover factors — whether the break to check on the dog in another room was sufficient to constitute an intervening event and whether Sellers formulated a fresh impulse to reoffend in the time between leaving the room and returning to the bed.
This court has considered the question of multiplicity many times in sexual assault cases. In State v. Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978), this court held that multiple acts of attempted rape over the course of about 45 minutes resulted in only one count of rape. But subsequent decisions have reached different results. See State v. Richmond, 250 Kan. 375, 378-79, 827 P.2d 743 (1992) (distinguishing Dorsey, holding two counts of rape not multiplicitous despite time frame similar to that in Dorsey); State v. Zamora, 247 Kan. 684, 693-94, 697-98, 803 P.2d 568 (1990) (two rape charges not multiplicitous when digital penetration preceded intercourse); State v. Howard, 243 Kan. 699, 703-04, 763 P.2d 607 (1988) (multiple counts of rape, sodomy not multiplicitous when occurring over span of 90 minutes to 3 hours; when separate, distinct; when occurring in different locations in house; when separated from each other by other sex acts); State v. Wood, 235 Kan. 915, 920, 686 P.2d 128 (1988) (incidents of sexual intercourse separate, distinct when separated by 2 to 3 hours).
However, in State v. Potts, 281 Kan. 863, 872, 135 P.3d 1054 (2006), this court held that a short break between events did not demonstrate the existence of a fresh impulse. We said:
“Although the defendant calmed down momentarily when he laid down on the bed, the record suggests that only a few minutes went by before he told V.H. to perform oral sex on him. All of the acts seemingly stemmed from V.H.’s refusal of Potts’ sexual advances, and the evidence does not demonstrate a fresh impulse motivating some of the conduct. Rather, the evidence demonstrates that the charges arose out of the same continuous transaction involving Potts’ violent reaction to V.H. repeatedly refusing his sexual advances.” Potts, 281 Kan. at 872.
As the district judge noted, this case is a close call. The sequence of events is subject to the interpretation that Sellers checked on the dog, and, for' that matter, on the continuing slumber of M.R.C.’s mother, to ensure that no noise impeded his overall plan to molest M.R.C. But he did leave the room for 30 to 90 seconds, breaking the chain of causality and giving him an opportunity to reconsider his felonious course of action. The district judge ultimately determined that Sellers had to make a second conscious decision to touch M.R.C., and, acknowledging the difficulty of this call, we agree. The conduct underlying Counts 1 and 2 was not unitary, and our multiplicity analysis ends here.
Constitutionality of Lifetime Postrelease Supervision
Sellers argues on appeal that the imposition of mandatory lifetime postrelease supervision under Jessica’s Law violated the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because it constitutes cruel and unusual punishment. We do not reach this issue because it is not preserved for our review.
“Ordinarily, constitutional challenges to a statute raise questions of law subject to unlimited appellate review.” State v. Seward, 289 Kan. 715, 718, 217 P.3d 443 (2009). But constitutional claims must be preserved for appeal by advancement and argument in the district court. See, e.g., State v. Thomas, 288 Kan. 157, 160-61, 199 P.3d 1265 (2008); State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).
Sellers thoroughly preserved the issue of whether the life sentence and mandatoiy minimum of J essica’s Law violated the federal or state constitutions before the district court. He filed a pretrial motion to dismiss; argued the issue at the opening of trial; renewed his claim to dismissal on the issue at the close of trial; and, finally, challenged those aspects of Jessica’s Law at his sentencing hearing. But all of that careful preservation was aimed at unrealized threats. When the district judge sentenced Sellers, he departed from the life sentence and mandatory minimum of Jessica’s Law to the non-drug grid under the sentencing guidelines, as he was expressly permitted to do under K.S.A. 21-4643(d). See also State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011) (discussing departures from Jessica’s Law, further departures from sentencing grid imprisonment ranges).
Sellers simply never raised a challenge to the constitutionality of lifetime postrelease supervision under Jessica’s Law in the district court. We therefore do not reach the unpreserved issue on this direct appeal.
Lifetime Postrelease Supervision v. 36-Month Term
Sellers next challenges the district judge’s ability to impose a lifetime postrelease supervision term because he believes the district judge lost jurisdiction to impose increased punishment when the record of his sentencing hearing was briefly closed after initial pronouncement of a 36-month postrelease term. In Sellers’ view, his situation also is distinct from that of the Jessica’s Law defendant in State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), in which we affirmed a district judge’s correction of an illegal 36-month postrelease term to a lifetime term, even though 2 weeks had passed between the original imposition and the correction. See Ballard, 289 Kan. at 1012. The defendant in Ballard had entered a no contest plea. Sellers, on the other hand, went to trial, putting every element of the State’s case in issue. This is a distinction with a difference, he argues, because the State failed to prove that he was 18 or older at the time of his crimes. Thus, under State v. Bello, 289 Kan. 191, 199-200, 211 P.3d 139 (2009), and its progeny, he cannot be subjected to punishment for an off-grid Jessica’s Law offense, including lifetime postrelease.
We exercise unlimited review over jurisdictional questions. See Bello, 289 Kan. at 195-96. Also, to the extent this issue requires us to determine the statutorily authorized postrelease term for off-grid and the grid form of aggravated indecent liberties with a child, we exercise unlimited review. See Ballard, 289 Kan. at 1010 (citing State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 [2008]).
Sellers is correct that a defendant’s age of 18 or older is an element of the off-grid Jessica’s Law aggravated indecent liberties charged in Counts 1 and 2. See K.S.A. 21-3504(a)(3)(A); K.S.A. 21-3504(c) (aggravated indecent liberties with child as described in subsection [a] [3] is a sentencing grid severity level 3 person felony unless offender 18 years of age or older; if offender 18 or older, then aggravated indecent liberties with child as described in subsection [a][3] is an off-grid person felony).
We have excused the State from charging and ensuring jury instruction on the element of a Jessica’s Law defendant’s age only when evidence in the trial record has left no doubt that the omissions made no practical difference in the verdict. See State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010); State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010). When there has been no such evidence, we have not been so sanguine. Rather, we have held that the defendant can be exposed to punishment only for the grid form of the crime. See Bello, 289 Kan. at 200; State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009).
In this case, the charging document did not allege that Sellers was 18 or older at the time of the crimes; it did list his year of birth as 1971. There was no evidence of Sellers’ age admitted at trial, other than whatever circumstantial weight could be given to passing mention of his military service with M.R.C.’s mother. The jury instructions on the elements of the aggravated indecent liberties offenses charged in Counts 1 and 2 did not inform jurors that they must agree that Sellers was 18 or older when he molested M.R.C.
At Sellers’ sentencing hearing, the district judge initially imposed a 36-month postrelease supervision term and then went off the record. After what appears to be at most a few minutes, the judge reopened the record and changed the postrelease supervision period to lifetime, stating that he had made a mistake in his initial pronouncement.
A judgment generally is effective upon pronouncement from the bench, and, once imposed, a sentence cannot be increased by the court. See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996). In Ballard, despite the passage of 2 weeks between pronouncement of a 36-month postrelease term and correction to lifetime postrelease, we did not apply this general rule because a court may correct an illegal sentence that fails to conform to the governing statutory provision at any time under K.S.A. 22-3504. We held that a 36-month postrelease term for an off-grid Jessica’s Law offense would have been illegal, even though the district judge had, under K.S.A. 21-4643(d), departed to the sentencing grid from the usual life sentence and mandatory minimum. Ballard, 289 Kan. at 1012 (nature of sexually violent off-grid crime not changed by departure; defendant therefore could only be subject to lifetime postrelease under K.S.A. 22-3717[d][l][G], rather 36-month postrelease under K.S.A. 22-3717[d][ 1 ][A]).
In this case, we are not sure that the general rule on effectiveness of a judgment upon pronouncement would compel us to vacate Sellers’ lifetime postrelease term in favor of a 36-month term. The district judge’s brief closure of the record makes us doubtful. But despite Sellers’ argument regarding the State’s failure to prove his age, Sellers’ lifetime postrelease term must be affirmed. K.S.A. 22-3717(d)(1)(G) does not require any proof of the offender’s age. Subsection (d)(1)(G) requires an offender convicted of a “sexually violent crime” committed after July 1, 2006, to receive lifetime postrelease supervision upon release from prison. “Sexually violent crime” includes aggravated indecent liberties under K.S.A. 21-3504. Sellers was convicted of aggravated indecent liberties; thus, he is subject to lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G).
Lifetime Electronic Monitoring
Sellers’ last argument in this appeal focuses on the propriety of the district judge’s specification that he be subject to lifetime electronic monitoring. The electronic monitoring element of Sellers’ sentence must be vacated. Under our decision in State v. Jolly, 291 Kan. 842, 847-48, 249 P.3d 421 (2011), lifetime monitoring is associated with parole rather than postrelease supervision; and only the Parole Board has authority to order electronic monitoring. See also K.S.A. 22-3717(u).
Conclusion
In view of all of the discussion above, defendant Sellers’ convictions for aggravated indecent liberties are affirmed. The sentence of lifetime postrelease supervision is affirmed, but the lifetime electronic monitoring portion of his sentence is vacated, and the case remanded for further proceedings consistent with this opinion.
Convictions affirmed; sentence vacated in part; and case remanded with directions.
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The opinion of the court was delivered by
Yalentine, J.:
Two questions are presented to us for our consideration. First, Did the burden of proof under the pleadings rest upon the defendant? Second, Did the answer of the defendant state facts sufficient to constitute a defense to plaintiff’s action? Both of these questions must be answered in the affirmative. The first in substance has already been decided in this court in the case of Wiley v. Keokuk, 6 Kas., 94, 105, and we do not now choose to consider the question as a new or open one. (But see Perkins v. Ermel, 2 Kas., 325, 330.) Sustaining the decision of Wiley v. Keokuk are the following cases: Miller v. Larson, 17 Wis., 624; Sexton v. Rhames, 13 Wis., 99; Hartwell v. Page, 14 Wis., 49; Alderman v. French, 1 Pick., 115; Jackson v. Stetson, 15 Mass., 48; Hicks v. Drury, 5 Pick., 303. And the following eases are in opposition to such decision: Klink v. Cohen, 13 Cal., 623; Uridias v. Morrall, 25 Cal., 31; Siter v. Jewett, 33 Cal., 92; Mudd v. Thompson, 34 Cal., 39; Swift v. Kingsley, 24 Barb., 541; Horner v. McFarlin, 4 Denio, 509. Of the foregoing decisions those of Wisconsin and California, and the one reported in 24 Barb., 541, are really the only ones applicable to this case, as they are the only ones made under a code practice similar to ours. The common-law practice in such cases was probably such as it is stated to be in the case reported in 4 Denio, 509. If so, at common law each count in a pleading was considered as separate and distinct, and one count could not be benefited or injured by anything that might be stated in another count unless it was specifically referred to and made-a part thereof. This is probably still the rule where a pleading is demurred to; but it is not now the rule, as decided in the case of Wiley v. Keokuk, when the case comes on for trial upon the evidence. On the trial of a cause the general denial in an answer must be construed to be a denial only of all the material allegations of the petition not otherwise or elsewhere admitted in the answer. The rule laid down in the case of Wiley v. Keokuk is certainly more in accordance with reason and with the spirit of the code than the old common-law rule, and it is believed to be in exact harmony with the old-chancery rule upon this subject. At chancery a defendant might either plead or answer to a plaintiff’s bill, or do both if he chose. In his plea, if the bill was single, as it nearly always was, he could only set up a single defense; (Story Eq. PL, § 652, 657;) and of course everything that was said in such a plea must have been considered in construing the plea, and inconsistent statements could not have been allowed. In ' the answer the defendant might set up several defenses, but he was not required to set them up- in different counts as it was required to be done at common law, nor was he required to state them separately and number them as a defendant is now required to do under the code. His answer was a single and entire thing without regard to the number of defenses it contained. It is true that in one respect the answer consisted of two parts, first, the defense of the defendant to the case made by the plaintiff’s bill, and secondly, the examination of the defendant on oath as to the facts charged in the bill of wlfich a discovery was sought, and to which interrogatories were addressed; (Story Eq. PL, § 805;) but this docs not change the fact that the answer so far as the setting up of different defenses was concerned was a single and entire thing. It would seem to follow therefore that no one part of the answer could be considered by itself or alone, but all the parts had to be considered together and had to fee-consistent with each other. Of course, anything that was said in one part of the answer had to be considered in construing whatever was said in any other part of the answer. If the defendant interposed both a plea and an answer to the plaintiff’s bill, then if any statement was made in the answer inconsistent with the plea, such statement overruled the plea, and might be read in evidence on the hearing of the cause to disprove the plea; (Story Eq. PL, 690, 699.) In fact, if the plea and answer even covered the same ground the answer would overrule the plea unless the answer was so framed as to sustain and support the plea; (Story Eq. PL, 688, 693.) But aside from the rules of equity we suppose that it is pretty well settled that facts admitted by the pleadings cannot be disputed by the evidence but must be taken as true for the purposes of the action; and in the nature of things a party cannot in fact have inconsistent defenses. It is impossible that a thing may be true and untrue at the same time. Por this reason parties are not allowed to set up inconsistent defenses, for such defenses carry falsehood upon their face. Therefore whenever a defendant admits anything in his answer it is right to presume that the admission is intended to modify and control anything else that may be found in the answer in apparent conflict therewith. If the defendant has inadvertently or otherwise made an admission in his answer which he wishes to have stricken out he can have it stricken out at any time, even during the trial, upon such terms as may be just. In the case at bar the defendant admitted in his answer that the plaintiff was the original owner of the property in controversy, and admitted that he held under the plaintiff. There was no need therefore for the plaintiff to offer evidence to prove his title. By the pleadings it devolved upon the defendant to show that something had transpired whereby lie had succeeded to the rights of the plaintiff, otherwise he would fail in his defense. He had the affirmative of the issue, and the burden of proof rested upon him. It is true that it did not devolve upon him to prove all the facts alleged in his answer, for some of such facts-were admitted by the plaintiff in his reply. But it devolved upon the defendant to prove all the affirmative facts set up in his. answer not admitted by the reply.
II. The next question is whether the answer of the defendant states facts sufficient to constitute a defense to plaintiff’s action. Whenever sueh a question is raised by an objection to receiving any evidence under the answer, a very liberal construction must be given to the answer: 2 Wait’s Practice, 311, and cases there cited. The rule in such a case differs to some extent from the rule adopted when the question is raised on demurrer. The objections to the answer, as we understand from counsel for defendant in error, are as follows: First, the contract of Chipman for the sale of the property, was executed in Cliipman’s own name, and not in the name of Kaulback. Second, Butler dealt with Chipman knowing that Chipman was only an agent of Kaulback, and elected to give the credit to Chipman and not to Kaulback, and therefore he cannot now change his election and charge Kaulback. The first objection we consider as true in fact, but not good in law. The second objection we do not consider as true in fact, although if it were true it would probably be good in law. The answer does not admit that the defendant ever elected to charge Chipman alone, but on the contrary it clearly shows that the defendant intended to hold the plaintiff from the beginning, and considered Chip-man only as doing the business as agent for Kaulbaek. Whether the written memorandum given by Chipman to Butler is conclusive evidence that Butler elected to charge Chipman alone, or whether the defendant can hold the plaintiff notwithstanding that said written memorandum was executed in the name of the agent, Chipman, and not in the name of his principal, Kaulbaek, are questions which belong more joroperly to the first objection than to the second, and will therefore be so considered. Hence we shall consider the first objection, and that alone, as we do not think the second" is in the case. We suppose that it will be admitted by all parties that no interest or estate passed to Chipman when he became the agent of Kaulback;, and we further suppose that it will be admitted that no estate passed to Butler under the contract made with Chipman. It takes a deed of conveyance to pass an estate, and the contract between Chipman and Butler was only a simple contract. But while a simple contract can never convey or pass an estate, it may so bind the parties to convey that a court of equity will compel them to convey in accordance with their contract. Then did the contract of Chipman bind Kaulbaek to convey said property? “The rule that an attorney or agent to bind his principal must sign the name of the principal, applies only to deeds and not to simple contracts New Eng. Mu. Ins. Co. v. De Wolf, 8 Pick., 56; (same case; 1 Am. Lead. Cases, 600, 612, 613, and cases there,cited.) “Where a contract is made by an agent the principal whom he represents may maintain an action upon it in his own name, although the name of the principal was not disclosed at the time of making the contract; and although the contract be in writwig pa/rol evidence is admissible to show that the agent was acting for Ms principal Ford v. Williams, 21 How., U. S., 287; Baldwin v. Banks, 1 Wall., 234, 240, 241; Nash v. Town, 5 Wall., 703. “ At tlie time of making a contract of sale the party buying the goods represented that he was buying them on accowit of parsons resident in Scotland, but did not mention their names, and the seller did not inquire, but afterwards debited the pa/rty who purchased the goods; held, that the seller might after-wards sue the principal for the price:” Thompson v. Davenport, 9 Barn. & Cress., 78; 17 Eng. Com. Law, 45; Smith’s Lead. Cases, 358 to 378, side page. “ It seems to have been too long and too well settled that an action can be maintained against a principal upon a contract for the sale of goods made by an agent in his own name to be now changed, whatever we may have thought of it as an original question, and this as well where the contract is within the statute of frauds, as where it is not:” Dykes v. Townsend, 24 N. Y., 61. There is no doubt that where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as on the one hand to give the benefit of the contract to one unnamed principal, and on the other hand to charge with liability another unnamed principal; and this whether the agreement be or be not regwi/red to be in writing by the statute 'of frauds — and this evidence in no way contradicts the written agreement. “It does not deny that it is binding on those whom, on the face of it, it purports to bind, but shows that it also binds another, by reason that the act of the agent in signing the agreement in pursuance of his authority, is in law the act of the principal:” Higgins v. Senior, 8 M. & W., 844; Ery on Specific Perfor., § 148. “ There is no doubt that evidence is admissible on behalf of the contracting parties to show that the other was the agent only though contracting in his own name, and so fix the real principal:” Jones v. Littledale, 6 Adolph. & Ellis, 490; 33 Eng. Com. Law, 124. Where an attorney in fact executes a bond for the conveyance of title to real estate in his own name without disclosing the name of his principal, equity will enforce the specific performance of the bond against the principal or his hews: Rogers v. Bracken, 15 Texas, 564, 567. And where an attorney in fact executes a deed of conveyance in his own name, and not in that of his principal, the deed though void as a conveyance is good in equity as a simple contract, and equity will enforce the principal to execute a valid conveyance: Salmon v. Hoffman, 2 Cal., 138, 142; Pensonneare v. Bleakley, 14 Ill., 15. See also in this connection Robbins v. Butler, 24 Ill., 428. “ It would appear on principle that if at the time the contract was signed both A. and B. understood that A. was acting merely as agent for C., and B. were afterwards to sue A. for specific performance as principal, A. might allege the understanding between himself and B. at the time, and give parol evidence of it; and that if the allegation was proved it might furnish a valid defense though the circumstances supposed would of course furnish no defense at law unless by way of equitable plea:” Pry on Specific Performance, § 153. Now if such allegation and proof would be a good defense in equity to A. the agent, it is because C., the unnamed principal, (though known as the principal to both parties at the time of making the contract,) would be liable, and because he would be held to specifically perform the contract. The statute of frauds does not require the party’s own signature to the memorandum, but allows it to be “ signed by some other person thereunto by him lawfully authorized:” Gen. Stat, 505, § 6; Brown on Frauds, §367. “ The agent’s signature may be in his own name. No principal’s name, or fact of agency, appearing in the memorandum, parol proof will be admitted to show the agency and hold the real principal:” Brown on Frauds, § 3705, and § 364.
Under the authorities we suppose the following to be the rule of law governing this class of cases: "Whenever an agent having authority to sell land for his principal makes a contract in writing for the sale of the same in his own name, without mentioning therein the name of his principal, and puts the purchaser in possession thereof, who makes lasting and valuable improvements thereon, if the purchaser shall then be sued by the principal for the recovery of the land, the purchaser may, with proper allegations in his answer, show by parol or other evi dence that it was tbe understanding of tbe parties at tbe time of malting tbe contract tbat tbe agent was merely contracting for bis principal, and tbat it was tbe intention of tbe parties tbat tbe principal should be bound by tbe contract; and if the same be shown, tbe principal will be held to specifically perform the contract. Tbe judgment of tbe court below is reversed, and a new trial awarded.
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The opinion of the court was delivered by
Brewer, J.:
The first question in this case is as to the jurisdiction of justices of the peace in actions against school districts. In ordinary cases they have jurisdiction where the amount claimed does not exceed three hundred dollars: Gen. Stat., p. 774, § 2; Laws of 1870, 181, § 1. But in the Gen. Stat., p. 932, § 86, we find this provision: “Justices of the peace shall have jurisdiction in all cases in which a school district is a party interested, when the amount claimed by the plaintiff shall not exceed one dollars.” This provision is found in the act in relation to common schools. It is in the nature of an exception to and a limitation on the general rule. While in most cases justices may have jurisdiction where the plaintiff claims any amount not exceeding three hundred dollars, yet they cannot take cognizance of any case against a school district where the plaintiff claims over one hundred dollars. True, the section giving the general jurisdiction is, as amended in 1870, a later enactment than the one making the exception; but the latter is not in terms repealed. We may not conclude that the legislature intended to abolish the exception by changing the rule. We must give force to both if possible. The exception is as fit to the rule as amended, as to the rule before amendment. The exception therefore is in force, and the justice erred in taking cognizance of this suit against the school district, the amount claimed being one hundred and fifty dollars.
The judgment before the justice was void, and the school district might have treated it as a nullity. It however filed a petition in error in the district court and obtained x . _... . . __ n there a judgment oi reversal. Jrlamtiir then asked that the case be retained in the latter court for trial and final judgment as in cases of appeal. This he had a right to. Gen. Stat., p. 742, § 566. Both parties were in court. The district court had jurisdiction of the subject-matter, and the language of the statute is imperative — “ the same shall be retained by the court for trial and final judgment.”
Another point requires notice. ' The bill of particulars filed with the justice alleged a teacher’s contract with the district, but whether written or verbal was not disclosed. The testimony showed that it was verbal. Section 5, p. , „ , _ x 925, (ien. btat., requires teachers3 contracts to be . .. -1- _ - m writing. It does not follow from this that the district can have the benefit of the teacher’s services without compensating him therefor. The teacher or his assignee can recover of the district, not the stipulated price, but the reasonable value of the services actually performed. The law implies a contract from the doing and accepting of the work.
The judgment of the district court reversing the judgment of the justice will be affirmed, aud the order of that court overruling the motion of plaintiff to have the cause retained for trial will be reversed, and the ease remanded for further proceedings in accordance with this opinion. The costs in this court will be charged against the defendant.
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The opinion of the court was delivered by
Valentine, J.:
The plaintiffs in error (defendants below) claim that the court below had no jurisdiction of the persons of Nora E. Moore and Mabala Williams; tbat tbe petition of tbe plaintiff below (defendant in error) was not sufficient; tbat tbe court below erred in giving certain instructions to tbe jury, and also erred in refusing to give certain other instructions to tbe jury which tbe plaintiffs in error asked to have given; and they also raise questions as to tbe correctness of tbe verdict of tbe jury, tbe correctness and effect of tbe findings of tbe court below, and tbe correctness of tbe judgment rendered upon such verdict and findings.
Nora E. Moore and Mabala Williams were tbe wives of tbe other two defendants, to-wit, S. G-. Moore and E. P. Williams. They were made defendants by tbe petition below, but no summons was ever served upon them, and they made no appearance case the court below. Their said husbands attempted to acknowledge service of summ011s for them, but it does not appear tbat their husbands bad any authority to do so. Therefore we think tbe judgment rendered against them was erroneous, as tbe court bad no jurisdiction of their persons. Tbe defendant in error claims tbat this judgment does not affect any substantial rights of tbe said Nora E. Moore and Mahala Williams because they bad no interest in tbe land in controversy except as wives of their said husbands, and therefore tbat it should not be reversed. We think otherwise; or at least we think tbe judgment would aftcct their substantial rights if allowed to stand as a valid judgment against them. It is a determination of their rights without giving them their day in court. It is a determination tbat they bad no interest in tbe land in controversy except as wives of their said husbands without giving them an opportunity of showing tbat they bad some other or greater interest in tbe land.
Tbe record shows tbat tbe defendants Moore and Williams demurred to tbe plaintiff’s petition. Tbe court overruled tbe demurrer. Tbe plaintiff then filed an amended petition, to which defendants Moore and Williams answered, and tbe plaintiff replied to tbe answer; and upon this amended petition, answer, and reply, the parties tried the case. Whether the original petition was sufficient or not, or whether the court erred in overruling the demurrer thereto, is of no consequence now, and will not be considered by this court, as the ease was not tried upon such petition. Neither was there any error in allowing the plaintiff to amend his petition after the demurrer was overruled.
The main question in this case is whether the second or amended petition of the plaintiff was sufficient. No objection was made to it in the court below, and hence we shall look with great disfavor upon any objection made to it now and for the first time in this court. (Green v. Dunn, 5 Kas., 254, 260, an<l cases there cited.) The petition states with great particularity among other things, that the plaintiff Wade was the equitable owner of the land in controversy; that J. W. Oberhaltzer was the legal owner thereof; that Oberhaltzer at the request of Wade made a deed for said land to said S. Gr. Moore and D. P. Williams, under their firm-name of Moore & Williams; that said deed was made and deposited with said Moore & Williams as a security to them to secure them from any loss they might sustain or become liable for on a certain contract which they signed as sureties for Jacob Orounse; that this contract in substance was, that Jacob Orounse should build a certain house for the plaintiff on another piece of land; that said Moore & Williams were to return said deed to the plaintiff to be cancelled, or that they would reconvey to him whenever they were released from all liability as sureties for Orounse; that they were so released from liability; that they had caused said deed to be recorded; that they now refuse to reconvey, or to surrender up the title to said land to said plaintiff Wade; that the plaintiff has all the time been in possession of said land and had the same under his control, etc., and prays for a reconveyance of the title to said land to the plaintiff, and for damages. The plaintiffs in error claim that said petition is defective because it shows that the whole transaction between Wade and Moore & Williams, except the deed from Oberhaltzer to Moore & Williams, was \>j jwrol. It is true that the petition shows this, but in our opinion that does not render the petition defective. The counsel for plaintiffs in error rely upon § 8 of the act concerning conveyances, (Gen. Stat., 186;) §§ 5 and 6 of the act relating to frauds and perjuries, (Gen. Stat., 505,) and § 1 of the act concerning trusts and powers, (Gen. Stat., 1096.) But these provisions are not sufficient _ ' „ , -, T. . . for the purpose for which they are cited. It is true that they make void every gpcvrol agreement which attempts to create an estate in lands; but they do not make void an estate which results or which is created by operation of law. Woodham v. Hearn, 2 Leading Cases in Equity, 711, and cases there cited. Admitting that the agreement of Moore & Williams that they would reconvey to Wade whenever they were released as sureties for Crounse was utterly void and of no effect, and still it does not follow that they are not bound to reconvey when they are so released. They took the deed for the land as a security to them, to indemnify them in case of any loss as sureties for Crounse, and when they were released as such sureties they were bound in equity to reeonvey to the equitable owner of the land, who was Wade, not because they had agreed to do so, but because the law independent of any such agreement requires them to do so. It is trae, that in this case their agreement and the law harmonize; but it is not true that because they may plead that their agreement is void they may also plead that the law is void. This deed was absolute upon its face, but as it was taken only as a security it was in effect a mortgage. This principle has been so long and so well settled by courts of equity that we do not think it is necessary to refer to authorities to sxxstain it. But as no written defeasance was executed between the parties it is'claimed that no parol understanding, intention or agreement caix be shown to create a paxol defeasance. Now, while it may not be sufficient in an action at law to show by paral evidence that a deed, absolute upon its face, was understood or intended or agreed to be a mortgage, or was understood or intended or agreed to be defeasible, yet it has always been sufficient in a court of equity to show a state of facts outside of tbe deed which should render the deed a mortgage, or would render it defeasible: Thornbrough v. Baker, and Howard v. Harris, 3 Lead Cases in Equity, 628, et seq., and cases there cited. "When these facts are shown the deed will then be varied in equity so as to do justice between the parties? not as a consequence of their understanding or agreement, but generally without reference to the same. These views are not in conflict but really in harmony with § 2 of the statute concerning mortgages, (Gen. Stat., 582.)
But it is also claimed by counsel that this instrument could not be a mortgage because it was not given as a security for a debt; that in all mortgages there must be a debtor and a creditor. Now we suppose it makes but little difference what we call this instrument; it is its nature and character that we are to examine. But still we think in equity it should be called a mortgage. It is not necessary that a mortgage should always be given to secure the payment of a debt. It may be given to secure the performance of any other act which the law permits to be performed. “A mortgage in fee is an estate upon condition defeasible by the performance of the condition according to its legal effect.” (Erskine v. Townsend, 2 Mass., 495.) “A mortgage is a deed whereby one grants to another lands upon condition that if the mortgagor shall pay a certain sum of money, or do some other act specified therein, at a certain day the grant shall be void.” (Montgomery v. Bruere, 1 Southard, N. J., 268.) “ At common law a mortgage is defined to be a deed conveying lands conditioned to be void upon the payment of a sum of money, or the domg of some other act.” (Lund v. Lund, 1 N. H., 41.) “A mortgage is a conditional conveyance of land, designed as a security for the payment of money, the fulfillment of some contract, or the performance of some act, and to be void upon such payment, fulfillment, or performance.” (Mitchell v. Burnham, 44 Maine, 299.) “A mortgage is defined to be a conveyance of an estate, by way of pledge, to secure a debt for thq performance of some act, such as the payment of money, or the furnishing of an mderrmity, and to become void on payment or performance agreeably to tbe prescribed condition.” ( Wright v. Cooper, 37 Vt., 179.) See also upon this subject 1 Hilliard Real Prop., 540, ch. 29, § 1; 1 Washb. on Real Prop., 475, cb. 16, § 1.
It will be admitted that tbe transaction between Wade and Moore & Williams was a strange one. It seldom happens that a party who desires security from another person will furnish this other person with the desired security. This, however, Wade did when he furnished the security for Orounse. That such a transaction is legitimate, however, no one will deny. That it would be beneficial to the person for whom the security is furnished, we suppose will not be questioned; and that in some cases it might be highly beneficial to the party furnishing the security, we think will be admitted. Therefore the novelty of the transaction is not of itself sufficient proof of the invalidity of the transaction. If Wade was about to sell or lease the house which Orounse was about to build, and if the person to whom Wade was about to sell or lease the house had great confidence in Moore & Williams, it may have been greatly to the interest of Wade to procure the names of Moore & Williams as sureties for Orounse. But in any case the strangeness of the transaction would hardly be sufficient to render the transaction so wholly void as to give to Moore & Williams eighty acres of land worth $2,000 without any consideration whatever therefor except that their names were attached a short time to a paper as sureties for Orounse.
There were no facts set forth in the plaintiff’s petition upon which a judgment for damages could be rendered. The plain-according to his own allegations, was in possessi°n aiQ^ had control of the land in controversy, anq, therefore must have had the use of it. Then how he could have been damaged we are unable to see. The allegations of the petition attempting to show damages are as follows: “Plaintiff further says that on February 11th, 1870, said land was worth exceeding the sum of $2,000; that at said time plaintiff desired to and it was for his interest to use said land to bargain, sell and convey ten acres thereof to the St. Joe & D. C. R. R. Co., through which said ten acres was constructed and then being operated the railway of said company, for depot grounds; that he might lay out the balance of said lands into and dispose of same for town lots, for gain and profit thereby and therefrom, and that by reason of the fraudulent and wrongful acts of said defendants as aforesaid, and by their refusal to reeonvey said land to him as aforesaid, he then was and ever since has been prevented from bargaining, selling, or conveying, or otherwise making any profitable use of said land as aforesaid, to his damage in the sum of $1,000.” These facts did not authorize a judgment for damages. Damages may sometimes be allowed in equity cases; but this, upon the facts stated, is not one of such cases. The question as to the sufficiency of the petition upon which to render a judgment for damages was not raised until after verdict in the court below. It is even . doubtful whether the question was fairly raised until the case was brought to this court. But there is such a total want of a statement of facts to authorize such a judgment, that we do not think that the verdict which was a general verdict for damages could supply facts sufficient to authorize the judgment, or that we are precluded from examining into the sufficiency of the petition, the verdict, and the judgment thereon, although the question may possibly have been raised for the first time in this court. (10 Ohio St., 567; 17 id., 326; 13 B. Mon, 465; 18 id., 261; 10 Ind., 117; 27 id., 139; 30 id., 398; 18 Barb., 469; 19 id., 185; 27 id., 631; 2 Duer, 650; 7 N. Y., 464; 8 Howard Pr., 159, 258; 15 id., 500; 17 Johns., 457; 11 Wheaton, 171; Van Sant. Pl., 654, 655, 686, 687, 688; Swan’s Pl., 240; Gould Pl., ch. 10, §§ 3, 13, 20 to 25; 1 Chitty Pl., 681; Comp. Laws, 139, 140, §§ 96, 98; id., 189, § 396.)
This we think disposes of all the questions in this case. It is true that the plaintiffs in error attempt to raise questions upon the instructions, the verdict, the findings of the court, and the judgment for the title to the land, as well as judgment for the $96 damages; but we do not see how any other questions can be raised upon the record in this case than the ones we have already disposed of. None of the evidence is brought to this court. The instructions are not properly authenticated, and the record does not purport to contain all of them. The verdict of the jury so far as we sustain it, is in proper form, and sufficient. The findings of the court are in harmony with the verdict, and the judgment against Moore & Williams for a reconveyance of the land to Wade is amply sustained by the other proceedings.
Such of the instructions given and refused as have been put in the record brought to this court were filed in the clerk’s office on the next day after the trial, and are neither embodied in a formal bill of exceptions nor signed by the judge of the court below, (Gen. Stat., 682, § 276,) and for this . rt ' _ _ , reason if for no other we conicL not consider them, as they really form no part of the record of the case. (McArthur v. Mitchell, 7 Kas., 173.)
The judgment of the court below will be reversed so far as it affects Nora E. Moore and Mahala Williams, and also so far as it gives damages against Samuel G. Moore and D. P. Williams; otherwise it will be affirmed. Nora E. Moore and Mahala Williams will recover their costs in this court; Samuel G. Moore and D. P. Williams will pay half of the remainder of the costs, and Samuel W. Wade will pay the other half.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The transaction between the parties amounted to a bailment^ one of that species known as a deposit which is defined to be “ a naked bailment of goods to be kept for the bailor without reward, and to be returned when he shall require it.” The bailment was for the benefit of the bailor. Under these circumstances what obligations as to care and diligence rested upon the bailees, and what amount of negligence would cast the responsibility for loss upon them? Writers divide both negligence and diligence into three degrees, and assign the obligations of the different kinds of bailees to these several degrees. Mi’. Justice YAnsNTraE, in giving the opinion of this court in the case of The U. P. Rly. Co. v. Rollins, 5 Kas., 180, 188, states these different degrees, and the rule' of assignment clearly and succinctly. “Common or ordinary diligence is that degree of diligence which, men in general exercise in respect to their own concerns; high or great diligence is of course extraordinary diligence, or that which very prudent persons take of their own concerns; and low or slight diligence is that which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. Ordinary negligence is the want of ordinary diligence; slight or less than ordinary negligence is the want of great diligence; and gross or more than ordinary negligence is the want of slight diligence.” “ It is the miiversal law of bailments that where the bailment is for the benefit of both parties, the bailee is required to exercise ordinary care, and is liable for ordinary negligence. Where the bailment is for the benefit of the bailee alone, he is required to exercise great care, and is liable for slight negligence. Rut where the bailment is for the benefit of the bailor alone, the bailee is required to exercise -slight care only, and is liable for gross negligence only.”
It is evident from this that plaintiffs in error, in accepting the bailment of the package of money, contracted only to use slight care in its keeping, and-to become responsible only for gross negligence. The learned judge who tried this case seems to have supposed that a failure to exercise ordinary care amounts to gross negligence, and so his statement 'of the obligations of the bailees is partially wrong. In one place he charges the jury that the bailee is liable for gross negligence only. This is correct. But elsewhere, having first instructed the jury that this was a deposit, he uses this language:
“ The law presumes that the depositary undertakes to keep the deposit in the manner and with the degree of care and diligence usually bestowed on property of the same character by individuals of common sense and prudence engaged in the same kind of business. The bailee of a naked deposit is bound to use reasonable care and diligence In keeping the thing deposited.”
Again he says:
“ Ordinary care is defined generally as that care which men ’ of common sense and prudence usually exercise over property of their own similar to that entrusted to their keeping as bailees. Tbe defendants were bankers, and received tbe plaintiff’s deposit in that capacity. Then tbe question arises, wliat would be deemed ordinary care.”
■Thus defining “ordinary care,” and placing it before the jury as the measure of obligation resting upon the plaintiffs in error, the jury would naturally infer that the failure to exercise this ordinary care was gross negligence for which plaintiffs in error were responsible. This error pervades a great portion of the charge, and for this the judgment must be reversed.
Exception is taken to that portion of the charge in which the court refers to the custom among bankers. There'was, it is true, very slight testimony in regard to custom, but slight as it was, the court was justified in referring to it. It was one circumstance by which the attention of the jury is drawn to the amount of care required, and to the fact that negligence and diligence, and their several degrees, are relative and not absolute. The learned judge in his charge very happily and clearly pointed out the fact that that which was great care and diligence in the keeping of one kind of property might be gross negligence in respect to another kind. It is all important that the jury should bear this in blind to determine the amount of care requisite, and the degree of care used, in any given case.
The judge also charged the jury as follows: “If you believe from the evidence that the defendants, before the time the plaintiff made the deposit with them, had shown the plaintiff the vault of their safe, and ropresei)lted to him that they used it for the safekeeping of their money and other valuables and deposits of money made with them, and that the plaintiff was induced to deposit his money package at defendants’ bank through thew representations, the defendants are held to a strict accountability, and are bound to exercise a higher degree of care in the keeping of plaintiff’s money deposit than they would be if no no such representations had been made to him;” and that “the depositary is bound so the observance of good faith and honesty towards Ms depositors; and if the jury find from the evidence, as last .stated, then the defendants should have put the plaintiff’s package in thé vault of their safe, if it were at all practicable to have done to, although it would have been necessary to have excluded therefrom property of their own of less value.” The following is the testimony upon which this portion of the charge is based. It is the testimony of defendant in error:
“ I have been in Hale’s bank, and seen his safe, prior to March 25, 1868. I was there in the latter portion of February or first of March, 1868._ I examined the safe at that- time, and the vault. Hale showed me the safe where the books were kept, and then showed me the vault where he kept his money.” And again, “I was in defendant’s bank on the last of February or 1st of March, 1868, and examined the safe. Hale told me he kept his money in the vault; I don’t recollect whether there was money or anything else in the vault at that time. I had made deposits for my brother, but not for myself, before that time.”
In giving the instructions last mentioned, we think was error. They were not warranted by the evidence. Parties to a deposit may unquestionably make a special contract as to the place and manner of keeping the deposit, a breach of which will render the depositary liable. Representations may be made to induce strangers to commence or depositors to continue depositing which will call for increased care on the part of the bailee. But a mere showing to a depositor of the facilities and security of a bank, does not amount to any such representation as will enhance the obligations of the banker in regard to deposits by such depositor.
Before closing we think it proper to notice a point to which our attention was not called by counsel, but which unnoticed might occur on another trial with preiudice to one ° . . or the other party. In the two instructions asked by defendant in error and given by the court, the word will fully, or some word of kindred meaning should be used. The testimony of a witness wbo in some point has ignorantly testified falsely is not wholly to be rejected. Only that witness is wholly to be disbelieved who has hnowi/ngly and willfully testified to a falsehood.
The judgment is reversed and the cause remanded for a new trial.
All the Justices concurring.
Each of the instructions referred to is in the exact words (except the name of the witness,) of an instruction quoted hy Safford, J., and pronounced good, in Campbell v. The State, 3 Kas., 496. Justice Safford, (pp. 495, 496,) says:
u The defendant asked the court to charge the jury as follows: * If the jury believe, from all the evidence, that the witness Mollie Brown has testified falsely in respect to any material fact, it is their duty to disregard the whole of her testimony.’ The court refused so to instruct, and to this ruling the defendant hy his counsel excepted. In. our opinion the language of the instruction embodies a sound principle of law, and * * * it ought to have been given to the jury.”
In writing the opinion the word “willfully” was no doubt inadvertently omitted from the instruction, and the error was carried into the syllabus and the index. The instruction, as asked by defendant, is given in the statement of the case, (3 Kas., p. 489,) and is repeated hy the counsel, in their brief, (p. 491,) andinboth eases the word “willfully” occurs next before the word “testified.” Its omission from the instruction, when quoted hy the court, and the emphatic endorsement as so quoted, has no doubt misled both counsel and court in other cases than that of Hale v. Rawallie. It will be observed, however, that the court in this last case saythat a witness to bewholly disbelieved must have knowingly and willfully testified to a falsehood. — Rupouteu, | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Cesar Alberto Baca, of Aurora, Colorado, an attorney admitted to the practice of law in Kansas in 2008.
On November 4, 2010, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent sent his answer on January 7, 2011. A joint stipulation was entered into on January 10, 2011. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 12, 2011, where the respondent was present by telephone and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(a) (2010 Kan. Ct. R. Annot. 603) (misconduct); 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer); 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); Kansas Supreme Court Rule 208 (2010 Kan. Ct. R. Annot. 320) (registration of attorneys); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. The Kansas Supreme Court admitted the Respondent to the practice of law on April 28, 2008. The Respondent failed to comply with the annual requirements to maintain his law license. Specifically, the Respondent failed to pay the annual registration fee and comply with the requirements set forth by the Kansas Continuing Legal Education Commission. Accordingly, on October 18, 2010, the Kansas Supreme Court suspended the Respondent’s license to practice law. The Respondent’s license remains suspended.
“3. The Missouri Supreme Court admitted the Respondent to the practice of law on September 12, 2007. On October 26, 2010, the Missouri Supreme Court entered an order disbarring the Respondent.
“4. Between October 1, 2009, and October 9, 2009, the Respondent, using a computer in his home in Missouri, engaged in communication with a person that he believed to be a 14 year old female residing [in] Colorado via an internet chat room. Unbeknownst to the Respondent, the person who purported to be a 14 year old female was a Colorado law enforcement officer. According to the Respondent, he communicated under the user names “machavalia” and “krazeecock.” The exhibits also indicate that the Respondent may have also communicated under the user name “honissll.” The Respondent represented himself as a 30 year old, in Colorado.
“5. While chatting online with the purported minor, the Respondent discussed her school, music, her family, and her friends. During the online chat sessions, specifically on October 1, 2009, and October 4, 2009, the Respondent uploaded and displayed three different photographs of his penis. The photographs were accompanied by instant messages between the Respondent and the purported minor.
“6. On October 1, 2009, after learning that the person purported to be 14 years old, the Respondent provided the purported minor with his mobile telephone number. From a review of Disciplinary Administrator’s Exhibit ... , it appears that the Respondent and the purported minor exchanged text messages on 14 occasions from October 1, 2009, through October 9,2009. The Respondent initiated the contact on two of the 14 occasions.
“7. On October 2, 2009, the purported minor called the Respondent’s mobile telephone. The Respondent did not answer. Shortly thereafter, the Respondent returned the call and telephoned the purported minor. Cassandra Harris, an investigator, answered the telephone and portrayed herself as the minor.
“8. On October 9, 2009, a Colorado law enforcement officer contacted the Respondent regarding the explicit communications. The Respondent learned that the purported minor was a Colorado law enforcement officer. The Respondent admitted being a Missouri resident and lawyer. He admitted posting explicit photographs of his penis on the Internet while engaged in dialogue with the purported minor.
“9. On October 27, 2009, the authorities in the District Court of Jefferson County, Colorado, charged the Respondent with two counts of Internet sexual exploitation of a child, a level 4 felony. The Respondent voluntarily surrendered to the out-of-state authorities for criminal prosecution.
“10. On Januaiy 25, 2010, the Respondent entered a plea of guilty to an amended complaint, alleging one count of indecent exposure (defined as a misdemeanor in Colorado), a violation of C.R.S. § 18-7-302, alleging that he “exposed his genitals to the view of a child, under circumstances in which the conduct was likely to cause affront or alarm to the victim.” The two felony counts were dismissed pursuant to the plea agreement.
“11. On April 19, 2010, tire District Court of Jefferson County, Colorado sentenced the Respondent to four years probation with specific conditions limiting the Respondent’s access to computers with Internet access and mobile phones with photograph taking capabilities. The Respondent was also required to register as a sexual offender, misdemeanor offense. Finally, the Respondent was ordered to refrain from contact with children, including his own children. While some of the initial terms and conditions have been modified, the Respondent remains on probation.
“12. On May 4, 2010, the Respondent self-reported his conduct to the Disciplinary Administrator.
“13. On November 10, 2010, the Disciplinary Administrator filed the Formal Complaint in the instant case. The Respondent failed to file a timely Answer to the Formal Complaint, in violation of Kan. Sup. Ct. R. 211(b).
“14. The Hearing Panel held a hearing on the Formal Complaint on January 12, 2011. The Respondent did not appear in person at the hearing. However, during the week prior to the hearing, counsel for the Respondent requested that the Respondent be allowed to appear by telephone. The Hearing Panel granted that request and the Respondent appeared by telephone.
“CONCLUSIONS OF LAW
“1. Based upon tire findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4, Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 211, as detailed below.
“2. KRPC 8.4 defines professional misconduct, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
‘(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
‘(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
‘(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ In this case, the Respondent engaged in professional misconduct. He engaged in an Internet conversation with an undercover law enforcement officer who he believed to be a 14 year old female. During that conversation, he posted and re-posted three different pictures of his penis and discussed his penis with the purported minor. As a result of his misconduct, the Respondent was convicted by his plea of indecent exposure to a minor, a misdemeanor offense in the State of Colorado. As such, the Hearing Panel concludes that the Respondent violated the Rules of Professional Conduct, that he committed a criminal act that adversely reflects on his fitness as a lawyer, and that he engaged in conduct that adversely reflects on his fitness to practice law. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a), KRPC 8.4(b), and KRPC 8.4(g).
“3. Kan. Sup. Ct. R. 208 provides the annual registration process for Kansas attorneys:
‘(a) All attorneys, including justices and judges, admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, on or before the first day of July, register with the Clerk of the Appellate Courts upon such forms as the Clerk shall prescribe; provided that in the year of an attorney’s admission to the bar, the attorney shall register within thirty days after the date of admission. At the time of each registration, each registrant shall pay an annual fee in such amount as the Supreme Court shall order. Attorneys may register as: active; inactive; retired; or disabled due to mental or physical disabilities. Only attorneys registered as active may practice law in Kansas.
‘(c) On or before June 1 of each year the Clerk of the Appellate Courts shall mail to each individual attorney then registered in this state, at his or her last known address, a statement of the amount of the registration fee to be paid for the next year. Failure of any attorney to receive a statement from the Clerk shall not excuse the attorney from paying the required fee. Every registrant shall within thirty days after any change of address notify the Clerk of such change.
‘(d) Any attorney who fails to pay the registration fee by August 1 of each year may be suspended from the practice of law in this state as prescribed in subsection (e). It shall be the duty of each member of the judiciary of this state to prohibit any attorney who has been suspended from the practice of law from appearing or practicing in any court, and it shall be the duty of each member of the bar and judiciary to report to the Disciplinary Administrator any attempt by an attorney to practice law after his or her suspension.’
In this case, the Respondent failed to pay the annual registration fee. Additionally, the Respondent failed to comply with the Kansas Continuing Legal Education Commission requirements. Thus, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 208.
“4. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Kan. Sup. Ct. R. 211(b). The Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the profession to maintain his professional integrity.
“Mental State. The Respondent knowingly and intentionally violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in [a] pattern of misconduct by posting, removing, and re-posting inappropriate photographs on the Internet and by allowing the purported minor to view the inappropriate photographs.
“Multiple Offenses. The Respondent committed multiple offenses by violating KRPC 8.4, Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 211.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent was convicted of a misdemeanor by his plea to the amended charge of indecent exposure to a minor. Accordingly, the Hearing Panel concludes that the Respondent engaged in criminal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent has suffered in his past, and continues to suffer, personal problems. Additionally, it appears that the Respondent’s personal problems have contributed the Respondent’s violation of KRPC 8.4.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent cooperated during the hearing. He acknowledged his wrongdoing and admitted two rale violations. Additionally, the Respondent cooperated with the law enforcement agencies by voluntarily surrendering himself to out-of-state authorities.
“Inexperience in the Practice of Law. The Missouri Supreme Court admitted the Respondent to the practice of law in 2007. The Kansas Supreme Court admitted the Respondent to the practice of law in 2008. Thus, the Respondent is inexperienced in the practice of law. However, it is worth noting that the Respondent’s level of experience in the practice of law is not relevant to his misconduct. The Respondent’s misconduct is completely removed from the practice of law.
“Imposition of Other Penalties or Sanctions. The Respondent has experienced other sanctions for his conduct. The Respondent was disbarred in Missouri. The Respondent lost his job as a member of the legal department of an insurance company. The District Court of Jefferson County, Colorado, sentenced the Respondent to a four year term of probation. The terms and conditions of the Respondent’s probation are restrictive. For a period of months, the Respondent was not allowed to see his own children. The Respondent has not been permitted to attend church since May, 2010. The Respondent expects to lose the home he owns in Missouri through foreclosure of his mortgage.
“Remorse. At the hearing on this matter, the Respondent expressed genuine remorse for having engaged in the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. The Deputy Disciplinary Administrator argued that a reinstatement hearing is necessary in this case to ensure that the Respondent is fit to return to the practice of law. The Deputy Disciplinary Administrator recommended that, in the event the Respondent’s license is later returned to him, that his practice be limited.
“In his Answer, the Respondent recommended that he be censured for the misconduct. At this hearing on this matter, counsel for the Respondent did not make a specific recommendation for discipline. Rather, Mr. Waddell recom mended that the Hearing Panel give the Respondent a ‘hope’ of returning to the practice of law.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law. The Hearing Panel further recommends that the Court allow the Respondent to apply for reinstatement after he is successfully discharged from all obligations with the authorities in Colorado. Finally, the Hearing Panel recommends that the Respondent appear at a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to consideration of a petition for reinstatement.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties. From this record, we determine whether violations of KRPC exist and, if they do, what discipline should be imposed. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 289 Kan. at 133-34 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent took no exceptions to the hearing panel’s report, and we rule that the evidence before the panel established the facts of the respondent’s misconduct by clear and convincing evidence. Those facts are sufficient for this court to conclude as a matter of law that the respondent violated KRPC 8.4(a) (2010 Kan. Ct. R. Annot. 603) (misconduct), KRPC 8.4(b) (commission of criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), KRPC 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law), Supreme Court Rule 208 (2010 Kan. Ct. R. Annot. 320), and Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327), and we so hold.
Conclusion and Discipline
It Is Therefore Ordered that the respondent, Cesar Alberto Baca, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent must undergo a Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370) hearing before the court will consider any readmission of the respondent to the practice of law in Kansas. Any application for reinstatement will not be entertained without the respondent’s successful completion of his criminal probation in Colorado; and any reinstatement hearing must consider, among other factors: (1) whether respondent is capable of serving in a fiduciary or confidential capacity for a minor, such as in a guardian ad litem position or as counsel in juvenile proceedings; and (2) whether respondent has a past or current obligation to register as a sex offender in any jurisdiction, including whether any applicable registration requirement of another jurisdiction is comparable to that of Kansas.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Nuss, C.J.:
This case arises out of the district court’s denial of Melvin Holmes’ motion for postconviction relief under K.S.A. 60-1507 without conducting an evidentiaiy hearing on his claims of ineffective assistance of appellate counsel. The Court of Appeals affirmed. We granted Holmes’ petition for review; our jurisdiction is under K.S.A. 203018(b).
We hold the district court erred in denying Holmes’ 60-1507 motion without conducting an evidentiaiy hearing. Consequently, we reverse the decisions of the Court of Appeals and district court and remand to the district court for an evidentiary hearing.
Facts
In 1999, a juiy convicted Melvin Holmes of first-degree murder of his girlfriend and criminal possession of a firearm. He received a hard 40 sentence, but this court reversed and remanded for a new trial because of prosecutorial misconduct at trial. State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001) (Holmes I).
In 2002, a second juiy convicted Holmes of the same offenses, rejecting the lesser included offenses of first-degree murder for which they were also instructed: intentional second-degree murder, unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. He again received a hard 40 sentence. We affirmed his convictions but vacated the sentence and remanded for resentencing because of insufficient evidence of aggravating circumstances to support the hard 40 sentence. State v. Holmes, 278 Kan. 603, 102 P.3d 406 (2004) (Holmes II).
On remand, the district court imposed a hard 25 sentence, which we affirmed in State v. Holmes, No. 95,085, 2006 WL 3056732 (2006) (unpublished opinion).
On October 26, 2007, Holmes filed a 203-page pro se motion for postconviction relief under K.S.A. 60-1507. The motion raised several issues, including: (1) prosecutorial misconduct; (2) ineffective assistance of appellate counsel during the direct appeal challenging his convictions in 2004 (Holmes II); (3) judicial misconduct during trial; (4) an issue regarding jury selection; and (5) a claim of innocence.
After a prefiminary, but nonevidentiary, hearing attended by counsel for Holmes and the State, the district court denied Holmes’ 60-1507 motion. The judge stated:
“Court agrees with the State. The Court finds the motions, files, and record conclusively show the movant is not entitled to relief requested. Case will be dismissed for the grounds set forth in the State’s response. The Court will adopt as its opinion the response of the State. That will be the order of the Court.”
Holmes appealed. While his 60-1507 motion had raised several issues, he only appealed the effectiveness of his appellate counsel in Holmes II. More specifically, Holmes contended appellate counsel had failed to: (1) raise the issue of ineffective trial counsel; (2) include a videotape and accompanying transcript in the appellate record ; and (3) file a reply brief or motion for reconsideration.
The Court of Appeals panel affirmed the district court’s decision denying Holmes an evidentiary hearing. Holmes v. State, No. 100,666, 2009 WL 2501114 (2009) (unpublished opinion) (Holmes III). We granted Holmes’ petition for review that requested our examination of only points one and two presented to the Court of Appeals.
More facts will be added as necessary to the analysis.
Analysis
Issue: The district court erred in denying Holmes’ 60-1507 motion without conducting an evidentiary hearing.
Holmes challenges the district court’s failure to hold an evidentiary hearing, while the State responds that two of his three allegations of ineffective assistance of appellate counsel are without merit, and the third was resolved in Holmes II.
Standard of Review
Holmes contends that the district court summarily denied his 60-1507 motion. However, he then correctly cites the standard for reviewing a prehminary hearing on a 60-1507 motion as was conducted here. “An appellate court must give deference to any factual findings made by the district court as a result of the [prehminary] hearing” and “it must apply a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. [Citation omitted.]” Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). We agree with the application of that standard here.
Discussion
We begin our review by acknowledging that “ ‘ “a movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.” ’ [Citations omitted.] If a movant satisfies that burden, the court is required to grant a hearing, unless the motion is ‘second’ or ‘successive’ and seeks similar relief.” Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010).
For Holmes to be successful in asserting that he was denied effective assistance of appellate counsel in Holmes II, he must show that (1) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness and (2) he was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful. Baker v. State, 243 Kan. 1, Syl. ¶ 2, 755 P.2d 493 (1988); see Laymon v. State, 280 Kan. 430, 437, 122 P.3d 326 (2005).
Our review of alleged ineffectiveness is also steered, in part, by the guidance provided in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985):
“Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
See State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).
With this in mind, we turn to address Holmes’ three separate claims of ineffective appellate counsel.
Failure to Challenge Effectiveness of Trial Counsel
Holmes claims appellate counsel in Holmes II was ineffective because he failed to challenge the strategy of Holmes’ trial counsel. More specifically, Holmes argues that his trial counsel was ineffective by failing to advance a “non-guilt based defense,” and appellate counsel himself was ineffective by failing to brief this issue on direct appeal.
Holmes’ argument requires a review of the material facts. As we explained in Holmes I and II, Holmes and his girlfriend, Glenda Smith, spent March 6, 1999, together in Smith’s home. Holmes did heroin and cocaine and smoked crack in the home, while Smith injected cocaine. Because of the drugs, Smith showed signs of paranoia, looking out the window and holding a knife. While they were later in bed, Smith began to nag Holmes. Because Holmes knew she had previously armed herself when paranoid, and fearing what she might now do, he hit her in the head with a hammer. She jumped screaming from the bed and grabbed her handgun.
As they struggled for control of the gun, the fight moved to the hallway. As one of them pulled the trigger, the gun clicked several times but did not discharge. Holmes pushed Smith to the floor and held her with a knee against her chest. The gun was pointed at her chest. She continued to fight, with both her hands and one of Holmes’ on the gun. He threatened that he “could” or “would” kill her. She continued to fight when the gun fired, propelling a bullet into her heart. The entry was a “contact wound,” indicating the gun had been against Smith’s skin when it discharged.
Believing Smith was dead, Holmes immediately went into the bathroom and injected a combination of cocaine and heroin. Because he was going to jail, “he figured, what the hell, he would go ahead and finish up the drugs.” 272 Kan. at 493. He then went into a drug-induced seizure. When he recovered the morning of March 7, he called 911 and told the dispatcher that “he had shot his girlfriend.” 272 Kan. at 493. Holmes told both the police and the jury tire shooting was an accident.
Holmes’ counsel’s arguments during his closing included characterizing the shooting as accidental. An accident is certainly a complete defense to the crimes of first-degree murder, intentional second-degree murder, and voluntary manslaughter because all three require the killing be done “intentionally,” which is defined as conduct that is purposeful and willful and not accidental. See PIK Crim. 3d 56.04(d). Accordingly, contrary to Holmes’ present appellate argument, a nonguilt-based defense was raised for three of the murder-based charges sent to the jury for decision. Cf. State v. Carter, 270 Kan. 426, 440-41, 14 P.3d 1138 (2000) (defense counsel’s argument — that defendant’s shooting and killing the victim as an incident to the robbery, rather than a premeditated act, constitutes felony murder — is a guilt-based defense to premeditated first-degree murder). Holmes’ trial counsel additionally argued Holmes’ drug use negated the elements of premeditation and intent required for first-degree murder. At his request, the jury was instructed on voluntary intoxication. Voluntary intoxication, while not a complete defense, may also be used to negate the intent element of specific intent crimes such as first-degree murder. State v. Sappington, 285 Kan. 158, 164, 169 P.3d 1096 (2007).
Holmes’ trial counsel also argued during his closing that Holmes was justified in using deadly force because he acted in self-defense. Similarly, the jury received four different instructions concerning self-defense. Under the version of K.S.A. 21-3211 in effect when the shooting occurred, self-defense was a complete defense to all the homicide charges. See State v. Walters, 284 Kan. 1, 8-9, 159 P.3d 174 (2007). In sum, Holmes’ trial counsel advanced alterna tive theories of defense: complete defenses that absolved Holmes of responsibility for any crime and incomplete defenses that negated certain elements of the crimes while still subjecting Holmes to liability for their lesser-included offenses.
Given the conflicting facts surrounding the fatal shooting, we are unable to hold that trial counsel’s use of alternative theories of defense — guilt based and nonguilt-based — fell below an objective standard of reasonable performance to meet the first prong of the test for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Chamberlain, 236 Kan. at 656-57, (adopting Strickland standards); see also State v. White, 284 Kan. 333, 349-50, 161 P.3d 208 (2007) (alternative theories of defense permitted, even if they are incompatible). Because under our highly deferential scrutiny we conclude Holmes’ trial counsel employed a justifiable strategy, it follows that Holmes’ appellate counsel cannot be ineffective for failing to challenge that sound strategy on direct appeal.
Failure to Include the Videotape and Transcript in the Record on Appeal
Holmes also argues his appellate counsel was ineffective for failing to include a videotape of his police statement and its transcript in the record on appeal to support his claim that they were erroneously admitted into evidence. The State generally responds that our decision in Holmes II disposes of his claim.
When police officers initially met with Holmes in 1999, they videotaped his interview. A transcript was later prepared from the audio portion. Holmes’ trial counsel was concerned about those materials showing “Holmes’ prior criminal record, prior bad acts, personal history, and activity not directly related to this case” and therefore filed a motion in limine requesting this information “be redacted from the videotape and transcript.” Holmes II, 278 Kan. at 623. The motion alleged that “if made known to the jury, it would be prejudicial and error. Moreover, the prejudice and harm could not be erased by the court sustaining an objection and or instructing the jury to disregard it.” Before the 2002 trial, the parties worked together to edit and redact.
At trial, the State first offered into evidence the unredacted video and unredacted transcript of the video “so that someone [on appeal] can see what has been left out” by comparing the unredacted video and transcript with the redacted versions. After the defense did not object, the court admitted them into evidence “for this very limited purpose.”
The State also moved to admit the redacted video and transcript, to play the redacted video for the jury, and to provide it a copy of the redacted transcript to follow along. Holmes’ counsel generally renewed his multiple pretrial objections to the playing of tire video or showing the transcript to the jury. He also now specifically objected because he had not yet viewed all of the redacted video and wanted to ensure the State would only play the fully redacted version for the jury. The court initially reserved ruling on their admission:
“MS. LADNER: I would move at this time for the admission of 50 [redacted videotape] and 51 [redacted transcript].
“MR. MANK: I’m going to object to their admission at this time until after they’re played. And I’m, also, going to object based upon the prior ruling of the court as to 50 and 51.
“THE COURT: I’ll reserve ruling until the tape is — you’re prepared to show the tape to make sure that it is the appropriate tape. If it is, then the tape will be admitted.
“As to the transcript. I’ll reserve ruling on admitting the transcript as evidence.
“MS. LADNER: At this point, Judge, I’m ready to play the tape, but I’m not sure about what counsel’s objection is or what the Court’s ruling is on that?
“THE COURT: The only thing is to verify that it is, in fact, the correct tape.
“MR. MANK: That’s correct.
“THE COURT: And that is my ruling on the tape.
“MR. MANK: Well, judge, my — the other motion I’m making, Judge, goes— or the other objection I’m making goes to the prior ruling of the Court after the evidentiary hearing.
“MR. MANK: Okay. Judge, perhaps I didn’t make myself clear. The objection I was making was to the admissibility of the statement in its entirety.
“MR. MANK: So I’m simply making the objection to preserve the issue for appeal.”
“From a brief view of the tape,” the court believed it was the correct tape and admitted it into evidence. It was then played for the jury. Due to the tape’s poor audio quality, the court permitted the jury to follow along with a redacted transcript, which was never admitted into evidence.
Holmes complained in his pro se brief in Holmes II that the trial court erred “in admitting certain evidence, particularly the confession of the defendant without proper redaction,” and “[t]he record shows that the Court allowed evidence to be given to the jury that needed to be edited first.” (Emphasis added.) His contention is broad enough to include both videotape and transcript evidence. Cf. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010) (pro se pleadings are liberally construed).
This general complaint in Holmes’ pro se brief is supported by the record and preserved for appeal. More specifically, the record reveals that some of the material Holmes’ trial counsel had sought to have redacted was not; it was provided to the jury. After the tape finished playing for the jury, defense counsel stated:
“Judge, if I may, I’d like to make a record of a conversation that we had back in your waiting area regarding the videotape that was played. Despite our best efforts, there were some parts of the tape that were not edited correctly as [the prosecutor] and 1 had agreed to. And I do not want to direct attention to it, but that was the reason why 1 objected to it being admitted without watching it. The Court informed us that [it] would not play the videotape or ... give a copy of the transcript to the jury without playing [the videotape] in the courtroom if [the jury] requested that. .. . [I]t was my understanding in our conversation that we would have the opportunity to redact or edit any portion that would be presented to [the jury] so that it conformed with the Court’s previous order. And, also, as a result of the videotape, we are requesting . . . the [KS.A. 60-455] other crimes evidence PIK instruction.” (Emphasis added.)
The State agreed that giving the jury a limiting instruction under K.S.A. 60-455 would be appropriate. However, after the later jury instruction conference, defense counsel withdrew his request for a limiting instruction. He reasoned that “it brings too much attention to something that the Court had previously ruled was inadmissible. I do not want to direct the attention of the jury to those items that were brought up on the tape that should not have been.” The court ruled that if the instruction was not requested, it would not be given.
This less-than-fully redacted version of the video shown to the jury, which was admitted into evidence, was not included in the record on appeal in Holmes II. The redacted transcript used by the jury but not admitted into evidence was also not included in the record on appeal. We stated that our review of whether the trial court had erred in its treatment of the video and transcript was therefore difficult, if not impossible:
“The major problem in reviewing this issue is that Holmes has failed to include the videotape or the transcript in the record on appeal. Without these items, it is virtually impossible to fully assess Holmes’ claims. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003). Moreover, review of the evidence in the record does not support Holmes’ position.” Holmes II, 278 Kan. at 625.
The State now relies upon this language to contend our Holmes II decision disposes of this claim of ineffective assistance of appellate counsel and consequently eliminates any need for an evidentiary hearing on it. For the reasons discussed below, we disagree.
We have long held that appointed counsel’s duty to an indigent client is basically the same as that owed to any client. See, e.g., In re Phelps, 204 Kan. 16, 19, 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970); State v. Blockyou, 195 Kan. 405, 407 P.2d 519 (1965). We acknowledge, however, that an attorney has no duty to assert on appeal every alleged error. As we stated in Baker, 243 Kan. 1, Syl. ¶ 5:
“In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.”
See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983); Moncla v. State, 285 Kan. 826, 832, 176 P.3d 954 (2008) (“We give wide deference to counsel in deciding what issues should be asserted on appeal.”).
Consequently, when a client files additional pro se briefs with a court, the attorney must exercise reasonable professional judgment to ekminate those issues that do not merit review. For those pro se claims that have not been eliminated and are raised on appeal, counsel has the responsibility to provide a record on appeal sufficient to support them. See Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, Syl. ¶ 7, 221 P.3d 588 (2009) (“The responsibility for providing a record on appeal sufficient to support a party’s argument belongs to that party.”).
Here, the videotape and transcript clearly were not provided in support of Holmes’ appellate claim that the trial court erred in allowing them to be considered by the jury. Holmes has therefore taken the first steps toward establishing ineffective assistance of appellate counsel. Nor is there anything in the record to indicate whether the items were omitted because appellate counsel determined as a matter of strategy that the claim they referenced was unworthy of pursuit or instead the result of inadvertent error. Lack of strategic choice is a further step for Holmes to make in estabHshing his ineffective assistance of appellate counsel claim. See State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004) (strategic choices made after counsel’s thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the hmitations on investigation); State v. Tucker, 253 Kan. 38, 46, 853 P.2d 17 (1993) (counsel is entitled to make strategic choices).
Before proceeding with our analysis, however, several of our statements in Holmes II require addressing. First, our statement that “Holmes has failed to include the videotape or the transcript in the record on appeal” was meant to be a reference to Holmes as the party represented by counsel and not Holmes as a person. See 278 Kan. at 625. Consequently, contrary to the State’s suggestion, we did not determine that Holmes individually was responsible for including these items on appeal and, by implication, there fore relieve his appellate counsel of the professional responsibility to the client.
Second, in holding the trial court did not err, we stated: “[T]he parties agreed to remedy the portions not edited correctly with a K.S.A. 60-455 limiting instruction. The jury would have been exposed to the videotape with or without the transcript. Using the transcript would not have changed the result of the trial.” 278 Kan. at 625. Despite this language and others referencing the agreement between the parties and the court to a limiting instruction (278 Kan. at 625) and also language referencing the State’s argument that “any potentially prejudicial material from the videotape was cured by issuing the jury instruction for prior other crimes evidence” (278 Kan. at 625), no such instruction was actually given at trial. According to our review of the record, the trial court ruled one would not be given after defense counsel withdrew his request, and none appears in the instructions eventually provided to the jury. As a result, the Court of Appeals panel was mistaken in the present appeal — although somewhat justifiably — when it concluded: “The Supreme Court stressed that a limiting instruction was given to remedy any portions of the tape that were not edited properly.” (Emphasis added.) Holmes III, 2009 WL 250114, at *2. Moreover, despite this Holmes II language focusing on the trial court’s handling of only the transcript, Holmes’ pro se brief also complains about the handling of the videotape. Consequently, in this particular 60-1507 appeal, we do not determine whether the use of a specific transcript alone would “have changed the trial result.” 278 Kan. at 625.
Finally, and most important to our analysis, no versions of any videotapes or transcripts have been included in the record on appeal. Holmes’ appellate counsel did not include the unredacted video and unredacted transcript that were admitted into evidence for apparent appellate purposes. Nor did he include the less-than-fully redacted video and transcript that were shown to the jury. Without any of these materials, we cannot know exacdy what parts of “Holmes’ prior criminal record, prior bad acts, personal history, and activity not directly related to this case” that his counsel, the State, and the court all agreed, but failed, to keep from the jury. As a result, on this record we cannot agree with the State. More specifically, we cannot agree that even if appellate counsel deficiently performed, that Holmes was not prejudiced to the extent there is a reasonable probability that, but for counsel’s failing to supply the videotape and transcript on appeal, Holmes’ appeal would have been successful. See Baker, 243 Kan. 1, Syl. ¶ 2. Cf. Rowland v. State, 289 Kan. 1076, 1086, 219 P.3d 1212 (2009) (until record available containing information necessary to determine whether counsel made informed choice or ignorant mistake, no tribunal should have decided the merits of the ineffective assistance of counsel issue as a whole and as a matter of law).
In conclusion, we hold that the district court erred in dismissing, without an evidentiaiy hearing, Holmes’ claim under K.S.A. 60-1507 that his appellate counsel was ineffective in failing to include the videotape and transcript in the record on appeal in Holmes II. Accordingly, this particular issue is remanded to the district court for an evidentiaiy hearing.
The district court should first inquire whether appellate counsel intentionally chose not to pursue the issue — and thus chose to not provide it support in the record on appeal — as a matter of strategy or otherwise. See Moncla, 285 Kan. at 832 (appellate court gives wider deference to counsel in deciding what issues should be asserted on appeal). But see Rowland, 289 Kan. at 1086 (strategy cannot be automatically assumed; court must determine whether defense counsel made an informed choice or an ignorant mistake).
If the hearing establishes deficient appellate counsel performance, the 60-1507 court should proceed to the prejudice prong. More specifically, the court should determine whether Holmes was prejudiced to the extent there is a reasonable probability that, but for counsel’s failing to supply the videotape and transcript on appeal, Holmes’ appeal would have been successful. See Baker, 243 Kan. 1, Syl. ¶ 2; Rowland, 289 Kan. at 1083.
When making this prejudice determination, the 60-1507 court may examine whether the trial court had indeed erred in permitting the tape and transcript to be provided to the juiy. If there was no trial error, or if it was harmless, then it follows that appellate counsel’s failure to supply those materials in the record on appeal to support the claimed error cannot be prejudicial. While we ruled in Holmes II that the trial court did not so err, we have now explained that our ruling was based upon counsel’s failure to provide the materials for our review. We have also explained that our ruling was additionally based upon facts as represented in the parties’ briefs, not those actually contained in the record, which our careful review has now revealed.
Failure to File a Reply Brief or Motion for Reconsideration
Holmes argued to the Court of Appeals panel that his appellate counsel was ineffective by failing to file a reply brief and a motion for reconsideration after our decision in Holmes II. When the panel rejected this point, Holmes did not present it for our potential analysis when he filed his petition for review. Accordingly, it has not been preserved for review. See Supreme Court Rule 8.03(a)(5)(c) and (g)(1) (2010 Kan. Ct. R. Annot. 69). Even if this point had been preserved, we hold it has no merit, primarily for the reasons provided by the panel. Holmes III, 2009 WL 2501114, at *2.
Reversed and remanded with directions for an evidentiary hearing on the videotape and transcript issue.
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The opinion of the court was delivered by
Yalekxins, J.:
This was an ordinary action on a promissory note brought by Frank R. Boyle, plaintiff below, against Sarah P. Peering, defendant. The defendant answered to the plaintiff’s petition as follows:
“ Defendant further avers that said note was executed and signed by her while she was the lawful wife of one George M. Peering, and that said George M. Peering was at the time of the execution of said note indebted to said plaintiff F. R. Poyle, and said note was given and executed by said defendant in payment of and satisfaction of the sole, separate, and individual debt of said George M. Peering, and without any benefit or consideration whatever moving to said defendant.”
The plaintiff demurred to this answer, on the ground that it did not state facts sufficient to constitute a defense to the petition. The court below sustained the demurrer, and the defendant as plaintiff in error now brings the case to this court.
That such a contract or promise as the one embodied in the said note, would be void at common law, we suppose will not be questioned; or that an action at common law could be maintained upon said note, we suppose will not be claimed. But these'are not questions involved in this case; and therefore all the authorities that may be referred to in support of these propositions are wholly inapplicable to the case at bar. The real questions to be considered in "this case are, whether said note would be held valid in a suit in equity to enforce its payment, or whether it is valid under our statutes. If considered valid in either case the plaintiff would undoubtedly have the right to recover in this action. If it be said however that this action is in form an ordinary action at law, we would answer that while that is not strictly true, yet it makes no difference, provided facts sufficient are stated to show a good cause of action as provided by our code. The plaintiff’s petition was drawn under § 123 of the code, and is sufficient under that section. Under such a petition if the plaintiff has any cause of action on the note, either in law or equity, he may recover; and if the defendant' has any defense, either in law or equity, it devolves upon her to state it in her answer. In this state all distinctions between actions at law and suits in equity, and the forms of all such actions and suits are abolished, and in their place we have but one form of action called a civil action: Code, § 10. Both common-law and equity jurisdictions are vested in and administered by the same court. And whenever the rules of the common law and those of equity differ, as they probably do as applied to the note now in controversy, equity being the stronger jurisdiction the courts of this state must follow the rules of equity.
Could the plaintiff recover, in equity, on said note? It has been unquestionably settled in England, and pretty well settled in this country, that a married woman is regarded in equity, as to her separate property, as a femme sole, and her separate property is charged with all her debts and obligations without any express intention on her part so to charge it. For instance, whenever a married woman gives a promissory note it will be presumed in equity that she intends to charge her separate estate unless the contrary be shown. The authorities are very numerous upon this subject, and most of them may be found cited in Mr. Bishop’s work on the law of married women. (1 Bishop on Married Women — English authorities, §§ 848 to 858; American authorities, §§ 864 to 879.) The doctrine as above stated was hardly questioned in this country until the decision of the case of Yale v. Dederer, in New York, in 1860. That ease was first decided by the Supreme Court of New York in 1855: 21 Barb., 286. It was then decided in accordance with what was at that time generally if not universally understood to be the law both in England and in this country. Afterwards the case was taken to the Court of Appeals, and reversed by a divided court; Denio and Rossevelt, JJ., dissented, and Strong, J., expressed no opinion: 18 N. Y., 265. Afterwards it was again decided by the supreme court, (31 Barb., 525,) and again (in 1860) taken to the Court of Appeals and reversed: 22 N. Y., 450. At the time of this last decision by the Court of Appeals that court decided that where a married woman signed a note as surety for her husband it would not charge her separate estate though so intended. This was hardly good law at the time it was so decided; and even the courts of New York have ever since been trying to get back to the true doctrine without expressly overruling this decision. In the case of Owen v. Cowley, 36 N. Y., 600, it was decided by the Court of. Appeals that “ Where a charge is created by the express agreement of a married woman for a good consideration, though for a purpose not beneficial to her separate estate, she is bound in equity by the obligation she thus deliberately chooses to assume.” In the case of Ballin v. Dillaye, 37 N. Y., 35, it was held by the Court of Appeals that “ the separate estate of a married woman was chargeable in equity for any debt she might contract on the credit of or for the benefit of such estate.” In the case of the Corn Exchange Ins. Co. v. Babcock, 42 N. Y., 613, it was decided in 1870, by the commission of appeals, that a married woman could charge her separate estate by indorsing on a promissory note given by her husband and others the following words, to-wit: “For value received I hereby charge my individual property with the payment of this note: Armina Babcock;” — although this indorsement was made without consideration, without benefit to her separate estate, in a transaction in which she had no interest, except as a wife, and in which her husband had no interest except a joint interest with others. The courts of New York by these decisions have placed themselves in the ludicrous position <of declaring that in eqwity a married woman’s contract does not depend for its validity upon any rules of equity or justice, but simply upon whether that portion of the contract which charges her separate estate is expressed in writing or not. The case of Yale v. Dederer, (22 N. Y., 450,) was severely criticized in the case of Corn Ex. Ins. Co. v. Babcock, (supra;) and so it had previously been criticized and disapproved in the able and exhaustive opinion of Chief Justice Dixon in the case of Todd v. Lee, 15 Wis., 365. Mr. Bishop in his work on Married Women, says that the several differences of opinion upon this subject may be reduced to two. And then he uses the following language: “ On the one side is the doctrine that a married woman, who in these transactions cannot bind, herself personally, is presumed, when she has a separate estate, if in form she contracts a debt but does not in express terms make it a charge on this estate, to be a scoundrel, meditating a cheat on the other party. She goes into a retail shop, for example, and looking at a dress says, ‘ I will pay you for this,’ and takes it away. What she gives is her promise. As a thing binding on herself it is a nullity; but the shop-keeper thinks he is getting something of value, and so parts with his goods. He may know the woman is under coverture, but he knows also that she has a separate estate. She knows that she has no means of paying except out of this separate estate, but by resorting to this she knows she has the means. ' Hoes she intend to resort to this? If she does, she intends to charge it — she does in her mind charge it; she means to go to it, and she considers whether there will be enough left to buy another dress. But the judicial opinion now under consideration says, that though it is quite possible the woman may mean all this, it is also possible she may be meditating a cheat; therefore the tradesman, to recover the debt as against the separate estate, must prove that when the woman bought the goods she was in an honest frame of mind. On the other hand, the opposite judicial opinion holds, that a married woman, like all other parties appearing before judicial tribunals, shall be presumed to be innocent until she has been proved guilty — honest-minded, until the contrary appears — and that she cannot herself allege her own guilt or fraud. Thus, this class of opinion carries the ordinary principles of the law into the law of married women.” 1 Bishop on Mar. Women, § 873.
When a married woman executes a promissory note, she of course means something. She either means to charge her separate estate, or else she means to cheat and defraud the person to whom she gives the note. Is it not more charitable to suppose she means the former? But suppose she means the latter, will ooivrts of eqwity hear her plead her own guilt and fraud? If tbe contract of a married woman does not bind her separate estate, then of course it is a nullity, for it is well settled tbat it cannot bind ber personally. But to give her contract sucb a construction violates at least two well-settled principles of law; first, it presumes ber guilty of fraud, before tbe fraud is shown; second, it adopts a construction wbicb will defeat tbe contract instead of adopting tbat construction wbicb will prevent its failure, and give effect to tbe obligation of each and all tbe parties. We think tbe supreme court of Missouri bas decided this question correctly: Coats v. Robinson, 10 Mo., 757, 760; Whitesides v. Cannon, 23 id., 457; Segond v. Garland, 23 id., 547; Schafroth v. Amos, 46 id., 114, 116; Miller v. Brown, 47 id., 50. So also bas tbe supreme court of Alabama: Collins v. Rudolph, 19 Ala., 616; Collins v. Lavenberg, 19 id., 682; Ozley v. Ikelheimer, 26 id., 332; Baker v. Gregory, 28 id., 544; Caldwell v. Sawyer, 30 id., 283 ; Cowles v. Morgan, 34 id., 535. Also Kentucky: Jarmin v. Wilkerson, 7 B. Mon., 293; Bell v. Keller, 13 id., 381, 384, et seq. And see tbe following cases: Greenough v. Wiggington, 2 Greene, (Iowa,) 435; Patton v. Kinsman, 17 Iowa, 428; McCormick v. Holbrook, 22 id., 487; Dobbin v. Hubbard, 17 Ark., 189. Some of tbe cases relied on to show tbat a married woman cannot make a valid contract charging ber separate estate are actions at common lamo in states where equity and common law jurisdictions are kept separate and distinct. Of course sucb cases are not applicable in this state. Of this class is tbe case of Jones v. Crosthwaite, 17 Iowa, 393, referred to by counsel for plaintiff in error. In connection with this case, see tbe case of Patton v. Kinsman, 17 Iowa, 428. Another class of cases is where a married woman at tli6 time she makes tbe contract appropriates a certain piece of property (either hers or ber husband’s) for tbe payment of ber obligation, by way of mortgage or pledge or tbe like. In sucb cases it bas been held tbat no other property was intended to be appropriated or charged, upon tbe maxim tbat the express mention of one thing is tbe exclusion of another. Sucb was tbe case of Johnson Co. v. Rugg, 18 Iowa, 137, referred to by counsel for plaintiff in error. Of course this class of cases is not applicable to tbe case at bar. Another class of cases is where a court of equity, under the peculiar circumstances of the case then under consideration, there being fraud, overreaching, or an undue advantage taken of the woman’s affections, frailties or infirmities, could not in equity and good conscience charge her separate property. Of course that class of cases is not applicable to this case. In another class of cases we don’t think the law has been correctly laid down. Such is the case of Yale v. Dederer, 22 N. Y., 450, referred to by counsel for plaintiff in error.
The true doctrine seems to be this: Whenever a married woman enters into a contract (not for necessaries) for the payment of money, she does not bind her husband nor her husband’s property, nor herself personally; but she binds her own property which she holds separate from her husband.
It seems scarcely necessary for us to say anything with reference to our own statutes concerning the rights of married women, except to say that they do not change the rules of equity so as to affect the decision of this case. But still it may not be out of place to offer a few suggestions concerning them. Section 2 of ch. 62, Gen. Stat., 563, reads as follows:
“ Sec. 2. A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.”
Other sections provide that a woman may sue and be sued, as if she were sole, may carry on trade and business, perform labor or service, etc., on her sole and separate account; but' § 2 is the. one more directly involved in the consideration of this case; and in fact that portion of said section which provides that a married woman “ may enter into any contract with reference to ” her separate estate “ in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property,” is about all that we need consider. It is claimed that the note sued on is not a contract “with reference to ” or “ in relation to ” the separate property of Mrs. Deering. That it has no direct reference to any specific article or portion of said property, will certainly be conceded. But if the great weight of judicial decisions in this country upon contracts made by married men, or other persons not under disability, is to have any force in the determination of this question, then it must be equally clear that such a contract as the note sued on has reference, more or less remote, to the general property of the person signing the same. If it has not such reference, then it has no reference to anything whatever, but is totally and absolutely void. A married woman cannot by her contract bind herself personally, as a married man can, and therefore, if she does not bind her property by her general engagements, she does not bind anything. Now as a married woman may enter into contracts with reference to her separate property “ in the same manner ” as a married man may in relation to his, we shall proceed to consider in what manner a married man may enter into contracts with reference to his property. And here it will be proper for us to say that so far as this case is concerned no distinction can be made between the contract of a married man and the contract of any other person not laboring under any disability. Those who claim that the contract of a married woman has no reference to her separate property unless expressly so stated in the contract itself, must claim that there can be nothing contained in any contract unless it is contained in the express words or terms of the contract itself. There is some room for such a claim, and decisions of courts may be found to support it; but the great weight of authority in this country is unquestionably on the other side. It is almost universally held that all the laws of the country in force at the time and place where the contract is made, which can materially affect the contract, enter into and form a part of the contract: Greer v. McCarter, 5 Kas., 18, 22; Mather v. Bush, 16 Johns., 233, 249 to 251; Blanchard v. Russell, 13 Mass., 1, 16; Moore v. Fowler, Hampstead C. C., 536; Bronson v. Kinzie, 1 Howard, 315; McCracken v. Howard, 2 id., 612; Harrison v. Stepp, 8 Blackford, 455; Nelson v. Rountree, 23 Wis., 371; Jackoway v. Denton, 25 Ark., 625, 642. This is especially true where both parties live in the same state, and where the contract is made and to be performed in the state where the parties reside. It is said that the parties contract with reference to the laws, and make them a part of their contract. Hence such laws cannot be materially changed without impairing the obligation of said contract. (U. S. Const., art. 1, § 10, sub. 1; Bronson v. Kinzie, 1 How., 311, 315.) It is true that some courts have said that the remedy given by law for the enforcement of the contract, does not enter into or form any part of the contract; but in the light of other decisions this is probably not strictly correct. It is probably true that the parties do not contract for the specific remedy in force when they make their contract; but it is certainly as true that they do contract for a substantial remedy. It is true that the remedy may be changed; but unless a sirbstantial remedy still remains, the act changing the remedy is void, tending to impair the obligation of the contract: Oatman v. Bond, 15 Wis., 28; Hasbrouck v. Shipman, 16 id., 296; Call v. Haggar, 8 Mass., 430; Conkey v. Hart, 14 N. Y., 30; Jackoway v. Denton, 25 Ark., 625, 642; McCracken v. Hayword, 2 How., 612; Blair v. Williams, 4 Littell, 35, 37, 38, 39; Lapsley v. Brashbears, 4 Littell, 47; Corn Bank of Natchez v. Chambers, 8 Smedes and Marshall, 56, et seq. With regard to evidence see: Jackson v. Howe, 19 Johns., 83; Robinson v. Howe, 18 Wis., 341, 347; Smith v. Cleveland, 17 Wis., 556, 568, et seq.; Nelson v. Rountree, 23 id., 368, 371. We suppose it is well known by everybody that the property of a married man is liable for all his debts and obligations, although no specific mention of his property be made in his contract. It is not necessary that a court have jurisdiction of his person in order to render judgment against his property on such a contract, subjecting the property to the payment of his debts, or the fulfillment of his obligations. He may be beyond the jurisdiction of the state; but if his property remains, it is liable. And this liability springs as well from his contract as from the law. As to how far a man contracts with reference to his property when he makes a general contract, without specifically mentioning any of it, has been many times adjudicated in this country. The Federal Constitution, art. 1, § 10, sub. 1, provides that no state shall pass any law impairing the obligation of contracts; and under this provision it has been necessary many times to determine what belongs and what does not belong to the contract. Mr. Sedgwick says: “ States may pass retrospective laws, however -unjust; may pass acts of a judicial nature, however clearly overstepping the line of legislative power; they may pass acts divesting vested rights; they may violate express provisions of their own constitutions. Acts of these classes, however objectionable, are not within the scope of the restrictions of the Federal Constitution.” (Sedg. Stat. and Const. Law, 639.) It is only when states pass laws affecting the contract itself that such laws come within the said Federal restriction.
In every contract it must be presumed that each party agrees that all his property, except such as may be exempt by law, or such as may be exempted by the terms of the contract itself, shall be liable for the fulfillment of the contract. Hence any general exemption law, exempting all a debtor’s property, passed after a contract has been made, would be void, as tending to impair the obligation of the contract. This is the generally accepted doctrine, found however only in the elementary works, and in the dicta of courts, and not in any judicial decision, as no state has yet passed any law exeurpting all the debtor’s property. It has been held that where only a portion of the debtor’s property was exempted from execution the law exempting the same was void: Forsyth v. Marbury, Charlton, (Geo.,) 324; Quackenbush v. Danks, 1 Denio, 128; Danks v. Quackenbush, 3 Denio, 594; Quackenbush v. Danks, 1 N. Y., 129. But now it seems to be settled that a law may be valid that exempts a portion of the debtor’s property, such as household furniture, agricultural implements, etc., provided that such portion is not great enough to materially impair the obligation of the contract sought to be enforced: Morse v. Gould, 11 N. Y., 281; Rockwell v. Hubbel, 2 Doug. (Mich.,) 197; Bronson v. Kinzie, (per Taney, C. J., obiter dictum,) 1 How., 311, 315; Cusic v. Douglas, 3 Kas., 123. But how even such laws as those last mentioned can be sustained upon any logical system of reasoning cannot easily be understood. If the question should ever be taken to the supreme court of the United States, that court would probably declare a different doctrine. A statute of New York, exempting under certain circumstances all the future acquisitions of property, was held void by the supreme court of the United States. This law provided that if the debtor should deliver up all his property to be applied in payment or partial payment of his debts, that after a certain time he should be discharged, and that all his future acquisitions should be exempt from such debts. It was held that this law was unconstitutional and void, that it impaired the obligation of contracts: Sturges v. Crowninshield, 4 Wheat., 122. “ The court held that the obligation of a contract was not fulfilled by a cessio bonorum, for the parties had not merely in view the property, in possession when the contract was made, but its obligation extended to future acquisitions; and to release them from being liable, impaired the obligation of the contract.” 1 Kent Com., 420. See also upon this subject, McMillan v. McNeil, 4 Wheat., 209; Far. & Mech. Bank v. Smith, 6 id., 131; Ogden v. Saunders, 12 id., 213; Boyle v. Zacharie, 6 Peters, 348; Baldwin v. Hale, 1 Wall., 233; Springer v. Foster, 2 Story, 387; Woodhull v. Wagner, 1 Baldwin, 300; Moore v. Fowler, 1 Hemp., 536.
When a contract is made with a corporation at a time when by statute the stock of the stockholders is liable for the debts of the corporation, the legislature cannot repeal such statute and thereby exempt such stock from the payment of such debts, for such repeal would impair the obligation of the contract made between the creditor and the corporation, which contract the corporation had from the stockholders (who were virtually the sureties of the corporation to the amount of their stock) the implied authority to make: Hawthorne v. Calef, 2 Wall., 10, and cases there cited. In Georgia it has been decided that “ A state law wbicb impairs tbe obligation of a contract made prior to its passage is unconstitutional and inoperative. And it is equally so whether the contract exists in its original shape, or has been merged in a judgment.” “ A judgment in Georgia constitutes a Ken from its date on all the property of the debtor, and is constructive notice to all the world; and this lien is effectual against all subsequent claims to the property derived from and through the debtor.” A law which prohibits a levy on a portion of the debtor’s property previously subject to an existing judgment is unconstitutional, as it impairs the obligation of a contract.” Forsyth v. Marbury, Charlton, (Geo.,) 324. And where a statute makes it more difficult for the creditor to reach the debtor’s property, and thereby substantially interferes with the enforcement of the contract or the collection of the debt, the statute is void. For instance, when the law under which a contract is made authorizes property to be sold on execution to the highest bidder it will be presumed that the parties contracted that it should be so sold (if sold at all,) and a law afterwards passed requiring that it should be appraised and sold for not less than two-thirds of its appraised value, is a law impairing the obligation of such contract, and is therefore void: McCracken v. Hayword, 2 How., 608; Willard v. Longstreet, 2 Doug., (Mich.,) 172; Rawler v. Hooker, 21 Ind., 144, and cases there cited. And generally, the law in force at the time the contract is made is the law which governs in the sale of property sold on execution to satisfy a judgment rendered on such contract: Harrison v. Stepp, 8 Blackf., 455. Also a law passed after a contract has been made staying judgment or execution on such contract is generally held to be void, on the ground that it prevents the creditor from seizing the debtor’s property to satisfy the debt, as soon as the parties are presumed to have contracted that it might be so seized: Bumgardner v. The Circuit Court, 4 Mo., 50; Blair v. Williams, 4 Litt. (Ky.,) 34; Hasbrouck v. Shipman, 16 Wis., 296; Bunn v. Gorgas, 41 Penn. St., 441; Stevens v. Andrews, 31 Mo., 205; Burt v. Williams, 24 Ark., 91. So also and for the same reason, a law passed after a contract has been made giving to the debtor the right to redeem his property from a sale on execution, or extending the time for such redemption, has been held void: Thorne v. San Francisco, 4 Cal., 127, 139 to 142.
But we think we have already furnished sufficient illustrations to show that whenever a man contracts, he contracts with reference to all his property (not exempt,) unless he otherwise express it in his contract. The decisions that we have referred to, and many others which we might refer to, could never have been made if such were not the law. See also McCormick v. Holbrook, 22 Iowa, 487. He contracts with reference to his property in this way: He makes his contract; the law provides what shall be done with his property if he does not perform the same; he knows or is presumed to know the law, and to make it a part of his contract. Eor instance, suppose he gives a promissory note. His contract will then be in legal effect as follows: “ One year after date, for value received, I promise to pay A. B., or order, one hundred dollars, with interest. But if I do not so pay the same, then I further agree in accordance with the present law, that said A. B., or his assignee, may sue me, obtain a judgment for that amount, have an execution issued and levied on my property, and have the same sold to satisfy said execution.” This is a married man’s contract with reference to his property. A married woman may under said §2 of the married woman’s act contract “in the same manner, to the same extent, and with like effect,” with reference to her property.
We do not think that the said answer of the said defendant stated a good defense to the plaintiff’s action. Therefore the demurrer to the answer was properly sustained, and the decision of the court below is affirmed.
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