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The opinion of the court was delivered by
Kaul, J.:
Appellant-petitioner, Robert Lee Kelly, being confined in the state penitentiary under a sentence of twenty years, filed a motion to vacate judgment and sentence pursuant to the provisions of K. S. A. 60-1507. The trial court entered judgment denying relief and subsequently denied a motion for a rehearing. Thereafter petitioner perfected this appeal. Five points are relied upon by petitioner. A narration of factual background is necessary for proper consideration of petitioner’s contentions.
The petitioner and two codefendants, Gary Edward Pitts and Robert Thomas Karrick, were arrested on April 23, 1956, in Kansas City, Missouri, on a charge of burglarizing a hardware store in Blue Mound, Kansas, early in the morning of the same day. In due course they were extradited and returned to Linn county to face the charges.
The record discloses that petitioner was represented by counsel from the time he was first brought before the justice of the peace in Mound City, Kansas, the petitioner and Pitts being represented by Mr. John H. Morse, and defendant Karrick by Mr. Michael Kennedy. Preliminary hearing was waived and the three defendants were bound over for trial in the district court.
The petitioner, Pitts and Karrick, were jointly charged in an information filed in the district court in case No. 11,366. They appeared before the district court on July 9, 1956, and John H. Morse was appointed attorney for petitioner and defendant Pitts; defendant Karrick having retained an attorney. Mr. Morse entered pleas of not guilty for petitioner and defendant Pitts.
The case was subsequently dismissed and petitioner and defendant Pitts and Karrick were rearrested on September 26, 1956. On the same day petitioner appeared before a justice of the peace where he was represented by Mr. Morse. A preliminary hearing was requested and set for October 9, 1956. Petitioner appeared with his attorney at the preliminary hearing and was bound over for trial in the district court. On October 31, 1956 an information was filed by the county attorney jointly charging petitioner, Pitts and Karrick with burglary in the second degree (G. S. 1949, 21-520) and grand larceny (G. S. 1949, 21-533).
On November 1, 1956, petitioner and defendant Pitts again appeared before the district court, together with counsel John M. Morse, the information was read and pleas of not guilty entered for the defendants. The record discloses that defendant Pitts was tried to a jury on December 3,1956. Petitioner testified as a witness for defendant Pitts at his trial. On January 17, 1957, petitioner appeared in person and by his attorney, John H. Morse, before the district court, withdrew his plea of not guilty and entered a plea of guilty to both counts of the information. The journal entry of the proceeding then reflects that petitioner was asked by the court if he had any legal reason why the judgment and sentence of the court should not be pronounced. He answered in the negative. Thereupon the county attorney presented authenticated copies of convictions of petitioner for the crime of burglary in the second degree in the circuit court of Jackson county, Missouri, on April 27, 1949, and of the crime of larceny in the circuit court of Buchanan county, Missouri, on July 11, 1952. The record reflects no objection on the part of petitioner or counsel at this point of the proceeding. The court found that petitioner had twice previously been convicted of felony offenses and that sentence should be prescribed as provided by section 21-107a, G. S. 1949. The petitioner was sentenced to confinement in the penitentiary for a term of 20 years.
On January 24, 1957, petitioner by John H. Morse, his attorney, filed notice of appeal in the Supreme Court of Kansas. The appeal was dismissed on May 29, 1957, by this court.
On August 11, 1964, the district court considered a letter of petitioner, mailed on July 30, 1964, in which petitioner asked that his letter be treated as a motion and a petition for redress. Petitioner claimed in the letter that he was without counsel at his preliminary hearing. The district court made a transcript of O. G. Dennis, justice of the peace, a part of its memorandum order. The transcript filed with the clerk of the district court disclosed that John M. Morse appeared as counsel for petitioner at the preliminary hearing. The court further found that petitioner was represented by able and competent counsel from the time of “arraignment” (sic) preliminary hearing before the justice of the peace until the dismissal of the appeal before the supreme court. The court further found that the motion and petition for redress and the files and records of the case conclusively showed that the petitioner was entitled to no relief.
It is clear from the record that the letter of petitioner was considered and treated by the court as a motion pursuant to K. S. A. 60-1507. It is to be noted that this proceeding took place prior to the adoption by this court of Rule No. 121 on October 16, 1964, set out in 194 Kan. xxviii.
Subsequently, petitioner filed a petition pursuant to 60-1507, supra, on the forms prescribed by Rule No. 121, supra. The district court considered the petition and filed its memorandum opinion on December 15, 1964, in which relief was denied. Thereafter the court received a letter from petitioner which was treated as a motion for rehearing. On December 30, 1964, a memorandum decision of the court was filed and entered denying the motion for a rehearing. The petitioner filed notice of appeal and on January 19, 1965, the court granted petitioner leave to proceed in forma pauperis and appointed M. K. Hoag as counsel to represent petitioner in this appeal.
The first and principal point relied upon by petitioner in his appeal is whether the state gave sufficient notice of its intention to invoke the habitual criminal statute at the time petitioner was sen- fenced on January 17, 1957. It is conceded by the state that the records shows no formal notice of intention to invoke the habitual criminal act prior to January 17, 1957. However, the record reflects that petitioner was represented by counsel at the time of sentencing and had been represented by the same counsel since July 9, 1956. In fact when petitioner was before the district court on July 9, 1956, the court inquired of defendants and their counsel:
“Court: Do they all have records?
“Leighton A. Fossey (County Attorney): Yes.”
The record further shows that when the authenticated records of prior convictions were submitted to the court at the time of sentencing there was no objection or request for a continuance by either petitioner or his counsel.
In considering this point the trial court found:
“There is no allegation in petitioner s motion that even now, almost eight years later, that earlier notice would have availed the petitioner of anything. He does not claim that he was not the person named in the authenticated copies of prior convictions which were introduced before the court, or that the prior convictions were invalid, nor does he give any indication that such prior notice would have been of any benefit to him.”
In the memorandum denying the motion for rehearing the trial court further stated:
“In this proceeding, it is incumbent upon the petitioner to show not only that there was some irregularity in the prior proceeding, but that he was deprived of a substantial right. The record shows clearly that he was present with counsel, made no objection and voiced no complaint when the certified copies of prior convictions were introduced in evidence; he waited over seven years, until after his direct appeal to the Supreme Court of Kansas was dismissed and until after his first motion for discharge under Section 60-1507 had been heard and denied in this Court earlier this year; and he now offers no suggestion in any of his papers filed with this Court that prior notice would have been of any benefit to him. Under the circumstances, he is not entitled to his discharge because of this irregularity.”
The record before us on appeal fully substantiates the trial court’s findings in this regard. The situation presented on this point is similar to that considered in the case of Browning v. Hand, 284 F. 2d 346, a federal habeas corpus case arising in Kansas, wherein it was stated on page 347 of the opinion:
“The only contention which merits discussion is that the petitioner was denied due process of law because he was not given adequate notice that the provisions of the Kansas habitual criminal statute were to be invoked against him, thereby depriving him of the right to defend upon the issue of whether he was an habitual criminal. . . . Assuming that prior notice of the hearing was not given, the defendant was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under consideration and to controvert the allegation that he had been convicted of previous felonies which would make him subject to the penalties of the habitual criminal statute. The time for complaint was then, not now.”
In the opinion written by Judge Pickett, of the Circuit Court of Appeals, 10th Circuit, numerous federal cases are cited in support of the holding. The Browning case has been cited with approval by this court in Thompson v. State, 195 Kan. 318, 403 P. 2d 1009; and Goodwin v. State, 195 Kan. 414, 407 P. 2d 528.
In the recent case of Chance v. State, 195 Kan. 711, 407 P. 2d 236, in considering the same question under similar facts this court quoted with approval the conclusion of the trial court as follows:
“ ‘Petitioner has given this court no indication that even if afforded an opportunity at this time, he could successfully refute the evidence of his former felony convictions (see State v. Messmore, 175 Kan. 354 [264 P. 2d 911]; and Johnson v. Crouse, 191 Kan. 694 [383 P. 2d 978]). The court concludes that petitioner was not prejudiced due to the failure of the State to advise him that the habitual criminal act would be invoked prior to entry of his plea of guilty, or prior to the day of sentencing.’ ” (p. 715.)
In the recent case of Brown v. State, 196 Kan. 236, 409 P. 2d 772, the issue of notice prior to the invoicing of the provisions of the habitual criminal act was raised. It was held that petitioner should have been given a full evidentiary hearing. The trial court had found petitioner had raised a question of fact requiring the presentation of evidence by the state and heard the state’s witnesses but over the objection of petitioner’s counsel refused to return petitioner for the hearing. The instant case is clearly distinguishable. The trial court in the case at hand found conclusively that the record and petition raised no such substantial issue of fact. It is also to be noted that in Brown v. State, supra, it was stated that the opinion was not intended to dilute decisions of this court holding that a defendant had waived notice.
In view of what has been said the trial court was correct in finding the petitioner not entitled to relief on this point.
For his second point petitioner contends the trial court erred in not vacating the sentence on the grounds that his direct appeal was thwarted by the failure of his court appointed attorney to follow through with such appeal. On this point petitioner merely alleges that he appealed to the supreme court from the judgment of conviction and that the appeal was dismissed. He fails to set out any trial errors in his petition. In Ramsey v. United States, 223 F. Supp. 605 (1963) a similar question was considered in a proceeding to vacate sentence pursuant to 28 U. S. C. A. § 2255. It was stated:
“Even if it were shown that the failure of the petitioner to appeal was due to a mere neglect of his counsel, which has not been done, there must be a further showing, also not present here, that there was plain reversible error in the trial.” (p. 606.)
(See also Mitchell v. United States, 254 F. 2d 954 [1958]; Taylor v. United States, 177 F. 2d 194 [1949] and Fennell v. United States, 339 F. 2d 920 [10th Cir. 1965].)
The record reveals no attempt on the part of petitioner to reinstate the appeal during the intervening eight years.
Petitioner in this case was represented by competent counsel and was in close contact with him for a period of more than six months prior to conviction. It must be presumed that he was fully and fairly represented in all matters before the trial court and the appeal and dismissal thereof. (Dexter v. Crouse, 192 Kan. 151, 386 P. 2d 263.)
For his third and fourth points petitioner claims that the trial court should have appointed counsel to represent him and granted a request for personal appearance at the hearing of his motion pursuant to 60-1507, supra. The record discloses that the trial court carefully considered petitioner’s applications for relief on three different occasions, the first letter on August 11, 1964, the present matter in which the order was filed on December 15, 1964 and his motion for rehearing in which the trial court filed a further memorandum. The trial court found that the files and records conclusively showed that petitioner was not entitled to relief. The court further found that no substantial issues of fact as to events in which petitioner participated or substantial questions of law were raised by the allegations of the petition. We are convinced, from our search of the record, that the findings of the trial court were fully justified. Under such circumstances the sentencing court is not required to grant a formal plenary hearing, or to appoint counsel, or to have the movant present. (State v. Burnett, 194 Kan. 645, 400 P. 2d 971.)
Lastly, petitioner claims that the sentence should have been vacated because the information was not verified positively on in formation and belief but was verified on knowledge and belief. The contention may be summarily disposed of. It has long been the rule in this state that proceeding to trial and entering a plea constitutes a waiver of any technical defects in the information. (State v. McArthur, 186 Kan. 745, 352 P. 2d 954 and cases cited therein.)
From an examination of the entire record we are of the opinion that no error has been shown.
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The opinion of the court was delivered by
O’Connor, J.:
This action was instituted by plaintiff (appellant) Gertrude Walker against defendant (appellee) Holiday Lanes, Inc. to recover damages for personal injuries sustained by her while bowling in the defendant’s bowling alley. From the jury’s verdict and the judgment entered in favor of defendant, plaintiff has appealed.
A brief review of the factual background reveals that plaintiff, an experienced bowler, was participating in an afternoon bowling league. When plaintiff’s turn came to bowl, she arose from her score-keeping position, and as she attempted the running-and-sliding process preparatory to delivering the ball, her left shoe did not slide. Instead, because of a beverage having been spilled, her shoe stuck to the floor, causing her to stop suddenly, and in doing so, to twist and injure her back.
The pleadings reveal plaintiff’s action was predicated on numerous acts of alleged negligence on the part of the defendant, its agents, servants and employees. Defendant’s answer denied it was negligent, and affirmatively alleged contributory negligence on the part of the plaintiff.
On the issues joined, the case went to trial. At the conclusion of all of the evidence the plaintiff moved for a directed verdict, which motion was overruled. Following the jury’s verdict, plaintiff filed a motion for new trial, alleging misconduct of the jury, misconduct of counsel, error in the trial court’s overruling her motion for directed verdict, and other grounds not here important. The motion was subsequently presented to the trial court and was overruled.
On appeal plaintiff raises two points: (1) the court erred in denying her motion for directed verdict; (2) the court erred in denying her motion for new trial because of misconduct of the jury and misconduct of counsel. Since the second point will determine the disposition of the appeal, we shall proceed directly thereto.
Attached to the motion for new trial were affidavits of two jurors who served on the case, Edward J. Cairns and Ben Andrews, which stated, in substance, that another juror, whose name Andrews did not definitely remember but whom Cairns identified as John B. Cann, had announced, after the case had been submitted to the jury and while it was deliberating, that during the trial he had gone to the bowling alley and had made an independent investigation and inspection of the premises with regard to the location of the chairs, the scoring machines, the posted signs admonishing patrons not to take their beverages into the bowling area, and the bowling area itself. Affiants were unable to recall all of the statements made by Cann in the jury room, but it was Cairns’ belief that not only his verdict but also the verdict of other jurors, including Cann, was influenced by these remarks.
At the hearing on plaintiff’s motion for new trial the defendant called as witnesses eleven of the twelve jurors who had served on the case, including Cairns, Andrews and Cann. Pertinent portions of the testimony of Cann are as follows:
“Q. Mr. Cann, were you one of the acting, qualified jurors that tried and brought in a verdict in the case of Gertrude Walker versus Holiday Lanes, Incorporated, case number 21,625, that was tried in this court February 4th and 5th this year?
“A. Yes, sir.
“Q. Did you hear the testimony in the case, Mr. Cann, concerning how the bowling area was laid out — that there were some signs saying that the patrons shouldn’t take refreshments down into the bowling area?
“A. Yes, sir.
“Q. Mr. Cann, during the course of the trial did you go out to the bowling alley the evening of February 4th, 1964?
“A. I did.
“Q. And did you during the deliberations of the jury mention that you had been out there and that the signs were in place?
“A. Yes, sir.
“Q. Mr. Cann, during the course of your inspection of the Holiday Lanes during the trial did you also note then besides the signs that the scoring machines were situated in a certain place and the spectators sat and so forth?
“A. Yes, exactly like they stated in here.
“Q. And your purpose in going out there — you wanted to satisfy your own mind — is that right?
“A. Absolutely, yes, sir.
“Q. And I believe also your observation or statement was in the jury room that other people took some soft drinks down to the bowling area?
“A. That is right.
“Q. In other words, Mr. Cann, just generally speaking, you discussed within the jury room during deliberations all the various facets and items you had noticed in your inspection the night before?
“A. No, this and every other one that you observed here — all of them— there was no difference than what they quoted here.
“Q. And you satisfied your mind that night that the testimony you had heard about the condition was the same?
“A. Yes, sir.
“Q. But before going out there you weren’t satisfied in your own mind?
“A. Not too sure, no, sir.”
The foregoing testimony reveals that Cann made his view of the bowling alley premises on the evening of the first day of trial, which was of two days’ duration. In all fairness to the juror, it appears from the record that prior to the overnight recess the jury was not specifically admonished to refrain from any independent investigation. It further appears that Cann was not present on the opening day of court when the judge, in his orientation remarks, admonished the entire jury panel about such “extracurricular” activities.
We have examined in detail the testimony of the individual jurors and it discloses that the majority of them recall one of the jurors stating he had gone to the bowling alley premises, and that considerable discussion was had in the jury room concerning what he had observed.
Defendant’s counsel, in the process of his examination of the individual jurors, attempted to show that Cann’s discussion did not influence the verdict. The trial court correctly ruled such questions were improper. The extent to which a juror may be interrogated concerning a verdict received the attention of this court in Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333, where it was stated:
“A juror may not be questioned or evidence received, for the purpose of challenging a verdict, as to what influenced the mental process of the jurors or concerning the mental process by which a verdict was reached.” (Syl. f 2.)
The trial court, in overruling plaintiff’s motion for new trial, filed a lengthy memorandum in which it found that the investigation by Cann constituted misconduct, but concluded that the substantial rights of the plaintiff were not prejudiced thereby because the misconduct did not inject extraneous matters into the case, but, if anything, simply confirmed the evidence.
Plaintiff, in urging that the misconduct of Cann constituted prejudicial error, relies on numerous decisions of this court, including Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339; Barajas v. Sonders, 193 Kan. 273, 392 P. 2d 849; Thomas, Administrator v. Kansas Power & Light Co., 185 Kan. 6, 340 P. 2d 379; and Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P. 2d 207, in which cases jury misconduct, either alone or in conjunction with other factors, required the granting of a new trial.
Conversely, the defendant, while not denying that Cann’s actions amounted to misconduct, asserts there is no showing that plaintiff’s substantial rights were prejudiced or affected thereby, and that pursuant to K. S. A. 60-261 errors or defects in the proceedings which do not affect the substantial rights of the parties must be disregarded. Defendant cites and relies on several of our decisions in which we affirmed the trial court’s denial of a motion for new trial on the question of misconduct of the jury. An examination of those cases, however, discloses a variety of factual situations quite unlike those of the instant case. Defendant particularly relies on what was said in Rudy v. Headley, 103 Kan. 417, 173 Pac. 913, in which it was stated that even if information gained by a juror from an independent investigation were regarded as evidence, it was only cumulative upon an unimportant feature of the case. In applying this reasoning to the instant case, defendant argues that Cann’s investigation related only to matters that were cumulative of the evidence already in the case and did not directly bear on the question of negligence of either party.
In Thomas, Administrator v. Kansas Power & Light Co., supra, the established rules relating to appellate consideration and review of rulings on a motion for new trial based on misconduct of the jury were stated and applied, and they are incorporated herein by reference as being equally applicable to the instant case.
The most recent pronouncement of this court on jury misconduct may be found in Kincaid v. Wade, supra, which involved an independent investigation by several members of the jury of the driving habits of one of the parties to the action. There, reference was made to a number of the same decisions cited and relied on by the plaintiff in the instant case. In holding that the misconduct of the jurors amounted to a denial of a fair trial, the court said:
“. . . where a member or members of the jury make, an independent investigation of a material issue of fact and report the results thereof to the jury during its deliberations, there is misconduct requiring an order granting a new trial. The reason for the rule is clear. A ‘fair trial,’ as the term is applied to judicial'proceedings, anticipates the right to object to the admission of evidence, cross-examine the witnesses and rebut the evidence introduced. All of this is denied where a juror makes an independent investigation of an issue of fact and reports to the jury in the secrecy of its deliberations. It might also be suggested that a party could hardly be said to have a trial by jury as that term is understood in American jurisprudence, if each juror was permitted to make an independent investigation of the facts.” (pp. 176, 177.)
No useful purpose would be served in detailing the evidence touching upon the alleged negligence of the defendant and alleged contributory negligence of the plaintiff. Cann’s own testimony, however, revealed his inspection of the bowling alley pertained to matters having a significant bearing on these issues. In fact, Cann admitted that the very reason he made the investigation was because of his dissatisfaction with some of the testimony he had heard in the courtroom. Under such circumstances it is difficult to suggest that plaintiff has had a fair trial.
Additional alleged misconduct by another juror, John Rupar, at the time of his voir dire examination, is pointed out by the plaintiff, although she frankly acknowledges it is not of the same magnitude as that of Cann. Since the voir dire examination was not recorded by the court reporter, we must resort to the affidavit of plaintiffs counsel, the contents of which are not denied, and the testimony of Rupar himself. During voir dire examination inquiry was made of all prospective jurors about whether or not any of them had ever been involved in any litigation. None responded in the affirmative. However, at the hearing on the motion for new trial Rupar testified that he had been a party plaintiff in an action filed in city court on a claim for property damage arising out of an automobile accident; that the case was settled; and that the defendant in that case was represented by a Mr. Palmer, but he did not know if it was the same Mr. Palmer who represented the defendant in the instant case. Counsel for the defendant, in his brief, admits he was the attorney involved in that case.
The alleged misconduct of Rupar presents a situation similar to that which arose in Kaminsky v. Kansas City Public Service Co., supra. There, two jurors failed to reveal prior lawsuits for personal. injuries in which they or their families were involved. Although admittedly there was additional misconduct of the jury shown that required a new trial, the court noted in its opinion that a prospective juror who gave a false or deceptive answer to a question pertaining to his qualifications resulted in counsel’s being deprived of further opportunity to determine whether or not the juror was impartial. Also, see Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194.
While Rupar’s misconduct may not be considered as of the same gravity as that of Cann, nevertheless it exemplifies conduct that does not lend itself to the fulfillment of the right of a litigant to trial by an impartial jury.
One other facet of the trial deserves serious attention, namely, the alleged misconduct of counsel. No record was made of the closing arguments. Again, we must refer to the affidavit of plaintiff’s counsel, which was attached to the motion for new trial. It states:
“. . . counsel for defendant stated in substance that it was notorious the verdicts that were given in Crawford County, Kansas, and that at long last Pittsburg was beginning to get industry to ease the economic situation and if a verdict was rendered in plaintiff’s favor it would be publicized far and wide and it would hurt the reputation of the citizens of Pittsburg as well as causing industry to go elsewhere; that despite objections of counsel for plaintiff, which were sustained, counsel for defendant continued such remarks to the jury; . . .”
Defendant’s counsel filed no counteraffidavit, so it must be assumed the affidavit substantially and correctly reflects the portions of the final argument of which plaintiff complains. The trial court, in its memorandum decision overruling the plaintiff’s motion for new trial, specifically noted that matters concerning public opinion had been improperly injected in the case by the defendant.
The general rules of law hereinbefore related and applied to misconduct of the jury also apply in large measure to misconduct of counsel. The permissible limits of closing argument were broadly defined in Taylor v. F. W. Woolworth Co., 151 Kan. 233, 98 P. 2d 114, in which it was stated:
“This court has consistently followed the general rule against imposing narrow and unreasonable limitations upon argument of counsel made to the jury. Counsel are entitled to comment freely upon the evidence, upon the credibility of witnesses where such comment is based upon facts appearing in the evidence, and to state their own views concerning the evidence. But countenance is not to be given to arguments based in no way upon the evidence or to appeals outside the record manifestly intended to create passion and prejudice on the part of the jury. . . . It is impossible to lay down any definite rule as to when an improper argument by counsel, objected to at the time, will be ground for a new trial, and the circumstances of each case are controlling (2R.C. L. 453). . . .” (p. 241.)
When error is alleged because of improper argument of counsel in which reference is made to clearly extraneous matters, and objection has been timely interposed, it is incumbent upon the court to ascertain the purpose and probable effect of such comments on the jury. If under the facts and circumstances the only purpose and probable effect of the comments were to produce a prejudicial attitude toward a litigant, a new trial may result. (Taylor v. F. W. Woolworth Co., supra.) Also, see Loftin v. City of Kansas City, 164 Kan. 412, 190 P. 2d 378, where a number of our decisions touching upon misconduct of counsel are reviewed.
While this court is not inclined to take out of context portions of a closing argument which might at first blush appear to be improper, nevertheless the argument of defendant’s counsel in this case goes beyond the bounds of propriety and transcends the latitude ordinarily permitted. Manifestly his statements refer to matters clearly outside the evidence, and under the circumstances were reasonably calculated, and their probable effect was, to produce a prejudicial attitude on the part of the jury toward the plaintiff. Our conclusion is somewhat strengthened by the fact that counsel continued his remarks even after objections thereto had been sustained.
The complete record has been carefully reviewed in light of well-established principles of law governing misconduct of a jury and misconduct of counsel. We are not unmindful of our many decisions that whether or not such misconduct constitutes reversible error is a matter for determination by the trial court, and that its ruling thereon will not be disturbed in the absence of a clear abuse of discretion. (Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597; Kaminski v. Kansas City Public Service Co., supra.) We acknowledge that a litigant is not entitled to a “perfect” trial but hasten to add that he is entitled to a fair trial. In analyzing this record it is unnecessary to isolate each charge of misconduct and determine whether or not it would justify the granting of a new trial; all the charges must be considered together in relation to the record in its entirety. In doing so, we find that the various acts of misconduct, both of the jury and counsel, have so permeated and tainted the entire proceedings that plaintiff has been deprived of the fair trial to which every litigant is entitled. Under the circumstances the trial court erred in overruling plaintiff’s motion for new trial.
In view of our disposition of the case, consideration of plaintiff’s first point on appeal is unnecessary. The judgment is reversed with directions to grant a new trial on all issues. | [
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Briscoe, C.J.:
Defendant Virgil Moon III appeals the trial court’s denial of his motions to modify his sentence, alleging abuse of discretion.
On October 6, 1987, Moon was charged with nine counts of felony theft (class E felonies) in connection with the theft of several pieces of equipment from his former employer. K.S.A. 21-3701(a). On February 8, 1988, Moon pleaded guilty to all charges and was sentenced to one to five years’ imprisonment on the first seven counts, with imposition of sentence on the last two counts suspended. The minimum sentence for a class E felony is one year and the maximum is not less than two nor more than five years. K.S.A. 21-4501(e). The trial court then granted Moon’s application for probation for a period of four years, subject to certain conditions including that he undergo alcohol and drug treatment and that he not violate the law in any manner.
On September 2, 1988, Moon was charged with misdemeanor possession of marijuana (K.S.A. 1989 Supp. 65-4127b). He was thereafter charged with violation of the terms of his probation imposed in the prior theft case and, after a hearing, his probation was revoked on May 4, 1989. On the same date, the court reinstated its previous sentence and set aside suspension of imposition of sentence on the last two counts. Moon filed a motion to modify his sentence in the theft case on May 8, 1989. On June 23, 1989, Moon pleaded guilty to marijuana possession as charged and was sentenced to 30 days’ imprisonment, to be served consecutive to the sentence on the theft convictions. On August 25, 1989, Moon also filed a motion to modify his sentence in the possession case. The two cases were consolidated in the trial court and, on September 1, 1989, the court denied both motions to modify.
We must first determine whether this court has jurisdiction to consider this appeal. The State contends the trial court’s decision is not subject to appellate review and cites State v. VanReed, 245 Kan. 213, 777 P.2d 794 (1989). In VanReed, the court restated the general rule that a decision denying probation following a guilty or nolo contendere plea is not subject to appellate review, but recognized an exception when appellate review is sought for a trial court’s denial of a motion for a presumptive sentence of probation under K.S.A. 1989 Supp. 21-4606a. The State argues 21-4606a does not apply to Moon’s sentencing for the nine felony counts because he had prior juvenile adjudications for theft and child abuse. The State also argues 21-4606a does not apply to the possession of marijuana charge because it was a misdemeanor.
The State misconstrues Moon’s appeal. He is not contending the trial court abused its discretion in failing to set forth factors sufficient to overcome the presumption of probation under 21-4606a. Moon is contending the court abused its discretion when it denied the motion to modify his sentence. Specifically, Moon argues the court abused its discretion by failing to follow the State Reception and Diagnostic Center’s (SRDC) recommendation that he be placed on probation as required by K.S.A. 1989 Supp. 21-4603(3)(a), which provides:
“Except when an appeal is taken and determined adversely to the defendant as provided in subsection (b) of this subsection (3), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public mill be jeopardized and that the welfare of the inmate will not be served by such modification.” (Emphasis added.)
This amendment to 21-4603(3), which became effective July 1, 1989, is similar in purpose to the legislatively created presumption of probation in 21-4606a and, like the denial of presumptive probation, a direct appeal may also be taken from the court’s rejection of an SRDC recommendation for sentence modification under 21-4603(3)(a). Accord VanReed, 245 Kan. at 215-17; State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986).
The interpretation and application of K.S.A. 1989 Supp. 21-4603(3)(a) has been a recurring appellate issue in recent months. The threshold question has been whether the 1989 amendment to the statute is substantive or procedural in nature and, consequently, whether the amendment applies prospectively or retroactively. The statute is silent as to whether it is to apply to offenses committed prior to its effective date. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes punishment for those acts; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). The issue of whether a statute is substantive or procedural is critical for purposes of determining the statute’s operative effect. As a general rule, a statute operates prospectively unless its language clearly indicates a contrary legislative intent. The general rule is modified and the statute is given retroactive effect where the statutory change is merely procedural or remedial in nature. State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268 (1989). The 1989 legislative amendment to 21-4603(3)(a) is a procedural change for a variety of reasons.
The rule prohibiting retroactive application of a substantive change in a criminal statute has its genesis in the constitutional prohibition against ex post facto laws. Article 1, Section 9, of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” In addition, Article 1, Section 10 provides: “No State shall . . . pass any ... ex post facto Law.” The United States Supreme Court has stated that the ex post facto prohibition forbids the enactment of any law which punishes an act which was not punishable at the time it was committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence. Miller v. Florida, 482 U.S. 423, 429, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987). For a criminal law to be ex post facto, the law must be retrospective; that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981); Nunn, 244 Kan. at 219. The amended sentencing statute at issue, K.S.A. 1989 Supp. 21-4603(3)(a), is neither impermissibly retrospective nor disadvantageous to the defendant.
As previously stated, as related to criminal law and procedure, the courts have employed the term “substantive law” to define those laws which declare what acts are crimes or prescribe punishment. Hutchison, 228 Kan. at 287. A substantive law is said to be retrospective if it “changes the legal consequences of acts completed before its effective date.” Weaver, 450 U.S. at 31. Application of the amended sentencing statute does not affect the legal consequences of the acts Moon committed before the effective date of the statute. The statute merely alters the trial court’s focus in considering a motion for modification of a sentence. Prior to the 1989 amendment, a district court could in its discretion modify a sentence within 120 days of sentencing. Under the present statute, the court must modify a sentence if the modification is recommended by SRDC unless the court satisfies the two-part test enumerated in the statute. The amendment does not declare an act criminal which was not before punishable as a crime.
As to the second factor, application of the 1989 amendment does not “disadvantage” a defendant by imposing a punishment which is additional to that originally prescribed. The 1989 amendment does not alter the penalty provisions applicable to underlying crimes. As applied to the present case, the penalty provisions applicable to felony theft and misdemeanor possession of marijuana were the same before the 1989 amendment was enacted as they were after its enactment. Further, application of the 1989 amendment arguably benefits a defendant. If modification is recommended by SRDC, the court must make the ad ditional findings set forth in the statute in order to overcome the presumption for modification.
From the foregoing, it is clear the 1989 amendment is not an ex post facto law. Therefore, the rule forbidding retroactive effect of a substantive change in a criminal statute has no application.
To reiterate, in this state a substantive criminal law is one which defines a crime and prescribes the punishment, whereas a procedural law is a law which regulates the steps by which one who violates a criminal statute is punished. Hutchison, 228 Kan. at 287. A statute which relates merely to the remedy or procedure and does not affect substantive rights is generally held to operate retroactively. Nunn, 244 Kan. at 218.
K.S.A. 1989 Supp. 21-4603(3)(a) provides that “any time within 120 days after a sentence is imposed . . . the court may modify such sentence . . . and shall modify such sentence if recommended by the state reception and diagnostic center.” (Emphasis added.) The statute comes into play only after a defendant has been charged, convicted, and sentenced. It acts to regulate the steps by which a defendant convicted of a crime is punished and therefore, by definition, is a procedural criminal law. The statute does not alter the punishment itself. This fact becomes particularly clear in cases in which SRDC has recommended probation. Probation is defined as a procedure whereby a defendant, found guilty of a crime, is released by the court after imposition of sentence, without imprisonment, subject to various conditions. K.S.A. 21-4602(3). Probation is separate and distinct from sentencing. State v. Dubish, 236 Kan. 848, Syl. ¶ 2, 696 P.2d 969 (1985).
We are mindful of the fact that another panel of this court recently determined the 1989 amendment to 21-4603(3)(a) is a substantive change which only operates prospectively to offenses committed after its effective date. State v. Marks, 14 Kan. App. 2d 594, 796 P.2d 174, rev. denied 247 Kan. 706 (1990). See State v. Sylva, 14 Kan. App. 2d 609, 795 P.2d 947, aff'd 248 Kan. 118, 804 P.2d 967 (1991). In Marks, the court found the 1989 amendment “materially limits the court’s sentencing discretion and is therefore substantive not procedural.” 14 Kan. App. 2d at 599. While it is true the amendment does limit the court’s sentencing discretion, that fact does not render the amendment sub stantive. A substantive law is one which makes an act criminal and prescribes the punishment for that act. Hutchison, 228 Kan. at 287. A law is not made substantive by the mere fact it alters the court’s discretionary authority to direct how the sentence will be served. The law at issue must affect the substantive rights of the defendant before retroactive application of the law is constitutionally impermissible. Miller v. Florida, 482 U.S. at 429; Weaver v. Graham, 450 U.S. at 29. The amendatory language in 21-4603(3)(a) does not prejudicially affect the defendant’s substantive rights.
Having concluded K.S.A. 1989 Supp. 21-4603(3)(a) applies retroactively to motions for sentence modification where the offense was committed before the effective date of the statute, the next issue is whether the trial court erred in failing to accept Moon’s interpretation of the SRDC recommendation. The SRDC recommendation states:
“Even though he is a marginal candidate for probation, we would support a community corrections program, which should be highly supervised and well structured. It should include formal inpatient drug and alcohol treatment, followed by attending NA meetings, in addition to his maintaining gainful employment. If the inmate is to remain incarcerated, he could benefit from substance abuse treatment and a work assignment, within the system. He could be a candidate for classes to obtain his GED certificate, and on-the-job training is also indicated.”
Moon interprets these statements as a recommendation of probation. We do not agree with this interpretation of the report.
The report contains equivocal language which is not consistent with the requirements of 21-4603(3)(a). The statute requires that the court follow the SRDC recommendation unless the court makes the two findings set forth in the statute. It naturally follows that a recommendation by SRDC must first be made. A statement such as “we would support a community corrections program” is not a clear recommendation of probation and is not sufficient to create a presumption for modification of sentence. Absent an unequivocal recommendation for modification by the SRDC, the court has discretion in modifying sentence and commits no error in refusing modification of sentence absent an abuse of that discretion. When determining whether a trial court abused its discretion, the test on appeal is whether no reasonable person would agree with the trial court. If any reasonable person would take the view adopted by the trial court, the decision must be upheld. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990).
Did the trial court abuse its discretion in denying sentence modification in this case? Moon was on probation following a guilty plea on nine counts of felony theft when he was charged with misdemeanor possession of marijuana. As a condition of probation, Moon had been ordered to undergo substance abuse treatment but did not complete such a program. He was also ordered not to violate the law but he was charged and convicted of possession of marijuana while on probation. The trial court’s refusal to modify Moon’s sentence was not an abuse of discretion.
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Brazil, J.:
Floyd M. Nugent appeals his conviction of robbery, K.S.A. 21-3426, claiming the court erred by failing to suppress the victim’s on-scene identification and all items seized from his van pursuant to a search incident to his arrest. Nugent claims that, although Officer Craig Caster may have had articulable suspicion to stop him, Caster’s actions exceeded that of a stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and constituted an arrest without probable cause. We affirm, finding no reversible error.
Dorothy L. Wages had opened the Texaco gas station at 7720 State Line Road in Prairie Village, Kansas. She heard someone enter the store. It was 6:39 a.m. Wages turned and saw a black male wearing a white baseball cap; a blue bandana covering the lower part of his face; a hooded, long-sleeved, blue sweatshirt; and fairly new blue jeans. The man’s left hand was in his sweatshirt pocket. The man said to Wages, “Give me your money.” Wages responded she could not open the cash register. He then said, “Give me your damn money,” and slammed his right fist on the counter. While Wages was opening the register, she pushed an alarm button that sounded at the police department. Wages removed the money from the register. She also removed two dollars that tripped an automatic alarm that also alerted the police. Wages handed the money to the man, who took it and exited the west door of the station. When he was leaving, Wages noticed he wore very white tennis shoes, which looked brand new. Wages watched the man head north towards the Southgate Financial Center. Texaco is situated on the west side of State Line just south of Cambridge Road. Southgate Financial is located across the street from Texaco on the north side of Cambridge^ on State Line. Wages estimated $85 to $95 had been taken. An audit showed $93 missing.
Police Officer Caster and Sergeant Ozorkiewicz, each in their own squad car, were about two blocks away from the Texaco station when the alarm went out. While the officers were en route to the Texaco station, the dispatcher informed them that an armed robbery had just occurred and a suspect described as a black male was running north through the Southgate parking lot on the west side. He was wearing a white cap, blue hooded sweatshirt, blue jeans, blue bandana, and white tennis shoes. They arrived at the scene about a minute after the dispatch. Ozorkiewicz went to Texaco, and Casier went to the Southgate parking lot.
Caster drove north through the lot then turned on the north end heading east. He saw a black van backed into the building on the north side facing north. It was the only vehicle in the lot. About one and a half to two minutes had elapsed from the first alarm until he saw the van. Caster drove by the van and looked in and saw a black man sitting inside with “a very worried look on his face.” The man was not wearing a shirt or cap. Caster continued past the van about 10 to 15 feet. He slowed to go back and look at the van, but the man had hurriedly driven away. Caster exited the lot onto State Line then turned onto 76th Street heading west. He approached the van, which was going east on 76th Street, activated his emergency lights, and stopped the van. The man quickly exited the van while Caster was still in his car. The man said, “What did I do?” He was wearing blue jeans and white tennis shoes. The left side of the man’s body was obscured from view. Caster got out of his car with his shotgun drawn, ordered the man (Nugent) down on the ground, and handcuffed him. He testified he did so for his safety. Nugent was on the ground for about 30 seconds. Caster then stood him up, and, at that time, Ozorkiewicz arrived with Wages to identify the man. Wages positively identified Nugent as the robber. At that time, Nugent was told he was under arrest. In a search incident to the arrest, police found a blue hooded sweatshirt, a whitish baseball cap, and a blue bandana under the driver’s seat. They also found a wad of money in small bills, surgical rubber gloves, and chrome pliers in the front pocket of the sweatshirt.
Nugent argues Caster’s actions exceeded a Terry stop and that the evidence seized must be suppressed since he was arrested without probable cause. The State responds the court’s denial of Nugent’s motion to suppress was correct as it was reasonable under the circumstances for Caster to display his shotgun and place Nugent in handcuffs before he was identified by the victim and arrested about 30 seconds later.
“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.” State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).
The Kansas stop and frisk rule is codified in K.S.A. 1990 Supp. 22-2402 and provides:
“Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the ques tioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.”
The Judicial Council Notes to 22-2402 cite Terry v. Ohio for justification for and limitations applicable to the power to search a person before an arrest. It cites in part:
“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”
A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies which justify its initiation. See Warden v. Hayden, 387 U.S. 294, 298-300, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). The search must be limited to that which is necessary for the discovery of weapons that might be used to harm the officer or others nearby. It may be characterized as something less than a “full” search, although it remains a serious intrusion.
A search under K.S.A. 1990 Supp. 22-2402 is justified if a law enforcement officer has prior knowledge of facts, observes conduct, or receives responses to the limited interrogation under subsection (1) that would cause the officer, in light of his experience, to reasonably suspect his personal safety is in danger. State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973).
“The only justification of a Terry search is the protection of police officers and others nearby.” State v. Webb, 13 Kan. App. 2d 300, 302, 769 P.2d 34 (1989). “Whenever a police officer accosts a person and restrains his freedom, he has ‘seized’ that person.” State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). A seizure, however, is only prohibited by the Fourth Amendment if it is unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985). The reasonableness of a search is determined by the trial court from the case facts and circumstances. State v. Jackson, 213 Kan. at 225 (citing Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623 [1963]).
In Terry, the court propounded a two-pronged test to assess the reasonableness of an investigative stop falling short of a full arrest. A court must determine whether the officer’s conduct was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place. 392 U.S. at 20. Kansas applies the same test. State v. Baker, 239 Kan. 403, 407, 720 P.2d 1112 (1986).
In the instant case, Officer Caster’s conduct was justified at its inception, which Nugent appears to concede. Caster was told, an armed robbery had occurred just one and a half to two minutes earlier and a black man was fleeing on foot in the Southgate parking lot. In addition, none of the businesses were open in the area, Nugent was the only person seen in the lot, and his was the only vehicle around. He had a “worried” look on his face when Caster saw him. Nugent’s only argument is that it was unreasonable for Caster to display his shotgun, order him to the ground, and handcuff him. Thus, the remaining issue is whether the second prong of the test was met.
The length of detention is a factor used to determine whether a seizure is so minimally intrusive as to be justifiable on reasonable suspicion. United States v. Sharpe, 470 U.S. at 685. In the instant case, the detention made with reasonable suspicion was only about 30 seconds. After that time, Wages identified Nugent as the robber, giving the police probable cause to arrest Nugent.
There is little guidance to determine what factors, beyond the length of detention, should be considered when determining whether the seizure can be justified. It appears Kansas permits handcuffing of a suspect during a Terry stop in light of State v. Baker, 239 Kan. 403.
In Baker, two Wichita police officers, Agnew and Tenbrook, were parked in separate patrol cars several blocks away from a gas station that had just reported an armed robbery. Both responded and traveled different routes to the station. En route to the station, Agnew encountered a white two-door Chevrolet Cavalier approaching from the opposite direction. Agnew shined his alley light on the car as they passed one another. He saw the car was occupied by three black males, each dressed in dark clothing. The dispatcher had described the robbers as two black males wearing black jackets and blue jeans.
Agnew turned his car around to stop the Cavalier and check its occupants. In the meantime, the car had turned at the next intersection, driven a short distance, and parked at a curb, shutting off its lights. Agnew pulled up behind the car and turned off his emergency lights and instructed the occupants to get out of the car. As they got out of the car, Tenbrook arrived and patted them down and handcuffed them. While Tenbrook was handcuffing the men, Agnew looked inside the car and saw a $10 bill lying between the seat and the door. On the passenger side of the car, he saw a large wad of money stuffed under the passenger’s seat and the barrel of a firearm protruding from under the seat. The men were then arrested. 239 Kan. at 405.
The appellants in Baker appealed their convictions, claiming the initial stop, their arrest, the search of the vehicle, and the admission of testimony and physical evidence were all improper under the Fourth Amendment. 239 Kan. at 406. The court held that the initial stop and subsequent arrest were legal and affirmed the trial court’s refusal to quash their arrest and suppress the evidence obtained incident to arrest. 239 Kan. at 409. The court in Baker, however, did not focus on the manner of the seizure. Instead, the issue before the court was whether the facts known to Agnew were insufficient to constitute the basis for a reasonable and articulable suspicion that the appellants had committed, were committing, or were about to commit a crime. 239 Kan. at 408.
In State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976), a Town and Country Market in Wichita, Kansas, was robbed at approximately 2:15 a.m. by two masked individuals. One wore a fatigue jacket and what appeared to be a gas mask and carried a sawed off shotgun. The other person wore a ski mask. Two police officers patrolling the area had seen the defendant leaving his house in that same area at about 2:00 a.m. They went to the defendant’s house at about 3:00 a.m., parked, and waited. In a few minutes, the defendant returned in his station wagon and was startled when the officers turned their lights on him as he drove by. He stopped and immediately got out and stood by his car. The officers then got out of their car and approached defendant with guns drawn. Officer Knard advised defendant there had been a robbery, told him to put his hands on the car, and proceeded to pat him down for weapons. Meanwhile, the other officer shined his flashlight into defendant’s car and saw two bills paperclipped together and what looked like a gas mask on the back floorboard. The officer told Officer Knard, who then handcuffed defendant and advised him of his rights.
On appeal, the defendant contended that, when the officers confronted him with guns drawn, it constituted an illegal arrest, since at that time they had only articulable suspicion, not probable cause.
Disagreeing, the court stated:
“When a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. City of Garden City v. Mesa, [215 Kan. 674, 678, 527 P.2d 1036 (1974)]. There can be a ‘seizure’ of a person in the Fourth Amendment sense even where there is no formal arrest. Terry v. Ohio, [392 U.S. at 16].
“ ‘Arrest’ as defined in the Kansas Code of Criminal Procedure contemplates more than the temporary restraint of a person by a law enforcement officer. Rather, it is the restraint of a person in order that he or she may be forthcoming to answer for the commission of a crime. See [K.S.A. 1975 Supp. 22-2202(3) and (7)].
“When Officers Meyers and Knard initially restrained the appellant, we believe their purpose was to temporarily detain him so as to investigate possible criminal behavior. Officer Meyers testified that Boone was initially restrained before he went around the car and looked into the windows, but that ‘we didn’t place him under arrest at that time. . . .’It was only after the officers observed items which appeared to implicate the appellant in the robbery that he was handcuffed and read his rights. It was at that point that his restraint satisfied the statutory definition of arrest.” 220 Kan. at 764.
We have found no other Kansas cases discussing handcuffing or pointing a gun at the subject of a Terry stop. There are, however, a number of other jurisdictions cited by the State where appellate courts held that handcuffing a suspect or pointing a gun at a suspect during a Terry stop was not unreasonable and did not convert the stop into an arrest.
The issue of whether police had actually made an arrest without probable cause instead of a Terry stop, due to the manner in which they confronted and detained defendant and his companions, was addressed in United States v. Merritt, 695 F.2d 1263 (10th Cir. 1982). The Merritt court chose not to focus on the degree of force used by police to determine the reasonableness of a stop. Those courts which do so, the court stated, “apparently assumed that at some point the show of force made by police conducting a stop becomes so great as to render it an arrest, regardless of the justification that may exist for the degree of force used.” 695 F.2d at 1274. The court reasoned, “It seems to us that to focus the analysis in this manner diverts attention from the court’s true concern in any Fourth Amendment case— whether the police conduct, in light of all the circumstances, was reasonable.” 695 F.2d at 1274.
A number of police were involved in the stop of Merritt. The SWAT team had been called in by Colorado police in an effort to locate an individual suspected of murder, who was believed to be heavily armed. After checking a residence he was known to frequent, police were told he was not there but would return soon. Police then noticed a white truck circle the block, and, upon returning, pull to the curb. The occupants crouched down in the truck. Two officers pulled their cruiser up behind the suspect’s vehicle, which was parked on the street. The officer driving the cruiser got out of it, rested a shotgun on the top of the car, and told defendant and the other two occupants of the truck to get out. At the same time, his partner approached the vehicle from the other side. 695 F.2d at 1267. Meanwhile, a third officer had walked to a point directly across the street from the truck. He also held a shotgun on the three suspects. The police ordered the suspects to the back of the truck. They were met by police, who told them to freeze. Shortly, there were 6 or 7 police cruisers at the scene and about 12 to 15 officers, 2 or 3 of whom carried shotguns. 695 F.2d at 1267. After the suspects identified themselves, police searched the truck with a flashlight and found a loaded .22 revolver protruding from under the driver’s seat. Merritt stated the gun was his, at which time he was arrested. 695 F.2d at 1267. In examining the reasonableness of the seizure, the court found the police conduct was justified by the need to ensure their own protection. 695 F.2d at 1272.
The same issue was examined in People v. Weeams, 665 P.2d 619 (Colo. 1983). About 1:15 a.m., Aurora police received a call reporting an armed robbery. The dispatchers described the suspects as two black males, 25 to 30 years old, approximately 5 feet 9 inches tall, wearing dark clothing and white tennis shoes. The suspects were reportedly armed. About 15 minutes later, Aurora police were notified of a second armed robbery just two and one-half blocks from the first robbery. In that robbery, one person was killed and another wounded. The suspects were described as two black males.
At 1:46 p.m., Officer Sloan of the Aurora Police Department entered the robbery area. He saw only two other vehicles, each occupied by a single white male. At the crime scene, he saw a vehicle occupied by two black males in their 20’s, wearing dark clothing. After following them for several blocks, he directed the vehicle to stop, using his public address system. The officers then called for back-up assistance and put the spotlight on the car. The vehicle’s driver was ordered out of the car. Sloan searched him for weapons, requested identification, and asked for an explanation of his presence in the area. The driver’s responses were inconsistent and suspicious. After the back-up officers arrived, Weeams was ordered out of the car, frisked for weapons, and handcuffed. A check of the car for further suspects revealed a sawed-off shotgun and a pistol in plain view on the back seat. Police also removed a wallet from Weeams that belonged to a victim of the second robbery. Both men were arrested. 665 P.2d at 621.
Weeams claimed police exceeded the permissible scope of the investigatory stop when the officer handcuffed Weeams, making it an arrest without probable cause. The Colorado Supreme Court reversed the trial court’s ruling that the police exceeded the permissible scope of the investigative stop. They reasoned that police conducting an investigatory stop may use that amount of force which is reasonably related in scope and character to ensuring their safety during the period of detention. The court found that a detainee’s belief he is not free to leave does not transform a stop into an arrest. The Weeams court, 655 P.2d at 622 (quoting United States v. Merritt, 695 F.2d at 1274), stated:
“ ‘We should not ask whether the force used was so great as to render it an arrest but, instead, whether the force used was reasonable. Whenever the police confront an individual reasonably believed to present a serious and imminent danger to the safety of the police and public, they are justified in taking reasonable steps to reduce the risk that anyone will get hurt. They should not be constrained in their effort to reduce the risk of injury or death simply because the facts known to them create a reasonable suspicion, but do not rise to the level of probable cause.’ ”
The court in United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982), also found the use of handcuffs during a Terry stop did not necessarily convert the stop into an arrest without probable cause. In Bautista, California police made a Terry stop of two armed robbery suspects who were on foot. As police got out of their car, Bautista approached them and volunteered he had just gone to a nearby house and asked the woman answering the door to call a cab. The officers frisked the men, and, although they found no weapons, both were handcuffed while one officer went to the house to check Bautista’s story. The officer testified he had noticed needle tracks on the suspect’s arm and, for his fellow officer’s safety, handcuffed the suspects. After verifying Bautista’s story, police questioned the suspects separately. Their answers were inconsistent and suspicious. The officer then arrested the suspects. 684 F.2d at 1288.
In denying the claim that the handcuffing constituted arrest without probable cause, the court stated:
“On the one hand, handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop. On the other hand, police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary. The purpose of the Terry frisk is to allow the officer to pursue his investigation without fear of violence.” 684 F.2d at 1289.
Courts in other jurisdictions consistently determine whether the manner of a seizure exceeds the scope of the Terry stop by looking at the reasonableness of the seizure under the circumstances. See U.S. v. Crittendon, 883 F.2d 326 (4th Cir. 1989) (police handcuffed a suspect during a Terry stop; the court held brief, although complete, deprivations of a suspect’s liberty do not convert a stop and frisk into an arrest if the methods of restraint used are reasonable under the circumstances); U.S. v. Hastamorir, 881 F.2d 1551 (11th Cir. 1989) (under the circumstances, it was reasonable for police to handcuff suspect); United States v. Kapperman, 764 F.2d 786 (11th Cir. 1985) (officer drawing his gun and directing two passengers to get out of the vehicle not unreasonable); United States v. Bautista, 684 F.2d at 1289; United States v. Jackson, 652 F.2d 244 (2d Cir. 1981) (officer acted reasonably when he drew his gun on approaching vehicle of armed robbery suspects); People v. Weeams, 665 P.2d at 622; People v. Waddell, 190 Ill. App. 3d 914, 546 N.E.2d 1068 (1989) (the handcuffing of defendant did not transform the Terry stop of defendant into an arrest).
In People v. Finlayson, 76 App. Div. 670, 675, 431 N.Y.S.2d 839 (1980), when an officer stopped armed robbery suspects, he got out of his police car carrying a shotgun, approached the suspects’ car pointing the shotgun at the two occupants, and ordered them to place their hands on the dashboard of the car. When the suspects complied, the officer radioed for a description of the armed robbers. 76 App. Div. at 673. The court held the appellant’s car was properly stopped, and the police conduct was reasonably related to the circumstances surrounding the encounter. 76 App. Div. at 681.
In the instant case, it was reasonable under the circumstances for Caster, who was alone, to get out of his patrol car with a shotgun pointed at Nugent, order him to the ground, and handcuff him before searching for weapons. When Nugent got out of the van, the left side of his body was concealed. Based on dispatched information, it was reasonable for Caster to believe Nu-gent was armed. Caster had a reasonable and articulable suspicion to detain and question Nugent since a robbery had occurred about two minutes before, a black man was described as fleeing on foot, Nugent is black and was the only person in the immediate vicinity, and he had a worried look on his face.
Nugent claims that Caster admitted he went beyond the limited stop and frisk contemplated by Terry and K.S.A. 1990 Supp. 22-2402, instead of making a full-blown arrest for his own safety. This court’s review of the record, however, shows Caster testified that the manner of his search was done for his personal safety and was in accordance with his training from the police academy.
K.S.A. 1990 Supp. 22-2402 permits an officer to search a person for dangerous weapons if the officer believes his or her personal safety requires it. This allows the officer to take the precautions the officer believes are reasonably necessary to protect his safety while he or she makes the search and briefly detains the suspect. The trial court did not err in refusing to suppress the eyewitness identification and evidence found in the search subsequent to arrest. When a defendant challenges the admissibility of evidence on the basis it was obtained by an unlawful search and seizure, the State has the burden of proving that the search and seizure was lawful. State v. Danko, 219 Kan. 490, 494, 548 P.2d 819 (1976). In the instant case, there is sufficient evidence for the court to have found the State sustained its burden in establishing the reasonableness of the search.
Affirmed. | [
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Knudson, J.:
The Alliance Fund, Inc., appeals the trial court’s award of income dividends and capital gains distributions on 683 shares of its stock owned by the Walter J. Klassen trust. The trust cross-appeals the disallowance of prejudgment interest.
The following issues are raised on appeal:
1. Whether the court erred in finding the trust had not sold or otherwise transferred the stock;
2. whether the court erred in finding this action was not barred by the applicable statute of limitations;
3. whether the court erred in allowing a money judgment against the fund based upon accumulated capital gains distributions and income dividends from 1959; and
4. whether the court erred in only allowing interest on income dividends from 1985 to the present.
We conclude the trial court correctly decided each issue and its decision is affirmed.
At the time of his death in 1956, Walter J. Klassen owned and held in his name shares of stock in Chemical Fund, Inc., which is now The Alliance Fund, Inc. (Fund). Upon probate of his estate, the shares were transferred and delivered to the trustees of a testamentary trust he had established.
The Fund is described by the litigants as an “open-end, diversified investment company or mutual fund registered with the federal Securities & Exchange Commission [S.E.C.] under the Investment Company Act of 1940, 15 U.S.C. § 80a-1, et seq.” Its capital gains distributions are automatically reinvested to purchase more shares in the Fund unless the shareholder elects in writing to have the disbursement in cash. Conversely, the Fund pays income dividends which are disbursed in cash unless the shareholder elects in writing to have the dividends reinvested in shares of stock. The trust at no time filed a writing that would have changed the method of disbursements.
The trust has in its possession 683 shares of stock in the Fund held since December 29, 1959. The last receipt by the trust of a reinvested capital gains distribution was of 21 shares on December 29, 1959. Shortly thereafter, on January 12, 1960, the trust received $2.06, which was a fractional cash payment of the capital gains distribution after the automatic reinvestment by purchase of whole shares.
The inexplicable then occurs — for a period of 23 years there is a blackout of communication or correspondence between the Fund and the trust. The trust apparently made no inquiries of the Fund, and the Fund neither credited nor paid the trust any of the capital gains distributions or income dividends that were declared through the years.
In a financial statement on February 22, 1983, Ray C. Wagner, then trustee, indicated he had written to the Fund’s research department in an effort to discover what had occurred with the stock. He had not then received a reply and the record is silent as to whether one was ever received or that he further pursued the matter. The current trustee, Carolee Sauder Leek, wrote the Fund on January 15, 1985, regarding liquidating the stock held in the Fund. On June 22, 1988, the Fund indicated it would not pay accrued distributions and dividends on the 683 shares of stock. The trust then filed this litigation on June 7, 1989.
The trial court allowed the plaintiff’s claim for accrual of all capital gains distributions, which, including two stock splits and reinvestment, would be the current value of 10,857 shares totaling $61,667.76. All income dividends were awarded, which amounted to $13,863.66, including $154.01 as a capital gains remainder. Finally, prejudgment interest was allowed from 1985 on the income dividends, totaling $5,731.74.
Sale or Other Transfer of Stock
The trust has in its possession seven certificates of stock representing 683 shares held since December 29, 1959. Nevertheless, the Fund contends the preponderance of evidence establishes the stock must have been sold or otherwise transferred by the trust.
This litigation was submitted to the trial court upon written stipulations and documentary evidence. It is therefore subject to de novo review by this court. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 744 P.2d 840 (1987); In re Estate of Moe, 11 Kan. App. 2d 244, 246, 719 P.2d 7, rev’d on other grounds 240 Kan. 242 (1986).
The Fund asserts that, because it paid dividends through 1959, trust records projected sale of the stock in 1964, and there was no inquiry by the trustee from 1960 until 1983, it was entitled to a presumption that the stock was sold or otherwise transferred. We do not agree.
K.S.A. 17-6408 states in part, “The shares of a corporation shall be represented by certificates.” Although there is no case law in Kansas directly on point, several jurisdictions have appropriately concluded possession of stock certificates is evidence of ownership and control over the stock. Holly Sugar Corporation v. Wilson, 101 Colo. 511, Syl. ¶ 1, 75 P.2d 149 (1937); Zamore v. Whitten, 395 A.2d 435, 443 (Me. 1978); Yeaman v. Galveston City Company, 106 Tex. 389, Syl. ¶ 3, 167 S.W. 710 (1914).
Here, the trust holds seven stock certificates in the Fund, representing 683 shares of stock. In an accounting filed on January 22, 1964, upon the resignation of a trustee, all of the stock certificates were listed as assets of the trust. There are no orders or journal entries from the probate court approving or authorizing a sale of the stock. Although the financial statement for 1963 and 1964 estimated profit from the sale of mutual fund shares, no other documentation exists that the stock was, in fact sold. It is significant that the trust held mutual shares in other companies. Thus, we cannot conclude from this one notation that the reference was to the stock holdings in issue.
The Fund asserts sale or transfer of the stock as a defense to the claims of the trust. The general rule is that “the burden of proof is upon the party asserting the affirmative of an issue.” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). See In re Estate of Robinson, 236 Kan. 431, 439, 690 P.2d 1383 (1984). The Fund contends it was entitled to a presumption of sale or transfer of the stock by the trust. This assertion is without merit for several reasons. First, there is no such presumption as that term is defined under K.S.A. 60-413. At best, we believe the argument is that an inference of sale or transfer must be entertained based upon the evidence presented. Second, possession of the stock certificates does give rise to a rebuttable presumption of ownership that the Fund must overcome. The Fund presented no affirmative evidence from its corporate books or records demonstrating that there had been cancellation or transfer of certificates held by the trust. It relied entirely upon the single notation from the trust’s financial statement for 1963 and 1964 and the passage of 23 years without inquiry by the trust. We do not find the Fund’s evidence to be persuasive. We previously noted the notation upon the financial statement does not refer to any particular stocks. Standing alone it has scant probative value, if any. Finally, the mere passage of time, albeit a considerable period of time, is in and of itself insufficient to rebut a presumption of ownership based upon continuous possession of the stock certificates. The trial court was correct in its finding that the trust was the owner of the stock.
Statute of Limitations
The Fund contends this court must decide the following: which state’s statute of limitation applies, whether the three-year or five-year statute is applicable, and when the statute of limitations begins to run. However, the parties appear to agree, and we concur, that the Kansas statute of limitations is applicable. Wortman v. Sun Oil Co., 241 Kan. 226, 755 P.2d 488 (1987), aff'd 486 U.S. 717, 100 L.Ed.2d 743, 108 S. Ct. 2117 (1988). We also believe our conclusion as to when the statute of limitations begins to run makes moot the issue of which statute of repose would be applicable.
There is no direct authority in Kansas addressing this issue. In other jurisdictions there is a split of authority, with most favoring the requirement of a demand and refusal before the statute of limitations begins to run. One commentator stated:
“It is the general rule that the statute begins to run when the cause of action accrues, or, in other words, from the time when the dividend becomes payable. Some courts hold that if the dividend is not payable on any specified day, and is therefore payable on demand, the statute does not begin to run until demand and refusal, . . . and in at least one state this is the rule even where the dividends are payable on a specified date.” 11 Fletcher, Cyclopedia of the Law of Private Corporations § 5370 (perm. ed. 1986).
The Fund cites two cases in support of its position that the statute of limitations begins to run when the dividend is declared. See Winchester & Lexington Turnpike Co. v. Wickliffe’s Adm'r., 100 Ky. 531, 38 S.W. 866 (1897); Jacques v. White Knob Copper and Development Co., 260 App. Div. 640, 23 N.Y.S.2d 326 (1940). The reasoning for this position is that, once a dividend has been declared, the stockholder may demand and receive payment. In Winchester, the court agreed that, before a suit could be maintained, demand had to be made upon the corporation for payment. 100 Ky. at 536. Failure to make a demand, however, was held not to extend the statute of limitations. In accord with the above-cited cases, the Fund also cites Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 746, 457 P.2d 1 (1969). It was held in Freeto that “[a] cause of action for breach of an express warranty accrues at the time of the breach which, under the facts appear ing in the record, occurred at the time of the sale and delivery of the subject of the express warranty.” Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, Syl. ¶ 3. We perceive Freeto to have little relevance to the case at bar as it is factually dissimilar and not instructive as to when a breach occurs for failure to pay declared dividends.
Far more jurisdictions hold a contrary view from the cases cited by the Fund. See Schneider v. Union Oil Co., 6 Cal. App. 3d 987, 86 Cal. Rptr. 315 (1970); Holly Sugar Corporation v. Wilson, 101 Colo. 511; Boston & Roxbury Mill Corp. v. Tyndale, 218 Mass. 425, 105 N.E. 982 (1914); Kobogum v. Jackson Iron Co., 76 Mich. 498, 43 N.W. 602 (1889); Philadelphia, Wilmington, and Baltimore Railroad Co. v. Cowell, 28 Pa. 329 (1857); Yeaman v. Galveston City Company, 106 Tex. 389; Morey v. Fish Bros. Wagon Co. and another, 108 Wis. 520, 84 N.W. 862 (1901). In Yeaman, the court expressed the rationale for requiring both a demand and refusal before the statute of limitations begins to run.
“The holding of these authorities is upon the principle that the trusteeship of a corporation for its stockholders is that of an acknowledged and continuing trust .... There can be no substantial difference between the trusteeship of a corporation as it relates to the stock of a shareholder and its duty to him in respect to the profits or divide nds upon his stock. He is under no obligation to draw or demand his dividends within any prescribed period. He may leave them with the corporation if he chooses, and be under no default. The debt which a declared dividend creates on the part of the corporation to the stockholder, is one payable only on demand, as it is the obligation of a bank to its depositors. It is not subject to limitation until there has been a demand upon the corporation and a refusal to pay. [Citation omitted.]” 106 Tex. at 426.
The reasoning is that, although a stockholder may demand payment once a dividend has been declared, there is no breach until the corporation refuses to pay.
The concept of “demand and refusal” in contract actions is not foreign to Kansas jurisprudence. In Rex v. Warner, 183 Kan. 763, 332 P.2d 572 (1958), an action was brought to enforce a contract. The Supreme Court stated:
“[A]n action upon a contract not in writing must be commenced within three years after the cause of action shall have accrued. Generally speaking, a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement. [Citation omitted.] Stated differently, an obligation must exist upon one party in favor of the other, the performance of which is refused.” 183 Kan. at 769.
See Missimore v. Hauser, 130 Kan. 20, 285 Pac. 558 (1930); Green v. Williams, 21 Kan. 64 (1878).
We believe the majority view requiring refusal before a cause of action arises to enforce the distribution of corporate dividends payable on demand is sound and should be adopted by this court. The parties have stipulated that the trust first inquired about liquidating the shares on January 15, 1985. The Fund refused to pay accrued distributions and dividends on June 22, 1988. Thus, the suit was timely filed on June 7, 1989, within either the three- or five-year statute of limitations, since refusal commenced the running of the statute.
Accumulated Capital Gains Distributions and Income Dividends
The Fund argues that allowing the trustee to recover on accumulated capital gains distributions and income dividends on those distributions creates facts not in evidence. It contends there are only 683 shares of stock and the corporation never issued any more to the trust. It further contends such an award is in conflict with the rule that claims for dividends do not bear interest until demand is made. In addition, the Fund alleges the award is inconsistent with the court’s ruling as to the allowance of interest on income dividends.
These arguments are without merit. Allowing an award based upon accumulated capital gains distributions and income dividends actually. declared by the Fund is not tantamount to an award of interest. As indicated in the written stipulation of facts, the reinvestment of capital gains in shares of stock was automatic unless requested otherwise by the shareholder in writing. Therefore, by finding capital gains distributions and income dividends were due from 1960, when the Fund quit paying, the award was consistent with the Fund’s stated policy and the intent of the parties. The trustee was only receiving what it would have been entitled to had the Fund fulfilled its obligation to the trustee. The fact that the shares had not been issued is no defense to the Fund’s liability. This lawsuit was filed precisely for that reason. The number of shares to which the trustee is entitled is readily ascertainable and does not require the court to rely on a fact not in evidence. For these reasons, the trial court’s award of accumulated capital gains distributions and income dividends was proper.
Interest Allowable on the Income Dividends
The trial court allowed interest on the income dividends only from the date demand was made on the Fund for payment. On cross-appeal, the trustee contends interest should have been recoverable from the date dividends were declared.
Although there is authority for both positions, we believe the facts of this case warrant a conclusion that interest should only be allowed from the date demand was made upon the Fund, rather than from the date income dividends were declared.
“When a stockholder demands payment of a dividend, and it is refused, he is entitled to recover interest from the time of such demand and refusal, but he is not entitled to interest before a demand and refusal, in the absence of an express or implied agreement to the contrary.” 11 Fletcher, Cyclopedia of the Law of Public Corporations § 5372 (perm. ed. 1986).
There is also persuasive case law of the same view. Railroad Credit Corporation v. Hawkins, 80 F.2d 818 (4th Cir. 1936); Perkins v. Benguet Cons. Min. Co., 55 Cal. App. 2d 720, 132 P.2d 70 (1942); Yeaman v. Galveston City Company, 106 Tex. at 426.
The income dividends were not subject to automatic reinvestment as were the capital gains distributions. Nor is there evidence of any express or implied agreement between the Fund and its stockholders that would suggest that the dividends should be considered due prior to a demand. Thus, it is logical to require a demand before interest would accrue on the dividends.
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Brazil, J.:
Dr. Bibiano B. Ouano, Jr., appeals from a jury’s finding of negligence in a medical malpractice action against him. Ouano claims the trial court erred in failing to measure damages by diminution of chance to survive and in failing to instruct on loss of chance causes of action and that he was entitled to judg ment as a matter of law based on the verdict in his first trial. We affirm.
In March 1985, Faust Donnini, a 55-year-old pharmacist, experienced an episode of gross hematuria (blood in the urine). That day, he saw his family doctor and employer, Lawrence Richard Will, a general practitioner, because of the hematuria. Will hospitalized Donnini at the Wellington Hospital and Clinic. He then consulted Ouano.
There is a medical principle in urology that a man in his mid-fifties who has hematuria is presumed to have cancer until proven otherwise. Standard procedure calls for a doctor to look for a tumor in the bladder, ureter, or kidney.
After taking a history and performing a physical examination, Ouano performed a cystoscopy, which is the one test to determine if there is a tumor in the bladder. The cystoscopy was later determined to be negative. An intravenous pyelogram (IVP) was also performed on Donnini that was negative. The IVP is the only test used to find a tumor in the ureter. The IVP is also a preliminary test used to check for a tumor in the kidney. The second test used for examination of the kidney is the retrograde pyelogram. Ouano originally intended to perform a retrograde pyelogram at the same time he was performing the cystoscopy; however, he decided not to perform the retrograde pyelogram. Ouano next recommended a sonogram and CT scan be performed. Both tests were negative for a tumor. The sonogram indicated the presence of a cyst in the lower pole of the left kidney.
There is conflicting testimony as to what happened after the tests were completed. Donnini’s wife, Elnora, and Will both testified that Ouano attributed the bleeding to a cyst and recommended nothing other than monthly sonograms to monitor the cyst. Ouano testified he told Will that all the tests should be repeated. The hematuria stopped within a few days, and Donnini was released from the hospital.
Donnini experienced a second episode of the hematuria in August 1985. Will hospitalized him August 10-11, 1985, at the Wellington Hospital. Ouano was not consulted at that time. Donnini had an arteriogram performed on August 26, 1985, the results of which were negative.
Ouano testified he sent a notice to Donnini in July 1985. El-Miora, however, testified that the only recall notice they ever received arrived after Donnini had seen another doctor and had been diagnosed as having transitional cell carcinoma. In late February or March 1986, Will referred Donnini to Dr. Oral E. Bass II, a urologist in Wichita, who made the diagnosis of kidney cancer. Donnini was treated for the disease unsuccessfully and died April 14, 1987.
Elnora Donnini and the Estate of Faust Donnini sued Ouano for the wrongful death of Donnini. Elnora contended Ouano departed from the standard approved medical practice. The decedent’s family proceeded to trial against Ouano on two alternative theories. First, they proceeded on the theory that Ouano’s negligence was the probable cause of decedent’s injuries and death. Second, they proceeded on the theory that Ouano’s negligence deprived the decedent of a substantial possibility of recovery from the cancer.
After a trial in 1989, a jury found Ouano 42.5 percent at fault in the death of Donnini. It found Will 42.5 percent at fault and Donnini 15 percent at fault. It further found Donnini would have had an appreciable chance of survival jf he had received proper medical treatment from Ouano, but that Ouano’s actions were not a substantial factor in causing the death of Donnini. The jury determined Donnini’s chances for survival if he had received proper medical care from Ouano to be 50 percent and found Donnini’s chances for survival under the care actually given by Ouano to be 50 percent. The court awarded damages in the amount of $293,693,10, which is 41.7 percent of the total amount of damages avyarded Elnora by the jury.
Elnora moved to reform the verdict form; to grant judgment notwithstanding the verdict; or, in the alternative, to grant a new trial. She claimed the verdict form conjtained answers that were inconsistent with one another mid with the evidence. After hearing arguments and considering briefs filed in the matter, the court ordered that a new trial be conducted on the issues of liability alone. On April 25, 1990, after a second trial on the matter, the jury found Ouano to be 41.7 percent at fault, Wifi 43.7 percent at fault, and the decedent 14.6 percent at fault. It also found Donnini’s chances for survival had he received proper medical care to be 55 percent and that he had 0 percent chance of survival under the care actually given.
Ouano claims that in a cause of action based on a diminution of a chance to survive a plaintiffs verdict must be reduced by the percentage of chance of survival lost by reason of plaintiffs conduct. Elnora responds that this is not a “loss of chance” case but rather a traditional survival/wrongful death case, although both theories were alternatively presented to the jury.
Ouano is asking this court to determine the legal effect of the jury’s findings. “This court’s review of conclusions of law is unlimited.” Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
In a negligence action, the plaintiff must normally prove the negligent act was a cause in fact of the plaintiffs injury. See Little v. Butner, 186 Kan. 75, 79, 348 P.2d 1022 (1960). In State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P.2d 355 (1935), the court defined legal cause as the invasion of some legally protected interest of another for which the actor is held responsible for the harm. The act or omission must be a “substantial factor” in bringing about the harm. 141 Kan. at 165.
Kansas follows the definition of legal cause found at Restatement (Second) of Torts § 431 (1965):
“The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”
Comments a and b of the Restatement (Second) of Torts § 433 B (1965) provide:
“a . . . [I]n civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
“b The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than it was not.”
In the instant case, the jury found Ouano’s negligence was the cause in fact of Donnini’s death. This finding is demonstrated in the special interrogatory answers that Donnini’s chances for survival under Ouano’s care as given were 0 percent as compared to a 55 percent chance of survival had he received proper medical care. Thus, the jury found it was more likely than not that Ouano’s conduct was a substantial factor in bringing about the harm. This finding is supported by the opinion testimony that Donnini may have had a greater than 90 percent chance of survival had Donnini’s illness been diagnosed in March 1985. The finding also shows the jury found negligence under traditional survival/wrongful death law not “loss of chance” as contended by Ouano.
The “loss of chance” rule is an exception to the normal requirement of proving causation. In Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984), the court recognized the “loss of chance” cause of action applies when a doctor’s negligence eliminates or substantially reduces a patient’s chance of survival. The court held that the substantial factor test rather than the but for test is the proper test for causation. 235 Kan. at 1010-13.
In Roberson, the decedent had a long history of heart problems. He went to his chiropractor complaining of pain in his left shoulder and left side. Despite the doctor’s knowledge of the decedent’s heart condition, he diagnosed a neuromuscular problem, performed two chiropractic adjustments on the decedent, and failed to refer him to a medical specialist. The decedent died of a heart attack that evening. The experts testified in essence that, as a matter of statistical probability, the defendant’s negligence was not the cause of the decedent’s death. One expert testified the defendant’s negligence increased the decedent’s chance of mortality from 19 percent to 25 percent, or conversely reduced his chance of survival from 81 percent to 75 percent. Another expert testified that the decedent had only a 40 percent chance of survival and no chance of survival by the time decedent had his heart attack. 235 Kan. at 1020-21.
Ouano argues the jury’s finding that Donnini had a 55 percent chance of survival if treated properly shows this is a loss of chance case. He argues the jury’s finding of a 55 percent chance of survival was Donnini’s chance of surviving cancer, not the raw likelihood that Ouano caused Donnini’s death.
Ouano relied on Boody v. U.S., 706 F. Supp. 1458 (D. Kan. 1989), as support for his argument. Boody was a loss of chance case where a doctor failed to diagnose cancer. The plaintiffs cancer was misdiagnosed, and she was deprived of a 51 percent chance of surviving five years. She was not deprived of a 51 percent chance of being cured. 706 F. Supp. at 1465.
In comparison, the jury’s finding in the instant case on percentage of chance of survival is not limited to five years. Bass testified that, in March 1985, Donnini probably had a grade II, stage O, A, or B tumor, which has a good prognosis. By the time cancer was diagnosed, Donnini had a grade II, stage D tumor that had metastasized. Tumors are graded from I to IV. This indicates the tumor’s rate of growth. Stage indicates the size of the tumor and where it is located. The stage increases as the tumor grows into deeper layers of tissue. Bass testified that a patient living five years is probably cured of the tumor for which he has been treated. Thus, Donnini had a greater than 50 percent chance of being cured according to Bass’ testimony.
A cause of action in which the patient had a greater than 50 percent chance of surviving does not fall under the causation rule from Roberson. The Boody court stated: “Roberson is part of a growing number of courts to adopt this type of causation test and recognize a cause of action for a less than even chance of survival.” (Emphasis added.) 706 F. Supp. at 1463.
Ouano claims Elnora should only be compensated for the percentage of chance of living or surviving that Donnini lost. Since this case was determined under traditional negligence causation rules, it is not necessary to determine how damages should be measured in a diminution of chance to survive action.
Ouano claims that the trial court erred by failing to inquire of the jury in the second trial (1) whether the decedent had an appreciable chance to survive had he received proper treatment from Ouano and (2) whether Ouano was a substantial factor in causing the decedent’s death. Ouano claims the failure prevents the court from determining if Elnora met her burden of proof. Elnora responds that the questions presented to the jury met the requirements of Kansas law.
The special verdict in the second trial was as follows:
“1. Do you find any of the parties to be at fault?
Yes X NO_ __
(Number of jurors in agreement
“2. If you answer question Number 1 yes, then considering all of the fault at one hundred percent, what percentage of the total fault is attributable to each of the parties?
Lawrence Will, D.O. (0% to 100%) 43.7%
Bibiano B. Ouano, Jr., M.D. (0% to 100%) 41.7%
Faust Donnini (0% to 100%) 14.6%
Total 100%
(Number of jurors in agreement 12)
“3. What do you find, as a percentage of one hundred, were Faust Donnini’s chances for survival, if he had received proper medical care?
55%
(Number of jurors in agreement 12)
“4. What do you find, as a percentage of one hundred, were Faust Donnini’s chances for survival under the care actually given? 0%
(Number of jurors in agreement 12)”
As Elnora points out, the jury was asked to determine whether Donnini had an appreciable chance of survival when it was asked to answer question number three. It was asked to determine whether Ouano was a substantial factor in injuring decedent when it was asked to answer question number four.
In addition, the court’s instruction number eight required that, before the jury could find a party at if alt, it must find: “1. That Faust Donnini would have had an appreciable chance of survival if the tumor had been diagnosed and treated in March, July or August of 1985; and 2. That the failure to diagnose the tumor was a substantial factor in causing the death of Faust Donnini.”
By finding Ouano at fault, in light of instruction number eight, the jury must have found Donnini would have had an appreciable chance of survival with proper medical care and that Ouano’s negligence was a substantial factor in causing Donnini’s death.
The trial court also instructed the jury on the definitions of “appreciable chance of survival” and “substantial factor.” The court instructed;
“As used in this instruction an ‘appreciable chance of survival’ is one which is capable of being estimated, weighed, judged of, or recognized by the mind. As used in this instruction a ‘substantial factor’ must be distinguished from a factor which had a merely negligible effect in causing Faust Donnini’s death. That is, did it have such an effect in contributing to the death of Faust Donnini as would lead you as reasonable persons, to regard it as a cause of the death of Faust Donnini. There may have been more than one ‘substantial factor’ in causing the death of Faust Donnini.”
“It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986).
In the instant case, Ouano’s arguments are without merit. The trial court did inquire of the jury regarding whether Donnini had an appreciable chance to survive with proper treatment and whether Ouano’s negligence was a substantial factor in causing Donnini’s death.
Finally, Ouano claims the jury’s answers to questions three, four, five, and six in the first trial are consistent and, thus, a new trial was not warranted. The special verdict in the first trial was as follows:
“We the jury present the following answers to the questions submitted by the Court:
“1. Do you find any of the parties to be at fault? _
Yes X No. .
(Number of Jurors in agreement 12)
“2. If you answer question number 1 Yes, then considering all of the fault at one hundred percent, what percentage of the total fault is attributable to each of the parties?
Lawrence Will, M.D. (0% to 100%) 42.5%
Bibiano B. Ouano, Jr., M.D. (0% to 100%) 42.5%
Faust Donnini (0% to 100%) 15 %
Total 100%
(Number of Jurors in agreement 11)
“3. If you find any fault on the part of Dr. Ouano, would Faust Donnini have had an appreciable chance of survival if he had received proper medical treatment from Dr. Ouano?
Yes X No. _
(Number of Jurors in agreement 12) _
“4. Do you find that the actions of Dr. Ouano were a substantial factor in causing the death of Faust Donnini?
Yes _, No. X
(Number of Jurors in agreement 12)
“5. What do you find, as a percentage of one hundred, were Faust Donnini’s chances for survival, if he had received proper medical care from Dr. Ouano? 50%
(Number of Jurors in agreement 12)
“6. What do you find, as a percentage of one hundred, were Faust Donnini’s chances for survival under the care actually given by Dr. Ouano? 50%
(Number of Jurors in agreement 12)”
Special verdicts must be consistent with one another and with the general verdict. See, e.g., Knape v. Livingston Oil Co., 193 Kan. 278, 280, 392 P.2d 842 (1964). Under K.S.A. 60-249(a), “a jury’s findings on the essential issues submitted by way of special verdicts must be certain and definite, and must not be conflicting or inconsistent.” Rohr v. Henderson, 207 Kan. 123, 130, 483 P.2d 1089 (1971). To determine whether the findings are inconsistent, “the findings are to be construed in the light of the surrounding circumstances and in connection with the pleadings, instructions and issues submitted.” 207 Kan. at 130. “Special findings are to be liberally construed on appeal and interpreted in the light of the testimony with the view of ascertaining their intended meaning.” Bott v. Wendler, 203 Kan. 212, 218, 453 P.2d 100 (1969).
The court in Reed v. Chaffin, 205 Kan. 815, 819-20, 473 P.2d 102 (1970), found special findings patently inconsistent where one finding showed a right to an award of damages and the other showed the contrary. Where answers are so inconsistent as not to warrant the trial court entering judgment on the jury’s special verdict, a new trial should be granted. See Rohr v. Henderson, 207 Kan. at 130.
In the instant case, the trial court granted a new trial after hearing arguments and briefs by counsel on Elnora’s motion to reform judgment or grant a new trial. Although the record does not indicate the court’s specific.findings, it was correct in granting a new trial, as the jury’s findings were inconsistent. Some findings showed a right to an award of damages while others showed the contrary. Furthermore, this court cannot override the decision of the trial court which has specifically found the answers presented by the jury are not approved or accepted. Collett v. Estate of Schnell, 194 Kan. 75, 80, 397 P.2d 402 (1964). The trial court rejected the special verdict by granting a new trial.
Ouano also argues the jury’s completion of the damage categories indicates no award of those damages to Elnora., Ouano is correct in part; however, because other findings show Elnora is entitled to damages, an inconsistency exists on the findings.
Elnora also claims Ouano acquiesced in the trial court’s granting of a new trial and cannot now challenge the trial court’s order granting that trial. As Ouano points out, however, an order granting a new trial is generally not appealable as a final judgment. Brown v. Fitzpatrick, 224 Kan. 636, 638, 585 P.2d 987 (1978). The only exception recognized is where an order granting a new trial under K.S.A. 60-259(e) is challenged on jurisdictional grounds. 224 Kan. at 638. Thus, Ouano did not acquiesce in the trial court’s granting of a new trial.
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Lewis, J.:
This is an appeal from the order of the district court granting summary judgment to the City of Lenexa (City). The action, instituted by the City, sought the forfeiture of a 1978 Chevrolet Caprice automobile and $694.51 in United States currency. The owner of the property sought to be forfeited is Harold R. Witterstaetter, Jr.
Harold was arrested in August 1989 while driving the above-described automobile. The initial arrest was for driving with a suspended license. Unfortunately for Harold, the search incident to that arrest revealed that within the confines of the automobile was a quantity of cocaine. The search also yielded $694.51 in U.S. currency, also located in the automobile and which is part of the subject matter of this action.
Harold was charged with certain violations of the law which related to his alleged possession of drugs and contraband as mentioned above. We do not know the outcome of those criminal charges or, indeed, whether they are still pending. However, the outcome of the criminal proceeding is largely irrelevant to our decision in the instant matter. It has been held that, unless the forfeiture statute specifically requires it, a criminal conviction is not a prerequisite to forfeiture. State v. One 1978 Chevrolet Corvette, 8 Kan. App. 2d 747, 749, 667 P.2d 893 (1983).
During the pendency of the criminal charges against Harold, the City filed the current proceedings seeking forfeiture of the automobile and currency. These proceedings were filed pursuant to K.S.A. 1990 Supp. 65-4135.
In its pursuit of the forfeiture action, the City served on Harold certain interrogatories, requests for production, and demands for admission of facts. Harold’s reaction to the service of these documents was to completely ignore the discovery process. He did not respond to the requests for discovery either by answering or objecting to the written requests and demands.
The district court conducted a discovery conference in this matter in which counsel for Harold is shown as having appeared. At this conference, the court set the date on which discovery would end and set a trial date. A pretrial conference was also held and, again, the record indicates that counsel for Harold participated.
Ultimately, the City filed a motion for summary judgment, arguing that the facts stated in its demands for admissions were to be deemed admitted by reason of Harold’s failure to admit, deny, or object to those demands. Harold’s response to the motion for summary judgment was to contend that motions for summary judgment simply were not available in cases for forfeiture brought pursuant to chapter 65 of the Kansas Statutes Annotated.
The district court granted the City’s motion for summary judgment, and Harold appeals.
Harold argues that the provisions of chapter 60 of the Kansas Statutes Annotated do not apply to actions brought under chapter 65. The issue raised by Harold is one which has not been answered directly by the courts of this state.
After review, we conclude that the provisions of chapter 60 do indeed apply to chapter 65 forfeiture proceedings and, accordingly, we affirm.
The question is whether summary judgment was procedurally appropriate in the instant matter. It does not appear that any of the parties contend that there are or were any disputed questions of fact which were required to be resolved. The case was ripe for summary judgment if that remedy was available.
Our research reveals, and we hold, that an action for forfeiture under chapter 65 is a civil action, as contrasted to one that is criminal in nature. While we have no Kansas cases which specifically hold such an action to be civil, we do have decisions which lead us directly to that conclusion. In State v. One 1978 Chevrolet Corvette, 8 Kan. App. 2d 747, this court refers to the action as “an in rem proceeding under K.S.A. 65-4135 to forfeit a 1978 Chevrolet Corvette which had been used to transport marijuana for sale.” On page 750 of that opinion, we stated: “Although enforced through proceedings in rem, forfeitures are penal in nature. United States v. U.S. Coin & Currency, 401 U.S. 715, 28 L. Ed. 2d 434, 91 S. Ct. 1041 (1971).” See State v. Durst, 235 Kan. 62, 67-68, 678 P.2d 1126 (1984). In the recent decision of State v. Oyler, 15 Kan. App. 2d 84, 85, 803 P.2d 585 (1990), we held that “forfeiture actions are proceedings in rem.”
In rem proceedings have always been considered to be civil in nature. They were originally considered to be admiralty cases, although that distinction is no longer maintained. In United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984), the nature of an in rem action was discussed. “In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object.”
We note that the Kansas forfeiture statutes are similar to the federal forfeiture statute. See 21 U.S.C. § 881 (1988). In this regard, several federal courts have held that federal forfeiture proceedings are civil actions. See U.S. v. Santoro, 866 F.2d 1538, 1543 (4th Cir. 1989); United States v. $2,500 in United States Currency, 689 F.2d 10, 13-14 (2d Cir. 1982), cert. denied 465 U.S. 1099, reh. denied 466 U.S. 994 (1984); United States v. One 1977 Pontiac Grand Prix, VIN 2J5747P137057, 483 F. Supp. 48, 49 (N.D. Ill. 1979). See generally 36 Am. Jur. 2d, Forfeitures and Penalties § 17.
Based upon the authorities cited in this opinion, we have no problem in concluding the forfeiture actions are, by their nature, civil rather than criminal.
Since the action is civil in nature,, it is quite obvious that the code of criminal procedure would not apply. It seems equally obvious to us that the code of civil procedure, as set forth in chapter 60, would apply to a civil action such as a,forfeiture. Our decision does not, however, rest on that simple logical deduction. K.S.A. 60-201 states: “This article governs the procedure in the district courts of Kansas, other than actions commenced pursuant to chapter 61 of the Kansas Statutes Annotated, and any amendments thereto.”
Since the legislature hás not designated any administrative agency or other quasi-judicial entity to hear forfeiture actions, it is logical to conclude that such jurisdiction falls upon our district courts. As pointed out above, the legislature has provided that chapter 60 governs proceedings in the district courts of this state.
We further note that, in those areas of law in which the legislature has chosen to make chapter 60 nonapplicable, it has said so. For example, in criminal cases, the rules of criminal procedure are applicable. See K.S.A. 22-2101 et seq. In limited actions, the rules of civil procedure for limited actions apply. See K.S.A. 61-1701 et seq. The legislature has not seen fit to indicate that any procedure other than that designated by chapter 60 should apply to forfeiture actions, and we conclude that its failure to do so is a clear indication that chapter 60 does apply to such proceedings.
Harold argues that the forfeiture proceedings are summary in nature and that it is improper to employ the discovery procedures set out in chapter 60. We disagree. The legislature has indicated those instances in which it deems proceedings to be summary in nature. For instance, K.S.A. 79-1413a provides for summary proceedings in tax appraisal appeals. K.S.A. 1990 Supp. 60-1505 provides for summary proceedings in habeas corpus cases. Once again, the failure of the legislature to specifically provide that forfeiture is a summary proceeding leads us to the conclusion that it is not and that the discovery provisions of chapter 60 apply to a forfeiture action.
We hold that the Kansas rules of civil procedure, as set forth in chapter 60, apply to forfeiture actions instituted under chapter 65. By applying chapter 60 to the instant matter, we conclude that Harold’s failure to respond to the demands for admission had the effect, as determined by the district court, of admitting the facts stated. Since those facts are deemed admitted, there existed no material disputed issues of fact to be resolved by the district court, and the granting of summary judgment in favor of the City was proper.
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Green, J.:
Edward N. Cobum, Sr., appeals from his convictions at a jury trial of six counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) and one count of sexual exploitation of a child in violation of K.S.A. 1998 Supp. 21-3516(a)(2). First, Cobum contends that the trial court erred in denying his motion to sever his charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. We agree. Under K.S.A. 22-3202(1), the legislature has set out three alternative conditions precedent (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan) which must be met before a trial court may exercise its discretion to allow the joinder of charges. Because none of the conditions precedent under K.S.A. 22-3202(1) were met in this case, tire charges should not have been joined as a matter of law. Further, the misjoinder of charges did not constitute harmless error because the highly inflammatory evidence used to prove the charge of sexual exploitation of a child was sufficiently prejudicial to deny the defendant a fair trial. Accordingly, we reverse Cobum’s convictions and remand for separate trials.
Next, citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389 (2002), Cobum argues that K.S.A. 1998 Supp. 21-3516 is unconstitutional under the First and Fourteenth Amendments to the United States Constitution because it criminalizes the possession of simulated nude exhibitions of a person under the age of 18. We disagree. The simulated nude exhibition language of K.S.A. 1998 Supp. 21-3516(b)(l) does not render the statute unconstitutional under Ashcroft.
Finally, Cobum contends that there was insufficient evidence to convict him of the charges of aggravated indecent liberties with a child and sexual exploitation of a child. We disagree. After reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt.
In July 2001, Cobum was convicted by a jury of six counts of aggravated indecent liberties with a child and one count of sexual exploitation of a child. The aggravated indecent liberties charges were based on Cobum’s lewd fondling or touching of S.W. (date of birth 06-29-89) and J.W. (date of birth 08-26-86) between November 1998 and March 2000. J.W. and S.W. are sisters and the grandchildren of Rose Cobum. Rose was Edward Cobum’s girlfriend and later became his wife. The sexual exploitation charge was based on Cobum’s possession of pictures on a computer depicting a child under 18 years of age engaging in sexually explicit conduct.
On appeal, this court reversed and remanded for a new trial, determining that the jury instruction that Cobum’s flight could be considered in determining guilt was clearly erroneous. See State v. Coburn, 32 Kan. App. 2d 657, 87 P.3d 348, rev. denied 278 Kan. 848 (2004). Before the new trial, Cobum moved to sever the charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. The trial court denied Cobum’s motion to sever, determining that the charge of sexual exploitation of a child was of a similar character to the other charges.
At the new trial, J.W. testified that she met Cobum in the summer of 1998 when she and S.W. went to visit their grandmother, Rose, in Maryland. While J.W. and S.W. were staying with Rose, Cobum would wrestle with them and tickle them. J.W. testified that Cobum would tickle their stomachs and then move his hand lower. S.W. testified that Cobum touched her vaginal area under her clothes. J.W. testified that Cobum touched her vagina once while she was visiting Rose in Maryland. According to J.W., this incident occurred around Thanksgiving 1998.
Cobum and Rose moved to Kansas around October 1998 and lived with J.W., S.W., and C.W., J.W. and S.W.’s mother, for several weeks. J.W. testified about an incident that occurred in the living room of her house on Thanksgiving day. J.W. testified that Cobum tackled her to the floor, straddled her, and held her hands above her head. J.W. testified that no inappropriate touching occurred at that time but that Cobum’s conduct came close to inappropriate. Nevertheless, when interviewed by a social worker in April 2000, J.W. indicated that Coburn had touched her inappropriately during the incident at her house on Thanksgiving 1998.
Coburn testified that he and Rose moved into their own house around December 1998. The house was located approximately 2 blocks away from where J.W. and S.W. lived. J.W. testified about another incident that occurred in the basement of Rose’s house. According to J.W., Coburn straddled her and attempted to put his hand into her pants. J.W. testified that Cobum rubbed her upper thigh on the outside of her clothes within an inch of her vagina.
J.W. initially testified that she did not remember Coburn touching her vagina after he moved to Kansas. Nevertheless, the prosecutor reminded J.W. of her testimony at a previous hearing where she had stated that Coburn had touched her vagina in the basement of Rose’s house in Kansas. The prosecutor gave J.W. a minute to think about whether Coburn actually touched her vagina at Rose’s house. J.W. then testified that she remembered Cobum touched her vagina under her clothes in the basement of Rose’s house in Kansas.
Rased on J.W.’s testimony at the new trial, Cobum touched her vagina once in Maryland and once in Kansas. During her interview in April 2000, however, J.W. named several touching incidents that occurred after Cobum moved to Kansas, including one at Thanksgiving, one at Christmas, two during slumber parties at her grandmother’s house, and three or four other incidents.
S.W. testified that Cobum inappropriately touched her twice in the living room and once in the basement at Rose’s house in Kansas. S.W. testified that she also saw Cobum inappropriately touch J.W. S.W. described an incident that occurred in the living room of Rose’s house in Kansas City. According to S.W., Cobum had his arms around both S.W. and J.W. and was touching both of their “private parts.”
L.C., who was J.W.’s best friend, testified that J.W. had told her that Coburn would tiy to touch her chest and private areas. According to L.C., she had seen Cobum try to slide his hand into the girls’ shirts or pants when they were wrestling. D.F., who was a friend of S.W., also testified that S.W. had told her that Cobum had tried putting his hands into S.W.’s clothes.
C.W. testified that about a month after Cobum moved to Kansas, S.W. and J.W. became uncomfortable being around Cobum. S.W. later told her mother, C.W., about the touching incidents. C.W. questioned J.W. about whether Cobum had touched her inappropriately. At first, J.W. repeatedly denied that Cobum had touched her inappropriately. Nevertheless, J.W. eventually told her mother about the touching incidents. C.W. filed police reports about the incidents.
On the morning of March 19, 2000, Cobum stole over $10,000 from a safe at a grocery store where he worked as the assistant manager. Cobum left a note for Rose, stating that he had done nothing wrong to S.W. or J.W. Nevertheless, Cobum stated that he was living on borrowed time and that he was going to have fun with the money during the last years of his life. Cobum was later arrested in Las Vegas and brought back to Kansas.
After learning that Coburn had taken the money from the grocery store and left town, C.W. went with her husband and her husband’s friend to Rose’s house to attempt to determine where Cobum might have gone. While looking on the computer at Rose’s house, they discovered an Amtrak train schedule. Moreover, as they were looking at the different sites that Cobum had visited, they saw what appeared to be child pornography. C.W. called the police. The computer was seized by the Kansas City, Kansas, Police Department and was sent to the Federal Bureau of Investigation (FBI).
After copying the hard drive of the computer to disc, Brian Poole, a forensic examiner with the FBI, ran forensic programs on the copy. Poole discovered numerous pornographic web sites on the history of the computer. Poole testified that the earliest date in the history of the computer was January 7, 1994, and that the next date was February 10, 2000. In the “My Documents” folder of the computer, Poole found various graphic files and a web page from a site with young virgins in photographs that appeared to be child pornography. Allison Rodriguez, who worked for the FBI on child exploitation cases, testified that the sites visited on the com puter were known for child pornography. Evidence presented at trial revealed that these sites had been visited on dates when Coburn was living in Rose’s house. Rodriguez testified that Cobum’s name was on the Internet account found on the computer.
Rose testified that they bought the computer at a yard sale after she and Coburn moved to Kansas. Rose testified that she did not use the computer. C.W., S.W., and Rose testified that Cobum was “always” on the computer. J.W. testified that no one else used the computer besides Cobum. Neither S.W. nor J.W. ever saw what Cobum was looking at on the computer. Whenever they would go downstairs, Cobum would turn the screen away from them or turn it off. The computer had been in the spare bedroom, the garage, and the basement of Rose’s house.
At trial, Cobum testified that although he had visited adult pornography sites, he had never visited child pornography sites. Further, Cobum denied ever molesting J.W. or S.W.
The jury convicted Cobum of all six counts of aggravated indecent liberties with a child and the one count of sexual exploitation of a child. Cobum was sentenced to 228 months in prison.
I. Motion to Sever
First, Cobum argues that the trial court erred by denying his motion to sever the count of sexual exploitation of a child from the other six counts of aggravated indecent liberties with a child.
The purpose of joining in one complaint, information, or indictment more than one charge is to promote economy and efficiency. K.S.A. 22-3202(1) permits the joinder of charges under the following circumstances:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
As a result, the State may join in one complaint, information, or indictment more than one charge when the offenses are linked, either in terms of (1) consisting of the same or similar character, (2) arising out of the same act or transaction, or (3) composing of two or more acts or transactions connected together or constituting a common scheme or plan.
In State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 (2007), our Supreme Court recently set forth the standard to be applied when reviewing the joinder of charges under K.S.A. 22-3202(1). An appellate court must first determine which of the three alternative conditions precedent the trial court relied on under K.S.A. 22-3202(1): (1) same or similar character; (2) same act or transaction; or (3) two or more acts or transactions connected together or constituting parts of a common scheme or plan. Next, the appellate court must determine whether there is substantial competent evidence to support the trial court’s findings of fact, using a deferential standard. The appellate court then determines whether the trial court properly concluded that a condition precedent has been met, using a de novo standard. Once the trial court makes a legal determination about whether one of the conditions precedent apply, K.S.A. 22-3202(1) gives the trial court discretion to decide whether to join the charges. An appellate court reviews the final decision on joinder of the charges for abuse of discretion. Gaither, 283 Kan. at 685.
A. Consisting of the Same or Similar Character
With this understanding, it is appropriate to focus on which condition precedent the trial court relied on under K.S.A. 22-3202(1). In denying Cobum’s motion to sever, the trial court specifically found that the sexual exploitation charge was of a similar character to the aggravated indecent liberties charges. Thus, the trial court relied on the “same or similar character” condition precedent of K.S.A. 22-3202(1).
In State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999), our Supreme Court discussed the determination of whether crimes are of the same or similar character to permit joinder:
“This court has on numerous occasions throughout its history addressed the subject of whether crimes are of the same or similar character so as to permit their joinder. In State v. Hodges, 45 Kan. 389, 392, 26 Pac. 676 (1891), we stated: ‘Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same land of punishment. [Citations omitted.]’ ”
The Barksdale court noted that this standard had been reiterated many times by our Supreme Court. 266 Kan. at 507.
Nevertheless, citing State v. Thompson, 139 Kan. 59, 61-62, 29 P.2d 1101 (1934), our Supreme Court in Barksdale noted that it had warned against relying solely on generalities when considering whether joinder was proper:
“ ‘That offenses must be of the same general character is not always a sound test of joinder. In this instance the two crimes charged were of the same general character, in that they both involved force and violence to the person. That, however, would not necessarily be sufficient. To illustrate: As the culmination of a long-standing quarrel about a line fence, a farmer kills his neighbor. He goes to town, and the same afternoon, while in an excited frame of mind, he becomes involved in an altercation about a business matter, and makes an assault with some kind of deadly weapon with intent to kill. While the offenses are of the same general character, there should be separate informations and separate trials. The only reason that is so is, there would inevitably be some jumbling of tire two cases at the trial, which would tend to prevent that concentrated consideration of each case which is indispensable in matters of such gravity.’ ” 266 Kan. at 508.
Here, the trial court made no findings relating to how the sexual exploitation of a child crime and the aggravated indecent liberties with a child crimes were of a same or similar character. Nevertheless, Coburn never objected to the trial court’s lack of factual findings on this issue. When a party does not object to the lack of factual findings before the trial court, an appellate court presumes that the trial court made the factual findings necessary to support its decision. Gaither, 283 Kan. at 686. As a result, this court can proceed directly to the legal conclusion regarding whether the crimes were of the same or similar character under K.S.A. 22-3202(1). See 283 Kan. at 686.
Viewing the record in the fight most favorable to the State, the similarities among all of the crimes in this case were that they involved minors, that they involved sex offenses, that they allegedly involved sexual gratification, that they were of a lewd nature, and that some of the crimes were alleged to have occurred at Cobum’s residence. Nevertheless, the similarities seem to stop there.
Kansas sex offense laws are similar to those found in most states. Rape, sodomy, sexual battery, and indecent liberties with a child are the primary sex offenses. Further, these sex offenses can be broken down into three main categories: (1) sexual intercourse, (2) sodomy, and (3) touching. Cobum’s offense of sexual exploitation of a child does not fit within any of these categories. Moreover, Cobum’s sexual exploitation charge and aggravated indecent liberties charges are not similar in character.
To illustrate, the offenses involved very different victims: the children involved in the aggravated indecent liberties charges were not the same children depicted in the images involved in the sexual exploitation charge. Further, the aggravated indecent liberties charges involved specific child victims. The same was not tme for the sexual exploitation charge. Because this charge involved pornography, society is generally considered the victim of this type of crime. See Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607, reh. denied 414 U.S. 881 (1973) (applying contemporary community standards in determining whether material is pornographic).
Moreover, the victims were not treated similarly. The aggravated indecent liberties with a child charges are assaultive offenses. On the other hand, the sexual exploitation of a child charge is a possession of contraband offense. This offense is concerned with the possession of pornographic computer images. Unlike the aggravated indecent liberties charges, the sexual exploitation charge did not involve any inappropriate touching of the victims.
Further, the severity level of aggravated indecent liberties charges was driven by the nature of the acts involved and the ages of the victims. The same was not true for the sexual exploitation charge. The sexual exploitation charge involved images of children under the age of 18 while the aggravated indecent liberties charges involved children under the age of 14.
Moreover, the evidence necessary to prove the sexual exploitation charge and the aggravated indecent liberties charges was different. Although the State points out that some of the witnesses were the same for all of the charges, there was no real overlapping of proof for the sexual exploitation charge and the aggravated indecent liberties charges. In other words, when proving the sexual exploitation charge, the State’s proof did not constitute a substantial proof of the aggravated indecent liberties charges or vice versa. Specifically, the child victims of the aggravated indecent liberties charges and their family members established that Coburn spent a lot of time on the computer and was the only person who accessed it. These witnesses’ testimony, however, related only to a small portion of the State’s case on the sexual exploitation charge and was different from their testimony relating to the aggravated indecent liberties charges. Moreover, we doubt that the State needed the child victims’ testimony to establish Cobum’s computer usage.
Consequently, the State could prove the sexual exploitation charge without using any of the evidence needed to prove the aggravated indecent liberties charges. The aggravated indecent liberties charges were proved through the testimony of the child victims and those individuals whom they told about the incidents. On the other hand, the sexual exploitation charge required testimony from an FBI forensic examiner and an FBI agent working in child exploitation cases about the images found on the computer, the web sites that had been visited, and the history of tire computer.
As a result, the proof of the sexual exploitation charge depended on a different set of facts from the set of facts needed for proof of the aggravated indecent liberties charges. In short, the sexual exploitation charge depended on different evidence for its proof than the evidence needed for proof of the aggravated indecent liberties charges. As stated earlier, charges of the same or similar character may be joined in the same information when “all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment.” (Emphasis added.) Barksdale, 266 Kan. at 507. Here, the same kind of evidence requirement under the same or similar character condition was not met.
Finally, the sexual exploitation charge and the aggravated indecent liberties charges do not belong to the same class of crimes. The possession of pornographic computer images of minors is a crime distinct from the inappropriate touching of minors. As a result, the crimes were not of the same general type. This leads to the legal conclusion that the charges were not of a sufficiently similar character to warrant joinder under K.S.A. 22-3202(1). As a result, the trial court erroneously determined that the “same or similar character” condition precedent under K.S.A. 22-3202(1) applied.
B. Composing of Two or More Acts or Transactions Connected Together or Constituting Parts of a Common Scheme or Plan
Although not explicitly stated in its ruling, the trial court also seemed to rely on the “connected together” language of K.S.A. 22-3202(1). The trial court found that the pictures had been found on the computer when C.W. was trying to determine where Cobum might have fled. These findings are supported by substantial competent evidence in the record. We must now determine, using a de novo review, whether those findings fit the “two or more acts or transactions connected together or constituting parts of a common scheme or plan” condition precedent of K.S.A. 22-3202(1). See Gaither, 283 Kan. at 685.
In State v. Donaldson, 279 Kan. 694, 699, 112 P.3d 99 (2005), our Supreme Court stated that it had broadly construed the connected together language of K.S.A. 22-3202(1) to apply in three situations. The first situation occurs when the defendant provides evidence of one crime while committing another. This situation is illustrated by State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), where during a drug sale to an undercover officer the seller bragged about a murder and robbery. Our Supreme Court in Anthony held that the crimes were connected together by the incriminating statements made during the drug sale. 257 Kan. at 1016-17. Cobum never provided evidence of the sexual exploitation crime while committing the aggravated indecent liberties crimes. Conversely, Cobum never provided evidence of the aggravated indecent liberties crimes while committing the sexual exploitation crime.
The second situation where our Supreme Court has found charges to be connected together under K.S.A. 22-3202(1) occurs when some of the charges are precipitated by other charges. Donaldson, 279 Kan. at 699. Examples of this situation can be found in State v. Dreiling, 274 Kan. 518, 54 P.3d 475 (2002), and State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983). In Dreiling, our Supreme Court affirmed the joinder of first-degree premeditated murder and conspiracy to commit murder with conspiracy to commit perjury because the perjuiy would have prevented evidence of the defendant’s motive for murder. 274 Kan. at 555. In Pondexter, our Supreme Court held that the charges of unlawful possession of a firearm and aggravated assault of a law enforcement officer were properly consolidated with charges of burglary and attempted murder because the intended murder victim was a witness against the defendant for the first two charges. 234 Kan. at 216-17. The instant case is not similar to the circumstances present in either Dreiling or Pondexter. Moreover, there is no showing in the record that Cobum’s sexual exploitation charge was precipitated by his aggravated indecent liberties charges or vice versa.
The third situation where our Supreme Court has found charges to be connected together under K.S.A. 22-3202(1) occurs when all of the charges stem from a common event or goal. Donaldson, 279 Kan. at 700. Examples of this situation are found in State v. Simkins, 269 Kan. 84, 3 P.3d 1274 (2000), and State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976), overruled on other grounds State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984). In Simkins, our Supreme Court affirmed the joinder of first-degree murder and domestic battery charges against two victims because both charges resulted from the victims’ previous extramarital affair and the defendant’s observation of the victims talking together. 269 Kan. at 91. In Stewart, our Supreme Court upheld the joinder of the charge of aggravated battery against Sanders and the charge of aggravated robbery against Sander’s wife because both crimes were based on the defendant’s goal of getting Sanders to repay a debt. 219 Kan. at 528. Here, the State presented no evidence that Cobum committed the crime of sexual exploitation of a child based on a common event or goal such as that present in Simkins and Stewart.
The State contends that all of the charges against Cobum involved one basic scheme. Under K.S.A. 22-3202(1), crimes maybe joined if they are based on two or more acts or transactions “constituting parts of a common scheme or plan.” Nothing presented at trial, however, showed that the child pornography discovered on Cobum’s computer was part of his scheme or plan in committing the aggravated indecent liberties crimes. The child pornography was not used during the aggravated indecent liberties acts. This shows that Cobum did not use the pornographic images to entice J.W. and S.W. into submitting to his alleged illegal acts with them. Moreover, J.W. and S.W. never even saw Cobum looking at pornography on the computer. As a result, the sexual exploitation crime was not used to carry out the aggravated indecent liberties crimes.
In summary, the State presented no evidence that the sexual exploitation charge was connected with any act based on the aggravated indecent liberties charges, nor did the State show that the crimes were based on a common scheme or plan. Therefore, we conclude, as a matter of law, that the “two or more acts or transactions connected together or constituting parts of a common scheme or plan” condition precedent under K.S.A. 22-3202(1) has not been met here.
C. Arising out of the Same Act or Transaction
The remaining condition precedent under K.S.A. 22-3202(1) is the “same act or transaction.” The trial court never addressed this condition precedent. Moreover, the State makes no argument that this condition precedent applies. In addition, the record shows that the sexual exploitation charge and the aggravated indecent liberties charges did not arise out of the same act or transaction. Therefore, this condition precedent was not met.
Based on the above analysis, none of the conditions precedent under K.S.A. 22-3202(1) were met in this case to allow the joinder of charges. When a joinder occurs and none of the conditions precedent under K.S.A. 22-3202(1) have been met, this is prohibited not as a possible abuse of discretion by the trial court, but as a matter of law. Gaither, 283 Kan. at 685. Therefore, as a matter of law, the aggravated indecent liberties charges should not have been joined with the sexual exploitation charge under K.S.A. 22-3202(1).
D. Prejudice
Moreover, when a misjoinder of charges has occurred, some prejudice almost always results. In other words, when joinder is improper, some prejudice is shown from the very fact of the joinder. See King v. United States, 355 F.2d 700, 704 (1st Cir. 1966) (“[T]o try a single defendant for more than one offense involves prejudice.”).
Nevertheless, in State v. Bunyard, 281 Kan. 392, 402, 133 P.3d 14 (2006), our Supreme Court quoted United States v. Lane, 474 U.S. 438, 449, 8 L. Ed. 2d 814, 106 S. Ct. 725 (1986), for the rule that “error due to misjoinder requires reversal only if the error had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ”
Cobum argues that the evidence presented for the sexual exploitation charge was prejudicial to his defense. Cobum maintains that the jury was likely to conclude that because he visited and viewed pornographic sites, he must be someone who molests children. Cobum’s argument has merit. The misjoinder in this case may have prejudiced Cobum in one or more of the following ways:
I. Inference of Criminal Disposition
In proving the charge of sexual exploitation of a child, the State introduced into evidence several images of child pornography that had been found on the computer. The State also introduced an extensive history of various pornographic web sites, including child pornographic web sites, that had been visited on the computer. This evidence would have been very prejudicial to Cobum’s defense of the aggravated indecent liberties with a child charges. Such evidence could have led jury members to conclude that because Cobum possessed lewd pictures of young girls, his criminal disposition was to commit other lewd crimes against young girls. For example, the State argues in its brief that “[t]he photos and websites accesses also go toward Cobum’s intent in touching the girls.” The State’s argument carries a strong inference that it used the child pornography images to show to the jury that Cobum was predisposed to commit the aggravated indecent liberties charges.
Although the jury in this case was instmcted that it must decide each charge separately on the evidence and the law applicable to it, uninfluenced by its decision as to any other charge, “ ‘there would inevitably be some jumbling of the two cases at the trial, which would tend to prevent that concentrated consideration of each case which is indispensable in matters of such gravity.’ ” State v. Barksdale, 266 Kan. 498, 508, 973 P.2d 165 (1999). Indeed, as we will show later, the State was bent on scrambling the evidence in these cases to its advantage. Consequently, the jury could have considered the evidence of sexual exploitation of a child as corroborative of the aggravated indecent liberties charges, which would have resulted in an adverse influence on the jury’s verdicts.
2. K.S.A. 60-455
Although joinder is not dependent upon whether separate charges can meet the admissibility test under K.S.A. 60-455, a K.S.A. 60-455 analysis is a relevant tool to use in determining whether prejudice results from the joinder of the charges. For example, when prior crimes evidence is not logically and legally relevant to prove some material fact listed in K.S.A. 60-455 or some other material fact not listed in the statute, the prejudicial consequences of such evidence weighs heavily against its admission into evidence. See State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006) (“[W]e have recognized at least three types of prejudice can follow the admission of other crimes and civil wrongs evidence.”). Our discussion of K.S.A. 60-455 begins and ends with the idea that it affords a mode for analyzing whether a defendant has been prejudiced by an improper joinder of charges.
This is vividly illustrated by State v. Cromwell, 253 Kan. 495, 511-12, 856 P.2d 1299 (1993). In Cromwell, our Supreme Court analyzed K.S.A. 60-455 to determine if a defendant had been prejudiced by joinder of charges. The Cromwell court held that no prejudice resulted to the defendant when evidence of one charge would have been admissible under K.S.A. 60-455 in the trial of the other charge. 253 Kan. at 512. In Barksdale, our Supreme Court adopted the rule from Cromwell: “[W]here the evidence of crimes joined for trial would have been admissible under K.S.A. 60-455 in a separate prosecution, the defendant is unable to demonstrate any prejudice when the crimes are tried in a single trial. [Citation omitted.]” 266 Kan. at 510. Inversely, this rule implies that a defendant may be able to show prejudice when improperly joined crimes are tried in a single trial and the evidence of those crimes would have been inadmissible under K.S.A. 60-455 in a separate prosecution.
Nevertheless, in Barksdale, our Supreme Court rejected the defendant’s arguments that it was error to allow evidence of each crime because it was inadmissible under K.S.A. 60-455 and because the evidence was more prejudicial than probative:
“Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455. [Citations omitted.]
“While the defendant argues it was error in this case to allow evidence of each separate homicide because it was inadmissible under K.S.A. 60-455, and because such evidence was more prejudicial than probative, this assertion lacks merit. In Cromwell, we held that where separate but similar criminal charges are joined in a single trial, evidence material to each crime is admissible independent of K.S.A. 60-455. [Citation omitted.]” 266 Kan. at 510.
See Bunyard, 281 Kan. at 400. Therefore, joinder does not depend upon the evidence for each charge meeting the requirements of K.S.A. 60-455.
Nevertheless, K.S.A. 60-455 affords a sound basis for analyzing whether a defendant has been prejudiced by an improper joinder of charges. For example, if the admission of certain evidence is highly prejudicial to a defendant under K.S.A. 60-455, would the same evidence not be highly prejudicial to a defendant under K.S.A. 22-3202(1)?
Indeed, in a rape prosecution case involving an improper joinder of charges, Justice Lee Johnson, while a member of this court, cited K.S.A. 60-455 in pointing out the risk of prejudicial joinder and the inappropriate use of propensity evidence under the joinder statute:
“One can only surmise that by consolidating the accumulated rape reports in one prosecution, the State hoped to strengthen all three cases by inferring that Bun-yard was disposed to commit date rape. Promoting the jury’s use of character propensity reasoning would not be allowed in a separate trial. See K.S.A. 60-455. It should not be permitted via the use of joinder.” State v. Bunyard, 31 Kan. App. 2d 853, 871-72, 75 P.3d 750 (2003) (Johnson, J., dissenting), rev’d on other grounds 281 Kan. 392, 133 P.3d 14 (2006).
Our Supreme Court later agreed with this court’s majority and determined that the Bunyard cases were sufficiently similar to one another; thus, joinder was proper. Bunyard, 281 Kan. at 402-04. Justice Johnson’s remarks, however, still underscore the problem with criminal disposition evidence in joinder cases: that a jury may use the evidence of one of the charged crimes to infer a criminal disposition on the part of the defendant, which the jury uses to find the defendant’s guilt of the other charged crime or crimes.
Seemingly, to insure against prejudicial joinder under K.S.A. 22-3202(1), evidence resulting from separate charges improperly joined should not violate the permissible limits of K.S.A. 60-455 and if this occurs and the evidence would have been inadmissible in separate trials of the same charges, prejudice results. With this in mind, if separate trials had been granted in this case, the evidence of the sexual exploitation charge could not have been used in the trial of the aggravated indecent liberties charges under K.S.A. 60-455 and vice versa. None of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute was relevant. Indeed, the State makes no argument that the evidence could have come in under K.S.A. 60-455. Consequently, the rule set out in Cromwell and Barksdale does not save the erroneous joinder of charges in this case and Cobum was prejudiced by the joinder of charges in a single trial.
3. Difficulty of Prevailing on Severance Issue
It should be pointed out that it has been nearly impossible for a defendant to gain relief on a severance issue. Our Supreme Court in Bunyard, 281 Kan. at 398, noted that it had discovered only one case, State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971), where it had reversed a conviction after a trial court denied severance.
In Thomas, our Supreme Court determined that the charges stemming from separate incidents were not similar and that the trial court’s order of consolidation was prejudicial error and an abuse of discretion. 206 Kan. at 608-10. There, the defendant was charged with first-degree murder, robbery, and unlawful possession of a pistol, which all stemmed from one incident. Based on an unrelated and very different incident, the defendant was also charged with burglary, larceny, three counts of forgery, and three counts of uttering. The two groups of charges were consolidated for trial. Nevertheless, the jury was never instructed that it should consider the evidence in each case as applicable only to that case. In reversing the defendant’s convictions, our Supreme Court stated:
“Even though the trial court’s order of consolidation is said to be an abuse of discretion, defendant still has the burden of showing prejudice that requires a reversal. Defendant says that since his defense to the murder charge was that the shooting was accidental, he was compelled to take the witness stand to explain the circumstances. As a result, defendant states he was forced to admit the forgery and uttering charges (he denied any participation in the Rutherford burglary), and thus was put in the position of submitting, as an admitted forger, his defense of accidental shooting in the murder case. He claims this circumstance destroyed any possibility that the jury would give credence to his claim that the shooting of [the victim] was accidental. Whether the jury would have believed defendant’s description of the shooting, absent die influence of the forgery admissions by defendant, is not for us to decide. It must be conceded the jury may have been unduly influenced, particularly in the absence of any instruction in this regard.” 206 Kan. at 609-10.
Our Supreme Court determined that the defendant had shown prejudice and ordered separate trials on the two groups of charges. Thomas, 206 Kan. at 610.
Our Supreme Court in Bunyard noted that in the case law before Thomas, and the 30-plus years since Thomas, many claims of abuse of judicial discretion relating to joinder or denial of severance have been before the Kansas appellate courts. Nevertheless, none of those have been successful. Bunyard, 281 Kan. at 398.
Thus, in all of the cases, except Thomas, that involved a denial of severance, our Supreme Court and this court have found that joinder was proper under the statue or that the defendant was not prejudiced by the misjoinder. Nevertheless, like Thomas, the charges in this case do not fit within any of the exceptions of K.S.A. 22-3202(1). What distinguishes this case from Thomas is that in Thomas the jury was never instructed that it should consider the evidence in each case as applicable only to that case. The Thomas court factored this into its decision to reverse and remand for a new trial. 206 Kan. at 610-11.
Here, although the trial court instructed the jury to consider each case separately, we cannot say that the jury could keep separate what was relevant for each charge. Absent its admissibility because of joinder under K.S.A. 22-3202(1), it is difficult to conclude that the child pornography evidence, involving the sexual exploitation charge, was not offered to prove Cobum’s criminal disposition to commit the aggravated indecent liberties charges or offered to show corroboration for those charges. Indeed, that is the way the State used the evidence of Cobum’s alleged viewing of the child pornography. In the prosecutor’s closing argument, the prosecutor told the jury that it could use the pornographic images to show Cobum’s predisposition to commit the aggravated indecent liberties charges:
“How do we know that this touching was in a lewd manner with the intent to satisfy Ed Cobum’s sexual desires? We look at the circumstances. First, you’ve got hundreds of Web sites that are known to contain child pornography. You’ve got the pictures in his My Documents file that are children. And what other reason is there for a 52-year-old man to be putting his hands on a child underneath their clothes on their breast or butt? There is no reason, other than for some sort of sexual gratification.”
Clearly, the purpose of the prosecutor’s argument concerning the child pornography images was to show Cobum’s predisposition to commit the aggravated indecent liberties charges. Moreover, the prosecutor’s argument would have allowed the jury to cumulate the evidence of the various offenses charged on the theory that he is a bad 52-year-old man who enjoys viewing child pornography and putting his hands under the clothing of children for the purpose of touching their bodies.
Indeed, there is no doubt in the way the State intended to use the child pornography evidence. As stated earlier, validating that the child pornography evidence was offered to prove Coburn’s criminal disposition to commit the aggravated indecent liberties charges, the State declares in its brief that the child pornography photos and web sites demonstrated “Cobum’s intent in touching the girls.” The State, however, emphasizes in its brief that the jury was instmcted to consider each case separately. Nevertheless, it is disingenuous for the State to argue on the one hand that the jury could use the highly inflammatory child pornography evidence to show Cobum’s predisposition to commit the aggravated indecent liberties charges and to imply on the other hand that Coburn was not prejudiced in the way it used the child pornography evidence because the jury was instmcted to decide each case separately. Obviously, the State is attempting, to coin a popular, old English maxim: to have one’s cake and eat it too.
The dissent, however, finds comfort in the jury instruction that required the jury to consider each case separately. Nevertheless, as explained in the previous paragraph, “[t]he Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Delli Paoli v. United States, 352 U.S. 232, 248, 1 L. Ed. 2d 278, 77 S. Ct. 294 (1957) (Frankfurter, J., dissenting) (cited with approval in Bruton v. United States, 391 U.S. 123, 129, 20 L. Ed. 2d 476, 88 S. Ct. 1620 [1968]).
Moreover, the jury instruction that required the jury to consider each case separately rests on the assumption that the juiy will be able to treat the evidence relevant to each case separately. Nevertheless, in the present case, the State did not keep separate the evidence relating to the sexual exploitation charge and the aggravated indecent liberties charges. Indeed, the State commingled the evidence applicable to the sexual exploitation charge and the aggravated indecent liberties charges. For example, the State interspersed the testimony and the physical evidence it used to prove the sexual exploitation charge among the testimony it used to prove the aggravated indecent liberties charges. Moreover, as discussed above, the State told the jury to use the evidence concerning the sexual exploitation charge in determining whether the elements for the aggravated indecent liberties charges had been met. The State never attempted to treat separately the sexual exploitation charge and the aggravated indecent liberties charges: either during the examination of witnesses or during the closing argument. This presents a legitimate concern that the juiy was unable to consider each charge separately on the evidence and law applicable to it.
Nevertheless, the dissent quotes Gaither, 283 Kan. at 687: “[T]he court can presume that the jury complied with the instruction.” In acknowledging this principle, the Bruton Court warned:
“It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno[, 378 U.S. 368, 388-91, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964)], there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the juiy system cannot be ignored.” [Citations omitted.] Bruton, 391 U.S. at 135.
Here, the State, by its examination of witnesses and its closing argument, has called into question whether the jury would have been able to consider each case separately. In short, the State willingly embraced the evil sought to be avoided: the possibility of confounding the jury by scrambling and jumbling the evidence of the joined cases.
Significantly, the purpose of the prosecutor s criminal disposition argument was to pander to the forces of passion and prejudice. There is no telling what effect this pandering would have had on the jury’s deliberation of the charges. Because the jury found Cobum guilty on all offenses charged, we are unable to say with any certainty that the jury carefully considered each charge separately on the evidence and law applicable to that charge. See State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989) (When a jury acquits a defendant on one or more of the offenses charged, this is an indication that the jury carefully considered each charge separately on the evidence and the law applicable to that charge.). As a result, we do not believe that a jury instruction consisting of two sentences could cure the prejudice caused by the joinder in this case.
In addition, the juiy likely could have considered tire evidence of sexual exploitation of a child corroborative of the aggravated indecent liberties with a child charges. The evidence against Cobum on some of the aggravated indecent liberties charges was not overwhehning. The child victims were the only witnesses to the aggravated indecent liberties acts that were charged against Cobum. The absence of physical evidence of sexual abuse made this case turn on the credibility of the victims, and part of the testimony presented by the State was inconsistent with the victims’ earlier statements made in the case.
As a result, this situation created a credibility contest between Cobum and J.W. and S.W. On the other hand, the evidence of the sexual exploitation charge against Cobum was very strong. The jury may have cumulated the evidence of the various offenses and convicted Cobum on all offenses charged when if the sexual exploitation offense and the aggravated indecent liberties offenses had been considered separately, the jury may have found in his favor on some of the offenses. Indeed, the sexual exploitation charge and the aggravated indecent liberties charges were clearly separate and distinct. Moreover, the evidence of the improperly joined sexual exploitation offense and the aggravated indecent liberties offenses would not have been admissible at a separate trial for the other.
Finally, Cobum was charged with seven sex offenses against young children. The nature of the crimes themselves substantially increased the risk of prejudice. See Bridges v. United States, 381 A.2d 1073, 1078 (D.C. 1977), cert. denied 439 U.S. 842 (1978) (“We would observe, however, that when joinder is sought involving crimes such as rape, the risk of prejudice is substantial.”). The probative value of the child pornography evidence was completely demolished by the highly inflammatory nature of the images. As a result, the child pornography evidence was sufficiently prejudicial as to deny Cobum a fair trial.
E. Fatally Prejudicial
Nevertheless, for argument sake, assuming that one of the joinder requirements under K.S.A. 22-3202(1) was established, the trial court was under a continuing duty to grant a motion for sev erance “to prevent prejudice and manifest injustice to the defendant.” State v. Shaffer, 229 Kan. 310, 312, 624 P.2d 440 (1981). Moreover, the requirements for joinder of charges under K.S.A. 22-3202(1) are similar to those concerning the joinder of two or more defendants under K.S.A. 22-3202(3). Interpreting K.S.A. 22-3202(3), our Supreme Court recognized that “even though the requirements of joinder are technically satisfied, the court should not join two defendants in one trial if either defendant will be prejudiced by the joinder. [Citation omitted.]” State v. Atkins, 261 Kan. 346, 360, 932 P.2d 408 (1997).
Further, the Aikins court stated that a defendant’s right to a fair trial must be the overriding consideration of the trial court. 261 Kan. at 360; see also State v. Boyd, 281 Kan. 70, 81, 127 P.3d 998 (2006) (“Separate trials should be conducted upon a showing of actual prejudice stemming from a joint trial and, in such a circumstance, the trial court should not join the complaints or, if the complaints have been joined, should sever the cases for trial.”). Here, a careful review of the record in this case leads to the conclusion that even if joinder was proper under K.S.A. 22-3202(1), the joinder was prejudicial to Cobum in the sense of denying him a fair trial. As a result, the denial of severance was manifest injustice.
It is well established that evidence of other crimes is inadmissible to prove criminal disposition, unless the evidence is relevant to one or more of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute. When evidence of prior crimes has been erroneously admitted under K.S.A. 60-455, our Supreme Court and this court have reversed the defendants’ convictions and remanded the cases for a new trial when the admission of the evidence was unduly prejudicial to the defendants. See State v. Jones, 277 Kan. 413, 424, 85 P.3d 1226 (2004); State v. Davidson, 31 Kan. App. 2d 372, 384-85, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003).
In Jones, our Supreme Court stated that “evidence of a defendant’s prior sexual misconduct — particularly when, as here, both the prior conduct and the conduct for which he is presently on trial involves minors — can easily convert to evidence for propensity or other impermissible purposes.” 277 Kan. at 424. Moreover, quoting United States v. Peden, 961 F.2d 517, 520 (5th Cir. 1992), our Supreme Court in Jones recognized that the
“ ‘admission of prior wrongful acts simply to show the defendant’s bad character, notwithstanding that one possessed of a bad character is more likely to commit a crime than one who is not, is likely to prejudice the jury and blind it to the real issue of whether the defendant is guilty of the crime charged. For example, the juiy may feel unsure that the government has proven its case, but decide that the defendant is an evil person who belongs in prison anyway.’ ” 277 Kan. at 424.
Because the child pornography evidence was highly inflammatoiy, a smoldering fire likely broke out. First, the evidence of the pornographic computer images could have distracted or clouded the jury’s minds from the proper consideration of the aggravated indecent liberties charges. The dissent, after having reviewed the entire record, concludes that “the eight pornographic images and the web-sites evidence” did not have a “ ‘ “substantial and injurious effect or influence” ’ in convicting Cobum of the aggravated indecent liberties charges. See Bunyard, 281 Kan. at 402.” (Emphasis added.) 38 Kan. App. 2d at 1078 (Buser, J., dissenting). Obviously, we read a different record than the dissent. Indeed, the pornographic material that the State presented concerning the sexual exploitation charge was substantial. The State introduced into evidence at trial a 487-page document listing a history of web sites that had been visited on Cobum’s computer primarily between February 2000 and March 2000. The exhibit resulted from a search of Cobum’s computer using the words “bitch, breast, cock, cunt, fuck, incest, molest, naked, penis, pussy, sexy, slut, suck, vagina, kidnap, young, teen, baby.” The exhibit contained multiple sexually explicit web-site listings on each page and was thicker than a Black’s Law Dictionary. This evidence was admitted in addition to testimony from two FBI agents relating to the images and web sites found on Cobum’s computer, a 16-page exhibit of a history file detailing web sites that were accessed on the computer, an exhibit detailing when and how often certain sexually explicit web-sites were visited, an exhibit of the eight pornographic images found on Cobum’s computer, an exhibit of several sexually explicit web-page banners and an image of a partially naked female found in a file on Cobum’s computer, and testimony from several witnesses con ceming the amount of time Cobum spent on the computer. The vast amount of evidence presented to the jury on the sexual exploitation charge and the content of such highly inflammatory evidence made it very likely that some members of the jury would have been unable to separate this evidence when determining whether Cobum committed the aggravated indecent liberties charges.
For the dissent to conclude that the child pornography evidence did not have a substantial and injurious effect or influence in convicting Cobum of the aggravated indecent liberties charges is incredible, especially when the State sought to have the jury infer from that evidence that Cobum molested S.W. and J.W.
Second, the jury could have used the evidence of the sexual exploitation charge as evidence of Cobum’s propensity to commit the aggravated indecent liberties charges. Third, the jury might have been unsure that the State had proven its case on one or more of the aggravated indecent liberties charges and may have used proof of the sexual exploitation charge as proof in itself of the other charges. Because the child pornography evidence was clearly more prejudicial than probative, it was an abuse of discretion not to sever the charges.
To prevent prejudice and manifest injustice to Cobum, justice required a severance of the sexual exploitation charge from the aggravated indecent liberties charges. As a result, we reverse Cobum’s convictions and remand the case for a new trial.
II. Constitutionality ofKS.A. 1998 Supp. 21-3516
Next, Cobum argues that K.S.A. 1998 Supp. 21-3516 is unconstitutional under the First and Fourteenth Amendments to the United States Constitution because it criminalizes the possession of simulated nude exhibitions of a person under the age of 18. Whether a statute is unconstitutional presents a question of law over which an appellate court’s review is unlimited. Skov v. Wicker, 272 Kan. 240, 244, 32 P.3d 1122 (2001). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of the statute’s validity. Before a statute maybe stricken down, it must clearly appear that the statute violates the Constitution. It is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe a statute as constitutionally valid, that construction should be given to the statute. A statute should not be stricken down unless the infringement of the superior law is clear beyond a reasonable doubt. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).
In his brief, Cobum quotes the language from K.S.A. 21-3516. Nevertheless, this version of K.S.A. 21-3516 was amended in 1998. The 1998 amendments to K.S.A. 21-3516 were in effect during the time period when Coburn allegedly committed the crimes in this case (November 1,1998 through April 9, 2000). Nevertheless, the language on which Cobum focuses is the same in both versions of the statute. Based on the arguments raised by Cobum in his brief, the 1998 amendments to K.S.A. 21-3516 do not change this court’s analysis of the issue.
K.S.A. 1998 Supp. 21-3516(a)(2) defines sexual exploitation of a child as:
“possessing any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another.”
K.S.A. 1998 Supp. 21-3516(b)(l) defines “[s]exually explicit conduct” in part as “actual or simulated: Exhibition in the nude . . . .” (Emphasis added.)
Cobum contends that K.S.A. 1998 Supp. 21-3516 is unconstitutional on its face because it criminalizes the possession of “simulated” nude exhibition of a child. Cobum maintains that under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389 (2002), K.S.A. 1998 Supp. 21-3516 unconstitutionally prohibits virtual child pornography.
Generally, pornography can be banned only if it is obscene. See Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, reh. denied 414 U.S. 881 (1973). Nevertheless, under New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), a State may proscribe pornography depicting children whether or not the images are obscene. This is because of a State’s interest in protecting the children exploited by the production process. Ashcroft, 535 U.S. at 240; See Ferber, 458 U.S. at 758. Moreover, a State has a particular and compelling interest in prosecuting those who promote the sexual exploitation of children. Ferber, 458 U.S. at 761.
In Ashcroft, the United States Supreme Court found that the federal Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 (2000) et seq., unconstitutionally prohibited virtual child pornography. The CPPA broadened the definition of child pornography to include sexually explicit images that appeared to depict minors but were produced without using any real children. 18 U.S.C. § 2256(8)(B) of the CPPA prohibited any visual depiction, including a computer-generated image, that “is, or appears to be, of a minor engaging in sexually explicit conduct.” 535 U.S. at 241. 18 U.S.C. § 2256(8)(D) prohibited any sexually explicit image that was “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicted “a minor engaged in sexually explicit conduct.” 535 U.S. at 242. The United States Supreme Court determined that these sections were overbroad and unconstitutional. The Court noted that unlike actual child pornography, virtual child pornography does not involve, let alone harm, any children in the production process. 535 U.S. at 241. Moreover, unlike the actual child pornography in Ferber, “the CPPA prohibits speech that records no crime and creates no victims by its production.” Ashcroft, 535 U.S. at 250.
Here, Cobum contends that simulated nude exhibition, which is proscribed as sexually explicit conduct under K.S.A. 1998 Supp. 21-3516(b)(l), is the same as virtual child pornography and Ashcroft would apply. Nevertheless, Ashcroft held unconstitutional the portion of the CPPA that broadened die definition of child pornography to include sexually explicit conduct that appeared to depict minors but had been produced without using any real children. 535 U.S. at 257-58. Here, Cobum does not argue that K.S.A. 1998 Supp. 21-3516 proscribes the possession of child pornography pro duced without using real children. Moreover, Cobum does not claim that any of the pictures found on his computer were not of real children. Instead, Cobum argues that the simulated nude exhibition language of K.S.A. 1998 Supp. 21-3516(b)(l) renders the statute unconstitutional.
As discussed above, K.S.A. 1998 Supp. 21-3516(b)(l) defines “sexually explicit conduct” in part as “actual or simulated: Exhibition in the nude . . . .” (Emphasis added.) The word “simulated” modifies the sexually explicit conduct listed in the statute. The word “simulate” is defined as follows: “1. To have or take on the appearance, form, or sound of: IMITATE. 2. To make a pretense of: FEIGN.” Webster’s II New College Dictionary 1029 (2001). Therefore, it appears that K.S.A. 1998 Supp. 21-3516 could possibly apply to situations where pictures of real children have been altered so that the children appear to be engaged in sexually explicit conduct. In fact, in the instant case, testimony was presented that one of the images presented to the jury appeared to have been altered.
In Ashcroft, the United States Supreme Court discussed 18 U.S.C. § 2256(8)(c) of the CPPA, which prohibited altered or morphed photos:
“Section 2256(8)(c) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pomographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” 535 U.S. at 242.
Thus, the United States Supreme Court expressly declined to discuss the constitutionality of the provision prohibiting these morphed images. The Court, however, stated that the moiphed images did “implicate the interests of real children and are in that sense closer to the images in Ferber.” Ashcroft, 535 U.S. at 242. In Ferber, the United States Supreme Court noted: “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” 458 U.S. at 747. Legislation proscribing the production of or combating child pornography is justified because “the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” 458 U.S. at 758.
The rationale from Ferber appears to be applicable here. The images, even if altered to simulate sexually explicit conduct, implicate the interests of children and could harm their physiological, emotional, and mental health. For instance, if pictures of a child have been altered to simulate sexually explicit conduct and the child later discovers the altered pictures after they have been distributed to numerous people, the child could suffer irreparable harm to his or her emotional and mental health. Such harm could result from the child seeing himself or herself depicted in such a manner and from knowing that other individuals had also seen the images.
As a result, the simulated nude exhibition language of K.S.A. 1998 Supp. 21-3516(b)(l) does not render the statute unconstitutional under the United States Supreme Court’s decision in Ashcroft. See State v. Tooley, 114 Ohio St. 3d 366, 374, 872 N.E.2d 894 (2007) (refusing to extend Ashcroft to cover morphed child pornography).
III. Sufficiency of the Evidence — Aggravated Indecent Liberties With a Child Charges
Next, Cobum contends that there was insufficient evidence to convict him of aggravated indecent liberties with a child. When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
A. Charges Involving J.W.
The juiy found Cobum guilty of three counts of aggravated indecent liberties against J.W. One of these counts alleged that the act occurred between November 1,1998, and November 30,1998. The other two counts alleged that the acts occurred between December 1, 1998 and March 1, 2000.
Coburn’s convictions of aggravated indecent liberties against J.W. under K.S.A. 21-3504(a)(3)(A) required the State to prove beyond a reasonable doubt that Cobum fondled or touched J.W. with the intent to arouse or satisfy the sexual desires of either J.W. or Cobum or both; that at the time of the act, J.W. was a child under the age of 14; and that the act occurred between the dates listed in the charges. See PIK Crim. 3d 57.06 (1998 Supp.).
Cobum contends that there was no evidence to support at least two of the charges for aggravated indecent liberties against J.W. Cobum concedes that J.W. testified at trial that he touched her vagina one time in the basement of her grandmother’s house in Kansas. Nevertheless, Cobum argues that this testimony should be viewed with skepticism by the jury because J.W. had to be prompted by the prosecutor with her testimony from the previous trial.
As an appellate court, we do not weigh conflicting evidence or pass on the credibility of witnesses. Further, we resolve all questions of credibility in favor of the State. State v. Kuykendall, 264 Kan. 647, 651, 957 P.2d 1112 (1998). An appellate court looks only to the evidence that supports the verdict, and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Adams, 269 Kan. 681, 683-84, 8 P.3d 724 (2000).
At the trial held in this case, J.W. testified about an incident that occurred during Thanksgiving 1998 when Cobum was living with her and her family. According to J.W., Cobum tackled her to the floor, straddled her, and held her hands above her head. J.W. testified at the October 2005 trial that no inappropriate touching occurred during that incident. Nevertheless, in her April 2000 interview, J.W. informed the interviewing social worker that Cobum had touched her inappropriately during that incident. During her interview, J.W. also named several other incidents where Cobum had touched her inappropriately after he moved to Kansas. This interview was played to the jury at trial.
J.W. also testified about inappropriate touching that occurred in the basement of Rose’s house in Kansas. During one incident, Cobum straddled her, attempted to put his hand into her pants, and mbbed her upper thigh on the outside of her clothes within an inch of her vagina. Further, after being reminded of her testimony at the previous trial, J.W. testified that Cobum had touched her vagina in the basement of her grandmother’s home in Kansas. Although J.W. indicated that this incident occurred around Thanksgiving 1998, it must have occurred sometime in December 1998 or after because Cobum testified that he and Rose moved into their own house around December 1998. S.W. also testified about an incident that occurred in the living room of Rose’s house in Kansas where Cobum had touched both her and J.W. S.W. testified that Cobum had his arms around her and S.W. and was touching their private parts. S.W. had talked about this incident during her April 2000 interview.
When viewing the evidence in the light most favorable to the State, we find sufficient evidence to convict Coburn of the three charges of aggravated indecent liberties against J.W.
B. Charges Involving S.W.
The jury found Cobum guilty of tiiree counts of aggravated indecent liberties against S.W. All of the counts alleged that the act occurred between December 1, 1998 and March 1, 2000.
Cobum concedes that S.W. testified that Cobum touched her three separate times in Kansas. Nevertheless, Cobum points to inconsistencies in S.W.’s testimony to argue that there was not sufficient evidence to support the charges involving S.W. Essentially, Cobum is asking this court to review the evidence before the jury. “Appellate courts do not reweigh evidence and determine the credibility of witnesses. To do so invades the province of the jury. [Citation omitted.]” State v. Donaldson, 279 Kan. 694, 701, 112 P.3d 99 (2005). It is for the jury to resolve inconsistencies in testimony. State v. Cates, 223 Kan. 724, 731, 576 P.2d 657 (1978). When reviewing the evidence in the fight most favorable to the prosecution, we determine that there was sufficient evidence to convict Cobum of the charges of aggravated indecent liberties against S.W.
IV. Sufficiency of the Evidence — Sexual Exploitation of a Child Charge
Finally, Cobum argues that there was insufficient evidence to convict him of sexual exploitation of a child under K.S.A. 1998 Supp. 21-3516. When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Parker, 282 Kan. at 597.
Cobum maintains that even though the evidence at trial showed that the computer contained photos that might violate K.S.A. 1998 Supp. 21-3516, there was no evidence that he opened those web sites, downloaded any of those pictures, or even knew of their existence.
Here, the evidence at trial established that Cobum was the only person who used the computer at Rose’s house and that he was “always” on it. Moreover, Cobum’s name was on the Internet account found on the computer. On the day that Cobum fled, C.W. discovered child pornography on the computer. Evidence presented at trial revealed that child pornography sites had been visited on dates when Cobum was living in Rose’s house. Moreover, images of naked girls were discovered in the “My Documents” folder of the computer. The images of naked girls located in files on the computer were presented as exhibits at trial. This evidence was certainly sufficient to show that Cobum possessed the images on the computer. A conviction for even the gravest offense may be sustained by circumstantial evidence. State v. Dixon, 279 Kan. 563, 621, 112 P.3d 883 (2005).
Cobum also seems to argue that the State failed to establish that the images were of children under the age of 18. Coburn focuses on the testimony he presented at trial from a medical doctor working in the field of child abuse and neglect. The doctor could not give an opinion on the age of the individuals depicted in most of the images admitted as exhibits at trial. Moreover, the doctor testified that it appeared one of the girl’s images had been altered. Nevertheless, the doctor testified that in her opinion within a reasonable degree of medical certainty was that one of the girls depicted in the images was under the age of 18. Thus, the doctor’s testimony established that at least one of the images depicted a child under the age of 18. Moreover, the jury saw the pictures and, after hearing the doctor’s testimony, reached its own conclusion that the girls depicted in the pictures were under the age of 18. It is the jury’s function, not an appellate court’s, to weigh the evidence and determine the credibility of witnesses. State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 (2002).
After reviewing the evidence in the light most favorable to the prosecution, we determine that there was sufficient evidence to convict Cobum of sexual exploitation of a child in violation of K.S.A. 1998 Supp. 21-3516(a)(2).
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Hill, J.:
In order to receive an anticipated two-thirds sentence reduction, Ronnie L. McPherson entered into a plea bargain and pled no contest to one count of attempted second-degree unintentional murder. This appeal presents the question whether McPherson can now collaterally attack his plea and sentence because our Supreme Court has decided that crime does not exist under current Kansas law. This calls into question the legal effect of en tering a plea. We recognize that plea bargaining is an important component of Kansas criminal prosecutions. Such agreements represent compromises between two adversaries where both the prosecution and defense exchange the uncertainties and rigors of trial for the certainty of a plea and the reasonable probability that a court will follow the sentencing guidelines. We hold that McPherson has forfeited his right to attack any underlying infirmity in this charge because the record reveals that McPherson, originally charged with attempted first-degree murder, a valid crime in Kansas, with counsel, voluntarily and intelligently entered into this beneficial agreement. We affirm.
Prior Proceedings
In his criminal case, Ronnie L. McPherson was charged with kidnapping and attempted second-degree murder in March 1999. The victim, Kayla Riley, was shot in the upper thigh, lower abdomen, and right shoulder while running away from McPherson in the parking lot of her apartment.
Subsequently, the State amended the complaint and charged McPherson with attempted first-degree murder. The district court set over the trial to allow the State to receive its evidence back from the lab. McPherson did not object and waived his right to a speedy trial.
Then, before trial, the court attempted to hold a status conference. McPherson and his counsel appeared, but the State did not. After several phone calls by the judge’s administrative assistant, and after the administrative assistant went to the district attorney’s office to request its presence, the State still did not appear. Because the State did not appear, the court dismissed the complaint without prejudice.
Very soon thereafter, the State asked the court to reconsider. After hearing the State’s explanation, the court granted reinstatement of the case over the defendant’s objections. After reinstating the complaint, the court issued a summons. McPherson failed to appear, and the court issued a bench warrant. McPherson was arrested in Oklahoma, waived extradition, and returned to Kansas in late October 1999.
Ultimately, the parties reached an agreement. In January 2000, McPherson pled no contest to one count of attempted second-degree unintentional murder and one count of kidnapping. Before accepting McPherson’s no contest plea, the court inquired extensively of McPherson in order to determine whether he had made a knowing and voluntary plea. Specifically the district court asked McPherson if he understood he was waiving any and all defenses to the charges against him. McPherson acknowledged that he understood. Additionally, McPherson stipulated to the State’s proffer of a factual basis for a finding of guilt by using the testimony of witnesses from the preliminary hearing. McPherson also stipulated that the victim would testily that he was the shooter. The court then found that McPherson entered his plea knowingly and voluntarily and that there was a factual basis to support a finding of guilt.
The court imposed the aggravated presumptive sentences for a severity level 3 person felony and a severity level 4 person felony. Based on McPherson’s criminal history score of H, the aggravated presumptive sentence for kidnapping was 59 months. Using a criminal history score of I for the attempted second-degree unintentional murder, the court sentenced McPherson to the aggravated presumptive sentence of 43 months. McPherson did not appeal his plea or sentence.
In July 2001, McPherson moved to withdraw his plea, claiming it was manifestly unjust and it violated due process for the court to reinstate the charges and hold him in jail without informing him of the charges against him. The court denied the motion after concluding McPherson had waived any jurisdictional problems about his arrest by waiving extradition and by making a knowing and voluntary plea. McPherson filed a notice of appeal and had appointed counsel but later dismissed his appeal.
But, prior to dismissing his appeal, McPherson filed a K.S.A. 60-1507 motion pro se. In the motion, McPherson challenged the district court’s jurisdiction to reconsider the dismissal of his criminal case or reinstate the case after the dismissal. The court summarily denied the motion. McPherson filed a notice of appeal but never docketed the appeal.
Then, on May 21, 2004, McPherson’s counsel filed a K.S.A. 60-1507 motion. In this motion, McPherson requested that his convictions be vacated because his due process rights were violated when he was convicted and sentenced for a nonexistent crime. McPherson also alleged that trial counsel was ineffective for failing to challenge the district court’s personal jurisdiction over him; failing to raise speedy trial issues; and failing to be prepared for trial.
The State rebutted, contending that McPherson was not entitled to relief because this was an impermissible successive motion; that he had failed to previously seek relief through a direct appeal; and that the issues raised in his motion to withdraw plea, which McPherson voluntarily dismissed, were therefore moot in this K.S.A. 60-1507 motion. The court held an evidentiaxy hearing. McPherson was the only witness that testified at the hearing.
After due consideration, the court denied McPherson’s motion, holding that because McPherson was originally charged with a valid crime and benefited from a favorable plea agreement, his plea was acceptable. The court also concluded that McPherson forfeited any challenges to the infirmity of the charge by entering a knowing and voluntary plea. The court denied McPherson’s allegations of ineffective assistance of trial counsel after concluding that the K.S.A. 60-1507 motion was successive; that the district court had jurisdiction to reconsider its ruling dismissing the case prior to an appeal being docketed; that his trial was timely because it was held within 180 days as required by statute; and that he had failed to show that his plea was coerced.
In this appeal, McPherson argues that the court did not have jurisdiction to accept a plea to a nonexistent crime, attempted second-degree unintentional murder. He also argues that his sentence is illegal because Kansas does not recognize attempted second-degree unintentional murder and therefore no statute could specify a penalty for an unrecognized crime. McPherson also complains that his trial counsel was ineffective for failing to challenge the district court’s jurisdiction to reconsider its order of dismissal.
Scope of Review
When dealing with the denial of a K.S.A. 60-1507 motion after an evidentiary hearing in the district court, appellate courts employ a two-part review. First, the appellate court reviews the factual findings of the district court for substantial competent evidence and, second, determines whether those findings are legally sufficient to support its conclusions of law. Ultimately, the denial of a K.S.A. 60-1507 motion involves a legal question subject to unlimited appellate review. Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006), cert. denied 127 S. Ct. 1829 (2007).
Analysis
We focus on five areas of concern in this appeal. (1) Effect of plea. Here, we deal with the effect of entering a plea agreement and making a plea to what some courts refer to as a hypothetical crime. (2) Sentence legality. In this section we examine the sentence that was imposed. (3) Successive motion. Because this was McPherson s second K.S.A. 60-1507 motion, we must decide if it is barred by law. (4) Waiver of defects. We must answer whether McPherson waived all procedural defects by entering his plea. (5) Effective trial counsel. Finally, looking at the record we must decide if trial counsel’s performance satisfied constitutional requirements.
Effect of Plea
McPherson argues that a defendant cannot plead to a nonexistent crime under Kansas law. To the contrary, the State argues that a ruling by our court in Spencer v. State, 24 Kan. App. 2d 125, 942 P.2d 646 (1997), aff'd on other grounds 264 Kan. 4, 954 P.2d 1088 (1998), permits such a practice. In reply, McPherson contends that the Court of Appeals’ rationale is suspect based on the Supreme Court’s opinion affirming the case.
It is undisputed that our Kansas Supreme Court does not recognize attempted second-degree unintentional murder as a crime. In State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995), the court held that it is logically impossible for a person to have the specific intent to commit an unintentional killing. Here, McPherson pled no contest to a count of attempted second-degree unintentional murder.
In Spencer, citing a prior ruling of this court, a panel of our court thought that attempted aggravated assault was not a crime. Going further, Spencer held that a defendant is permitted to plead to a nonexistent crime as part of a plea agreement so long as the defendant (1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement. Spencer v. State, 24 Kan. App. 2d at 129.
On review, the Supreme Court in Spencer held that Spencer s crime did exist when he committed it, and thus he did not plead to a nonexistent crime. 264 Kan. at 5-6, 8. The Supreme Court did not overrule Spencer or disapprove its analysis.
The court dealt with a similar issue in Easterwood v. State, 273 Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002). In Easterwood, the movant argued that his conviction should be overturned because a recent Supreme Court case held that the felony murder rule did not apply when another criminal participant was killed during the crime by the lawful act of a police officer. The court rejected his argument by holding that Easterwood, who knowingly waived the right and opportunity to challenge his conviction at trial or through a direct appeal and pled guilty in order to obtain a favorable plea agreement, could not collaterally attack his conviction in a K.S.A. 60-1507 motion. 273 Kan. 361, Syl.
The Easterwood court acknowledged that it was troubled that the resolution of the case could depend on whether or not Easterwood pled guilty to a crime on a theory that the court recently concluded did not exist under Kansas’ felony murder statute. The court acknowledged that the Court of Appeals had held in Spencer that a defendant could plead guilty to a nonexistent crime and that the Supreme Court had not considered the issue on review because it had held the crime existed when Spencer committed it.
Instead, the Easterwood court focused on the effect of a plea. In its analysis, the court pointed out that the United States Supreme Court upheld a no contest plea in which the defendant professed innocence because the plea was made knowingly and voluntarily and was supported by a strong factual basis. When checked by the courts, no contest pleas allow a professed innocent person to avoid the uncertainties of trial and control the resolution of the case. 273 Kan. at 381-82 (citing North Carolina v. Alford, 400 U.S. 25, 38, 27 L. Ed. 2d 162, 91 S. Ct. 160 [1970]). The court affirmed Easterwood’s convictions and refused to allow him to challenge a voluntary and knowing plea based on a later favorable ruling, concluding that Easterwood invited the error in order to receive a favorable plea bargain. 273 Kan. at 383. Importantly, the Supreme Court did not reject or disapprove of the Court of Appeals’ analysis in Spencer.
Other appellate courts have followed this line of thought. In Illinois, the appellate court held that a defendant’s plea of guilty to a nonexistent crime is not unlawful if the defendant receives a benefit. People v. Myrieckes, 315 Ill. App. 3d 478, 485, 734 N.E.2d 188 (2000). The New York, Court of Appeals ruled that a defendant may plead guilty to a hypothetical crime. People v. Keizer, 100 N.Y.3d 114, 118 n.2, 790 N.E.2d 1149, 760 N.Y.S.2d 720 (2003). In Michigan, the court ruled that a defendant may plead guilty to an attempt, even though a jury conviction might be improper. People v. Genes, 58 Mich. App. 108, 111, 227 N.W.2d 241 (1975). The Delaware Supreme Court decided in Downer v. State, 543 A.2d 309 (Del. 1988), that the trial court had jurisdiction to accept a defendant’s guilty plea to a nonexistent crime where the defendant benefits from the plea agreement.
We also point out that some jurisdictions, ignoring the effect of a plea, have ruled the opposite way. For example, the Washington Supreme Court held that pleading guilty to a nonexistent offense does not meet the knowledge requirement for making a knowledgeable plea, and thus, defendants are entitled to collateral relief. Personal Restraint of Thompson, 141 Wash. 2d 712, 10 P.3d 380 (2000). In Colorado, the court rejected the distinction between a conviction of a nonexistent offense after a trial and a conviction of a nonexistent offense after a guilty plea, finding that the conviction is invalid. In People v. Stephenson, 30 P.3d 715 (Colo. App. 2001), the Colorado Court of Appeals held that the power to define crimes and prescribe punishments is vested exclusively in the general assembly and may not be usurped by courts.
Returning to Kansas law, we note that in addition to Easterwood and Spencer, the Supreme Court has rejected two opportunities to disapprove the Court of Appeals analysis in Spencer. Specifically, the Supreme Court has denied review on two other Court of Appeals cases that cited Spencer favorably for the proposition that a defendant may plead to a nonexistent crime. State v. Luthi, Case No. 91,409, unpublished opinion filed December 17, 2004, rev. denied 279 Kan. 1009 (2005); Mills v. State, Case No. 89,012, unpublished opinion filed October 17, 2003, rev. denied 277 Kan. 924 (2004).
In Luthi, this court affirmed the district court’s denial of the defendant’s motion to withdraw his Alford plea prior to sentencing. Despite the fact that he was arrested in a rural location, Luthi pled guilty to possession of methamphetamine with intent to sell, deliver, or distribute within 1,000 feet of a school. At the plea hearing, Luthi’s counsel and Luthi admitted that Luthi was entering an Alford plea to reduce the penalties that he would face if he was convicted by a jury for the charged crimes. Before accepting the plea, the district court conducted a lengthy colloquy with Luthi, which the panel quoted in its opinion extensively. Prior to sentencing, Luthi changed his mind and moved to withdraw his plea, arguing that because the facts did not support the plea, good cause existed to grant his motion. The court rejected Luthi’s claim in part by quoting Spencer, and held that a defendant could plead to a defective charge and that by doing so forfeited the right to subsequently challenge die plea. Slip op. at 15-16.
Similarly in Mills, the defendant challenged his guilty plea in a K.S.A. 60-1507 motion, claiming that district court erred in summarily denying his motion where the facts admitted at the plea hearing were insufficient to support the charge. The appellate court rejected his claim, in part, because although the facts did not align witii eveiy element of the crime, Kansas law permitted a defendant to plead guilty to a nonexistent crime. Slip op. at 4, 6.
The only case in Kansas that we could find that did not follow the Spencer rationale is State v. Hampton, Case No. 91,092, unpublished opinion filed Sept. 24, 2004, where this court reversed a district court’s denial of a motion to withdraw a plea because it was legally impossible for the defendant to have committed the crime. The panel distinguished Spencer because Hampton did not receive any benefit from the plea bargain. Slip op. at 13-14, 16.
Factually, we must conclude that the three requirements of Spencer are met here. First, McPherson was originally charged with attempted intentional second-degree murder; a valid crime under K.S.A. 1998 Supp. 21-3402(a) and then through amendment before trial with attempted first-degree murder, another valid crime. See K.S.A. 21-3401(a).
Second, McPherson pled no contest in order to receive the benefit of a favorable plea bargain. At the time of the plea, McPherson was charged with attempted first-degree murder, which was a severity level 1 person felony. See K.S.A. 21-3301(c); K.S.A. 21-3401. Kidnapping is a severity level 3 person felony. K.S.A. 21-3420. Based on McPherson’s criminal history score of H, his presumptive sentence would have been 232, 220, or 208 months for attempted first-degree murder plus 51,49, or 46 months for kidnapping. See K.S.A. 1998 Supp. 21-4704. Combined, McPherson faced a maximum sentence of 283 months.
Using the statutory formula provided in the attempt statute, attempted second-degree unintentional murder would be a severity level 4 person felony. See K.S.A. 21-3301(c) (“An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime.”); K.S.A. 1998 Supp. 21-3402. Under this statutory formula, McPherson was sentenced to 102 months. McPherson cut his sentence by nearly two-thirds by making this plea agreement.
Third, McPherson made a knowing and voluntary plea. McPherson makes no challenge to whether his plea was knowing and voluntary. Moreover, the record discloses a lengthy colloquy between the court and McPherson about what he understood and what he was waiving, that complied with procedural due process. See State v. Moody, 282 Kan. 181, 194, 144 P.3d 612 (2006) (noting K.S.A. 22-3210 embodies due process requirements articulated in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 [1969]).
Although the practice of permitting plea agreements such as this one to stand may seem illogical at first glance, such agreements serve a legitimate purpose. Compromises have long been permitted by our courts. Criminal cases are resolved by plea bargains virtually every day. As long as due process requirements are met and the bargain is beneficial to the defendant that defendant cannot later validly collaterally attack either the plea or bargained-for sentence. To paraphrase the Spencer court, if a defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to attack the underlying infirmity in the charge to which he or she pled. 24 Kan. App. 2d at 129.
We conclude that McPherson made a knowing and voluntary plea to receive a favorable plea bargain. He traded the possibility of a sentence of almost 300 months for the certainty of a 100-month sentence. The court did not err by denying his motion.
Sentence Legality
Appellate courts have unlimited review over the inteipretation of sentencing statutes. Sentencing statutes should be construed in favor of the accused with ordinary words given their ordinary meaning. The interpretation must be reasonable and sensible to implement legislative intent. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). A sentence is illegal under K.S.A. 22-3504(1) if it imposed by a court without jurisdiction, does not conform to the statutory provision, or is ambiguous. State v. Gayden, 281 Kan. 290, 291, 130 P.3d 108 (2006). An illegal sentence may be challenged at any time. K.S.A. 22-3504(1).
Using State v. McLaren, 14 Kan. App. 2d 449, 793 P.2d 763 (1990), McPherson attempts to persuade us that the district court imposed an illegal sentence by creating a sentence for a crime that is not defined by statute and that because he was illegally sentenced, his conviction must be vacated. McLaren originally pled guilty to felony theft. When the felony theft occurred, it was ranked as a class D felony. However, between the commission of the crime and sentencing, the legislature changed felony theft to a class E felony. The district court sentenced McLaren for an E felony. This court concluded that the district court was without the authority to reduce the severity level of the crime specified in the statute when the crime occurred and held the sentence imposed was illegal. Because the sentence imposed was illegal, the court reversed the district court’s denial of McLaren’s motion to withdraw his plea and directed the court to grant the motion and remanded the case for further proceedings. 14 Kan. App. 2d at 452.
The McLaren ruling is distinguishable from this case. In Mc-Laren, the district court used a severity level that was inapplicable when the defendant committed the crime. In this case, the court followed the statutory formula for determining the proper severity level for an attempted crime. K.S.A. 21-3301(c) provides: “An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1. An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime.” Unintentional second-degree murder is a severity level 2 felony. K.S.A. 21-3402. The district court ranked attempted second-degree unintentional murder two severity levels below the completed crime for sentencing purposes. Thus, the district court followed the statutory formula and did not impose an illegal sentence. There is no reversible error here.
Successive Motion
K.S.A. 60-1507(c) provides that a sentencing court is not required to entertain a second or successive K.S.A. 60-1507 motion that raises the same or substantially the same issues as a previous motion that was decided on the merits. See Supreme Court Rule 183(d) (2006 Kan. Ct. R. Annot. 227). Unless the movant demonstrates exceptional circumstances or the sentencing court accepts the motion to serve the ends of justice, the court may dismiss a successive motion on the ground its use constitutes an abuse of remedy. Woodberry v. State, 33 Kan. App. 2d 171, 174-75, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). Exceptional circumstances include unusual events or intervening changes in the law that prevented the movant from raising all possible trial errors in the first post-conviction proceeding. 33 Kan. App. 2d at 175.
McPherson has raised his jurisdictional claim twice before. First, in his motion to withdraw his plea, McPherson claimed it was manifestly unjust to allow him to plead no contest in a court which could not have had jurisdiction over him after it had dismissed and then illegally reinstated the criminal complaint. McPherson appealed but then voluntarily dismissed the appeal.
McPherson raised the jurisdiction issue again in a pro se K.S.A. 60-1507 motion that the district court summarily denied. Although he filed a notice of appeal, the appeal was never perfected. Twice before the issue was decided on the merits adversely to McPherson. Furthermore, he has made no showing of any exceptional circumstances concerning this case. Thus, the current motion is successive and McPherson’s jurisdictional argument must be dismissed.
Waiver of Defects
McPherson claims that his trial counsel was ineffective for failing to challenge jurisdiction by arguing that K.S.A. 2006 Supp. 22-3602(d) required the State to appeal the dismissal of charges or refile the complaint. McPherson seeks support from State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983). Zimmerman does rule that a dismissal is a final order; it is a final order for appellate purposes. In Zimmerman, the defendants challenged the jurisdiction of the appellate court to hear the case. Zimmerman did not address whether the district court maintained jurisdiction to reconsider an order that was not yet final.
The district court retains jurisdiction over a case until its order becomes final. Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052 (1994) (“In Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate court.”).
K.S.A. 60-259(f) provides that a district court may modify any final order upon a motion to alter or amend judgment filed within 10 days after the entry of judgment. This court has held that K.S.A. 60-259(f) applies in criminal cases in the absence of a specific statute to the contrary. See State v. Marks, 14 Kan. App. 2d 594, Syl. ¶ 2, 796 P.2d 174, rev. denied 247 Kan. 706 (1990). Although McPherson claims that the only remedy available for a dismissal of a complaint is for the State to refile the charges or appeal the dismissal, he cites a statute that deals with appellate jurisdiction. Therefore, the plain language of K.S.A. 22-3602(d) does not foreclose the State from exercising other posttrial procedural motions.
In this case, the State filed its motion to reconsider dismissal within 10 days of the dismissal. Defense counsel was notified and appeared at the hearing. The district court found good cause to set aside the order over defense counsel’s objections and reinstated the case. Because the motion was filed before the time for appeal passed, the district court retained jurisdiction to correct the defect until the order became final.
Going further, we must point out that both Kansas law and United States Supreme Court case law recognize the defendant’s ability to waive procedural defects by making a knowing and voluntary plea.
“Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.” K.S.A. 22-3208(3).
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seelrs to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court has no power to enter the conviction or impose the sentence.” United States v. Broce, 488 U.S. 563, 569, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989).
The Broce ruling has been adopted in Kansas. See State v. Edwards, 281 Kan. 1334, 1341, 135 P.3d 1251 (2006). Because McPherson’s appeal raises a procedural defect rather than a jurisdictional defect, he waived his complaint by pleading no contest.
His appeal must be denied on this point.
Effective Trial Counsel
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. The defendant must establish two factors to successfully prove that counsel’s assistance was so defective as to require reversal of a conviction. First, the defendant must show that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must demonstrate that counsel’s errors deprived the defendant of a fair trial. State v. Mathis, 281 Kan. 99, 109-10, 130 P.3d 14 (2006).
“ ‘Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.] To show prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]’ [Citation omitted.]” 281 Kan. at 110.
We see no errors in this record that lead us to believe that trial counsel’s performance fell below an appropriate standard. Even though McPherson alleges that trial counsel erred by not challenging the district court’s jurisdiction over McPherson, the record indicates that defense counsel objected to the State’s motion to reconsider. McPherson has not alleged that defense counsel failed to file or perfect an appeal at McPherson’s request challenging jurisdiction. Nor has McPherson alleged that counsel advised him to enter a plea even though he had a meritorious defense. In short, the record belies McPherson’s claimed error. The first requirement to make a successful claim of ineffective assistance of counsel has not been met here.
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Hill, J.:
A police officer impounded Reginald T. Warren’s car but did not arrest him. Before leaving the scene Warren asked to get some items from the car. Unsure of his safety, the officer searched the car first. A police officer may legally search an automobile for his own protection without a search warrant if the search is limited to those areas in which a weapon may be hidden. But here, the officer made an extensive search of the passenger compartment and trunk. Under the front seat of the car the officer found a day planner which he examined thoroughly and noted it may belong to someone other than Warren. In the backseat and trunk, he found stereo equipment. The officer reported these discoveries and, later, officers from a different city got a search warrant and recovered stolen property from the impounded car. The evidence from the car led to Warren’s convictions for burglary, theft, and criminal damage to property. We hold the first search made by the officer impounding the car was not reasonable because it exceeded the area the officer needed to search for his protection. We reverse and remand.
We first review some general principles of the law of search and seizure. Following that, we examine the actions of the police officer and the defendant. Taking all of that into account, we decide the first search was unreasonable. We need not address other matters raised in the appeal since we are remanding for a new trial.
The law lets an officer search for weapons for his or her protection.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. Any warrantless search is unreasonable unless it falls within an exception recognized in Kansas cases. See State v. Ibarra, 282 Kan. 530, 543, 147 P.3d 842 (2006). Currently, Kansas courts recognize nine exceptions: (1) consent; (2) search incident to lawful arrest; (3) stop and frisk (as explained by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 [1968],) and investigatory stops, K.S.A. 22-2402; State v. Moore, 283 Kan. 344, 154 P.3d 1 (2007) (traffic stops); (4) probable cause accompanied by exigent circumstances; (5) emergency doctrine; (6) inventory searches; (7) plain view; (8) administrative searches of closely regulated businesses; and (9) plain feel. See State v. Rupnick, 280 Kan. 720, Syl. ¶ 2, 125 P.3d 541 (2005). Obviously, we focus on the stop and frisk or Terry exception in this case.
The Terry exception was the focus in Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), where the United States Supreme Court stated that the “protection of police and others can justify protective [automobile] searches when police have a reasonable belief the suspect poses a danger.” 463 U.S. at 1049. The Terry search must be conducted within the passenger compartment of the automobile and be “limited to those areas in which a weapon may be placed or hidden.” Long, 463 U.S. at 1049.
But the preservation of evidence is not a permissible purpose of a Terry search of an automobile. See State v. Epperson, 237 Kan. 707, 715, 703 P.2d 761 (1985).
Warren raises the issue of whether the officer’s search of the car exceeded the permissible scope of a search for weapons. The State argues that Warren is raising this issue for the first time on appeal. It is true that issues — even constitutional issues — not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). But there are three exceptions to the general rule, according to State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). First, the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case. Second, consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. Third, the district court is right for the wrong reason. We will continue and address this issue under the first two exceptions because there are no disputed facts, and consideration of the issue is necessary to prevent the denial of fundamental rights.
The first search of the automobile was too extensive.
On January 5, 2003, Roeland Park Police Officer Mike Weaver stopped a car for speeding on a residential street. Reginald T. Warren was the driver. At some point Warren got out of the car and stood at its rear bumper. The record is not clear whether Warren freely decided to do this or whether the officer ordered him out of the car. The officer patted Warren down and found no weapons on him.
As with any traffic stop, the officer asked Warren for his driving license, proof of insurance, and car registration. Warren told the officer the car was not registered because he had recently bought it; however, he had no bill of sale to confirm his explanation. He also told the officer he did not have insurance. Instead of a driving license, Warren gave the officer a photocopy of an I.D.
Warren also told the officer the license plate on his car — a Ford Escort — actually belonged to a Dodge Spirit. When the officer asked for a computer records check on the tag, the results corroborated Warren’s claim. The officer also asked for a records check on Warren himself. The records said that Warren had a suspended license; was on parole in Kansas for aggravated robbery, burglary, and theft; and had “a history of obstruction” and was “known to resist.” Also, the dispatcher told the officer that Warren had an outstanding warrant from Jackson County, Missouri, for a misdemeanor probation violation. The dispatcher also stated the Jackson County authorities would not extradite Warren.
Officer Weaver decided to have the car towed. This decision to tow is at the officer’s discretion because the Roeland Park Police Department did not have a written policy for impounding and searching towed vehicles. The officer said he decided to have the car towed because it was parked on a heavily-traveled residential street, Warren was unable to provide proof of insurance, the car was not registered, and Warren had a suspended driving license.
The officer told Warren his car would be towed. Warren asked the officer if he could get some of his belongings out of the car. Officer Weaver told Warren that he would search the car before he would allow Warren to remove anything from it. At the suppression hearing the officer stated the purpose of this search was to check for ownership of the car and any weapons that might be in it. The officer suspected that, because of Warren’s criminal history, there might be weapons inside the car. The officer also said his suspicions arose after Warren requested to get back into the car once he knew his car was going to be towed.
The officer searched the driver s area and found a day planner underneath the driver s seat. The day planner was black, about 8 to 10 inches long, and closed with a zipper. The officer opened the day planner and found a social security card, a checkbook, and a AAA card. Those three items had the name “Jason Toomsen” on them. When asked, Warren could not explain why those items were in his car. This lack of explanation caused the officer to search more of the car. The officer continued his search to the passenger area and then searched the trunk.
In the backseat of the car, the officer found speakers and electronic equipment. In the trunk, he found miscellaneous items which he thought might be stolen. But the officer did not verify whether the items were stolen. The car was towed to an impound yard in Lenexa.
Officer Weaver let Warren go after the car was removed. The officer never placed Warren under arrest. While at the scene and before having the car towed away, the officer did not receive any information that would show that Warren s car had been stolen or involved in committing a crime.
The police used the information from this search to link Warren to a burglary of a house in Merriam, Kansas, that had happened the day before. Subsequently, the Merriam police got a warrant to search Warren’s car while it was still at the impoundment yard in Lenexa. The search of the car yielded stolen property and other evidence that was used in Warren’s trial.
Here, Warren concedes the officer had valid reasons for performing a Terry search on the car. But Warren contends the officer’s search exceeded the scope of a Terry search when he looked extensively through the day planner and searched the trunk of the car. Also, at the suppression hearing, the officer stated the purpose of this search was to check for ownership of the car and any weapons that might be in it. The State fails to address whether the officer’s puipose in searching the car or the search itself exceeded the scope of a Terry search.
It is true the day planner could have contained a weapon, but it did not. And, the officer s search did not stop with checking for weapons in the book. Instead, without any probable cause, the officer continued to search through the planner thoroughly. He found a social security card, a checkbook, and a AAA card, all of which had one Jason Toomseris name on them. (Toomsen had suffered a house burglary the day before.) When asked, Warren offered no explanation about the items or why they were in his car. This caused die officer to extend his search to the passenger area and then the trunk.
This search exceeded the legal limits of a Terry search, and the evidence gained from it must be suppressed. Neither party argues the inevitable discovery doctrine applies here, and we agree because of the lack of a written policy covering inventory searches of impounded cars and trucks by the Roeland Park Police Department. But Warren also argues that most of the State’s evidence was the result or “fruit” of the officer’s search of his car. Thus, he implies this court cannot “declare beyond a reasonable doubt that” the trial court’s error in not suppressing the evidence “had little, if any, likelihood of having changed the result of the trial.” See State v. McClanahan, 259 Kan. 86, 102, 910 P.2d 193 (1996). We agree; this error is not harmless.
We reverse and remand for a new trial with directions that all evidence arising from the first search of this car must be suppressed.
Reversed and remanded with directions. | [
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Marquardt, J.:
Raymond Dreiling, individually, and as administrator of the Estate of Loretta Dreiling, appeals the grant of summary judgment in a medical malpractice wrongful death case. We dismiss in part, reverse in part, and remand for further proceedings.
On February 25, 2002, Dr. Duncan Davis performed a laparoscopic cholecystectomy (gallbladder removal) on 70-year-old Loretta at Goodland Regional Medical Center of Goodland, Kansas (Goodland Regional). Dr. Kenneth Austin, Loretta’s long-time doctor, assisted Dr. Davis in the surgery.
On March 1, 2002, Loretta died. Dr. Davis issued a death certificate on March 11, 2002, stating that Loretta’s cause of death was “acute/fulminant liver failure,” with a secondary diagnosis of nodular cirrhosis. Raymond testified that “[t]he funeral director told us that an autopsy probably would not be helpful” and no autopsy was performed at that time.
A month after Loretta’s death, in April 2002, Raymond spoke with his attorney about Loretta’s death. In May 2002, Raymond contacted a law firm and asked them to investigate Loretta’s death; however, a month later, that law firm declined to pursue a claim. Four and one-half months after Loretta’s death, another attorney wrote that he and his associate were unable to determine the specific cause of death from Loretta’s medical records and recommended an autopsy be performed.
Raymond had Loretta’s body exhumed, and on August 9, 2002, Dr. Hubert Peterson conducted an autopsy. Dr. Peterson found severe micronodular cirrhosis in Loretta’s liver but concluded that Loretta’s cause of death was acute progressive pulmonary disease and acute bronchopneumonia.
On May 14, 2004, more than 2 years after Loretta’s death, Raymond filed suit against Dr. Davis, Dr. Austin, and Goodland Regional claiming that Loretta’s death was caused by medical malpractice. Raymond alleged that “as a result of the autopsy by Dr. Peterson, [he] first learned of the true cause of his wife’s death in August, 2002.” All defendants asserted in their answers, among other defenses, that Raymond’s claim was barred by the statute of limitations.
The district court denied defendants’ initial motions for summary judgment in 2005 because a genuine issue of material fact remained as to when the fact of death or negligence was reasonably ascertainable. In June and July 2006, after discovery had closed, all defendants filed supplemental or renewed motions for summary judgment.
In a joint response to all motions, Raymond maintained that summary judgment should not have been granted because Dr. Davis and Dr. Austin knew the actual cause of Loretta’s death but prepared a false death certificate, “thereby concealing the true cause of her death.” Raymond argued that the 2-year statue of limitations of K.S.A. 60-513(a) did not accrue on the date of Loretta’s death, and under K.S.A. 60-513(c) the statute of limitations was tolled because:
“The negligence that caused Loretta’s death was not reasonably ascertainable until her body was exhumed and an autopsy performed. At that point in time, the Plaintiff learned the true cause of his wife’s death. Therefore, the causal connection between the injury and die negligence of the Defendants was not identifiable (at the earliest) until August 23, 2002, the date of the autopsy report. It then became clear to the Plaintiff that the Defendants Austin and Davis had concealed the true reason for [Loretta’s] death.”
Raymond set forth the details of the legal investigation he undertook, claiming the inaccurate and misleading certificate of death thwarted any “meaningful” investigation. Raymond maintained, “[a]t the very least, the statute of limitations accrued when [the first lawyer he consulted] informed [him] that [the lawyer’s] firm was not interested in pursuing the medical malpractice claim but informed him to seek a second opinion before deciding.” In closing, Raymond argued that the issue of when the cause of action accrued should be decided by a jury.
To support Raymond’s arguments, he presented the following evidence:
(1) His own affidavit stating that Dr. Davis “prepared a Certificate of Death stating that [Raymond’s] wife died from acute/fulminant liver failure,” and “it is [his] belief that Dr. Duncan Davis and other defendants named [tjherein knew the reason for [his] wife’s death but prepared a false death certificate stating that she died from cirrhosis rather than pneumonia.”
(2) Dr. Peterson’s autopsy report.
(3) A June 2005 affidavit from Dr. Peterson, indicating that he determined Loretta’s cause of death “to be acute progressive pulmonary disease, acute bronchopneumonia, and not cirrhosis.”
(4) An affidavit from Raymond’s attorney acknowledging that when he composed his July 21, 2003, notice of claim letter to Goodland Regional pursuant to K.S.A. 12-105b(d), he “was under the impression that the statute of limitations for [Raymond’s] claim would run on March 1, 2004, that being two years from the date of his wife’s death.” However, “after further investigation it was brought to [counsel’s] attention that the statute of limitations for [the] claim would actually run two years from the date that [Raymond] reasonably ascertained the fact of the injury to his deceased wife was due to the defendants’ negligence, that being August 23,2004, two years from the date of the autopsy report of Dr. Peterson.”
On August 15, 2006, the district court granted summary judgment to all defendants, concluding, in pertinent part, that the action was barred by the 2-year statute of limitations because the fact of injury was reasonably ascertainable as of the date of Loretta’s death. Raymond timely appealed.
K.S.A. 60-513(a)(4), (5), and (7) provide that negligence, wrongful death, and medical malpractice actions must be brought within 2 years. The sole issue here is whether the district court properly granted summary judgment, finding that as a matter of law, Raymond’s cause of action accrued on March 1, 2002, the date of Loretta’s death.
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). Although the burden of pleading and proving the applicability of the affirmative defense of statute of limitations rests on the defendant, the plaintiff bears the burden of proving facts sufficient to toll the statute of limitations. Slaydon v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). Summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. Biritz v. Williams, 262 Kan. 769, 772, 942 P.2d 25 (1997). On appeal, we review the evidence and reasonable inferences that can be drawn therefrom in the favor of the party that defended against the motion for summary judgment. If reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment is inappropriate. Biritz, 262 Kan. at 772.
K.S.A. 60-513(c) provides:
“A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless 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 such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.”
This court has unlimited review of the district court’s interpretation and application of K.S.A. 60-513 to uncontroverted facts. Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996).
In granting summary judgment, the district court relied upon our Supreme Court’s decision in Davidson, which addressed how K.S.A. 60-513 applies in wrongful death actions. Davidson held, inter alia:
“(a) The ‘discovery rule,’ as codified in subparagraphs (b) and (c) of K.S.A. GO-SIS, expressly applies to the 2-year wrongful death hmitation at 60-513(a)(5).
“(b) The term ‘reasonably ascertainable,’ as applied in 60-513(b) and (c) in a wrongful death case, suggests an objective standard based on an examination of the surrounding circumstances.
“(c) K.S.A. 60-513(b) and (c) provide that the limitations period starts when the ‘fact of injury’ becomes ‘reasonably ascertainable.’ Inherent in ‘to ascertain’ is ‘to investigate.’ ‘Reasonably ascertainable’ does not mean ‘actual knowledge.’ The ‘fact of injury’ in a wrongful death action means the ‘fact of death.’ The limitations period should start on the date of death unless the information from, which the fact of death or negligence can be determined was either concealed, altered, falsified, inaccurate, or misrepresented. The fact of death should be a starting point for inquiry. The wrongful death plaintiff is charged with constructive knowledge of information that is available through a reasonable investigation of sources that contain the facts of the death and its wrongful causation.” (Emphasis added.) 259 Kan. 659, Syl. ¶ 2.
Here, the district court noted the uncontroverted facts that Raymond consulted an attorney within a month after Loretta’s death and engaged counsel to pursue a medical malpractice action on or before May 9, 2002. The district court concluded:
“The Plaintiff has been unable to come forth with evidence showing that the information from which the facts of death or negligence could be determined was either concealed, altered, falsified, inaccurate, or misrepresented. To the contrary, the uncontroverted fact that the plaintiff retained legal counsel to pursue a medical malpractice action with[in] 69 days of his wife’s death reveals that the fact of death or negligence was neither concealed, altered, falsified, inaccurate or misrepresented.”
On appeal, Dr. Austin and Dr. Davis focus on Raymond’s early discussions with a medical investigator about Loretta’s death. Dr. Austin argues that the facts in Davidson are analogous to the instant case.
The facts are not analogous. In Davidson, the widow spoke with an investigator in her counsel’s office less than a month after her husband’s death, at which time she became aware of possible negligent causation which “suggested] at least suspicion that something was wrong.” 259 Kan. at 675-76.
Davidson did not establish a bright fine rule that the wrongful death hmitations period may never be extended beyond 2 years from the date of death. 259 Kan. at 679. Rather, under the facts of the cases before it, the court concluded there were no circumstances justifying an extension under K.S.A. 60-513(c), “such as concealment of tire fact of death or of medical records [or] a misrepresentation, alteration, inaccuracy, or falsification of any type.” 259 Kan. at 679. Thus, in Davidson, there was no claim or allegation of any sort of concealment, alteration, or falsification of the medical records, nor was there any suggestion that medical personnel had made any inaccurate or misleading representations concerning the cause of death.
Here, Raymond focuses on the alleged misrepresentation or inaccurate statement concerning Loretta’s cause of death certified by Dr. Davis, claiming it should extend the statute of hmitations.
The facts that compelled the exhumation of Loretta’s body 5 months after her death are not revealed in the record on appeal. The only explanation offered by Raymond is that the funeral director told him an autopsy probably would not have been helpful. Raymond has not alleged he was prevented from obtaining an autopsy because of something the defendants did or failed to do. This seems to lead to the question of whether Raymond acted reasonably in not requesting an autopsy when he was admittedly suspicious about Loretta’s death. In other words, should Raymond be charged with constructive knowledge of what the autopsy ultimately revealed as of the date of Loretta’s death because it was an available source for investigation?
Generally, reasonableness is a fact question. It is only when it can be said that reasonable persons cannot reach differing conclusions from the same evidence that a material fact question may be decided as a matter of law. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 622, 706 P.2d 476 (1985). Resolution of this issue will likely involve credibility determinations, and it appears reasonable persons could reach different conclusions. The district court erred in granting summary judgment to Dr. Davis and Dr. Austin and that issue is reversed and the case is remanded for further proceedings.
Raymond moved this court to dismiss Goodland Regional as an appellee. In his brief, filed the same day as his motion, Raymond “acknowledges that the trial court was correct in dismissing [his] claim against Defendant Goodland Regional Medical Center pursuant to K.S.A. 40-3403(h).” This court denied the motion to dismiss. Goodland Regional filed a brief, which includes this issue.
Raymond’s and the estate’s claims against Goodland Regional appear to be for direct negligence, not vicarious liability for the actions of Dr. Davis and Dr. Austin. Goodland Regional is, therefore, dismissed.
Dismissed in part, reversed in part, and remanded for further proceedings. | [
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Green, J.:
Cimarex Energy Co. (Cimarex) appeals from the trial court’s judgment upholding the State Board of Tax Appeals (BOTA) discovery order compelling Cimarex to disclose in-house information concerning its remaining recoverable oil and gas reserves to the Seward County Board of County Commissioners (County). In ordering Cimarex to disclose its confidential in-house reserves information, BOTA found that such information was relevant because it could be probative of the fair market value of Cimarex’s oil and gas producing properties. On appeal, Cimarex contends that BOTA’s decision was not supported by substantial evidence and that the decision was contrary to the law. We agree.
Under K.S.A. 79-1456, a county appraiser is obligated to follow the Oil and Gas Appraisal Guide (Guide) prescribed by the Director of Property Valuation in the valuation of oil and gas producing properties. No part of the Guide calls for the use of a company’s confidential in-house reserves information in the valuation of oil and gas properties. The County concedes that neither it nor Cimarex used Cimarex’s confidential in-house reserves information in valuing Cimarex’s oil and gas properties. The County, however, argues that it should be able to look at Cimarex’s confidential in-house reserves information in order to determine whether Cimarex’s valuation under the Guide arrives at fair market value. Nevertheless, because Cimarex’s confidential in-house reserves information was never used by either Cimarex or the County in their valuation processes and because the Guide does not prescribe the use of such information in valuing oil and gas-producing properties, the information was not relevant to the proceedings before BOTA.
Moreover, a county appraiser may deviate from the Guide on an individual piece of property only upon a showing of just cause and in a manner consistent with estabfishing fair market value under K.S.A. 79-1456. Because the County in this case never showed “just cause” to deviate from the valuation method prescribed by the Guide, Cimarex’s confidential in-house reserves information was not relevant to a valuation of the property. Therefore, BOTA’s finding of “relevance” was not supported by substantial evidence, and its decision was contrary to K.S.A. 79-1456. Accordingly, we reverse BOTA’s order compelling Cimarex to disclose its in-house reserves information.
Facts
This case arose out of a K.S.A. 79-1448 equalization proceeding which Cimarex brought before BOTA concerning the valuation of one of its oil producing properties and five of its gas producing properties in Seward County, Kansas, for the 2002 tax year. Apparently, the 2002 property tax return was actually filed by Helmerich & Payne. Helmerich & Payne later merged with Cimarex, and Cimarex took over the oil and gas producing properties at issue in this case.
During the course of the administrative proceedings, the County sought and obtained a subpoena for Cimarex to produce documents concerning its in-house oil and gas reserves estimates. Ap parently, Cimarex provided some of the requested documents and served the County with its limited objections to disclosing the remainder of the requested information. The County later sought and obtained another subpoena for Cimarex to produce additional information concerning its reserves.
When Cimarex failed to produce the requested documents, the County moved for BOTA to issue an order compelling discovery. Cimarex responded to the County’s motion to compel and moved to quash portions of the County’s subpoena, arguing: (1) that the information was so highly confidential that a protective order could not provide adequate protection; (2) that the information was not relevant to determining the value of oil and gas producing properties in Kansas for property tax purposes and that the use of such information would be contrary to the uniform valuation procedures set forth in the Guide; and (3) that the requirement of disclosure of such information would have a “chilling effect” on operators seeking review of a county’s property tax assessment.
After an evidentiary hearing on the matter, BOTA issued an order granting tire County’s motion to compel discovery and denying Cimarex’s motion to quash.
Cimarex petitioned the Seward County district court for review of BOTA’s decision. The case was later transferred to the Shawnee County district court. In a memorandum decision and order, the trial court upheld BOTA’s order compelling discovery. The trial court, however, limited the required disclosure to the reserves information for Cimarex’s wells in Seward County that were at issue in this case. Cimarex appealed the trial court’s order to this court. This court issued an order requiring the parties to show cause why the appeal, which appeared to be interlocutory in nature, should not be dismissed for lack of jurisdiction. After both parties responded to the show cause order, this court retained the case and directed the parties to address the issue in their appellate briefs.
I. Jurisdiction
The County argues that this court should dismiss the present action for lack of jurisdiction because the action is based on an interlocutory discovery order. Whether jurisdiction exists presents a question of law over which this court’s review is unlimited. Riedmiller v. Harness, 29 Kan. App. 2d 941, 942-43, 34 P.3d 474 (2001), rev. denied 273 Kan. 1037 (2002).
A. Final Agency Action
Before the trial court, the County raised a similar argument. The trial court rejected the County’s argument, finding that BOTA’s discovery order was a “final agency action” from which Cimarex could seek judicial review.
Under K.S.A. 77-607(a), a person who has standing, has exhausted administrative remedies, and has timely filed a petition for judicial review is entitled to judicial review of a “final agency action.” Williams Gas Pipelines Central, Inc. v. Kansas Corporation Comm’n, 27 Kan. App. 2d 573, 576, 7 P.3d 311, rev. denied 270 Kan. 904 (2000). The terms “final agency action” and “final agency order” are not synonymous. Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 63, 66, 941 P.2d 424, rev. denied 262 Kan. 959 (1997). A “final agency action” is defined as “the whole or a part of any agency action other than nonfinal agency action.” K.S.A. 77-607(b)(l). A “nonfinal agency action” is defined as “the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.” K.S.A. 77-607(b)(2).
In this case, BOTA’s decision on the County’s motion to compel discovery is a final decision on the issue of the County’s access to Cimarex’s in-house information relating to its oil and gas reserves. As pointed out by the trial court, nothing is left unresolved regarding tire discovery issue except for the enforcement of the order. Therefore, BOTA’s decision on the County’s motion to compel is a “final agency action” within the meaning of K.S.A. 77-607(b). Therefore, the trial court and this court have jurisdiction to address the matter.
B. Petition for Reconsideration
The County suggests that under K.S.A. 2006 Supp. 77-529, a petition for reconsideration must be filed as a jurisdictional pre requisite to invoking judicial review on all orders of BOTA. K.S.A. 2006 Supp. 77-529(a) allows a party to file a petition for reconsideration within 15 days after service of a final order. K.S.A. 2006 Supp. 77-529(a) further states: “The filing of the petition is not a prerequisite for seeking administrative or judicial review except as provided in . . . K.S.A. 74-2426, and amendments thereto, concerning orders of the board of tax appeals.” K.S.A. 74-2426(b) states: “No final order of the board shall be subject to review pursuant to subsection (c) unless the aggrieved party first files a petition for reconsideration of that order with the board in accordance with the provisions of K.S.A. 77-529 and amendments thereto.” (Emphasis added.)
Both K.S.A. 2006 Supp. 77-529(a) and K.S.A. 74-2426(b) relate to petitions for reconsideration of a “final order.” In Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 22 Kan. App. 2d 410, Syl. ¶ 9, 916 P.2d 76, rev. denied 260 Kan. 994 (1996), this court defined a “final order” as “one which terminates litigation on the merits and leaves nothing to be done except to enforce the result.” It is undisputed in this case that BOTA’s order was not a final order on the merits of the equalization proceeding. Therefore, the requirements of K.S.A. 2006 Supp. 77-529(a) and K.S.A. 74-2426(b) have no application here.
II. BOTA’s Discovery Order
Cimarex contends that the trial court erred in upholding BOTA’s discovery order compelling it to disclose confidential in-house information concerning its remaining recoverable oil and gas reserves.
A. Standard of Review
Judicial review of BOTA orders is governed by K.S.A. 77-621. For purposes of this appeal, K.S.A. 77-621 requires this court to grant relief if: (1) the agency has erroneously interpreted or applied tire law, K.S.A. 77-621(c)(4); (2) the agency action is based on a factual determination, made or implied by the agency, not supported by substantial evidence when viewed in light of the whole record, K.S.A. 77-621(c)(7); or (3) the agency action is otherwise unreasonable, arbitrary, or capricious, K.S.A. 77-621(c)(8). See Board of Saline County Comm’rs v. Jensen, 32 Kan. App. 2d 730, 732-33, 88 P.3d 242, rev. denied 278 Kan. 843 (2004).
In appealing BOTA’s decision, Cimarex bears the burden of demonstrating error by the agency. See K.S.A. 77-621(a)(l). When the trial court has reviewed an agency’s action before this court’s review, we focus on the agency’s action and follow the same standards of judicial review. Helmerich & Payne v. Board of Seward County Comm’rs, 34 Kan. App. 2d 53, 57, 115 P.3d 149, rev. denied 280 Kan. 982 (2005).
BOTA is a specialized agency that exists to decide taxation issues, and its decisions are given great weight and deference when it is acting in its area of expertise. Nevertheless, if BOTA’s interpretation of the law is in error, an appellate court will take corrective steps. In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 694-95, 101 P.3d 1239 (2004).
B. Relevance of Subpoenaed Information
In reviewing BOTA’s order compelling Cimarex to produce the subpoenaed information, we note that ordinarily the enforcement of a subpoena duces tecum is left to the discretion of the enforcing tribunal. Nevertheless, a subpoena duces tecum is subject to K.S.A. 60-245(b), and it must be relevant and not unreasonable or oppressive. In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, Syl. ¶ 8, 891 P.2d 422 (1995).
Here, in rejecting Cimarex’s arguments raised in response to the County’s motion to compel, BOTA first determined that the requested information was “relevant” to the present case. Specifically, BOTA found that “any information or data on the subject of oil and gas reserves must be deemed relevant, particularly in the discovery stage, because such information could be probative of fair market value.” We will first review this finding to determine if it is supported by substantial evidence in the record.
A discussion of the procedure involved in valuing oil and gas producing properties for property tax purposes in Kansas is necessary to understand whether an oil and gas company’s in-house reserves information is relevant to valuation. In Helmerich & Payne, 34 Kan. App. 2d at 55-56, this court set forth such process as follows:
“For purposes of valuation and taxation in Kansas, all oil and gas leases and wells are considered personal properly. K.S.A. 79-329. Persons who own such personal property are required to file a statement of assessment on standard rendition forms on or before April 1 of each tax year. K.S.A. 79-332a. In practice, the county appraiser then reviews the taxpayer’s rendition and determines whether changes to the valuation are required and thereafter notifies the taxpayer of the appraised value. See K.S.A. 2004 Supp. 79-1460. The county appraiser is obligated to follow the Oil and Gas Appraisal Guide (Guide) prescribed by the Director of Property Valuation but may deviate from the Guide on an individual piece of property ‘for just cause shown and in a manner consistent with achieving fair market value.’ K.S.A. 79-1456.”
Once the county appraiser mails to the taxpayer the final determination concerning the valuation of the property, the taxpayer has 18 days to appeal to a county hearing panel. K.S.A. 2006 Supp. 79-1606. After the county hearing panel issues its decision, any person aggrieved may appeal to BOTA. K.S.A. 2006 Supp. 79-1609.
Paragraph 4 of the Foreword to the 2002 edition of the Guide reiterates the requirement under K.S.A. 79-1456 that the county appraiser is obligated “to follow the policies, procedures, and guidelines issued by the director of the division of property valuation.” Paragraph 4 further states that the county appraiser may deviate from the Guide on individual properties “for just cause shown and in a manner consistent with establishing market value in accordance with the state statutes.”
In determining valuation of oil and gas properties, a county appraiser must also consider the factors under K.S.A. 2006 Supp. 79-331(a). Helmerich & Payne, 34 Kan. App. 2d at 56. K.S.A. 2006 Supp. 79-331(a) states:
“Except as otherwise provided in subsection (b) of this section, in determining the value of oil and gas leases or properties the appraiser shall take into consideration die age of the wells, the quality of oil or gas being produced therefrom, the nearness of the wells to market, die cost of operation, the character, extent and permanency of the market, the probable life of the wells, the quantity of oil or gas produced from the lease or property, the number of wells being operated, and such other facts as may be known by the appraiser to affect the value of the lease or property.”
Our Supreme Court in Board of Ness County Commr's v. Bankoff Oil Co., 265 Kan. 525, 529, 960 P.2d 1279 (1998), quoted with approval the following language that describes the method used for valuing oil and gas leases under the Guide:
“ ‘[T]he theory of the [G]uide is that we are appraising the reserves that are in the ground. And so the guide, the basic mechanics of die guide is to discount income over a period of time to reflect the production capabilities of that reserve. And then it combines with that a rate of decline which is indicating that that reserve is depleting. That is combined with a discount, discounting the money— for the money that is not received until a later time. You get a present worth factor, which is a multiple of money, and that’s multiplied times the value, or price of the oil, times the production; and that’s to indicate a probable reserve value, from which is deducted the expenses for lifting the oil, to get a net working interest. Then they add the equipment, production equipment, to that, for the working interest. So it’s based on the probable life of the reserve, and the probable dollars per barrel that will be received by the operator, or the working interest.’ ”
This theory provides the basis for the following mathematical formula to compute gross reserves under the Guide:
_x_=_x_=_
Total Estimated Amount Production
Net Price
Estimated Gross Income
Present Worth Factor
Gross Reserve Value
See Bankoff, 265 Kan. at 529; Helmerich & Payne, 34 Kan. App. 2d at 57.
At the BOTA hearing in this case, the testimony presented by both Cimarex and the County established that the total estimated amount of production is based on a company’s reported historical production figures. John Cooper, one of Cimarex’s witnesses, worked for the Kansas Department of Revenue from 1976 to September 2002. During his employment with the Department of Revenue, he supervised the evolution of the Guide. Cooper also chaired the committee that annually updated the Guide. Cooper stated that the production information used in valuing oil and gas leases under the Guide is based on a company’s reported production information that can be checked through public sources and not on confidential in-house reserves information. Cooper further testified that there is no instruction or recommendation under the Guide that a company produce its confidential in-house reserves estimates for its production data. Cooper indicated that a company’s in-house reserves estimates, which are based on different parameters, are irrelevant for purposes of the Guide. Cooper further indicated that if a county were to demand the use of in-house reserves estimates instead of historical production for purposes of the valuation of oil and gas leases, the uniformity of the Guide’s application would be destroyed.
Moreover, Cimarex presented an affidavit and testimony from Ronald Cook, who had served on the Guide committee for the past 20 years. In addition, Cook is a licensed professional petroleum engineer who owns an oil and gas tax consulting business that prepares oil and gas property renditions covering property in Kansas. In preparing for his testimony, Cook prepared his own analysis of Cimarex’s reserves based on the in-place value method. The in-place value method is specified in the Guide as an alternative method that can be used for certain wells that do not have sufficient production history to estimate initial recoverable reserves by using a rate-time analysis. The Guide sets forth a four-step process to calculate the in-place value of the reserves. No step in the process requires the use of a company’s proprietary in-house reserves information. Cook testified that he did not use or rely on proprietary company reserves estimates or appraisals in preparing his analysis of Cimarex’s reserves based on the in-place value method.
Cimarex also presented deposition testimony from Stella Taylor, the Seward County appraiser, and Kerri Huskey, the Seward County oil and gas clerk who prepares oil and gas valuations. During her testimony, Huskey acknowledged that all four steps used in the in-place value method are based ultimately on production history and that nothing in the Guide specifically uses a company’s in-house reserves information.
The County’s witness acknowledged that the Guide bases a company’s reserves estimates on the company’s reported historical production. The County’s witness was John Hughes, the State Assessed Property Chief with the Property Valuation Division of the Kansas Department of Revenue. Hughes testified that such historical production figures used in the rendition are available from several publicly accessible sources.
The County conceded at oral arguments that neither it nor Cimarex used Cimarex’s confidential in-house reserves information in the valuation of Cimarex’s oil and gas properties. The County further admitted that both it and Cimarex used valuation methods prescribed by the Guide. The County contended, however, that it should be able to look at Cimarex’s in-house reserves in order to defend its valuation. The County contended that Cimarex’s confidential in-house reserves information would be relevant in determining whether Cimarex’s valuation process accurately reflects fair market value.
In its appellate brief, the County, in quoting the trial court’s decision, argues: “ ‘The discovery information sought is relevant because it is reasonable to believe that the information gained will be probative of tire fair market value of the reserves.’” The County’s argument can be reconstructed into the following categorical syllogism:
Syllogism One
Major Premise: All information that it is reasonable to believe will be probative of the fair market value of reserves is discoverable. (Appellee’s brief.)
Minor Premise: Cimarex has confidential information that it is reasonable to believe will be probative of the fair market value of its reserves. (Appellee’s brief.)
Conclusion: Therefore, Cimarex’s confidential information is discoverable.
This syllogism is logically valid. Although other reasons may exist to modify or to reject the premises or the conclusion, we focus only on the logical problem that this syllogism presents when it is considered along with another coexisting categorical syllogism that applies to the facts of this case:
Syllogism Two Major Premise: In calculating the value of oil and gas producing properties, all county appraisers are obligated to follow the Guide unless they deviate from the Guide by showing just cause and in a manner consistent with establishing market value in accordance with the state statutes (established by K.S.A. 79-1456 and the Guide).
Minor Premise: To use Cimarex’s confidential information in calculating the value of its properties is a deviation from the Guide (uncontradicted testimony of Cimarex’s experts).
Conclusion: Therefore, to use Cimarex’s confidential information in calculating the value of its properties, just cause must be shown to deviate from the Guide.
We now have a conclusion in the second syllogism that conflicts with the conclusion in the first syllogism. How do we have these two logically valid syllogisms resulting in conflicting conclusions? The flaw lies in the major premise of the first syllogism: “All information that it is reasonable to believe will be probative of the fair market value of reserves is discoverable.” The major premise is overbroad. It claims too much. Moreover, it rejects the settled principles of the Guide. Nowhere in the Guide is there prescribed the use of a company’s confidential in-house reserves information to determine valuation. Under K.S.A. 79-1456, the County is required to follow the Guide in the valuation of oil and gas properties. Any deviation from the Guide on an individual piece of property requires the County to show “just cause.” K.S.A. 79-1456. As a result, the County clearly attempts to subvert the “just cause” requirement by obtaining Cimarex’s confidential in-house reserves information and then labeling it as discovery.
This “just cause” requirement is contained in the major premise of the second syllogism. We know that the major premise of the second syllogism is legally sound. As we stated earlier, the major premise of the second syllogism is established by K.S.A. 79-1456 and the Guide.
In appraising Cimarex’s property in the past, the County never deviated from the Guide. Consequently, the County never met the “just cause” requirement to deviate from the Guide. BOTA determined that Cimarex’s confidential in-house reserves information was relevant because it could be probative of fair market value. Nevertheless, Cimarex’s confidential in-house reserves information was relevant only if there was “just cause” to deviate from the methodology prescribed by the Guide and to use this information to determine fair market value. With no “just cause’’ showing by the County, the information was not relevant to a valuation of Cimarex’s oil and gas properties.
The County’s argument can be characterized as attempting to discover Cimarex’s confidential in-house reserves information without first showing “just cause” to deviate from the Guide. One cannot, as the County tries to do, reverse the order of things and preserve tire validity of the Guide. To deviate from the Guide, the County needed to show “just cause.” Hence, the County needed to show that discovery of Cimarex’s confidential in-house reserves information would lead to achieving a fair market value for Cimarex’s properties. The County never met the “just cause” requirement and instead relied on the Guide in its valuation of Cimarex’s oil and gas properties. The County cannot circumvent the “just cause” rule under K.S.A. 79-1456 by obtaining information that is not called for under the Guide through a discovery order and using this information to establish the value of Cimarex’s properties.
BOTA’s finding that Cimarex’s confidential in-house reserves information would be relevant to the valuation of Cimarex’s oil and gas producing properties is not supported by substantial competent evidence. Moreover, BOTA’s discovery order violated the “just cause” rule in that it authorized the discovery of Cimarex’s confidential in-house reserves information when the County had never shown that this information would afford a basis for achieving the fair market value of the properties. Finally, because BOTA never found “just cause” to allow the County to deviate from the Guide to use a company’s confidential in-house reserves information to establish fair market value, BOTA’s ruling was contrary to K.S.A. 79-1456. Therefore, we reverse BOTA’s order under K.S.A. 77-621(c)(4) and (7).
D. Additional Arguments
We point out that Cimarex raises two additional arguments as to why BOTA should not have ordered the disclosure of Cimarex’s in-house reserves information: (1) that this information is so confidential that no protective order could adequately provide protection; and (2) that requiring operators of oil and gas properties to disclose such information would have a “chilling effect” on operators seeking property tax relief. Nevertheless, because the trial court’s finding of “relevance” was not supported by substantial evidence and because the trial court’s decision was contrary to law, it is unnecessary to address Cimarex’s additional arguments any further.
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Rulon, C.J.:
Defendant Conqual D. Lewis appeals his convictions for voluntary manslaughter and criminal possession of a firearm, arguing the venire panel was unconstitutionally comprised, the State improperly exercised one of its peremptoiy challenges, and the district court abused its discretion in denying die defendant’s motion for a downward sentencing departure. We affirm in part and dismiss in part.
The parties are aware of the underlying facts of the case, and we will limit our discussion of the facts to those necessary to address the legal issues raised in this appeal.
MOTION TO DISCHARGE TURY PANEL
The defendant’s primary contention on appeal involves the district court’s denial of his motion to discharge the juiy panel based upon a perceived systematic discrimination in Sedgwick County’s jury selection procedure. In challenging the implemented procedure, the defendant admits that Sedgwick County employs a random, race-neutral procedure for obtaining a pool of prospective jurors. However, the defendant contends that Sedgwick County does not enforce jury service, which results in a disparity in the representation of African-Americans on juries.
Both parties claim the applicable standard of review is de novo because the issue involves statutory interpretation. Although re search revealed no Kansas cases citing the applicable standard for reviewing a district court’s denial of a motion to discharge a jury, K.S.A. 22-3407 imposes an affirmative duty upon the party seeking discharge of the jury to prove the jury selection was improper. The district court’s ruling on a motion to discharge a jury, therefore, involves mixed findings of fact and conclusions of law.
Generally, this court will affirm and adopt a district court’s factual findings so long as the findings are supported by substantial competent evidence within the record. In reviewing the factual findings, an appellate court does not weigh conflicting evidence or evaluate the credibility of witnesses. See Evenson Trucking Co. v. Aranda, 280 Kan. 821, 836-37, 127 P.3d 292 (2006) (stating general scope of appellate review of district court’s findings of fact); State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006) (discussing standard of review for admission of eyewitness identification). Nevertheless, the ultimate legal conclusion to be drawn from the factual findings is subject to unlimited appellate review. See Corbett, 281 Kan. at 304; cf. United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998) (noting that review of a challenge to fair cross-section representation within the jury is a mixed question of fact and law but indicating an appellate court has de novo review).
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ’distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979).
Exclusion of a Distinct Group
At trial, the defendant filed a motion to discharge the jury panel, alleging that African-Americans are underrepresented in Sedgwick County jury pools due to systematic discrimination.. During the hearing on the motion to discharge the jury, the defendant submitted population data from the 2000 United States census. For statistical purposes, the defendant compared two tracts from Sedgwick County. One tract (Tract 1) had a total population of 13,271, 80% of which were African-American. The other tract (Tract 2) had a total population of 15,073, 90% of which were Caucasian. For purposes of the hearing, the district court accepted the defendant’s statistics that 8,707 African-Americans in Tract 1 were at least 18 years of age and that 11,421 Caucasians in Tract 2 were at least 18 years of age.
The defendant further presented data based upon Sedgwick County District Court records that indicated the number of jurors summoned from Tract 1 on November 15, November 29, December 6, and December 13 was 51 and the number from Tract 2 on the same dates was 67. The total number of summoned jurors from the two tracts was 118. Forty-three percent of the summoned jurors were from Tract 1; 57% were from Tract 2. There was no available data to suggest how many of the summoned jurors from each tract were actually African-American or Caucasian. Of the 118 summoned individuals from the two tracts, only 12 of the summoned jurors from Tract 1 reported for jury duty during the 4 weeks under consideration, whereas 24 of the summoned jurors from Tract 2 reported for jury duty.
The defendant’s discrimination argument is premised upon an assumption that the members of Tract 1 constitute a distinctive group of African-Americans within Sedgwick County. However, membership in Tract 1 does not necessarily infer a racial classification of African-American. While the individuals in Tract 1 were predominantly African-American, a significant portion (20%) of Tract 1 was classified in a different racial category. With respect to the jury pool data, there is no information regarding the number of African-Americans summoned on the specifically considered dates who failed to report for jury service. Therefore, the defendant’s data reliably establishes only that members of Tract 1 may be less likely to honor their jury summons than members of Tract 2.
Dr. James Sheffield, a professor of political science, testified that Tract 1, as a group, represented substantially lower income households than Tract 2. Sheffield opined that lower income made jury service more burdensome and the members of Tract 1 were less likely to report for jury service without being compelled. K.S.A. 43-156 prohibits the exclusion of individuals from jury service on the basis of socioeconomic status as well as on the basis of race. Nevertheless, the defendant failed to present any comparison information to demonstrate the actual income figures of the summoned individuals who reported for jury service against those who failed to report.
Consequently, the defendant’s data fails to establish a distinctive class within the community subject to exclusion on jury panels in Sedgwick County. As a matter of logic, an individual’s inclusion within Tract 1 does not establish his or her race or economic status. Consequently, geographical location within Sedgwick County arguably is the only determinative factor between the members of Tracts 1 and 2 who were summoned for jury duty on November 15, November 29, December 6, and December 13.
Underrepresentation
However, assuming that membership within a predominantly minority, lower-income population census tract would constitute a distinct group within the community at large, the defendant must additionally demonstrate the representation of the distinct group within jury pools is not fairly or reasonably commensurate with the group’s representation in the community. Allen, 160 F.3d at 1103. The defendant does not challenge the representation of Tract 1 within the lists of individuals summoned for jury service but argues that a disparity exists in the representation of jury panels actually assembled.
In Swain v. Alabama, 380 U.S. 202, 208-09, 13 L. Ed. 2d 759, 85 S. Ct. 824, reh. denied 381 U.S. 921 (1965), overruled in part Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court stated:
“Neither the juiy roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group .... We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%.”
Based on an analysis of the data presented by the defendant, 43% (51 out of 118) of the summoned individuals from Tracts 1 and 2 were from Tract 1. Of the total number of summoned in dividuals from the two tracts who reported for service, 33% (12 out of 36) were from Tract 1. Therefore, the representation of Tract 1 in the pool from which the juiy was ultimately selected was 10% less than the representation of Tract 1 in the pool of randomly summoned jurors. According to Swain, this disparity does not establish purposeful discrimination.
Systematic Exclusion
Finally, the defendant is unable to establish that any disparity in the venire is caused by a system of discrimination. A party is not entitled to a jury panel that mirrors the community at large or closely reflects the various distinctive groups within the population. Taylor v. Louisiana, 419 U.S. 522, 538, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). Therefore, in order to prove systematic exclusion, the moving party must establish the exclusion is inherent in the jury selection procedure employed by the court. See United States v. Ireland, 62 F.3d 227, 231 (8th Cir. 1995).
In State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992), our Supreme Court considered whether use of voter registration records to create juiy pools constituted systematic discrimination because minorities were less likely to register to vote than Caucasians. Recognizing that the State imposed no bar to minorities’ ability to register to vote, the Bailey court rejected the defendant’s claim of discrimination. “The use of voter registration lists for jury panels excludes one group of persons otherwise eligible for jury service— those who do not choose to register to vote. These persons do not constitute a cognizable group.” 251 Kan. at 162.
Similarly, here, the State has imposed no obstacles that prevent a discernible class of individuals from reporting for jury duty. The Sedgwick County District Court issued summons to all prospective jurors on the same date; the court enforced the summons in the same manner. The fact that a certain segment of the community honored the summons slightly better tiran another segment of the community does not establish a program of systematic discrimination, even if the segment of the community which fails to honor the summons is predominantly from one minority group.
The defendant contends the district court was statutorily required to compel jury service by issuing $ 100 fines upon individuals who inexcusably failed to report for jury duty. K.S.A. 43-165 provides, in part, “Unexcused, nonattendance of a person summoned unless reasonable cause for such nonattendance be shown to the satisfaction of the court shall be punished by the imposition of a fine not exceeding one hundred dollars ($100) for each day of unexcused absence.”
While the district court juiy clerk admitted that no summoned juror had ever been sanctioned for failing to appear for juiy duty, the court’s failure to comply with K.S.A. 43-165 does not establish a system of discrimination. The failure to impose sanctions upon jurors who fail to appear for service is applied equally to the entire community. The defendant argues that lower income individuals are more likely to fail to appear for jury duty without excuse than higher income individuals, yet the defendant provides no factual support for this assertion. Professor Sheffield testified that failure to compel jury service might have a disproportionate impact on lower income individuals who cannot accept the pay loss by attending the jury service, but Sheffield’s opinion did not take into account the possibility that economic hardship might also provide reasonable cause for failing to appear.
According to the court’s juiy clerk, the number of summoned jurors who failed to report for service included those who were permanently and temporarily excused due to ineligibility or personal hardship. As a result, members of Tract 1 were potentially excused from juiy service on the specified dates in November and December in greater proportion than the individuals in Tract 2. This undermines the defendant’s claim that enforcement of jury service would lead to a more equal representation of Tract 1 in Sedgwick County jury pools.
The situation presented in this case is distinguishable from the situation presented in Taylor v. Louisiana, 419 U.S. 522. In Taylor, die United States Supreme Court struck down a Louisiana exemption which allowed women to choose whether to serve on a jury. The practical effect of allowing a specified class to choose whether to attend juiy service was discrimination against that class with respect to the jury composition. Here, the district court’s failure to compel jury service does not target a specific class. There is insufficient evidence from which to conclude that failure to compel jury service has any disparate effect upon individuals from Tract 1 reporting for jury service. While compelling jury service might increase the percentage of summoned individuals who appear for jury service in Tract 1, it might additionally increase the percentage of summoned individuals who appear for jury service in Tract 2 proportionately or at a greater proportion.
In short, the defendant has totally failed to establish that Sedgwick County’s failure to compel jury service through K.S.A. 43-165 constituted a system of discrimination which worked to cause disparity in the jury representation of a distinct segment of the community. The district court properly denied the motion to discharge the jury.
BATSON CHALLENGE
The defendant next contends the district court erred in affirming the State’s use of its peremptory challenge to remove one of three African-American jurors on the jury panel. Claims that a prosecutor has sought to exercise peremptory strikes in a discriminatory manner are governed by Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
A Batson challenge involves a three-step inquiry. First, the court must consider whether the defendant established a prima facie showing that the prosecutor exercised the peremptory strike on the basis of race. This consideration involves a question of law subject to unlimited review. State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).
In determining whether a defendant has established a prima facie case of discrimination, a court should examine all of the relevant circumstances. It is insufficient evidence of discrimination merely to allege that one of the potential jurors struck from a jury was of a particular minority race. See State v. Sledd, 250 Kan. 15, 20, 825 P.2d 114, cert. denied 506 U.S. 849 (1992) (citing Batson). Here, the defendant’s only argument in challenging the State’s peremptory strike of one of three African-American jurors passed for cause was that she was African-American and that she had not indicated that she would be unfair or partial.
The fact a juror has not demonstrated an incapacity to judge fairly or impartially merely protects them from being challenged for cause. If a Batson challenge could be established merely by demonstrating that a juror who was objectively fair and impartial had been challenged, the use of peremptory challenges would be meaningless, because any juror deemed unable to be fair and impartial could be challenged and removed for cause. Consequently, the district court properly held the defendant had failed to present a prima facie showing of racial discrimination in the exercise of the State’s peremptory strikes.
Nevertheless, the district court took the additional precaution of requiring the State to provide a race-neutral reason for striking the juror. See Sledd, 250 Kan. at 21 (encouraging district courts to require State to provide race-neutral bases for strikes even when court has ruled defendant failed to prove discriminatory purpose behind strikes). This is the second step of the Batson analysis. See Pham, 281 Kan. at 1237.
When reviewing a prosecutor’s explanation for a peremptory challenge, a court must not require a persuasive or plausible reason but must consider whether the reason is facially valid. If the explanation is not inherently discriminatory, the explanation will be presumed to be race neutral. Pham, 281 Kan. at 1237. Here, the prosecutor explained the challenged juror was a nursing student who was unemployed; therefore, the prosecutor did not know the source of the juror’s livelihood. The prosecutor noted he had challenged the only other juror who indicated current lack of employment. The prosecutor additionally explained the challenged African-American juror visited the crime scene four times per week. After defense counsel attacked the prosecution’s race-neutral reasons, the prosecution added an additional reason: the challenged juror’s young age and lack of life experience.
During voir dire, the challenged African-American juror indicated she had never been married, she rented her residence, she was a full-time nursing student, and consequently was unemployed. She further admitted she regularly visited the crime scene four times per week. One of the other jurors who admitted he frequently drove by the crime scene was nonetheless seated on the jury. However, the record supports the prosecutor’s explanation he did not wish to have unemployed jurors on the jury panel and the challenged African-American juror was young.
In the final step of the Batson analysis, the court must determine whether the defendant has carried his or her burden of showing of purposeful discrimination in the exercise of a peremptory challenge. Because the district court’s determination inherently involves weighing credibility, appellate review of this step of the Batson analysis is highly deferential to the district court. A district court’s determination that a peremptoiy challenge was constitutionally permissible will be reversed only upon a showing of an abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the court. See Pham, 281 Kan. at 1236-37.
Here, the district court found the defendant had failed to establish purposeful discrimination in the State’s exercise of its peremptory challenge against one of the three African-American jurors passed for cause. Based on the record on appeal, the district court’s determination is reasonable and cannot be deemed an abuse of discretion.
SENTENCING DEPARTURE
The final argument raised by the defendant in this appeal concerns the district court’s denial of his motion for a downward durational sentencing departure. An appellate court possesses no jurisdiction to review a presumptive sentence imposed under the Kansas Sentencing Guidelines. K.S.A. 21-4721(c)(l). Even review of a claim that a sentence was induced by partiality, prejudice, oppression, or corrupt motive is limited to departure sentences. State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000).
Because the defendant’s sentence fell within the presumptive sentencing guidelines range, this court lacks jurisdiction to consider the defendant’s departure argument. “The right to appeal is entirely a statutory right; the Court of Appeals has only such appellate jurisdiction as is conferred by statute pursuant to the Kansas Con stitution, and when the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal.” City of Wichita v. Smith, 31 Kan. App. 2d 837, 839, 75 P.3d 1228 (2003). Accordingly, this issue must be dismissed.
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Greene, P.J.:
The Kansas Corporation Commission (KCC) appeals a district court judgment that reversed a KCC order and awarded interest to a group of rural telecommunication companies, which received a restoration of support payments they had lost from the Kansas Universal Service Fund (KUSF) for access line adjustments under K.S.A. 66-2008(e). The restoration of these payments was ordered by the KCC after a mandate from this court that affirmed the district court and overturned the basis utilized by the KCC in calculating the appropriate adjustments to KUSF support for 2003 through 2005 because the KCC failed to consider the required statutory factors for each such adjustment. Bluestem Telephone Co. v. Kansas Corporation Comm’n, 33 Kan. App. 2d 817, 109 P.3d 194, rev. denied 280 Kan. 981 (2005) (Bluestem I). When the KCC decided on remand to simply restore the prior support payments absent any recalculation of the proper adjustments for the subject periods, the companies claimed they were entitled to interest on the restored amounts. We disagree and reverse the district court, concluding the prior judgment affirmed by this court was not a complete and final determination subject to postjudgment interest as a matter of law.
Factual and Procedural Background
The KUSF was established to provide a subsidy for local exchange telephone carriers in order to replace revenue lost from bringing intrastate and interstate rates into parity pursuant to state and federal law. See Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 264 Kan. 363, 368-69, 375, 956 P.2d 685 (1998). In determining such support for 2003 through 2005, the KCC made adjustments to these subsidy or support payments on a per-line basis rather than on the four factors set forth in K.S.A. 66-2008(e), i.e., embedded costs, revenue requirements, investments, and expenses. The companies objected to this method of determining adjustments, and when the KCC rejected their claims, judicial review resulted in a district court finding that the KCC had “disregarded” the legislative requirements; the court then rescinded the KCC per-line adjustments and ordered the KCC to examine the costs of all qualified companies to determine KUSF distributions. See Bluestem I, 33 Kan. App. 2d at 821.
On remand, the KCC now claims it faced a dilemma “that the audits necessary to establish embedded costs are time consuming and complex, and were impossible to accomplish in a reasonable time frame.” Accordingly, the KCC determined that the only practical solution for compliance with the judicial mandate and the statutory requirements was simply to return or “restore” to the recipients all of the KUSF support that had been reduced as a. result of the per-line adjustments. This resulted in rather sizeable restoration payments totaling nearly $3.5 million to the companies.
The companies sought interest on the restored payments, but the KCC found and concluded they were not entitled to interest for two reasons: (1) because they waived postjudgment interest when it was not raised and requested in the initial proceedings; and (2) because the courts had not awarded damages or compensation in an amount “readily determinable” but merely provided statutory interpretation to be implemented on remand. On judicial review by the district court, however, the court agreed with the companies, concluding that the effect of the court’s order “resulted in specific sums of money being paid to [the companies]” thus entitling them to interest from the date of the prior district court order (April 30, 2004), relying principally on Greenhaw v. Board of Johnson County Comm'rs, 245 Kan. 67, 744 P.2d 956 (1989).
The KCC appeals the order of the district court, contending it erred in awarding interest under these circumstances.
Standard of Review
The standard of review for an agency determination is controlled by K.S.A. 77-621(c), and when an appellate court reviews a district court determination under the statutory scheme, we determine whether the district court followed the requirements and restrictions placed upon it and then make the same review of the agency action as that set forth for the district court in the statute. In re Tax Protest of United Ag Services, 37 Kan. App. 2d 902, 905-06, 159 P.3d 1050 (2007).
To the extent this appeal requires that we construe and apply K.S.A. 16-204 (interest on judgments), we are not bound by die district court’s interpretation and are obligated to interpret and apply the statute de novo. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). Although we give some deference to an agency’s interpretation of statutes that the agency is charged with implementing (see, e.g., Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 247, 75 P.3d 226 [2003]), we do not perceive K.S.A. 16-204 as such a statute.
To the extent tiiis appeal requires that we determine compliance with a prior mandate of this court, we have unlimited review. Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 231, 898 P.2d 1131 (1995).
Did the Companies Waive any Right to Postjudgment Interest by Failing to Seek Such Interest From the Outset of these Proceedings?
Before examining the merits of the companies’ entitlement to postjudgment interest, we address the KCC’s argument that any such claim has been waived. The KCC concluded that postjudgment interest had been waived by the companies because it was not requested in the original action. The district court disagreed, concluding the issue of interest did not arise until the KCC determined amounts owed.
The general rule is that postjudgment interest is not waived by a failure to request it in a pleading:
“[W]here interest attaches automatically until the judgment is paid, interest may be awarded whether or not it is prayed for in the petition, or mentioned in the judgment. Thus where interest is payable by virtue of statute or rale of court and not by virtue of a contract, it generally is not necessary to make a specific claim for interest in the declaration or complaint.” 47 C.T.S., Interest and Usury S 137, pp. 172-73.
Other states with statutes providing for postjudgment interest similar to K.S.A. 16-204 have determined that judgments bear such interest automatically. See, e.g., Westport Recovery Corp. v. Batista, 965 So. 2d 1189, 1190 (Fla. Dist. App. 2007); Olcott Intern. v. Micro Data Base Systems, 793 N.E.2d 1063, 1079 (Ind. App. 2003); Office of Attorney General of Texas v. Lee, 92 S.W.3d 526, 528 (Tex. 2002).
In addition to these state court authorities, we note that federal authorities generally hold that postjudgment interest accrues automatically in federal courts. See Grimsley v. MacKay, 93 F.3d 676, 678 (10th Cir. 1996) (“Post-judgment interest automatically accrues from the date of judgment even absent an express statutory provision so providing or express inclusion in the judgment itself.”); Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 244 F. Supp. 2d 1250, 1275 (D. Kan. 2003) (“The law is clear . . . that plaintiffs are entitled to post-judgment interest . . . despite their failure to request such an award in the pretrial order.”).
The KCC relies on Feaster Trucking Services, Inc. v. Kindsvater, Inc., 460 F.2d 180 (10th Cir. 1972), to support its argument. The companies emphasize, however, that Feaster did not involve a determination of whether postjudgment interest should be automatically awarded, but rather involved a challenge to the interest rate used to calculate an award of postjudgment interest. See 460 F.2d at 184. This is obviously not the issue framed here. Moreover, the only other authority relied upon by the KCC dealt with the issue of waiver in the context of prejudgment interest and, thus, is also inapplicable here. See Clinton v. Joshua Hendy Corporation, 264 F.2d 329, 334 (9th Cir. 1959).
The KCC’s argument is wholly unpersuasive to this court in light of the general rule and the inapplicability of the cases relied upon by the KCC. We hold that any entitlement to postjudgment interest under K.S.A. 16-204 attaches automatically and was not waived by the companies’ failure to previously plead or otherwise request such interest. Thus, the district court did not err in rejecting the KCC’s waiver argument, and we affirm this aspect of the district court’s judgment.
Were the Companies Entitled to Interest on KUSF Restoration Payments?
We embrace at the outset the fundamental principle that the loss of the use of money ought to be compensated, whether occasioned by delay or default of an ordinary citizen or the State or one of its political subdivisions. Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 357, 532 P.2d 1081 (1975). It is beyond question that K.S.A. 16-204 authorizes the assessment of postjudgment interest against the State and any agency or political subdivision of the State. City of Lenexa v. Board of Johnson County Comm'rs, 237 Kan. 782, 786-87, 703 P.2d 800 (1985). The statute provides in material part:
“Except as otherwise provided in accordance with law, and including any judgment rendered on or after July 1,1973, against the state or any agency or political subdivision of the state:
“(d) Any judgment rendered by a court of this state on or after July 1, 1986, shall bear interest on and after the day on which the judgment is rendered at the rate provided by subsection (e).” K.S.A. 16-204.
We also embrace the rationale and holding of the court in Green-haw, that a specific amount of money need not be stated in the judgment in order to trigger postjudgment interest liability under K.S.A. 16-204, so long as the judgment is a final determination of the rights of the parties in the action and specifies a “readily determinable” sum. 245 Kan. at 70-71. We view the ultimate issue in this appeal as whether the judicial outcome in Bluestem I was a final determination of the rights of the parties in the action.
Obviously, the district court also embraced Greenhaw and believed that there had been a final determination of the rights of the parties with “specific sums of money being paid to [the companies].” The error inherent in this finding, however, is apparent from the court’s own statements as to the cause of finality; it was not merely the judicial outcome, but rather “the effect of the Court’s orders and the actions of the Commission” that resulted in monetary restoration. In other words, it was not until the KCC determined to restore prior payment reductions that its obligations became final and definite. This key aspect of the district court’s reasoning is clarified by this excerpt from its memorandum decision:
“The claim of the Commission that [the companies] waived the right to seek interest fails, because the issue of whether interest would be owed did not arise until the Commission elected to return of a fixed amount to the Petitioners. The Court recognizes that there were disputes and disagreements as to the amount due as a refund to some companies. However, refund payments by the Commission made the amounts reasonably clear, definite, and established the rights and obligations of the parties. Since neither the Commission nor the Petitioners challenged the amount of the refunds, this constitutes the final determination of the rights of the parties.” (Emphasis added.)
Clearly, the district court recognized that there was no final, definite adjudication of the rights of the parties by reason of the prior district court action or this court’s review thereof, but rather any finality and definiteness was achieved only upon the KCC’s action on remand. For this reason alone, postjudgment interest under K.S.A. 16-204 was not triggered by die prior judgments of either the district or appellate court.
We believe the lack of finality of the district court’s judgment and this court’s mandate and remand is also clearly apparent from the language in this court’s opinion in Bluestem I. We believe this court made quite clear that the KUSF adjustments were incorrect, but it was contemplated that the KCC should address the proper calculation of such adjustments on remand. The opinion stated in material part:
“We agree with the district court’s interpretation of the statute in question; it is unambiguous and directs that these funds are to be distributed based on embedded costs.
“. . . [W]e think the Commission needs to reassess the issue of whether the KUSF funds are being distributed on a competitively neutral basis as required by law and, therefore, remand that matter to the Commission for further proceedings.
“The district court rescinded the Commission’s order allowing a per-line distribution of KUSF funds effective March 1, 2003. The court also ordered the Commission to examine the costs of all qualified telecommunications entities providing local service to determine KUSF distributions. . . .
“This subset of LECs must have their KUSF distribution computed on their embedded costs, revenue requirements investments, and expenses. . . .
‘We believe the Commission must take a look at this matter again especially in light of our ruling upholding the district court’s interpretation of K.S.A. 66-2008(e).” Bluestem, I, 33 Kan. App. 2d at 818-28.
We agree with the KCC’s characterization of our mandate; we reversed the KCC’s previous order because the KUSF adjustments had not been based on the statutory criteria. On remand, “[t]he Commission could have approached the courts’ determination in two alternative ways: (1) recalculate all the rural telecommunication companies’ embedded costs, revenue requirements, investments, and expenses; or (2) simply return the money.” Given this latitude on remand, there was simply no finality resulting solely from the judgment of the district court or this court’s mandate. The Greenhaw requirement that postjudgment interest is payable if there has been a final determination of the rights of the parties in the action specifying a “readily determinable” sum was clearly not present here. Until the KCC determined which of the two alternate approaches to its obligations would be selected, the rights of the parties were not yet finalized.
We reverse the district court’s award of postjudgment interest under K.S.A. 16-204 based on the circumstances presented.
The judgment of the district court is affirmed in part and reversed in part. | [
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Green, J.:
Bruce M. Kogler was charged with driving under the influence (DUI). He moved to suppress evidence of a breath test because the arresting officer had failed to properly advise him of the implied consent advisory. The trial court granted the motion. On appeal, the State argues that the trial court improperly suppressed the evidence of the breath test because the implied consent advisory given was only a technical irregularity with the notice provisions under K.S.A. 2005 Supp. 8-1001(f). Because the implied consent advisory that the officer intended to give and did give and what Kogler did receive was different from the implied consent advisory that the officer was required to give under K.S.A. 2005 Supp. 8-1001(f), we conclude that the officer’s implied consent advisory did not fulfill the notice requirements of K.S.A. 2005 Supp. 8-1001(f). Accordingly, we affirm.
On July 16, 2005, Trooper Scott Walker of tire Kansas Highway Patrol arrested Kogler for DUI. Walker read Kogler the implied consent advisory DC-70 form, but read from an outdated form. Due to the change in the DUI laws, specifically K.S.A. 2005 Supp. 8-1001(1), the DC-70 form had been revised effective July 1,2005.
Walker should have read Kogler an implied consent advisory that mirrored K.S.A. 2005 Supp. 8-1001(f)(D). The advisory should have substantially read:
“If you do not have a prior occurrence in which you refused or failed a test or were convicted or granted diversion on a charge of driving under the influence of alcohol and/or drugs, and you refuse to submit to [testing] . . . , your driving privileges will be suspended for 1 year. If you have had one such prior occurrence and refuse a test, your driving privileges will be suspended for 2 years. If you have had two such prior occurrences and refuse a test, your driving privileges will be suspended for 3 years. If you have had three such prior occurrences and refuse a test, your driving privileges will be suspended for 10 years. If you have had four or more such prior occurrences and refuse a test, your privileges will be permanently revoked.”
The implied consent advisory form read to Kogler included language from an earlier version of the statute. The previous statute contained a 5-year look back period for refusal or failure of a breath test or conviction or diversion on a charge of driving under the influence. The advisory given to Kogler stated:
“If you do not have a prior occurrence in the past five years in which you refused or failed a test or were convicted or granted diversion on a charge of driving under the influence of alcohol and/or drugs, and you refuse to submit to [testing] . . . , your driving privileges will be suspended for 1 year. If you have had one such prior occurrence in the past five years and refuse a test, your driving privileges will be suspended for 2 years. If you have had two such prior occurrences in the past five years and refuse a test, your driving privileges will be suspended for 3 years. If you have had three such prior occurrences in the past five years and refuse a test, your driving privileges will be suspended for 10 years. If you have had four or more such prior occurrences in the past five years and refuse a test, your driving privileges will be permanently revoked.” (Emphasis added.)
The difference in the two advisory forms is that the July 2005 version of the implied consent advisory form did not include the language regarding a 5-year look back period that was contained in the earlier version of the form.
After Walker read Kogler the implied consent advisory form, Walker administered a breath test. The breath test indicated that Kogler’s blood alcohol concentration exceeded the legal limit. Kogler was charged with driving under tire influence under K.S.A. 2005 Supp. 8-1567(a)(1), (2), and (3), and with reckless driving under K.S.A. 8-1566.
Kogler moved to suppress any evidence regarding his breath test and the results of the breath test. Kogler argued that suppression of this evidence was warranted because the arresting officer did not furnish him with the proper implied consent advisory form before administering the breath test. The magistrate court denied Kogler’s motion to suppress, and Kogler was found guilty of DUI.
Kogler appealed his conviction to the trial court and again moved to suppress the results of the breath test. At the hearing on the motion to suppress, the parties stipulated that no oral testimony was necessary and that the issue presented was a matter of law. The trial court held that the arresting officer had failed to give the appropriate notice and thereby had failed to comply with K.S.A. 2005 Supp. 8-1001(f). As a result, the court granted Kogler’s motion to suppress and suppressed the results of the breath test. The State appeals under K.S.A. 22-3603.
Did the Trial Court Err in Suppressing the Results of Koglers Breath Test?
The State argues that the trial court erred in suppressing the results of Kogler’s breath test despite the fact that Walker had not read or furnished Kogler with the proper advisory warnings before the officer administered the breath test. Because the material facts to the trial court’s decision on Kogler’s motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
K.S.A. 2005 Supp. 8-1001(f) provides that certain notices be given to suspected impaired drivers before administration of breath tests. That statute further provides that “[n]o test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.” K.S.A. 2005 Supp. 8-1001(n). K.S.A. 2005 Supp. 8-1001(q) states that “[t]his act is remedial law and shall be liberally construed to promote public health, safety, and welfare.” Nevertheless, “[t]he notice provisions of K.S.A. 1990 Supp. 8-1001(f) are mandatory and not merely directory.” State v. Luft, 248 Kan. 911, Syl. ¶ 1, 811 P.2d 873 (1991).
The State argues that the reading of the outdated version of the form, which included the language for the 5-year look back period, was merely a technical irregularity that did not warrant suppression of the breath test results. To support its argument, the State analogizes the present case to Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.3d 1337 (1988). In Barnhart, the defendant was given and read a copy of the notice requirements, but the form that he was provided simply paraphrased the statute rather than quoting the precise statutory language. In holding that tire language was in substantial compliance with the law, the Barnhart court stated:
“While using the statutory language would have negated the issue now before us, it is generally recognized that substantial compliance with statutory notice provisions will usually be sufficient. To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” 243 Kan. at 213.
Although the State attempts to analogize the present case to Barnhart, the cases are distinguishable. Here, the notice did not sufficiently advise Kogler of the essentials of the statute, specifically that the look back period was his lifetime, rather than merely 5 years.
This case is also distinguishable from State v. Branscum, 19 Kan. App. 2d 836, 877 P.2d 458, rev. denied 255 Kan. 1004 (1994), which the State cites in support of its argument. The Branscum court held drat substantial compliance had occurred where the officer had provided the defendant with an outdated written implied consent advisory, but had orally advised the defendant of the current change in law. 19 Kan. App. 2d at 839-40. The court held that there was substantial compliance with the notice provisions due to the officer s oral notification, even though the old form was provided to the defendant. In so holding, the Branscum court noted that “[t]he legislative intent of K.S.A. 1993 Supp. 8-1001(f) is to ensure that a person is made aware by the required notice procedure of his or her statutory rights before submitting to a [blood alcohol test].” 19 Kan. App. 2d at 840.
The present case is distinguishable from Branscum in that Kogler was not orally notified of the change in the law regarding the look back period. Because Kogler was not properly notified of the duration of the look back period in writing and no different oral notifications were given, the present case is unlike the facts presented in Branscum.
Instead, the instant case is analogous to Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992). There, the defendant was read and given an old copy of the implied consent advisory that notified him that a test refusal would result in a loss of driving privileges for 180 days. The version that should have been supplied and read called for a loss of driving privileges for 1 year for a test refusal. The Meigs court held that the difference in the notice requirements did not substantially comply with the current law in effect at the time because the notice advised that driving privileges would be suspended for a period of at least 180 days whereas the statute actually provided for a suspension of at least 1 year. 251 Kan. at 681.
The State, however, seeks to be excused from compliance with K.S.A. 2005 Supp. 8-1001(f). When the legislature amended the earlier version of 8-1001(f) by deleting the phrase “within the past 5 years” from the statute, the legislature clearly intended to expand the scope of the statute. The duration of the look back period went from 5 years to a person’s lifetime. See L. 2001, ch. 200, sec. 12.
Kogler’s knowledge, based on the notice given him, that the look back period was 5 years did not furnish him with knowledge that the look back period had been changed to a person’s lifetime. It follows that the notice which erroneously advised Kogler that the look back period was 5 years did not substantially comply with the requirements of the statute. Furthermore, Kogler is not required to show actual prejudice when it is determined that the notice he received did not substantially comply with the requirements of the statute. Meigs, 251 Kan. at 681-82.
Nevertheless, the State argues that because Kogler does not have any prior convictions that would enhance his sentencing on a conviction of DUI, the improper advisory provided to Kogler was harmless. On the other hand, Kogler correctly contends that there is no evidence in the record to support the State’s assertion that Kogler does not have any prior convictions or occurrences. Consequently, Kogler implies that we should ignore the State’s argument. This assertion has merit. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003) (“ ‘An appellant has the duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails.’ [Citations omitted.]”).
Moreover, our Supreme Court has held that the written notices must substantially comply with the statute. Our research has revealed no case in which an insufficient notice has been held harmless because a driver was or was believed to be a first time offender. As a result, we conclude that the officer’s implied consent advisory did not fulfill the notice requirement of K.S.A. 2005 Supp. 8-1001(f).
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Hill, J.:
Under Kansas law, the length of time spent in a residential facility must be credited toward a defendant’s sentence if placement in that facility was imposed as a condition of probation. When Darren Brown was placed on probation, he was ordered to reside at Atishwin Half-Way house for 1 year. Brown absconded before the year was completed. When his probation was later revoked, the court refused to grant him any allowance for his time living at the halfway house. We hold that Brown must receive credit for the time he lived at the halfway house while on probation because it was a residential facility. Brown lived at the facility, he paid weekly rent, maintained his room to standards specified by the management, could not come and go without permission, attended cognitive behavior therapy there, attended at least one AA meeting per day there, and was required to perform community service weekly while at the facility. For these reasons, we reverse the ruling of the district court and remand the case for the court to compute his sentence after granting an allowance for the number of days he spent at the halfway house while on probation.
The statute in question requires credit.
K.S.A. 21-4614a calls for a day-for-day credit towards a defendant’s sentence in cases where probation is revoked and the defendant is then sentenced to confinement. The date from which the defendant’s sentence is to be computed “shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” (Emphasis added.) K.S.A. 21-4614a.
This credit has been interpreted by case law. “The right to jail time credit is statutory. [Citation omitted.] ‘Jail time credit’ must be determined by the sentencing court and included in the journal entry at the time the trial court sentences the defendant to confinement. [Citations omitted.]” State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997).
Obviously, this case requires an interpretation of a statute and our standard of review is unlimited. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). We first examine the nature of the facility in question. Next, we note some pertinent cases dealing with the topic. Finally, we identify some considerations that are important in making this decision.
This is a residential facility.
We must deal with first things first. There is no dispute in this case that Brown was ordered to live at Atishwin Half-way house for 1 year as a condition of probation. Then, in State v. Taylor, 27 Kan. App. 2d 539, 541, 6 P.3d 441 (2000), the court stated that the first part of the analysis in determining whether jail credit would be available in cases such as this was deciding whether the halfway house qualified as a residential facility.
The Atishwin Half-Way house appears to be such a facility. Brown actually lived there. “ ‘Residential’ has been defined as ‘of or connected with residence.’ ‘Residence’ means living in a place while working, a dwelling place, or an abode. [Citations omitted.]” State v. Williams, 18 Kan. App. 2d 424, 429-30, 856 P.2d 158 (1993).
The record confirms that Brown’s temporary abode was Atishwin Half-Way house. At sentencing, the judge stated that Brown is “currently residing in the halfway house with Atishwin.” A letter dated January 7, 2005, from Atishwin states: “[Brown] currently is residing in the halfway house and has entered into the aftercare program with Atishwin.” Another letter dated January 12, 2005, makes reference to Brown’s weekly rent for the halfway house being in “good standing.” An April 2005 Atishwin Weekly Report Form refers to Brown living in Atishwin’s halfway house and makes mention of the appearance of Brown’s room there. The warrant that was issued for Brown’s arrest alleges that Brown violated the conditions of his supervision, in part, by leaving the Atishwin facility. This indicates Brown was not free to come and go as he pleased and that he resided at the Atishwin Half-Way house.
Prior cases have slightly different focus.
We find no case law restrictions keeping us from considering whether a halfway house can be considered a residential facility. A halfway house issue has arisen in a slightly different context in State v. Cordill, 24 Kan. App. 2d 780, 955 P.2d 633 (1997). In Cordill, this court reversed the district court’s denial of credit for time spent in a halfway house. The appellate court focused on the fact that the halfway house in question was operated by community corrections and looked at that language in K.S.A. 21-4614a. But importantly, the Cordill court pointed out that the enactment of K.S.A. 21-4614a in 1988 was well after our Supreme Court’s decision in State v. Babcock, 226 Kan. 356, 597 P.2d 1117 (1979), that prohibited credit for time spent in a halfway house under K.S.A. 21-4614. Cordill, 24 Kan. App. 2d at 781.
We think this case is similar to Taylor where the court found the reintegration program qualified as a residential facility in view of K.S.A. 21-4614a. 27 Kan. App. 2d at 542. Taylor was required to get full-time employment, attend reintegration group meetings for 6 hours a week, perform 4 hours of service a week, and go to one individual counseling session every week.
In this case, Brown was to remain in Atishwin Half-Way house for 1 year, complete cognitive behavioral therapy and the aftercare program, continue attending at least one AA meeting a day, and perform 100 hours of community service with a minimum of 5 hours a month. Further, Brown was to maintain full-time employment. If Brown was unemployed, he was to perform 15 hours of community service a week and spend time seeking employment. Brown could go to school full time or work part time and go to school part time instead of working full time. Brown was also ordered to obtain a high school diploma or GED.
These orders imposed on Brown seem to be even more strict than those imposed on Taylor. As the Taylor court found the reintegration program qualified as a residential facility, we find the Atishwin Half-Way house qualifies as a residential facility.
Nature of time spent is an important consideration.
Going deeper into the matter, we think that what is required of a defendant at such a facility is an important consideration. We do not think that K.S.A. 21-4614a contemplates that credit must be extended for time spent at a flophouse for the idle. A court must examine each facility to see if there are any program requirements of the facility and if there are, the court must determine if they have a rehabilitative component. The programs at Atishwin HalfWay house certainly are rehabilitative in nature.
Furthermore, the degree of liberty each defendant has at the facility can be instructive to a court deciding to give credit. Time spent in the more restrictive facility should be given credit. The court in State v. Black, 36 Kan. App. 2d 593, 595, 142 P.3d 319 (2006), found the defendant’s ability to leave the facility a significant factor in determining whether the facility qualifies as a residential facility. Black reported to the facility from 8 a.m. to 8 p.m. unless he was at work or at some other authorized activity. He was allowed to sleep at home. Therefore, the Black court denied credit for time spent in that facility. But in this case, in addition to all of the requirements mentioned above, Brown testified in the probation revocation hearing of having to ask permission from an Atishwin employee to leave. Atishwin Half-Way house is more restrictive than tire facility depicted in Black.
In contrast to the facts here, the court in Williams, looked at whether time in house arrest should count be given jail time credit. The court declined, stating: “We do not believe that being confined in one’s own home in any way meets the definition of a ‘residential facility’ or a ‘community correctional residential services program.’ ” 18 Kan. App. 2d at 431.
To summarize, Brown resided at Atishwin Half-Way house. While there on probation, his liberty was restricted and he was required to participate in several rehabilitative programs. The law requires that Brown be given credit on his sentence for the time he spent at Atishwin Half-Way house while he was on probation. We reverse the district court’s ruling to the contrary. We remand the case to the district court for computation of Brown’s sentence after giving him a time allowance that is consistent with this opinion.
Reversed and remanded with directions. | [
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Green, J.:
Charles Adam Boggs appeals his convictions of one count of felony possession of marijuana and one count of misdemeanor possession of drug paraphernalia. Boggs maintains that the trial court erred in admitting evidence of his prior use of marijuana. We agree. Boggs also contends that it was improper for the court to use his prior convictions, not proven to a juiy beyond a reasonable doubt, to calculate his criminal history score. We disagree. Accordingly, we affirm in part, reverse in part, and remand for a new trial.
Captain Charles Allcock and Officer Meagher of the McPherson Police Department were on patrol on the morning of October 29, 2005. Allcock saw a Chevy pickup driving erratically. He followed the truck for about three blocks before pulling the driver over on suspicion of driving under the influence of alcohol or drugs (DUI). Allcock identified the driver of the truck as Matthew Hockett and the passenger as Charles Adam Boggs. During the 10-15 minutes that Allcock and Meagher were performing sobriety tests on Hockett, Boggs remained seated in the passenger seat of the truck. Although Meagher initially was in a position to observe Boggs, he spent some time assisting Allcock with the sobriety testing. Allcock arrested Hockett for DUI and placed him in the patrol car.
At some point in time, Boggs was told that he was free to leave so he began to walk home. Allcock searched the truck and found a glass marijuana pipe on the floorboard under the passenger seat. Allcock noted that there was residue in the pipe, but the pipe was not warm to the touch. Allcock sent Meagher to bring Boggs back to the truck. Allcock showed the pipe to Hockett. According to Allcock, Hockett denied that the pipe was his and stated, “That son of a bitch Charlie Boggs, I can’t believe he brought this into my dad’s pickup.”
When Boggs returned to the truck, Allcock Mirandized Boggs and asked him about the pipe. Boggs denied that the pipe was his. The officers searched Boggs and found no evidence of illegal drug activity. Allcock noticed the odor of burnt marijuana on Boggs’ clothing. Allcock arrested Boggs for possession of marijuana, based on the residue in the pipe, and possession of drug paraphernalia based on the pipe.
Allcock placed Boggs in the patrol car with Hockett and transported them to jail. Hockett testified that when he and Boggs were alone in the patrol car, Boggs asked Hockett to tell the police that the pipe did not belong to him. At the jail, Allcock and Meagher interrogated Boggs again. Boggs again denied that the pipe was his. Meagher asked Boggs when he last smoked marijuana. Boggs stated that he had smoked marijuana about 1 month ago.
The State charged Boggs with felony possession of marijuana and misdemeanor possession of drug paraphernalia. Boggs moved in limine to exclude his statement to police about his prior drug use. The trial court denied the motion. At trial, the State admitted Boggs’ statement through the testimony of Allcock. Boggs contemporaneously objected to the admission of his statement, but the court overruled the objection.
During the jury instructions conference, the trial court told the parties that it would provide a limiting instruction for the admission of Boggs’ statement. Boggs did not object to the form of the instruction, but did object again to the admission of the statement. The court gave instruction No. 6 which instructed the jury that Boggs’ statement was admitted only for the purpose of proving intent, knowledge, or absence of mistake or accident.
A jury convicted Boggs of one count of felony possession of marijuana, K.S.A 65-4162, and one count of misdemeanor possession of drug paraphernalia, K.S.A. 2006 Supp. 65-4152. The trial court sentenced Boggs to 18 months’ probation for each count, to run concurrently, with underlying prison sentences of 13 months for count one and 6 months for count two.
I. Did the Trial Court Err in Admitting Boggs’ Statement about His Prior Marijuana Use?
When reviewing a trial 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 trial court’s discretion, depending on the contours of the evidentiary rule in question. K.S.A. 60-407(f); State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
A. Does KS. A. 60-455 apply to the admission of Boggs’ statement about prior marijuana use?
The evidentiary rule in question in this case is K.S.A. 60-455 which states:
“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.”
Boggs argues that his statement about prior drug use is evidence of a prior bad act governed by K.S.A. 60-455. He concedes that his statement is relevant, but only to prove his propensity to commit the crimes charged. Boggs asserts that the use of prior bad acts to show propensity is explicitly prohibited by K.S.A. 60-455.
The State contends that Boggs’ statement is admissible independent of K.S.A. 60-455. The State argues that K.S.A. 60-455 does not apply because the statement is relevant and admissible as a factor that can be considered in nonexclusive drug possession cases. The State neither offers an analysis of K.S.A. 60-455 nor discusses our Supreme Court’s recent Gunby decision.
The trial court initially admitted the evidence on the basis that previous drug use is a factor to be considered in a nonexclusive possession case. Nevertheless, the trial court gave a hmiting instruction as if the evidence had been admitted under K.S.A. 60-455.
No evidence of prior crimes or civil wrongs may be admitted unless they are relevant to one or more of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute. Gunby, 282 Kan. 39, Syl. ¶ 3. Moreover, in analyzing the admission of evidence of other crimes and civil wrongs, the Gunby court declared
“that our lines of cases allowing admission of such evidence independent of K.S.A. 60-455 are contrary to long-held common law and the text of the statute itself. The practice of admitting evidence independent of K.S.A. 60-455 also is unnecessary and carries the potential to violate a criminal defendant’s fundamental right to a fair trial.” 282 Kan. at 49. “Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” 282 Kan. at 57.
B. Is Boggs’ statement about prior marijuana use admissible under KS. A. 60-455?
Before admitting K.S.A. 60-455 evidence, the trial court must (1) determine that the evidence is relevant to prove a material fact other than the defendant’s propensity to commit the crime charged, (2) determine that the material fact is disputed, and (3) determine that the probative value of the evidence outweighs its potential for producing undue prejudice. Gunby, 282 Kan. at 48, 56-57. Reviewing whether the trial court properly admitted evidence under K.S.A. 60-455 requires the court to review the legal basis for the trial court’s decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo. Gunby, 282 Kan. at 47-48.
1. Is evidence of prior use of marijuana sufficiently similar to be relevant to prove the current charge of possession of marijuana ?
Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). A material fact is one that is significant under the substantive law of the case and properly at issue. State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006); State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). “To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted.]” Gunby, 282 Kan. at 47.
When a prior crime is used to show intent, the determination of relevancy must be based on the similarity of the prior crime with the charged crime. State v. Graham, 244 Kan. 194, 198, 768 P.2d 259 (1989). In Graham, where illegal possession of drugs was in issue, our Supreme Court pointed out that whether evidence of a prior crime was relevant, evidence of the prior crime must be similar to the crime charged. Here, the prior crime evidence was dissimilar to the charged crimes. The prior crime evidence involved Boggs’ statement to the police that he had not smoked marijuana in over a month. The charged crimes were as follows: possession of marijuana and possession of drug paraphernalia. The prior crime evidence of Boggs smoking marijuana is not similar to die charged crimes.
For example, in State v. Flinchpaugh, 232 Kan. 831, 834, 659 P.2d 208 (1983), our Supreme Court affirmed the trial court’s dismissal of the charge of possession of cocaine. The charge had been based on the presence of cocaine in the defendant’s blood sample. In rejecting the State’s claim that the presence of the drug in the defendant’s bloodstream was sufficient circumstantial evidence of possession, the court stated: “Once a controlled substance is within a person’s system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body.” 232 Kan. at 834. Likewise, once Boggs ingested (by smoking) the marijuana into his system, his power to possess the illegal substance was at an end. As a result, the prior crime evidence of Boggs smoking marijuana is not similar to the charged crimes of possession of marijuana and possession of drug paraphernalia. The prior crime evidence lacks the essential element of possession of an illegal substance, which is a necessary element of the charged crimes.
Furthermore, the prior crime evidence of smoking marijuana was not so relevant as to show some material or logical connection between it and the charged crimes. A fact finder could not have reasonably inferred that the later acts of possession of marijuana and possession of drug paraphernalia follow from or was logically connected to the former act of smoking marijuana. For example, a person could smoke marijuana and not later be in possession of marijuana or possession of drug paraphernalia. Thus, it would be a logical non sequitur to conclude that because a person previously smoked marijuana, the person would later possess either marijuana or drug paraphernalia.
In summary, the prior crime evidence of Boggs smoking marijuana was dissimilar to the charged crimes. As a result, under the Graham relevancy test, the prior crime evidence was inadmissible to prove intent, knowledge, and absence of mistake or accident. See also State v. Faulkner, 220 Kan. at 157 (“We would caution that while, ordinarily, evidence of prior convictions of similar crimes is relevant to prove a specific intent without a showing of the specific facts and circumstances involved in the prior offense, this general rule must be tempered with the requirement of ‘similarity.’ The similarity of offenses is a key factor in relevancy.”), and State v. Brown, 4 Kan. App. 2d 729, Syl. ¶ 7, 732, 610 P.2d 655 (1980).
2. Is the material fact disputed?
Nevertheless, assuming that the prior crime evidence was sufficiently similar to the charged crimes to meet the Graham relevancy test, we are still presented with a problem. One of the reasons that the trial court gave for admitting the prior crime evidence was because the evidence was relevant to show intent, knowledge, and absence of mistake or accident. Although Boggs objected to admission of this evidence based on those factors, the trial court denied the objection. Boggs’ sole defense was that he did not possess the pipe containing the marijuana residue. On appeal, Boggs argues that because he merely denied possession of the pipe, intent, knowledge, and absence of mistake or accident was not in issue. In support of his argument, Boggs cites State v. Davidson, 31 Kan. App. 2d 372, 65 P.3d 1078 (2003). Justice Carol Beier, while a member of this court, stated in Davidson: “The most recent cases from the Supreme Court and our court seem to require the defendant to have asserted an innocent explanation before intent will be considered a disputed material issue.” 31 Kan. App. 2d at 382. Here, Boggs did not assert that the charged crimes were innocent in character.
When a defendant completely denies “that any of the charged conduct took place,” the defendant’s intent is not in issue and the evidence may not be admitted to prove it. 31 Kan. App. 2d at 383. Moreover, absence of mistake or accident and intent are closely related concepts. Unless a defendant has contended that the charged crimes were innocent in character, evidence of prior acts or convictions may not be admitted to show absence of mistake or accident. State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989). As a result, the trial court erred in admitting the prior crime evidence under K.S.A. 60-455 to show intent, knowledge, and absence of mistake or accident.
3. Is evidence of prior use of marijuana admissible because of nonexclusive possession?
Finally, the other reason that the trial court gave for admitting the prior crime evidence was because this was a nonexclusive possession case and Boggs’ prior use of drugs was a factor to be con sidered by the juiy. In supporting the trial court’s holding, the State cites State v. Faulkner and State v. Cruz, 15 Kan. App. 2d 476, 809 P.2d 1233 (1991). Faulkner involved a prosecution for possession of a controlled substance. Our Supreme Court held that evidence of a prior conviction of the same offense was material and relevant to prove intent concerning the charged crime under K.S.A. 60-455.
Nevertheless, the Faulkner court stated that when a prior crime is used to show intent, the similarity of the prior crime with the charged crime is to be used in the determination of relevancy. 220 Kan. at 157. As stated earlier, the prior crime evidence of Boggs smoking marijuana was dissimilar to the charged crimes and was not relevant.
Further, the Faulkner court stated that “[ejvidence of the prior conviction [for possession of a controlled substance] was offered ... to prove the specific intent required for possession.’ ” 220 Kan. at 157. Moreover, the Faulkner court pointed out that “[w]here, as here, specific intent is in issue, prior convictions evidencing the requisite intent may be very probative.” 220 Kan. at 158. Nevertheless, the fact that a crime charged requires proof of specific intent is not controlling on whether prior crime evidence is admissible under K.S.A. 60-455. See State v. Dotson, 256 Kan. 406, Syl. ¶ 2, 886 P.2d 356 (1994). In Dotson, our Supreme Court declared that the issue is not whether the charged crime is a specific or a general intent crime, but whether a defendant has claimed that the defendant’s acts were innocent. Moreover, the Dotson court stated that “[w]here criminal intent is obviously proved by the mere doing of the act, the introduction of other crimes evidence has no real probative value to prove intent.” 256 Kan. at 413. As a result, the reasoning in Faulkner that for a charged crime requiring a specific criminal intent, “prior convictions evidencing the requisite intent may be very probative” and should be admitted is no longer warranted. See Dotson, 256 Kan. at 413.
Nevertheless, the State maintains that Boggs’ statement was evidence of prior drug use which tended to prove intent, knowledge, and absence of mistake or accident under a nonexclusive possession case. The Gunby court, however, made clear that there is no need to admit evidence of prior wrongdoing independently of K.S.A. 60-455. 282 Kan. at 57. Moreover, the State’s argument raises several questions. First, what “intent” was tended to be proved? Boggs’ defense was that he neither possessed the marijuana nor the drug paraphernalia. Unlike Graham, Boggs did not assert that the charged crimes in question were done innocently. As a result, the issue of intent was not in dispute. Second, what “knowledge” was tended to be proved? The question to be answered was as follows: Did Boggs possess the marijuana and the drug paraphernalia? No claim was made that Boggs may have possessed the marijuana and drug paraphernalia without knowledge that he had it. Third, what “absence of mistake or accident” was a question in the case? No one contended that Boggs possessed the marijuana and the drug paraphernalia without knowing what the items were or possessed the items by mistake.
As a result, this case is factually dissimilar from Graham. In Graham, the defendant was arrested for drugs found in the pocket of the jeans he was wearing. His defense was that he had soiled his pants and pulled on a friend’s pants. The Graham court held that “[t]he crucial distinction in admitting other crimes evidence under 60-455 on the issue of intent is . . . whether the defendant has claimed that his acts were innocent.” 244 Kan. at 198. The Graham court determined that where the defendant maintained that he had put on someone else’s pants that contained drugs, the defendant had placed his intent, knowledge, and absence of mistake in issue. 244 Kan. at 197-98. The present case is clearly distinguishable from Graham.
Futhermore, the Cruz holding offers no support for the State’s position. The Cruz decision is absent of any analysis of K.S.A. 60-455. Moreover, the Cruz court determined that tihe circumstantial evidence of possession was insufficient to support the convictions. As a result, the Cruz holding will not bear tihe weight of reliance which the State places upon it.
The prior crime evidence of Boggs smoking marijuana was not admissible under K.S.A. 60-455. It was not admissible for any of the eight factors enumerated in K.S.A. 60-455. Moreover, there was no good, sound reason for admitting Boggs’ statement into evidence under some other material fact not listed in K.S.A. GO-455.
4. Does the probative value of Boggs’ statement outweigh its prejudicial effectP
A trial court has the discretion to exclude relevant evidence if it determines that the probative value of the evidence offered is substantially outweighed by the risk of unfair prejudice. K.S.A. 60-445; State v. Miller, 284 Kan. 682, 690, 163 P.3d 267 (2007).
Propensity evidence is excluded because of the risk that a juiy might give the evidence more weight than it should receive, thus, prejudicing the defendant. In Gunby, our Supreme Court stated:
“[W]e have recognized at least three types of prejudice can follow from the admission of other crimes and civil wrongs evidence:
“ ‘ . First a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilty beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.” ’ [Citation omitted.]” 282 Kan. at 48-49.
In this case, the trial court did not make any particularized determination of whether Boggs’ statement was more probative than prejudicial. The evidence, however, in this case was circumstantial and not overwhelming. The truck where the pipe was found did not belong to Boggs. Instead, the truck was owned by Hockett’s father. The jury heard testimony from Allcock, the arresting officer, and Hockett, the driver of the truck in which Boggs was a passenger. Allcock testified that he found the glass pipe with marijuana residue on the floorboard under the passenger seat where Boggs had been sitting. He further testified that Boggs was left unobserved for at least 10-15 minutes during the DUI investigation of Hockett. He testified that he noticed the odor of burnt marijuana on Boggs’ clothing. Nevertheless, anyone who has been in a cigarette smoke-filled room, whether you are a smoker or a nonsmoker, knows how easy it is to acquire the odor of cigarette smoke on one’s clothing.
Finally, Allcock testified that Hockett made a statement directly incriminating Boggs. Nevertheless, Hockett’s incriminating statement about Boggs could be attacked as bias. Bias is suggested by the fact that the marijuana was located in a truck belonging to Hockett’s father.
Merely proving that a person has committed a crime separate from the one charged is prejudicial by its very nature. Moreover, it does not logically follow that because a person previously smoked marijuana, the person’s later proximity to an area where marijuana is located is for the purpose of possessing the marijuana. The fallacy in this form of nondeductive reasoning is termed “hasty generalization.” Conway & Munson, The Elements of Reasoning, p. 138 (1990). Thus, it would not be permissible to infer from a prior act of smoking marijuana that Boggs intended to possess marijuana. Such an inference is too tenuous. Because the jury might have given the prior criminal act of smoking marijuana more weight than it should receive, we conclude the admission of the prior crime evidence unduly prejudiced Boggs.
II. Does State v. Gunby apply to this caseP
At oral argument, the State argued that the Gunby decision applied prospectively, therefore, it has no application to this case. On the other hand, Boggs argued that Gunby should apply to his case because he had a direct appeal pending as of the date of the Gunby decision. Both Boggs and the State have submitted letters of additional authority under Supreme Court Rule 6.09(b) (2006 Kan. Ct. R. Annot. 44). Boggs argues that Gunby established a new rule of law and that the Constitution requires that a defendant, who has a case pending on direct appeal, receive the benefit of the new rule. In support of his argument, Boggs cites Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). The State, however, argues that because Gunby did not involve a constitutional rule, Boggs’ reliance on Griffith is misplaced. The State further argues that Gunby did not create a new rule of law. We agree.
In setting out its holding, the Gunby court stated: ‘We conclude that our Unes of cases allowing admission of [other crimes and civil wrongs] evidence independent of K.S.A. 60-455 are contrary to long held common law and the text of the statute itself” 282 Kan. at 49. Because no new rule of law was pronounced, the application of Gunby would not constitute a retroactive application of case law. See State v. Barnes, 278 Kan. 121, 127, 92 P.3d 578 (2004).
Moreover, our Supreme Court has applied Gunby to cases pending on direct appeal. In State v. Woolverton, 284 Kan. 59, 65, 159 P.3d 985 (2007), our Supreme Court cited Gunby in rejecting this court’s decision allowing the admission of discordant relationship evidence independent of K.S.A. 60-455. In explaining its reason for rejecting this court’s holding, our Supreme Court stated:
“[A]fter the Court of Appeals’ decision in this case was released, we issued our decision in Gunby, which eliminated other means for admitting evidence of other crimes or civil wrongs independent of K.S.A. 60-455. 282 Kan. at 57. As a result, we reject the portion of the Court of Appeals’ analysis that would have admitted the prior convictions.” 284 Kan. at 65.
As a result, the Gunby holding should apply to this case because it was on direct appeal when Gunby was decided.
III. Did the Trial Court Err in Using Boggs’ Criminal History to Calculate His Sentence Without Requiring His Prior Convictions to Be Proven to a Jury Beyond a Reasonable Doubt?
Boggs asserts that his Sixth and Fourteenth Amendment rights were violated because his prior convictions were not included in the charging document, put before a jury, and proven beyond a reasonable doubt as required under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
At sentencing, Boggs neither objected to any of his prior convictions as read by the court, nor contested his criminal history score of H. Boggs acknowledges the Ivory rule and includes this argument only to preserve the issue for federal review.
This court is duty bound to follow our Supreme Court precedent absent an indication the court is departing from such precedent. See State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Our Supreme Court has held that the use of criminal history scores to calculate sentences under the Kansas Sentencing Guidelines Act without a jury finding beyond a reasonable doubt is constitutional. State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). There is no indication that our Supreme Court plans to depart from the holding in Ivory. See Gonzalez, 282 Kan. at 117-18 (affirming Ivory rule after United States Supreme Court post-Apprendi decisions in Shepherd v. United States, 554 U.S. 13, 161 L. Ed 2d 205, 125 S. Ct. 1254 [2005]; United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 [2005]; and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 [2004]). Because our Supreme Court has reviewed and upheld the Ivory rule after United States Supreme Court post-Apprendi decisions, Boggs’ argument fails.
Affirmed in part, reversed in part, and remanded for a new trial. | [
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Green, J.;
Kearny County Hospital and St. Catherine Hospital (collectively appellees) filed this case against Allstate Insurance Co. (Allstate) under K.S.A. 65-408 after learning that Allstate, in an interpleader action, compensated the appellees’ patients for their injuries without paying the appellees’ hospital hens. The appellees’ two patients each settled for $13,967.21 of Allstate’s $50,000 policy proceeds, while six other claimants divided the remainder of the proceeds. The appellees argued that under K.S.A. 65-408, Allstate was hable to them in the amount of $50,000. The trial court granted summary judgment to the appellees and awarded them $50,000.
First, Allstate contends that it cannot be held liable to the appellees when the trial court in the interpleader action had notice of the appellees’ hens and distributed the funds to the injured parties. Nevertheless, K.S.A. 65-408 imposes a duty upon insurance carriers to ensure that hospital hens are paid when compensating a hospital’s patients for injuries sustained in an accident. Because nothing in the record shows that Allstate ever notified the trial court that die appellees’ hospital liens needed to be paid out of the insurance policy proceeds, Allstate’s argument fails. Next, Allstate argues that K.S.A. 65-408 does not impose liability in this case. We disagree. K.S.A. 65-408 imposes liability upon an insurance company that has failed to pay a hospital hen when compensating the hospital’s patient. Here, because Allstate compensated the appellees’ patients for their injuries without paying the appellees’ hospital hens, the trial court properly found that K.S.A. 65-408 apphes to this case.
Next, Allstate argues that even if K.S.A. 65-408 is applicable to this case, the trial court erred in awarding a $50,000 judgment to appehees. We agree. Under K.S.A. 65-406, the maximum amount the appehees could recover was the amount “going [to] or belonging to” the appehees’ patients, that is, the $13,967.21 going to each patient. Moreover, under K.S.A. 65-406(c), Kearny County Hospital was entided to receive the entire amount of its hospital hens, $1,355. Nevertheless, in order to decide the amount that St. Catherine Hospital was entitied to recover out of each patient’s settlement, the trial court needs to determine what an equitable distribution would have been under K.S.A. 65-406(c). Accordingly, we affirm in part, reverse in part, and remand for a determination in accordance with this decision.
The appehees are two separate hospitals that provided medical care to both Rosa Salazar and Cesar Castillo after an automobile accident in November 2002. The party at fault in the accident had a $50,000 automobile insurance policy with Allstate. Kearny County Hospital filed hospital hens of $870 for Salazar and $485 for Castillo with the Kearny County District Court. St. Catherine Hospital filed two hospital hens totaling $63,670.74 for Salazar and two hospital hens totaling $42,864.93 for Castillo with the Finney County District Court. The hospital liens were filed between February 2003 and December 2003. Notices of the hospital hens were sent to Allstate.
On January 26, 2004, Allstate brought an interpleader action in the Kearny County District Court. Eight people involved in the automobile accident had made claims against the Allstate pohcy. Allstate requested that it be allowed to pay the amount of its $50,000 policy into the court and that the court determine the distribution to the eight claimants named as defendants in the interpleader action. The appellees were not named in the petition, nor did they ever receive notice of the interpleader action.
In January 2005, the defendants answered the interpleader petition. Attached to the answer was an agreed distribution of the $50,000 Allstate policy that was signed by all of the adult defendants. The defendants agreed that Allstate should pay its $50,000 policy limit into the court for distribution. The trial court found that the defendants had agreed to an equitable division of Allstate’s insurance policy proceeds and ordered Allstate to pay the $50,000 policy limits into the court for distribution. Based on the distribution agreement, Salazar and Castillo were each awarded $13,967.21, which was net of attorney fees.
In September 2005, the appellees sued Allstate. Arguing that Allstate had violated K.S.A. 65-408 by making payments to the injured parties without first paying the hospitals their lien amounts, the appellees sought a judgment of $50,000 plus interest against Allstate. A default judgment was entered against Allstate for fading to answer the appellees’ petition. Nevertheless, the trial court later set aside the default judgment. Allstate moved to dismiss the appellees’ petition on the ground that K.S.A. 65-408 did not apply to the present case. Finding that K.S.A. 65-408 did apply to the present case, the trial court denied Allstate’s motion to dismiss.
The appellees moved for summary judgment, arguing that they were entitled to $50,000 damages under K.S.A. 65-408. The trial court granted the appellees’ motion for summary judgment and entered a judgment of $50,000 for the appellees.
Standards of Review
On appeal, Allstate raises a variety of arguments as to why the trial court erred in granting summary judgment to the appellees and in entering a judgment for $50,000 in favor of the appellees. First, Allstate argues that it is not hable for the hospital hens because the trial court had notice of the hospital hens and because it paid the settlement proceeds to the trial court for equitable distri button. Alternatively, Allstate argues that the trial court erred in ordering it to pay the appellees more than the patients received. Finally, Allstate maintains that the district court should have held an evidentiary hearing to determine the proper apportionment of settlement funds.
In summary judgment cases, this court’s standard of review is well established:
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” ’ [Citation omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Moreover, Allstate’s arguments in this case require interpretation of statutes. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. An appellate court is not bound by the trial court’s interpretation of a statute. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
In interpreting statutes, this court applies the fundamental rule of statutory construction, which is that the intent of the legislature governs if that intent can be ascertained. A court presumes that the legislature expressed its intent through the language of the statutory scheme it enacted. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed, rather than determine what the law should or should not be. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
Appellees’ Hospital Liens
K.S.A. 65-406(a) provides the authority for the appellees’ hospital liens in this case:
“Every hospital, which furnishes emergency, medical or other service to any patient injured by reason of an accident not covered by the workers compensation act, if such injured party asserts or maintains a claim against another for damages on account of such injuries, shall have a lien upon that part going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by such patient’s heirs, personal representatives or next of kin in the case of such patient’s death, whether by judgment or by settlement or compromise.”
Under K.S.A. 65-406(a), the appellees had a lien against any money collected by Salazar or Castillo on claims for damages on account of their injuries. In order for a hen to be effective under K.S.A. 65-407, a hospital must file its hen statement with the clerk of the district court in the hospital’s county and send a copy of the hen statement to those parties alleged to be liable to the patient, those parties’ liability insurers, and the patient. At the hearing before the trial court, Allstate conceded that there was no dispute that the appellees properly filed their hens in this case.
Notice to Trial Court
Allstate argues that if the hospital hens were filed correctly by the appellees, the trial court had notice of the existence of the hens when the funds were distributed to the injured parties. Allstate maintains that it cannot be held hable for the hospital hens when the trial court had knowledge of the hospital hens and might have heard testimony concerning those hens at the distribution hearing.
Allstate alleges that this court is unable to review what went on at the distribution hearing as it has been unable to obtain a transcript from the hearing. On the other hand, the appellees contend that no transcript from the distribution hearing can be located because there was never a hearing. The appellees maintain that the only thing that happened on January 10, 2005, was the filing of an agreed journal entry between Allstate and the injured parties.
The appendix to the appellant’s brief contains a letter from tire court reporter stating that there was no hearing reported on Jan uaiy 10, 2005, and that there was no record made on the January 10, 2005, date by a court reporter or recording. In its reply brief, however, Allstate maintains that the final journal entry on the interpleader action indicates that there was a hearing on this matter. The journal entry, which was 5 pages in length, was filed on the same day as the alleged hearing and was signed by the parties’ attorneys. Nevertheless, nothing in the 5-page journal entry indicates that the appellees’ liens were ever discussed.
Moreover, there is no indication in the record that the trial judge deciding Allstate’s interpleader actions was ever made aware of the hospital liens filed by the appellees. In this case, the hospital liens were filed by the appellees before Allstate filed its interpleader action. St. Catherine Hospital filed its hens in an entirely different county from where Allstate’s interpleader action was heard. Allstate did not list the appellees in its petition, nor did it ever refer to the hospital hens. Instead, Allstate asked the trial court to equitably distribute its policy proceeds between the listed injured parties.
The appellees correctly point out that K.S.A. 65-408 imposes a duty upon insurance carriers, not trial courts, to ensure that hospital hens are satisfied when setdement payments are made. K.S.A. 65-408 states that after a hospital lien is properly filed, any person, firm, or corporation, including an insurance company, making payment to the patient, the patient’s attorney, or the patient’s legal representative as compensation for the injury sustained without paying the hospital the amount of its hen, is hable to the hospital for 1 year for the amount the hospital was entitied to receive. In order for Allstate to avoid liability to the appellees under K.S.A. 65-408, it needed to name the hospital as one of the claimants in its interpleader action.
Absent from the record in this case is any request by Allstate for the trial court to include the appellees in distributing Allstate’s pohcy proceeds. As the appellant in this case, Allstate had the burden to furnish a record which affirmatively shows that prejudicial error occurred in the trial court. See City of Wichita v. Eisenring, 269 Kan. 767, 784, 7 P.3d 1248 (2000). “In the absence of a record showing prejudicial error the appellate court must assume that the action of the trial court was proper for it is precluded by the record from adequately reviewing an unsubstantiated claim of error. [Citation omitted.]” State v. Pettay, 216 Kan. 555, 557-58, 532 P.2d 1289 (1975). Therefore, Allstate’s argument on this issue fails.
K.S.A. 65-408
Next, Allstate contends that K.S.A. 65-408 does not allow the appellees to recover money that Allstate paid to the court for distribution in its interpleader action.
K.S.A. 65-408 states:
“Any person or persons, firm or firms, corporation or corporations, including an insurance carrier, making any payment to such patient or to his attorneys or heirs or legal representatives as compensation for the injury sustained, after the filing and mailing of such notice without paying to such hospital the amount of its hen or so much thereof as can be satisfied out of the moneys due under any final judgment or compromise or settlement agreement, after paying the amount of any prior hens, shall, for a period of one year from the date of payment to such patient or his heirs, attorneys or legal representatives, as aforesaid; be and remain liable to such hospital for the amount which such hospital was entitled to receive as aforesaid; any such association, corporation or other institution maintaining such hospital may, within such period, enforce its hen by a suit at law against such person or persons, firm or firms, corporation or corporations making any such payment.”
Allstate focuses its argument on the language of K.S.A. 65-408 that the statute applies to “[a]ny person or persons, firm or firms, corporation or corporations, including an insurance carrier, making any payment to such patient or to his attorneys or heirs or legal representatives as compensation for the injury sustained . . . .” (Emphasis added.) Allstate contends that K.S.A. 65-408 is inapplicable to this case because Allstate paid the money into the trial court for equitable distribution to the injured parties in its inter-pleader action. Allstate maintains that because all payments were made at the discretion and the hands of the trial court and not by Allstate, this case does not come within K.S.A. 65-408.
If this court were to accept Allstate’s argument, an insurance company could circumvent K.S.A. 65-408 and avoid liability on a hospital hen by having a third party distribute the insurance policy proceeds to the injured parties. On the other hand, an insurance company sending a check straight to the patient or to his attorneys, heirs, or legal representatives as compensation for the patient’s injury would be subject to K.S.A. 65-408. Under both situations, the insurance company has failed to include the hospital in determining the payment of policy proceeds. Nevertheless, the insurance company in the first situation would be able to avoid liability on a properly filed hospital hen by using an intermediary to distribute the pohcy proceeds. Such an interpretation of K.S.A. 65-408 would produce an unreasonable result. As a general rule, courts should construe statutes to avoid unreasonable results and presume the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006).
As the appehees point out, the federal district court of Kansas in Farm Bureau Mutual Insurance Company, Inc. v. Harmon, 981 F. Supp. 1391 (D. Kan. 1997), recognized that insurance pohcy proceeds deposited with the court in an interpleader action are subject to K.S.A. 65-408. In Farm Bureau, the insurance company brought an interpleader action, seeking to deposit with the court the amount of its pohcy limit with respect to two passengers. The insurance company argued that the policy proceeds it would deposit with the court were not subject to a hospital lien under the Kansas statute. The insurance company maintained that a hen arises only on the recovery of a patient’s claim, and because the passengers would not be allowed to sue the insurance company as the alleged tortfeasor’s insurer, there was no hen. 981 F. Supp. at 1393. The court stated that “K.S.A. 65-408 indicates that payments made by liability insurers are subject to the hen.” The court noted that the insurance company sought to pay off anticipated tort claims by depositing the pohcy proceeds into the court. The court concluded that if the interpleader action was accepted, the insurance company “will have made a payment as compensation for injuries sustained by patients of the Hospital, and a hen in favor of the Hospital would arise.” 981 F. Supp. at 1393.
The reasoning in Farm Bureau is correct. The language of K.S.A. 65-408 imposes liability upon an insurance carrier when the insurance carrier has paid a patient for his or her injuries but has failed to pay a hospital hen. Here, Allstate made a payment as compen sation for injuries sustained by patients of the hospitals. The money did not come from the trial court. The money came from Allstate and went to the injured parties. Allstate used the trial court as an intermediary to equitably distribute its $50,000 policy to the injured parties. The method used by Allstate to make payment to the injured parties does not negate the fact that Allstate paid the injured parties for their injuries. K.S.A. 65-408 is applicable to this case.
Amount of Judgment
The question in this case now turns to whether the trial court properly awarded a $50,000 judgment to the appellees. Allstate argues that the maximum amount the appellees could recover under K.S.A. 65-406(a) was the amount received by each patient after deducting attorney fees. Allstate further maintains that in order for the trial court to determine the amount that the appellees were entitled to receive under K.S.A. 65-408, the trial court should have held an evidentiary hearing.
Under K.S.A. 65-408, after a hospital lien is properly filed, an insurance company making payment to the patient as compensation for the patient’s injuries without paying the hospital “the amount of its lien or so much thereof as can be satisfied out of the moneys due under any final judgment or compromise or settlement agreement” is liable to the hospital for 1 year for the amount the hospital “was entitled to receive as aforesaid.”
Thus, after Allstate paid the amount of its policy proceeds to the injured parties, it remained Hable to the appeHees for 1 year for the amount the appeHees were entitled to receive. Based on the language of K.S.A. 65-408, the amount that the appellees were entitled to receive was “the amount of its Hen or so much thereof as can be satisfied out of the moneys due under any final judgment or compromise or settlement agreement.” K.S.A. 65-408. In other words, the amount that the appeHees were entitled to receive was the amount that they should have received out of the $50,000 under the final settlement agreement.
Obviously, the appellees were not entitled to receive the entire amount of their hospital Hens, which totaled over $100,000, when Allstate’s policy proceeds were only $50,000. Moreover, the appellees would not automatically be entitled to receive the entire $50,000 because eight persons were injured in the accident and they all had made claims against the policy proceeds. A trial court determining an equitable distribution would not have likely found that St. Catherine Hospital was entitled to all of the settlement proceeds and the injured persons nothing.
In order to determine what amount a hospital is entitled to receive under K.S.A. 65-408, a court must look to K.S.A. 65-406. Although the appellees argue that K.S.A. 65-408 is the only statute that should be considered by this court, that statute provides no guidance as to the amount that the hospital should have received out of Allstate’s insurance proceeds. K.S.A. 65-406 is the statute that relates to the amount that a hospital can recover on its Hen.
Under K.S.A. 65-406(a), if an injured patient asserts or maintains an action for damages on account of injuries, the hospital is granted a lien in “that part [of the damages] going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by such patient’s heirs, personal representatives or next of kin in the case of such patient’s death, whether by judgment or by settlement or compromise.”
Under subsection (a) of K.S.A. 65-406, the appellees only had a hen “upon that part going or belonging to” their patients “of any recovery or sum had or collected or to be collected” by their patients, whether by judgment, settlement, or compromise. According to the settlement agreement incorporated in the January 10, 2005, journal entry, the appellees’ patients each agreed to collect $13,967.21 in settlement of their claims against Allstate. The appellees’ Mens extended to the $13,967.21 to be collected by each patient. Contrary to the trial court’s decision, the appellees’ hens did not extend to the entire $50,000 of Allstate’s policy proceeds. Because the entire $50,000 was never “going or belonging to” the appellees’ patients, the appellees could not have a hen on this amount under K.S.A. 65-406(a).
In addition, K.S.A. 65-406(c) limits the amount that a hospital can recover on its hen as follows:
“In the event the claimed hen is for the sum of $5000 or less it shall be fully enforceable as contemplated by subsection (a) of this section. In the event the claimed hen is for a sum in excess of $5,000 the first $5,000 of the claimed hen shah be fuhy enforceable as contemplated by subsection (a) of this section, and that part of the claimed hen in excess of $5,000 shall only be enforceable to the extent that its enforcement constitutes an equitable distribution of any settlement or judgment under the circumstances. In the event the patient or such patient’s heirs or personal representatives and the hospital or hospitals cannot stipulate to an equitable distribution of a proposed Or actual settlement or a judgment, the matter shall be submitted to the court in which the claim is pending, or if no action is pending then to any court having jurisdiction and venue of the injury or death claim, for determination of an equitable distribution of the proposed or actual settlement or judgment under the circumstances.”
Thus, under K.S.A. 65-406(c), the first $5,000 of a properly filed hospital hen is fully enforceable. Nevertheless, any amount of the hospital hen over $5,000 is enforceable only to the extent that such enforcement is an equitable distribution of any settlement or judgment under the circumstances.
Here, because the hospital hens filed by Kearny County Hospital were less than $5,000, that hospital was entitled to recover the entire amount of its hospital hens under K.S.A. 65-406(c). On the other hand, St. Catherine Hospital filed hospital hens of $63,670.64 for Salazar and $42,864.93 for Castillo. Under K.S.A. 65-406(c), St. Catherine Hospital was entitled to recover $5,000 on Salazar and $5,000 on Castillo. In addition, St. Catherine Hospital was entitled under K.S.A. 65-406(c) to recover an amount that would constitute an equitable distribution of any settlement or judgment under the circumstances. Nevertheless, a determination was never made in this case regarding what amount of St. Catherine Hospital’s hens would constitute an equitable distribution of the patients’ agreed settlements in this case.
Allstate contends that the trial court should have ordered an evidentiary hearing in this case to determine the proper apportionment of the settlement funds to the appellees under K.S.A. 65-406(c). Allstate is correct. Under K.S.A. 65-406(c), St. Catherine Hospital can enforce the amount of its hens over $5,000 only to the extent that the enforcement constitutes an equitable distribution of the settlement agreement. K.S.A. 65-406(c) further pro vides that when a patient and a hospital cannot stipulate to an equitable distribution of a settlement, the trial court must determine an equitable distribution of the settlement under the circumstances. In this case, the trial court should have held a hearing to determine what would have been an equitable distribution of the settlement funds between St. Catherine Hospital and its patients.
On remand, the trial court should keep in mind that the maximum amount that St. Catherine Hospital could recover under K.S.A. 65-406(a) would be the amount received by each patient after deducting attorney fees less the amount of the Kearny County Hospital liens. See K.S.A. 65-406(b); Harlow v. Lloyd, 15 Kan. App. 2d 497, Syl. ¶ 3, 809 P.2d 1228 (1991) (“A hospital lien ‘upon that part going or belonging to such patient’ means a lien on that part remaining after the fee of the lawyer is deducted.”). Because Kearny County Hospital was entitled to recover the balance of its hospital Hens out of the patients’ settlements, the maximum amount that St. Catherine Hospital could recover is $13,097.21 ($13,967.21-$870) on Salazar and $13,482.21 ($13,967.21-$485) on Castillo.
Motion to Dismiss
Finally, Allstate contends that the trial court erred in denying its motion to dismiss when K.S.A. 65-408 does not apply when money is paid to the court or when the money is paid before the final judgment or settlement.
“On a motion to dismiss for failure of the petition to state a claim upon which relief can be granted, the question must be decided from the allegations of the petition. The question is whether, in the light most favorable to petitioners, and with every doubt resolved in their favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate petitioners do not have a claim. [Citation omitted.]” State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 790, 112 P.3d 131 (2005).
The first part of Allstate’s argument, that K.S.A. 65-408 does not apply when money is paid into the trial court, can be disposed of rapidly based on our previous analysis. As determined above, K.S.A. 65-408 applies to situations where an insurance company deposits money with the trial court to be distributed as compen sation to injured parties having claims against the insurance company.
Allstate also argues, however, that K.S.A. 65-408 is inapplicable here because payment was not made “under any final judgment or compromise or settlement agreement.” Allstate contends that payment was made before any final judgment, compromise, or settlement agreement was entered.
Nevertheless, the record fails to demonstrate that Allstate’s payment was made before any final judgment, compromise, or settlement agreement was entered. The journal entry detailing the settlement agreement in the interpleader action was filed on Januaiy 10, 2005. Allstate’s attorney sent the $50,000 policy proceeds to the Kearny County District Court Clerk with a letter dated January 19, 2005. In the letter, Allstate’s attorney stated:
“Enclosed please find a check from Allstate Insurance made payable to the Clerk of the District Court of Kearny County, Kansas for $50,000.00. At a hearing on Monday, January 10, 2005, as counsel for Allstate, I was ordered to pay this amount in to the Clerk of Court to effectuate the settlement of Allstate Insurance Co., v. Maria Salazar, et al., case number 04C4. I understand that once the $50,000.00 is paid in to the Clerk of Court, Allstate Insurance will be released from this matter.”
Thus, as the appellees point out, the record establishes that the payment by Allstate was made after and under the settlement agreement. Because the argument advanced by Allstate lacks support in the record, it is unnecessary to address this issue any further. K.S.A. 65-408 applies to this case.
In summary, the trial court’s judgment of $50,000 in favor of the appellees should be reversed. A judgment of $1,355 should be entered in favor of Kearny County Hospital. Further, the case should be remanded to the trial court for a determination on what an equitable distribution of the settlement funds would have been between St. Catherine Hospital and Salazar and Castillo.
Affirmed in part, reversed in part, and remanded for a determination on the amount to be awarded to St. Catherine Hospital. | [
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Leben, J.:
Cases that involve children are challenging for eveiyone. The children must be protected. Their rights — as well as those of the parents and others with an interest in them — must be protected. And the legal process must move with some dispatch so that disputes may be resolved within a reasonable time frame, even as time is perceived by a child.
Our challenge here is to decide whether the dispute presented to us may even be heard in our appellate court at all. The child in this case, 3-year-old A.F., was placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS) on the day she was bom. The district court found an emergency situation existed because A.F.’s mother did not have a fit home to bring her new daughter home to. A.F. has remained in SRS custody ever since.
The rights of A.F.’s parents were terminated in March 2006 when A.F. was 16 months old. The court granted custody to SRS, giving it the authority to find an adoptive home for A.F. and to approve that adoption: K.S.A. 38-1584(b)(l)(A) provides in this circumstance that SRS may “give consent for the legal adoption of the child[,] which shall be the only consent required to authorize the entry of an order or decree of adoption.” Even after custody is given to SRS for the purpose of arranging a child’s adoption, though, the district court retains a supervisory role to make sure that reasonable efforts are made toward that end by SRS. See K.S.A. 38-1584(d).
SRS initially considered A.F.’s paternal grandmother, S.W., as a potential adoptive parent. SRS placed A.F. with the grandmother from May 2005 until August 2006. SRS then decided instead to place A.F. with a foster family for potential adoption. The grandmother asked for a court hearing to challenge this SRS decision. We have previously held that interested parties have a right to a hearing in the district court to review SRS placement decisions. In re M.R., 36 Kan. App. 2d 837, 146 P.3d 229 (2006); In re D.C., 32 Kan. App. 2d 962, 92 P.3d 1138 (2004). And a hearing was provided to the grandmother in our case too. The district court found that the grandmother had not shown that she had been unfairly excluded from consideration by SRS as an adoptive parent for A.F. As a result of that decision, A.F. remained with the foster family, who had already adopted A.F.’s half-sister, who is now age 2 and unrelated to the paternal grandmother of A.F.
The grandmother has appealed the district court’s decision that overruled her objection to this placement decision to our court. Upon initial review of the case file, we noted that another panel had recently heard a very similar case and had dismissed it for lack of jurisdiction. See In re D.M.M., 38 Kan. App. 2d 394, 166 P.3d 431 (2007).
The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. An appeal must be dismissed if the record shows that the appellate court does not have jurisdiction. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). Because of D.M.M., we issued a show-cause order to the parties here to address the jurisdiction issue.
The grandmother noted in her response that jurisdiction appeared to have been exercised in similar cases in the past, citing In re M.R.; In re D.C.; and In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991). Indeed, the M.R. and D.C. cases were like both our case and D.M.M.: all involved a challenge to a change of placement of a child for adoption after termination or relinquishment of parental rights. In all of these cases, custody had been awarded to SRS, which was authorized to move toward adoption. But the only discussion of jurisdiction in the appellate decisions before D.M.M. related to whether the district court had jurisdiction, not whether there was appellate jurisdiction. In re M.R., 36 Kan. App. 2d at 839-40 (noting circumstances in which the district court is authorized by statute to consider whether a change in the placement made by SRS is in the best interests of the child); In re D.C., 32 Kan. App. 2d at 965-67 (holding that district court has authority to review placement decisions made by SRS in cases of voluntary relinquishment as well as termination of parental rights). The other case cited by the grandmother, D.D.P.,Jr., is not factually similar to our case, and it too offers no separate discussion of appellate jurisdiction. Thus, the panel in D.M.M. rightly concluded that the question of appellate jurisdiction had neither been considered nor decided in the cited cases.
S.W.’s appeal was filed January 10, 2007, just after the Revised Kansas Code for Care of Children went into effect. We have referred to the pre-2007 Code provisions thus far because they were in effect when the events that we have discussed took place before the district court. We shift now to the current Code, effective January 1, 2007, though the provision authorizing appeals has not changed in any way decisive for the case before us.
The Revised Kansas Code for Care of Children, K.S.A. 2006 Supp. 38-2201 et seq., allows for appeals by any interested party “from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” K.S.A. 2006 Supp. 38-2273(a). The key words found here are terms of art, de fined by this comprehensive statute. In re T.D.W., 18 Kan. App. 2d 286, Syl. ¶ 3, 850 P.2d 947 (1993).
The order at issue here was neither an adjudication, a disposition, nor a finding of unfitness. An adjudication refers to a determination that a child is in need of care, K.S.A. 2006 Supp. 38-2251, which had occurred for A.F. back in 2004. Unfitness refers to a basis for termination of a parent’s rights, K.S.A. 2006 Supp. 38-2269, which had occurred for A.F.’s parents in 2006. A disposition refers to a court order regarding custody after a child has been adjudicated as a child in need of care. K.S.A. 2006 Supp. 38-2255. Both when A.F. was adjudicated in need of care in 2004 and when the rights of her parents were terminated in 2006, the court granted custody to SRS. Any appeal of those dispositional.custody orders had to be filed within 30 days, K.S.A. 2006 Supp. 38-2273(c) and K.S.A. 60-2103(a), and the grandmother did not appeal those orders.
The grandmother might argue that since the grant of custody to SRS was for custody pending adoption, it was not permanent and thus should be considered a “temporary custody” order under the statute. But temporary custody orders are those that identify who will have temporary custody of a child in need of care following a hearing required to be held quite early in the process, K.S.A. 2006 Supp. 38-2243, and they are superseded by the orders of custody that come at disposition. In any case, custody of A.F. was granted continuously to SRS from the time of her birth to the present day. The order from which the grandmother appeals did not change custody, so a statute granting jurisdiction over appeals of custody orders of any stripe cannot provide jurisdiction here.
Our conclusion that the grandmother’s appeal does not fall within any of the four categories listed in the statute is also supported by another provision in the Revised Kansas Code for Care of Children. K.S.A. 2006 Supp. 38-2258 explicitly provides for a hearing in the district court when SRS makes a change in placement from the home of a relative to a different placement. This new provision clarifies the right that had been previously identified in K.S.A. 38-1566 and interpreted in the M.R. and D.C. cases. But the listing of the types of orders from which appeals may be filed was not expanded in K.S.A. 2006 Supp. 38-2273(a) from its predecessor, K.S.A. 38-1591(a), and neither list includes appeals from orders regarding placement. Thus the legislature has explicitly provided in the Revised Code for a hearing in the district court at which a challenge to a change in placement by SRS may sometimes be heard, but it has not provided any right to appeal the decision made at that hearing.
In addition, the Revised Code exempts from this hearing requirement a “move . . . to the selected preadoptive family for the purpose of facilitating adoption.” K.S.A. 2006 Supp. 38-2258(a). This provision is consistent with the separate statutory authority for SRS to consent to post-termination adoptions without the need for court approval. K.S.A. 2006 Supp. 38-2270(a)(l); see also K.S.A. 38-1584(b)(l)(A) (repealed effective January 1, 2007). It would be odd indeed if we were to interpret K.S.A. 2006 Supp. 38-2273(a) to include a right to appeal placement decisions like the grandmother s here when K.S.A. 2006 Supp. 38-2258(a) appears to exclude such cases from even the right to a hearing in the district court.
We simply cannot create a new categoiy of appeals so that appeals like this one may be heard. Nor should we. The legislature has worked hard to create a comprehensive Code for Care of Children. It has attempted to balance the protection of the rights of children, parents, and other interested parties against the need for speed sufficient to ultimately allow children to move on and live their lives. We respect the choice the legislature has made here, and we therefore dismiss this appeal for lack of jurisdiction. | [
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Green, J.:
Michael Geraghty was charged with possession of methamphetamine and felony possession of drug paraphernalia after police entered Geraghty’s residence with his daughter in order to investigate a potential methamphetamine lab and later obtained and executed a search warrant on the residence. Geraghty moved to suppress the evidence seized from his residence as a result of the search warrant, arguing that the search warrant was based solely on information gained by the unlawful police entiy into his residence. The trial court denied Geraghty’s motion to suppress on the following grounds: (1) that the police had consent from Geraghty’s daughter to initially enter Geraghty’s residence, and (2) that exigent circumstances warranted the search. Geraghty’s case proceeded to a jury trial, and he was convicted of both charges.
On appeal, Geraghty challenges the trial court’s denial of his motion to suppress, arguing that neither consent, the emergency doctrine, nor exigent circumstances justified police entry into his residence. It appears that Geraghty is correct. Nevertheless, the trial court’s decision can be upheld for a different reason. Even if the information obtained during the unlawful police entry into Geraghty’s residence is excised from the affidavit for the search warrant, the facts contained in the affidavit establish probable cause for the issuance of a search warrant for Geraghty’s residence. As a result, the trial court did not err in denying Geraghty’s motion to suppress. Accordingly, we affirm the trial court’s denial of the motion to suppress.
Finally, Geraghty contends that the trial court erred in ordering him to reimburse the Board of Indigents’ Defense Services (BIDS) for attorney fees without considering his financial circumstances. We agree. Nevertheless, it is unclear from the record whether Geraghty has already reimbursed BIDS for attorney fees and, consequently, has rendered this issue moot. As a result, we remand to die trial court to clarify whether Geraghty has paid BIDS attorney fees. If Geraghty has paid such fees, the trial court is directed to dismiss this matter as moot. On the other hand, if Geraghty has not fully paid this amount, the trial court is directed to resentence Geraghty in compliance with K.S.A. 2006 Supp. 22-4513 regarding the assessment of BIDS attorney fees. Accordingly, we remand with directions on this issue.
Facts
On August 14, 2004, police received a call from Geraghty’s landlord that a man was seen carrying a shotgun and a rifle into Geraghty’s apartment. Officers arrived at Geraghty’s apartment around noon and discovered the door wide open and smelled a strong odor of burnt marijuana. The officers announced themselves and asked if anyone was in the apartment. Geraghty answered the officers and came out of the back bedroom. One of the officers asked Geraghty about the marijuana smell, but Geraghty indicated that he did not know from where the smell was coming. One of the officers went to the back bedroom where he found a bag of marijuana. Geraghty was placed under arrest for possession of marijuana and taken to jail.
Later that afternoon, Layla Bryan, Geraghty’s daughter, received a message from Geraghty’s landlord that she needed to remove guns from Geraghty’s apartment. Chris Bryan, Layla’s husband, went with her to Geraghty’s apartment. Because Layla did not have a key to Geraghty’s apartment, an employee of tire apartment com plex had to let her inside the apartment. In the bedroom of Geraghty s apartment, Chris discovered a small glass vial that contained a small rock. In a closet in the apartment, Layla found a red cooler and a purple gym bag. Layla discovered two iarge red jars containing a liquid substance in a trash bag inside the cooler. Layla also discovered a glass flask inside the gym bag.
After finding these items, Layla called the police. Officer Matthew Gural arrived at Geraghty s residence around 6:45 p.m. and met Layla and Chris. Layla told Gural that she thought she had discovered a methamphetamine lab inside of Geraghty s apartment. Gural asked Layla to go with him inside the apartment to show him what she had discovered. Layla showed Gural the cooler and gym bag in the front room of the apartment. Inside the cooler, Gural saw multiple glass jars wrapped tightly in plastic wrap and containing a yellowish, milky-colored liquid. Gural removed one of the jars from the cooler to look at it closer. Inside the gym bag, Gural saw a glass container wrapped tightly in plastic wrap and containing the same type of liquid as the jars in the cooler. A coffee filter was stuffed into the glass container. In addition, Gural smelled ammonia and saw camping fuel and a plastic bag containing a scale near the gym bag and cooler.
After looking at these items, Gural left the apartment with Layla and Chris. Upon leaving the apartment, Layla and Chris explained that they had discovered a small glass vial containing a small yellowish-brown rock that appeared to be a narcotic on the headboard of Geraghty s bed. Gural contacted his supervisor about his observations, and a search warrant for Geraghty’s apartment was prepared. The search warrant was executed that night, and various items relating to the manufacture of methamphetamine were seized from Geraghty’s apartment.
Geraghty was charged with possession of methamphetamine in violation of K.S.A. 65-4107(d)(3) and K.S.A. 65-4160(a) and felony possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3). Before trial, Geraghty moved to suppress the evidence obtained during the search of his residence. Geraghty argued that Gural’s warrantless search of his residence was unlawful and that any evidence gained during this search must be suppressed. Ger aghty further argued that because the search warrant was based solely on the information gained through Gural’s invalid search, the evidence gained from the search warrant must be suppressed as fruit of the poisonous tree. The trial court denied Geraghty’s motion to suppress, determining that both consent and exigent circumstances justified Gural’s entry into the apartment. The case proceeded to a jury trial, and Geraghty was convicted of both charges. The trial court placed Geraghty on probation for 12 months with an underlying prison sentence of 24 months.
I. Motion to Suppress
On appeal, Geraghty contends that the trial court erred in denying his motion to suppress. Because the material facts to the trial court’s decision on Geraghty’s motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of the search and seizure. 281 Kan. at 324.
A. Gural’s Initial Search of the Apartment
In addressing Geraghty’s argument on this issue, we must first determine whether Gural’s warrantless entry into Geraghty’s apartment was lawful. We bear in mind that “unreasonable searches are constitutionally prohibited and ‘unless a search falls within one of a few exceptions, a warrantless search is per se unreasonable.’ [Citation omitted.]” State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). “The ‘exclusionary’ rule prohibits the admissions of the ‘fruits’ of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.” State v. Canaan, 265 Kan. 835, Syl. ¶ 3, 964 P.2d 681 (1998).
The recognized exceptions to the search warrant requirement under the Fourth Amendment to the United States Constitution include consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances; the emergency doctrine; inventory searches; plain view; plain feel; and administrative searches of closely regulated businesses. Mendez, 275 Kan. at 421.
The trial court determined that both the consent exception and the exigent circumstances exception justified Gural’s warrantless entry into Geraghty’s apartment. We will address each of these exceptions to the search warrant requirement separately.
1. Consent
Geraghty argues that Gural had no reason to believe that Layla or the landlord had the proper authority to consent to a search of Geraghty’s apartment. On the other hand, in responding to Geraghty’s argument, the State cites State v. Windes, 13 Kan. App. 2d 577, 580, 776 P.2d 477 (1989), for the proposition that the police here had the authority to retrace Layla’s steps in her private search.
Windes involved law enforcement officers’ search of a suspicious package that had been searched previously by a Federal Express employee. The employee had called law enforcement after he discovered a white powder, which he believed to be cocaine, in the package. This court determined that tire employee’s actions of opening the package, without having any contact with law enforcement, did not violate the Fourth Amendment due to their private character. 13 Kan. App. 2d at 580. Moreover, in analyzing the later actions of Florida law enforcement, this court set forth the rule from United States v. Jacobsen, 466 U.S. 109, 117-18, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984), that when a search by law enforcement officers does not exceed the scope of a prior private search, the officers do not infringe upon any privacy interest that has not already been frustrated by the private conduct, and their actions do not constitute a “search” within the meaning of the Fourth Amendment. 13 Kan. App. 2d at 581. This court held that once the package was opened by the employee, the defendant’s expectation of privacy was frustrated and the officers’ action in duplicating the prior private search was not a “search” under the Fourth Amendment. 13 Kan. App. 2d at 583.
Similarly, in Jacobsen, law enforcement officers searched a package that had already been opened and searched by employees of a private freight carrier. The United States Supreme Court held that officers’ actions in removing the contents of the package, removing a bag from a tube in the package, and removing white powder from die bag did not expand the private search. The Court stated that the respondents had no privacy interest in the contents of the package since it remained unsealed and that the agents learned no more than what had been revealed in the private search. The Court held that the officers’ actions did not constitute a “search” within the meaning of the Fourth Amendment. 466 U.S. at 117-20.
Both Windes and Jacobsen are distinguishable from the instant case because those cases involved the search of a package that had been turned over to a third party for delivery. This case involves the search of Geraghty’s home. Moreover, unlike the defendants in Windes and Jacobsen who turned over control of their property to a third-party carrier, Geraghty never turned over control of his apartment to a third person. The State fails to cite any case where the rule from Jacobsen and Windes has been extended to the search of a residence. Our Supreme Court has recognized that a person’s privacy interest in his or her home is entitled to unique sensitivity: “ ‘The Fourth Amendment protects a citizen’s reasonable expectations of privacy and one’s reasonable expectation of privacy in the home is entitled to unique sensitivity.’ [Citations omitted.]” State v. Reno, 260 Kan. 117, 128, 918 P.2d 1235 (1996). Because this case involves the search of a residence, it does not appear that Layla’s prior search of Geraghty’s apartment would justify Gural’s warrantless entry and search.
Furthermore, as Geraghty points out, the evidence fails to establish that Layla had actual or apparent authority to consent to a search of his residence. In Porting, 281 Kan. at 324, our Supreme Court recognized that the prohibition against warrantless searches of a person’s home under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights does not apply where voluntary consent has been obtained, either from the person whose property is searched or from a third party who has common authority over the premises. Our Supreme Court quoted United States v. Matlock, 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), where third-party consent was explained as follows:
“ ‘The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’ ” Porting, 281 Kan. at 325.
Because Layla was the person who allowed Gural into Geraghty’s apartment, the focus is on whether she had the authority to consent to the search. As Geraghty points out, Layla did not live in Geraghty’s apartment, nor did she have a key to it. In fact, Layla had been called to Geraghty’s apartment by the landlord for the limited purpose of removing guns from the apartment. Gural knew this information before he searched Geraghty’s apartment. Because the consent was not given by someone “generally having joint access or control” of the property “for most purposes,” it cannot be used to justify Gural’s warrantless entry and search of Geraghty’s apartment.
2. Exigent Circumstances
In determining that exigent circumstances justified Gural’s warrantless entry into Geraghty’s apartment, the trial judge stated:
“This case is going to turn primarily on the question of whether there was any emergency or exigent circumstances which required at least an initial examination to see if there was a meth lab inside. I reject the notion that the officer could simply on the word of the daughter [have] evacuated the area, brought EMS and fire cruisers, which is typically done for meth lab. That is great inconvenience and expense for the public as well when it was simple matter where deputy open his eye and look where the daughter said she saw were chemicals. The intrusion here is quite minimal, quite minimal. Officer Gural did the appropriate thing to back off when he saw what he saw; ordered persons out; and then secured the residence until a search warrant be obtained.”
The trial court stated that Gural would have been derelict in not going inside the apartment. The trial court noted that this case was very similar to a situation involving a leaky gas valve or a dead body where immediate attention was required.
The trial court’s decision is confusing because it seems to combine both the exigent circumstances exception and the emergency doctrine exception to the search warrant requirement. Nevertheless, these two exceptions are based on different circumstances:
“ ‘The exigent circumstances exception is triggered when the police, with probable cause but no warrant, enter a dwelling in the reasonable belief that the delay necessary to obtain a warrant threatens the destruction of evidence, [citations omitted], or when they have a reasonable belief that a crime is in progress or has just been committed in a dwelling and the delay attendant to obtaining a warrant endangers the safety or life of a person therein. [Citations omitted.] ....
“ ‘Conversely, the emergency aid doctrine is triggered when the police enter a dwelling in the reasonable, good-faith belief that there is someone within in need of immediate aid or assistance. In cases in which this doctrine applies there is no probable cause which would justify issuance of a search warrant, . . . , and the police are not entering to arrest, search, or gather evidence.’ ” State v. Jones, 24 Kan. App. 2d 405, 414, 947 P.2d 1030 (1997) (quoting State v. Fisher, 141 Ariz. 227, 240-41, 686 P.2d 750, cert. denied 469 U.S. 1066 [1984]).
The trial court in this case never went through the proper analysis for either the exigent circumstances exception or the emergency doctrine exception. Because each involves a different analysis, we will discuss the two exceptions separately.
Under the exigent circumstances exception, we note that the State does not argue that Gural’s entry into Geraghty’s residence was based on the threat of the destruction of evidence. The evidence establishes that Gural knew that Geraghty had been arrested earlier in the day and was in jail. Therefore, there was no threat that Geraghty was in the apartment and could destroy evidence or that he would have escaped if not swiftly apprehended. Moreover, Layla and her husband had called the police about the suspected methamphetamine lab, and they were outside of the apartment when Gural arrived. Further, Layla told Gural that an employee of the apartment complex had let her and her husband into Geraghty’s apartment after the landlord had called her and asked her to remove guns from the apartment. This information indicated that Layla and her husband had been the only ones inside the apartment. Therefore, Gural could not reasonably believe that evidence would be destroyed while a search warrant was obtained.
Moreover, Gural’s actions establish that he did not enter Geraghty’s apartment on the reasonable belief that the delay in obtaining a warrant would endanger the safety or life of a person in the dwelling. As discussed previously, no one was inside Geraghty’s apartment when Gural arrived. Gural did not attempt to warn the neighbors or get them out of the apartment building. Gural did not call a drug task force or any other emergency department that had experience in handling methamphetamine labs to the scene. Instead, Gural took both Layla and her husband back inside the apartment where the methamphetamine lab was located. Gural’s actions were contrary to those of an officer who believes that the delay to obtain a search warrant would endanger the safety or life of a person in the dwelling. Therefore, the probable cause with exigent circumstances exception does not apply here.
3. Emergency Doctrine
Our Supreme Court in State v. Drennan, 278 Kan. 704, 719-20, 101 P.3d 1218 (2004), set forth the rationale of the emergency doctrine exception that was explained by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978), as follows:
“ “We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” [Citation omitted].’ ”
In Mendez, 275 Kan. at 425, our Supreme Court recognized that in order to establish application of the emergency doctrine, three requirements must be met: (1) the police must have reasonable grounds to believe that an emergency is at hand and that their assistance is needed immediately for the protection of life or property; (2) the search must not be primarily motivated by the intent to arrest and seize evidence; and (3) there must be a reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. The State has the burden of establishing application of the emergency doctrine. State v. Horn, 278 Kan. 24, 32, 91 P.3d 517 (2004). The reasonableness of the officer s belief of the existence of an emergency and an immediate need for assistance is measured by an objective standard. 278 Kan. at 32-33.
The State correctly points out that the second prong of the emergency doctrine is no longer required under Brigham City v. Stuart, 547 U.S. 398, 164 L. Ed. 2d 650, 126 S. Ct. 1943 (2006). Nevertheless, it is apparent that the State has not met the first prong of the emergency doctrine in this case. Before entering the apartment, Gural knew only that Layla suspected that her dad was making methamphetamine and that she had seen several jars inside the apartment. Gural was provided with no information that the methamphetamine lab was active. Moreover, Gural was aware that no one was inside the apartment and that Geraghty had not been there for hours.
The facts of this case are unlike those in other cases where courts have found the emergency doctrine exception to apply. For example, in State v. Jones, 2 Kan. App. 2d 38, 573 P.2d 1134 (1978), an officer responding to an apartment fire saw a cloud of smoke inside the apartment. The officer entered the apartment and removed a smoldering rug. Officers reentered the apartment to search for occupants and to clear the apartment of smoke. Upon reentry, they found marijuana and drug paraphernalia. Determining that the facts of the case fit squarely within the emergency doctrine, this court stated: “The officers responded to a fire call. Upon arrival at the scene, they forcibly entered the apartment in order to save property and possibly to save lives. The initial intrusion was lawful.” 2 Kan. App. 2d at 42.
In Brigham City, officers responded at 3 a.m. to complaints about a loud party. As the officers approached the house, they could hear a loud and tumultuous altercation that seemed to be coming from the back of the house. After looking in the front window and seeing nothing, the officers walked to the back of the house. The officers saw a juvenile with fists clenched being held back by several adults inside the kitchen. As the officers watched, the juvenile broke free and struck an adult in the face, sending the adult to a sink spitting blood. One of the officers opened the door and yelled “police.” After nobody responded, the officer entered the kitchen. Determining that the officers were justified in entering the home without a warrant, the United States Supreme Court held that the officers had an objectively reasonable basis for believing that the injured adult might need help and that there was an imminent threat of violence. 547 U.S. at 406-07.
This case is different from both Jones and Brigham City because there is no objectively reasonable basis in this case to conclude that immediate officer entry was necessary in order to save lives or property. The facts in this case do not support an objective belief that someone was in danger or that there was an imminent threat of harm to fife or property. Under the first prong, the circumstances known to Gural at the time of entry did not create a reasonable belief that an emergency was at hand and that police assistance was needed immediately for the protection of life or property. Therefore, the emergency doctrine exception is inapplicable to this case.
B. Search Warrant
Nevertheless, our analysis does not end here. If the trial court reached the right result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. State v. Nash, 281 Kan. 600, 602, 133 P.3d 836 (2006). The State argues that even without the information concerning what Gural discovered inside the apartment in the search warrant affidavit, there was ample probable cause for a search warrant to be obtained.
The State’s argument suggests that Geraghty’s apartment would have been searched and the evidence seized regardless of whether Gural initially entered the apartment without a warrant. The State’s argument relates to the inevitable discovery exception to the exclusionary rule. “Evidence obtained unlawfully in violation of a defendant’s constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been dis covered by lawful means.” State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 4, 784 P.2d 381 (1989).
When an application and affidavit for search warrant contains information both lawfully and unlawfully obtained, the question becomes whether the lawfully obtained information by itself supports probable cause that would have justified issuance of the search warrant by the magistrate. State v. Weas, 26 Kan. App. 2d 598, 603, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000).
Importantly, in his motion to suppress, Geraghty never challenged the legality of the officers’ earlier entry into his apartment when they smelled the strong odor of burnt marijuana. At the suppression hearing, Geraghty made clear that the search to which he was objecting was Gural’s search of the apartment. In the absence of any objection to the earlier search, it would be improper to consider the legality of such search. See Mize v. State, 199 Kan. 666, 666-67, 433 P.2d 397 (1967) (failure to object to admission of illegally obtained evidence waives the issue); see also State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006) (Issues not raised before the trial court cannot be raised on appeal.). Therefore, the facts pertaining to the earlier entry contained in the affidavit for search warrant may properly be considered in determining whether a search warrant would have been issued.
The affidavit for search warrant in this case contained the following facts:
“1. On August 14, 2004, at 1220 hours, officers were dispatched to 130 East Madison #7, Gamder, Johnson County, Kansas, in reference to a subject carrying a rifle into the residence. At that address officers observed that the front door to the apartment was standing open. Officers knocked and announced, while the officers were standing at the door, they smelled an odor that in their training and experience, noted as the odor of burnt marijuana. Officers observed a male, late[r] identified as Michael D. Geraghty, walk out of the bedroom door. Officers investigated the odor, and observed a quantity of marijuana in the bedroom. Geraghty was placed into custody at that time and transported to New Century ADC for lodging.
“2. On August 14, 2004, officers were again dispatched to 130 East Madison #7, Gardner, Johnson County, Kansas, on a recovered property report. When the officer arrived on the scene, a female, later identified as Layla K. Bryan, approached the officer and said, ‘I think my dad is cooking meth in here (#7).’ The officer entered the residence and observed a can of camping fuel, a scale, several clear plastic and glass containers wrapped in cellophane, butane grill lighter, and a flask with a coffee filter in it. Once the officer saw the flask with the filter in it, the officer moved everyone out of the residence, for safety reasons, as the officer recognized the components of a meth lab. Bryan continued to say that her husband discovered a ‘rock-type’ of narcotic in Geraghty’s bedroom.
“3. Officers inquired as to how the daughter discovered these items. Biyan advised that before she went over to #7, the apartment complex manager called her and requested that she remove all firearms from her father’s residence, due to the neighbor’s complaints. When she went into the residence, that is when she discovered the suspected drug paraphernalia and called the police.”
Excising the information relating to Gural’s warrantless search of the residence, we are still left with the following facts: officers had been called to Geraghty’s residence earlier in the day after he was seen carrying a gun into his apartment; the officers smelled an odor of burnt marijuana coming from Geraghty’s residence and later found marijuana in Geraghty’s bedroom; Geraghty was arrested for possession of marijuana; Geraghty’s landlord later asked Layla to come to the apartment to remove guns; after entering the apartment, Layla called the police because she suspected that Geraghty was making methamphetamine; Layla told Gural that she thought her father was making methamphetamine in the apartment; and Layla told Gural that her husband had found a “rock-type” narcotic in Geraghty’s bedroom.
Even without the information relating to Gural’s warrantless entry, there is ample information in the affidavit for the search warrant to support probable cause to issue a search warrant. Illegal drugs had been found in Geraghty’s residence earlier in the day. Layla supplied information that her father appeared to be making methamphetamine inside the apartment and that her husband had discovered what appeared to be a rock-type narcotic in the apartment.
Informants’ Reliability
In State v. Hicks, 282 Kan. 599, 614, 147 P.3d 1076, our Supreme Court held that the concerns over the “veracity” and the “basis of knowledge” of people providing hearsay information in an affidavit for search warrant “falls by the wayside if ‘an unques tionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him [or her] to criminal liability/ [Citations omitted.]” See State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999) (“[T]he most favored of the tips are those which are in fact not really anonymous at all. These tips occur when the person giving the tip gives the police his or her name and address or identifies himself or herself in such a way that he or she can be held accountable for the tip.”); State v. Musick, 30 Kan. App. 2d 76, 78, 38 P.3d 144, rev. denied 273 Kan. 1039 (2002) (informants who supplied police with their names, addresses, and enough information to make it clear they had firsthand knowledge of defendant’s activities considered rehable). Here, Layla identified herself and remained at the apartment to speak with Gural and to show him what she had discovered. Layla had firsthand knowledge of what she reported because she had been inside the apartment. Layla was not implicated in any criminal activity and had voluntarily called the police to report the suspected crime. If the information turned out to be false, the police had enough information to hold Layla accountable for the false report. Under these circumstances, the information provided by Layla was rehable.
We conclude beyond a reasonable doubt that the magistrate would have issued a search warrant for Geraghty’s residence based upon the information possessed by the police without Gural’s warrantless entry. Because the evidence that was seized in this case would have been ultimately discovered in a lawful entry, Geraghty’s motion to suppress was properly denied.
II. BIDS Attorney Fees
Finally, Geraghty argues that the trial court erred in ordering him to reimburse the Board of Indigents’ Defense Services (BIDS) for attorney fees when it failed to consider his ability to pay, the financial burden that payment would impose, and the validity of the fees. Geraghty’s argument on appeal concerns the reimbursement of attorney fees under K.S.A. 2006 Supp. 22-4513 and does not extend to the application fee under K.S.A. 2006 Supp. 22-4529.
In the recent case of State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), our Supreme Court held: “A sentencing court assessing fees to reimburse the Board of Indigents’ Defense Services under K.S.A. 2005 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of tire defendant and the nature of the burden that payment of the fees will impose.”
Here, the trial court never considered on the record at the time of assessing BIDS attorney fees the financial resources of Geraghty and the nature of the burden that payment of the fees would impose. Under Robinson, it appears that this case should be remanded for resentencing with directions for the trial court to comply with K.S.A. 2006 Supp. 22-4513 regarding the assessment of BIDS attorney fees.
Nevertheless, the State makes an interesting argument that because Geraghty has been terminated from probation, this issue is moot. An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned. In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002).
" ‘The general rule is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ [Citation omitted.]” Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005).
One of the conditions of Geraghty’s probation was for Geraghfy to pay BIDS — the public defender fund — $200. Geraghty was discharged from probation in July 2005. Nevertheless, the record is unclear as to whether Geraghty actually reimbursed BIDS the assessed $200 attorney fee. As a result, we remand to the trial court for clarification on whether Geraghty has paid the BIDS attorney fee of $200. If Geraghty has paid that amount, the trial court is directed to dismiss this matter as moot. On the other hand, if Geraghty has not fully paid this amount, the trial court is directed to resentence Geraghty in compliance with K.S.A. 2006 Supp. 22-4513 regarding the assessment of BIDS attorney fees.
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Caplinger, J.:
Defendant/appellant Farmers Insurance Company (Farmers) appeals the district court’s ruling finding Farmers estopped from denying coverage to the unlisted driver of a rental car rented by its insured. The individuals injured in the car accident, the intervenors/appellees, filed a cross-appeal challenging the district court’s ruling that the insured’s policy with Farmers did not provide liability coverage for the driver’s negligence.
Factual and procedural background
What should have been an enjoyable weekend spent among friends instead spawned nearly 7 years of litigation, culminating in this appeal. On September 29,2000, Sandra (“Sandy”) Taylor, now Taylor-Pahl, rented a passenger van from Thrifty Rent-A-Car in Kansas City and invited a group of friends to drive to a football game in Boulder, Colorado. She designated Theodore “Ted” Pahl as an additional driver on the rental agreement and declined to purchase the insurance.
The group included Sandy, Ted, Emily Hatchett, Daniel Weber, Heather Weber, and Jennifer Lund. They all agreed to take turns driving.
Ted drove the first leg, and Sandy drove the second. Emily took the wheel in Colby, Kansas.
According to the Kansas Highway Patrol’s accident report, Emily lost control of the van at approximately 11:40 p.m. while attempting to avoid a tumbleweed. The van veered left, right, and then into a ditch where it rolled several times before coming to rest. Three of the passengers were ejected; Emily was trapped inside. All sustained significant injuries.
At the time of the accident, Sandy owned a vehicle insured by Farmers. Emily owned a vehicle insured by Kemper American Motorists Insurance Company, d/b/a Hedges (Kemper).
Kemper tendered Emily’s policy limits of $300,000, which the Douglas County District Court divided pursuant to a stipulated allocation order. The allocations were made with the understanding plaintiffs suffered injuries in excess of $300,000.
Farmers, without any reservation of rights, paid Thrifty $20,420 for the damaged van, and Sandy paid the $300 deductible required by her Farmers policy. Farmers also paid the cost of Sandy’s defense in a civil suit initiated against her by Daniel and Heather Weber.
Each of the passengers — Sandy, Ted, Dan, Heather, and Jennifer — filed personal injury suits against Emily seeking damages for their medical expenses. The Webers’ suit, as noted above, also named Sandy as a defendant. These suits have been consolidated and stayed in the Douglas County District Court pending resolution of this action.
Farmers denied coverage for any of the injuries, and refused to participate in the suits against Emily. It specifically denied that its policy with Sandy extended liability coverage to Emily. Farmers informed Kemper that Emily’s policy with Kemper was primary, because Emily was the driver and the negligent tortfeasor.
Kemper filed a petition for declaratory judgment against Farmers, seeking (1) an adjudication of Farmers’ obligations under its policy; (2) an order requiring Farmers to defend Emily in the intervenors’ personal injury lawsuits and to pay any judgment entered against Emily; and (3) an award of attorney fees to Kemper.
Shortly after Farmers filed its answer, Dan, Heather, Sandy, Ted, and Jennifer each sought to intervene. Kemper sought to dismiss its claim without prejudice so as not to affect the intervenors’ claims.
The parties agreed to a stipulated journal entry dismissing plaintiff Kemper without prejudice, entering a combined scheduling order, and granting intervention, thus permitting the intervenors to continue their action against Farmers. The intervenors then filed “new” petitions for declaratory judgment against Farmers, seeking coverage for Emily’s negligence under Sandy’s policy.
The intervenors also filed a motion for summary judgment. Farmers filed its own summary judgment motion, and the parties traded briefs and memoranda on the summary judgment issues.
The district court’s decision
At a hearing on the motions, the district court found Sandy had been the “trip boss”; i.e., she directed who drove and when. The district court further concluded that at the time of the accident, Sandy was “using” the vehicle in the sense that she was being transported to the game, even though Emily was driving.
The district court then considered Farmers’ policy, which defined “insured car” as follows:
“ ‘Your insured car, as used in this part, shall also include any other private passenger car, utility car, or utility trailer not owned by or furnished or available for the regular use of you or a family member. But no vehicle shall be considered as your insured car unless there is sufficient reason to believe that the use is with permission of the owner and, unless it is used by you or a family member.’ ” (Emphasis added.)
The district court acknowledged the intervenors’ argument that the rental van might be considered an “insured car” because Sandy, as a passenger, was “using” it. Nevertheless, the court concluded that because Sandy was not operating the vehicle at the time of the accident, she was not a “user” for insurance purposes. Therefore, the district court determined Sandy’s policy with Farmers did not extend coverage to Emily and granted Farmers’ motion for summary judgment on this ground.
Regarding the intervenors’ estoppel argument, the district court held that although Farmers paid for the damaged van and defended Sandy in a lawsuit without reserving any rights, the intervenors did not detrimentally rely on these actions. Moreover, the district court concluded estoppel could not be employed to expand the coverage of an insurance policy or alter the rules of contract construction. Therefore, the district court also granted Farmers’ motion for summary judgment on this ground.
The intervenors filed motions to reconsider. Following a hearing, the district court affirmed its earlier ruling in favor of Farmers on the coverage issue. However, after concluding it had not properly addressed the estoppel issue, the district court ruled in favor of the intervenors, reasoning Farmers’ act of reimbursing Thrifty for the cost of the van essentially acknowledged the van was an “insured car” under Sandy’s insurance policy. The district court also found persuasive Farmers’ admission in correspondence that an “insured person” includes “any person using your insured car.”
In granting the intervenors’ motion for summary judgment on the estoppel issue, the district court rejected Farmers’ argument that the intervenors did not detrimentally rely on Farmers’ act of paying for the van. The court further rejected Farmers’ suggestion that the doctrine of estoppel cannot apply to expand insurance coverage.
Farmers appeals the district court’s ruling in favor of the intervenors on the estoppel issue, and the intervenors cross-appeal the district court’s ruling in favor of Farmers on the issue of coverage under the contract.
Standard of review
This court’s standard of review is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citation omitted.]’ [Citation omitted.]” Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007).
The parties agree the essential underlying facts are undisputed. The disputed issues involve the district court’s conclusions of law, particularly its interpretation of the insurance contract and its ap plication of the doctrine of equitable estoppel. These pure questions of law command this court’s unlimited review. See Nungesser, 283 Kan. at 566; Narron v. Cincinnati Ins. Co., 278 Kan. 365, 369, 97 P.3d 1042 (2004).
Coverage issue
We first consider the issue raised by the intervenors in their cross-appeal, i.e., whether the district court erred in finding Sandy’s policy with Farmers did not extend coverage to Emily.
If the language of an insurance policy 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. Warner v. Stover, 283 Kan. 453, 456, 153 P.3d 1245 (2007); First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
An insurance policy is ambiguous when it contains language of doubtful or conflicting meaning based on a reasonable construction of the policy’s language. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003); Jones v. Reliable Security, Inc., 29 Kan. App. 2d 617, 626-27, 28 P.3d 1051, rev. denied 272 Kan. 1418 (2001). An ambiguity does not exist merely because the parties disagree on the interpretation of the language. Marshall, 276 Kan. at 111; Jones, 29 Kan. App. 2d at 627.
Here, Farmers agreed to insure Sandy subject to the terms of the policy. The liability section’s omnibus clause evidences Farmers’ agreement to
“pay damages for which any insured person is legally liable because of bodily injury to any person, and/or property damage arising out of the ownership, maintenance or use of a private passenger car, a utility car, or a utility trailer.
“We will defend any claim or suit asking for these damages.” (Emphasis added.)
The term “insured person” is defined in the liability section of the policy as:
“1. You or any family member.
“2. Any person using your insured car.
“3. Any other person or organization with respect only to legal liability for acts or omissions of:
“a. any person covered under this part while using your insured car.”
Under this definition, Emily was “using” the car, but was an “insured person” only if she was driving an “insured car.” The policy defined “insured car” as follows:
‘Tour insured car, as used in this part, shall also include any other private passenger car, utility car, or utility trailer not owned by or furnished or available for the regular use of you or a family member. But no vehicle shall be considered as your insured car unless there is sufficient reason to believe that the use is with permission of the owner, and unless it is used by you or your family member.” (Emphasis added.)
Under the plain language of the general provisions, the named “insured” was the then-unmarried Sandy and the insured vehicle was her 1991 Nissan Sentra. For purposes of liability, however, the “insured person” was anyone using Sandy’s “insured car.” While the rental car was a “private passenger car” not owned by Sandy or furnished or available for her regular use, under the omnibus clause the rental vehicle was not considered an “insured car” unless there was “sufficient reason to believe that the use” was permitted by the owner, and it was “used by” Sandy or her family member.
Here, the rental contract in Sandy’s name provided sufficient reason to believe Sandy’s use was with Thrifty’s permission. The question at issue in this appeal, however, is whether the car was being “used by [Sandy]” at the time of the accident.
The insurer assumes the duty to define limitations to an insured’s coverage in clear and explicit terms. To restrict or limit coverage, an insurer must use clear and unambiguous language. Otherwise, the insurance policy will be construed in favor of the insured. Marshall, 276 Kan. at 112. “Unclear and obscure clauses in a policy of insurance should not be allowed to defeat the coverage reasonably to be expected by the insured.” Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 792, 457 P.2d 34 (1969).
In this case, we can comfortably conclude Sandy reasonably would have expected her insurance policy to cover damage to her rental vehicle and injury to herself and other passengers so long as she was driving the vehicle. But the more difficult question is whether Sandy reasonably would have expected her insurance policy to cover injury to herself and other passengers occurring while another person was driving the rental car?
The district court found Sandy was the “trip boss” and thus was in control of and “using” the vehicle. Nevertheless, relying upon Colfax v. Johnson, 270 Kan. 7, 11 P.3d 1171 (2000), the district court concluded Sandy was required to be “in operation of’ the vehicle to be considered a “user.” Because the vehicle was not operated by Sandy at the time of the accident, the district court found Sandy’s insurance did not cover Emily’s liability.
In Colfax, the insured, James Johnson, was preparing to leave Ruth McFarland’s residence in his truck. McFarland cared for six children at her home, and Johnson asked her to check and see if any of the children were playing near his truck before he backed up. McFarland signaled Johnson the path was clear, but unbeknownst to either of them a child was underneath the truck and was severely injured. The child sought payment from Johnson’s insurance company for McFarland’s liability on the theory that when McFarland instructed Johnson to back up, she was a covered “user” of the truck, and Johnson’s policy covered her liability because it covered “any person using ‘[his] covered auto.’ ” 270 Kan. at 11.
On petition for review, our Supreme Court considered cases involving similar facts, i.e., remote direction or signaling by a third party resulting in injury. Ultimately, the court held that because McFarland was acting as a lookout, she was not “using” Johnson’s vehicle, and therefore was not an insured under Johnson’s policy. 270 Kan. at 16. The court held: “In.order to constitute a ‘use’ or to be a ‘user’ under an automobile liability insurance policy, such as to be an insured, one must be in operation of the vehicle.” 270 Kan. 7, Syl. ¶ 4.
Colfax is initially distinguishable from the instant case in that the issue in Colfax did not concern whether the vehicle involved in the accident was an “insured vehicle.” Rather, the issue there was whether a person standing outside the insured vehicle who was directing the driver could somehow be “using” the insured vehicle such as to be an “insured person.” Here, there is no question that Emily was operating the vehicle and was an “insured person” so long as she was using an “insured car.”
Further, we note Colfax cited and relied on Kansas cases wherein the courts have broadly treated the term “use” in the context of automobile insurance. For instance, in Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 (1964), a geologist was struck and injured by a truck which had been unloaded at a job site and was being towed off the site. Our Supreme Court discussed the term “use” and stated the court “must consider whether the injuiy sustained was a natural and reasonable incident or consequence of the use of the vehicle involved for the purposes shown by the declarations of the policy though not foreseen or expected.” 193 Kan. at 11. Under these facts, the court held the truck was not being “used” at the time of the accident.
In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 411 P.2d 616 (1966); the court considered whether the “ownership, maintenance or use” clause of a city truck’s liability insurance policy covered an accident resulting from a cable stretched from a winch on the truck' across the street to a utility pole, which injured a passing motorist. The Alliance court noted the noun “use”
“ ‘has been held to be synonymous with benefit and employment, and practically synonymous with enjoyment, and as a verb, it has a well-understood meaning and a legal significance, having been variously defined as meaning to employ, to employ for any purpose, to employ for the attainment of some purpose or end, to avail one’s self of, to convert to one’s service, or to put to one’s use or benefit, and the infinitive to use has also been defined as to hold, occupy, enjoy, or take the benefit of.’ ” Alliance, 196 Kan. at 328 (quoting Esfeld Trucking, Inc., 193 Kan. at 10-11).
Although the insured vehicle was stationary and held no passengers, the court in Alliance nevertheless held the truck was being “used” by the insured for purposes of coverage.
In United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978), a passenger pulled on the steering wheel, causing the driver to lose control; the driver’s insurance company was sued when it refused to extend liability coverage to the passenger 2 Kan. App. 2d at 581. In considering whether the passenger was an insured person because she was “using” the car at the time of the accident, this court held the term “use” in a coverage clause of an automobile liability policy is given “broad, general and comprehensive meaning effecting broad coverage.” 2 Kan. App. 2d at 582. The court held the term “use” was a “broad catchall” designed and construed to include “all proper uses” of the vehicle. 2 Kan. App. 2d at 582. Citing a treatise, the court found “use” includes “any exercise of control over the vehicle . . . regardless of its purpose, extent, or duration.” 2 Kan. App. 2d 580, Syl. ¶ 2.
We find it significant that our Supreme Court in Colfax noted with approval the test for “use” articulated in Fidelity. And it applied that test to conclude McFarland, acting as a lookout, was not “using” the vehicle.
Under Farmers’ policy, an insured person is defined as “any person using your insured car.” “Your insured car” includes a rental car, so long as it is being “used by you.” Farmers is obligated to “pay for damages for which any insured person is legally hable because of bodily injury to any person, and/or property damage arising out of the ownership, maintenance or use of a private passenger car.”
Applying the Fidelity test approved in Colfax, it is clear Sandy was “using” the vehicle at the time of the accident. As the district court found, at the time of the accident Sandy was “using” the rented vehicle to transport herself and others to a football game in Colorado. Sandy rented the vehicle and required all passengers to wear their seatbelts. She decided who drove and when.
Therefore, we conclude that under Sandy’s policy with Farmers, the rental vehicle was Sandy’s “insured car.” When Sandy handed the keys to Emily in Colby, Sandy’s use of the car did not end; the car remained an insured car and continued to be used by Sandy. Thus, Sandy’s liability coverage extended to Emily as an “insured person” who was using the “insured car.”
Because the district court concluded Sandy’s policy with Farmers did not extend coverage to a rental car driven by Emily, we reverse the district court’s grant of summary judgment in favor of Farmers on this issue and grant summary judgment in favor of the intervenors on the coverage issue.
Based upon our decision, the estoppel issue raised in Farmers’ appeal is moot. Accordingly, we hold summary judgment in favor of the intervenors was appropriate, although for a different reason than that found by the district court. See In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 (1988).
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Malone, J.:
Nations Development Corporation (NDC) was the original developer of the North Country Villas subdivision, which consisted of single family homes and duplexes. In June and November 2005, NDC sold lots to Randy J. Kokenge and Lori A. Kokenge (the Kokenges) and Clampitt-Hersh Development, LLC (Clampitt-Hersh). In November 2005, NDC assigned its rights as declarant to the Kokenges and Clampitt-Hersh. As declarants, the Kokenges and Clampitt-Hersh revoked the Declaration of Covenants, Restrictions, and Easements for the subdivision as to the land owned by them. The Kokenges then began building a fourplex on the subdivision.
The other homeowners held a meeting and elected officers and a board of directors of North Country Villas Homeowners Association (North Country). North Country and the individual homeowners then filed a petition with the district court. The petition asked the district court to declare that tire Kokenges and Clampitt-Hersh were subject to the Declaration’s restrictions and to enjoin the Kokenges from building the four-plex. The parties filed stipulated facts, and the district court granted summary judgment in favor of North County and homeowners.
NDC, the Kokenges, and Clampitt-Hersh raise three issues on appeal: (1) The district court erred in finding that NDC could not assign its rights under the Declaration; (2) the district court erred in finding that the Kokenges and Clampitt-Hersh could not revoke or amend the Declaration as to properties owned by them; and (3) the district court erred in determining that North Country’s officers and directors were properly elected.
We conclude the district court did not err in finding that the attempt by the Kokenges and Clampitt-Hersh to either revoke or amend the Declaration as to their property was unenforceable. In doing so, we adopt Restatement (Third) of Property: Servitudes § 6.21 (1998), which provides that a developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that die power could be used for the kind of change proposed. Here, the general amendment provision of the Declaration did not sufficiendy notify purchasers that the developer could make such a drastic amendment that would materially change the character of the development. Accordingly, we affirm the decision of the district court.
Factual and procedural background
In 1999 and 2000, Charles Nations, as president of NDC, recorded final plats for the Urban Hills Subdivision 14 and 15 with the Shawnee County Register of Deeds office. Urban Hills Subdivision 14 and 15 is a residential subdivision located north of Topeka, Kansas. The subdivision is commonly referred to as the North Country Villas (subdivision).
In February 2001, NDC filed the Declaration of Covenants, Restrictions, and Dedication of Easements of North Country Villas (Declaration) with the Shawnee County Register of Deeds office. The Declaration identified the declarant as NDC, its successors, heirs, and assigns. The Declaration imposed property use restrictions on owners of lots in the subdivision. In particular, the Declaration essentially defined “Villa Unit” to mean either a single family home or a duplex.
In April 2001, not-for-profit articles of incorporation were filed with the Kansas Secretary of State’s office, creating North Country. The Declaration provided that North Country had two classes of voting membership: (1) Class A memberships were issued to all lot owners except the declarant and (2) Class B memberships were issued to the declarant. Under the Declaration, “[t]he number of Class B memberships shall, at all times, equal the number of Class A memberships multiplied by four.”
From 2001 through 2005, NDC advertised the subdivision and sold lots. In June 2005, NDC sold a lot located in the subdivision to the Kokenges. On November 10,2005, NDC sold lots to Clamp itt-Hersh. On November 14, 2005, NDC sold more lots to the Kokenges.
On November 10,2005, NDC filed an assignment of developer’s rights with the Shawnee Country Register of Deeds office. In the document, NDC assigned “all of its interest as Declarant and all of its interest as a Class B membership owner in the Urban Hills Subdivisions” to the Kokenges and Clampitt-Hersh. Clampitt-Hersh then filed a document revoldng the Declaration as to the lands owned by it with tire Shawnee County Register of Deeds office. The Kokenges filed a similar document revoking the Declaration as to the lands owned by them.
On November 18,2005, Clampitt-Hersh sent a letter to the subdivision’s lot owners informing them that NDC had sold its “remaining land interest to the consortium of A Construction & Consulting, LLC and Clampitt-Hersh Development, LLC.” The letter stated that as of December 1, 2005, it would manage the homeowners association. On November 28, 2005, Randy Kokenge filed a building permit application, requesting a permit to build a fourplex in the subdivision. The Shawnee County Planning Department issued a building permit for the construction of a six-bedroom four-plex. The Kokenges then began building a four-plex in the subdivision.
On December 28, 2005, Barbara Hersh, Gayle Clampitt, and Randy Kokenge sent a letter to the subdivision’s homeowners in which they informed the owners that they were transferring management of North Country over to the owners. The letter stated, in part:
“Because of the extensive phone calls and demands, we have decided to immediately transfer the management to you, the homeowners. You will need to elect officers, and open a checking account in the name of the association. At that time we will release the remaining funds which we have received since December 1, 2005. This needs to be done immediately, and we will no longer accept dues, and will not manage the association, as a courtesy or otherwise.”
The letter further stated that “[a]s Declarants, the properties we purchased are exempt from the North Country Villas Homeowners Association and their restrictions and we have elected to not become members at this time.”
On February 1, 2006, the homeowners held a meeting and elected officers and a board of directors for North Country. On February 8, 2006, North Country and individual homeowners filed a petition with the Shawnee County District Court. The petition named the Kokenges, Clampitt-Hersh, NDC, and Nations as defendants. The petition asked the district court to find that NDC’s assignment of its rights as declarant to the Kokenges and Clampitt-Hersh was invalid. The petition also asked the district court to declare that the Kokenges and Clampitt-Hersh were subject to the Declaration’s restrictions. Finally, the petition asked the district court to enjoin the Kokenges from constructing the four-plex and to require them to remove the portion that had already been constructed. In April 2006, the parties jointly filed stipulated facts. Both parties tiren filed motions for summary judgment.
On May 16, 2006, the district court entered a memorandum decision and order granting North Country’s motion for summary judgment. The district court entered an injunction against the Kokenges and Clampitt-Hersh, requiring them to abide by the terms of the Declaration and enjoining them from building any structure in the subdivision that did not fall under the Declaration’s definition of “Villa Unit.” In its order, the district court found that the Kokenges and Clampitt-Hersh did not have the authority to “revoke” the Declaration as to the properties they owned. On July 21, 2006, the district court filed a subsequent memorandum decision and order. In its July 2006 order, the district court found that NDC’s assignment of its rights as declarant to the Kokenges and Clampitt-Hersh was invalid and that North Country’s officers and directors had been properly elected at the February 1,2006, homeowners’ meeting. NDC, the Kokenges, and Clampitt-Hersh timely appeal the district court’s rulings.
Standard of review
Appellate review of the district court’s order granting summary judgment is well known:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, [appellate courts] apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). Here, the district court’s decision was based on stipulated facts. As such, this court’s review of the district court’s rulings is de novo.
Could NDC assign its rights under the Declaration?
NDC, the Kokenges, and Clampitt-Hersh first claim the district court erred in determining that NDC could not assign its rights as the declarant to the Kokenges and Clampitt-Hersh. They contend the Declaration specifically contemplated that NDC could assign its rights to other parties. North Country argues that NDC could not assign its rights under the Declaration because its rights were personal in nature and the Declaration did not expressly permit the assignment of such rights.
Article One of the Declaration defined “Declarant” as NDC, its successors, heirs, and assigns. Article Eleven of the Declaration provided that North- Country had two classes of voting membership. Class A memberships were issued to all lot owners except the declarant and Class B memberships were issued to the declarant. NDC, as the declarant, purported to assign all of its interests as a Class B member and as declarant to the Kokenges and Clampitt-Hersh in a November 2005 document titled Assignment of Developer’s Rights.
The district court found that NDC could not assign its Class B membership rights to the Kokenges and Clampitt-Hersh:
“Rather, the Court finds that the words ‘successors, heirs and assigns’ are simply used in the Declaration to make it clear that the ‘covenants, conditions and re strictions’ are to ‘run with and bind the real estate’ regardless of who may own the real property in the future. . . . Thus, the Court finds that [NDC] did not have the authority to assign its Class B rights to [the Kokenges and Clampitt-Hersh] and that any Class B rights which may still be in existence are retained by [NDC], to be exercised through and by its representative, Charles Nations.”
To resolve this issue this court must interpret North Country's Declaration. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). This court uses the same rules it applies to interpret contracts to interpret the Declaration. See South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035 (1976); Sporn v. Overholt, 175 Kan. 197, 199, 262 P.2d 828 (1953).
Generally, contract rights are assignable in Kansas. Alldritt v. Kansas Centennial Global Exposition, 189 Kan. 649, 657, 371 P.2d 181 (1962). However, there is a well-recognized exception to this general rule which prohibits the assignment of rights arising out of contracts involving “personal and confidential relations to which liabilities are attached.” Safelite Glass Corp. v. Fuller, 15 Kan. App. 2d 351, 358, 807 P.2d 677, rev. denied 249 Kan. 776 (1991); see Alldritt, 189 Kan. at 657; Standard Chautauqua System v. Gift, 120 Kan. 101, 103, 242 Pac. 145 (1926).
Here, the Declaration did not expressly prohibit the assignment of any of the declarant’s rights. In fact, the Declaration implicitly recognized that the declarant could assign its rights under the Declaration by defining declarant as NDC and “its successors, heirs and assigns.” Because the Declaration did not expressly prohibit assignment and contract rights are generally assignable, the issue is whether NDC was prohibited from assigning its rights because the rights involved were personal.
There are no Kansas cases that specifically address whether the declarant’s rights under a homeowners association declaration are personal and, thus, unassignable. As mentioned earlier, in Kansas, contract rights are freely assignable unless the rights involve “personal and confidential relations to which liabilities are attached.” Safelite Glass Corp., 15 Kan. App. 2d at 358. The Kansas Supreme Court has found that a contract to entertain and provide speaker services involved personal services, making the rights under the contract unassignable. Standard Chautauqua System, 120 Kan. at 103-04. The Kansas Supreme Court has also found that a contract for architectural services was unassignable because it was personal in nature. Smith & English, Partners v. Board of Education, 115 Kan. 155, 156-58, 222 Pac. 101 (1924). For further examples of unassignable contracts involving personal services, see 6 Am. Jur. 2d, Assignments § 30.
Here, NDC, as the original declarant, was responsible for developing the North Country subdivision pursuant to the restrictions and intent of the Declaration. In particular, the declarant was required to abide by the terms of the Declaration in order “to protect the value, desirability and attractiveness of the property.” There was no evidence before the district court to suggest that the Kokenges and Clampitt-Hersh could not perform this function as well as NDC. There was nothing unique about NDC’s obligations under the Declaration. Thus, it does not appear that the Declaration included rights involving personal and confidential relations to which liabilities were attached. Because the rights under the Declaration were not personal, NDC could freely assign its rights as the declarant and Class B member to other parties. Thus, we conclude the district court erred in finding that NDC could not assign its rights under the Declaration to the Kokenges and Clampitt-Hersh.
Was the revocation or amendment enforceableP
Next, NBC, the Kokenges, and Clampitt-Hersh claim the district court erred in finding that the Kokenges and Clampitt-Hersh could not revoke or amend the Declaration as to the properties owned by them. North Country argues that the district court properly concluded that the Kokenges and Clampitt-Hersh could not revoke or amend the Declaration to permit the building of a four-plex.
As previously indicated, NDC assigned its rights as declarant and Class B owner to the Kokenges and Clampitt-Hersh. The Declaration provided that “Class B owners may amend at any time as to the lands owned by Declarant.” After being assigned these rights, the Kokenges and Clampitt-Hersh filed documents titled “Revo cation of Declarations Recorded at Book 3473, Page 284.” In these documents, the Kokenges and Clampitt-Hersh claimed to exercise their rights as Class B owners by revoking the Declaration as to the lands owned by them.
The district court framed the issue as whether the Declaration allowed declarants to revoke or amend the Declaration. The district court found that the Declaration did not give the Kokenges and Clampitt-Hersh, as declarants and Class B owners, the right to revoke the Declaration. The district court reviewed definitions of “amend,” “abolish,” and “revoke,” concluding that the Declaration only authorized Class B owners to amend the Declaration as to lands owned by them.
Whether the action taken by the Kokenges and Clampitt-Hersh is labeled as a revocation of the Declaration or as an amendment to the Declaration is not the real issue in this case. It is clear that the “Revocations” filed by the Kokenges and Clampitt-Hersh did not revoke the entire Declaration. Instead, it simply exempted the property owned by Class B members from the Declaration. The documents filed by the Kokenges and Clampitt-Hersh were more in the nature of an amendment to the Declaration, and the Declaration clearly provided that Class B owners may amend the Declaration at any time as to the lands owned by the declarant. Thus, the real issue in this case is whether this particular amendment to the Declaration was unenforceable.
NDC, the Kokenges, and Clampitt-Hersh contend that a developer should have the right to unilaterally amend a declaration if purchasers had notice that the developer had the right to do so. They further contend that because the Declaration authorized Class B owners to amend the Declaration at any time as to lands owned by the declarant, the amendment should not be subjected to a reasonableness standard. North Country contends that because the Declaration did not specifically inform purchasers of the kind of change attempted by the Kokenges and Clampitt-Hersh, any such amendment is unenforceable.
The district court relied on the Restatement (Third) of Property (1998) to find that the amendment to the Declaration was unen forceable. Specifically, the district court relied on the following Restatement:
“A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed.” Restatement (Third) of Property: Servitudes § 6.21 (1998).
Whether tire district court applied the appropriate test to determine whether the amendment to the Declaration was enforceable is a question of law over which this court has unlimited review. See Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
As noted by the district court, adopting the Restatement (Third) of Property: Servitudes § 6.21 is consistent with the legal principle that a court should only enforce a restrictive covenant if the purchaser had notice of the restriction. This legal principle has long been recognized by Kansas courts:
“The enforceability of restrictive covenants has its origin in common law and has long been recognized in the state of Kansas. McColm v. Stegman, 3 Kan. App. 2d 416, 419-20, 596 P.2d 167 (1979). Enforceability is based on the equitable [principle] of notice, whereby a person who takes land with notice of a restriction upon it will not be permitted to act in violation of that restriction. Hecht v. Stephens, 204 Kan. 559, 561-62, 464 P.2d 258 (1970). Persons who take real property with notice of restrictive covenants will not be permitted to act in violation thereof, and may be enjoined in equity. Kennedy v. Classic Designs, Inc., 239 Kan. 540, Syl. ¶ 2, 722 P.2d 504 (1986).” Persimmon Hill First Homes Ass’n v. Lonsdale, 31 Kan. App. 2d 889, 892, 75 P.3d 278 (2003).
Contrary to the argument made by NDC, the Kokenges, and Clampitt-Hersh, the district court did not apply a reasonableness test to determine whether the amendment of the Declaration was enforceable. Instead, the district court found that allowing the amendment would violate notice principles by materially changing the general development plan of the subdivision without fair warning to purchasers. A declaration provision that grants the declarant a general power to amend does not truly alert purchasers of lots in the subdivision of the risks involved in their purchase.
“The character of a common-interest community as indicated by the existing housing and promotional materials is frequently one of the most important considerations for prospective purchasers. People generally believe that a developer will continue to build housing of a similar quality and character, and anticipate that the value of the property they buy will not be undercut by future construction in the project. . . .
. . . [Djevelopers may retain powers within a particular phase, or within an entire project, to waive or amend the servitudes. If this provision is couched in general terms, it is unlikely to alert purchasers to the true risks involved in their purchase. To protect their legitimate expectations, developers are prevented from exercising such powers to make material changes in the character of the development or the burdens on existing owners unless the declaration clearly gives notice that it can be exercised with that effect.” (Emphasis added.) Restatement (Third) of Property: Servitudes § 6.21, comment a.
Here, Article Nine, Paragraph 2, of the Declaration provided that “[u]ntil such time as the first villa unit is sold . . ., Declarant, at its sole discretion, may abolish said covenants, conditions and restrictions or change them in whole or in part.” NDC was the original developer of North Country and until such time that any of the lots were sold to purchasers, NDC retained the right to abolish the covenants and restrictions because such action would not affect the rights of other property owners. The Declaration provided adequate notice of this right.
However, once North Country lots were sold to subsequent purchasers, the Declaration also provided that “Class B owners may amend at any time as to the lands owned by Declarant.” This provision is extremely broad and does not place any restrictions on the extent the developer can amend the Declaration after lots have been sold. Such an amendment provision is too broad to be enforceable. Under the Restatement, courts should only enforce a declaration amendment if the declaration clearly informed purchasers of the specific changes that could be made to the subdivision’s character and general plan through such an amendment. See Restatement (Third) of Property: Servitudes § 6.21, illustration 2.
We adopt the Restatement (Third) of Property: Servitudes § 6.21 to determine the enforceability of the Declaration amendment at issue. A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed. Here, the Declaration provided the declarant with a general power to amend the Declaration as to property owned by the declarant. The Kokenges and Clampitt-Hersh took the drastic step of amending the Declaration so that their property would not be subject to any of the Declaration’s restrictive covenants, allowing them to materially change the character of the development. In fact, the Kokenges attempted to construct a four-plex after the amendment. Building a four-plex in a development created for single family homes and duplexes would materially change the character of the development. Because the general power to amend the- Declaration did not fairly apprise the purchasers of the drastic change attempted by the Kokenges and Clampitt-Hersh, we agree with the district court that the amendment was unenforceable.
Were North Country’s officers and directors properly elected?
Finally, NDC, the Kokenges, and Clampitt-Hersh claim North Country’s officers and directors were not properly elected because there was not a quorum present at the meeting on February 1, 2006. They also claim that they did not receive proper notice of the meeting. Because of these defects, they contend that all actions by North Country, including the filing of this lawsuit, are void. North Country argues that the Kokenges and Clampitt-Hersh surrendered their voting rights as Class B members and that a quorum of Class A members was present at the election meeting.
The district court found that North Country’s officers and directors were duly elected because a quorum was present at the election meeting:
“Although the Defendants voluntarily chose not to attend, Charles Nations and at least 17 other property owners did attend the Association meeting. As such, the Court finds that all of the remaining Class B rights were represented at the Association meeting. Moreover, since the Defendants had voluntarily ‘elected to not become members’ of the Association, the Court finds that at least 50% of the Class A owners who were ‘entitled to vote’ were also represented at the meeting. Thus, the Court finds that the Officers and Board of Directors of the North Country Villas Homeowners Association were validly elected on February 1, 2006.”
To determine whether the Kokenges and Clampitt-Hersh surrendered their voting rights, this court must interpret the Declaration and other documents, including the December 28, 2005, letter from the assigned declarants to the subdivision’s homeowners. The interpretation of written instruments is a question of law over which an appellate court has unlimited review. McGinley, 279 Kan. at 431.
As previously indicated, the Declaration provided that the homeowners association had two classes of voting memberships: Class A and Class B. Class A memberships were issued to all owners except the declarant; Class B memberships were issued to the declarant. The Declaration also included a provision for the termination of Class B membership: “All Class B Memberships shall be surrendered by Declarant to the Board of Directors of the Association for cancellation upon the occurrence- of either of the following events: (i). All lots have been sold; or (ii). Declarant voluntarily surrenders his Class B membership.” (Emphasis added.) NDC assigned its rights as declarant to the Kokenges and Clampitt-Hersh. After the assignment, the only voting rights the Kokenges and Clampitt-Hersh had were as Class B members.
In their December 28, 2005, letter to the subdivision’s homeowners, the Kokenges and Clampitt-Hersh stated the following: “As Declarants, the properties we purchased are exempt from the North Country Villas Homeowners Association and their restrictions and we have elected to not become members at this time.” (Emphasis added.) If a person or an entity is not a member of the association, it follows that they could not have any voting rights in the association. It also follows that they were not entitled to receive notice of the homeowners meeting. The Kokenges and Clampitt-Hersh clearly stated in their letter that they were electing not to become members of the homeowners association. It would be illogical to find that the Kokenges and Clampitt-Hersh could choose not to be members of the association but still retain voting rights in the association. We agree with the district court that, at least as far as the Februaiy 1, 2006, meeting was concerned, the Kokenges and Clampitt-Hersh voluntarily surrendered their Class B memberships based on the December 28, 2005, letter.
Quorum requirements are addressed in the Declaration: “Fifty (50%) of the outstanding Class A and all of the Class B memberships of the Association entitled to vote represented in person or by proxy shall constitute a quorum at any meeting of the Association.” As we have just established, there were no longer any Class B memberships in existence because the Kokenges and Clampitt-Hersh surrendered them. As such, 50% of the outstanding Class A memberships must have been represented at the election meeting to constitute a quorum.
The stipulated facts filed by the parties in district court included an exhibit entitled “North Country Villas Homeowner’s Association Membership List,” which listed 24 homeowners in the subdivision. The stipulated facts also included as an exhibit the sign-in sheet for the February 1, 2006, meeting. According to the sign-in sheet, at least 17 of the outstanding Class A members were in attendance at the election meeting. This exceeded the 50% quorum requirement of the Declaration. Because a quorum attended the election meeting, we conclude North Country’s officers and directors were properly elected.
Conclusion
In summary, the district court erred in finding that NDC could not assign its rights under the Declaration because the Declaration did not prohibit the assignment and the rights were not personal in nature. Once NDC’s rights were assigned to the Kokenges and Clampitt-Hersh, they were generally authorized to amend the Declaration at any time as to their properties. Nevertheless, the district court did not err in finding that this particular amendment was unenforceable. Restatement (Third) of Property: Servitudes § 6.21 (1998) states that a developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed. We adopt Restatement (Third) of Property: Servitudes § 6.21 as the law of Kansas. Here, the general amendment provision of the Declaration did not sufficiently notify purchasers that a de clarant or Class B owner could make such a drastic amendment that would materially change the character of the development. Finally, the district court did not err in finding that North Country’s officers and directors were properly elected.
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Leben, J.:
On New Year’s Eve in 2005, Junction City police officers were dispatched to Phillip Jeffery’s apartment. The officers had been told that the resident there had cut his wrists and attempted to hang himself in a tree. When officers knocked on the door, Jeffery initially wouldn’t open it, which left officers rightly concerned about his welfare if they did nothing to help him. Jeffery did open the door with the security chain attached at least once while the officers continued to knock and spoke with a neighbor. When Jeffery finally opened the door without the security chain attached, officers rushed him, ordered him to he on the floor, and handcuffed him.
This is the point at which the plot thickens for the purposes of this appeal. Officers then searched the full apartment in walk-through fashion; they said that they were looking either for any person who might be injured or any weapons that Jeffery might use to hurt himself or others. But they had already taken Jeffery into their custody, and an officer testified at trial that they planned to take Jeffery from his home for a mental-health evaluation. The officers had no information suggesting that anyone else was in the home, and there was no immediate danger that the handcuffed Jeffery would use anything found elsewhere in the apartment to hurt himself. The Fourth Amendment to the United States Constitution protects us from a warrantless search of our home except in limited circumstances. As we will soon discuss, none of the exceptions are applicable here because there was no reason to go elsewhere in the apartment to address the situation that the officers confronted. We thus conclude that the marijuana and drug paraphernalia found during the search of Jeffery’s apartment cannot be used against him; the convictions obtained based on that evidence must be set aside.
We begin our discussion with the Fourth Amendment, which prohibits unreasonable searches of a home:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Case law interpreting the Fourth Amendment tells us that a search without a warrant is unreasonable unless it falls within one of several limited, well-defined exceptions to the warrant requirement. State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). Section 15 of the Kansas Constitution’s Bill of Rights provides the same protection. Thompson, 284 Kan. 763, Syl. ¶ 15. If officers are in a place they have a right to be within the home, they may seize any evidence in plain view. State v. Horn, 278 Kan. 24, 36-37, 91 P.3d 517 (2004). But if officers obtain evidence through an unconstitutional entry into the home, then the evidence may not be used in court against the resident. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Reno, 260 Kan. 117, 129, 918 P.2d 1235 (1996).
The exception for a search incident to an arrest does not apply here — Jeffery was not arrested before the search took place. Nor can the exception for protective sweeps to protect officer safety apply because this exception also applies only when an arrest has occurred. Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990); State v. Johnson, 253 Kan. 356, Syl. ¶ 5, 856 P.2d 134 (1993). Jeffery was not suspected of committing any crime when officers ordered him to lie on the floor and handcuffed him. He therefore was not arrested, which is the act of taking a person into custody to answer for the commission of some crime. K.S.A. 22-2202(4). The officers’ concern was for Jeffery’s safety based upon the reports of his suicidal conduct.
The State contends that the exception known as the emergency-aid doctrine applies. Under that doctrine, entry without a warrant is allowed if two requirements are met. First, the police must have reasonable grounds to believe that an emergency is at hand and that their assistance is needed immediately for the protection of life or property. Second, there must be a reasonable basis, essentially probable cause, to associate the emergency with the area or place to be searched. State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007).
This exception cannot justify a police search of Jeffery’s entire apartment after he had been handcuffed. Jeffery was handcuffed just inside the front door; officers then had to go down a hallway to enter the living room, and they had to go to the other side of the apartment to enter the bedroom. Contraband was found in these other rooms, but there simply was no immediate need for assistance that called for officers to search the rest of the apartment after subduing Jeffeiy in the entiyway. See State v. Pseudae, 154 N.H. 196, 201-02, 908 A.2d 809 (2006) (holding emergency-aid doctrine did not justify the search of a suicidal man’s bedroom and removal of the rifle found there after the man had been subdued outside the home). Officers did not attempt to remove all the items that Jeffery might be able to use to harm himself, nor could they. Any search for items that Jeffery might use to hurt himself would be wide-ranging — anything from a kitchen knife to a belt to a bed-sheet to a bathtub with a drain plug could be used to commit suicide. Of equal significance, though, the officers did not plan to leave Jeffery at the apartment where he could do any immediate harm to himself, anyway. They planned instead to take him for a mental-health evaluation, which is specifically authorized by Kansas law. See K.S.A. 59-2953(a). There was no emergency need to clear Jeffery’s apartment of items that he might use to harm himself when he returned from the mental-health evaluation.
Nor does a concern that others might have been injured in Jeffery’s residence justify a search of the apartment here: the officers did not possess knowledge of any facts that either indicated the presence of anyone else in the apartment or that Jeffery had tried to harm anyone else.
First, the evidence known to the officers suggested that only one other person, Jeffrey’s girlfriend, had been in the apartment that day, but that she was no longer there. At the hearing held on Jeffery’s motion to suppress evidence, the parties stipulated that a police dispatcher had contacted Jeffery’s girlfriend to ask her to bring a key to the apartment. This presumably occurred before Jeffeiy was subdued, since a key was not needed after that point; the girlfriend presumably was not at the apartment, or police would simply have asked her to open the door. In addition, one officer told another officer — after Jeffery was handcuffed, but before the rest of the apartment was searched — that Jeffery had apparently been talking with his girlfriend on the phone when officers entered the apartment. And even though Jeffery was conversing with officers, there is no evidence that they even asked him whether anyone else was in the apartment before they searched it.
Second, the evidence known to the officers suggested only that Jeffrey was trying to harm himself, not anyone else. Jeffery’s neighbor had told police that Jeffery, during an argument with his girlfriend, had threatened suicide if she left him. The neighbor said that Jeffery’s girlfriend had told him that Jeffery was attempting to commit suicide, and the neighbor later observed Jeffery go to a tree while carrying a white sheet, apparently for use in trying to hang himself. When this evidence is taken together, it provides no basis approximating proximate cause to search the rest of the apartment for someone else who might have been injured and in need of assistance.
The cases cited by the State do not suggest a different result here. Those cases were generally ones in which police were asked to check on the welfare of someone who had not been heard from, and the officers were allowed under the emergency-aid exception to go far enough into a residence to try to locate the person. E.g., Horn; State v. Jones, 24 Kan. App. 2d 405, 947 P.2d 1030 (1997). In another case, State v. Drennan, 278 Kan. 704, 719-22, 101 P.3d 1218 (2004), officers were allowed to investigate the welfare of a home’s resident who was missing after a call to 911 about domestic violence. But no case cited by the State suggests that officers may search a residence after the person about whose welfare they were concerned has been located and subdued where there is no indication that anyone else is present in the residence or has been injured there.
We have an advantage that the trial court did not in evaluating the evidence. Not only do we have transcripts that can be studied, but the trial testimony also provided a more complete account than was presented at the earlier hearing on Jeffery’s motion to suppress evidence. Officers testified at trial about their plan to take Jeffery for a mental-health evaluation, but they did not mention this at the earlier hearing. Jeffery’s attorney renewed his objection to the evidence at trial, however, and we must taire all of the evidence into account.
Of course, we also have an advantage that the officers called to Jeffery’s apartment that day did not have. We have the ability to take the time we need to review the law and to consider how it must be applied to these facts. Even well-intentioned officers may not search a home without a warrant unless the search is clearly authorized under one of the limited exceptions to the search requirement.
The district court erred in denying Jeffery’s motion to suppress the physical evidence obtained in the search of his apartment. The judgment of the district court is therefore reversed, and the case is remanded with directions to set aside Jeffery’s convictions. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an original action, brought by the plaintiffs against the defendant, who is superintendent of public schools for Ford county, Kansas, to compel him to act 'upon a petition presented to him by over twenty householders of Sequoyah county, an unorganized county attached to said county of Ford for judicial purposes, to expose for sale certain school land in said Sequoyah county, to wit: A part of section 16, township 24, south, range 32, west, under §193, ch. 92, Compiled Laws 1879. To the alternative writ, defendant filed a motion to quash, upon which this case is submitted.
The case turns upon the constitutionality of §31, ch. 72 of the Laws of 1873, for if that be_ valid, it seems clear that Sequoyah county is, pro hac vice, a township of Ford county county. Said section is as follows:'
“Sec. 31. That so long as any one of the unorganized counties, in the state shall be attached to an organized county for judicial purposes, it shall constitute and form one of the municipal townships thereof, and as such shall be entitled to township officers, and all things .pertaining to the rights and privileges of a township, and be subject to the same regulations and liabilities as other townships- of such county, and its electors shall be deemed legal electors of the county to which it is attached; and the officers of the county to which it is attached shall have the same powers, and perform the same duties, in reference to such attached county, as they have over the municipal townships of their own county; and such municipal township, created under this act, shall hav,° power to issue township bonds to the amount of ten thousand dollars, to be used solely for the construction of bridges within such township; said bonds to be issued by a vote of the people, and in manner as prescribed by the laws regulating the sale of bonds and 'construction of works of internal improvement: Provided, however, That in no case shall the taxable property of such unorganized county be liable to be taxed for the construction of county buildings, or making public improvements within such organized county; nor shall its electors have the right to vote on any question involving the location of county seats, erection of county buildings, or making public improvements, or on the election of county officers or representatives within, or for such organized county: And provided further, That all such school districts within such unorganized county shall be separately described and numbered by the commissioners of such organized county, who shall appoint a deputy-school superintendent for this purpose, and also a deputy county surveyor.”
No question is made of the power of the legislature to enact such a statute, but the point of challenge is in the title to the act in which this section is found. The question is, is §31, of ch. 72 of Laws of' 1873, as quoted, in conflict with §16, art. 2, of the constitution of Kansas? Said section of the constitution provides: “ No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” The first clause is all that applies in this case. The act in question is entitled “An act to amend sections thirteen, twenty-five, thirty-one, fifty-two, fifty-seven, sixty-six, and seventy-three, of chapter twenty-four, of the General Statutes of Kansas, and providing for the enforcement of the laws and the preservation of the peace in unorganized counties of' the state of Kansas.” Now, is the subject clearly expressed in the title of this act, and is it comprehensive enough to cover the matter found in §31?.
The title to said chapter 24 is, “An act defining the boundaries of counties” — every section in that act, except sections 1 and 81, relating exclusively and directly to county boundaries. Sec. 1 divides the state into counties and gives their names, while § 81 contains certain provisions for the ■organization of unorganized counties. The several sections •of this act named in the title and amended by the act of 1873, refer exclusively to county boundaries. This latter act also •contains sections defining the boundaries of twenty-two additional counties. ' It further contains the section quoted and two or three more of kindred import. Now, that this §31 ■comes within the scope of the latter part of the title, is clear. The very substance is the - means of executing the law. It •enacts no new body of laws, but simply provides how the general laws of the state shall be carried into effect in certain counties. It provides the machinery, the organization, the •officers. It provisionally organizes unorganized counties into townships, and authorizes the officers of the counties to which they are attached to act in them. It, so to speak, extends the organization of one county into another, and thus provides for enforcing the laws in the latter. Beyond doubt the •subject-matter of this section is clearly expressed in the title.
But it may be said (and that is the real point of challenge) that its subject-matter is entirely foreign to that expressed in the first part of the title, which refers solely to the matter of •boundaries; in other words, that the act contains more than •one subject. It deals with boundaries, and it provides for the enforcement of the laws in unorganized territory. These two are not parts of one subject. As well unite in one act the matter of county boundaries and provisions for enforcing the laws as a whole, or any particular law in all or a single ■organized county. We have had several cases before us in which the ground of challenge has been that some part of the act referred to matters not expressed in the title, and wherever that has clearly appeared, we have not hesitated to say that the act, so far as it related to such extraneous' matters, was unconstitutional and void. Unlike the decisions in some states, but in- harmony with the rulings of most and in accord with the spirit - and purpose of the constitutional provision, we have held it mandatory, and not simply directory. Commissioners of Sedgwick County v. Bailey, 13 Kas. 600; Prescott v. Beebe, 17 Kas. 322; Swayze v. Britton, 17 Kas. 625; Davis v. Turner, 21 Kas. 131; In re Holcomb, 21 Kas. 628; Bowman v. Cockrill, 6 Kas. 311; City of Eureka v. Davis, 21 Kas. 578; Woodruff v. Baldwin, 23 Kas. 491; Shepherd v. Helmers, 23 Kas. 504; State, ex rel., v. Bankers’ &c., Ass’n, 23 Kas. 499.
We see no reason to depart from the views expressed in those cases, and hold that said section 16 of art. 2 is mandatory. It is mandatory, not merely in the provision that the subject of the act shall be clearly expressed in the title, but also in that the act shall contain ... but one subject. Y et this constitutional requirement is not to be enforced in any narrow or technical spirit. It was introduced to prevent a certain abuse, and it should be construed so as to guard against that abuse, and not to embarrass or obstruct needed legislation. That abuse was this: Ofttimes a matter of merit and commanding general confidence was yoked to something unworthy, and by this union the latter was carried through on the strength of the former. This provision was designed to prevent this, to make every measure stand upon its own merits, and to cut off omnibus legislation. Of course, where all the different matters of the bill are clearly expressed in the title, there is no danger of surreptitious legislation, for all are advised by the title of what legislation is proposed. But two measures entirely foreign to each other cannot now be joined in one act. They must be presented separately and a separate vote had upon each. The assent of a majority of each house must be recorded before any proposition passes into a law, and it must be so recorded separately upon each independent proposition. An assent to two independent matters jointly will make neither of them a law. These views are well supported by authority. The constitution of New Jersey thus states the reason for this rule: “To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other.” The supreme court of Michi gan say (People v. Mahaney, 13 Mich. 494): “The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.” The supreme court of Iowa express the same idea thus (State v. County Judge, 2 Iowa, 282): “ The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation.” Cooley, in his work on Constitutional Limitations, p. 143, uses this language: 2 It may therefore be assumed as settled, that the purpose of these provisions was, first, to prevent hodge-podge, or ‘logrolling’legislation.” And again, p. 146: “There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.” Many cases might be cited showing the disposition of courts to uphold legislation, which perhaps might technically conflict with this constitutional provision, where it is evident that the real wrongs sought to be remedied did not exist. Thus under a title, “An act for the .more uniform doing of township business,” provisions for tte organization of townships were sustained; (Clinton v. Draper, 14 Ind. 295.) An act to incorporate a railroad company may authorize counties to subscribe to its stock, or otherwise aid in the construction, of the road; (Supervisors v. People, 25 Ill. 181.) The organization and sitting of courts in new. counties is within the scope of an act entitled “An act to authorize the formation of new counties and to change county-boundaries;” (Brandon v. The State, 16 Ind. 197.) But it is scarcely necessary to multiply citations. The rule is one which commends itself to the good sense of all.
Now in the case at bar, there is no private or special legislation, nothing which would promote personal or local interests,- or would prompt the friends of independent measures to unite those measures to avoid opposition to them separately. The legislation is general, and in reference to matters in which the state as a whole is interested. It contains neither contract nor appropriation. It favors no locality and confers no benefits, save as it assures peace and law on the frontier. If any act is general in its scope, this is. If any could be induced by a simple desire for the public good, this was.
Again, the act combines the division of the state into counties and the definition of their boundaries with general provisons for enforcing the laws in such of those counties as are as yet unorganized. These provisions are, that for certain purposes the unorganized shall be deemed parts of-the organized counties. Pro hao vice, the boundaries of the latter are enlarged so as to include the former. It is tantamount to this: one part of the statute gives the territorial boundaries; the other provides what shall be, for certain purposes, the legal boundaries. It is not a very broad construction to say that the entire act relates to county boundaries; at least so far as the special clauses affecting the case in hand. It may be there are some details or particular clauses which do not come within this description. But for this case the section simply provides that the legal boundaries of Ford county shall for school purposes include Sequoyah county, and that the citizens of the latter shall have the benefit of all the school laws as fully and in the same manner as though they were within the territorial limits of the former county. It is true the section goes much into detail, but the effect, the sum and substance of it, is as stated. And in constitutional questions at least, we must always reach for the substance' rather -than the form.
We do not think it material that this section is in an amendatory act. This is not like the case of The State, ex rel., v. Bankers’, &c., Ass’n, supra, where the title limited the change to certain specific sections, and therefore impliedly excluded other matters. Here the title notifies that certain sections are to be amended, and this further matter introduced. It is therefore as though it were part of the original act, with the title to that enlarged by the latter portion of the title to the amending act.
Finally, it should be noticed that this act has been on the statute book for over seven years, unchallenged; that under it. the laws have been enforced, proceedings had, judgments rendered, and rights acquired, through the whole western portion of the state. To overthrow it now would work great hardship. And while this does not conclude the matter, yet this general recognition of its validity is an argument of weight in favor of its constitutionality. We ° “ are n°k disposed to undervalue the argument against the section, or limit the force of the constitutional provision, nor do we assert that this section is clearly constitutional; but for the reasons above given, we think it can be upheld, and that the very doubt should be resolved in its favor.
The prayer of the petitioners will be granted, and the mandamus issued.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 28th day of November, 1879, the plaintiff in error commenced an action against defendant in error to recover the sum of $715, and interest, for an alleged breach of contract on the part of defendant in failing to pay for a certain interest in a lumber business then being carried on at Augusta, in Butler county, by S. J. Safford and T. J. George, under the name of S. J. Safford & Co. The plaintiff procured an attachment, and caused property to be attached. On December 2, 1879, the defendant executed a forthcoming bond, under § 199 of the code, to the plaintiff, in the sum of $3,952.42, and thereupon the attached property was turned over to the defendant by the sheriff. On December 10th, the defendant, upon notice, applied to the district judge, at chambers, to dissolve the attachment on various grounds, among others, because the affidavit for the attachment was not true. The motion was sustained, and the attachment discharged. Exceptions were taken to the rul ings of the district judge by plaintiff, who brings the case here for review. The grounds set forth for the attachment, were:
1st. That the defendant fraudulently contracted the debt, and incurred the liability and obligation for which the above-named suit had been brought.
2d. And had failed to pay the price and value of the articles and things delivered, which by the contract he was bound to pay upon delivery.
It is claimed by plaintiff’s counsel that the district judge erred in entertaining the motion to dissolve the attachment, for the reason that the execution of the forthcoming bond operated as a release of the attachment lien. If this were true, we do not understand the cause of complaint, for the error, if error existed, would not in the least prejudice the rights of plaintiff. We do not agree with counsel, however, that the giving of the bond discharged the attachment. The very object of the bond was to insure the safe-keeping and faithful return of the property to the officer, if its return should be required. As was said in Rutledge v. Corbin, 10 Ohio St. 478: “The party to whom the sheriff so redelivers the property thereby receives and holds it as the bailee of the sheriff; and the property is still, in contemplation of law, in the possession of the sheriff, so far as subsequent attaching creditors are concerned.” (Drake on Attachment, §§331-340; Jones v. Jones, 38 Mo. 429.)
Counsel further claim that the court erred in allowing the defendant to cross-examine orally the plaintiff. Upon this point, we adopt the language of Mr. Justice Brewer in the late case of The State v. Stackhouse, ante, p. 454: “ While affidavits are ordinarily the only testimony received upon motions, we suppose it is competent for the court in its discretion and in furtherance of justice, to call the witnesses before it and have them examined and cross-examined orally in its presence. We all know how often an affidavit speaks the language of counsel, rather than that of witness, or fails to state all the facts. Great injustice may be done, if the court has no power to bring the witnesses before it and have them examined in its presence.” (Code, § 229.)
The final objection is, that upon the evidence, the defendant was not entitled to have the attachment discharged. The facts disclosed by the record are, that the plaintiff was a lumber merchant at Emporia, in Lyon county; that the defendant and one T. J. George, under the firm-name of S. J. Safford & Co., were doing a lumber business at Augusta, Butler county, under the personal management of defendant, who had actual possession of the partnership property; that T, J. George was giving his personal attention to the carpenter and building business carried on upon his own account, at Emporia; that George became indebted to plaintiff for building material in the sum of $1,992; and that as an additional security to the liens to which plaintiff was entitled under the statute for this material, George executed to plaintiff, on November 7, 1879, a contract in the nature of a chattel mortgage on his interest in the business of S. J. Safford <& Co., estimated by the parties to the contract to be of the value of $739.94. The contract specially provided that the acceptance of the interest of George in the business of S. J. Safford & Co. was not to operate as a discharge or release of plaintiff’s liens for his claims, and said George was to have six months from the date of the contract to pay the debt. Afterward, plaintiff went to Augusta, and upon the supposition that the chattel mortgage was an absolute conveyance to him of the interest' of George in the firm of S. J. Safford & Co., he represented to Safford that he had bought out George’s entire interest in the business, and proposed to sell it to him. He produced the chattel mortgage, calling it a bill of sale, and read a portion only of it to defendant; defendant then told plaintiff he would purchase from him the interest of George in the firm, and pay him $715, upon the condition that upon investigation it should turn out that plaintiff had in fact such entire right and interest of George in the partnership, and that George had not in any manner lessened or impaired his interest. Plaintiff undertook to reduce the agree ment to writing; both parties signed it, and plaintiff retained the paper, a copy of which is as follows:
“This agreement by and between J. K. Tyler and S. J. Safford, witnesseth: That said Tyler conveys all his title and interest to a lumber business bought of T. J. George, to said S. J. Safford for the sum of seven hundred and fifteen dollars, the same to be paid by S. J. Safford as follows: Two hundred and fifty dollars cash in hand, and two notes of equal amount for the balance, to be paid, with ten per cent, interest, as follows: Two hundred and thirty-two and dollars on the first day of January, 1880, and two hundred and thirty-two dollars on the first day of February, 1880; said notes to be indorsed or joined in by C. P. Safford; the sale of said business to be subject to same conditions as these made by Thos. J. George to said J. K. Tyler.
J. K. Tyler,
S. J. Safford.”
At the time of signing, it was agreed between the parties that they would go up at once to Emporia to close up the matter, plaintiff to assign and deliver the chattel mortgage, called by the parties a bill of sale, to defendant, and the latter to pay the $250, and deliver the two notes to plaintiff. On arriving at Emporia, the next day after the signing of the said writing, defendant was informed by George of the true nature of his transaction with plaintiff, and learned that George’s interest had been lessened by a small collection. Plaintiff and defendant then had a dispute as to the writing signed by them, defendant claiming that it did not express their agreement and plaintiff saying that it did. The plaintiff did not transfer his debt or claim against George to the defendant, nor deliver or assign-the-chattel mortgage to him. Defendant refused to pay any money or execute ^the notes. These facts show the proposed purchase by the defendant fell through, and that no sale was consummated. The evidence of the plaintiff disputes some of these statements; but the testimony of Orrin E. George and T. J. George fully sustains them, and clearly proves the writing signed by plaintiff and defendant to have been only conditional, and that such conditional contract, owing to the acts of the parties, never be came in fact a final or a binding agreement; that there was no delivery of property to defendant by plaintiff, and that, therefore, defendant was not guilty of fraud, nor of wrongful default in the transaction.
We have fully examined the other questions submitted, but do not deem it necessary to comment further in the case.
The order of the district judge will be affirmed, with costs.
All the Justiees concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin. Defendant in error, plaintiff below, commenced an action of replevin before a justice of the peace, to recover a sewing machine. The usual process was issued, a sewing machine taken possession of by the officer, and a redelivery bond given by defendant. On the trial, upon appeal to the district court, it clearly appeared that while plaintiff claimed to be the owner of a sewing machine which defendant had taken possession of, the machine seized by the officer was not that machine, but one belonging unquestionably to defendant.
The single question is, what is the status of the case upon such facts? Plaintiff claimed that he had a right to proceed for the value of his machine, while defendant insisted that the inquiry was as to the ownership of the machine actually taken, and that being shown in him, he was entitled to judgment. Upon whom rests the responsibility for the mistake of the officer? No action on the part of defendant, no misrepresentation to mislead the officer, is shown. So far as appears, the officer of his own motion seized the wrong property. The redelivery bond is for the property seized, and that alone. No reference is made to the property claimed in the petition. Now replevin is an action for the recovery of specific personal property. If the issue was as to the property taken, and for which the bond was given, clearly the defendant was entitled to a judgment. Beyond question that property was his, but the statute provides (Comp. Laws 1879, p. 713, § 67) that “When the property claimed has not been taken, the action may proceed as one for damages only, and the plaintiff shall be' entitled to such damages as may be right and proper.”
Does not that statute fit this case? The real property claimed was not taken. If the officer had returned that he could not find it, no one would question the right to proceed for damages. The plaintiff at first, after the seizure by defendant of his property, had his election to commence replevin for the property, or to treat the seizure as a conversion, and sue for the value. He commenced replevin, but the statute plainly says that that process failing, the action may proceed as for damages. Did not replevin fail? Did not the officer fail to take the right property? That is the very claim of defendant. The statute does not read, “when no property is taken,” but, “when the property claimed has not been taken.” The defendant says the property claimed was not taken. The plaintiff says, “Very well; I will proceed for damages.” Is not this within the very language of the statute?
We have assumed iu the discussion of this question, that the sewing machine claimed by plaintiff was his. That fact was disputed on the trial, and the defendant’s contention -was, that it belonged to plaintiff’s wife, and that she authorized defendant to take it. The testimony, however, warranted the finding of title in the plaintiff, and that question of fact we shall not reopen.
Doubtless the costs of the seizure of the wrong property and the redelivery bond should be taxed to plaintiff, unless this mistake was caused by some misrepresentation on the part of defendant, and on a motion to re-tax costs such order should be made; but that question is not raised by this proceeding in error. It will be time enough for this court to act, when the district court shall have passed upon such a motion.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On January 5, 1871, a judgment , was obtained by the firm of Pratt & McGaffrey, against John Kelley, the defendant in error, in the district court of Page county, state of Iowa, for $344.12, and costs: This judgment was duly assigned to Louis K. Pratt, the plaintiff in error, and on November 24, 1877, an action was commenced on the judgment in the district court of Norton couuty, in favor of said Louis K. Pratt against said John Kelley. The defense was, the statute of limitations.
The case was tried at the May term for 1878, to the court, a jury being waived. After the plaintiff had closed his evidence, the defendant interposed, and filed a demurrer thereto, upon the ground that no cause of action was proved. The court sustained the demurrrer, and rendered judgment for the party demurring. On May 23, the day after the cause was tried, the court adjourned to June 20, following. On June 20, the plaintiff filed and presented a motion for a new trial, alleging that the decision was not sustained by the evidence, and was contrary to law. This motion was overruled by the court, solely on the ground that the motion was not made within three days after the decision was rendered.
We perceive no error in the ruling of the trial court. In Gruble v. Ryus, 23 Kas. 195, we held that in order to enable the supreme court to review the decision of the trial court •on the demurrer to evidence, it is necessary that a motion for a new trial should be made, and that it should be filed within three days after the decision is rendered. Counsel suggest that a demurrer to evidence, where the case is submitted to the court without a jury, is not within the statute. We think the position clearly untenable. The court renders the same judgment on sustaining a demurrer to evidence, whether a jury has been impanneled or not. A trial proceeds in all respects, so far as applicable, in the same manner when the submission is to the court, as when a jury is sworn; therefore the case of Gruble v. Ryus, supra, is in point.
Again, it seems to be intimated, that as the court adjourned from the 23d day of May to the 20th of June, that the plaintiff was unavoidably prevented from presenting his motion within three days. This is a misconstruction of the law. The motion might have been filed during the recess of the court, and the statute would have been complied with. There was no necessity for delaying the filing of the motion to June 20; in fact, this delay was fatal to the consideration of the motion on its merits.
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action brought by Coonradt and Ball against Myers, to recover damages for an. alleged trespass upon real estate. As to who owned the real estate, the record does not show; probably the defendant owned it. The plaintiffs did not introduce any evidence (further than proof as to their posession) tending to show that they or either of them owned it. The real question litigated by the parties was: Who had the actual possession of the property? That was a question of fact, and it was heard upon oral evidence. Each side introduced sufficient evidence to show (in the absence of the evidence of the other side) that such side had the actual possession of the property. And upon this evidence the court below found, as a fact, that the defendant had the actual possession thereof, and this finding, we think, is now conclusive. (Winstead v. Standeford, 21 Kas. 270, 272.)
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an action under the railroad stock law of 1874, to recover damages for killing a mare. It was admitted by plaintiff in error, defendant below, that its train killed the mare, and that due demand was made of the defendant for the value thereof more than thirty days before commencement of suit. It was proven by plaintiff, and not denied by defendant, that the railroad track was not fenced, and that there were no cattle-guards at any point along the railroad where the mare strayed. It was also proven that it was improved land on both sides of the railroad where she was killed, and all along the railroad where she traveled. It was admitted, by the plaintiff below, that the herd law was in force in Saline county at the time the mare was killed, and applied to animals of the kind killed.
Two questions are presented by counsel for plaintiff in error: First, it is insisted that if contributory negligence will bar a recovery, plaintiff’s own testimony convicts him of that; and second, that in herd-law counties the rigorous doctrine of the common law prevails, that the owners of domestic animals are bound at their peril to keep them from trespassing upon other premises; .and failing that, are liable for all damages done by them, irrespective of any question of negligence; and that therefore'it is immaterial whether plaintiff took due precaution to confine his mare, and that the animal was in fact trespassing and her owner liable for all the consequences of such trespass.
We dissent from both ’propositions. The mare was picketed within an inclosed field. While the fence around this field may not have b'een a strictly legal fence, it was, doubt • less, sufficient to confine ordinary stock. But as additional precaution, the plaintiff had picketed the animal inside this inclosure. The sufficiency of these precautions was left to the jury, and we think properly approved by them. Counsel selects a single expression of plaintiff, and says that that is an admission that he had not taken due precaution; but that expression is so qualified by that which immediately follows it, as to amount to but little. The sentence quoted is: “I don’t think the picket was safe to hold her without the fence, or the fence without the picket rope.” But he follows this with: “ I think she was as safe as any horse with a picket. I don’t consider any horse absolutely safe with a picket or in any other way.” Beasonable precaution, and not absolute security, is required. If the latter were the rule, the fact that the animal got loose proves the negligence, and the manner in which she was confined is immaterial. o
Neither is the other proposition of counsel correct. The railroad stock law says that railroads must pay for all stock killed by their trains so long as they fail to fence their roads. The herd law provides that the commissioners may direct “by order what animals shall not be allowed to run at large,” and also that “Any person injured in property by the run ning at large” of such animals shall have a lien for his damages, etc. Can it be held that this animal was allowed to run at Idrge9 It would not seem that plaintiff could be charged with any violation of this statute when he had taken reasonable precautions to confine his animal. In the herd law of 1874 (Comp. Laws 1879, p. 935) similar language is used, and by § 2, one who allows his animals to run at large is guilty of a misdemeanor, and may be punished by fine. Cannot a man own an animal and by proper care be absolutely safe from the penalties of that act ? Is he a criminal if his animal, despite all precautions, escapes, and trespasses upon some other man’s premises ?
If the plaintiff has disregarded the command of no statute and has not been guilty of negligence, it would seem that there is no escape for the railroad company in this case from the burden of the stock law, and that it must pay for the animal which has been killed.
See the following authorities: O. & M. Rld. Co. v. Jones, 63 Ill. 473; T. P. & W. Rld. Co. v. Pence, 68 Ill. 524; T. P. & W. Rld. Co. v. Johnston, 74 Ill. 83; C. & St. L. Rld. Co. v. Woolsy, 85 Ill. 373; Thompson on Negligence, pp. 497 to 501.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by Thomas McKanna against W. G. Eastland, special administrator of the estate of Wm. K. Shaffer, deceased, to recover $3,000, with interest at seven per cent, per annum from Aug. 30th, 1873. It appears from the record that on the latter date the following written memorandum and agreement was executed, at Ellsworth, by Thomas McKanna and Wm. K. Shaffer, to wit:
“Know all men by these presents, that I, Thos. McKanna, have this day bought of William K. Shaffer, nine hundred head of beeves, branded No. 21, to be delivered at the cattle-yards in Ellsworth, Kansas, and weighed there; to be taken in three lots, inside of forty-five days from to-day ; and for which I agree to pay'said Wm. K. Shaffer two dollars and fifty cents per hundred gross weight, and for which lam to pay for on receipt of cattle. I have given said Wm. K. Shaffer three thousand dollars acceptance on D. W. Powers ■& Co., said acceptance to be forfeited in case I fail to receive and pay for said cattle.”
The cause of action presented by the -pleadings was, that Shaffer, in his lifetime, failed to carry out the terms and conditions of the said written agreement as modified by a parol agreement, and was therefore indebted to McKanna in the sum of $3,000 and interest.
On the part of McKanna, it was claimed that subsequent to the execution of the written agreement there was a parol agreement between the parties to the contract, by which Shaffer was to receive in payment for the cattle checks or drafts on Hunter, Patterson & Evans, a firm in Kansas City, Missouri.
Upon the trial, the court instructed the jury, among other matters, as follows:
“This case is (in a nutshell), shall the plaintiff McKanna recover back the $3,000 advanced to the deceased Shaffer in his lifetime, on the cattle contract in question ? In order to a just decision of this matter between the parties, it will be necessary for you in the first place to decide what this contract of the sale and purchase of the cattle was, in all its terms. This is the foundation and basis upon which the whole superstructure of this case rests.
“Counsel have admitted that there is no material dispute between them as to what this contract was, save and except upon the question as to how, or in what way the cattle were to be paid for — the plaintiff claiming that the agreement was that the payment should be made absolute in checks or drafts of plaintiff on the cattle commission firm named, of Kansas City, while the defendant claims that it was to be in cash.
“Now both sides have introduced testimony on this agreement, outside of the writing signed by the parties — not to contradict the writing, but to explain it.
“It is a rule of law, that in transactions of this kind the giving of a check or draft is not a payment until such paper is honored and paid, unless the parties shall agree at the time that it shall be full payment, and that the original debtor is discharged, the presumption of law being that it is not a full payment. It devolves upon the party claiming it to show by the weight of the testimony that it was taken as a full payment and discharge. This presumption, as well as the other facts and circumstances in the case, you can consider on this point as to what the probable agreement was.
“But if you do not find that the plaintiff was to be discharged from liability on those drafts or checks, and you find and beliéve that the agreement was, that upon the delivery of the lots of cattle, checks or drafts of plaintiff were to be given, drawn on Hunter, Patterson & Co., and that Shaffer was to receive them, and collect them, or try to collect them, against said firm, and if they should not he paid, that the plaintiff would still be liable upon them, then this would be just as well for the plaintiff, and under these circumstances the plaintiff would be entitled to recover this $3,000 and interest; for by all of the testimony, on both sides, Shaffer refused to deliver the second lot of cattle without cash down, or what he would call cash. He would not receive the checks.
“So, if you shall believe the agreement was, that he was to take checks or drafts in the outset, and try to collect on this house in Kansas City, to which it seems they all knew these cattle should be'shipped, then there is a breach on Shaffer’s part, and therefore, as I said, the plaintiff is entitled to recover, and you need not look farther in the case; and under these circumstances you should find for the plaintiff for the $3,000, with interest at the rate of seven per cent, per annum on this sum from the date you shall find that Shaffer made said breach, up to this date.
“On the terms of the contract, there is no dispute here by the parties, but that Shaffer was to be paid before delivery. The dispute is, you see, how should he be paid, or in what way or manner?
“Now, on the other hand, if you shall find and believe that the understanding and agreement was, that McKanna was to pay cash on delivery of the cattle, or it was so left that Shaffer had the right to say in what way the payment should be made, then of course Shaffer had the right to demand cash, and was not obliged to receive checks or drafts at all, unless he had a mind to. If, under these circumstances, McKanna should have failed or refused, and was not able to pay cash, or satisfy Shaffer in that which was as good as cash, or in some other way of payment; at the required and proper time, then there was a failure to perform on McKanna’s part.”
The jury found specially, that by the terms.of the contract, it was agreed between the parties that the payment for the cattle was to be in checks or drafts; and that the breach of the contract was committed by W.m. K. Shaffer. A verdict was returned against the estate for $4,055.83.
Counsel for the estate of Wm. K. Shaffer claim, that the evidence fails to establish any subsequent change of the written contract between the parties; ’'and second, that the alleged subsequent parol agreement, if proven, was without consideration, and void, and therefore that the instructions quoted were irrelevant and misleading. The evidence in regard to the subsequent parol agreement was substantially as follows:
John Howard testified that he —
“Was in Kansas City about October 1st, 1873, and there heard a conversation between Thomas McKanna and Wm. K. Shaffer. McKanna said he wanted to take three hundred head of the cattle at one shipment. Shaffer said for us to go and get them and he would meet us at Ellsworth, Kansas, and deliver the cattle to us. The payment of the cattle was first talked of at Kansas City. McKanna said he could check on Hunter, Evans & Co., Kansas City, for the payment of the cattle. Shaffer said that they were as good as he wanted. McKanna told him that there was another firm who would handle the cattle for fifty dollars less, but Shaffer preferred Hunter, Evans & Co. After this conversation, Mr. McKanna and I went to Ellsworth and selected out of Shaffer’s herd three hundred head of cattle. Shaffer’s hands drove the cattle to Ellsworth. Shaffer met us at Ellsworth (I mean Mr. McKanna and myself), and delivered the cattle to McKanna. McKanna and I helped to put the cattle on the cars at Ellsworth, Kansas. I stayed with the cattle, and Shaffer and McKanna went to the bank for the purpose of giving a check for the cattle. McKanna came back to where I was, and said to me to take the cattle to Kansas City and deliver to Hunter, Evans & Co. I came with the cattle to Kansas City, and turned them over to Hunter, Evans & Co. I was in the employ of McKanna in handling these cattle.”
Thomas McKanna, the plaintiff below, testified:
“I made an arrangement with Hunter, Patterson & Evans, commission men of Kansas City, to handle cattle for mé, and allow me to check on them and to pay my drafts upon them. They were perfectly solvent and responsible. I heard a con-, versatiou between Wm. K. Shaffer and R. D. Hunter, of the firm of Hunter, Patterson & Evans, about the 1st or 2d day of October, 1873, at the fair grounds in Kansas City. Shaffer asked Hunter if MeKanna’s checks on his firm would be all right. Hunter said, yes, that they were going to handle the cattle. Shaffer then said to Hunter, ‘That is all right; that is as good as I want. Drafts on you are as good as I wan t.’ ”
There was also testimony that McKanna was living in Leavenworth county, and went to Ellsworth for the purpose of this cattle business; that the first and only lot of cattle delivered by Shaffer to McKanna was turned over to McKanna in September, 1873, at Ellsworth, and that Shaffer accepted in payment a draft drawn September 22d, 1873, by William Hunter, to the order of W. K. Shaffer upon Hunter, Patterson & Evans.
This testimony was sufficient to go to the jury, and, if believed, to sustain the finding of a supplemental agreement regarding the payment of the cattle. Certainly, the parties could have made the giving of the drafts serve as the absolute payment of the cattle if they had so chosen. The testimony shows that the draft accepted for the first lot of cattle was drawn by Hunter upon Hunter, Patterson & Evans, payable to the order of Shaffer.
In Parsons on Notes and Bills, vol. 2,156, it is stated that “ When, at the time of sale, or of the contracting of a debt if the note of a third person be given, the presumption would seem to be that it was intended as payment absolutely, by the understanding of the parties, unless evidence can be introduced to show that it is merely conditional payment, or a collateral security for the debt.” If, however, it could be held that the testimony failed to establish that Shaffer agreed to accept drafts or checks in absolute payment, yet tended to prove that he was.to receive the drafts and attempt their collection from the firm of Hunter, Patterson & Evans, the judgment cannot be reversed on any objections of the plaintiff in error, which we are now considering, because it is agreed by all parties that Shaffer refused drafts and checks for the second lot of cattle for any purpose, whether conditional or absolute. Nothing but cash, or at least current money, was acceptable.
The'subsequent parol agreement cannot be said to be void, as being without consideration. McKanna could have had another firm than Hunter, Patterson & Evans handle the cattle for the sum of fifty dollars less, yet we may fairly infer from the testimony that the drafts of Hunter, Patterson & Evans were preferred by Shaffer, and therefore that firm were allowed to handle the cattle at a loss of $50 to McKanna, owing to the arrangements between McKanna and Shaffer subsequent to the date of their written contract.
It is further contended by counsel of plaintiff in error, that if the parties had, by a subsequent parol agreement, changed their contract to accept drafts for payment instead of money, that Shaffer had a clear and undisputed right to refuse any further acceptance of drafts after Shaffer had ascertained they would not be paid on presentation, or after he had sustained a loss on the paper given for the first lot of cattle. In support of this view, the following instruction was requested:
“If the jury believe from the evidence, that the defendant, ¥m, K. Shaffer, agreed to receive checks or drafts on Hunter, Patterson & Evans in payment for the cattle mentioned in the contract, and did receive a check or draft in payment for the first lot of cattle, and said check or draft was not promptly paid on presentation, then the defendant was justified in refusing payment of the second lot of cattle in checks or drafts on said Hunter, Patterson & Evans.”
The instruction was refused, and we think properly. The draft accepted on the delivery of the first lot of cattle was transferred without indorsement. If it was accepted as absolute payment, the mere dishonor of the paper did not revive the original debt or consideration, or in any way give Shaffer a remedy against McKanna. If the draft was merely received as a conditional payment, and Shaffer was bound to collect it, or attempt its collection, the mere refusal to pay did not place the parties in the same condition as if the bill had never been given. All the testimony proves that Hunter, Patterson & Evans were responsible and solvent. The loss sustained by Shaffer on the draft seems to have been the result of some compromise or settlement by Shaffer with that firm, for which McKanna was in no way responsible or liable. Neither did it grow out of any inability of the firm to pay the draft, nor of any supposed or anticipated insolvency. If Shaffer had agreed to accept drafts or checks for the cattle, either absolutely or conditionally, the difficulties attending the collection of the first draft (very blindly shown in the record) did not justify his refusal to accept other like drafts, so long as they were drawn on the firm he preferred to handle the cattle, and the firm was entirely solvent. Some of the closing instructions of the court might be criticised, but we do not deem them sufficiently prejudicial to cause the reversal of the judgment.
The facts testified to o.n the part of the plaintiff below, show that said plaintiff was not the defaulting party, and, upon the pleadings, he had the right, if the jury credited his witnesses, to recover back the $3,000 advanced as a forfeit.
We can perceive no error prejudicial to the plaintiff in error in the record, and therefore the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this ease are these: -Plaintiff in error commenced an action of attachment against the husband of defendant in error, attached certain lands, obtained service by publication, took judgment by default, and purchased upon sheriff’s sale the lands attached. Before the sheriff’s deed had been executed, defendant in error commenced this action to restrain the execution of the deed, and to have her title to said lands adjudged good. At the time of the commencement of these attachment proceedings, the record ■ title was in the husband of defendant in error, and ■defendant in the attachment proceedings. Both Mr. and Mrs. Farris were non-residents. Her claim was, that the lands were' really and equitably hers, and that by mistake the record title had been passed to her husband.
Upon the record, three questions may be said to arise: First, were these lands equitably in fact the property of Mrs. Farris? Second, what effect did the residence of Mr. and Mrs. Farris have upon the ownership and title? And, third, if Mrs. Farris was the real owner, was she entitled to the relief sought?
Upon the first question there is no. room for doubt. The lands were purchased from the A. T. & S. F. Rld. Co. At first, only certificates of purchase were issued, and issued in blank. These became the property of Mrs. Farris long before her marriage. The subsequent payments of purchase-money were out of her separate funds, and only one of them, and that the last made, through the hands of her husband. Equitably, the lands were hers, because her property paid for them.
Second: Mr. and Mrs. Farris at the time of their marriage were residents of Missouri, and it is claimed that the common law prevails in that state, and that as the land certificates passed into his hands after marriage, and also the moneys for the last payment, that these became his absolute property, and therefore the land itself acquired thereby be came in law his property, and liable for his debts. Certain portions of the statute law of Missouri were introduced in evidence, but we fail to see in them anything which justifies this conclusion. As no marriage settlement was produced in evidence, the necessity of a record, and the effect thereof as declared by statute, need not be considered. We may not assume that the law of that state differs from ours, or that a court of equity in that staté would fail to recognize and protect the equitable rights of a married woman to her separate property. (French v. Pease, 10 Kas. 54; Furrow v. Chapin, 13 Kas. 113; K. P. Rly. Co. v. Cutter, 16 Kas. 568.)
Finally: The right to this relief is clear. The record title was not passed into the name of her husband with her knowledge or consent. The debt sued on was not created on the faith of his ownership. There are no equitable reasons why her title to the property should not be protected. And to permit a sheriff’s deed to go out based upon the record and apparent title would cloud her title, even if it were not the means of passing to some innocent purchaser a perfect title. Hence there are just grounds for the interposition of a court of equity to protect her rights.
We havé considered this case as though the record were properly before us, and upon that record it must be adjudged that the ruling of the district court was correct, and it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error, James T. Norman, commenced an action in the court below against the plaintiff in error, Alexander Clark, for damages for tearing down a certain house and removing the materials thereof, and converting the same to his (Clark’s) own use; and in such action ¡the plaintiff below, Norman, recovered a judgment against ■Clark for $250 damages and costs. Within less than one year thereafter, though not much less, the defendant below, ■Clark, filed a petition in the court below for a new trial, upon •the ground of “ newly-discovered evidence, material for the ¡party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” (Civil Code, ■§ 306, sub. 7, and § 310.) A trial was had upon this petition, and it seems that the parties agreed that the evidence, .as set forth and alleged in the petition, should be considered .as Clark’s evidence in the case. Norman demurred to this evidence, and the court below sustained the demurrer. After sustaining this demurrer, the new trial asked for was of course refused, and judgment was rendered against the petitioner, Clark. Clark then brought the case to this court on petition in error.
Whether the court below erred or not in sustaining said demurrer, is really the only question which is fairly presented to this court. Other questions of a minor importance and of a subordinate character are of course involved in this main question, but what we wish to say is, that the sustaining of the demurrer includes and presents all the questions which are fairly and properly brought before us. If the demurrer was wrongfully sustained, we must reverse the ruling of the court below thereon, and order a new trial; but if it was rightfully sustained, then we must ■ affirm the ruling of the court below thereon, and must refuse to order a new trial, and must also affirm the judgment of the court below, rendered on the sustaining of such demurrer. Many errors are alleged to have been committed by the court below prior to the rendition of the original judgment; but we cannot consider any of such errors unless we can see that they entered into, or caused, or materially affected, the subsequent ruling of the court below on the demurrer to the evidence. We have no “transcript” or “case-made” of the original case before us; and possibly if we had, we should not find the supposed or alleged errors complained of; but even if we should find them, it is possible that even then we should not find them properly saved or properly preserved in the record by exceptions or otherwise, so as to make them available to the defendant Clark. Neither will bad advice nor bad management on the part of Clark’s counsel in the original case, require or authorize a reversal of the ruling of the court below on the demurrer to the evidence, unless we can see that such bad advice or bad management entered into or affected the ruling of the court below on the demurrer to the evidence ; and perhaps not even then.
But did the court below err in sustaining the plaintiff’s (Norman’s) demurrer? We think not. The defendant’s supposed newly-discovered evidence was merely cumulative —it was not material in the case — it could have been discovered at or before the origirial trial, by the exercise of reasonable diligence, and probably by the exercise of even the slightest diligence, and a portion of it was to be used merely for the purpose of impeaching a witness who testified on the original trial, and who testified concerning only immaterial matters.
The main question on the original trial was, whether the plaintiff Norman had such an ownership, or interest, in the house in controversy, that he could recover for its demolition and conversion. Whether he had the possession of it, or the keys to it, at the time it was torn down and converted, were purely immaterial questions, except so far as they possibly tended to prove or disprove that Norman was the owner of the house. He did not allege in his petition that he had possession of the house, nor that he had possession of the keys thereto, and his right to recover did not depend upon these things. He might properly have recovered under his petition, even if Clark had had the possession of the house and of the keys for months and months before the destruction and conversion of the house. On the original trial, the plaintiff Norman proved prima facie that he was the owner of the house, and there was no evidence introduced which overturned this prima facie case. He also testified, in his own behalf, that he had the possession of the house up to the time of its destruction, and that he never gave the keys thereof to Clark, etc. Quintus Foster also testified, on the part of Norman, concerning the keys. The defendant Clark testified, in his own behalf, as follows: “At the time said building was taken down and removed, I was in possession of it; I had had possession of it for about six months previous to that time. Mr. Norman requested me to look after his things in that building, and gave me the keys to the building. There was a table and mower in there belonging to him.”
The alleged newly-discovered evidence was evidence show ing, or tending to show, that Clark had had possession of the house for about six months prior to the time when he tore it down and converted it to his own use; that he also had had possession of the keys, which had been delivered by Norman to Clark’s wife, and that Quintus Foster’s character for truth and veracity was bad. It will be noticed that all of this alleged newly-discovered evidence, except that portion intended to impeach Foster, is merely cumulative; for it pertains to matters, concerning which, "evidence of a like nature and character had previously been introduced by both parties, on the original trial. It is also immaterial — for if it were all true, still the same finding and the same judgment should be rendered in the case as were originally rendered on the former trial; and but little diligence could have been used to discover it, or to discover evidence of a like nature or character, for the house in controversy was a store-house, situated in the town of Raymond, where several families resided. Evidently plenty of witnesses could have been found, who had knowledge concerning the possession of that house. As to the impeachment of Foster: First, new trials can seldom if ever be had for the purpose of impeaching the testimony of a witness; and second, Foster’s testimony was immaterial.
That newly-discovered evidence, merely cumulative, is not a sufficient ground for a new trial, see 9 U. S. Dig. (F. S.) 613, No. 2185, and cases there cited. That newly-discovered evidence is not a sufficient ground for a new trial, unless it is material, see 9 U. S. Dig. (F. S.) 609, No. 2095, and cases there, cited. That a new trial will not be granted upon the ground of newly-discovered evidence, which the party asking the new trial, might by the use of reasonable diligence have obtained for the first trial, see 9 U. S. Dig. (F. S.) 615, No. 2213, also page 611, No. 2126, and cases there cited; and that a new trial will rarely if ever be granted on account of newly-discovered evidence, if the only object of it be to impeach the character of a witness, who testified on the original trial, see 9 U. S. Dig. (F. S.) 614, No. 2203. A new trial will cer tainly not be granted to enable a party to impeach the character of a witness whose testimony on the original trial was-entirely immaterial.
Upon the facts of this case, we think that the court below did not err in sustaining the demurrer to the evidence, and in refusing to grant a new trial, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Jackson brought suit and obtained an order of attachment before a justice of the peace, suing Watson and attaching his property. Watson moved to have the property released as exempt, and because Jackson’s affidavit filed to obtain the attachment was, as he claimed, not true; to all this he made and filed his affidavit. Judgment was for Jackson for $90.75, and that the property was not exempt, and that Jackson’s affidavit was true, and that the motion of Watson be refused. Jackson purchased the property sold under an order of sale issued by the justice of the peace on that judgment. Watson brought replevin in the district court, claiming the property as exempt; Jackson pleaded the judgment as res adjudícala. Watson demurred to that much of Jackson’s plea; demurrer overruled. Watson excepted, and has brought the case here.
The argument on the one, side is, that as by Urquhart v. Smith, 5 Kas. 447, the decision of the justice was reviewable upon error, within the argument as presented in Hoge v. Norton, 22 Kas. 374, the ruling on the motion was conclusive; That on the other side is, that by the ruling in White-Crow v. White-Wing, 3 Kas. 276, the decision of a motion to confirm or set aside a sale is not conclusive upon the question of exemption, and therefore that a prior decision on a motion to discharge property from an attachment on the ground of exemption is also not conclusive.
We agree with the views of plaintiff in error. The present case comes within the letter and spirit of the ruling in 3 Kas., supra. If upon final process the decision of a motion to set aside the sale of property claimed to be exempt is not conclusive, a fortiori the ruling of a motion to set aside a seizure upon mesne process should not be conclusive. It will be noticed that the statute provides expressly for a ruling and decision upon questions affecting the truth of the affidavit, and consequent sufficiency of the attachment proceedings, and for a review in this court by proceedings in error of the decision of the district court on a motion to dissolve an attachment. (Code, §§ 228, 542; Justices’Act, §53.) But the question of exemption turns not at all upon the sufficiency of the attachment proceedings, and is nowhere in terms committed to the decision’of the court. Conceding their regularity and sufficiency, the right to take the particular property seized is denied. But any party interested in a suit may make a motion with reference to his interest, whether he is legally or technically a party thereto or not. (Green v. McMurtry, 20 Kas. 193.) So, although the attachment proceedings’or the execution be sufficient and regular, the attachment or judgment debtor may replevy exempt while not unexempt property. (Code, §177; Justices’Act, § 56.) In such an action he may have a jury. (Code, § 266.) And’there the regularity of the attachment or execution is conceded. Indeed, that is a question not triable in replevin. (Westenberger v. Wheaton, 8 Kas. 169.) The ruling on a motion to discharge "exempt property from "seizure comes not under express grant of power to the court, but under the general powers of a court to prevent the wrongful use of its process. Such -a question being nowhere in express terms given to the court for decision, we take it that the general doctrine as to the conclusiveness of a ruling upon a motion controls. Such a question, it is true, was reviewed upon error by this court in 5 Kas., supra. But the right to review was not challenged, and the case turned upon the correctness of the ruling in the lower court. We do not mean to criticise or overrule that case, or hold that such a question may not be reviewed upon error, but we do decide that such a ruling is not conclusive. It is not a ruling which is expressly granted to the court either in the first or final instance, and therefore one whose decision may be submitted to the opinion of a jury.
The judgment of the district court will be reversed, and the cause remanded with instructions to sustain the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The agreed evidence in this case shows, that Pratt county, prior to July 26, 1879, was unorganized; that on said date it was duly organized; that the first election in said county was held on the 2d day of September, 1879; that at said election a full set of county officers was chosen, including a probate judge; that the next regular November election was held on the 4th day of November, 1879; that at said November election E. R. Morgan received the entire number of votes cast for probate judge in said county; that the sheriff of Pratt county made no mention of the election of probate judge in his notice for the said November election; that defendants are the board of county commissioners of the said county, and county clerk, as alleged, and have been since the September election, 1879; that the said board of county commissioners, sitting as the canvassing board of said county, refused to canvass the votes cast at the November election for the office of probate judge of said county, and still refuses so to do. The plaintiff therefore asks a peremptory writ of mandamus, to compel defendants to canvass the returns of the votes cast at said November election for the office of probate judge of Pratt county.
We think the plaintiff is entitled to his writ. So far as the omission of the sheriff to mention the office of probate judge in his proclamation is concerned, that of itself cannot vitiate the election. This was a general election, and the law determined what officers were to be elected. (Jones v. Gridley, 20 Kas. 584.) So far as the right to elect a probate judge at such election is concerned, the reasoning in Hagerty v. Arnold, 13 Kas. 367, goes far to settle it. True, the case is not exactly in point, for there the officer voted for at the first general election received the office, and the question was as to the length of his term. If Morgan had been declared elected and had received his office, that decision would be authority for holding that his term expired this coming winter, instead of continuing two years. We see no reason to depart from that decision, and the argument which upholds that, sustains plaintiff’s claim. That case sustained the statute providing for the organization of new counties, as well as that prescribing the time for the commencement of the regular terms of county officers. It recognized the power of the legislature, under the constitutional provision concerning the organization of new counties, to provide in such organization, and as a part of it, for county offices of terms less than two years; that is, the legislature having prescribed the time for the commencement of the regular terms, which terms, by constitutional requirement, are of two years’ duration, may make any provision whatever for filling the time intermediate the organization of the county and the commencement of such regular terms, even as said in the opinion in that case, “if it requires two elections in one year.” It is but part of the organization of the county to carry it forward to the time for the commencement of the various regular terms of its several offices. All this was settled by that case. Now the statute provides that the officers elected at the special election shall hold until the succeeding general election. And the constitution defines the term “general election.” It says: “General elections shall be held annually, on the Tuesday succeeding the first Monday in November.” (Const., art. 4, § 2.) The November election is the general election, and that whether few or many offices are to be filled. It may be said that when the statute provides that the officer elected at the special election shall hold until the next general election, it means the next general election for that office. But this is not the natural import of the language, and seems to ■ require an interpolation of certain words. The phrase “general election” has a constitutionally defined, fixed and uniform meaning, and is independent of the terms of office or the number of officers to be elected. If any other meaning is intended, there ought to be some qualifying or limiting words to indicate that further or other sense. There is no need of any interpolation; the language is clear, and no injury or annoyance is done by giving to it its natural meaning. An election based upon that understanding of the statute was treated as valid-in Hagerty v. Arnold, supra. Bot'h sides assumed that such an election was proper, and the case was discussed and decided by this court upon that assumption. Aud we think the assumption was correct. The constitutionality of the statute was expressly affirmed, and affirmed upon the supposition that it meant exactly what we now decide it to mean. For if the statute means that the officer elected at the special election shall hold until the commencement of the next regular term, there was, in fact, no such question as was discussed and decided in that case.
Without pursuing the argument further, we conclude that there was properly an election for the office of probate judge, and that a mandamus must issue to compel a canvass' of the votes cast for that office.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action under the railroad stock law of 1874, to recover for the killing of a cow and two hogs. The petition contained, also, allegations of negligence and carelessness on the part of the railroad company. The plaintiff in error claims two errors: first, that no legal demand was ever made by McHenry on the railroad company; and second, that, under the facts, the railroad company is not liable for the hogs, even if a demand was made.
The evidence tending to show a demand on the part of the owner of the animals was as follows. John McHenry testified:
“I am the plaintiff in this action. I made a demand at the depot in Pleasanton, of Mr. Evans. He was the ticket agent there of the defendant. This was on December 6th, 1879. It was more than thirty days' before this action was commenced. I met Evans on the platform, and told him I had stock killed by the railroad company; that I had one cow and two hogs (killed). The hogs were (killed) at different times. I told him about it, and asked him if he paid for the stock. He said not. I told him my demand was forty dollars. I think that is about all. I told him there was one cow worth $25, one hog, $7.50, and the other — I don’t mind what I said. I told him I demanded it of him as agent of the road. I told him it was the Missouri River, Fort Scott and Gulf Railroad. No, I think I said the Kansas City, Fort Scott and Gulf Railroad. I don’t recollect that I told him the time the stock was killed. He said he had nothing to do with it.”
Evans, the agent, testified that McHenry stated to him when and where the stock were killed, but denied that a demand was made for any specific amount, and also contradicted other parts of McHenry’s testimony.
The evidence was abundantly sufficient to sustain a finding of legal demand. (K. P. Rly. Co. v. Ball, 19 Kas. 535.)
Counsel allege that their second objection to the judgment should prevail, for the reason that the agreed statement of facts shows that on the 8th and 18th days of November, 1879, when' the hog sued for was killed, that § 46, ch. 105, Comp. Laws 1879, was in force, and there was such contributory negligence on the part of McHenry as to debar him of all right of recovery in the action for the hog killed.
This point is well taken. No obligation existed on the part of the railroad company to protect its track from hogs, and its failure to erect the fence may be laid aside as having no bearing in the case. (A. T. & S. F. Rld. Co. v. Yates, 21 Kas. 613.) The agreed statement of facts shows that the hog was at large, and that it was upon defendant’s track at a place other than at a public highway; no reason is given why the animal was upon the railroad track, and it is admitted that § 46, ch. 105, was in full force in the township where the hog was killed. We may assume, in the absence of any explanation of the animal’s being at large, that it was at large with the permission of the owner. (A. T. & S. F. Rld. Co. v. Hegwir, 21 Kas. 622.) Therefore, while the railroad company was guilty of negligence, the owner of the hog was equally guilty of negligence, and as the negligence of the owner contributed directly to the injury complained of, and, as it is not shown that the company was guilty of anything but ordinary negligence, not gross or wanton, no recovery for the loss of the hog can be had. If it had appeared from the agreed facts, that the hog had escaped from the owner’s inclosure without his fault, or if it had strayed upon the track without negligence on his. part, the entire judgment would be affirmed.
Counsel for defendant in error refers to § 1, ch. 93, Laws 1870, (§28, ch. 84, p. 784, Comp. Laws 1879,)' and contends that by this statute the legislature has wiped out contributory negligence as a defense in actions against railroad companies for damages to persons or property. In brief, counsel claims that the statute makes railroad companies liable in every case of negligence, however slight, even though the plaintiff’s negligence contributed equally, or more, to the injury. If such a construction must be put upon the statute, (and the writer is of the opinion that the legislature really intended to go that far,) the statute is violative of the state constitution, and therefore without force or validity. Our constitution guarantees to all, equity of rights and remedies for injury by due course of law. It in effect forbids partial or class legislation. All these provisions lie directly athwart the pathway of the statute, as construed by counsel for defendant in error. If, however, the statute was not intended to wipe out contributory negligence as a defense to railroad companies, and we are at liberty to construe “any negligence” as meaning “ordinary negligence,” as intimated in St. Jos. & D. C. Rld. Co. v. Grover, 11 Kas. 302, and thus preserve the validity of the statute, it does not avail the defendant in error, for while the railroad company, under the agreed statement of facts, was guilty of negligence (ordinary), the owner of the animal killed was also guilty of negligence (ordinary), and the negligence of the one offsets the negligence of the other.
The case will be remanded, with direction to the district court to remit $8.50 (the value of the hog killed) from the judgment. The* costs in this court will be divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 28th day of June, 1860, Jack Martin filed his bill of particulars before William Jackson, justice of the peace in Shannon township, Atchison county, the bill of particulars being a promissory note, executed to him by A. J. Angell, for $100, and asking judgment thereon for $99.90, remitting the remainder. On the same day summons was issued, and on the next day, June 29, 1860, summons was returned served on Angell, and on the 2d day of July, 1860, judgment was rendered by the justice of the peace upon the note. On July 12, 1860, an execution was issued, and returned August 12, 1860, unsatisfied. On the 31st day of October, 1879, Martin filed his motion to revive said judgment before A. J. Keithline, justice of the peace, and successor in office to William Jackson, being the same court in which judgment was rendered. Notice was duly given to Angell, and on the 10th day of December, 1879, the adjourned day for the hearing of the motion, the judgment was revived by order of said justice of the peace, and upon petition in error to the district court the decision of the justice of the peace was affirmed, May 11, 1880. This ruling is brought to this court for review.
We shall notice but one question in this case, and that, the question of time. It will be perceived that this motion to revive was not made until more than nineteen years had passed after the return of the only execution issued on the judgment. Now, if this motion can be sustained, there is no limit in point of time to revivors of judgments. Fifteen years is the longest period named in any statute of limitations in this state, and that applies only in actions concerning real estate. Yet here, a judgment dormant for over fourteen years, and upon which no execution has been issued for over nineteen years, is sought to be revived and enforced. We shall not stop to consider the question raised by counsel as to whether there is any such thing as the revivor of a judgment of a justice of the peace, though the language of the statute certainly suggests the question. (Code, §445; Justices’ Act, §137.)
Conceding that such a judgment may be revived, we turn to the code for the rules and practice concerning revivors. Section 440 of the code provides that “if a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.” Now an action before judgment cannot be revived without the consent of the defendant or proposed defendant, unless in one year from the time the order could have been made. (Code, §§433, 434.) In Scroggs v. Tutt, 23 Kas. 181, we construed this language in the case of a revivor after judgment against an administrator, and held that time was part of the manner. Mr. Justice Valentine, speaking for the court, said: “The proceeding to revive an action and the proceeding to revive a judgment are substantially the same; each must correspond to the same formula. Hence, where an action cannot be revived without the consent of the administrator, neither can • a judgment.” And again: “We think that a judgment cannot be revived against an administrator after a yeár has elapsed within which it could be revived, except with the consent of the administrator, and that the rule is a reasonable one.” The same language is applicable here. The statute reads the same. The construction should be alike. While the reasons for the rule may not be of equal force, yet the power of the legislature is the same and the language identical. If in the one case it means what it says, and as we have read its meaning, it means the same in the other. Nor is there anything harsh or unreasonable in the rule as thus laid down by the legislature. A party may, by the issue of executions every five years, keep a judgment alive indefinitely. It remains in force without execution for five years, and the plaintiff may revive it at any time within one year thereafter, so that practically a plaintiff may neglect his judgment for six years, lacking a day, and then revive and put it in force for five years more. And if a party neglects his judgment for six years, he has little cause of complaint if the law says to him, you have slept upon your rights too long, and public policy requires that claims so old should be considered barred. If he had commenced an action upon this judgment, the statute of limitations would have barred it long ago. (Burnes v. Simpson, 9 Kas. 658.) Every other right which a party has would have been cut off years since. And the general policy of the law in reference to state demands lends countenance to the construction put upon these provisions. There is this limitation, or there is none. The language of the statute fairly implies this limitation. The same language in the other section was held to create this limitation, and we think it has the same force here.
The judgment will be reversed, and the case remanded to the district court with -instructions to sustain the petition in error filed therein, and reverse the ruling of the justice of the peace reviving the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On the 19th day of February, 1880, complaint was made by Wm. McKay, before G. W. Humphrey, justice of the peace of Ellis county, against John Dean, under § 8, art. 2, ch. 82, Comp. Laws 1879. Upon examination, the justice found there was reason to fear the commission of the offense charged in the complaint, and required the said John Dean to enter into a recognizance for his appearance before the district court on the first day of the next term, etc. Upon the hearing had in the district court on March 26th, 1880, the court discharged the recognizance taken, and adjudged the costs as follows: To the defendant, John Dean, the costs in the justice’s court, amounting to seventy-nine dollars and twenty-five cents; and to the complaining witness, Wm. McKay, the costs in the district court, amounting to eighty dollars and thirty-five cents. Execution was ordered to issue, to collect said sums. Wm. McKay excepted, and brings the case here on appeal.
Section 16 of the criminal code provides that—
“Upon the appearance of the respective parties, and in cases where there is no complaint, the court shall examine the evidence, and may either discharge the recognizance taken, or require a new recognizance, as the circumstances of the case may require, for such time as shall appear necessary, not exceeding one year; and, in such cases, costs, shall be adjudged according to the discretion of the court.”
In State v. Menhart, 9 Kas. 98, the question rose directly as to whether the complaining witness in a proceeding to prevent the commission of an offense under said art. 2, ch. 82, was liable for the costs in a case where the justice holds that there is no cause for binding over the accused. It was held he was not. The court said: “ The witness is not a party to the proceeding.”
Following that decision, the result is obtained that in the case at bar, the complaining witness was not a party to the proceeding in the district court so as to make him liable for costs, and that the discretion of the court in taxing costs is limited to the parties before it, to wit, the state and the defendant. The complaining witness cannot therefore be adjudged to pay any costs.
The judgment must be reversed, and cause remanded.
All fhe Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought, by Simon Shew against J. D. Blair, to recover some horses, and a wagon and a harness. The property formerly belonged to the plaintiff, but on August 2,1879, two orders of attachment in two different cases and in favor of different plaintiffs, were issued against him by a justice of the peace, and were placed in the hands of the defendant, who was then a constable, for service. The defendant Served one of them on August 3, 1879, w'hich was Sunday, by attaching the property in controversy and taking it into his possession. On August 4, 1879, the defendant returned the order of attachment which he had served, and an alias order.was issued in its place, and then, on the same day, and while the property in controversy was still in his possession, he levied both the original order of attachment (which still remained in his hands) and the alias order on the property. On August 11, 1879, judgments were rendered against the plaintiff, Shew^ by the justice of the peace,‘in these two attachment cases, and the attached property was ordered to be sold to satisfy such judgments, and on the same day this action of replevin was commenced. Afterward said property was sold. Afterward 1 a trial was had in this replevin action before the court and a jury, and the verdict and judgment were rendered in favor of the plaintiff Shew, and against the defendant Blair, for the property, or $205 and costs; and the defendant now brings the case to this court for review.
The plaintiff below (defendant in error) has filed no brief, nor made any other appearance in this court; but we should think from the record of the case that he based his right to recover upon the following grounds, to wit: 1. All the different levies of said attachments and the orders made by the justice for the sale of the property were void — void absolutely and entirely; 2. The property was exempt from attachment, under the exemption- laws.
The plaintiff was probably not entitled to recover upon either of said grounds; for the said levies were probably not void, and the plaintiff* -was probably not a resident of Kansas, so as to be entitled to the property under the exemption laws. (Comp. Laws of 1879, pp. 437, 438.)
As to the first ground, the court below instructed the jury as follows:
“2d. The court instructs the jury that if from the evidence they believe defendant Blair levied an attachment on the property of the plaintiff on Sunday, August 3d, 1879, such levy would be illegal; and the defendant could not avail himself of such illegal use of the process of the court to hold such property until the next day, and then levy new or alias attachments on said property while so in his possession, and if from the evidence they find he has done so, the levy of such attachment would be no justification for the defendant, and your verdict should be for the plaintiff.
“3d. The court instructs the jury that if from the evidence they believe the defendant levied an attachment on the property of the plaintiff described in the petition on Sunday, August 3d, 1879, while'the plaintiff was passing through said county, and took the same from the possession of the plaintiff on that day and came with it to Hiawatha, and held it until Monday, August 4th, 1879, and then levied a new or an additional or an alias attachment or attachments on said property while so in his possession, then, the plaintiff not being a resident of said county, such levy would be illegal.”
“5th. The court instructs the jury that if they find from the evidence the defendant levied on the property of the plaintiff' while he was peacefully passing through or had come into and was going out of Brown county, Kansas, on Sunday, August 3d, 1879, for the purpose of holding said property until a secular and lawful day for levy thereon, and then levied new or alias attachments on said property while so in the possession of said officer, such, levies would be unlawful, and in that case the plaintiff should recover, provided that in his ordinary course of travel the plaintiff would have passed out of said county of Brown on said Sunday.”’
We think the foregoing instructions are erroneous.
I. Said levies of said attachments were not void, but at most were only voidable, and being only voidable, they cannot be set aside or ignored in this proceeding, which attacks them only collaterally. The first levy, however, which was made on Sunday, we shall, for the purposes of this ease, consider as void; but we cannot consider the other two levies, which were made on Monday, as void. They were probably irregular and voidable, but not void.' One of them, however, was made in a case in which no previous levy had been made; and so far as is shown, the plaintiff in that case had nothing to do with the previous levy, made on Sunday, and possibly, therefore, this levy may not even be voidable. The plaintiff in this last-mentioned attachment case certainly has the right to claim that the levy of his attachment should not be treated as absolutely void. But why should the levy of the alias order of attachment be treated as void? It was levied at a time when the constable had an undoubted right to levy it. Of course, we think it was irregular for the constable to wrongfully get possession of the property on Sunday, and then, without returning the property to the owner, to -levy an alias order on it on Monday; but such irregularity could not render the subsequent levy absolutely void. But if the plaintiff should recover in this action, he will ignore all of said levies as amounting to nothing either in law or in fact, and will take the property away from the plaintiffs and judgment creditors in both of said attachment cases, although in one of such cases the plaintiff and judgment creditor is not shown to have been guilty of any wrong.
II. But even if all of said levies were void, can the plaintiff in this present action maintain replevin for the property? In order to procure a writ of replevin, he must file in the clerk’s office an affidavit showing that the property was not taken from him on any “ mesne or final process issued against said plaintiff.” (Comp. Laws of 1879, p.623, §177, sub-div. 4.) And according to the decision made tin the case of McGlothlin v. Madden, 16 Kas. 466, it makes no difference whether such process is valid or void. In that case it was held under its peculiar circumstances that replevin would not lie against an officer who had seized property by virtue of an execution against the owner, although such execution was not founded upon any judgment against [the owner. Of course, replevin will lie to recover from an officer property which is exempt from process under the exemption laws. (Comp. Laws of 1879, p.623, §177, subdiv. 5.) But that is not the question now under consideration. The question now under consideration' is, whether replevin will lie to recover from an officer property which was taken by virtue of an irregular or void levy of process, merely because of the irregularity of the levy? The question whether the property is exempt or not, does not enter into this present question. The present case was probably decided upon the ground that said levies of said attachment orders were void, and certainly under the pleadings, the evidence and the instructions of the court, it may have, been so decided.
Because of the errors of the court in giving said instructions, the judgment of the court below will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
On the 17th of May, 1880, the judge of the thirteenth judicial district caused an attachment to be issued against D. A. Millington, the editor and publisher of the Winfield Courier, for contempt, on account of certain articles published in said paper. The same day, Millington was arrested, and after a hearing, adjudged guilty and fined two hundred dollars. This order and judgment have been brought to our consideration both by habeas corpus and appeal. They are challenged on various grounds, and said to be not only erroneous, but absolutely void. It is claimed that if said Millington were guilty of a contempt, the punishment imposed is one beyond the power of the court to impose, and therefore void. Again, it is urged that the court had become adjourned by operation of law, and that therefore this entire proceeding was extrajudicial and void. Further, that the articles complained of did not constitute a contempt, and had no tendency to obstruct the administration of justice. And still further, that the answer of said Millington fully exonerated him.
It is obvious that some of these matters are not open for consideration in the habeas corpus proceeding. For in that, only questions of power, and not questions of error, are before us.
The first proposition is, that the district court has no power to impose a fine of $200 for contempt. This is claimed under §2 of ch. 28 of the Compiled Laws of 1879. That section reads as follows:
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation, or at chambers, as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders, and to punish for contempt in open court, or at chambers, by fine not to exceed one hundred dollars, and imprisonment, or either, and to assign not exceeding one attorney to prisoners who may be unable to employ counsel.”
The argument is, that as the constitution provides that the district courts shall have such jurisdiction as may be provided by law, (Const., art. 3, § 6,) and that as this is the only section in which the power of the court or judge to punish for contempt is named, it includes all the power vested in a court or a judge in matters of contempt.
We do not agree with counsel in these views. The plain language of the section is a grant of power to the judge, and not to the court, and the constitution provides that the several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law. (Const., art. 3, § 16.) The section all the way through grants power to the judge, and not to the court. It is true, it speaks of “contempt in open court or at chambers,” but it grants no power to the court; it simply provides what the judge may do in such cases. The prior section grants power to the court, and gives it “general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law)”. It may be conceded that the language of § 2 is not altogether apt or happy, but as we construe it, it contains only a grant of power to the judge in vacation in pursuance of said § 16 of the constitution, and gives to him a power at chambers to punish for a contempt committed in open court. Such is the plain reading of the language; and when we notice that the prior section grants power to the court, the obvious meaning of the language seems imperative. If it be contended that without this § 2 no power is in terms granted to the district court to punish for contempt, we reply that it is one of the prerogatives — one of the inherent powers of a court — that it may punish for disorderly conduct in the court room, resistance of process, or any interference with its proceedings which amounts to actual contempt. The statute in terms nowhere gives to this court, which is the final tribunal, the ultimate arbiter of all rights and disputes between litigants, the power to punish for contempt of its proceedings and orders. And yet, is it possible to suppose that this court may not punish for a disturbance in its court room, or for a resistance of its process ? (Bacon’s Abridgement, title, Courts; ex parte Robinson, 19 Wall. 505; Morrison v. McDonald, 8 Shep. 550; State v. Woodfin, 5 Ired. 199.) So far as judges of the district court acting in vacation or at chambers are concerned, the legislature has limited their powers, though even as to them, it has placed no limit on the term of imprisonment they may impose. Upon the power of justices of the peace, it has also placed a limitation. (Comp. Laws 1879, p.732, §199 and 200.) But as to courts of record, it has left their powers to punish for contempt free and open to all the necessities of the occasion. There are exceptions to this, as in the matter of disobedient witnesses, etc., but outside of the several named limitations, the power of courts of record to punish for actual contempt is left free to the actual necessities of the wrong. A poor farmer who resists the process of the court may be fully punished by a fine of one hundred dollars, but a railroad magnate who tries to rob the county or defies the process of the court, would laugh at such a fine. The legislature has wisely left the power of the court equal to the wrong attempted. Any resistance of the power or process of a court of record of this state may be punished by a fine large enough to recompense the state for any loss it may suffer, and large enough to deprive the offender of any profits he may hope to receive from his wrong. That this power is a vast one, may be conceded; that its exercise may sometimes be necessary, is clear; and to guard against any wrongful exercise of this power by the lower courts, is the reviewing power of this court, and as to all courts the power of impeachment and the severe review of public opinion. With these checks it would seem that the power, though vast, is safely lodged. All power is in a certain sense dangerous, but with an elective judiciary, a free press and the power of impeachment, the people can soon relieve themselves of a corrupt or partial judge. Power must reside somewhere— power to compel or restrain action, and the vast volume of the testimony of experience is that nobody is so safely trusted with power as the courts.
A second proposition of counsel is, the district court of Cowley county, the county in which these proceedings were had, had become adjourned by operation of law, and therefore that this entire proceeding was extrajudicial and void. The facts are these: This proceeding was commenced and trial had on the 17th day of May, and judgment rendered on the 18th. The 17th was the day fixed by law for the commencement of the term of the district court in Sedgwick county, and in fact both on the 17th and 18th, and at the times these proceedings were had, the district court of that county was in session, a judge pro tem. having been elected in the absence of the regular judge. It also appears that the district court of Cowley county, which had been in session for some time, was on the 13th adjourned over the 14th and 15th, and to the 17th, the day for the commencement of the Sedgwick county term. Now upon these facts it is contended that two terms of the district court cannot be held in the same district on the same day, and that as the 17th was the day fixed by law for the commencement of the Sedgwick county court, the adjournment of the Cowley county court to that day was virtually an adjournment sine die; or at least, that the Cowley county court could not be held upon that day, or until some adjournment had been made of the Sedgwick county court. In the case of The State v. Montgomery, 8 Kas. 358, it was decided that the district court could adjourn the term in one county to a day subsequent to that fixed by law for the commencement of the regular term in another county of the same district. But this presents a very different question: Here we find the district court, which by the constitution has but one regular judge, being held in two counties by two judges. If this be proper, then in every county in the district, court may be held continuously, presided over in all ■but one by judges pro tem. This might have one advantage in preventing an accumulation of business, but it is against the spirit of the constitution. That organic law of the-state provides for one district judge in each judicial district, to be elected by the people of the district. (Const., art. 3, § 5.) Clearly, the idea is that this single elected judge is the sole responsible judicial officer for the district court of the entire district. "Whatever provision exists for judges pro tem., is not for the purpose of duplicating or increasing the judicial force, but to preserve a continuous though single force. They act for and in the absence, .sickness, or disqualification of the •elected judge. “The general principle is that the judiciary .are elective.” (The State, ex rel., v. Cobb, 2 Kas. 53.) Litigants are entitled to have this principle recognized and ■enforced. The commencement of .a term is a legislative command to the elected judge to be present and discharge the judicial duties devolving upon him in that county. It operates as a suspension of his duties in all other counties in -his district, and suspends, or closes, the terms in those counties. The legislature provides for terms, in order to secure his personal attention to the litigation in each county. It prescribes the commencement of each term, leaving the time ■of closing to the discretion of the judge acting upon the • necessities of business. It does not leave the commencement to his discretion, because it intends that each county shall have the benefit of his presence and labors at a certain and known time. The people of the entire district elect the judge. Each county is entitled to the benefit of his learning and experience. And the legislature by terms names the time of his attendance. Impliedly, thereby commanding him to attend in one county, it equally commands him to leave all the others. The case of Grable v. The State, 2 G. Greene, 559, is strongly in point. Under similar provisions, the supreme court of Iowa there held that the term in one county was closed on the day the term was by law to commence in another. It says: “From the constitution of our judicial system, it is apparent that the court cannot be held in two counties in the same district on the same day, and by one and the same judge.” So we say here, there is but one district court and one district judge in a district. The officer is not to be duplicated, and when a term commences in one county, the court everywhere else in the district is closed, or suspended. A judge pro tern, is only a substitute, and never a -duplicate.
It follows from these considerations that the adjournment of the Cowley court to the 17th was void, and the proceedings on the 17th and 18th in that county were extrajudicial and void. There was no court then in session in that county. Habeas corpus will lie in such a case, and the petitioner is entitled to a discharge. Such is the order which must be entered in this case; and in the appeal, the order will be, that the judgment apparently rendered in court-time will be reversed, and the appellant discharged. The same order will be entered in the two cases of William Allison. Under these circumstances, it is unnecessary and probably improper for us to consider the other questions presented and discussed by counsel.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
These are actions under the law of 1874 against the defendant, now plaintiff in error, for stock killed by its trains. At the time these injuries were done, the railroad was in possession and under the control of a receiver appointed by the United States court, and the principal question is, can the company be held liable for stock killed upon its road, by its trains, when the management and possession of the road are not in the corporation, but in the hands of an officer of the court? Beyond the-possession of the receiver, these further facts appear: that the road was in default for not building a fence, for some years before any receiver was appointed; that shortly after the injuries, the road was restored to the possession of the company; that in the one case the injury took place after the entry of the order of restoration, and in both cases less that thirty days before the actual surrender of possession to the company. Hence, as thirty days’ demand is required by the statute, no claim could have been preferred against the receiver during his continuance in office, even if the statute were construed to cast a liability upon him. The argument is, that a statutory duty was cast upon the company, and that for an omission of that duty it is liable, and an action can'be sustained against it, whether one will lie against the receiver or not, and whether the property of the company in the hands of the receiver can be reached or not.
Authority upon this question is limited, but what there is goes to sustain the action. In Indiana, the question has been presented four times to the supreme court, with a uniform result. [O. & M. Rld. Co. v. Fitch, 20 Ind. 498; McKinney v. O. & M. Rld. Co., 22 Ind. 99; L. N. A. &. C. Rld. Co. v. Cauble, 46 Ind. 277; I. C. & L. Rld. Co. v. Ray, 51 Ind. 269.) High, in his treatise on Receivers, after stating the general doctrine that the corporation is not liable for the negligence of the employes of the receiver in operating the road, adds:
“Where, however, an absolute liability is fixed upon a railway company by statute, a different principle prevails. Thus, if the company is made by statute absolutely liable for the killing of stock in cases where its road is not securely fenced, the fact that the affairs of the company have passed into the hands of a receiver, appointed by the federal court, constitutes no defense to an action on such liability against the railway company in the state court, and the plaintiff may recover judgment in such action, upon the statutory liability, notwithstanding the possession of the receiver. In such cases it is held that the corporate body still exists, and since the law renders it liable, the receiver operates the road subject to such liability.” (Sec. 397.)
This statement of the law is founded upon the cases from Indiana, and is to be taken as the concurrence of the author with those views. In the case in 22 Ind., the court thus expresses its views:
“The statute makes railroad companies liable for stock killed by the cars, etc., of the company, without reference to the question of negligence, the road not being 'securely fenced. This statute contains no exception in favor of companies whose roads may be operated by a receiver, instead of the servants of the company. It is in the nature of a police regulation, designed to promote the security of persons and property passing upon the road. The reason and spirit of the law are as applicable to roads operated by a receiver as to those operated by the servants of the company.”
We premise what we may have to say, with the remark that it makes no difference with the question, that the court appointing the receiver was a court of the United States. It involves no question of conflict of authority. There is no attempt to interfere with the possession of the receiver, or to' render him amenable to any court other than the one appointing him. It involves no claim even upon the property of the corporation which has been placed in his hands. The question rather is, whether the appointment of a receiver by any court of competent jurisdiction operates to release the corporation from the statutory liability cast upon it?
Counsel for the company very strongly challenge the authority of these decisions, upon two grounds: one, a difference between the statutes of Indiana and Kansas • and the other, the soundness of the' principles upon which they are rested. There is, as will be seen at a glance, a marked difference between the two statutes, and this difference is one which simplifies the argutnent required to support those decisions. We place the two statutes, or so much as is material, side by side:
KANSAS STATUTE.
An Act entitled “An act relating to killing or wounding stock by railroads.”
Be it enacted by the Legislature of the State of Kansas :
Section 1. Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each any [and] every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.
Sec. 2. In case such railway company or corporation, or the assignee or.lessee thereof, shall fail for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal if killed or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney’s fee for the prosecution of the suit,' and all costs in any court of competent jurisdiction in the county in which such animal .was killed or wounded.
Sec. S. The demand mentioned in section two of this act may be made of any ticket agent or station agent of such railway company or corporation, or the assignee or lessee thereof.
Sec. 4. In all actions prosecuted under this act, it shall be the duty of the court, if tried by the court, or jury if tried by a jury, if the judgment or verdict be for the plaintiff, to find in addition to their general findings for plaintiff the amount, if anything, allowed for an attorney’s fee in the case.
Sec. 5. This act shall not apply to any railway company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence, to prevent such animal from being on such road.
EXTRACT FROM INDIANA STATUTE.
An Act to provide compensation to tbe owners of animals killed or injured by tbe cars, locomotives, or other carriages of any railroad company in tbis state; and to enforce tbe collection of judgments rendered on account of tbe same; and to repeal all laws inconsistent tbere-
Section 1. Be it enacted by the General Assembly of the State of Indiana, That lessees, assignees, receivers, and other persons running or controlling any railroad, in the corporate name of such company, shall be liable jointly or severally with such company for stock killed or injured by the locomotives, cars, or other carriages of such company, to the extent and according to the provisions of this act.
Sec. 2. That whenever any animal or animals shall be, or shall have been killed or injured by the locomotives, cars, or other carriages used on any railroad in, or running through this state, whether the same may be or may have been run and controlled by the company, or by the lessee, assignee, receiver or other person, the owner thereof may go before some justice of the peace of the county in which such killing and injuring occurred, and file his complaint in writing, and such justice shall fix a day to hear said complaint, and shall cause at least ten days’ notice to be served on the railroad company, by the service of a summons, by copy, on any conductor of any train passing into or through said county.
Seo. 4. The action may in all cases contemplated by this act, be brought against the railroad as defendant, whether the same is or was being run by the company, or by a lessee, assignee, receiver, or other person in the name of such company.
Seo. 7. This act shall not apply to any railroad securely fenced in, and such fence properly maintained by such company, lessee, assignee, receiver, or other person running the same.
The Indiana statute names receivers, and, in terms, makes them liable. Ours does not. That authorizes an action against the railroad, whether it is operated by the company or a receiver. Ours contains no such provision. That gives a cause of action for stock killed by locomotives, cars, etc., used on the railroad, whether run and controlled by the company, or a receiver. Ours, in terms, does not extend so far.
Is this difference vital? Our statute names assignees and lessees, but not receivers. Expressio unius, exelusio alterius. Was there any intent to bring receivers within the statute? If this were a claim against a receiver, this might be a pertinent question. The omission may show that the legislature did not intend to cast any liability on a receiver; but does it not also tend at least to show that it did not intend that the appointment of a receiver should affect the liability of the corporation? Naming lessees, is it not "fair to say that it was intended that a lease should relieve the corporation and cast the burden on the lessee? Omitting receivers, is it not equally fair to hold that the intention was to leave the liability on the corporation, unaffected by the appointment of a receiver? Neither statute in terms requires that the train doing the damage shall be owned and operated by the company. The Indiana statute expressly provides for liability of the company, even when the road is run and controlled by a receiver. Ours simply in general terms casts a liability for cattle killed or wounded “ by the engine or cars on such railway.” And that this does not require that such engine and cars be owned or operated by the company, was decided in the case of K. C. Ft. S. & G. Rld. Co. v. Ewing, 23 Kas. 273. In brief, the difference between the two statutes is this: while both ignore the matter of negligence in the management of the train, and cast an absolute liability for default of a fence, ours stops with casting this liability, while the Indiana statute in terms provides that the fact of a receiver and his possession shall not limit or restrict the company’s liability. Of course, then, in that state, the only question was as to the power to so legislate; here, the further question arises, whether the silence of the statute permits the courts to engraft an exception in case of a receiver upon the otherwise absolute liability.
Upon the question of power, we think the ruling of the Indiana court was correct. , The right to incorporate, to condemn lands and operate a railroad, is a franchise, a grant from the state, and the conditions upon which that grant may be taken and held are within the legislative discretion. No one is compelled to accept such a franchise, and no one may complain of the conditions upon which alone it may be taken and held. If the legislature sees fit to provide that the franchise of building and operating a railroad shall be held only upon condition that the road be fenced, it can be held and exercised only upon that condition ; if, that the corporation shall be liable for all stock killed by trains on that road so long as it is unfenced, then only with that liability. No act of the corporation can absolve itself from any condition upon which its franchise is held. It may alienate its property, but the corporation still existing is responsible for any default as to these conditions. And under the limitations of our constitution, the imposition of a new police regulation is equivalent to an original condition of the franchise. See, also, O. & M. Rld. Co. v. Dunbar, 20 Ill. 626; Illinois, &c., Rld. Co. v. Finnigan, 21 Ill, 646; Rockford, &c., Rld. Co. v. Heflin, 65 Ill. 367; Bay City, &c., Rld. Co. v. Austin, 21 Mich. 390.
Upon the other question, as the statute has made no-exception on account of a receiver, the courts are not warranted in making one. This is not a case in which a party is relieved from a statutory duty because a superior duty or force prevents compliance. It may be true, as counsel urge, that after full possession has been transferred to the receiver, the company may not enter to build the fence, and that the court appointing the receiver would punish for contempt any such interference with his possession. If the statute had been enacted after the appointment of a receiver, it may well be that this argument would be conclusive. But here the statute was in force years before the appointment of any re ■ceiver. The company failed to comply with its behests. It accepted the alternative, i. e., liability for all stock killed by trains run upon its road. This liability arises, not from any negligence in the running of the trains, any misconduct of the receiver or his employés. If it did, it might well be argued that his should be the responsibility. The default is that of the company. It did not complete its road as the statute contemplated that it should be completed. It is not the theory of the law, that the receiver succeeds to the company in all its powers and duties of construction and completion of the road. He simply preserves the property pending the litigation for its future owners. He takes the road as he finds it, and unless specially ordered otherwise by the court appointing him, he discharges his full duty, and is guilty of no omission, no misconduct, if he turn it over at the close of his trust in as good condition as he received it. So that it cannot be said that the want of a fence is his default. Whether the property of the corporation in his hands can be charged with injuries resulting from the default of the company prior to his appointment, we need not stop to inquire. By the record, the only • one in default was the company, and it alone is sought to be charged with the responsibility. The statute imposing a liability upon assignees and lessees contemplates that an assignment or lease will relieve the corporation. Does it not follow that the legislature intended that nothing else should? And if so, the courts should add no other, certainly not in any case in which the corporation had both the power and the opportunity to comply with the requisitions of the statute.
A distinction may be drawn between those statutory duties which require constant action on the part of those operating the road, such as ringing the bell at every crossing, and those which, like the one in question, are of the nature of permanent improvements. If the company has complied with the former while it was running and operating the road, an omission during the possession of the receiver may not be the default of the company. But an omission of the latter, when the company had the power and opportunity to obey, is its default, and one for which it remains liable so long as its chartered relations continue to the road. Of course, it may claim exemption from every duty when, by final sale, it has lost all relations to the property.
The ■ principal question must, under the circumstances of this case, be answered in the affirmative.
One other proposition „is advanced by counsel for the company. It is contended that it should affirmatively appear that the place at which the stock went upon the track, was without a fence, and could rightfully be fenced. The bills of particulars charge and the findings show that at the place where the stock was injured, the road was not fenced, and yet that it could have been. This is sufficient. Whatever questions might arise, if it appeared that the stock went upon the track at a place where the company could not fence, such as a public crossing, and wandered along to a place where there was a proper fence, and there received the injury, are immaterial here. The statute applies where the road is not inclosed with “a good and lawful fence to prevent'such animals from being on such road.” And when all that is before us is the general allegation in the bills of particulars and general statement in the findings that the cattle were injured at a place where the road was not fenced and where it could be fenced, it must be held that a sufficient showing appears to render the company liable. (Bellefontaine Rld. Co. v. Reed, 33 Ind. 477; Ohio, &c., Rld. Co. v. Miller, 46 Ind., 215; I. & C. Rld. Co. v. Adkins, 23 Ind. 340.)
On a motion so filed therefor, defendant in error asks us to tax against the railroad company an additional amount, as fees of counsel in this court. This motion will be overruled. The statute gives no attorney’s fee for defending actions, and no new judgment is recovered in this court.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant in error was the owner in fee of the land on which Galena, a city of the third class, was and is located. It filed its plat, certified in the usual form, dedicating the streets and alleys to public use, but setting forth in such dedication that it reserved to itself all the mineral under the surface of such streets and alleys. Subsequently, it sold and conveyed to Tousley & Neal, plaintiffs in error, lots 354 and 355 in said city, by general warranty deed in the usual form, and without any reservation or condition. They commenced mining from their lots under that half of the street next to them, and the mining company brought this action for damages, and to restrain them from such mining operations.
The first proposition of counsel for plaintiffs in error is, that by the dedication under the statute, the defendant in error parted with the fee absolutely to the county, and that the reservation of the mineral was void as in contravention of the statute; and the second, that if the reservation were valid, all rights secured thereby passed by the deed to plaintiffs in error.
The first proposition turns upon the effect to be given to the statute concerning dedications. The first and sixth sections thereof are all that materially affect this question:
“Section 1. Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town, or addition,'shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing: first, all the parcels of ground within such city or town, or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and, second, all lots intended for sale, by numbers, and their precise length and width.”
“Sec. 6. Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses, in the county in which such city or town, or addition, is situate, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.”
On the one side it is argued that, whatever may be true of a parol dedication, a statutory dedication must pass the fee; that whoever would avail himself of the privileges of the statute, must take them cum onere; that if he would have his plat filed and recorded, he must consent that the fee of all streets, alleys, etc., pass to the county. On the other hand, it is said that there is no prohibition on reserving minerals, etc.; that a party owning land may give to the public just such an interest therein as he sees fit; that the public is not compelled to accept what he offers, neither can it, save by condemnation proceedings in which it pays for what it takes, take more from a party than he offers to give; that the defendant in error offered only certain interests to the public, and that if the public did not take that interest and only that interest, it took nothing, and the fee and easement both remain with the defendant in error. The case of City of Dubuque v. Benson, 23 Iowa, 248, is cited in support of these views.
We do not deem it necessary to decide this question, for the other appears conclusive of the case in favor of the plaintiffs in error. Conceding that the reservation was valid, that the fee did not pass to the public, then it seems to us that the warranty deed of the lots conveyed all the grantor’s interest in the street up to the center. That such was the rule at common law, will not be questioned.
“The established inference of law is, that a conveyance of land bounded on a public highway, carries with it the fee to the center of the road as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice. There is no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor.” (Peck v. Smith, 1 Conn. Rep., 103.)
“It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intenfa” (3 Kent’s Com., 433—4, and cases cited.)
“But if the space be a highway, that circumstance raises a strong presumption of an intent to pass the soil to the center of the highway, and it will so pass accordingly unless the highway be clearly excluded.” (Dovaston v. Payne, 2 Smith’s Leading Cases, p. 216, and cases cited.)
“And to have this rule of the least practical importance to cure the evil which it is adapted to remedy, it must be applied to every case where there is not expressed an evident and manifest intention to the contrary, one from which no rational construction can escape.” (Buck v. Squiers, per Redfield, J., in 22 Vt. 484.)
In Kimball v. The City of Kenosha, 4 Wis. 331, the syllabus says:
“A grantee of a lot bounded by a street or streets in a village, laid out, platted and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement.”
The court also says, in the opinion:
“There can be no real difference between the conveyance of a lot or block numbered three, which is in fact bounded by a street, or in the conveyance of Black Acre, bounding it by a street or highway named. Unless the stréet or road is expressly excluded, the grantee takes to the center. It is unnecessary to cite authorities to this proposition. The dividing of land into lots, blocks and streets, and lots and blocks numbered, and all bounded by streets in fact, and described in the deed of their conveyance by number, cannot, by any means, be regarded as an express exclusion of the streets on which they abut, and without which the lots would be comparatively useless. So far from the streets being expressly excluded in conveyances of such- kind, there is the strongest possible implication that they were intended to be included, because the price of the lots depends upon their location with reference to streets, and the vendor receives a consideration, not only for the precise amount of land described in the lot, but also for that used'for the street on which the lot is bounded.” (See also City of Milwaukee v. Milwaukee & Beloit Railroad Co., 7 Wis. 76.)
But by statute, the common law remains in force in this state, “as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people.” (Comp. Laws 1879, §3, p. 10-13; K. P. Rly. Co. v. Nichols, 9 Kas. 252.) The rule, therefore, of the common law as to the effect of a conveyance of a lot bounded upon a highway remains in force in Kansas, except as modified as above indicated. The only modification is in the statute concerning dedications, supra. This does not in terms modify that rule. It modifies it only as it says that the dedicator has parted with the fee in the street, and has nothing but the lot to convey. It affects the conveyance only as it limits the title of the grantor. If it passes the fee to the county, then the dedicator has nothing but the lot to convey; if it leaves any interest in the dedicator, it to the same extent leaves unchanged the common law as to conveyances. The statute touches reservations and conveyances with equal hands. It limits the latter only because and so far as it has limited the former. If the dedicator may reserve nothing in the street, his conveyance of the lot, passes nothing in the street, but if he reserves anything in the street, his conveyance of the lot passes the reservation. This argument, so clearly and forcibly put by the learned counsel for plaintiffs in error, seems to us as unanswerable. To hold that the express language of the statute may be limited at the discretion of the dedicator, and at the same time that an implied change founded upon this express language is without limit, is surely an unreasonable construction. An implied change should not be carried beyond' an express one. A limitation upon the latter carries with it a limitation upon the former:
This conclusion compels a reversal of the judgment; for either the dedicator reserved nothing, or conveyed all it reserved to the plaintiffs in error.
The judgment will be reversed, and the case remanded with instructions to enter judgment for costs upon the agreed facts in favor of plaintiffs in error, defendants below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton,C. J.:
On June 16th, 1880, a complaint was filed with a justice of the peace of Lyon county, charging the defendant with a violation of § 6 of the dramshop act, in unlawfully selling intoxicating liquor to W. J. Cooper, a habitual drunkard, after notice had been given defendant by the wife of Cooper that her husband was in the habit of being intoxicated. On June 19th, the defendant was convicted before the justice after a hearing upon the complaint, and sentenced to pay a fine of twenty-five dollars. An appeal was taken by defendant to the district court of Lyon county. At the September terra of that court for 1880, the defendant was again convicted. He was sentenced to sixty days5 imprisonment in the county jail, adjudged to pay a fine of one hundred dollars and costs, and stand committed until the fine and costs were paid. He now appeals to this court.
The first objection to the conviction to which our attention has been directed by couns.el, is, the insufficiency of the testimony concerning the notice to the defendant. It is alleged that there was a total failure of proof of such a notice as is required by the statute. The evidence upon this point is, that during the last of September, 1879, the wife of W. J. Cooper, in the presence of J. E. Webster, said to the defendant, that she forbade him from selling any more intoxicating liquors to her husband. No notification was given by the wife that her husband was in the habit of being intoxicated. In the absence of such notification, was the conviction legal ?
Sec. 6 reads as follows:
“ Every person who shall, directly or indirectly, knowingly sell, barter or give away any intoxicating liquor to any person who is in the habit of being intoxicated, after notice shall have been given him by the wife, child, parent, brother or sister of such person, or by any civil officer charged with the care or custody of the poor of the township, city or ward where he resides, that such person is in the habit of being intoxicated, or to any person in a state of intoxication, . -. . shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine not less than five dollars, nor more than one hundred dollars, or by imprisonment not less than ten nor more than sixty days, or by both such fine and imprisonment.”
This statute clearly requires that the notice therein provided for shall inform the person forbidden 'to sell, that the party sought to be prevented from obtaining intoxicating liquors by begging or buying, is in the habit of being intoxicated. This is the essential, or substantial part of the notice. A notice “not to sell or give” is insufficient. It does not comply with the terms of the statute, and as the statute is penal in its nature, like other penal laws, it must be construed strictly. In this case, the complaint charges that the wife gave the defendant notice that her husband was in the habit of being intoxicated. Therefore, it is evident that the prosecuting attorney, in drawing up his chárge, was fully aware of the requisites of the notice. On the trial, he failed to prove this allegation. Hence, there was a failure of proof of the offense alleged in the complaint. No valid notice was shown. The conviction, in the absence of the statutory notice, was illegal, and must be set aside.
Objection is also made to certain remarks of counsel in closing the argument of the case. It is alleged that he referred to facts not before the jury, and indulged in vituperation-and abuse, predicated upon alleged facts not in evidence, calculated to create prejudice against the defendant. There is very great conflict in the testimony before us concerning the language actually used by the counsel. In view of the conclusion we have already announced of awarding a new trial, it is unnecessary to pass upon such objection. We take this opportunity, however, of calling attention to the duty of the district courts in jury trials, to interfere in all cases of their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion. We conclude with the words of Mr. Justice Valentine, speaking for the court, in State v. Comstock, 20 Kas. 655: “Courts ought to confine counsel strictly within the facts of the case; and if counsel persistently go outside of the facts in their argument to the jury, then the court should punish them by fine and imprisonment; and if they should obtain a verdict by this means, then the court should set such verdict aside.”
The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This proceeding comes to us on a case-made. Exceptions are taken to the rulings of the court be- below, in the admission of evidence, and for other errors occurring on the trial. The grounds of the motion for a new trial are omitted in the case-made, and for all practical purposes the case is before us as if no motion for a new trial had been filed. The defects or omissions in the record are attempted to be cured by the stipulations of counsel, separate and independent of the case-made. Notwithstanding the agreement, the counsel for defendant in error directly challenge the record, on account of the absence of the motion for a new trial. We cannot, therefore, ignore the omission. In the absence of this motion, we cannot review the alleged errors occurring on the trial, as the stipulation of counsel, entered into subsequently to the settling and signing of the case-made, is not a part of the case, and cannot be included in our determination of the matters submitted thereon. (Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637; State v. Bohan, 19 Kas. 28; Winstead v. Standeford, 21 Kas. 270; Shumaker v. O’Brien, 19 Kas. 476; Transportation Co. v. Palmer, 19 Kas. 471.)
As the amended petition, filed in the trial court with the consent of the attorney of the plaintiff in error, contained sufficient facts to constitute a good cause of action, the only question remaining upon the record is, whether the judgment is in due form. The entry we think incorrect in not clearly providing, that upon the payment by Mrs. A. Parker of the $600 returned by the jury in their verdict, the judgment against her be fully satisfied, and her property released from any mortgage or judgment lien. It is therefore directed that the cáse be remanded, with orders to the district court to modify and correct the judgment according to the views herein expressed; and the costs of this court will be equally divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of December, 1879, plaintiff filed his petition in the district court of Smith county, to enjoin the defendant from selling or otherwise disposing of a certain promissory note of $300, and a chattel mortgage given to secure the same, all executed by plaintiff to defendant in 1879, in part payment of seventeen horses bought during that year of defendant by plaintiff. A temporary injunction was allowed by the probate judge of the county, on the same day the petition was filed. Application was made on December 30th, 1879, to the district judge of the district embracing Smith county, to vacate and dissolve this injunction. Upon a hearing at chambers, the motion was sustained and the injunction dissolved. This ruling the plaintiff seeks to have reversed.
'It is conceded that the original petition was insufficient to support the injunction, but on Dec. 29th, 1879, an amended petition was filed. Both petitions were before the judge on the application to dissolve, and plaintiff claims that as he had a right to file an amended petition, and as such amended petition stated a good cause for an injunction, the motion should have been overruled and the injunction continued. Treating the amended petition as a petition and an affidavit, we see no error in the ruling of the judge in dissolving the injunction. It was improvidently granted in the first instance. A state of facts true on December 29th, 1879, the date of the jurat to the amended petition, may not have existed on December 10th, many days prior; hence, it cannot be said that the amended petition sustained the original injunction. Where an amended petition is filed to sustain an injunction theretofore granted, and to supply omissions or other defects in the original petition, and no other affidavits are presented to uphold the order of injunction, the oath thereto should show that the facts therein alleged are true at the date of the filing of the amended petition, and were also true at the filing of the original petition. The district judge, in his discre tion, might have allowed the defendant time to file counter affidavits to the amended petition, and if it had not been overborne by an adverse showing, the injunction might have been continued. As the amended petition only purported to be true on December 29th, 1879, we cannot interfere with the order of the judge holding it insufficient. The judge had no right to refuse to consider the petition of December 29th as an amended petition, but his action was an immaterial error, as the facts therein stated were only alleged to be true on December 29th, long after the granting of the order of injunction intended to be upheld by such petition.
The order of the district judge will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case was tried upon the following agreed statement of facts:
“The defendant is a corporation, and all through the year 1879 was running ánd operating a railroad in this state, and through this (Shawnee) county. In the night-time, on or about the 24th day of May, 1879, in Silver Lake township, in said county, and within what is known as the Pottawatomie reservation, a train of cars running on defendant’s road ran against and killed plaintiff’s mule within the inclosure of said plaintiff. But it is not intended to admit that the plaintiff owns the land occupied by defendant with its track and right of way within and through said inelosure. Said inclosure is the northeast quarter of section 18, town 11, range 15, through which defendant’s road runs, and which at the time of said killing was surrounded by and inclosed with a legal fence. There was and is no fence along on either side of defendant’s railroad within said inelosure. There was a night herd law in said township at the time said mule was killed. Said mule was worth $50. Proper demand of the defendant for the same was made by plaintiff more than thirty days prior to the commencement of this action. A reasonable attorney’s fee for prosecuting this suit in the justice’s court is $10, and in the district court, $25.”
The theory of the defendant is, that both parties were equal violators of the law, and that therefore plaintiff cannot recover; that of the plaintiff is, that the defendant was alone a transgressor, and mus't therefore pay for the injury which it is conceded was done. The case really turns upon the question whether the plaintiff was, as to the defendant, “confining the animal” at the time of the injury. That the defendant had not fenced its right of way, and was therefore liable under the stock law of 1874, is conceded, unless it appears that plaintiff was in equal wrong, and therefore within the case of C. B. U. P. Rld. Co. v. Lea, 20 Kas. 353, not entitled to a recovery. The language of the night herd law is, that the animal must be confined in the night-time. In this case the animal was loose in a quarter-section, which, as to the general public, was inclosed with a sufficient fence. Clearly, therefore, as to such general public, the plaintiff was without wrong. The case differs from that in 20 Kas. 353, in this, that there the animal was turned loose tó wander wherever inclined, and thus to commit depredation upon any member of the public; while heje the animal was so restrained, so “confined” to use the language of the statute, that the only party upon whose rights it could trespass was the defendant. Now, can a party be said to fully comply with the night herd law, who so confines his animals that they can trespass upon only one neighbor, or must it be held that as to that neighbor he violates the law, even though he keeps it as to all others ? Take an illustration: Suppose sixty-four parties own each ten acres in a single section; that the section is as a whole inclosed with a sufficient fence, but without any separate partition fences between the tracts of the several owners — can one owner of a ten-acre tract turn his stock loose in that section in defiance of the herd law, and deny its obligations on the ground that the section' being inclosed, his duty as to the general public is performed ? His sixty-three neighbors may suffer wrong, but beyond that local limit, the general public is protected. We cannot think that the import' of the statute. Eights and duties may often be relative — no right or duty existing as to one party, while in full force as to another. Such, we think, to be true of this night herd law. The manner of confinement is not specified. All that the statute says is, that the animal must be confined. Grant that a legal fence furnishes sufficient confinement to bring a party within the protection of the statute, yet that legal fence must extend so far as to confine the ahimal from the premises of the party complaining of the trespass. In the illustration made, the animal turned loose in the section may be confined as to the general public, because of the legal fence surrounding the entire section, but it would be a strange perversion of language to say that it was confined as to the other sixty-three owners of land in the section. We do not think the size of the inclosure makes any difference, whether it be a section of land in the country, or a lot in a town or village. If the entire inclosure is held under one right and surrounded by a legal fence, then the animal left within. the inclosure is confined within the statute as to all the world. But if the inclosed property is owned under different titles by separate parties, then while an animal turned loose within the inclosure may be confined as against outside parties, it cannot fairly be said to be confined as against other owners of land within the inclosure. If this be true of individuals owning separate tracts within the same inclosure, we cannot see that it makes any difference that one owner is a railroad corporation, or that the property it owns is a single narrow strip through the inclosure. All parties stand alike before the law. Tl^ gen eral law of obligation and right which controls .individuals, obtains against corporations. He who disregards the law is liable to the party injured, but where a disregard of an equally • binding statute by the latter equally contributes to the injury, the law will neither punish the violator of the one, nor relieve the violator of the other. In questions of this kind between individuals, the greater danger to the public from the •disregard by one party of statute obligations, cuts .no figure. The legislature may provide more stringent penalties, but in the absence of such, the individual cannot complain. There is no pretense that defendant was guilty of any negligence or any wrong, except in failing to fence, and it also appears ■ that, as against the defendant, plaintiff had not confined his • animal. Hence each had neglected a statute duty of equal obligation upon each. The injury resulting from this concurrent wrong will not be lifted from one wrong-doer and cast upon the other.
It follows from these considerations that the court erred, and that thejudgmént must be reversed, and the case remanded with instructions to enter judgment for costs in favor of the defendant, plaintiff in error.
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are these: The taxes upon a lot in Wyandotte being delinquent, proceedings were commenced in the district court, under the law of 1877, to foreclose the liens therefor. Upon such proceedings, the prop- ’ erty was sold at sheriff’s sale, and deeded to defendant in error, plaintiff below. This was his title. Plaintiff in error, defendant below, held by quitclaim from the parties who were owners at the time of the tax proceedings. The case, therefore, one in ejectment, hinges on the validity of the deed of defendant in error. The'defendant in error was the auctioneer who, acting for the sheriff, cried off the property at the sale. The sheriff was present, and opened the sale, and perhaps sold one or two pieces of property; but the party who did the selling generally, and who, as to this particular lot, did all that was done in the matter of crying it for sale, receiving bids, and striking it off, was Drought, the party to whom it was so struck off and subsequently deeded. While the sheriff, being present, had the power to interfere at any time, prolong the biddings, or otherwise control the auctioneer, yet the actual management and control of the sale was left with the auctioneer; he acted in the matter upon his discretion ; so that as to this lot, he was both seller and buyer.
By the general law of agency, one may not assume such a position, and by that law his acts are voidable. But our statute goes further, and makes a sale like this “fraudulent^ and void.” Section 462 of the code contains this- language :
“No sheriff or other officer making the sale of property, either personal or real,' nor any appraiser of such property, shall, either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void.” • .
If the sheriff had personally sold this property and struck it off to himself, no one would question the applicability of the statute. It is no less applicable here. This was a sheriff's sale. The right of the sheriff to employ an auctioneer is denied. We shall not decide this, but concede that he may so delegate his trust, he being personally present. But with the delegation goes the statute. As he may not sell to himself, neither can the auctioneer who acts for him. Each acts under the prohibition, and every sale made in disregard of that prohibition is by the statute to be “considered fraudulent and void.” Proof of good faith in the actual conduct of the sale will not uphold it. The statute is absolute. It was enacted to prevent the need of such inquiry. It is a wise statute, for while the- good faith of the parties to this transaction cannot be doubted, it would be very easy for an officer designing wrong to so cloak his conduct with an appearance of good faith as to render detection almost impossible. Public policy is better subserved by shutting .an absolute door upon such transactions, rather than by leaving them to stand or fall upon the proof of good faith or the want of it. “The law wisely prohibits an officer, in the execution of final process, from becoming a purchaser either directly or indirectly. It is in many, if not in all states, expressly prohibited by statute, and a sale made by an officer to himself or deputy is absolutely void, as against the policy of the law.” (Herman on Executions, p. 322. See also the many authorities cited in the note.)
Other facts appear which were the subject of much testimony and debate at the trial, and which have been discussed by counsel at length in their briefs. But these facts do not ■avoid the force of the statute. It appears that prior to the ■sale the owners of the lot, then residing in Cincinnati, wrote ■to their agent in Wyandotte to try and make some arrangement, if possible, to save their property. Their agent applied to Mr. Drought, as an old friend, to help them, and he promised to advance the money and bid the property in for them. At the time of the sale he announced that he was authorized to bid for the owners, and in pursuance of that announcement continued to bid and run the property up until all bidding ceased, when he struck it off to himself, intending to convey to them upon being reimbursed his money. The agent the same day telegraphed to the owners the amount of the bid, but they failed to advance the purchase-money, and Mr. D. borrowed "the money and paid the' sheriff, and the deed was made to himself. Their excuse was, that they had bought property in Cincinnati, and could not raise the money. Mr. D. gave them a reasonable time in which to reimburse him before insisting upon his own right to the purchase. It would seem "that the announcement at the sale, of Mr. D.’s purposes, in bidding, did not affect the biddings either way, and that the property brought all that could reasonably be expected. Mr. D. evidently acted in the matter in the utmost good faith and from a desire to accommodate a friend, and if the case turned upon the fairness of the transaction, his title would properly be upheld. He struck the property off to himself simply to .protect him in his advance of the money, and not with the ■intention of speculating off from the owners or of holding the property'unless they refused to reimburse him. Notwithstanding all these circumstances surrounding the transaction, the fact appears that Drought was the purchaser, intending that his purchase should inure to the benefit of the owners if they desired, otherwise to his own. Can it be said that he ■did not, “either directly or indirectly purchase,” the lot?
Whether the lot-owners can so ratify proceedings and sale prohibited by statute as to make them good, we need not inquire, for there is no sufficient ratification here shown. For such there should appear, not merely knowledge of the amount of the bid, but of all the circumstances of the sale. It does not appear that the owners knew anything further about the matter than the amount of the bid, neither is it shown, even if that were sufficient, that the agent in Wyandotte knew, either before or after the sale, of the fact that Drought was both seller and buyer, or any of the circumstances which surrounded the sale. ’ As this sale, upon the showing made, is void, Mr. Drought can have his money refunded from the county treasury, and the judgment lien to the full original amount thereof may be enforced by a new sale.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Horton, O. J.:
The question presented by the record is, ■ does the petition state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant? The decision of this court in Swartz v. Redfield, 13 Kas. 550, virtually disposes of the inquiry in the negative. It was there held, that the indorsement of a note, after maturity, is in effect the drawing of a new bill, payable on demand, and to hold the indorser, demand and notice of non-payment are essential. The note set forth in the petition we are considering, bears date August- 30, 1872; it is payable twelve months after date; the indorsement by defendant was made March 1st, 1874, several months after its maturity. No demand or notice is alleged in the petition, other than the demand by the institution of the suit on January 11th, 1875. Counsel suggest an exception to the rule adopted in Swartz v. Redfield, supra, for the reason that the note and mortgage were left in the custody and care of the defendant; therefore, they contend demand and notice of non-payment were waived. The suggestion is without substance, as the petition alleges that at the time of the indorsement it was agreed by plaintiff and defendant that defendant should keep said note and mortgage at the bank for safe-keeping for plaintiff, and therefore they were left in the custody and care of defendant until January 11th, 1875.
An action was commenced against the maker of the note and to foreclose the mortgage, on January 11th, 1875, but the defendant was not a party to the suit, and had no notice of its pendency. This action was not commenced till May 11th, 1878, and defendant therefore had no care or custody of the note and mortgage for more than three years prior to the commencement of the action. Again, defendant had charge of the note and mortgage during the time they were in his possession only for safe-keeping. He had no authority to present the note for payment; he was not employed to collect the note; and he is not charged with any neglect of duty. It cannot be said he waived demand or notice.
The case of Braine v. Spalding, 52 Penn. St. 247, to which we are referred, is not in point, because in that case the indorser took the note into his own possession and undertook the collection himself. Nothing of the kind was done by the indorser of the note transferred to the plaintiff. As before stated, the defendant held the note only for safe-keeping, not for collection or presentation. Counsel also claim a liability on the part of the defendant as a guarantor, but the statements of the defendant prior to the indorsement of the note are irrelevant, as the parties reduced their agreement to writing — and this may be looked upon as the final consummation of their negotiation, and the exact expression. of their purpose. No fraud or deceit is charged in the indorsement, and hence no notice can be taken of the allegations denying the legal import of the contract expressed in that writing.
It is further urged that the note was indorsed to plaintiff in payment of an antecedent debt owed by defendant, and therefore it should have been treated as a conditional payment only. The answer to this is, the parties had the power to give and accept the note and mortgage as the absolute payment and extinguishment of the debt owed by defendant, if they had so chosen. The whole matter was completely within their control. The petition alleges the plaintiff “ accepted and agreed to receive the note so indorsed in payment of defendant’s said indebtedness to her.” The action is not brought upon the original debt. The claim is, that defendant is liable as guarantor or indorser. As the contract is one of indorsement and not of guaranty, defendant is not liable as a guarantor; as no demand was made other than by the institution of a suit, and no notice given, and as neither was waived, the defendant is not liable as an indorser. The petition failed to state sufficient facts to constitute any cause of action against defendant.
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
Horton, C. J.:
Passing over the questions of practice and the matters of minor importance presented for our determination, we reach the principal subject of controversy, which is, does the petition sustain the judgment? The judgment is based wholly upon the averments of the petition, and if the petition does not state facts sufficient to constitute a cause of action, the judgment must be reversed.
The facts, as shown by the petition, are briefly these: The land in controversy was, in 1863, public land, open to homestead settlement. In October, 1863, one Randall homesteaded it, and in 1868 he abandoned it. In June, 1869, the line of the railroad of the Atchison, Topeka & Santa Fé railroad company was definitely located opposite to the land, which is within four miles of such located line, and is an odd-numbered section. At the time of such definite location the land was abandoned, but the entry of Randall’s homestead was uncanceled. On November 3, 1869, a withdrawal of lands was made, within the limits of which withdrawal this land is situate. In May, 1874, this land was certified to the state of Kansas, and in February, 1875, patented by the state to the railroad company. In October, 1871, one Stainbrook had Randall’s entry canceled, and he himself homesteaded the land; but his entry was, on the application of the railroad company, afterward canceled, and was only reinstated under the act of Congress of April 21, 1876. Stainbrook obtained a patent and sold to Young, who brought this suit. The act of Congress is referred to in the petition. By this act there was granted to the state of Kansas, in trust for the Atchison, Topeka & Santa Fé railroad company, for the purpose of aiding in the construction of its railroad, every alternate section of land, designated by odd numbers, for ten sections in width on each side of said road, and it was therein provided that in case the United States have, when the lines of said road are definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of ‘the interior to cause to be selected for the purpose aforesaid, from the public lands of the United States, so much land in alternate sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the rights of preemption or homestead settlement have attached as aforesaid.
In the case of the- L. L. & G. Rld. Co. v. United States, 2 Otto, 741, the court, construing this act, says: “Itcreates .an immediate interest, and does not indicate a purpose to give in future. ‘There be and is hereby granted’ are words of absolute donation, and import a grant in prcesenti. This court has held that they can have no other meaning; and the land department, on this interpretation of them, has uniformly administered every previous similar grant. They -vest a present title in the state of Kansas, though a survey of lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The grant becomes certain, and by relation has 'the same effect upon the selected parcels as if it had specifically described them. In other words, the grant was a float until the line of the road should be definitely fixed.” There is, therefore, only one question to be considered. Upon the definite location of the line of the railroad of the Atchison, Topeka & Santa Eé railroad company, under the act of congress of March 3, 1863, did the grant attach to an odd-numbered section within ■ the ten-mile limit, upon which there was an abandoned but uncanceled homestead entry ? The line of the road was definitely located June 30, 1869. At that date there was no valid subsisting homestead entry upon the land. It is true Randall had made a homestead filing on October 21, 1863, but he had, in 1868, abandoned the land as a homestead, and as no subsequent entry or filing was made prior to the time the line of the road was definitely fixed, the land belonged to the railroad company, as no valid or bona fide homestead claim then existed or attached. The right of Randall having been by him forfeited voluntarily, his claim had lapsed, and did not exist. At the time of the location, there was no person who could hold or exercise any claim under the entry or filing of Randall, and therefore there was no subsisting claim capable of being perfected.
It is urged, however, that the claim of Randall, .although abandoned before the location of the road, yet, because it was then uncanceled, had sufficient force and validity to take the land from the railroad company. In brief, that a forfeited and abandoned homestead claim, simply uncanceled upon the books of the land office, has .the like effect to exclude land from the railroad grant as a subsisting valid homestead claim, capable of being perfected and of ripening into an absolute title. Such an interpretation of the act of 1863 is not sustained by the letter or spirit of the statute. The act does not speak of entries or filings as excepting lands from the operation of the grant, but of rights — the right of preemption and homestead. The spirit of the act was to protect preemption and homestead settlers, having valid and subsisting rights, at the time the grant became certain. It was not the intention of congress, by the exceptions in the act, to exclude lands from the grant upon fraudulent or forfeited entries or filings. In our opinion, the land having been abandoned as a homestead claim when the route of the road was fixed, no right of homestead settlement attached to the land, within the meaning of the act, at the date of the location of the road; and that at such location the grant attached to the land, notwithstanding the non-cancellation of the homestead filing of Randall. This conclusion leads us to decide that the land in controversy belonged to the railroad company on May 20,1874, when the deed was executed to N. S. Goss, and that the defendant, John Emslie, is the owner of the land, subject to the mort gage lien of his grantor. (A. T. & S. F. Rld. Co. v. Catlin, Copp’s Pub. Land Laws No. 411, p. 394; Western Pacific Rld. Co. v. Spratt, id. No. 428, p. 416; Sayre v. A. T. & S. F. Rld. Co., id. No. 414, p. 397; M. K. & T. Rld. Co. v. Block, id. No. 412, p. 395.)
The rulings of the land department have not been uniform in its interpretation of the act of 1863, or other similar grants. The decisions of the land department until the Boyd case, April 28,1871, (2 Lester’s Land Laws, 26,) were without exception, that upon the abandonment of an entry by a preemptor or a homesteader, if the land was within a grant made subsequent to the entry abandoned, the land fell to the grant, and this in accordance with the rules of law touching the devolution of estates. In the Boyd case, the rule of decision was there explained to be, in an opinion of the assistant attorney general, approved by the secretary, that, “ there having been a subsisting homestead on the land when the rights of the railroad company attached, on the subsequent abandonment of the homestead, the land reverted to the government, and not to the company; and therefore it was, at the date of Boyd’s application to file for it under the preemption laws, subject to such application, and his filing should have been allowed.” This decision was, in May, 1872, modified in an opinion of the assistant attorney general, made in the case of Starkweather v. A. T. & S. F. Rld. Co., and approved by the secretary. It states that “the homestead entry, in order to exclude the land filed on from the granted indemnity limits, should be a valid and bona fide homestead claim at the time the line of the road is definitely fixed. (A. T. & S. F. Rld. Co. v. Catlin, supra.) This was followed by a decision made in August, 1872, in the case of Railroad Co. v. Svenson and Thurston, as follows: “The act of 1857 exempts from the grant, in place of lands to which the right of preemption has attached at the date of the location of the road, and by the settled construction of this department the same rule applies to indemnity selections. I understand the phrase, 'right of preemption has attached,’ to mean not only a right of preemption which had at some previous time attached, but also such a right as was subsisting at the date of the location of the road.” In the Spratt case, supra, it was decided that “a preemption claim may be defined to be a right or interest subsisting under the preemption law, in some person, to a tract of public land, which by a further full compliance with the law may be ripened into a perfect title. It is essential in a bona fide preemption claim that it subsist in some person, and that it be capable of being perfected.” (M. K. & T. Rld. Co. v. Block, supra.
In the case of Sayre, supra, (1873,) it was decided, that a homestead entry, made before the definite location of the road, but which had been relinquished in writing before such definite location, although the entry was not canceled until after location, did not take the land from the railroad. In February, 1877, it was decided, in the ease of Thomas v. Railroad Co., that “lands situated within the limits of a road above indicated, covered by homestead entries at the date of the granting act, which entries are subsequently canceled, are excepted from the operations of the grant.” Under many of the decisions of the land department, prior to the passage of the act of congress of April 21, 1876, confirming preemption and homestead entries on public lands within the limits of railroad grants, it would seem that the entry of Stainbrook would have been held erroneous. Upon his appeal from the decision of the commissioner of the general land office, refusing to reinstate his homestead entry, the secretary of the interior reversed the decision of his subordinate, upon the ground that the application of reinstatement was made under the act of 1876. Upon this point the secretary says:
“ The tract in question was covered by a homestead entry, valid at its inception, and uncanceled at the time the grant became effective; hence, under the ruling established by my predecessor in the case of Chalkley Thomas, the same would have been excepted from the operation of said grant, and subject to appropriation by Stainbrook. His entry was canceled, however, under a ruling of the land department in force at the date of adjudication, and on that point must be consid ered res adjudícala, and if the application had been based upon that ground, it must have been rejected. The application, however, was made under the provisions of the act of April 21, 1876, and was based upon the ground of an. entry-allowed under the rulings of the land department, and has been adjudicated in accordance therewith. In the adjudication of the application under the act above mentioned, the rule established in the Thomas case, viz., that an unimpeached homestead entry will be considered valid until canceled, will be followed.”
The decisions of the land department, having been so various, changeable and conflicting relative to the interpretation of the land grants' of congress and the rights of preemption and homestead settlers thereunder, cannot greatly guide us in reaching the true construction of the statute; much less can we regard such decisions as conclusive, or the decision of the secretary of the interior, in this case; as res adjudícala,. Further, we think the reinstatement of the Stainbrook entry under the provisions of the act of 1876 was a mistake of law,- as the title of the railroad company vested in the particular tract on June 30,1869, by the route of the road being then definitely fixed. This vested title could not be disturbed by a subsequent act of congress. (A. T. & S. F. Rld. Co. v. Bobb, ante, p. 673; Minter v. Crommelin, 18 How. 87; Reichart v. Felps, 6 Wall. 160; Morton v. Nebraska, 21 Wall. 660-675; Marquez v. Frisbie, 101 U.S. 473.)
The judgment of the district court will be reversed,, and the case remanded for further proceedings in accordance with the views herein stated.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an original proceeding by case under ■■§ 525 of the civil code, in the nature of a quo warranto action, to determine the right to, the office of judge of the fifteenth •district from the second Monday in January, 1881 — the plaintiff claiming to be entitled thereto for a term of four years, by virtue of election at the general election of November, 1880, to succeed the defendant, who claims to hold •over until the second Monday in January, 1882. The case .agreed upon, contains all the facts upon which the controversy •depends. The parties have stated the facts in a very fair and •candid manner, and submitted the question promptly and with an evident disposition to have the controversy so determined as to cause the least embarrassment to the people of that district. In this, their conduct is worthy of all commendation, and shows that each possesses judicial qualifications which entitle him to the confidence of all. And while the question, if a new one, would not be of easy solution, yet we think prior rulings compel a decision in favor of the defendant.
The district was created by the legislature of 1873. Section 5, of chapter 76, laws of 1873, provided for the appointment by the governor of a judge who was “to hold his office until the second Monday of January, 1874, and until his successor is elected and qualified.” At the November election, 1873, the defendant was elected, and took possession of the office in January, 1874. In November, 1876, an election was held, when Judge Holt received 6,033 votes, being a majority of all the votes cast. A canvass was made by the .state board, the result declared, and a certificate of election issued to him, and he duly qualified. In November, 1877, .another election was held, with like result. At this election, .Judge Holt received only 3,528 votes, a smaller number of votes being cast than in 1876. A certificate of election was issued to him, and he again duly qualified.
Was the election in 1873 for a term of four- years? And if so, was Judge Holt estopped by taking part in the election of 1876 from claiming a full term under the election in 1877? The first question must be answered in the affirmative, and the second in the negative. The cases of The State, ex rel., v. Thoman, 10 Kas. 191, and Peters v. Board of State Canvassers, 17 Kas. 365, are decisive upon the first question. The provisional occupancy of the office was by the statute to extend to the January succeeding the creation of the district. Then the regular term commenced, and the constitution fixed the duration of that term beyond the power of legislative change. The contention of counsel, that under the phrase, “regular election,” as used in the judicial article of the constitution, no judicial election can come on the odd years, was decided adversely in the early case of The State, ex rel., v. Cobb, 2 Kas. 32. The opinion there expressed has been acted upon in the subsequent judicial history of this state — as in the case of the present chief justice — and ought not lightly to be disturbed. Nor do we see any element of estoppel in this case. There was a doubt as to whether November, 1876, or November, 1877, was the proper time for electing the judge. So Judge Holt’s name was before the people upon both occasions. No one was prejudiced by this, and no one estopped from asserting his full legal rights.
It follows from these considerations, that the election last November was without warrant of law, and void, and that Judge Holt continues in office until next January. His successor must be elected this fall.
Judgment will be entered in favor of the defendant.
All the Justices concurring. | [
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Hill, J.:
Everything in our world moves. This means the pollutants and poisons produced by a century of oil refining rarely stay in one place, safely secured in some snug unseen underground cell. Instead, such noxious compounds slowly migrate, leaching from one substratum to another. No neighbor is safe from this march of toxins. These‘moving subsurface fields of pollution, euphemistically called “plumes” by some, are dangerous for these feathers are toxic.
Fortunately, what is done by human effort can be, for the most part, undone by human effort. Messes can be cleaned up. Pollutants, even those buried deep below the surface, unseen but nonetheless lethal, can be diverted, contained, and reduced. When engaged in such efforts, questions arise. Is there pollution at this site? If so, what are the pollutants and how extensive is the danger? What can be done to protect the public? Finally, who is going to pay for these measures?
When a group of citizens, some businesses, and two local governments sued BP Corporation North America (BP), a company that owns a closed oil refinery in Neodesha, Kansas, they sought answers to those questions. After a 17-week jury trial, the jury determined that BP was not legally responsible to do more tiran what it was already doing.
In an interlocutory appeal of the trial court’s posttrial order granting a new trial to the Plaintiffs on the theory of strict liability, the Kansas Supreme Court reversed, holding the Plaintiffs were not entitled to a new trial on that theory. Upon the case’s return to the district court, the Plaintiffs moved for a new trial for many reasons. This appeal arises from the trial court’s denial of that motion.
Historical Background
When the Supreme Court reviewed this case, the court offered a detailed history, beginning in 1897, of the background of this growing environmental problem. We need not repeat all of those facts here. See City of Neodesha v. BP Corporation, 295 Kan. 298, 300-02, 287 P.3d 214 (2012) (Neodesha I).
In late 2002, certain city officials began questioning BP’s remediation efforts. Several officials and citizens visited Sugar Creek, Missouri, another site where BP had been remediating wastes from a former refineiy. It was at this time the City of Neodesha (the City) retained the services of the Technical Outreach Services for Communities (TOSC) group, an advisory group from Kansas State University, to review BP and Kansas Department of Health and Environment materials and educate the City about the issues.
In the summer of 2003, an advisory group composed of various representatives of Neodesha industry, citizenry, and governmental entities held meetings with BP and Department of Health and Environment officials concerning the environmental conditions around the old refineiy. The group unanimously approved BP’s proposed “Corrective Action Study” that created a detailed cleanup plan. About that same time, Neodesha’s mayor and city administrator requested that BP provide financial “reinvestments” within the City that did not directly tie into the ongoing remediation work. In light of the City’s request, BP formed a working group in an effort to negotiate a settlement. When subsequent negotiations failed, this lawsuit followed.
This Lawsuit Was Large in Scope.
In March 2004, the City filed this action on behalf of itself and all other real property owners in Neodesha. The trial court granted the Plaintiffs’ motion for class certification, defining the class as “[a]ll persons and entities who owned real property on or after March 19, 2004, which has been exposed to or otherwise suffered economic harm from the hazardous wastes released from the [BP] operations in and around Neodesha, Kansas.” Although the Plaintiffs’ petition was amended several times, the allegations against BP ultimately included claims of negligence, strict liability, nuisance, trespass, violation of K.S.A. 65-6203 (a statute creating legal liability for accidental release or discharge of materials detrimental to water or soil), unjust enrichment, fraudulent concealment/fraud by silence, breach of fiduciary duty, and breach of contract. The Plaintiffs also sought declaratory and injunctive relief.
The Plaintiffs based their claims on allegations that BP and its predecessors released petroleum, petroleum products, and hazardous substances into the soil and groundwater from the refinery which was located within the city. The Plaintiffs also claimed that BP had failed to adequately remediate the damages created by its contamination.
The trial court granted summary judgment to BP on some issues. It ruled that the Plaintiffs could not pursue an unjust enrichment claim and that the statute of repose barred any claims regarding what had occurred when the refinery was operational.
After a 17-week trial, the jury returned a verdict in favor of BP on all counts. The Plaintiffs alleged many trial errors and jury misconduct. They sought a new trial. The trial court denied these motions. But, the trial court did grant the Plaintiffs’ motion for judgment as a matter of law on their strict liability claim. Our Supreme Court later overturned this ruling in Neodesha I, 295 Kan. 298. The court ruled: “Strict liability claims in tort alleging water contamination require application of the abnormally dangerous activity tests set forth in Restatement (Second) of Torts §§ 519 and 520 (1976). Language to the contrary in Koger v. Ferrin, 23 Kan. App. 2d 47, 926 P.2d 680 (1996), is disapproved.” After the mandate from the Supreme Court arrived at the district court, the court entered judgment in favor of BP on the strict liability claim and affirmed its prior denials of the Plaintiffs’ other posttrial motions.
We see three categories of attack by the Plaintiffs on the trial court’s judgments. First, tire court made many errors in its legal rulings. Next, the court failed to fully investigate the Plaintiffs’ claims of jury misconduct. And finally, the court abused its discretion in many ways during and after the trial.
Naturally, after such a long trial, we must cope with a huge record on appeal and many allegations of error. There are 203 volumes in the record on appeal, with 70 volumes of transcripts of the jury trial and more than 1,000 exhibits. We will first examine the various legal rulings that the Plaintiffs complain about. Next, we will review the question of possible jury misconduct. Finally, we will look at the many discretionary rulings made by the trial court that are the grounds for the Plaintiffs’ request for a new trial. We cannot conclude that this was a perfect trial, but we see no good reason to conclude that the court should have granted a new trial.
The Plaintiffs Argue that BP Is Strictly Liable.
Citing the “abnormally dangerous activity” standard mentioned by the Supreme Court in Neodesha 1, the Plaintiffs contend tire undisputed facts establish that BP’s ongoing storage of hazardous and carcinogenic pollutants on its property is abnormally dangerous. Therefore, the Plaintiffs claim the trial court erred in not granting their motion for judgment as a matter of law on this theory.
Indeed, K.S.A. 2012 Supp. 60-250(a) allows a trial court to enter judgment as a matter of law against a party when the court finds there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. When ruling on such motions the trial court must resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom the ruling is sought. If reasonable minds could reach different verdicts based on the evidence, the motion must be denied. We, as an appellate court, must undertake a similar analysis when reviewing the ruling on such a motion. Neodesha I, 295 Kan. at 319.
In its response, BP argues that the law-of-the-case doctrine prevents our review of this issue. The law-of-the-case doctrine prevents relitigation of the same issues within successive stages of the same lawsuit. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1212, 308 P.3d 1238 (2013). This doctrine is similar to collateral estoppel. Collateral estoppel prevents parties from re-litigating an issue a court has decided on the merits in another action. Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 266, 261 P.3d 943 (2011). The law-of-the-case doctrine serves essentially the same function within a single case on issues a court has considered and decided. State v. West, 46 Kan. App. 2d 732, 735-36, 281 P.3d 529 (2011).
In order to rule on this matter, we must review some case history. Each of the Plaintiffs’ petitions and amended petitions contained a strict liability count. Essentially, the petitions alleged that BP allowed contamination from its property to escape and that because the treatment and storage of the contaminants were not matters of common usage and the activity was inappropriate for the location, it was an abnormally dangerous activity and thus BP was strictly liable. The final pretrial order contained a strict liability claim based on BP’s alleged pollution of ground water and for engaging in abnormally dangerous activities in the storage and treatment of the refinery contamination.
Prior to trial, BP argued that the 2-year statute of limitations and the 10-year statute of repose barred the Plaintiffs’ strict liability claims. BP argued that any claims based upon activities relating to plant operations which terminated in 1970 or for other events prior to March 19, 2002, were legally barred. BP also argued in the alternative that the disposal of wastes on the plant’s property was not an abnormally dangerous activity as defined by the Restatement (Second) of Torts §§ 519-520 as adopted in Kansas.
Just before trial, the trial court partially granted BP’s summary judgment motion on these issues. The court rejected BP’s assertions that the statute of repose and the statute of limitations completely barred the Plaintiffs’ strict liability claims. The court held that the statute of repose barred a portion of the Plaintiffs’ claims — • to the extent they related to discontinued refinery operations. But the court ruled that it was a question for the jury to decide whether BP was strictly liable for its management of the remediation project and that such liability would be “ ‘limited to the kind of harm the possibility of which makes the activity abnormally dangerous.’ [Citation omitted.].” The trial court also found that there were questions of fact on whether BP was estopped from asserting the 2-year statute of limitations with respect to its remediation efforts. Finally, the court held that a “strict liability” analysis was still applicable in cases involving contamination of water.
Accordingly, the trial court instructed the jury on the strict liability claim. In the general claims instruction, the court told the juiy that the Plaintiffs claimed BP was strictly liable “for [its] clean up of the refinery contamination.” The court gave a special instruction on strict liability that stated the Plaintiffs were required to prove BP’s remediation constituted an “abnormally dangerous activity” and listed the various factors used to consider whether an activity is abnormally dangerous.
It is important at this point to review what the Supreme Court stated on this issue in Neodesha I:
“[T]he general rule imposing strict liability in tort law for abnormally dangerous activities stated in the Restatement (Second) of Torts § 519 provides: (a) One who carries on an abnormally dangerous activity is subject to liability for harm to tire person, land, or chattels of another resulting from the activity, aldiough he or she has exercised the utmost care to prevent the harm; and (b) this strict liability is limited to die land of harm the possibility of which makes die activity abnormally dangerous.
“In determining whedier an activity may be determined abnormally dangerous, the Restatement (Second) of Torts § 520 sets forth the following factors: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood diat the harm tiiat results from it will be great; (c) inability to eliminate die risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” 295 Kan. at 318-19.
Of course, after hearing all of the evidence the jury returned a verdict finding BP was not hable to the Plaintiffs under a strict liability claim or any other claim.
With all of this in mind, the Plaintiffs are precluded from asserting they are entitled to judgment as a matter of law under an abnormally dangerous activity theory. The Plaintiffs never sought judgment as a matter of law in the district court under the abnormally dangerous activities standard. Both in their pre- and post-verdict motions their arguments were based solely on their perception that Kansas law created a per se liability for contamination of groundwater. Neither motion addressed the Restatement (Second) of Torts factors for abnormally dangerous activities. We cannot say the trial court erred in denying a motion under K.S.A. 2012 Supp. 60-250 on a theory that the Plaintiffs never asserted.
We must also point out that after the trial court received the mandate in Neodesha I, the Plaintiffs did not file a new motion based upon the abnormally dangerous standard. We can find nothing in the record that reveals the Plaintiffs filed any motion reiterating the alternative basis for strict liability in applying the trial evidence to the Restatement (Second) of Torts standards. It appears the Plaintiffs have improperly tried to raise this issue for the first time on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).
Finally, the Supreme Court reviewed the trial evidence and found that disputed facts existed with regard to the abnormally dangerous activity issue. As a result, the court found the jury’s verdict rejecting the strict liability theoiy should not be disturbed. Neodesha I, 295 Kan. at 325. Thus, the Supreme Court’s determination that the facts on the issue were disputed is the law of the case, and that determination cannot be challenged in this appeal. The Plaintiffs fail to cite any explicit testimony from the trial that established, as a matter of law, that the factors relating to the abnormally dangerous activity were proved as a matter of law.
We see no reason to reverse on this issue.
The Trial Court Did Not Need to Recall the Entire Jury.
The Plaintiffs contend that the trial court failed to properly investigate their claims of jury misconduct by refusing to recall the entire juiy panel. The Plaintiffs also claim the trial court abused its discretion in denying their motion for a new trial as a result of jury misconduct.
Indeed, under Supreme Court Rule 181 (2013 Kan. Ct. R. An-not. 277) a juror may be called to testify at a hearing on a posttrial motion only if the court — after a hearing to determine whether all or any jurors should be called — grants a motion to call the juror. And K.S.A. 2012 Supp. 60-259(a)(l)(C) grants tire trial court authority to order a new trial when the juiy verdict was given under the influence of passion or prejudice. In fact, jurors cannot be called for hearings on posttrial motions without an order of the court that is entered after a motion and a Rule 181 hearing. Williams v. Lawton,. 288 Kan. 768, Syl. ¶ 10, 207 P.3d 1027 (2009).
We review the trial court’s decision on a motion for a new trial for an abuse of discretion. Duncan v. West Wichita Family Physicians, 43 Kan. App. 2d 111, 114, 221 P.3d 630 (2010), rev. denied 291 Kan. 910 (2011). A judicial act constitutes an abuse of discretion if the action is: (1) arbitrary, fanciful, or unreasonable — i.e., if no reasonable person would take the view adopted by the trial court; (2) based on an error of law — i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact— i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Recalling jurors after their service has ended is not common and should be undertaken only for just cause. Williams, 288 Kan. at 788.
In 1915, tire United States Supreme Court explained the important policy considerations that made shielding juiy deliberations from public scrutiny a necessity.
“[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, tire result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.” McDonald v. Pless, 238 U.S. 264, 267-68, 35 S. Ct. 783, 59 L. Ed. 1300 (1915).
Later, the Supreme Court described the well-established common-law rule.
“By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United State flatly prohibited the admission of juror testimony to impeach a jury verdict. . . .
“Exceptions to the common-law rule were recognized only in situations in which an ‘extraneous influence’ [citation omitted] was alleged to have affected the jury.” Tanner a United States, 483 U.S. 107, 117, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987).
If jury misconduct causes a fundamental failure of the trial process that is substantially prejudicial to the complaining party, the trial court abuses its discretion if it fails to order a new trial. See Bell v. State, 46 Kan. App. 2d 488, 490-91, 263 P.3d 840 (2011), rev. denied 296 Kan. 1129 (2012).
When ruling on motions such as this, a court must follow two statutes, K.S.A. 60-441 and K.S.A. 60-444. The first, K.S.A. 60-441, bars the receipt of evidence that shows the effect of any statement, conduct, event, or condition upon the mind of a juror as an influence on his or her verdict or as it concerns the mental processes by which the verdict was determined. In other words jurors cannot be compelled to relate their thought processes. But the second, K.S.A. 60-444, permits a juror to testify about the conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict. This would permit evidence of any “extraneous influence,” as mentioned by the United States Supreme Court, to come to light. See Tanner, 483 U.S. at 117.
How This Issue Arose
These concerns came to the trial court’s attention when the Neo- desha city administrator filed an affidavit that stated he had been approached shortly after the trial by Juror No. 11 who disagreed with the verdict and asserted that some of the jurors denied others the ability to review the exhibits during deliberations. Another representative of the Plaintiffs met Juror No. 2 at a local store, and Juror No. 2 told the representative that the jury did not discuss or review the evidence during deliberations and the votes on one of the claims changed over the holiday break from a verdict for the Plaintiffs to a defense verdict.
Over BP’s objections, the trial judge interviewed Juror No. 11 in the presence of a court reporter. Juror No. 11 mostly confirmed the administrator’s affidavit and told the judge that she believed four jurors bullied others by wanting to constantly vote on the claims, “shoot[ing] down” anyone who expressed a different viewpoint, and rushing jurors who wished to look at exhibits during the discussions. Juror No. 11 told the judge she simply told them to shut up and leave her alone while she was looking at the exhibits. Juror No. 11 stated she was bolder than others and did what she thought was right. Juror No. 11 also reported that on the first 2 days of deliberations they had gone through the verdict form down to the nuisance claim; at that time, a poll of the jurors resulted in a majority voting to award tire Plaintiffs damages on that claim. When the jurors returned from the holiday bréale several days later, one or more jurors expressed uncertainty over that claim, and they decided to go back over the question. The vote then changed to a 10-2 verdict for BP. Still, Juror No. 11 indicated that the verdict affirmed at the end of the trial was correct and that 10 or more persons voted in favor of BP on every claim.
After all of this came to light, the trial judge conducted similar interviews with Jurors Nos. 1, 2, and 7. All three of those jurors told the judge they remembered being polled after the verdict was announced and agreed that 10 or more jurors agreed on tire verdicts. Although not every issue was unanimous, they still affirmed during the interviews that tire verdict read was a correct reflection of their votes.
These three jurors all agreed that every juror had the opportunity to look at the exhibits, although other jurors did not want them to take too long and stall the process. The three jurors agreed that several jurors had agreed in favor of the Plaintiffs on the nuisance or trespass issue, but some of the jurors’ views changed after the holiday break. After the break, the vote was 10 or more again voting for a defense verdict on that claim. All three agreed the jurors discussed the evidence and any juror who wanted to say something was allowed to do so. Further, the jury panel discussed the instructions and the verdict form during this process, even though they did not always agree. No one in the jury room used abusive language or personally attacked another juror. None of these jurors had any reason to believe other jurors ignored the judge’s admonishment not to discuss the issues over the bréale. No matters outside the evidence were discussed.
Finally, none of these jurors felt coerced, although Juror No. 1 asserted that whatever viewpoint she raised, the majority always seemed to reject it and she believed other jurors were veiy strong in their viewpoint and could have overpowered weaker jurors. Some of the jurors made negative remarks about the Plaintiffs’ counsel, seeing him as a bully.
The trial court provided copies of die transcripts from the juror interviews to counsel for both sides, and counsel had the opportunity to review those transcripts before the scheduled hearings on the Plaintiffs’ posttrial motions when this issue was argued.
On the day before the hearing on tire Plaintiffs’ posttrial motion, die Plaintiffs filed a motion seeking to witirdraw their motion to recall the entire jury. The Plaintiffs gave no reason why they were withdrawing the motion. At the hearing, the Plaintiffs’ counsel was asked if this was a waiver of the entire issue. In response he stated:
“Your Honor, tire pleading is as tire pleading states, we are withdrawing our 181 motion. We recognize tire Court’s admonition in which the Court indicated it would not grant a motion on — based on the affidavits and things that had gone before without a pursuit of a 181 motion. So we were acknowledging that section II-E of our amended new trial motion goes to that issue. Just acknowledging for the benefit of the Court and benefit of the other side that we therefore would not burden the Court with any argument on that issue, the Court having already indicated its intent. But drat is tire extent of what we intended to do by that sentence.”
Accordingly, the Plaintiffs did not argue jury misconduct during that hearing. After the hearing, even though the Plaintiffs had withdrawn their motion to recall the jury, the trial court addressed that issue in its order. The court denied any relief, finding the Plaintiffs did not carry their burden of proving just cause to recall the entire jury in light of tire jurors’ affidavits presented by both parties. Although the court noted that it did not consider the transcripts of the ex parte interviews with the jurors, the judge indicated he would have reached the same conclusion even if he had considered the interviews. The court also separately addressed and rejected the concerns of juror misconduct in connection with Juror No. 9.
To us, the Plaintiffs contend the trial court erred in failing to carry out its duty to fairly investigate allegations of jury misconduct. They base their contention on three points: (1) Juror No. 9 and perhaps others prejudged the case; (2) the jury suddenly changed directions after the holiday recess; and (3) dissenting jurors were bullied into submission to a defense verdict.
Our review of the record does not support any of tire Plaintiffs’ assertions. We note that there are no allegations of any outside influence on this jury. All of these complaints are about how this jury conducted its deliberations and not some outside interference or extraneous matter that would influence their verdict.
The trial court did conduct ex parte interviews with four of the jurors and later accepted juror affidavits from both parties. Significantly, the Plaintiffs withdrew their motion to recall the jury on the eve of the ai'guments on posttrial motions. We can only view this as a deliberate trial strategy chosen by counsel after consulting with the Plaintiffs. Even though the court addressed the Rule 181 motion in its ruling, the Plaintiffs cannot complain the trial court erred in failing to recall the jury when they withdrew that request. A party may not invite error and then complain of that error on appeal. Thoroughbred Assocs., 297 Kan. at 1204. For this reason, we reject this point on appeal.
Besides, the trial court here found that there was simply not enough evidence to conclude the Defendants’ verdict was impeached by these allegations. A panel of this court noted that, especially in long trials, jurors will continue to act as human beings:
“ ‘[T]he jury being what it is, jurors will act like human beings in tire jury room, and will indulge in bluster and hyperbole and animated irrelevancies. Not only does the law presume a juror respects the obligation of his oath and votes his convictions, but generally he in fact does so; and due allowance must be made for some exuberance in jury-room discussion or the court must keep on granting new trials in important cases until a perfectly spiritless jury can be secured.’ [Citation omitted.]” Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 412, 6 P.3d 871, rev. denied 268 Kan. 885 (1999).
Further on this point, “[a]n attempt to persuade a person to vote differently than he or she feels may seem somewhat coercive, but an attempt to convince a minority member of the jury of the error of a position, while perhaps uncomfortable for the minority member, does not constitute juror misconduct.” State v. Jones, 29 Kan. App. 2d 936, 940, 34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002).
Based on this record and the trial judge’s firsthand experience during the trial and its aftermath, there is no clear evidence for us to conclude that there was any misconduct by the jurors that was prejudicial to the Plaintiffs. We see no reason to order a new trial based on jury misconduct. We see no fundamental failure in the trial based on jury misconduct. There is no substantial prejudice here to the Plaintiffs’ right to a fair trial.
We Turn to Claims of Jury Instruction Errors.
The Plaintiffs pursued eight different legal theories on behalf of a broad assortment of subclasses in this trial. The Supreme Court in Neodesha I commented that the jury instructions in this case were somewhat inconsistent and confusing. We agree. Overall, most of the objections concerning the instructions that the Plaintiffs now raise in their brief were not lodged at trial. This means, ultimately, we must review this issue under a clearly erroneous standard. After careful consideration we are not persuaded that a new trial is called for based upon errors in the instructions.
Caselaw instructs that for juiy instruction issues, the standards of review on appeal differ as our analysis progresses:
• First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
• next, the court should use an unlimited review to determine whether the instruction was legally appropriate;
• then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the requesting party, that would have supported the instruction; and
• finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test set forth in Ward, 292 Kan. at 550; Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013).
Importantly, a party must object to the trial court’s giving of or failing to give a juiy instruction before the jury retires. K.S.A. 2012 Supp. 60-251(c). The party must state clearly what, matter is objectionable and give the legal grounds for the objection. Otherwise, a court may only consider an error in the giving or tire failure to give tire instruction if the instruction is clearly erroneous and the error affects substantial rights. K.S.A. 2012 Supp. 60-251(d)(2).
An appellate court will use a two-step process in determining whether the challenged jury instruction is clearly erroneous. First, the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict had tire instruction error not occurred. The party claiming error in the instruction has the burden to prove the degree of prejudice necessary for reversal. See State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Therefore, because the Plaintiffs allege instruction error, it is their burden to prove the degree ofprejudice necessary for reversal in this case. They have failed to do so.
We will now review the general claims instruction that the Plaintiffs complain about and tiren move on to the instructions covering negligence, strict liability, public and private nuisance, trespass, and claims made under K.S.A. 65-6203.
Instruction No. 4 — the claims instruction
Primarily, the Plaintiffs complain that Instruction No. 4, the general claims instruction, did not use the exact language the Plaintiffs used in their claims statement found in the final pretrial order. The Plaintiffs renewed this objection concerning other theories of recovery as well.
Instruction No. 4 stated in part: “Defendants were negligent by failing to use the necessary care in the clean up of tire refinery contamination ....” In their brief, the Plaintiffs argue that because the instruction did not contain the word “investigate” as the pretrial order did, the court failed to fully describe their claim to the jury, and that is reversible error.
Although the Plaintiffs proposed a more detailed claims instruction during the instruction conference, their counsel only objected to the trial court’s use of the term “remediation” rather than “clean up” in Instruction No. 4. In response, at the Plaintiffs’ request, the court changed the word “remediation” to “clean up” throughout Instruction No. 4, including the portion of the contention instruction relating to negligence. The Plaintiffs made no request to the court to include the phrase “investigate and clean up.”
In fact, the Plaintiffs specifically objected to BP’s arguments that “clean up” was too vague, inconsistent with the pretrial order, and raised concerns relating to the trial court’s ruling on the statute of repose. During this argument, the Plaintiffs emphasized that the heart of the case was not remediation, but BP’s failure to clean up. Again, counsel did not mention “investigate.” In short, Instruction No. 4 complied with all requests the Plaintiffs made in the instruction conference. We see no legal significance to the Plaintiffs’ complaint about failing to include the term investigate in the general claims instruction.
We will deal with the additional complaints about Instruction No. 4 as we proceed with the specific instructions dealing with the specific claims.
Instruction No. 8 — negligence
In this instruction, the trial court began: “In performing professional services, the party undertaking to remediate has a duty to use that degree of care and skill which would be used by a reasonably competent professional providing similar services in the same community and acting in similar circumstances.” Clearly, the court used the phrase “undertaking to remediate” instead of the Plaintiffs’ proposed instruction that used “undertaking to investigate and remediate.”
During the instruction conference, the Plaintiffs objected to the use of the word “remediate” but made no mention of the word “investigate.” In addressing the use of the term “remediate,” the trial court acknowledged that the Plaintiffs could argue about the inadequacy of the remediation efforts and that was proper argument.
With this record, we hold that the Plaintiffs failed to adequately object to these instructions. We therefore must review them using a clearly erroneous standard of review, later.
Instruction No. 9 — strict liability
The Plaintiffs make a similar complaint that the pertinent section of Instruction No. 4 failed to adequately define their strict liability claim because it did not use the language used in the final pretrial order. Instruction No. 4 advised the jury: “The Plaintiff Class claims that it sustained damages stemming from Defendants’ failure to clean up the refineiy contamination in Neodesha. Specifically, Plaintiff Class claims: ... (2) Defendants are strictly liable to the Plaintiff Class for their clean up of the refineiy contamination.”
The Plaintiffs’ proposed instruction read: “Defendants are strictly liable for having polluted groundwater as a result of their storage and treatment of the BP contamination.” (Emphasis added.)
Again, during the instruction conference, the Plaintiffs’ counsel stated: “Defendants are strictly liable to plaintiffs’ class for their failure to clean up the refinery contamination.” There was no mention of storage at this point. The judge drafted the instruction as requested. It seems to us, therefore, that the doctrine of invited error bars the Plaintiffs from challenging this aspect of Instruction No. 4. See Fleetwood Folding Trailers v. Coleman Co., 38 Kan. App. 2d 30, 47, 161 P.3d 786 (2007).
We move on to the subject instruction, Instruction No. 9. In their brief, the Plaintiffs argue that BP was strictly liable for choosing not to look for additional contamination or address the contamination and, therefore, Instruction No. 9 was also erroneous. That instruction stated, in part:
“A person who engages in an abnormally dangerous activity is strictly liable for harm to the property of another resulting from the activity, although that person exercised the utmost care to prevent the harm. To establish liability based upon strict liability, the Plaintiff Class must prove Defendants’ remediation constituted an ‘abnormally dangerous activity’ as it relates to the Class.”
When discussing Instruction No. 9 during the instruction conference, the Plaintiffs only objected to the use of the term “remediation” rather than “clean-up.” The Plaintiffs expressed concern that the term “remediate” did not include BP’s failure to find the rest of the pollution. The trial court overruled this objection. The Plaintiffs agreed to a change on the second page of the instruction when the court added language stating that “the Plaintiff Class must prove that tire remediation created a risk that was so unusual. . . .” (Emphasis added.)
Finally, the Plaintiffs complain that the instruction was confusing because it contained both the factors from the Restatement (Second) of Torts as well as a strict liability standard. But we must point out that the Plaintiffs requested language stating that “Kansas law provides that this strict liability applies to conduct involving contamination of water resources because of the importance of clean, safe water.” BP objected to the inclusion of the strict liability language, but the Plaintiffs did not. That language was taken from their proposed instructions. While they now claim it was confusing to place it in the instruction containing the Restatement’s abnormally dangerous activities language, they made no such objection during tire instruction conference. Thus, while the Supreme Court ultimately rejected this language from Roger concerning strict liability in Neodesha I, 295 Kan. 298, Syl. ¶ 8, 287 P.2d 214 (2012), it was included at the Plaintiffs’ specific request and, therefore, the invited error doctrine prohibits the Plaintiffs from complaining about this portion of the instruction. See Fleetwood Folding Trailers, 38 Kan. App. 2d at 47.
These complaints boil down to this: The Plaintiffs’ overall objection to Instruction No. 9 must be limited to whether the trial court’s failure to include the term “investigate” was reversible error. The Plaintiffs fail to explain how a “failure to investigate” constitutes an abnormally dangerous activity for which BP would be held strictly liable.
The statement given later in the same instruction — that the Plaintiffs must prove the remediation created a risk that was so unusual as to justify the imposition of strict liability for the harm that resulted from it — would be sufficient to address this concern. We hold this was not reversible error.
Instructions Nos. 10 and 11 — nuisance
The Plaintiffs pursued public and private nuisance claims against BP. Instruction No. 10 dealt with private nuisance while No. 11 covered public nuisance.
Once again, they challenge Instruction No. 4’s failure to mirror the exact language of the pretrial order. We are puzzled by this argument because the language used in Instruction No. 4 in describing this claim stated: “Defendants’ spread of the contamination constitutes a nuisance.” According to our reading of the record, the trial court changed the instruction at the Plaintiffs’ request. Since the instruction mirrored the language requested during the instruction conference, any error in this language is invited. See Fleetwood Folding Trailers, 38 Kan. App. 2d at 47.
Moving on, we note that the Plaintiffs object to the language of Instruction No. 10 because the trial court used the term “remediation.” The Instruction stated: “To establish liability based upon private nuisance, the Plaintiff Class must establish that Defendants’ remediation substantially and unreasonably interfered with the use and enjoyment of the property of each and every member of the Plaintiff Class ... .”
This language differed from the language in Instruction No. 4. The Plaintiffs argue that using the term “remediation,” prevented tire jury from considering the remediation BP failed to undertake. Again, the Plaintiffs did not object to Instruction No. 10 other than seeking and receiving the clarification in the first paragraph that it was a “private” nuisance. In fact, other than arguing about clarification of the time qualification on the operation of the former refinery on the second page of the proposed instruction, the Plaintiffs had no other objections.
The instruction also advised the jury that the Plaintiffs must prove that “Defendants acted negligently in creating or maintaining the nuisance.” A failure to remediate when there is a duly to remediate is negligence and is covered by this part of the instruction. We do not see this as a fatal flaw in Instruction No. 10.
Moving on, the Plaintiffs agree that Instruction No. 11, dealing with public nuisance, sets the correct legal standard. But, on appeal, they claim it is tainted by the error made in the claims instruction, Instruction No 4. The Plaintiffs did not object to Instruction No. 11 except when the trial court added language that the nuisance could not be based on the operation of the former refinery. Because the Plaintiffs’ only objection to Instruction No. 4 resulted in the change they requested, we do not see how they can avoid the invited error doctrine on this instruction.
Instruction No. 12 — trespass
The Plaintiffs’ objections to the trespass instruction are consistent with their earlier complaints. Again, the Plaintiffs complain that Instruction No. 4 did not mirror the exact language set forth in the pretrial order. Here, however, the Plaintiffs assert that the trial court inadvertently directed a verdict for BP.
Once again, the Plaintiffs did not object to the trespass section of Instruction No. 4 during the instruction conference. In addition, the instruction stated that the class claimed “it sustained damages stemming from Defendants’ failure to clean up the refinery contamination in Neodesha. Specifically, the Plaintiff Class claims ... (4) Defendants trespassed onto the Plaintiff Class’ property.” With no objection made, we will only review for clear error.
Instruction No. 12 told the jury: “A person who causes foreign matter to intrude upon the land of another is liable for trespass when that person acts knowing that such acts will, to a substantial certainty, result in foreign matter entering the land of another.”
At one point in their brief, the Plaintiffs argue that this instruction could be confusing to the juiy because employees from BP and its contractors frequently visited these affected properties. We are not persuaded that a rational juror would consider a human being as “foreign matter.”
Additionally, the Plaintiffs did not object to Instruction No. 12 except for the time limitation referring to “operation of the former refinery.” Therefore, on this point, based on the lack of contemporaneous objection, any error in the instruction must rise to tire level of clear error before it can be reversible. We will address clear error later.
Instruction No. 13 — KS.A. 65-6203 claims
After repeating their challenge to Instruction No. 4’s description of their claim as well as challenging Instruction No. 13, tire Plaintiffs argue that the instructions, as given, effectively directed a verdict for BP on this claim. The statute in question, K.S.A. 65-6203, is a public health law making anyone who accidentally releases or discharges materials detrimental to the quality of the water or soil in this state responsible to the owner of the affected property for compensatory damages.
The pertinent portion of Instruction No. 4 stated: “Defendants’ clean up violated K.S.A. 65-6203 by causing the release and discharge of the refinery contamination onto the Plaintiffs’ property.” The trial court rewrote that section of Instruction No. 4 based on the Plaintiffs’ requests. The Plaintiffs disputed the use of the term “clean-up” and requested it be changed to “spread of contamination,” but the court found that to be nonsensical. The court did agree to change the instruction to “Defendants’ failure to clean up violated 65-6203.” Evidently, that change did not make it into the final draft, which still read that BP’s cleanup violated the statute.
Moving on, the Plaintiffs make two challenges to Instruction No. 13. First, the Plaintiffs dispute the use of the term “remediation” in the introductory paragraph. That section states: “To establish liability under K.S.A. 65-6203 relating to discharge of materials from the remediation, the Plaintiff Class must prove . . . .”
The Plaintiffs also object to subparagraph (4) that states the Plaintiffs must show that any release occurred without contribution to the contamination by the owner or owner-permitted occupant. The Plaintiffs did not object to this portion of the instruction during the instruction conference. The Plaintiffs now argue that this sub-paragraph of the instruction introduces a defense that BP never raised. We do not agree. In the pretrial order, BP identified as a factual issue “[wjhat contamination is attributable to Defendants.” There was oft-repeated evidence during the trial, even from the Plaintiffs’ experts, that there were plumes of contaminants from other sources, including businesses in the industrial park and underground storage tanks at various fueling locations (including the City’s fire station), that had to be accounted for.
We do not see this to be reversible error.
Overall impact of Instruction No. 4
From our review of the record, we find that the only instruction objection made and ultimately overruled by the trial court was the Plaintiffs’ request that the reference in Instruction No. 4 to the K.S.A. 65-6203 claim should read: “Defendants’ failure to clean up violated 65-6203.. . .” The court originally agreed to this but failed to include the revision in the instruction read to the juiy. The next morning, the court found that the unedited version of that part of Instruction No. 4 — “Defendants’ clean up violated K.S.A. 65-6203 by causing the release and discharge of the refineiy contamination . . . .” — was correct. This requested language was legally appropriate in explaining the Plaintiffs’ claim against BP, and there was sufficient evidence to present the K.S.A. 65-6203 claim before the jury. So we see, no error in this point.
We are mindful that instructions in any particular action are to be considered.together, read as a whole, and where they fairly instruct tire jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000).
Even though subparagraph (5) of Instruction No. 4 lacks the requested language of “failure to clean up,” the introductory paragraph to the Plaintiffs’ claims section specifically states that tire Plaintiffs claimed damages “stemming from Defendants’ failure to clean up the refinery contamination in Neodesha.” Similarly, Instruction No. 13 correctly states the law under K.S.A. 65-6203 that there was an accidental release of materials detrimental to soil or water, that BP was responsible, and that the Plaintiffs owned property where the release or discharge occurred. In addition, the court specifically added the italicized language in Instruction No. 23, the damage instruction, which stated: “You may only consider awarding damages that arise from Defendants’ remediation or alleged failure to remediate. You may not award the Plaintiff Class damages from any activity of Defendants related to the operation of the Refinery.” (Emphasis added.)
We see no clear error.
The Plaintiffs did not object to many of these instructions. The trial court is required to properly instruct the jury on a party’s theory of the case. Errors regarding juiy instructions will not require reversal unless they result in prejudice to the appealing party. Instructions in any particular case are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and die jury could not reasonably have been misled by them, the instructions will be approved on appeal. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 81, 274 P.3d 609 (2012).
With all of that in mind, and based upon the instructions read as a whole, it appears that even though the instructions were complex and lengthy, they advised the jury of the nature of the Plaintiffs’ claims and adequately and correctly explained the applicable legal principles for the jury to apply to the evidence. Even though these were difficult instructions to read and understand, the Plaintiffs have not persuaded us that there was clear error in reading these instructions as a whole that would cause us to reverse and order a new trial. We cannot conclude that these instructions misled this jury. Nor are we firmly convinced that the jury would have returned a different verdict had the instructions not been given. See Smyser, 297 Kan. at 204.
We will now review a series of pretrial and trial discretionary rulings that the Plaintiffs contend are erroneous.
Ruling that a Lawyer’s Memorandum Was Privileged
During discovery, a document was inadvertently produced that the parties now refer to as “The Book of Common Prayer” for some reason that escapes us. This document does not appear in the record on appeal. But, based on the recorded attorneys’ discussions, it is clear that the document was a memo issued on May 5, 2003, and written by Evan Westerfield. Westerfield was an outside counsel for BP. The document was sent to several BP and to RETEC Group employees involved in the Neodesha project. RETEC Group, Inc. (RETEC) was BP’s remediation contractor on this project. Evidently, this document was created after it appeared that the City was consideiing litigation. It included a 12-page summary of prior positions and statements made by BP regarding issues affecting its environmental remediation efforts in Neodesha. The summaries were accompanied by requests from Westerfield for additional information from the employees.
In Westerfield’s affidavit, he averred the document was drafted in order to have a consolidated document for purposes of “issues to be addressed by tire community relations team” and “legal advice and [] impressions concerning which of these issues would be the focus of the pending litigation.” This was done so that additional investigation could be undertaken.
The trial court entered a detailed order concerning this document. It found the exhibit was protected by both the attorney-client and work-product privilege. The Plaintiffs were ordered to deliver all copies of the document in their possession to the court to be placed under seal. BP was ordered to produce to the Plaintiffs copies of the document with redactions of the attorney’s comments, his mental impressions, and his work product. The court then ruled that the Plaintiffs could question witnesses about factual information in the document, but they could not inquire about tire content of any conversations with counsel concerning the document.
The Plaintiffs’ failure to attach a copy of tire document that was proffered and made part of the record denies this court an opportunity to review a challenge to its exclusion from use at the trial. See K.S.A. 60-405; Manhattan Ice, 294 Kan. at 74. As the blind men in the parable could not adequately describe an elephant, we cannot judge whether the trial court erred in ordering the document returned to BP. Nor can we decide if the redacted copy was inadequate for discovery. It is the Plaintiffs’ burden, as appellant, to designate the record to establish any claim of error, and without such record, this court will not presume error. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013).
But this issue does not end with one document. The Plaintiffs filed a motion seeking disclosure of all documents which BP claimed were attorney-client communications. They alleged that the crime-fraud exception of K.S.A. 60-426(b)(l) applied. Obviously, application of that rule would abrogate the privilege against disclosure.
This motion was accompanied by three notebooks of exhibits that included numerous press releases and nonprivileged documents, as well as BP’s privilege log dated March 2005 and supplemental privilege log dated December 2006. The log lists over 1,100 documents from 1933 to 2003 for which BP was claiming attorney-client and/or work-product privilege. The Plaintiffs have not identified a single document that they believed substantiated their allegation that the crime-fraud exception applied.
In response to all of this, tire trial court gave a detailed ruling in May 2007, finding that the Plaintiffs had failed to identify any specific misrepresentation to support their claim that the crime-fraud exception applied.
The Plaintiffs renewed this motion after discovery closed. Once again, after reviewing all of the evidence, the trial court concluded that although the Plaintiffs made a prima facie case of fraud, they failed to establish a connection between the allegedly fraudulent acts and the attorney-client communications. The court denied that motion. In turn, the Plaintiffs’ posttrial motion for a new trial on the same grounds was also denied for the same reasons.
It appears that the Plaintiffs’ theory was that BP was deliberately or recklessly misrepresenting the nature and extent of the contamination from the refineiy through a long-term public relations campaign in which counsel participated in order to avoid or delay a lawsuit and to avoid cleaning up the contamination.
Even though the Plaintiffs in their brief have failed to summarize the types of documents included in BP’s privilege log, we have done so:
• Documents regarding the shutdown of the refineiy, cleanup issues immediately upon closure, and the potential transfer or possible leases relating to the refineiy property, all dated shortly before or after 1970.
• Documents between other attorneys and Amoco/BP during the 1980s and 1990s about remediation.
• Documents from in-house counsel, Janice McLain, to agents regarding semiannual groundwater monitoring and other remedial measures beginning in 1999, deed restrictions, other activities, and presuit settlement negotiations.
• Documents involving attorney Westerfield, including memos dating from April 2000 to September 2003 discussing tire quitclaim deed to the City; access agreements and water wells; Agency for Toxic Substances and Disease Registry reports and meetings; responses to letters to the editor; deed restrictions for refinery property; easement agreements; zoning issues; establishing and operating a property protection program; indoor testing consent agreement; creation of an advisory board; a summary of Kansas regulations and proposals for amendments to regulations; remediation activities; contamination issues at New Beginnings; groundwater well surveys, city sewer issues; proposed water well ordinance; potential Neodesha litigation; research of the lawfirm regarding pursuing potential litigation; prelitigation negotiations with the City; post-lawsuit issues; and invoices for services rendered.
• Additional Westerfield documents relating to legal advice regarding a public meeting flyer, public meeting powerpoint documents, discussions of NEAT meeting, community update letter, Q & A documents, draft press releases, community relations schedule, advisory board retreat, and public affairs plans.
• Documents to other outside counsel during settlement negotiations and actual litigation.
We also note that the Plaintiffs did not ask the trial court to conduct an in-camera inspection of BP’s documents. The Plaintiffs failed to identify for the trial court- — or this court — any specific document or group of documents to support their claims. A trial court may conduct an in-camera inspection of alleged confidential communications to determine whether the attorney-client privilege applies. Freebird, Inc. v. Cimarex Energy Co., 46 Kan. App. 2d 631, 638, 264 P.3d 500 (2011). Importantly, the Plaintiffs have not shown that the trial judge’s decision that they failed to establish a connection between the multitude of privileged documents and the alleged misrepresentations made by BP was improper. Based on all of this, we do not find that the trial court’s ruling upon this issue was an abuse of discretion. This was not a good reason to order a new trial in this case.
We Review the Claims of Trial Errors.
The Plaintiffs claim 16 trial errors. They argue that each error is sufficient reason to grant a new trial. But, taken all together, the Plaintiffs allege these errors show that they did not receive a fair trial. Because of the large number of claimed errors, we have grouped the issues into four general categories. We begin with pretrial matters and then move to the trial court’s assorted eviden-tiary rulings. Following that, we examine the Plaintiffs’ complaints about how the court conducted the trial. At the end, we review the claim of error concerning the verdict.
Kansas Department of Health and Environment and federal agency reports
In this issue, the Plaintiffs contend the trial court improperly admitted evidence from the Kansas Department of Health and Environment and the Agency for Toxic Substances and Disease Registry, an agency within the United States Department of Health and Human Services. We refer to this group as the Agency. The Plaintiffs now contend that the reports from these bodies were opinion evidence, lacking in foundation, and were improperly admitted. The Plaintiffs claimed they could not cross-examine any of the opinions contained within those reports. The Plaintiffs also claim all of this information was impermissible hearsay. The Plaintiffs never objected to use of this evidence at trial.
We note that prior to trial the Plaintiffs filed motions in limine seeking to exclude the reports from both the Department of Health and the Agency. The trial court denied the motion in limine and stated it would rule on objections to hearsay at the trial.
In their brief, the Plaintiffs cite different points during the trial where they claim that these agency reports were improperly admitted. Our review of the record reveals there were no objections at any point during the cited testimony or closing arguments. When the trial court denies a motion in limine and the subject evidence is introduced later at trial, the moving party must object at trial to the admission of the evidence in order to preserve the issue for appeal. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Interestingly, the Plaintiffs presented to the jury the video deposition of a Department of Health employee, Kurt Limesand. In addition, Limesand and another Health Department geologist, Pamela Chaffee, testified personally in court. Both of tire geologists were involved in the regulatory approval of the Neodesha remediation efforts.
The record reveals that a group of citizens in the Neodesha community had asked the Agency to evaluate the contamination. Then they asked TOSC, the group from Kansas State University dealing with hazardous substance issues, to act as an intermediary between tire City and the Agency. The Agency released health consultation documents for public comment in 2003. City officials reviewed all of these documents. Agency representatives came to Neodesha several times and released health consultation reports discussing potential lead contamination at a daycare facility in 2006.
The Plaintiffs’ toxicology expert, Dr. James Dahlgren, testified that he considered the Agency documents and the Department of Health documents while forming his opinion regarding tire contamination risks even though he disagreed with the reports’ conclusions. Dr. Dahlgren admitted he relied on the Agency’s toxicological profile regarding arsenic and air testing results while forming his opinion. He found that report useful to tire extent it summarized relevant literature and contained reference sources, although he again questioned the reliability of some of the final reports in light of the report of the Plaintiffs’ other expert, Dr. Daniel Stephens.
Dr. Stephens, a hydrologist, relied upon and discussed the standards and reports made by the Department of Health. Dr. Stephens also referred to the Corrective Action Study approved by the Department. The Plaintiffs elicited some of this testimony and then did not object when BP referred to it. The Plaintiffs did object when BP tried to discuss the Department report involving a contamination plume from Airosol, a local company. The trial court admitted that evidence to impeach Dr. Stephens’ testimony about which contaminants were attributable to BP and which to Airosol. Dr. Stephens also agreed that the Agency reports provided information on health toxicology.
In their brief, the Plaintiffs focus only on the 2007 Agency report on updated soil testing results. This was a follow-up report on Agency data that was previously presented to the City. The report was sent to City officials but the City administrator and City commissioner did not recall reviewing the report because it was delivered when the City was in the middle of a flood. Later, the City commissioner testified he did not review the document because it relied on BP for all of its data and he and the City administrator did not trust it. Finally, the Plaintiffs objected to the Agency document for lack of foundation and hearsay. We note that the Plaintiffs offered an exhibit during its redirect examination of Dr. Dahl-gren that was a copy of the 2007 Agency report, and it was admitted into evidence.
From our view, we cannot see that these admissions were erroneous. In light of all of the experts’ consideration of tírese many documents in the formulation of their opinions and the extensive dealings the City had with TOSC and the Agency for independent testing, the reports do not appear to be improperly admitted.
In conclusion, we must point out that K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge “ ‘unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.’ ” State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012). Simply put, the Plaintiffs did not object to this evidence, and therefore we will not review the matter any further.
Admission of the “wish lists”
The Plaintiffs claim that the trial court erred when it admitted documents covering prelawsuit settlement negotiations between tire Plaintiffs and BP. The City and BP engaged in setdement negotiations beginning in July 2003. The Plaintiffs now complain that the court improperly compelled them to produce internal documents relating to those settlement negotiations which were then improperly used by BP at trial. Knowledge of the circumstances is important to understand this claim.
The facts surrounding these settlement negotiations are muddy at best. The record does reflect that in September 2002, BP asked permission to discharge fluids through the City’s sewer system. The City agreed if BP would pay $620,000 to help upgrade the system. When BP declined, it raised a “red flag” for City Commissioner J.D. Cox. After that, some City officials visited Sugar Creek, Missouri, in November 2002 and became aware of the large amount of money BP had invested in that community in addition to that spent on remediating the contamination; Then, in November and December 2002, emails were exchanged between various City officials discussing “wish lists” to present to BP asking for similar community reinvestment projects for Neodesha. At this point, the City had retained an attorney, Jeff Kennedy, to obtain some additional education regarding the issues concerning other environmental cleanup sites for which BP was responsible. There is an affidavit of City Commissioner Casey Lair in the record that stated the City was considering litigation beginning in June 2003.
While this was going on, an advisory board composed of a variety of citizens and representatives of the City, the county, the Department of Health, and BP came together to study the situation. BP and tire Department of Health suggested tire formation of this advisory board to provide a community review of BP’s proposed remediation plan. This plan was called the Corrective Action Study. This group started its review in April 2003 and concluded sometime in August or September 2003. The advisory board unanimously approved the Corrective Action Study. Ultimately, the Department of Health approved the study.
Meanwhile, some City officials approached BP about City projects at some point in mid-2003. In July 2003, in response to the City’s requests, BP’s representative suggested another group be formed that included various representatives of different constituencies to study tírese subjects. After discussions between the working group and BP stalled, the Plaintiffs filed this lawsuit.
The Plaintiffs asked for a protective order barring the discovery of these documents in May 2007. The Plaintiffs contended that BP was improperly questioning various witnesses in its depositions about settlement negotiations. The Plaintiffs claimed three privileges: attorney-client, work-product, and deliberative privileges. At this point, they also claimed the information was inadmissible under K.S.A. 60-453 as it was related to settlement negotiations.
The trial court granted the Plaintiffs’ motion for a protective order with respect to discussions and thought processes of the members of the BP work group based on K.S.A. 60-452 and K.S.A. 60-453. However, the trial court also ordered the Plaintiffs to produce their documents identified by BP for an in-camera inspection to evaluate tire applicability of any of the privileges. After examining the documents, the trial court ordered some produced for discovery.
On appeal, the Plaintiffs specifically complain about the admission of Exhibits 1024, 1038, 1041, 1048, 1053, and 1056. None of these exhibits /are included in the various volumes of trial exhibits included in the-'record on: Appeal. Similarly, the Plaintiffs fail to cite to the record where such documents can be found. From the testimony, however, we deduce:
• Exhibit 1048 was a June 4, 2003, e-mail from Cox to City Administrator Joe Kerby, City Commissioner Casey Lair, and City Commissioner Jim Schuessler about a position paper asking BP to pay for developing a comprehensive plan for the City and the industrial park, as well as the creation of Neo-desha Lake as an alternative water source.
• Exhibit 1053 was a December 2003 e-mail from Lair to industrial representative Ted Peitz that included an earlier email from Peitz about his “wish list.”
• Exhibit 1041 was a document that Usted Peitz’, Lair’s, and Kerby’s “wish lists”; the date of the document is not specified.
• Exhibit 1024 was a copy of the various “wish lists” placed side by side.
• Exhibit 1056 was a timeline put together by Cox, but tire date is unknown.
The Plaintiffs limit their objections to these exhibits to a claim these are documents regarding settlement negotiations and are not discoverable under the work-product doctrine.
We note that the work-product doctrine, K.S.A. 2012 Supp. 60-226, is a discovery rule. Under K.S.A. 2012 Supp. 60-226(b)(4), documents prepared in anticipation of litigation or for trial by or for a party are not discoverable by another party in the absence of some specific showing of need. The work-product rule is not an absolute privilege but rather a limitation on discovery. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 218, 50 P.3d 66 (2002). Certainly by implication the rule precludes any idea of extending the work-product doctrine to reports or statements, even if written, obtained by the client or his or her investigators which are not prepared under the supervision of an attorney in preparation for trial. 274 Kan. at 220.
We must point out that we cannot tell from the record whether die documents ordered produced by the trial court were the same documents now at issue. The Plaintiffs have failed to adequately designate a record for us to review tíiis issue. The record does reveal that the trial judge ordered the production of documents for in-camera inspection in the same order granting the Plaintiffs’ motion for a protective order precluding questioning about settlement negotiations.
We also note that the Plaintiffs object because the documents and testimony were inadmissible under K.S.A. 60-453. That statute provides that evidence a person has offered to accept a sum of money or any other thing, act, or service in satisfaction of a claim is inadmissible to prove the invalidity of the claim or any part of it. Obviously the purpose of the statute is to promote settlement without fear the settlement will be used in evidence against the settling parties. See Lytle v. Stearns, 250 Kan. 783, 791, 830 P.2d 1197 (1992).
BP argues this evidence was admissible to impeach the Plaintiffs’ witnesses regarding their motives in filing the lawsuit and to directly contradict their testimony about the nonexistence of “wish lists.” In addition, it appears that a document containing similar information was admitted and not challenged by the Plaintiffs on appeal. This includes the Plaintiffs’ Exhibit 1045 given to BP’s representatives by Cox and Lair even though the advisory group was still meeting and reviewing BP’s remediation plan. In addition, Cox testified about “wish lists” being drafted as early as November and December 2002, six months before City officials admitted they were contemplating litigation and actually attempted to initiate settlement negotiations.
Additionally, the Plaintiffs did not object to the testimony of several witnesses about what was on the lists and how they were compiled. The admission of the lists themselves might have been cumulative but not so prejudicial as to require reversal.
By using these documents, BP opened the door for the Plaintiffs to present extensive testimony about BP’s contamination issues in litigation concerning plants in Sugar Creek, Missouri, and Casper, Wyoming. The trial court had, in a pretrial ruling, prohibited such evidence. But because of BP’s use of these documents, the Plaintiffs were able to present evidence about the lawsuits in Wyoming and Missouri through its examination of various witnesses. The Plaintiffs used’this information to their considerable advantage. Given this record, we conclude that if there was error in the admission of these exhibits, we are not convinced the jury’s verdict would have changed had they not been admitted. See Kansas City Mall Assocs. v. Unified Gov’t of Wyandotte County/KCK, 294 Kan. 1, 8, 272 P.3d 600 (2012).
Thus, we see no abuse of discretion in the trial court denying the motion for a new trial on these grounds.
Opinion testimony offered by three witnesses
Next, the Plaintiffs claim the trial court erred in permitting three BP witnesses to offer opinion testimony during the trial: Tammy Brendel, Stan Flagel, and DeWayne Prosser. These three were not designated as expert witnesses. The Plaintiffs point out that permitting their testimony was prejudicial to the Plaintiffs’ case because tírese three witnesses were the only ones that criticized the testimony of tire Plaintiffs’ expert, Dr. Stephens. We will review their testimony in order.
A brief review of the law is helpful at this point. K.S.A. 60-456(a) states that if tire witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to such opinions or inferences the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clear understanding of his or her testimony. This statute permits opinion testimony by a nonexpert witness if the opinion is incidental to the witness’ actual knowledge of the facts and circumstances of the case. See Pullen v. West, 278 Kan. 183, 211, 92 P.3d 584 (2004). Of course, whether a witness, expert or layperson, is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse of that discretion. Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 271, 75 P.3d 226 (2003).
Brendel was the site manager at Neodesha for BP’s remediation management group and was responsible for overseeing contamination cleanup and community relations related to the cleanup. After she joined BP, Brendel was trained to oversee environmental consultants such as geologists or hydrogeologists, to work with state agencies, and to deal with various thild parties. She testified that BP would have periodic meetings to exchange information, present technical experts, and otherwise learn from consultants.
Brendel was accused of making false statements to the Plaintiffs. In response, BP’s counsel asked her whether she knew, prior to the lawsuit being filed, where the contamination plume was and whether she currently knew where the contamination was located. Based upon her personal knowledge of the files, she testified she was comfortable in saying where the contamination plume was and that it was stable. She was then asked if she was comfortable in saying there was no risk. At this point, the Plaintiffs objected because she was not an expert qualified to testify about risk. The trial court overruled the objection, and Brendel testified that based upon her review of the files, including tire risk assessment, she was comfortable in saying there was and currently is no risk. As her final point, Brendel testified that BP was cleaning up the contamination. A fair reading of the testimony reveals that Brendel’s statements were based on her personal knowledge from working as the BP site manager and by being familiar with BP’s records regarding the site. This testimony appears to be relevant to responding to the Plaintiffs’ allegations that she, along with other BP employees, made prior misrepresentations on these subjects. The weight given to her testimony, of course, was for the jury to decide.
Brendel also testified from her experience that all refineries did not look for off-site contamination plumes before 1990 because that was when governmental regulations changed. The Plaintiffs objected based upon hearsay and lack of foundation. This objection was overruled. The Plaintiffs also objected when Brendel was asked what her understanding was about the effect of clay under the contamination site and to her statement that the presence of the clay was another reason why she believed there was no risk. Finally, Brendel was permitted to testify that as site manager and based upon her own experience it would not be appropriate to guess how long it would take to remove the contamination.
Next, the Plaintiffs complain about the testimony of Flagel, a hydrogeologist who worked for BP’s contractor RETEC. Flagel worked at the Neodesha site from 2001 through 2007. The Plaintiffs objected when the trial court allowed Flagel to testify that the water from the groundwater testing wells set by BP was not potable under current Kansas health regulations. These were wells he had tested. The Plaintiffs also objected when Flagel was permitted to testify that based on comparing groundwater monitoring reports from 2000 and 2006 with his observations at the site, benzene concentrations at tire test wells had decreased. These opinions were based on FlageFs own knowledge and his perception of the testing that he helped monitor.
Moving on, the Plaintiffs also complain about certain portions of the testimony of Prosser, a local pastor and former City commissioner and county commissioner. We note that Prosser and his church opted out of the class action. The Plaintiffs challenge Pros-ser’s testimony about his personal observations of several of the churches claiming damages that were constructing new buildings on the BP plume site after the lawsuit was filed. Prosser’s cited testimony related to his personal observation about the rebuilding and clearly was not opinion testimony. The trial court sustained objections to BP’s attempt to get Prosser to testify about the extent of damage caused by a flood in 2007.
Based on our review of the record and the nature of the testimony presented, the Plaintiffs have failed to establish that the trial court erred in admitting this testimony. In each instance, the opinions appear to be based upon the witness’ actual knowledge of the facts and circumstances of the case. See Pullen, 278 Kan. at 211. We find no abuse of discretion here and certainly insufficient grounds to grant a new trial.
Testimony of Louis L. Wilde
The Plaintiffs contend that the trial court erred when it permitted BP to present the testimony of Dr. Louis Wilde concerning any drop in the value of real estate in Neodesha due to tire contamination caused by the oil refinery. We note that the Plaintiffs do not claim that Dr. Wilde’s testimony affected the jury’s determination that BP was not liable under any of their theories.
The qualification of an expert witness and the admission of that witness’ testimony are matters within .the broad discretion of the trial court. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012). In order to testify as an expert, the witness must testify within the scope of the individual’s “special knowledge, skill, experience or training.” .K.S.A. 60-456(b).
The record reveals that Dr. Wilde graduated from the University of Iowa with a B.A. in mathematics in 1968 and from the University of Rochester with a graduate degree in economics in 1977. He received his doctorate and became an assistant professor at the California Institute of Technology. At that school, he taught various economics classes in the undergraduate program and also taught microeconomic and public finance courses to graduate students. One of the classes he taught was environmental economics, which focused on figuring out how to deal with environmental problems that might arise that the market cannot address. This includes developing taxes, penalties, subsidies, and other solutions for environmental issues.
By 1992, Dr. Wilde had moved into consulting work. In this case, he was hired to analyze the real estate market in Neodesha and determine whether property values had dropped due to the discovery of the off-site contamination from the oil refinery. The Plaintiffs objected to Dr. Wilde’s qualifications because he was not an appraiser and his studies had not been in real estate. The trial court concluded Dr. Wilde could testify as an economist and allowed him to display certain slides to the jury as visual aids to his testimony. The court excluded other slides because they invaded the province of the jury.
Basically, Dr. Wilde compared the real estate markets in Fre-donia and Neodesha by statistically comparing the appreciation rates between the housing markets in the two communities. He discussed the appreciation rates between the two markets and noted them moving together between 1997 and 1999. He testified that Fredonia’s appreciation rate swept up between 2000 to 2002 and Neodesha’s rate lagged for a couple of years but by 2002 the two communities’ appreciation rates were the same and continue to remain the same except for a brief bump-up in Neodesha’s values in 2006.
Put quite simply, the Plaintiffs have failed to persuade us that Dr. Wilde was unqualified to express the opinions he presented. Dr. Wilde established his training and experience in the economic analysis of real estate affected by environmental issues. The Plaintiffs do not cite any portion of Dr. Wilde’s testimony where he exceeded this background and training. Nor do the Plaintiffs cite any authority that supports their assertion that the only way to measure property value damages in this case is through the real estate appraisal process. The Plaintiffs’ citation of K.S.A. 79-503a is not helpful because that statute deals with controlling the value of property for ad valorem tax purposes and does not pertain to the issues here.
Additionally, since the jury found BP not liable on any theory, we doubt if the jury ever got to the issue of damages and even considered this evidence.
Based on this record, we hold the Plaintiffs have failed to establish the trial court abused its discretion by allowing Dr. Wilde to testify.
Speculation about lost tax revenues
In this issue, the Plaintiffs challenge the trial court’s ruling that evidence concerning possible lost tax revenues was inadmissible. Prior to trial, BP, in a motion in limine, sought to exclude evidence relating to any governmental entity’s claim of lost tax revenue. BP argued that lost tax revenues are not a recoverable claim for damages because the claims are solely derivative of the losses suffered by third parties. The trial court agreed and ruled that the Plaintiffs’ claim of $61 million in lost tax revenue is a derivative claim and would not be recoverable. In other words, the calculation of such a claim would depend upon too many variables beyond the subject of the lawsuit and any award for such would be the result of mere speculation.
To us, the Plaintiffs provide no citation to any legal authority that supports their position that lost tax revenue is a direct and foreseeable result of BP’s failure to live up to its commitment to the “long term economic development of Neodesha.” Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
The case cited by the Plaintiffs to the trial court, Hawkinson v. Bennett, 265 Kan. 564, 962 P.2d 445 (1998), is not helpful. In that case, the Supreme Court ruled that a business’ claims for lost past and future profits were not too speculative to be allowed. The claims were based on testimony of someone who had personal knowledge of the financial and sales history of his franchise. The jury was free to give whatever weight, if any, to the testimony. 265 Kan. at 592.
In contrast, we hold the trial court correctly assessed this evidence as being speculative in this case because the value of lost tax revenues would depend entirely upon the value of any third party’s property, the disposable income of the residents, the national and local economy, and the tax laws in effect at the time of assessment. All of these are subjects not covered by the evidence presented in this lawsuit.
Other courts have rejected such claims. See, e.g., Wyoming v. United States Dept. of Interior, 674 F.3d 1220, 1234-35 (10th Cir. 2012). In that case, tire court ruled that a lost future tax revenue claim was too speculative and did not give the petitioners standing to challenge the regulation limiting snowmobile use in national parks.
Finding no authority to support the Plaintiffs’ position, we hold that this is not grounds for a new trial.
Evidence of flood and subsequent FEMA efforts
Floodwaters inundated Neodesha in 2007. As a consequence, the Federal Emergency Management Agency, FEMA, provided help for the community. The Plaintiffs now argue that any evidence concerning either the flood or the remediation efforts by FEMA was irrelevant and designed to confuse the issues. In their view, such evidence was inadmissible.
The Plaintiffs complain in their brief that BP improperly cross-examined witnesses on this topic, but they fail to cite to any support for those assertions in the record. Under our appellate rules, facts must be keyed to the record by volume and page so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record. See Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 623-24, 244 P.3d 642 (2010).
The Plaintiffs confine their complaint about this to a small portion of the testimony of Prosser, a former City commissioner, a county commissioner, and a pastor of a local church. Indeed, Pros-ser testified about the flood in June 2007 and the actions taken by various churches that collected clothing, furniture, and other items for flood victims. After the flood, Prosser saw that the local Nazarene church no longer used its old parsonage but started building a new parsonage within BP’s designated plume area. Prosser also testified that within the last 2 years after the lawsuit was filed, he noted the local Catholic church had built a fellowship hall within the BP plume area.
Our reading of the record discloses no reference in Prosser’s testimony about FEMA.
We note that the Plaintiffs’ own witnesses also stated that a flood occurred in Neodesha after the filing of this lawsuit. The Plaintiffs’ witnesses also proffered exhibits about the cost to construct new churches and public buildings as part of the Plaintiffs’ damage claim. Thus, the testimony that two of the churches chose to construct a new building on the surface above the acknowledged BP contamination plume after suit was filed would be relevant to those claims for damages as well as the Plaintiffs’ claim regarding the perceived health risks of buying or building property in Neodesha. In our view, Prosser’s testimony on this point is a small part of a 17-week jury trial.
This limited reference to a natural disaster was not prejudicial to the Plaintiffs’ claims. We are not persuaded that tire admission of this evidence is grounds for ordering a new trial.
Attacks trying to discredit Dr. Dahlgren
During trial the Plaintiffs presented the testimony of a toxicologist, Dr. Dahlgren. The Plaintiffs contend that 'BP improperly presented evidence in an attempt to discredit Dr. Dahlgren.
Dr. Dahlgren is a licensed California physician who has practiced internal medicine and toxicology since 1972. Dr. Dahlgren testified at length about the risks of exposure to benzene and other refinery-related pollution at the Neodesha site, even though no one made a personal injury claim in this case. BP’s counsel cross-examined him extensively.
One of the topics of cross-examination focused on Dr. Dahl-gren’s website for his B-Well Clinic. During cross-examination, Dr. Dahlgren confirmed that the clinic provides services such as na-turopathic and traditional Chinese medicine and gave people advice about improving their health through diet, exercise, and lifestyle. The clinic also offers detoxification services that include sauna-based detoxification, niacin treatments, and high doses of antioxidants, as well as cold-pressed oils to remove lipid-based toxins. The website advertises Chinese medical treatment such as cupping and Jin Shin. Dr. Dahlgren admitted that he did not understand these therapies and traditional Chinese medicine was not scientifically proven but did achieve results with some patients.
Our reading of tire record indicates that the only objection the Plaintiffs made during Dr. Dahlgren’s cross-examination was to an exhibit concerning an advertisement for his services for evaluating populations exposed to environmental pollutants. The Plaintiffs’ objection was that the exhibit was not on BP’s exhibit list. The trial court overruled the objection because it was presented for impeachment purposes. The Plaintiffs did not assert any other objection during the cross-examination about Dr. Dahlgren’s clinic and his one-time association with a Chinese doctor at the clinic.
Based upon this, we think the Plaintiffs’ failure to contemporaneously object to this portion of Dr. Dahlgren’s cross-examination precludes our appellate review on this point. Kansas appellate courts have repeatedly relied upon K.S.A. 60-404, which requires a timely and specific objection to challenged evidence. State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012).
K.S.A. 60-404 similarly applies to the trial court’s consideration of a new trial motion. We drink this rule also applies to the situation when a trial court considers a motion for a new trial. See State v. Cook, 286 Kan. 1098, 1109, 191 P.3d 294 (2008). For want of an objection, we will not review the matter.
Evidence of BP’s safety record and honesty
The Plaintiffs aver that the trial court erred in excluding certain evidence about BP’s poor safety record in response to BP employees who testified that BP’s primary focus was on safety. The Plaintiffs contend the trial court’s ruling minimized the effect of negative evidence which they wanted to present to the jury. The Plaintiffs have not properly framed this issue for our court.
The Plaintiffs’ brief fails to detail any of the documents or argue why the trial court’s handling of them was contrary to any statute or was an abuse of discretion. The brief refers to a number of documents that the Plaintiffs downloaded from the BP website that they wanted to use for impeachment purposes. The record reveals that the trial court excluded some of the documents as irrelevant, some as unduly prejudicial, and some as improper under K.S.A. 2012 Supp. 60-455. But, we note the trial court did allow the Plaintiffs to cross-examine at least one BP employee regarding some of the statements made in the documents by BP executives. Simply put, the Plaintiffs have failed to specifically identify any of the documents or adequately explain their impeachment value or argue any basis to establish the trial court’s specific rulings that were erroneous or an abuse of discretion. A point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).
We question if this amounts to reversible error. The trial court did permit the Plaintiffs to use downloaded documents to cross-examine BP’s witnesses. One witness was cross-examined about a website document discussing the discovery of oil in deep-water drilling off the coast of Angola, comparing the depth of their drilling for oil to the depth of the field in Neodesha. The witness agreed safety was always an issue and could always be improved. The witness was asked about BP’s chairman of its board of directors 2007 comments to the board that BP continued to “face a series of regulatory issues in the U.S. — a perfect storm, if you like, but mostly of our own making.” In addition, the Plaintiffs were permitted to inquire about and admit documents reflecting other comments of the chairman of the board about the company setting high standards “in tire way in which we interact with [the] communities in which we operate . . . [but] have failed to live up to those standards.”
In our view, the trial court used an even-handed approach in dealing with this issue. We note that by relying on the “wish list” documents, the trial court allowed the questioning of BP witnesses about lawsuits arising from a series of contamination sites in Cas-per, Wyoming, and Sugar Creek, Missouri. These other contamination sites were discussed repeatedly with BP employees and others. Similarly, the trial court permitted another Neodesha witness, Ted Peitz, to testify that his father died of lymphoma and his concerns that he and two of his employees might have a genetic disposition to lymphoma. Consequently, Peitz’ company pays for screenings for those men at a special clinic.
We do not see this as reversible error.
Denying the deposition of Lord Browne
In a closely related issue, tire Plaintiffs complain that the trial court unreasonably refused their request to depose Lord John Browne, the chief executive officer of BP p.l.c., BP’s parent corporation.
BP objected to the motion to compel Lord Browne’s testimony. BP argued that Lord Browne was a subject who resided in the United Kingdom and that BP p.l.c. was not a party to this action. BP made similar arguments with respect to a request to depose Tony Hayward, who replaced Lord Browne as CEO in 2007. No subpoenas in this case were issued according to the Hague Service Convention, as required for international legal process.
The Plaintiffs say they wanted to depose Lord Browne because he created the BP Code of Conduct, which was cited frequently by BP during its community relations campaign. The Plaintiffs pointed out he ended up resigning as CEO after he was caught lying to the parent corporation’s board of directors. According to the transcript, Lord Browne was terminated after the London newspapers reported that he had a homosexual affair. Browne was reportedly terminated by the board for lying about the relationship.
We see nothing in the record that persuades us that tire trial court’s ruling was incorrect on this point. The Plaintiffs have made no showing of any alter ego that would allow them to pursue the parent corporation. The trial court’s refusal to grant a new trial on this basis is not an abuse of discretion.
Limiting closing arguments to 4 hours
The Plaintiffs contend that the trial court abused its discretion in limiting closing arguments to 4 hours per side. The record reflects the judge announced the 4-hour limit after conferring with tire parties on the final version of the jury instructions. At no time did the Plaintiffs assert to the judge that the 4-hour limit was insufficient to present their case. The Plaintiffs never requested additional time for a rebuttal because of any arguments made by BP’s counsel.
We view this as a matter of discretion by the trial court. The proper length of closing argument is an issue left to the sound discretion of the trial court. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989). Here, 4 hours does not appear unreasonable, especially in light of the fact neither party objected to the time allotted. We see no reversible error here.
Insufficient sanctions imposed on BP
The Plaintiffs argue that the trial court abused its discretion by not imposing a more severe sanction upon BP because it produced a huge number of documents just before the trial started. In the Plaintiffs’ view, BP produced thousands of pages of documents on die “eve of trial.” They now argue that the trial court should have struck BP’s pleadings and entered default judgment in their favor.
The decision to impose sanctions for discoveiy abuses rests within the sound discretion of the trial court. We, as an appellate court, review such sanctions to see if there is an abuse of discretion. See Sckuerholz v. Hinzman 295 Kan. 786, Syl. ¶ 11, 289 P.3d 1155 (2012). As we have stated before, a judicial act constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable— i.e., if no reasonable person would take the view adopted by the trial court — or is based on an error of law or an error of fact. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The record on appeal reflects that 6 weeks before the trial started the Plaintiffs sought sanctions against BP for failing to timely produce documents. Sometime in March 2007, the Plaintiffs requested certain documents from the American Petroleum Institute, the records of BP employee John Lamping, and documents relating to the environmental assessment of other Amoco refineries. In reply, BP raised various objections to the requests. Then, in April 2007, the Plaintiffs sent a “golden rule” letter to BP again demanding the documents. They followed this in May 2007 with a motion to compel the production of the documents.
The trial court heard the matter in July 2007 and ruled that the documents were subject to discovery and must be produced by July 20, 2007. After receiving that ruling, the Plaintiffs then filed a request for sanctions, contending that BP had failed to produce the requested documents by the date ordered by the court. Instead, BP advised the Plaintiffs that the documents were available in offices in Cleveland, Ohio, and Wilmington, Delaware. There were about 45 boxes of documents available. At this point, the Plaintiffs requested the trial court enter whatever sanctions it deemed appropriate and specifically requested that the court order BP to immediately deliver all the documents to the Plaintiffs’ office at BP’s expense.
The trial court ordered BP to immediately copy and deliver to the Plaintiffs’ office copies of all documents at BP’s expense. After tire trial court issued that order, BP filed a notice of compliance and explained it had experienced a variety of issues in compiling, copying, and transferring documents saved on microfilm. BP also contested the motion for sanctions.
At this point, the Plaintiffs filed another motion claiming that BP had still failed to produce numerous documents and had lied to tire trial court. The Plaintiffs also complained that some of tire documents recently produced were related to their first request for production of documents. Then, in tire second week of August, the Plaintiffs filed five more motions for discovery sanctions against BP. The separate motions involved various subjects, such as three rolls of microfilm that were not copied when an employee was on vacation and BP’s failure to designate a corporate witness as required by K.S.A. 60-230(b)(5). The Plaintiffs again asked that all documents withheld based on attorney-client privilege be produced.
At the hearing on these motions, the Plaintiffs’ counsel agreed that a number of the late produced documents had been produced previously but came from a different storage site, although some had additional notes written on them. BP’s counsel responded in detail concerning the manner in which documents were produced and where errors were made. BP also argued that some documents were produced early in the case but the Plaintiffs’ attorneys did not tag them for copying. BP reported that it had spent over $50,000 already in its efforts to comply with the order compelling discovery.
The trial court ruled in a straightforward fashion. After accepting the blame for not appointing a special master to monitor and handle discovery issues for this massive case, the trial court refused to strike BP’s pleadings as a sanction. Likewise, the trial court refused to strike the privilege log. The trial court did order that any document produced after July 17 would be deemed authenticated and its relevancywould be evaluated at trial. The trial court also noted that if the Plaintiffs wanted to list a statement of costs associated with the discovery issues, the judge would consider it. The trial court then spent time discussing the K.S.A. 60-230(b)(5) deposition issue and the identity of anybody else that the Plaintiffs wanted to depose and pressed the Plaintiffs for an explanation of how the information they had received prejudiced them. After that, the trial court declined to order further sanctions.
Sanctions should be designed to accomplish the objects of discovery rather than for the purpose of punishment. Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 194, 959 P.2d 849 (1998). The dismissal or granting of a default judgment is a drastic remedy to impose as a discovery sanction and should only be used as a last resort when other lesser sanctions are clearly insufficient to accom plish the desired outcome. Canaan v. Bartee, 272 Kan. 720, 727, 35 P.3d 841 (2001).
From our reading of the record, the Plaintiffs filed a request for production of documents in April 2007 and waited 6 weeks before trial to file a motion to compel. While it is true that BP was late in delivering documents, it produced a huge number of documents-in response to the trial court’s order compelling discovery. During this process additional documents were produced that were responsive to earlier document requests. But BP made a showing that all but 14 of the new documents had been previously produced from anodier source. As far as we can tell, the Plaintiffs complain that the trial court refused to permit depositions of other witnesses related to the K.S.A. 60-230(b)(5) depositions about the relationships between tire corporations, not depositions about the new documents.
After examining the record on appeal and tire extensive rulings made by the trial court in response to the seven different motions for sanctions, we quite frankly see no abuse of discretion. This was obviously an important stage of this proceeding, and the district judge worked tirelessly to ensure that discovery would take place. No doubt the trial court could have used a special master here, as the judge opined, but one was not appointed. We do not believe that there was an abuse of discretion that would call for a new trial in this particular case based upon the late production of documents by BP.
This matter was tried to tire jury for 17 weeks. The Plaintiffs have not convinced us that they have been forced to abandon some reasonable argument based on this “late production” of documents. We recognize that the Plaintiffs received a huge number of documents before trial. But our review of the record convinces us they were able to overcome this disadvantage with skill and zeal.
We cannot agree that refusing to strike BP’s pleadings and to enter a default judgment against BP was an abuse of discretion.
Cross-examination about Industrial Commission meetings
The Plaintiffs also complain about the trial court permitting BP’s attorney to use notes from the Neodesha Industrial Commission meetings to impeach the credibility of Peitz, the owner of Neo-desha Plastics, Inc. Neodesha Plastics, Inc. is a named plaintiff. The Plaintiffs contend that Peitz was not present at the meetings and the meeting notes were improperly used to impair Peitz’ credibility. Again, the Plaintiffs argue this without citing any legal authority other than K.S.A. 2006 Supp. 60-460.
In order to effectively rule upon this issue, we must consider all of the circumstances. During his direct testimony, Peitz testified that his business employed over 200 employees. He stated that the City of Neodesha was important to him and his company was an excellent corporate citizen in the community. Peitz stated that he needed more space for his expanding company but he was unwilling to expand at the current industrial site because of the contamination. He did admit that when he bought the building in 1995, the City did not tell him there was contamination on the property. He testified that he had considered moving because of the contamination and the inability to expand his business at that site. He also testified that there was no other reason he would move his business, but as a contingency plan he has purchased a right to buy 80 acres on U.S. Highway 400, where he could get more reasonable utility rates.
In turn, during cross-examination Peitz was asked about the potential new site he mentioned on direct examination. At one point during cross-examination, Peitz was asked to review minutes from a December 2006 Industrial Commission meeting. The trial court overruled the Plaintiffs’ objection based on hearsay and relevancy. The trial court found the document relevant and that Casey Lair had authenticated it in his testimony. In addition, J.D. Cox, another attendee at the meeting, was the Plaintiffs’ designated representative throughout the entire trial; thus, he was available to be cross-examined about the minutes’ accuracy.
After reviewing the document, Peitz admitted he had asked nearly every City administrator to reduce the charge for his business’ electricity and “alienated every [one] . . . over die price they charge me for electricity.” Peitz pointed out that the meeting minutes were just statements of a number of people who speculated about what they could do to help his company and they were not his statements. Peitz also testified that he could get a better electric rate at the new location but it did not make mathematical sense to move and build a new facility to replace the current facility just for lower electric rates.
Our reading of the record reveals that BP tried to impeach Peitz’ credibility about his desire to remain in Neodesha. He admitted he had discussed moving his facility elsewhere. The document in question confirms that the Industrial Commission was worried about the possibility of Peitz moving his business elsewhere. However, it appears the document had little impact beyond Peitz’ own testimony and that he ably deflected any inference that his concerns about moving would be based on electricity rates rather than the contamination.
For these reasons, we do not view the document as inadmissible hearsay and, indeed, it was relevant in an attempt to impeach Peitz. We affirm the trial court’s ruling upon this point. In addition, we must point out that even if the trial court erred in allowing this cross-examination, we view it as rather ineffectual and find it unlikely that it had any impact on the Plaintiffs’ substantial rights.
Summary Judgment Was Proper on the Claims of Unjust Enrichment.
The Plaintiffs claim that Kansas law recognizes a claim for unjust enrichment based upon the expenses BP would save by leaving the contamination it created under the Plaintiffs’ property. Thus, the trial court erred by granting summary judgment to BP on this point.
Generally, recovery under a theory of unjust enrichment may occur only after proof of:
• a benefit conferred upon the defendant by the plaintiff;
• an appreciation or knowledge of the benefit by the defendant; and
• the acceptance or retention by the defendant of the benefit under such circumstances as would make it inequitable for the defendant to retain the benefit without payment of its value. Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 177, 910 P.2d 839 (1996).
Primarily, the Plaintiffs rely on Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181 (1961). In Ablah, the plaintiffs filed a replevin action seeking possession of various books, records, and other documents and personal property held by the defendant, a certified public accountant. The sheriff seized the documents and personal property identified by the plaintiffs, and the property was ultimately turned over to them. The defendant pursued a counterclaim, asserting he only possessed working papers that he had prepared while performing an audit as an independent contractor for the plaintiffs and he was entitled to sole possession of his records.
In response, the court found that the defendant had pled sufficient facts to establish title and ownership of the papers when the plaintiffs started the replevin action. In an effort to determine damages, the Supreme Court acknowledged that if the accountant’s damages were confined only to tire invasion of his right to exclusive possession of his personal property, such a ruling would not take into account the benefits the plaintiffs would receive from the use of his work found in the papers. Citing the older “resulting benefit” rule, the Supreme Court stated that no one should be allowed to enrich himself unjustly at tire expense of another whose property he has wrongfully detained. 188 Kan. at 678-79. Thus, the law imposes a duty to return the property and to pay the value of tire use of the returned property, which may be treated as the result of an implied contract. 188 Kan. at 678-79.
We must point out that the Plaintiffs do not explain how Ablah and the resulting benefit rule apply to the facts of this case.
The Plaintiffs also rely on Beck v. Northern Natural Gas Co., 170 F.3d 1018 (10th Cir. 1999). In Beck, the landowners cross-appealed, challenging the district court’s ruling that the fair rental value of the Simpson formation was the proper measure of damages for both their trespass and their unjust enrichment claims. The court rejected the landowners’ claims to profits the producer derived from the gas stored under their properties. 170 F.3d at 1024.
Basically, the Plaintiffs contend that BP is actually “storing” contaminants under their property and is thus unjustly enriched by failing to remove them. The Plaintiffs ignore that BP is actively engaged in tlie remediation actions approved by the Department of Health and the local advisory group. Thus, the question remains whether, as a matter of law, the third element of unjust enrichment can be satisfied. In other words, the question becomes whether under such circumstances it is inequitable for BP to retain the benefit without payment for its value. See Haz-Mat Response, Inc., 259 Kan. at 177.
We view this as an equitable claim and, generally, an equitable remedy is not available when an adequate remedy exists under another legal claim. See Nelson v. Nelson, 288 Kan. 570, 597, 205 P.3d 715 (2009). We question whether this is “storage.” After all, the testimony indicated these “plumes” were all moving. In any event, the remedies of law for negligence, nuisance, and violations of K.S.A. 65-6203 were all available to the Plaintiffs to attempt their recovery.
We see no error in the trial court granting summary judgment to BP on this point.
The Verdict Was Not Contrary to the Weight of the Evidence.
For this issue, the Plaintiffs contend the trial court erred in denying their motion for a new trial on their claim that the jury’s verdict, especially on the strict liability and trespass counts, was contrary to the evidence. They argue that no reasonable juror could find that BP was not strictly liable for the contamination of the groundwater and that a trespass occurred.
We turn to Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, Syl. ¶ 12, 266 P.3d 516 (2011), for guidance of our review on such questions:
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of the appellate court to weigh the evidence or pass on the credibility of tire witnesses, if tire evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.”
We are not persuaded to order a new trial with respect to this issue for several reasons. First, the Plaintiffs’ discussion concerning strict liability limits itself to the rejected Roger standard that strict liability exists for groundwater pollution without applying any of the Williams factors. This position was explicitly rejected by the Supreme Court in Neodesha I. 295 Kan. at 313-19.
In this argument, the Plaintiffs now fail to refer to any of the Restatement (Second) of Torts factors. Additionally, our Supreme Court in Neodesha I did review the evidence under the Restatement factors and found the matter was clearly one for the jury to decide. 295 Kan. at 323-25. We certainly cannot alter that holding.
Concerning the continuing trespass claim, the Kansas Supreme Court has held:
“ ‘The concept of trespass should be used, if at all, only where defendant intends to have the foreign matter intrude upon the land, or where defendant’s “act is done with knowledge that it will to a substantial certainty result in the entry of foreign matter.” ’ [Citation omitted.] Liability for a continuing trespass is premised on the original intrusion being trespassory. [Citation omitted.] Thus, if the original intrusion is not trespassory, mere knowledge that a substance reached the land of another is insufficient to- establish a continuing trespass.” United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 729, 915 P.2d 80 (1996).
In conformity with this ruling, a panel of our court held that when a claim of trespass is based on foreign matter intruding on another’s land, the plaintiff must show that “the defendant intended the foreign matter to intrude on the plaintiff s land or that the defendant performed the act with knowledge that the act would, to a substantial certainty, result in the foreign matter entering the plaintiff s land.” Muhl v. Bohi, 37 Kan. App. 2d. 225, 229-30, 152 P.3d 93 (2007).
The statute of repose bars the Plaintiffs from claiming trespass with respect to actions taken while the refinery was operational. There is no evidence in this huge record on appeal that we can find that suggests BP or its predecessors intentionally released foreign matter onto or under the property of another.
Put simply, the Plaintiffs are in an unenviable position of making claims long after the refinery closed. The law bars any legal liability resulting from the actions or failure to act during the refinery’s operation. For example, assuming there was contamination in the soil when the refinery was closed, it could not constitute a trespass when the site was quit-claimed to Neodesha for an industrial park because the pollutants were already there. Even the Plaintiffs’ experts did not opine when the pollutants started to spread from the property.
Viewing the record in the light most favorable to BP, the prevailing party, as required by Wolfe Electric, Inc., 293 Kan. 375, Syl. ¶ 12, there is adequate evidence in the record that shows BP’s remediation activities after the refinery closed were such that BP did not know its contamination had spread to other properties or that there was a substantial certainty such dissemination would occur. We see no reversible error here.
Attorney Misconduct
The Plaintiffs contend that BP’s attorneys conducted themselves in such an unprofessional, prejudicial manner that the trial court should have granted the Plaintiffs a new trial because of this professional misconduct. Basically, the Plaintiffs complain that BP’s attorneys
• failed to timely produce discovery documents;
• took contrary positions during the trial concerning RETEC’s agency status;
• attempted to decertify the class in the middle of the trial;
• refused to cooperate in drafting jury instructions and unprofessionally vilified the Plaintiffs and their counsel; and
• tampered with some depositions.
The major purpose of the introduction of evidence at trial is to arrive at the truth. Hurlburt v. Conoco, Inc., 253 Kan. 515, 533, 856 P.2d 1313 (1993). The jury gleans the facts from that evidence, and the jury is to apply the facts to the law as instructed by the court. Constrained by our ethical rules, counsel must present his or her client’s case in the light most favorable to the client. We recognize drat these are hard-fought contests.
We will not readdress the issue of late production of documents since we have dealt with this previously. We will now turn to the question of “inconsistent positions” taken by BP regarding RE-TEC.
We understand that at one point prior to trial, the Plaintiffs argued that the “Book of Common Prayer” was not privileged because it had been provided to RETEC, the contractor hired to perform soil and water sampling at the site. Later, during the trial at a bench conference, counsel for BP argued that RETEC’s status as a contractor did not allow the Plaintiffs'to forego foundation requirements, and counsel lodged an objection to RETEC’s documents based on foundation or hearsay grounds. The court excused the jury. Once outside the presence of the jury, the trial court noted that defense counsel might not have been aware of a pretrial ruling on RETEC’s status as an agent of BP for privilege purposes and the trial court would not change that ruling.
We do not see how this denied the Plaintiffs a fair trial. This large record shows there were a number of bench conferences throughout the trial, some of which were so long that the trial court excused the juiy early in the afternoon so the issue could be addressed for tire remainder of the day. It is true that BP’s counsel took an inconsistent position, but we see no harm coming from it, especially in light of how the trial court adeptly handled the miscue.
Next, it is true that in July 2007, just before the trial but after the close of discovery, BP moved to decertify the class because of a claimed lack of commonality and typicality across the range of class members, which included: governmental entities, individuals, and churches. The trial court, once again, denied this motion. But in October 2007, during the middle of the trial, the Kansas Supreme Court issued two decisions: Smith v. Kansas Gas Service Co., 285 Kan. 33, 169 P.3d 1052 (2007), and Gilley v. Kansas Gas Service Co., 285 Kan. 24, 169 P.3d 1064 (2007). In both of those class action cases, damages among class members were not necessarily typical or similar. Based on their reading of cases, the Plaintiffs filed a motion for the creation of subclasses for purposes of deciding damages. In response, BP filed a combined motion to dismiss and decertify the class. The trial court once again refused to grant the order decertifying the class and granted the Plaintiffs’ motion for the creation of subclasses.
From our vantage point, BP’s position was consistent and warranted based upon the implications of the rulings in Smith and Gilley. We are not persuaded that BP’s position was unprincipled or inconsistent even though it was unsuccessful. Its attempt to de-certify die class was certainly not grounds for a new trial. After all, a trial court retains the ability to modify a class at any time before final judgment. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 308, 263 P.3d 767 (2011). As one treatise points out, the ability of a court to reconsider initial class rulings is a vital ingredient in the flexibility of courts to realize the full potential benefits flowing from the judicious use of class actions. 3 Newberg on Class Actions § 7:47, pp. 154, 159 (4th ed. 2002).
We now turn to the allegations that BP tampered with videotaped depositions. It appears to us that the trial court correctly resolved this issue. The trial court compared the statements on the video and determined that although there were obvious redactions, the video presentation itself was consistent with the written transcript. The trial court concluded that there was no tampering of the depositions, and we agree.
We believe that attorneys on both sides zealously represented their clients. Both sides filed a large number of motions regarding numerous discovery, evidentiary, and trial procedure issues. The depositions used as evidence in this case display aggressive questions by attorneys from both sides. A fair reading of the briefs leads us to conclude that there is some animosity between counsel. But, we do not see any grounds for ordering a new trial here. The matters that the Plaintiffs complain about on this point did not deny them a fair trial.
Conclusion.
This was a massive lawsuit in every respect. Huge claims involving many subclasses were tried, requiring weeks of testimony and hundreds of exhibits. Evidence was often complicated and technical. In the end, though, the Plaintiffs could not prove their case to the satisfaction of the jury.
In this appeal, tire Plaintiffs ask us to overturn the trial court and grant them a new trial. Their claims of error are unconvincing. We commend the patience and skill displayed by the trial judge who had to struggle with this huge case. The errors we have noted do not compel us to order a new trial.
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Schroeder, J.:
Tallgrass Prairie Holdings, LLC (Tallgrass) appeals the Kansas Court of Tax Appeals’ (COTA) 2011 valuation of Tallgrass’ multitenant office complex (the Property) built in 2002. The Property has a prime location, and the building is also equipped with a large surgical suite leased by one of the tenants. Tallgrass seeks a fair and reasonable valuation for the property based on current market values in compliance with K.S.A. 2013 Supp. 79-1460. Originally, Tallgrass’ appeal to COTA challenged the fair market valuation of its Property for tax years 2010 and 2011. While both appeals were pending before COTA, the parties mutually agreed to dismiss the 2010 tax appeal after the decision of the 2009 tax year appeal was rendered by COTA. As more fully set out in this opinion, COTA’s decision establishing the fair market value of the Property for tax year 2011 is affirmed in part, reversed in part, and remanded with directions.
Facts
The record is extensive; to put some order to it all, we will set out each step of the property valuation process resulting in this appeal.
Property
The Property is a large three-story building in northwest Topeka. A related, but separate, Tallgrass L.L.C. operates the surgical suite on the first floor. Another related Tallgrass L.L.C. operates medical offices on the first and second floors, with other tenants renting space on the first and third floors.
Property Tax History
Tallgrass has challenged Shawnee County’s tax valuation of the property every year since 2005. For 2010 and 2011, the County used the same mass appraisal methodology for both years and ap praised the Property at $10,870,383. As a result of Tallgrass’ appeal to COTA for the 2009 tax year, COTA determined a 2009 market value of $8 million. With receipt of COTA’s decision for 2009, the parties agreed the 2009 valuation should control the market value of tire Property for tax year 2010 pursuant to the provision of K.S.A. 2013 Supp. 79-1460(a)(2), and the parties jointly dismissed the 2010 tax year appeal.
2011 Tax Assessment and Informal Meeting
After the County provided its original 2011 appraisal, the County adjusted its income approach and lowered its appraisal from $10,870,383 to $10,711,100 at the informal meeting. Tallgrass appealed the 2011 valuation notification of informal meeting results to COTA.
The County filed a motion for leave to issue discovery out of time and to order the taxpayer to allow an inspection of the Property. Over Tallgrass’ objection, COTA granted the motion in part, allowing a new county appraiser to inspect the property. However, COTA limited the appraiser to a rebuttal witness and the appraisal as a rebuttal exhibit only. Additionally, COTA denied the County the right to change the value or classification for the Property based on the second appraisal. Both parties petitioned COTA to reconsider, but COTA denied their motions.
COTA Hearing
The parties presented their respective analyses, appraisals, and arguments to COTA. COTA was presented with three different appraisals to consider. David Meyer initially valued the Property for the County. John Dillon appraised the Property for Tallgrass. The County presented Timothy Keller’s appraisal of the Property through his rebuttal testimony. We will discuss each in turn.
Meyer Analysis
The County relied on the testimony of David Meyer, a commercial real property specialist from the Shawnee County Appraiser’s Office. Meyer was designated a registered mass appraiser by the State of Kansas Property Valuation Division (PVD), had been employed by the County Appraiser’s Office for 10 years, and appraised 600 offices and 100 medical properties on an annual basis. However, Meyer was not a licensed general appraiser and had never done an appraisal that complied with the Uniform Standards of Professional Appraisal Practice (USPAP) (1992) Standards 1 and 2. Meyer did claim his appraisal was in compliance with USPAP Standard 6 and was a mass appraisal rather than a single appraisal.
Meyer testified the Property was in a veiy good location in Topeka and considered the Property in a prime, investment Class Allocation.
Meyer s initial valuation of the Property for tax year 2011 was $10,711,100. Before COTA, he lowered the value of the Property to $9,768,500. Meyer claimed the difference in recommended value stemmed from a reduced rental rate for the medical office and surgical center space in the Property.
Meyer used the usable square footage of the Property for the income approach calculation in his appraisal. Meyer defined usable square footage as the floor space of the Property, minus vertical penetrations such as stairwells, elevators, and common areas. For the sales approach, he used the net rentable square footage, which did include die common areas. To determine fair market value, Meyer considered what the Property was worth on the open market. Meyer considered the Property’s current use to be its highest and best use.
Dillon Analysis
Tallgrass’ expert appraiser was John Dillon, a licensed general real estate appraiser who had been doing appraisals in the Kansas City area since the early 1980’s. Dillon appraised all types of property but mainly worked with commercial property. Dillon first appraised the Property for Tallgrass in 2006 and had prepared other appraisals on the Property. Dillon was tasked with estimating the market value of the Property for presentation before COTA. Dillon claimed he quantified the physical factors and market data for the Property and believed the market for the Property did not extend beyond the immediate Topeka market. Dillon considered the Property a second tier property, not a Class A or Class A+ location.
Dillon’s analysis was aimed at finding market value, as defined by the Federal Register and USPAP. However, Dillon admitted that this definition contained some minor differences from the Kansas definition of fair market value. Dillon based his analysis on the rentable area of the Property, or the total square footage of the Property, minus vertical penetrations such as stairwells or elevators, but including common areas. Dillon believed this calculation to be a market-wide method of establishing how rental rates per square foot for office and medical office space are established. Ultimately, Dillon determined the valuation for the Property was $7.6 million.
Keller Analysis
The County presented Timothy Keller, a state licensed certified general real estate appraiser with around 20 years of appraisal experience, as a rebuttal witness. Keller appraised all types of commercial and residential properties, including offices and medical offices, mainly in the Topeka, Lawrence, and Kansas City areas.
Keller testified the County asked him to perform an appraisal of tire Property to determine the market value of the Property. Keller’s appraisal was admitted, and he defined market value in accordance with Kansas statutes. Keller labeled the Property as a Class A property, located in a competitive neighborhood and market location. Keller claimed tire highest and best use for the Property would be its current use.
Like the other appraisers, Keller used cost, sales, and income approaches to establish the value of the Property. Keller appraised the Property at $10,250,000.
COTA Ruling
COTA stated the County determined the Property contained 12,139 square feet of office space, 50,031 square feet of medical office space, and 12,533 feet of surgical space, for a total usable square footage of 74,730.
COTA first addressed Tallgrass’ claim that the County failed to comply with K.S.A. 2013 Supp. 79-1460(a)(2). Tallgrass argued the Property’s 2010 tax valuation was reduced pursuant to the valuation appeals process; therefore, under the statute, the County was required to present substantial and compelling reason for the Property’s increased 2011 tax valuation. Tallgrass claimed the County failed to meet that burden and that the increased valuation was therefore inappropriate.
COTA agreed that under K.S.A. 2013 Supp. 79-1460(a)(2) the County would have been prevented from increasing the Property’s tax valuation following the 2010 reduction if the 2010 reduction had been “due to a final determination made pursuant to the valuation appeals process.” However, the County reduced the Property’s 2010 appraised value based on the results of the 2009 tax appeal, and the 2010 appeal was never submitted to COTA. Thus, COTA ruled the Property’s 2010 tax valuation was not “ ‘reduced due to a final determination pursuant to the valuation appeals process’ ” and therefore the requirements of K.S.A. 2013 Supp. 79-1460(a)(2) were inapplicable to the Property’s 2011 tax valuation.
COTA next discussed the law governing ad valorem taxes in Kansas. Under the Kansas Constitution, Article 11, § 1(a) and K.S.A. 79-101, all real and personal property in Kansas is subject to taxation on a uniform and equal basis unless specifically exempted. COTA classified the Property as commercial use property; and pursuant to K.S.A. 2013 Supp. 79-1609, COTA determined the County had the “duty to initiate the production of evidence to demonstrate, by a preponderance of the evidence, the validity and correctness” of a fair market value determination. Under the same statute, COTA noted no presumption exists in favor of the county appraisal with respect to the validity and correctness of such a determination.
Tallgrass questioned whether tire County’s evidence complied with USPAP, particularly regarding scope-of-work requirements. COTA noted all county appraisers were required to perform appraisals in conformity with USPAP Standard 6, which governs the development and reporting of mass appraisals as the approved method for ad valorem taxation in Kansas. COTA stated its duty was to render decisions based on “substantial competent evidence in light of the record as a whole,” pursuant to K.S.A. 2013 Supp. 77-621(c).
Here, COTA determined Meyer provided “credible testimony” regarding the characteristics and investment class of the Property and confirmed the County considered all factors listed in K.S.A. 2013 Supp. 79-503a in arriving at its valuation. COTA also held Meyer relied on a computer-assisted mass appraisal report with supporting documentation in reaching his valuation. COTA therefore determined there was “no evidence in the record” that the County performed a single-property appraisal, as contended by Tallgrass. Thus, COTA held the County’s presentation provided “substantial competent evidence support for valuation.”
In determining the valuation of the Property, COTA relied heavily on the income approach because the Property was an income producing property, both parties relied on the income approach, and COTA determined the parties’ various income approaches provided the best indicia of the Property’s value. COTA found the County’s assessment of potential gross income to be supported by comparable market rental data after adjustments for escrow rent. Because Dillon’s appraisal failed to make escrow rent adjustments, COTA found his rental rate to be “significantly understated.”
However, COTA found both Meyer’s and Dillon’s expense rate determinations to be in error. The County failed to give adequate consideration to the Property’s actual expenses, while Tallgrass failed to determine if the Property’s actual expenses were consistent with the market. According to COTA, an appraiser should estimate the income stream that would be produced in the highest and best use under “typical management” because the property, not the current management, is being valued. Thus, COTA determined Keller’s expense rate determination, which “included consideration of the subject property’s actual operating expenses based on a review of expenses from comparable area properties,” to be most reflective of the market.
COTA found the County’s determination that tire Property was an A+ investment class for the Topeka market to be supported by the age of the Property, the quality of finish, and its location in Topeka’s premier commercial area. COTA therefore rejected Dillon’s contention the Property was a second tier property. COTA further held Dillon’s capitalization rate determination, when “properly arrayed for comparability,” supported a 9% capitalization rate.
Based on these findings, COTA concluded an income approach utilizing the County’s income approach inputs, including rental, vacancy, collection, and capitalization rates, coupled with Keller’s operating expense rate, produced the best indicator of fair market value for the Property. Thus, after implementing this change to the County’s income approach, COTA reached a final appraised fair market value of $9,431,560 for tax year 2011.
Tallgrass filed a motion asking COTA to reconsider, and COTA denied the motion. Tallgrass timely appeals.
Analysis
Tallgrass raises five issues on appeal. First, Tallgrass claims COTA erred in inteipreting K.S.A. 2013 Supp. 79-1460(a). Second, Tallgrass argues COTA erred in adopting the County’s valuation by implicitly finding the County did not have the burden of proof. Third, Tallgrass states that by relying on the County’s methodology, COTA produced a value contraxy to USPAP Standards and Kansas law. Fourth, Tallgrass claims COTA erred in making findings of fact that are not supported by substantial evidence. Finally, Tail-grass argues COTA acted in an arbitrary, capricious, and unreasonable manner when it failed to decide whether Tallgrass had been subject to intentional and systematic excessive valuations. As reflected below, we find COTA should be affirmed in part, reversed in part, and remanded with directions.
Kansas Judicial Review Act
Tallgrass’ appeal of the COTA decision is governed on review by the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. An agency decision is in error if:
“(i) The agency has erroneously interpreted or applied the law, K.S.A. 2009 Supp. 77-621(c)(4); (ii) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure, K.S.A. 2009 Supp. 77-621(c)(5); (iii) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, K.S.A. 2009 Supp. 77-621(c)(7); or (iv) the agency action is otherwise unreasonable, arbitrary, or capricious, K.S.A. 2009 Supp. 77-621(c)(8).” In re Tax Appeal of Brocato, 46 Kan. App. 2d 722, Syl. ¶ 2, 277 P.3d 1135 (2011).
The KJRA defines the scope of judicial review of state agency-actions unless the agency is specifically exempted from application of the statute. K.S.A. 2013 Supp. 77-603(a); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012). On appeal, the burden of proving the invalidity of the agency action rests on the party asserting such invalidity. K.S.A. 2013 Supp. 77-621(a)(1). Specific standards of review under the KJRA for each of Tallgrass’ claims will be discussed as the issue is analyzed.
Did COTA Err in Interpreting KS.A. 2013 Supp. 79-1460(a)(2)?
The County initially provided identical appraisal values for the Property for tax years 2010 and 2011. With receipt of COTA’s 2009 tax ruling while the 2010 and 2011 appeals were pending, the County lowered the 2010 value equal to COTA’s 2009 value of the Property at $8,000,000. Tallgrass now argues application of K.S.A. 2013 Supp. 79-1460(a)(2) requires COTA also to value the Property for 2011 at $8,000,000. COTA denied Tallgrass’ request. Tail-grass claims COTA misinterpreted the statute in so ruling. We find COTA correctly applied K.S.A. 2013 Supp. 79-1460(a)(2).
Standard of Review
Interpretation of a statute is a question of law over which appellate courts exercise unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something that is npt readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). The courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
Statutes imposing a tax must be interpreted strictly in favor of the taxpayer. However, tax exemption statutes are “interpreted strictly in favor of imposing the tax and against allowing an exemp tion for one who does not clearly qualify for die exemption.” In re LaFarge Midwest, 293 Kan. at 1045.
The Kansas Supreme Court no longer extends deference to an agency’s statutory interpretation. 293 Kan. at 1044; Hill v. Kansas Dept. of Labor, 292 Kan. 17, 21, 248 P.3d 1287 (2011) (noting that the doctrine of operative construction has lost favor). Thus, we will proceed with no deference to COTA’s interpretation of K.S.A. 2013 Supp. 79-1460(a)(2).
“ In the absence of valid statutory authority, an administrative agency may not, under the guise of a regulation or order, substitute its judgment for that of the legislature. It may not. .. modify, alter, or enlarge the legislative act which is being administered.’ ” NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989).
Application ofKS.A. 2013 Supp. 79-1460(a)(2)
The statute provides in relevant part:
“(a) The county appraiser shall notify each taxpayer in the county annually on or before March 1 for real property and May 1 for personal property, by mail directed to the taxpayer’s last known address, of the classification and appraised valuation of the taxpayer’s property, except that, the valuation for all real property shall not be increased unless:... (2) for the taxable year next following the taxable year that the valuation for real property has been reduced due to a final determination made pursuant to the valuation appeals process, documented substantial and compelling reasons exist therefor and are provided by the county appraiser.”
The County admitted to using and rolling over its 2010 tax year valuation of $10,870,383 to tax year 2011. Tallgrass argues K.S.A. 79-501 and K.S.A. 2013 Supp. 79-503a dictate the County is required to annually appraise real property at its fair market value, and the County’s identical valuations in 2010 and 2011 demonstrated notliing in the market required a different value for tax years 2010 and 2011. Thus, Tallgrass argues when the County lowered the Property’s 2010 valuation to $8,000,000 based on COTA’s 2009 tax year ruling, the County needed to offer evidence to demonstrate a change in market conditions to justify an increased 2011 tax valuation. Tallgrass claims the County failed to provide any evidence to support such an increase in valuation from tax year 2010 to 2011, thus violating K.S.A. 2013 Supp. 79-1460(a)(l) and (a)(2).
Tallgrass notes K.S.A. 2013 Supp. 79-1460(a)(2) imposes additional requirements on a county before it increases die valuation of real property following a taxable year where the valuation was reduced due to a final determination made pursuant to the valuation appeals process. Here, Tallgrass claims the County assigned the same initial values to the Property for 2010 and 2011 resulting in Tallgrass’ appealing both years’ fair market value. While the appeal for both years was pending before COTA, the parties agreed to a reduced 2010 valuation based on COTA’s decision establishing the 2009 valuation. At the subsequent COTA hearing for tax year 2011, Tallgrass argued to COTA that the County failed to provide substantial and compelling reasons why its recommended 2011 valuation was higher than the reduced 2010 valuation. COTA disagreed, stating K.S.A. 2013 Supp. 79-1460(a)(2) was inapplicable because “the 2010 appeal was never submitted to this Court for adjudication.”
Tallgrass now claims COTA erred in so ruling because nothing in K.S.A. 2013 Supp. 79-1460(a)(2) indicates that the statute is only applicable if the relief in the prior year resulted from a COTA adjudication. Tallgrass argues the statute is silent as to who must make the final value determination in the prior year. Tallgrass argues the legislature failed to specify at which level in the valuation process the relief must occur and this court must interpret K.S.A. 2013 Supp. 79-1460(a)(2) such that a final valuation determination can be made at any level of the valuation appeals process. Under Tallgrass’ interpretation, the County’s reduction of the 2010 tax valuation would require the County to have provided substantial and compelling reasons to increase the 2011 tax valuation. Tallgrass argues the County failed to make such a showing and therefore claims COTA misinterpreted and misapplied both K.S.A. 2013 Supp. 79-1460(a)(l) and (a)(2).
Another panel of this court in In re Equalization Appeal of California Crossing, No. 106,259, 2012 WL 2620997, at *6 (Kan. App. 2012) (unpublished opinion), held that “K.S.A. 2011 Supp. 79-1460(a)(2) requires the County appraiser to apply tire same value to a year following a successful tax appeal.” (Emphasis added.) We find this interpretation of the statute is persuasive. The County was required to lower the 2010 tax valuation in accordance with K.S.A. 2013 Supp.79-1460(a)(2). It does not matter how the parties dealt with the procedure of reducing the value for 2010, as the County was statutorily required to reduce the value equal to the 2009 value. By its plain language, the statute applies only to the next tax year, not year after year, if an appeal of subsequent tax years is pending. Tallgrass’ argument is counterintuitive to the statutoiy language.
This issue arose with the passage of time, given appeals from three tax years were all pending when the first tax year (2009) was resolved. We hold the COTA-determined 2009 reduced fair market valuation only applies to die next tax year, i.e., tax year 2010. Tax year 2011 becomes a new independent tax valuation event. “Next” is defined as: “Immediately following, as in time, order, or sequence.” The American Heritage Dictionaiy 1189 (5th ed. 2011). By the very definition of “next” year, 2011 is not the next tax year after the tax year 2009 valuation was determined.
In this context, COTA properly found the 2010 tax valuation was subject to application of K.S.A. 2013 Supp. 79-1460(a)(2) and not by “a final determination made pursuant to the valuation appeals process.” When COTA established the 2009 market value (which was the applicable fair valuation determination), that value affected 2010’s fair market valuation and not 2011’s fair market valuation for the Property.
Did COTA Err in Adopting the County’s Valuation by Implicitly Finding the County Did Not Have the Burden of Proof?
In addition to the requirements of K.S.A. 2013 Supp. 79-1460(a), Tallgrass argues the County had the burden of demonstrating the validity and correctness of its determination of value pursuant to K.S.A. 2013 Supp. 79-1609. Tallgrass claims the County failed to sustain that burden, as evidenced by COTA’s finding that the County’s expense rate was in error. In parallel arguments, Tallgrass claims COTA’s adoption of the County’s valuation methodology and inputs were not based on substantial competent evidence and as a result COTA improperly shifted the burden of proof by presuming a valuation containing an error was nevertheless valid and correct, requiring Tallgrass to prove the valuation was not valid and correct. Thus, to determine if COTA misinterpreted or misapplied K.S.A. 2013 Supp. 79-1609, we will also review tire facts presented. As discussed below, we find Tallgrass’ argument fails.
Standard of Revieiv
Interpretation of K.S.A. 2013 Supp. 79-1609 involves the same review as discussed in the prior section, and the statute must be construed in favor of the taxpayer without deference to the agency’s interpretation. See In re LaFarge Midwest, 293 Kan. at 1044-45; Hill, 292 Kan. at 21.
“In light of the record as a whole” is statutorily defined by K.S.A. 2013 Supp. 77-621(d) as meaning
“that the adequacy of the evidence in the record before tire court to support a particular finding of fact shall be judged in light of all the relevant evidence in tlie record cited by any party that detracts from such finding as well as all of tire relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by die presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.”
Although not statutorily defined, “substantial evidence” refers to “ ‘evidence possessing something of substance and relevant consequence to induce the conclusion that tire award was proper, furnishing a basis [of fact] from which the issue raised could be easily resolved.’ ” Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).
Did COTA Misinterpret or Misapply K.S.A. 2013 Supp. 79-1609?
To support its claim, Tallgrass points to Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 14, 453 P.2d 59 (1969), where the Kansas Supreme Court held that a county’s valuation which fails to consider all statutory factors is invalid. These statutory factors are listed in K.S.A. 2013 Supp. 79-503a, and Tallgrass particularly notes K.S.A. 2013 Supp. 79-503a(g), which requires a county appraiser using an income approach valuation to consider “earning capacity as indicated by lease price, by capitalization of net income or by absorption or sell-out period.” Tallgrass argues implicit in this statutory language is the consideration of reasonable operating expenses. See In re Tax Refund Application of Affiliated Property Services, Inc., 19 Kan. App. 2d 247, 249, 870 P.2d 1343 (1993) (under the income approach, net income of property is determined by subtracting reasonable operating expenses from the market rental potential of any structures on the property). Tallgrass claims the County failed to consider Tallgrass’ reasonable operating expenses; thus, COTA misinterpreted and misapplied K.S.A. 2013 Supp.79-1609.
Tallgrass’ interpretation of COTA’s ruling is inaccurate. COTA adopted Meyer’s income approach valuation for eveiy aspect of its own valuation except expense rates. COTA ruled Meyer’s expense calculation failed to give adequate consideration to the Property’s actual expenses. COTA instead utilized the Keller appraisal, saying it “included consideration of the subject property’s actual operating expenses based on a review of expenses from comparable area properties” to be most reflective of the market. COTA properly considered operating expenses in its valuations, finding Keller’s operating expense calculations were valid by a preponderance of the evidence standard. COTA clearly considered the operating expense analysis of all three experts. Without reweighing the evidence, substantial evidence exists when viewed in light of the evidence as a whole to support COTA’s reliance on Keller’s expense rate valuation coupled with Meyer’s income analysis to reach the fair market valuation COTA found.
Therefore, COTA did not shift the burden; it merely relied on the expense rate provided by Keller, the County’s rebuttal expert witness, rather than either of the expense rates provided by Meyer or Dillon. While COTA denied the County the use of Keller’s appraisal during its case-in-chief to adjust its valuation, his testimony was allowed and relevant for rebuttal purposes. Tallgrass provides no authority why COTA could not utilize die relevant testimony of the County’s rebuttal witness. Tallgrass has failed to meet its burden in showing how COTA improperly applied K.S.A. 2013 Supp. 79-1609. See-K.S.A. 2013 Supp. 77-621(a)(l); K.S.A. 2013 Supp 77-621(c)(4).
Did COTA’S Valuation Violate USPAP Standards and Kansas Law?
Tallgrass argues Meyer’s appraisal was the result of a valuation by summation in violation of USPAP Standards and Kansas law. Tallgrass appears to be arguing COTA violated K.S.A. 2013 Supp. 774321(c)(5) in doing so. Tallgrass claims Meyer’s appraisal divided the three-story building into its three component parts based on tenant use and then added all three parts to get the final valuation. As reflected below, Tallgrass’ argument fails.
Standard of Review
When determining the validity of an assessment of real property for uniformity and equality in the distribution of taxation burdens, the essential question is whether the standards prescribed in K.S.A. 2013 Supp. 79-503a have been considered and applied by taxing officials. Krueger v. Board of Woodson County Comm’rs, 31 Kan. App. 2d 698, 702, 71 P.3d 1167 (2003), aff'd 277 Kan. 486, 85 P.3d 686 (2004).
To the extent the issue involves statutory interpretation, tax exemption statutes are interpreted strictly in favor of imposing the tax and against allowing an exemption for one who does not clearly qualify, without deference to the agency’s statutory intpretation. See In re LaFarge Midwest, 293 Kan. at 1044-45.
USPAP Standards
Kansas law requires county appraisals be performed in accordance with generally accepted appraisal standards promulgated by the appraisal standards board of the Appraisal Foundation in effect on March 1,1992, and consistent with the definition of fair market value in K.S.A. 2013 Supp. 79-503a. See K.S.A. 79-504; K.S.A. 79-505; K.S.A. 79-506. The PVD’s Directive No. 92-006 further specifies that a county’s appraisal comply with the 1992 edition of US-PAP, Sections 2 and 6.
Under USPAP Standards, an appraiser should refrain “from estimating the value of the whole by adding together tire individual values of the various estates or components.” USPAP Standards Rule l-4(e), p. 12 (1992); USPAP Standards Rule 6-5(d), p. 33 (1992). The Comment to USPAP Standards Rule l-4(e) indicates a summation approach may be acceptable as long as the value of the whole is tested and supported. “According to the rule, however, an appraiser must analyze or test the effect on value of the assemblage of the various estates or component parts.” In re Tax Appeal of Dillon Stores, 42 Kan. App. 2d 881, 890, 221 P.3d 598 (2009). No such language exists in the Comment to USPAP Standards Rule 6-5(d). See USPAP Standard Rule 6-5(d), Comment, p. 33.
USPAP Standards have been embodied in the statutory scheme of valuation, and COTA’s failure to adhere to these standards may constitute a deviation from prescribed procedure or an error of law. Board of Saline County Comm’rs v. Jensen, 32 Kan. App. 2d 730, Syl. ¶¶ 5-6, 88 P.3d 242, rev. denied 278 Kan. 843 (2004). Panels of this court have found an aggregate (summation) sales comparison approach to violate USPAP. See In re Dillon Stores, 42 Kan. App. 2d at 890-91; Jensen, 32 Kan. App. 2d at 735-36 (aggregated sales approach not permissible in any appraisal context).
Here, the County relied on Meyer’s income approach methodology, which considered the three different ways the tenants used tire Property. Meyer then applied the relevant rental rates to the useable square footage to determine potential gross and effective income, subtracted operating expenses, and calculated the net operating incomes. Meyer divided the net operating income by the calculated capitalization rate to determine the value of the Property. Tallgrass argued the County’s valuation methodology was a valuation by summation, which was a single-property appraisal that violated USPAP Standards. COTA disagreed, holding “nothing in the record suggests that the County’s valuation is premised on an appraisal approach expressly prohibited by USPAP.” COTA subsequently reached its final valuation by utilizing Keller’s expense rate analysis with Meyer’s income approach.
Tallgrass argues COTA’s ruling and failure to adhiere to USPAP Standards constitutes an error as a matter of law. While Tallgrass agrees Meyer’s expense rate analysis was mistaken, Tallgrass argues COTA erred in adopting Keller’s analysis. According to Tallgrass, Keller failed to account for property-specific expenses such as full-time management, an integrated telephone system, two elevators, and a conference room when determining his expense rate. Tail-grass argues Dillon’s analysis, on the other hand, gave due consideration to property-specific expenses in determining market expense rates for the Property.
In fair market value cases where the mass appraisal system is used to assess the value of real property, as it was here, Kansas law dictates that Standard 6 of the USPAP be applied to the resulting appraisal, not Standards 1 and 2. See In re Equalization Appeal of Johnson County Appraiser, 47 Kan. App. 2d 1074, Syl. ¶¶ 10-11, 283 P.3d 823 (2012). Standard 6 governs mass appraisal practice and states that an appraiser must employ “generally accepted methods and techniques necessary to produce and communicate credible appraisals.” USPAP Standard 6, p. 29.
Additionally, we note PVD Directive No. 92-006 indicates the County is not held to Standard 1, even though Tallgrass argues Standard l-4(c) applies. Standard 1 applies to single-property appraisals, not mass appraisals. Here, COTA found this was a mass appraisal process governed by Standard 6, not Standard 1. We find it unnecessary to discuss Standard 1 or l-4(c) as they are separate and distinguished standards from the mass appraisal process under Standard 6.
Tallgrass states tire value of the whole should not be estimated by adding together individual values of component parts. Tallgrass emphasized the County’s valuation methods did just that; therefore, Tallgrass claims COTA erred in relying on the County’s methodology, as it did not comply with USPAP Standards.
We have found two cases discussing the issue of valuation by summation with any depth in Kansas: Jensen and In re Dillon Stores. Jensen involved the Board of Tax Appeals’ (BOTA) approval of the county conducting a separate sales comparison approach on each fourplex built on a single parcel containing 30 units, then adding up the individual value of each fourplex to get the value of the entire parcel. The Court of Appeals panel rejected this assessment as being violative of USPAP Standards Rule l-4(e), noting that Standards Rule 6-5(d), which governs mass appraisals, also prohibits such a valuation. The panel determined these Standard Rules furthered its conclusion that “the practice [of aggregated sales approaches] is simply not permissible in any appraisal context.” 32 Kan. App. 2d at 736. The panel further rejected the county’s argument that BOTA referenced alternate cost and income approaches to support its finding, as the panel emphasized BOTA’s final decision relied exclusively on the sales comparison as its best estimate of fair market value. 32 Kan. App. 2d at 736.
Similarly, in In re Dillon Stores, a panel of this court again rejected summation valuations. The subject property consisted of 10 separate but contiguous buildings located on an 84-acre site. The county valued each building separately and summed the values to reach its final valuation. The panel held there was “no question” the county’s valuation violated USPAP Standards Rule l-4(e) because the county segmented the property, valued each segment individually, and added the values to get the final valuation. 42 Kan. App. 2d at 891. On appeal, the county argued it had complied with the USPAP by assessing the value for its highest and best use, “which required an appraisal of the property in separate parcels.” The panel disagreed, pointing out that “USPAP’s Statement on Appraisal Standards No. 10 (E)(3) clearly demonstrates that highest and best use of a property intended to be divided or subject to division may not be achieved by the summation approach.” In re Dillon Stores, 42 Kan. App. 2d at 891.
In both In re Dillon Stores and Jensen, the properties were valued by aggregating the values of separate structures on a large parcel of land. See In re Dillon Stores, 42 Kan. App. 2d at 883-84; Jensen, 32 Kan. App. 2d at 731-34. USPAP’s Statement on Appraisal Standards No. 10 (E)(3) (2001), which the panel in In re Dillon Stores relied upon, warns against summation of multiple unit values in determining the value of an entire property. USPAP Statement on Appraisals Standards No. 10(E)(3), p. 108 is now retired and not applicable. Here, the County reached its valuation of a single, multi-tenant property through calculating the three different types of tenant use in the Property. The County correctly argues the USPAP Standards and the caselaw in Kansas regarding valuation by summation focus on the prohibition of using individual buildings as component values. With this understanding, the US-PAP standards allow an appraiser to calculate the value of a single structure through a total valuation of the structure’s different uses.
Here, it was not wrong to consider the different uses of a single property because different tenant finishes result in different rental rates, costs, expenses and values. If one considers only the cheapest rental income to determine value, then the fair market value would be too low. Likewise, if one considered only the highest rental income to determine value, the fair market value would be too high. There must be a balanced valuation approach in compliance with USPAP Standard 6 for mass appraisals and that is accomplished by looking at all the ways in which the property is used and designed to be used.
We find USPAP Standards Rule 6-5(d) applies only when multiple structures are valued separately to reach an aggregate valuation of an entire property. Under this interpretation, COTA did not err in utilizing a combination of Meyer s and Keller s appraisals to reach a reasonable fair market value for the Property.
Tallgrass argues a panel of this court held USPAP Standards Rule 6-5(a)(v) (1992) provides that when “necessary for credible assignment results, the appraiser must assess value by potential earnings, including rentals, expenses, interest rates, capitalization rates, and vacancy data.” In re Tax Appeal of Brocato, 46 Kan. App. 2d 722, 730, 277 P.3d 1135 (2011). An analysis of Brocato reveals the panel actually quoted the 2008 USPAP Standards, not the 1992 USPAP Standards. Per Kansas statute, we must apply the 1992 USPAP Standards. There is no USPAP Standard Rule 6-5(a) (v) (1992). Thus, Tallgrass’ rebanee on Brocato to support property-specific expenses fads.
Kansas Law Standards
This second standard requires that we consider Kansas law. Under K.S.A. 2013 Supp. 79-503a, an appraisal of real property for ad valorem tax purposes must conform to generally accepted appraisal procedures which are consistent with the definition of fair market value. Tallgrass argues Meyer violated this statute by relying on old leases without adjusting the rates to current market or eliminating the cost of excess tenant improvement. Tallgrass cites to In re Equalization Appeal of Prieb Properties, 47 Kan. App. 2d 122, 132-33, 275 P.3d 56 (2012), where a panel of this court rejected a county’s argument that rates from a built-to-suit lease reflect market rates at any time during the lease.
Instead, Tallgrass argues market rent should be determined by analyzing the current real estate market and the effective rent, which the Appraisal Institute’s textbook, The Appraisal of Real Estate, p. 454 (13th ed. 2008), defines as the rental rate after adjusting for “free rent, excessive tenant improvements, moving allowances, lease buyouts, cash allowances, and other leasing incentives.” Because COTA adopted the County’s rental rates, Tallgrass argues COTA erroneously relied on an unadjusted and untimely market rental rate, contrary to K.S.A. 2013 Supp. 79-503a.
According to Tallgrass, Kansas law also prohibits a use valuation except for agricultural land. Tallgrass supports its claim with Board of Douglas County Comm’rs v. Cashatt, 23 Kan. App. 2d 532, 545-46, 933 P.2d 167 (1997), where a panel of this court held that when the highest and best use of a property is commercial, COTA’s valuation of the property through its actual residential use is contraiy to law. Here, Tallgrass claims the County based its income approach on the actual use of the property, contraiy to Kansas law.
In Cashatt, another panel of this court concluded that residential land must be valued at fair market value even if it resulted in some residential land being valued higher than others due to its suitability for commercial use. Doing so would not result in unequal or nonuniform taxation. 23 Kan. App. 2d at 545. The panel agreed with the county’s valuation of a home as a commercial property because it would be the property’s highest and best use. See 23 Kan. App. 2d at 537, 539-40. Thus, focusing only on the present use of die property for valuation without regard for fair market value failed to account for all the factors in K.S.A. 2013 Supp. 79-503a. See 23 Kan. App. 2d at 545. Here, each of die relevant factors listed in K.S.A. 2013 Supp. 79-503a were considered; therefore, neither the County nor COTA deviated from USPAP Standards or the law.
Tallgrass claims that Meyer relied on leases that had been in place for more than 10 years is unfounded in the record. The older leases Meyer considered were owner leases that were removed from his consideration, in keeping with COTA’s 2009 order. Meyer considered both current nonowner leases and leases on comparable properties. Dillon’s appraisal considered only property-specific lease rates and asking rates of vacant space.
Under Article 11, § 12 of the Kansas Constitution, agricultural property is the only classification of property in Kansas that is given a property tax value based on the use value. Kan. Const, art. 11, § 12; see Cashatt, 23 Kan. App. 2d at 540. “ ‘ “Use Value” can have more than one meaning; however, it is generally conceded, as it relates to agricultural land, that “Use Value” represents a value based on the net income that the land is capable of producing, assuming typical management practices.’ ” In re Tax Protest of Ann W. Smith Trust, 272 Kan. 1396, 1408, 39 P.3d 66 (2002). Here, there is no evidence the County valued the Property at what it was “capable” of producing. Every tenant rental rate was calculated and evaluated at what the County determined to be fair market value, in keeping with the requirements of K.S.A. 2013 Supp. 79-503a. Tallgrass fails to point to any specific lease or calculation which would be contrary to K.S.A. 2013 Supp. 79-503a. Thus, Tall-grass has failed to meet its burden. See K.S.A. 2013 Supp. 77-621(a)(1). COTA did not base its valuation on an unconstitutional “use value” appraisal method, nor did it rely on untimely and unadjusted lease rates as market rates, contrary to K.S.A. 2013 Supp. 79-503a.
Were COTA’s Findings of Fact Supported by Substantial Evi-denceP
COTA held an income approach using the County’s inputs with Keller’s operating expense rates was the best indicator of value for the Properly. Tallgrass argues COTA’s order does not contain detailed findings which explain its rationale for selecting the County’s income approach methodology and claims the County’s methodology and inputs are not supported by and are contraiy to the substantial evidence of the case. We disagree and hold that COTA’s decision is supported in light of the record as a whole.
Standard of Review
As amended, the KJRA now defines substantial evidence “in light of the record as a whole” to include the evidence both supporting and detracting from an agency’s finding. Courts must now determine whether tire evidence supporting the agency’s factual findings is substantial when considered in light of all the evidence. K.S.A. 2013 Supp. 77-621(d); see Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010). In reviewing evidence in light of tire record as a whole, the court shall not reweigh the evidence or engage in de novo review. K.S.A. 2013 Supp. 77-621(d).
Were COTA'S Findings Supported by Substantial Evidence in Light of the Record as a Whole?
The income capitalization approach analyzes a property’s capacity to generate future benefits and capitalizes that net income stream into an indication of present value. The Appraisal of Real Estate, p. 445. The accuracy of the approach depends upon the accuracy of the inputs such as size, rental income, vacancy, collection, operating expenses, and cap rates. Tallgrass correctly argues that if one or more inputs are incorrectly calculated, the resulting value will be in error.
Square feet calculation
Tallgrass argues Meyer based his findings on incorrect assumptions of how the tenants used the office space. COTA adopted Meyer’s inputs without adjustment and determined several tenants were using medical office space when Tallgrass claims they should have been considered at a regular office rate. To support its claim, Tallgrass points to the testimony of one of the owners and treasurer of Tallgrass, who gave uncontroverted testimony demonstrating these tenants were not medical providers. Based on this testimony, Tallgrass calculated that COTA overvalued 11,388 square feet of non-medical space at a rental rate difference of $2 per square foot. Thus, Tallgrass urges the panel to recalculate the net operating income with 38,643 square feet , of medical office space, 23,527 square feet of office space, and 12,533 square feet of surgical space, for a total square footage of 74,703.
The County concedes COTA made a mathematical error in allocating the square footage between office, medical, and surgical space. The County agrees with Tallgrass’ adjustment to the square footage of office, medical, and surgical space except for Tallgrass’ inclusion of 122 square feet in office space for MC Concessions, which Meyer did not use in his indication of value. Thus, the County asks the panel to remand the case with instructions to recalculate the fair market value with the office and medical square footage the parties now agree is correct or, in the alternative, to recalculate the fair market value with the corrected numbers.
With the exception of MC Concessions, the parties agree on how the Property rental area should be calculated and valued, pursuant to the rest of COTA’s holding. However, when reviewing the County’s calculation of the square footage of the Property, the County erred in its total calculation of square footage. The County posited the Property had 74,703 square feet of usable space based on the rent rolls. COTA relied on this number in its ruling, as did Tallgrass in its appellate brief. Upon further review, the total square footage, excluding MC Concessions, only adds to 74,508 square feet.
The parties’ agreement on how the rental area should be calculated indicates COTA made a mathematical error in failing to adjust the rental area to match its ruling, not an error in interpreting the law itself. The parties also failed to notice that the County’s calculation of total usable area was slightly off until Tail-grass indicated as much in its reply brief. Because both miscalculations are mathematical in nature, not indicative of a misinterpretation of law or tire evidence, we must remand back to COTA with instructions to recalculate the 2011 valuation.
In calculating the final valuation, Tallgrass argues MC Concessions should be included in the total square footage calculation, as this addition makes the actual number from the rent roll closer to what COTA relied upon. Despite Tallgrass’ claim, Meyer clearly testified MC Concessions was not considered in his appraisal. Because COTA relied on Meyer’s appraisal and we cannot reweigh evidence, MC Concessions should not be considered in the calculation on remand.
On remand, COTA shall utilize the lease rate previously determined for each of the three types of spaces for office, medical, and surgical. COTA shall recalculate the value of the property by cor-rectiy allocating the total square feet of the building of 74,508 square feet based on die agreed-upon space allocation between office, medical, and surgical spaces. Again, die space used by MC Concessions shall not be considered, and by our calculations, is not in the square foot total of 74,508.
Capitalization Rate
Tallgrass next argues COTA erred in adopting the County’s lower capitalization rate. The capitalization rate was a battle of the experts and a question of credibility for the factfinder, COTA. Meyer used a capitalization rate of 9%, even though the study Meyer used showed a class A office of larger than 20,000 square feet should have a capitalization rate of 9.25%. Further, the sales Dillon showed in his analysis demonstrated the only tax rate in Topeka of less than 9.5% came from a dental office of under 4,000 square feet. Tallgrass argues the larger properties had capitalization rates of 9.64% and 9.54%, tire median for all of Dillon’s comparison properties was 9.59%, and the average was 9.8%. Thus, Tallgrass claims there was no evidence to support the County’s use of a 9% capitalization rate.
When considered in light of all evidence, there is substantial evidence to support COTA’s decision to adopt the County’s capitalization rate. While Tallgrass is correct that class A investment properties over 20,000 square feet were given a capitalization rate of 9.25% in the Shawnee County benchmark study, COTA agreed with the County’s determination that the Property was an A+ investment class property. The same benchmark study advocated a capitalization rate of 8.75% for such properties, which Meyer increased by .25% to account for the Property’s size. Further, COTA noted Tallgrass’ expert did not adjust his proposed capitalization rate for comparability; after making such an adjustment, COTA determined Dillon’s appraisal supported a 9% capitalization rate.
Tallgrass also fails to show any statutory or caselaw authority to support the rejection of the County’s capitalization rate. Thus, Tail-grass has again failed to meet its burden to demonstrate the invalidity of COTA’s ruling. K.S.A. 2013 Supp. 77-621(a)(l). Because there is substantial evidence when viewed in light of the record as a whole to support COTA’s ruling, and because this court cannot reweigh evidence, COTA did not err in selecting a 9% capitalization rate. See K.S.A. 2013 Supp. 77-621(d).
Did COTA Act in an Arbitrary, Capricious, and Unreasonable Manner by Failing to Decide Whether Tallgrass Had Been Subjected to Intentional and Systematic Excessive ValuationsP
Tallgrass argues COTA failed to rule on whether the Property has been subjected to intentional and systematic excessive valuations by tire County and argues it was, in fact, subjected to such valuations. We will first consider our standard of review and then address Tallgrass’ claims. Given the record presented below we find no arbitrary, capricious, or unreasonable acts by COTA.
Standard of Review
A rebuttable presumption of validity attaches to all actions of an administrative agency. The burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions. Jones v. Kansas State University, 279 Kan. 128, 140, 106 P.3d 10 (2005).
Did COTA Act Arbitrarily and Capriciously in Failing to Rule on Whether the County Subjected Tallgrass to Intentional and Systematic Excessive Valuations?
Under K.S.A. 2013 Supp. 77-621(c)(3), the Court of Appeals shall grant relief if COTA has not decided an issue requiring resolution. The arbitrary and capricious test of K.S.A. 2013 Supp. 77-621(c)(8) relates to whether a particular action should have been taken or was justified, such as the reasonableness of an agency’s exercise of discretion in reaching a determination or whether die agency’s action was without foundation in fact. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 569, 232 P.3d 856 (2010).
Tallgrass claims COTA erred by failing to rule on its excessive valuation claim, but Tallgrass fails to provide a record citation showing where it raised such a claim before COTA and fails to explain how COTA erred in failing to address a claim not raised before it. A point raised incidentally in a brief and not supported by the record is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Thus, Tallgrass’ claim is not properly before us, and we decline to address it. However, we may still address Tallgrass’ underlying claim that COTA’s decision was unconstitutional. See K.S.A. 2013 Supp. 77-621(c)(1).
Did the County Systematically and Intentionally Discriminate Against Tallgrass?
Uniform and equal taxation is guaranteed under the Kansas Constitution, Article 11. Tallgrass argues this right was violated by the County through its consistent valuation of the Property above fair market value. Tallgrass claims it was forced to expend time, effort, and money to obtain its guaranteed right to fair market taxation guaranteed by the Kansas Constitution, similar to the facts of the United States Supreme Court case Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688 (1989). However, Tallgrass fails to explain how the facts of Allegheny apply to the case at hand.
In Allegheny, the Court found systematic and intentional discrimination against a coal company in finding the coal company’s property had been assessed at 35 times that of comparable neighboring property for 6 years with no basis for the discrepancy. 488 U.S. at 341. Additionally, the Court found no constitutional basis for challenge in the county’s approach to valuation, even when two different methods were used to assess property in the same class. 488 U.S. at 342.
The Court, in Allegheny, considered the valuation of the coal company intentionally discriminatoiy because it was assessed at many times the rate of a comparable neighboring property over an extended period of time. 488 U.S. at 341-42. Here, Tallgrass merely complains that it has been forced to challenge the County’s valuation for multiple years without demonstrating a difference between how the County has valued the Property in relation to other comparable properties in Shawnee County.
“Mere excessiveness of an assessment or errors in judgment or mistakes in making unequal assessments will not invalidate an assessment, but the inequality or lack of uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief.” Addington v. Board of County Commissioners, 191 Kan. 528, 532, 382 P.2d 315 (1963). Here, Tallgrass fails to show any indicia of bad faith, arbitrary, or oppressive action by the County. When “the only evidence of excessiveness is in dispute and evidence offered to establish a base for comparison in attempting to show lack of uniformity is found to be inadequate and insufficient by die trier of facts, an assessment, made within statutory confines, will not be invalidated by judicial intervention.” Cities Service Oil Co. v. Murphy, 202 Kan. 282, 294, 447 P.2d 791 (1968).
Tallgrass does not show how its market valuation is excessive in relation to comparable properties, and the only evidence of its excessive market valuation is in dispute. Tallgrass has further failed to sustain its burden of proof to show that its property has been valued excessively. See Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 368, 492 P.2d 147 (1971). Because Tallgrass’ only claim of excessive valuation is based on evidence in dispute, Tallgrass fails to demonstrate indicia of bad faith or intentional action on the part of the County. Tallgrass has failed to sustain its burden of proof in demonstrating that the Property has been systematically and intentionally valued excessively.
Conclusion
As the appealing party, Tallgrass had the burden to show tire acts of COTA were not supported by the record. The record reflects this is a difficult property to appraise under a mass appraisal with the 1992 USPAP Standards. Tallgrass argued for the application of tire rollover provision of K.S.A. 2013 Supp. 79-1460(a)(2), but it failed to recognize the rollover provision is only for that tax year and the next tax year. There is no double-year rollover just because three tax year appeals are pending when the first appeal is answered invoking K.S.A. 2013 Supp. 79-1460(a)(2) for the next tax year. The COTA-determined method for the fair market valuation of the property is supported by substantial competent evidence and will reflect a reasonable fair market value upon recalculation pursuant to the directions in this opinion.
Recalculating the fair market value will require COTA to utilize the total square feet of the building at 74,508, properly allocated as the parties have agreed, between the three uses of office, medical, and surgical space. COTA shall use the rental rates COTA has previously determined for each type of use.
Affirmed in part, reversed in part, and remanded with instructions to recalculate the rental area based on the agreed-to rent rolls from the County’s appraisal but excluding MC Concessions from the total area of 74,508 square feet, basing tenant usage as the parties have agreed, and using all other valuation inputs and expenses as originally adopted by COTA.
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Atcheson, J.:
This case revolves around a disputed million-dollar promise between father and daughter. Plaintiff Ellen Byers Bouton has appealed on the grounds the Pottawatomie County District Court precipitately entered summary judgment, improperly cutting short her action for equitable relief on the broken promise. We agree. The district court erred in dismissing the promissory estoppel claim Bouton brought against Defendant Walter Byers, her father, for breaching a promise she says he made to bequeath valuable ranchland to her — a promise that induced her to leave the Washburn University faculty so she could help him manage his cattle business. Byers denies ever having made that promise to Bouton and has since sold the land. The record dem onstrates disputed issues of material fact precluding die district court’s legal conclusion that the promise could not have been reasonably intended or relied upon in the way Bouton suggests. Byers has cross-appealed on various arguments he asserts would otherwise bar Bouton’s action. Those arguments also fail at this stage. We, therefore, reverse the judgment and remand to the district court for further proceedings.
Summary Judgment Review, Factual Record, and Procedural History
Because the governing standard of review shapes how a district court must look at the evidence on a motion for summaiy judgment and, in turn, similarly drives appellate consideration of the contested issues, we start there. As the party seeking summary judgment, Byers had the obligation to show, based on appropriate ev-identiary materials, there were no disputed issues of material fact and judgment could, therefore, have been entered in his favor as a matter of law. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 (2013); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009); Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, tire movant argues there is nothing for a juiy or a trial judge sitting as factfinder to decide that would make any difference. A factual dispute is material if its resolution would make a difference in how a contested issue must be resolved. Zimmerman v. Brown, 49 Kan. App. 2d 143, 149, 306 P.3d 306, rev. denied 298 Kan. 1209 (2013).
As the party opposing summary judgment, Bouton had to point out evidence calling into question one or more material facts presented in support of the motion. See Shamberg, 289 Kan. at 900; Korytkowski, 283 Kan. 122, Syl. ¶ 1. If the party resisting summary judgment does so, the motion should be denied, so a factfinder may resolve those disputes. In addressing a request for summary judgment, the district court must view the evidence most favorably to tire party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the eviden-tiary record. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2; Sham berg, 289 Kan. at 900. An appellate court applies the same standards in reviewing the entry of a summary judgment. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2.
We now look at the facts presented in the summary judgment record in the best light for Bouton, as the party opposing the motion. For purposes of that task, much of the background leading up to the operative events seems to be undisputed and of no direct legal significance to the points on appeal. So we outline that history briefly, recognizing it to be more detailed than our narrative and if recounted at trial almost certainly more contentious. We then focus on the events material to the issues joined on summary judgment and flag the pertinent procedural markers in the district court.
Byers acquired and owned substantial tracts of ranchland through what we understand to be a number of closely held corporations. A tract in Pottawatomie Couniy included what the parties generally refer to as the family ranch where Byers lived. For some time, Byers’ son (and, thus, Bouton’s brother) managed most of the ranching operations. In 2003, Byers became concerned about his son’s conduct and how he was handling some of the business matters entrusted to him. Byers asked Bouton to help in assessing the status of the operations. At the time, Bouton held a tenure-track teaching position on the Washburn University School of Law faculty and earned about $100,000 a year. Bouton’s review revealed that her brother had not only mismanaged the business but had embezzled from it. Bouton oversaw civil litigation against her brother to recoup the losses. We also gather he was criminally prosecuted.
Bouton continued to help Byers with the ranching enterprise. She went to the ranch several times a week and wrapped work on her father’s business around her teaching duties. In late 2003, Byers showed Bouton a revised will and trust he had prepared leaving the ranch operations to her. According to Bouton, Byers said he wanted her to carry on the ranching business after his death. Byers retained the legal authority to change the testamentary instruments.
During the next 2 years or so, Bouton continued to work at straightening out the financial mess that had enveloped Byers’ corporations and the ranching business. Loans had been neglected and had to be refinanced. Taxes had gone delinquent. And other problems had to be dealt with. Bouton found it increasingly difficult to handle both the obligations Byers’ businesses imposed and the duties of a law school professor. Again, based on the summary judgment record, Bouton was also concerned about Byers’ physical wellbeing. He had suffered a stroke and lived alone on the family ranch. There were also two unoccupied homes on the family place.
In late 2004 and early 2005, Bouton and Byers discussed tire situation and the possibility that she and her family might move to the ranch so she could devote more time to the business. Byers encouraged the move, since that would permit Bouton to become involved with the ranching business on a day-to-day basis and would give her direct experience in the quotidian tasks necessary to its success. According to Bouton, she and her husband met with Byers in March 2005 to address more formally how best to accommodate the conflicting demands on her time and energy. Bouton expressed concern about leaving a well-paying and professionally fulfilling job at the law school. Byers reassured her that she needn’t worry about money because he was bequeathing her land worth more than a million dollars. In his summary judgment papers, Byers denied that any such meeting happened or diat he otherwise made representations of the sort Bouton attributed to him.
Bouton, in reliance on Byers’ promise that she would inherent the valuable land, resigned from the law school faculty after the spring 2005 semester. She and one of her sons immediately moved to a residence on the family ranch known as Hill House. Bouton’s husband and another son followed after selling their home in Osage County. In 2006, the Boutons made significant improvements to Hill House, including an addition. Also in early 2006, Byers sold some of the ranchland. Bouton questioned him about the transaction and how that might affect her inheritance. Byers explained that the proceeds from the sale would be used to pay down debt the remaining corporations owed. In August 2006, Bouton signed the first of a series of employment contracts with Byers for her services in helping run the business and in seeing to some of his personal needs primarily related to medical care and transportation. The contracts called for Bouton to be compensated on an hourly rate and by rent-free occupancy of Hill House. The evidence on summary judgment shows Bouton earned a small fraction of what she had been making as a law professor. The contracts made no mention of Bouton’s inheritance of any of the ranchland.
According to Bouton’s version of events, the water system on the family ranch froze in December 2008, imperiling the livestock. Byers and Bouton argued about how best to get water to the animals. In her summary judgment response, Bouton asserted that about a week later, Byers told her that her services at the ranch were no longer needed. Bouton stopped doing any work related to the ranching operations the next month, and Byers began charging the Bouton family rent to live in Hill House. The family moved out of Hill House and off the family ranch in mid-2009.
In late 2009, one of the corporations sold ranchland it owned. Byers tendered $32,000 to Bouton, ostensibly reflecting her portion of the corporate income as a 10 percent shareholder in the company. Bouton believed the tender substantially undervalued what she was due. She refused the payment and in April 2010 sued Byers and two of the corporations in Pottawatomie County in an action alleging self-dealing, breach of fiduciaiy duty, conversion, and other grounds essentially based on Byers’ purported misappropriation of the proceeds from the sale of corporate assets. Bou-ton and Byers settled that dispute in late December 2010. Byers paid Bouton $60,000 in exchange for a release of claims and a dismissal of the suit. Another individual involved in the sale contributed an additional $10,000 to the settlement and was included in the release Bouton signed.
In August 2010, Bouton returned to the Washburn Law School faculty in a part-time teaching position without any possibility of tenure.
About 14 months later, Byers, through his lawyer, informed Bou-ton that he had contracted to sell the family ranch — the last of his land holdings except for 10 acres — for $1.2 million. So far as Bou-ton understood, Byers no longer owned any land that she might inherit. In November 2011, Byers signed a new trust that upon his death would distribute all of his assets to charitable foundations to provide college scholarships. Byers effectively disinherited Bouton.
On December 8, 2011, Bouton filed this action against Byers seeking damages on a promissory estoppel theory in an amount equal to what she would have earned had she continued at Wash-burn Law School in the full-time, tenure-track position she resigned in 2005. That is, Bouton contends she gave up her teaching position to manage Byers’ ranching operation in reliance on his promise she would inherit land worth more than $1 million. Byers answered, denying any liability to Bouton, and counterclaimed for malicious prosecution.
After the parties undertook discovery, Byers filed a motion for summary judgment with a supporting memorandum and eviden-tiaiy materials. He asserted an array of grounds supporting judgment in his favor. Bouton duly opposed the motion with a memorandum and additional evidentiaiy materials. The district court granted the motion, finding the evidence failed to show both a definite promise from Byers and reasonable reliance by Bouton. Bouton has timely appealed. Byers has cross-appealed and presents alternative grounds supporting summary judgment the district court either rejected or declined to consider. We take up die contested summary judgment issues, adding facts as necessary.
Legal Analysis
In short, Bouton sued Byers on a promissory estoppel claim after he sold the homeplace and the surrounding land — leaving no property to satisfy the bequest he promised her as an inducement to give up her job as a law professor to oversee the ranching operations. Given the standard of review, we must accept Bouton’s assertion that Byers made such a representation, although he denies having done so. Bouton seeks restitution in the form of a monetary award approximating what she would have earned had she never left the law school faculty.
General Principles of Promissory Estoppel
Promissory estoppel is an equitable doctrine designed to promote some measure of basic fairness when one party makes a representation or promise in a manner reasonably inducing another party to undertake some obligation or to incur some detriment as a result. The party assuming the obligation or detriment may bring an action for relief should the party making the representation or promise fail to follow through. The Kansas Supreme Court has recognized promissory estoppel to be applicable when: (1) a prom-isor reasonably expects a promisee to act in reliance on a promise; (2) the promisee, in turn, reasonably so acts; and (3) a court’s refusal to enforce the promise would countenance a substantial injustice. Mohr v. State Bank of Stanley, 244 Kan. 555, 574, 770 P.2d 466 (1989); Walker v. Ireton, 221 Kan. 314, Syl. ¶ 2, 559 P.2d 340 (1977). This court recently restated that formulation of the doctrine. Byers v. Snyder, 44 Kan. App. 2d 380, 391, 237 P.3d 1258 (2010). The appellate courts’ description of promissoiy estoppel reflects the description in both the Restatement (Second) of Contracts § 90 (1979) and the Restatement of Contracts § 90 (1932). See, e.g., Ritchie Paving, Inc. v. City of Deerfield, 275 Kan. 631, 637-38, 640, 67 P.3d 843 (2003) (citing as persuasive California Supreme Court decision relying on Restatement [Second] of Contracts § 90); Walker, 221 Kan. at 321-22 (noting Kansas Supreme Court’s repeated reliance on Restatement of Contracts § 90). Because promissory estoppel rests on fairness, its application tends to be especially fact driven and, thus, defies any regimented predictive test. See Restatement (Second) of Contracts § 90, comment b (doctrine is “flexible” and “[t]he force of particular factors varies in different types of cases”).
Promissory estoppel and contract law are closely related and serve the same fundamental purposes by providing means to enforce one party’s legitimate expectations based on the representations of another party. Restatement (Second) of Contracts § 90, comment a (noting the section outlines what is often termed “promissory estoppel” and is conceptually designed to protect legitimate reliance interests). A contract typically depends upon mu tual promises that entail an exchange of bargained consideration. M West, Inc. v. Oak Park Mall, 44 Kan. App. 2d 35, 49, 234 P.3d 833 (2010) (noting that offer, acceptance, and consideration constitute “all the components of a valid contract”)- For example, A agrees to pay B $500 if B overhauls the engine of A’s car. If B does the work and A refuses to pay, B may sue for breach of contract, thus enforcing his legitimate expectation. B’s promise to work on the engine is consideration for A’s promise to pay and vice versa. Promissory estoppel commonly applies when a promise reasonably induces a predictable sort of action but without die more formal mutual consideration found in contracts. Thus, A says he or she will not foreclose the mortgage on B’s land for a specified period. So B makes significant improvements to the land. A may not then foreclose during that time. See Restatement (Second) of Contracts § 90, ill. 2.
Kansas courts have explained that a party’s reasonable reliance on a promise prompting a reasonable change in position effectively replaces the bargained for consideration of a formal contract, thereby creating what amounts to a contractual relationship. Berryman v. Kmoch, 221 Kan. 304, 307, 559 P.2d 790 (1977); see Mohr, 244 Kan. at 481; Greiner v. Greiner, 131 Kan. 760, 765, 293 Pac. 759 (1930). To the extent the promisee relies on equity to specifically enforce tire promise or recover damages equivalent to the promised performance, tire promise itself must define with sufficient particularity what the promisor was to do. See Owasso Dev. Co. v. Associated Wholesale Grocers, Inc., 19 Kan. App. 2d 549, 550-51, 873 P.2d 212, (suggesting Kansas law requires a promise containing all essential elements) rev. denied 255 Kan. 1003 (1994). That is a common view. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995); Keil v. Glacier Park, Inc., 188 Mont. 455, 462, 614 P.2d 502 (1980) (promise must be “clear and unambiguous in its terms”). The same required specificity governs contracts. Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 4, 727 P.2d 440 (1986) (“[F]or an agreement to be binding it must be sufficiently definite as to its terms and requirements to enable a court to determine what acts are to be performed and when performance is complete.”). Were the law otherwise, a court might be required to fashion a specific performance remedy from a vague or indefinite promise in an equitable action based on promissory estoppel. The result would be an exercise in impermissible guesstimation.
In some circumstances, however, promissory estoppel might permit a remedy compensating the party changing position in reliance on the promise for any detriment or loss incurred notwithstanding a degree of indefiniteness in the promise. The promisee’s reliance would still have to be reasonable, and the promisor would have to reasonably anticipate that reliance. The nature and degree of the indefiniteness could be taken into account in assaying reasonableness. Permitting a restorative remedy would be consistent with protecting reasonable reliance interests, the fundamental purpose of promissory estoppel. A court could fairly determine the remedy without having to parse the promise, since the award would be restitutionary — restoring the promisee, as nearly as possible, to the position he or she had occupied before relying on the promise.
The reasonableness of a party’s actions, including reliance on statements of another party, typically reflects a fact question reserved for the factfinder. See Kincaid v. Dess, 48 Kan. App. 2d 640, 653-54, 298 P.3d 358 (2013) (reasonableness of home buyer’s reliance on representations of seller presented fact question inappropriate for summaiy judgment); Schmidt v. Farm Credit Services, 977 F.2d 511, 516 (10th Cir. 1992) (applying Kansas law, appellate court reverses summary judgment because reasonableness of lender’s reliance on representations of corporate borrower as to use of loan proceeds entails a question of fact). Courts treat the requirement of reasonable reliance under promissory estoppel as a question of fact. Faimon v. Winona State University, 540 N.W.2d 879, 882 (Minn. App. 1995). In that respect, the indefiniteness of the purported promise becomes a factor in assessing reasonableness for purposes of applying promissory estoppel. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214-15, 520 A.2d 217 (1987); see 10 Lord, Williston on Contracts § 27:14 (4th ed. 2011) (“[t]he less clear an agreement, the less likely the plaintiffs reliance will be reasonable and foreseeable, and the less probable will be the injustice from refusing to enforce the agreement”).
District Court’s Bases for Granting Summary Judgment
With those principles in mind, we turn to the district court’s bases for granting summary judgment to Byers. First, the district court held as a matter of law that Byers could not have reasonably expected his announcement in 2003 that he had changed his estate plan to leave the ranchland to Bouton to have induced her to resign from the Washburn Law School faculty 2 years later. Even assuming the district court’s conclusion to have been legally proper, it didn’t address the material facts forming Bouton’s promissory es-toppel claim. Bouton contends she relied on the oral promise or representation Byers made in March 2005 that she would inherit land worth more than $1 million so she should not worry about the financial impact of leaving the law school faculty. On the summary judgment record, Byers made that statement during a discussion with Bouton and her husband in which they specifically voiced concerns about her resigning that position to work exclusively on ranch business.
In that context, a factfinder could fairly conclude Byers not only might have expected Bouton to act on the promise but intended her to do so. We think that conclusion takes on additional heft in precluding summary judgment because Byers could have changed his estate plan as he wished. Absent the categorical assurance of financial security Byers expressed in March 2005, Bouton would have been walking away from her professorship based on nothing more than a bequest that could have vanished without warning— leaving her jobless and without recourse. On that score, the district court materially misconstrued Bouton’s theory of the case and the evidence supporting her theory.
Second, the district court held as a matter of law that Bouton’s reliance on the March 2005 promise she attributed to Byers was unreasonable given her “education and the circumstances as a whole.” The district court’s reference to the overall circumstances, without something more descriptive, is essentially inscrutable. We cannot be guided or persuaded by that kind of unexplained rationale. Our view is otherwise to the extent the record evidence as a whole would allow a factfinder to conclude Bouton reasonably re lied on Byers’ March 2005 promise that she would inherit property worth at least a $1 million, especially when that representation came in direct response to her trepidation about leaving a job that paid her well. We, of course, are not suggesting that’s the conclusion a factfinder ought to reach after hearing the witnesses testify and reviewing the parties’ documentary evidence. Rather, we say only that a factfinder would not stray from the realm of the legally supportable in doing so. That is enough to preclude summary judgment.
We pause over the district court’s reference to Bouton’s education. The district court no doubt meant Bouton’s legal training and her abilities as a capable and respected law professor. The district court apparently presumed that someone with that background would insist on a legally enforceable written agreement or contract memorializing a promise to transfer land. Most lawyers and law professors — and business executives, for that matter— surely recognize the benefits of written agreements to order their professional and financial affairs. And they would agree with the abstract proposition that oral promises may be difficult to enforce. But none of that translates into a rule depriving members of those groups of claims based on promissory estoppel as a matter of law. The district court’s ruling, however, would have it that way.
Reasonableness of reliance is quintessentially a fact question. Bouton’s training and expertise do not change it to one that can be decided as a matter of law on this record. The district court’s willingness to fashion that sort of a bar seems particularly inappropriate given the familial aspects of the dispute. The parties are father and daughter, not disembodied corporations undertaking a joint venture purely for business advantage. The land promised arguably appeared to be the family ranch rather than some portion of Byers’ other real estate holdings. Leading up to the disputed promise, Bouton sought to help Byers at least partly out of a sense of fealty and devotion resting on their blood relationship. In turn, that relationship arguably caused Bouton to leave her sharper legal instincts in the classroom. All of those circumstances ought to be for the factfinder assessing reasonableness in a trial setting rather than on the inanimate summary judgment record of affidavits and deposition excerpts.
Finally, the district court found that the written employment agreements between Byers and Bouton precluded her promissory estoppel claim and cited Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1010-11, 974 P.2d 569 (1999), as analogous. Based on the summary judgment record, we cannot agree with that conclusion. The Fahey decision is distinguishable. In that case, Fahey moved from Arizona to accept an executive position with tire feed yard in July 1992. He and the owners of the feed yard signed a “final supplemental contract” a year later. (It is unclear whether they had a written agreement before then.) The contract provided that the feed yard “contemplated” employing Fahey through 2004, subject to the terms and conditions of the agreement. That contemplation proved unrealistic, and the feed yard terminated Fahey for poor job performance in early 1995. Litigation followed. Fahey argued the feed yard breached the contract and, alternatively, the representation of employment through 2004 could be enforced by promissory estoppel. The court rejected promissory estoppel as inapplicable because Fahey had a contract with the feed yard. So a discrete portion of that agreement could not otherwise be enforced through promissory estoppel. 266 Kan. at 1010-11.
More apt here, perhaps, the parol evidence rule prevents a party to a written contract from attempting to vaiy its terms by relying on oral representations, be they characterized as negotiations or promises, made in discussions leading up to the agreement. See Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992). A written contract, in most instances, subsumes earlier oral discussions or agreements.
Based on the summaiy judgment record, tire employment agreements do not negate or supersede Byers’ representation to Bouton in March 2005. Early on, Byers contracted with Bouton for legal services when she investigated the mismanagement and defalcation besetting the ranching operation. We do not understand the district court to be relying on that agreement. And that avoidance is well advised. The contract predated the March 2005 discussion and was narrowly drawn. But the later employment agreements for Bouton’s work at the ranch are also distinct and remote from the disputed promise on which this action rests. Bouton and Byers entered the first of those contracts in mid-2006, a significant period after the promise to bequeath the ranchland.
Again, the record, as we must view it, shows Byers made the March 2005 promise in response to Bouton s concern about resigning her law school position at the close of the academic year. About 2 months later, Bouton in fact tendered her resignation. The evidence, thus, establishes the promise and the induced performance were given and completed well before Bouton and Byers agreed to any of the employment contracts covering her services as a manager of the ranching operations. A factfinder fairly could conclude Byers reasonably anticipated Bouton would resign in May 2005, as she did, rather than a year or two later. And Byers was well aware she had already done so at the time they entered into the employment contracts.
Those contracts called for Bouton to receive a relatively low hourly wage for her work plus free rent at Hill House. They make no mention of Bouton s departure from the law school or Byers’ promise to bequeath land to her. A plausible conclusion is simply that the parties did not view that promise and Bouton’s resignation as having any direct connection to those contracts, let alone forming part of the legal consideration for them. A court would have to draw inferences from the summary judgment record adverse to Bouton to come to any other conclusion, and that would be impermissible. In that regard, Byers, of course, took the position that he never made the March 2005 promise Bouton attributes to him. So Byers couldn’t very well argue on summary judgment that he intended the employment contracts to negate or undo something he says didn’t happen.
In short, the facts here are unlike those of Fahey-Bouton is not attempting to invoke promissory estoppel to enforce some particular provision of one or more of the employment contracts she had with Byers. Nor can we conclude, consistent with the standard of review for summary judgment, those contracts superseded Byers’ March 2005 promise to bequeath land to Bouton. The promise and Bouton’s resignation from the law school shortly afterward cannot be construed as representations or negotiations undertaken as part of the formation of the employment contracts more tiran a year later — something that would have to be accepted as true to support the district court’s rationale for granting summary judgment. A reasonable factfinder could determine tire promise and the resignation to be independent of the later contracts, making summary judgment inappropriate on that basis.
The district court erred in granting summary judgment for the reasons it did.
Byers submits the remaining elements of promissory estoppel on which the district court did not rule support summary judgment. Byers identifies those elements as “substantial detriment” to the promisee and “injustice” resulting from a failure to enforce the promise. We disagree with Byers’ assessment. The facts as Bouton portrays them show she left a lucrative job because of Byers’ March 2005 promise to bequeath her land worth more than $1 million. And the evidence shows that once Bouton left the tenure-track teaching position, it was lost to her. Given the nature of the job, she could not later return to the law school faculty and simply pick up where she left off. Bouton’s compensation for the ranch business came nowhere near her teaching income. All of that reasonably could be considered a substantial detriment to Bouton. In the same vein, we are unwilling to say that enforcement of Byers’ March 2005 promise would be something less than just, favoring Bouton with all reasonable inferences from the summary judgment record. That conclusion essentially flows from the other considerations making summary judgment inappropriate- — Byers made a promise that reasonably could have induced Bouton to abandon an excellent job to come work at the ranch. Although Byers later became disenchanted with Bouton’s handling of the ranch work, justice might fairly be construed to hold him to the inducement he offered to get Bouton to leave her professorship in the first place. In short, the factual record precludes summary judgment based on the other components of promissory estoppel.
Byers" Alternative Grounds for Summary Judgment
A district court may be affirmed if it reaches the right result for the wrong reason. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). Both in the district court and in his cross-appeal, Byers offers alternative legal arguments he contends entitled him to summary judgment on Bouton’s promissory estop-pel claim. We find those points unavailing and reject them as insufficient to prop up the judgment.
• Previous Litigation and Its Settlement
Byers argues that the earlier suit Bouton filed against him for a greater share of the proceeds from the sale of some of the ranch-land and the terms of the settlement agreement concluding that action bar the promissory estoppel claim in this case. As we have outlined, Bouton, in the earlier suit, alleged that as a shareholder in the corporation owning the land that had been sold, she should have received a larger share of the proceeds. The suit had nothing to do with Bouton’s employment or Byers’ March 2005 promise aimed at getting her to change jobs. The claims in that case and this one lack any common legal grounds and share only the most general background facts.
Byers, nonetheless, submits that the rule prohibiting a plaintiff from splitting a cause of action precludes this suit. Basically, the rule requires a plaintiff suffering a legal injury to join all theories of recovery for that harm in a single action against all of the appropriate defendants. Diederich v. Yarnevich, 40 Kan. App. 2d 801, 814, 196 P.3d 411 (2008); Wright v. Brotherhood Bank & Tr. Co., 14 Kan. App. 2d 71, 72, 782 P.2d 70 (1989) (“The rule against splitting causes of action requires that all claims arising out of a single wrong be presented in one action.”). The plaintiff may not split off some theories of recovery or some defendants in separate suits. Diederich, 40 Kan. App. 2d at 814. The rule obviously promotes judicial efficiency and prevents a plaintiff from serially suing defendants for a single legal wrong.
The rule, however, doesn’t apply here. The earlier suit and this one entail factually and legally distinct harms. Bouton’s right to recover in the earlier suit arose from her status as a shareholder in one of Byers’ corporations that sold off its assets. That right depended upon the fiduciary relationship between corporate officers and shareholders. See Richards v. Bryan, 19 Kan. App. 2d 950, Syl. ¶ 5, 879 P.2d 638 (1994). As we have said, that was factually different from the employment and familial relationship out of which this action arose. Likewise, in the earlier suit, Bouton asserted claims based on breach of fiduciary duty, conversion, and misrepresentation to recover for a legal injuiy and loss wholly distinct from the promissory estoppel claim. In the earlier case, Bou-ton sought a fair share of money realized when Byers, as an officer of a corporation in which she owned stock, liquidated its assets. Although the principal asset was ranchland, that property was not essential to fulfilling the March 2005 promise at issue here. In this case, Bouton seeks recompense for Byers’ failure to honor a promise he made to her in an individual capacity regarding the bequest of the family ranch. The district court correctly rejected Byers’ argument that the two suits impermissibly split a single cause of action.
In a related argument, Byers contends the settlement agreement in the earlier suit bars this action. Under the terms of the settlement agreement, Bouton released Byers and the other defendants for “claims of injury or damages, known or unknown, suffered by her as alleged in [this] Lawsuit.” The language limits the release to harm resulting from the distribution of proceeds from the sale of the particular ranchland identified in the petition and owned by the defendant corporation. As we have said, that sale did not include the homeplace or other ranchland that could have been bequeathed to Bouton in conformity with Byers’ March 2005 promise. And Bouton asserted no claim or cause of action regarding the promise or the family ranch in the earlier suit, so the release language could not have referred to any such assertion or harm.
Settlement agreements are contracts. Farm Bureau Mut. Ins. Co. v. Progressive Direct Ins. Co., 40 Kan. App. 2d 123, Syl. ¶ 7, 190 P.3d 989 (2008). The words of a contract generally should be given their common meaning unless the parties clearly manifest some other intended meaning. Pfeifer v. Federal Express Corporation, 297 Kan. 547, 550, 304 P.3d 1226 (2013). The language of the settlement agreement did not include claims outside those related to the distribution of sale proceeds to Bouton as a shareholder. The district court, therefore, appropriately rejected that argument for granting summary judgment to Byers.
• Requirements for Promissory Estoppel
Byers argues that proof of some form of misrepresentation is a necessary component or element of a promissory estoppel claim and points out Bouton has offered no such evidence. We disagree with the premise and, therefore, reject the argument. As customarily defined in Kansas caselaw, promissory estoppel requires a promise inducing reliance — diere needn’t be any misrepresentation. Mohr, 244 Kan. at 574; Walker, 221 Kan. 314, Syl. ¶ 2; Byers, 44 Kan. App. 2d at 391.
Byers, however, suggests a party suing on a promissory estoppel theory must show the promisor misrepresented a material fact or never intended to honor the promise. He incorrectly cites First Bank of WaKeeney v. Moden, 235 Kan. 260, 264-65, 681 P.2d 11 (1984), for that proposition. Misrepresentation, however, is an element of equitable estoppel under Kansas law. See Mutual Life Ins. Co. v. Bernasek, 235 Kan. 726, 730, 682 P.2d 667 (1984); Deutsche Bank Nat’l Trust Co. v. Sumner, 44 Kan. App. 2d 851, 859, 245 P.3d 1057 (2010); Hershaw v. Farm & City Ins. Co., 32 Kan. App. 2d 684, 696, 87 P.3d 360 (2004). In First Bank of WaKeeney, a borrower asserted a claim against the bank for equitable estoppel. The court affirmed judgment for the bank because the borrower offered no evidence of misrepresentation. 235 Kan. at 264-65. But in what might be an infelicitous aside, the court also quoted the district court'as observing that “ ‘[pjromissory estop-pel involves both- misrepresentation and detrimental reliance.’ ” 235 Kan. at 265. The First Bank of WaKeeney decision plainly dealt with equitable estoppel, and that is equally plainly what the court discussed on appeal. So, too, the district court, as quoted in the decision, recited the proper elements of equitable estoppel but slapped the wrong label on it.
In the ensuing 30 years, several decisions have mistakenly cited the district court’s quote in First Bank of WaKeeney as a correct description of promissoiy estoppel rather than equitable estoppel. See Benaka v. Aetna Life Ins. and Annuity Co., No. 95,982, 2007 WL 1175852, at *3 (Kan. App. 2007) (unpublished decision); Terra Venture v. JDN Real Estate-Overland Park, 340 F. Supp. 2d 1189, 1202 (D. Kan. 2004); Hall v. Associated Intern. Ins. Co., No. 11-CV-4013-JTM/DJW, 2011 WL 3299104, at *6 (D. Kan. 2011) (unpublished opinion). Byers cites those cases as precedent supporting his incorrect characterization of promissory estoppel. But those cases aren’t so much precedent in the sense of persuasive statements of extant legal authority as they are simply less than fully attentive renditions of a careless statement in an earlier decision.
Along the same line, Byers cites a sentence from Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 435, 506 P.2d 1163 (1973), in which the court affirmed summary judgment for the defendant on a promissory estoppel claim and noted the record contained “no evidence whatsoever of any affirmative inducement or misrepresentation” by the defendant to the plaintiff. The court went on to characterize the exchange between the parties as a “casual request” that the defendant could not have reasonably expected to induce action by tire plaintiff or that the plaintiff reasonably should have relied upon. 211 Kan. at 435. So the court analyzed the evidence in light of the settled elements of promissory estoppel. The court did not elaborate on misrepresentation, and the reference ought to be viewed as a rhetorical flourish, not a formal pronouncement of the grounds for promissory estoppel. The Marker court cited the Restatement of Contracts § 90 and earlier Kansas decisions relying on the Restatement as fairly outlining promissoiy estoppel. 211 Kan. at 434. Neither the Restatement of Contracts § 90 nor its successor includes misrepresentation as a necessary component of promissory estoppel.
Confusion also may have been sown by Kansas cases that suggest promissoiy estoppel be deployed only in the face of conduct that if left unremedied “would be to virtually sanction the perpetration of fraud or would result in other injustice.” (Emphasis added.) See, e.g., Berryman v. Kmoch, 221 Kan. 304, 307, 559 P.2d 790 (1977); Marker, 211 Kan. at 434 (same). Other decisions have simply described promissory estoppel as properly invoked to avoid injustice. See, e.g., Fahey, 266 Kan at 1010; Byers, 44 Kan. App. 2d at 391. The reference to the harm as akin to fraud should be taken as a measure of moral turpitude rather than as a statement of legal rule. That is, the conduct of the promisor must be on a moral plane with fraud, thereby causing an equivalent injustice and permitting an equitable remedy. It is another way of saying that equity in general and promissory estoppel in particular do not concern themselves with fixing technicalities or trivialities. Contrary to Byers’ sugges-' tion, however, neither misrepresentation nor fraud is necessary for a viable promissory estoppel claim.
• Statute of Limitations
Building on his mistaken argument that promissory estoppel depends upon tire promisor’s misrepresentations, Byers contends the governing statute of limitations is 2 years, as set out in K.S.A. 60-513(a)(3) for actions based on fraud. He contends Bouton waited too long to file her action and the claim is untimely. We disagree with the argument’s foundation and find the 3-year limitations period in K.S.A. 60-512(1) applies. Given that finding, we also conclude that summary judgment could not rest on a statute of limitations defense.
As provided in K.S.A. 60-512(1), “[a]ll actions upon, contracts, obligations or liabilities expressed or implied but not in writing” must be brought within 3 years. Promissory estoppel is rooted in contract law concepts of protecting reliance and expectation interests. See ATA Airlines, Inc. v. Federal Exp. Corp., 665 F.3d 882, 884 (7th Cir. 2011) (“garden-variety” promissory estoppel claim differs from “conventional” breach of contract claim only in that enforcement of the promise rests on “reliance rather than on consideration”); Peters v. Gilead Sciences, Inc., 533 F.3d 594, 599 (7th Cir. 2008) (characterizing promissory estoppel as a “species of contract claim [that] sounds in equity”); Schulz v. City of Longmont, Colorado, 465 F.3d 433, 438 n.8 (10th Cir. 2006) (recognizing under Colorado law “ ‘[promissory estoppel is an extension of the basic contract principle that one who makes promises must be required to keep them’ ”) (quoting Patzer v. City of Loveland, 80 P.3d 908, 912 [Colo. App. 2003]). So the claim would naturally migrate to a limitations period designated for contractual rights. Enforcement of an oral promise by estoppel yields an “obligation” and, therefore, would come within the scope of K.S.A. 60-512(1). Accordingly, Bouton had 3 years to biing her claim based on Byers’ conduct negating the March 2005 promise to bequeath her the ranchland worth more than $1 million.
Byers argues he should prevail on summary judgment on an affirmative defense on which he would bear the burden of proof at trial. See K.S.A. 2013 Supp. 60-208(c)(1)(P) (statute of limitations is affirmative defense). In that posture, he must present un-controverted facts showing Bouton’s claim to be untimely. He must do more than assert Bouton cannot prove otherwise. See Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, Syl. ¶ 20, 276 P.3d 773 (2012) (“A defendant moving for summary judgment on an issue on which it would bear the burden of proof at trial, such as an affirmative defense or an avoidance, must establish those facts necessary for a jury to find in the defendant’s favor.”). The summary judgment record cannot support a judgment for Byers on statute of limitations grounds.
Based on that evidence, the earliest conceivable point Byers could be viewed as acting in a way incompatible with the promise was in December 2008. As represented in Bouton’s affidavit, the two argued “in December 2008” about how best to care for the livestock after the water system froze. And “the next week” Byers told Bouton her “help was no longer needed at the ranch,” according to the affidavit. That marked a serious rift in their relationship and might have raised questions about Byers’ willingness to honor his March 2005 promise. But dismissing Bouton as an employee was not legally or factually tantamount to breaching the promise. We make no determination that Bouton’s promissory es-toppel claim accrued at that point, only that it could have accrued no earlier. And it may very well have accrued later. See Engelbrecht v. Herrington, 101 Kan. 720, 724-25, 172 P. 715 (1917) (On similar facts, the court held that a cause of action on an oral contract to transfer land upon death accrued when the promisor sold the land and could not, as a result, perform his contractual obligation.).
Assuming the freeze happened the first week of December, the conversation between Byers and Bouton would have occurred sometime during the second week of the month. In 2008, the second week began on Sunday, December 7. Bouton filed her promissory estoppel action on December 8, 2011 — exactly 3 years after December 7, 2008, for purposes of computing the limitations period. K.S.A. 2013 Supp. 60-206(a)(1)(A) (To compute any time period in Chapter 60 stated in years, thus including statutes of limitation, “[ejxclude the day of the event that triggers the period.”)' So even giving Byers the benefit of inferences from the record evidence, the reverse of how the issue actually should be analyzed, he could not prevail on a statute of limitations defense on summaiy judgment. The argument then fails to provide an alternative basis for upholding the judgment for him.
• Statute of Frauds
Byers contends Bouton’s promissory estoppel claim is barred by the statute of frauds, K.S.A. 33-106, because the representation entailed the transfer of land. The statute of frauds prohibits an action “upon any contract for the sale of lands” or any related interests “unless the agreement... or some memorandum or note thereof, shall be in writing and signed by tire party to be charged . . . .” K.S.A. 33-106. For purpose of summary judgment, everyone agrees Byers’ promise was never reduced to a wilting he signed. The Kansas appellate courts have recognized that the statute of frauds may be applied to promises to bequeath or transfer land upon the death of the owner. See In re Estate of Spark, 168 Kan. 270, 278-79, 212 P.2d 369 (1949); McEnulty v. McEnulty, 146 Kan. 198, 200-01, 68 P.2d 1105 (1937).
Byers concedes the Kansas appellate courts have also determined that, in some circumstances, promissory estoppel may be invoked to effect the transfer of real property based on oral representations. See Walker, 221 Kan. at 321-22; Greiner v. Greiner, 131 Kan. 760, 765, 293 Pac. 759 (1930). But he submits those cases involved otherwise fully formed, detailed contracts that failed only because they were not evidenced by a writing satisfying the statute of frauds. And those agreements arose in particular circumstances rendering a refusal to enforce them manifestly unjust. Byers says those circumstances aren’t evident here, so the March 2005 promise should be unenforceable. We reject Byers’ legal conclusion as a basis for summary judgment.
The sale of real property has been subject to the statute of frauds or the requirement for a written memorial of the transaction for several reasons. First, a parcel of land is, by its very nature, unique — if for no other reason than location, though other attributes commonly differentiate one parcel from another. See Industrial Maxifreight v. Tenneco Automotive, 182 F. Supp. 2d 630, 637 (W.D. Mich. 2002); State, Dept. of Health v. The Mill, 887 P.2d 993, 1014 (Colo. 1994); Boys’ Clubs of Nashua, Inc. v. Attorney General, 122 N.H. 325, 326, 444 A.2d 541 (1982). Second, land tends to be a particularly valuable commodity, the transfer of which should be marked with solemnity and formality. Industrial Maxifreight, 182 F. Supp. 2d at 637; Powell v. City of Newton, 364 N.C. 562, 572-73, 703 S.E.2d 723 (2010) (Martin, J., concurring); Stickney v. Tullis-Vermillion, 165 Ohio App. 3d 480, 488, 847 N.E.2d 29 (2006). As a result, courts necessarily pull back from specifically enforcing oral promises or agreements transferring interests in real property. When they do enforce such arrangements, they require the terms to be clear and complete to avoid divesting the promisor of land he or she never contemplated being affected. See Bank of Alton v. Tanaka, 247 Kan. 443, 453, 799 P.2d 1029 (1990); Greiner, 131 Kan. at 765. In Greiner, for example, a series of oral representations between a parent and an adult child regarding transfer of land became enforceable through promissory estoppel to effect that transfer at tire point “particular land was specified,” making the promise “perfectly definite.” 131 Kan. at 765. Similarly, in In re Estate of Spark, 168 Kan. at 275-76, the court recognized that an oral agreement to bequeath land had to be “clear and satisfactory” to be specifically enforced.
Byers submits that the purported promise on which Bouton has sued fails that standard and is too indefinite to support a promissory estoppel claim. He says the promise, among other things, didn’t strictly refer to an identifiable tract or parcel, only generally to land worth more than $1 million. Nor did the promise allude to any aspects of Bouton’s work for the ranching business, such as a starting date or anticipated duration of employment.
As portrayed in the summary judgment record, Byers’ promise may have been fairly understood between the parties to refer to the family ranch. Bouton has averred that Byers knew she “always loved the ranch and wanted to five there.” According to Bouton, Byers also believed she should live there to best learn about ranching and to continue working on the legal and financial problems that had not been fully resolved. Affording Bouton the especially deferential review of die evidence to which she is entitled at this stage, reasonable inferences would support the conclusion that Byers’ promise referred to the family ranch. Based on the record evidence, the homeplace had a value of more than $1 million— corresponding to the amount Byers stated in the promise. Whether the evidence at trial would bear out that inference is another matter.
Even putting that interpretation of the record evidence aside, we find Byers’ argument and the legal authority distinguishable. The primary distinction lies in the relief Bouton seeks — a restitu-tionary award reflecting what she would have earned had she re mained on the law school faculty in a full-time, tenure-track position. Bouton never sought specific performance of the promise requiring transfer to her of $1 million in land upon Byers' death. After Byers sold off the homeplace, specific performance would have been a legal impossibility. But that is another matter. The requested relief, however, does not implicate the erroneous deprivation of real property the statute of frauds seeks to prevent. Any lack of detail about the particular land Byers meant to be included in the March 2005 promise doesn’t bar a claim for relief apart from specific performance if the promissory estoppel claim is otherwise appropriate.
Moreover, the Kansas appellate courts have long recognized that the statute of frauds is intended to prevent fraud or injustice, so it may not be invoked as a shield for conduct that would produce injustice. Cooper v. RE-MAX Wyandotte County Real Estate, Inc., 241 Kan. 281, 291, 736 P.2d 900 (1987); Walker, 221 Kan. at 320. In short, the statute of frauds yields to compelling equitable circumstances. Based on tire summary judgment record, this would be a case where the statute of frauds would not trump a promissory estoppel claim for restitution in contrast to the transfer of real property.
The Restatement (Second) of Contracts § 90 specifically states relief on a promissory estoppel claim should be tailored to effectuate fair or equitable results. Thus, “[t]he remedy granted for breach [of the promise] may be limited as justice requires.” Restatement (Second) of Contracts § 90. The Kansas appellate courts have similarly recognized a right to an alternative equitable remedy, even if specific performance of an oral promise or agreement to transfer land may be inappropriate. Walker, 221 Kan. at 323-24; McEnulty, 146 Kan. at 203-04. Although the oral contract at issue in McEnulty was insufficiently “clear, convincing and conclusive” to warrant specific performance, the district court properly entered an equitable compensatory award of $1,250 for the prom-isee. 146 Kan. at 203-04. In Walker, the court denied specific performance of an oral contract to sell a farm but held the promisee should be allowed to recover expenses associated with the transaction as restitution. 221. Kan. at 323-24; see Bank of Alton, 247 Kan. at 453 (oral contract to devise land will not be specifically enforced consistent with statute of frauds if promisee can be fairly compensated in money); Engelbrecht, 101 Kan. at 723 (same).
Both the Restatement (Second) of Contracts § 90 and that case authority support a restitutionary award to Bouton if she can otherwise prove her promissory estoppel claim. The statute of frauds would impose a legal impediment only to specific performance of the promise, thereby requiring Byers to transfer land to Bouton. Specific performance is simply not at issue in this case, so we shouldn’t be understood as ruling one way or the other on its appropriateness as a remedy or whether the statute of frauds would bar specific performance.
We reject the notion that Bouton should be denied a remedy because the specific terms and conditions of her employment at the ranch were not integrated into the March 2005 promise. As we have already said, based on the record evidence, the promise served a purpose quite distinct from setting out the particular terms and conditions of Bouton’s work for the ranching enterprise. In context, Bouton had expressed to Byers an inability to do both the ranch work and keep on teaching, and she coupled her concern with an unwillingness to simply walk away from the lucrative professorship. To allay that concern, Byers promised Bouton $1 million upon his death — albeit in the form of the homeplace or some other ranchland — to resign from the law school faculty so she could devote her full time and energy to his business interests and personal needs. The purpose was to induce Bouton to take die necessary step of giving up her teaching job, not to fix the terms and conditions of her employment at the ranch. That those terms and conditions remained indefinite or even undiscussed at all in March 2005 had no bearing on the point of the promise or the action it reasonably might induce and did, in fact, induce when Bouton resigned from die law school faculty less than 2 months later. The absence of any negotiation or agreement in March 2005 on terms of Bouton’s employment at the ranch doesn’t render Byers’ promise so indefinite that the statute of frauds would bar a remedy.
As we have said, Bouton’s remedy is tailored to the circumstances of the promise and the particular conduct on her part it reasonably induced — die abandonment of her teaching position. The award Bouton has requested, based on an economist’s expert opinion, reflects the net amount she lost by making that decision. While the particular amount may be open to dispute, the general theory of recovery entails restitution placing Bouton in the financial position she would have occupied had she not relied on the promise to her detriment. See Glendale Federal Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001) (“ ‘The basic aim of restitution is to place tire plaintiff in the same economic position as the plaintiff enjoyed prior to contracting.’ ”) (quoting Calamari & Perillo, The Law of Contracts [§ 15.4 4th ed. 1998]). The Kansas statute of frauds does not impose an impenetrable legal barrier to that sort of restitutionary recovery on an oral promise, even if the promise itself called for the transfer of land.
• Measure of Damages
Byers argues that the correct measure of damages for the breach of promise is the value of the services Bouton provided at the ranch. He characterizes the proper remedy as quantum meruit. We reject that argument, since it recasts both Bouton’s claim and the factual record.
Bouton and Byers negotiated her duties at the ranch and agreed on a measure of compensation. Those terms and conditions were embodied in their written contracts. Bouton has not claimed or sued on a theory that the compensation was inadequate. In some cases where a person has performed services for another based in part on an oral promise that land would be bequeathed as part of the compensation, the Kansas courts have awarded the actual value of the services provided rather than ordering specific performance and transfer of the property. Byers cites Bahney v. Gross, 135 Kan. 446, 449, 10 P.2d 844 (1932), as an example.
But Bouton is not suing on the theory she was promised land valued at more than $1 million as part of the direct compensation for her services to the ranch operations or to Byers personally. Rather, she contends Byers made the promise specifically to induce her to leave her teaching position, thereby freeing her to devote full time to the ranch work. So the measure of damages for breach of that promise wouldn’t be the value of Bouton’s work at the ranch, which she and Byers set in their contracts, but the financial benefit she forsook by resigning from the law school faculty. Nor do we see how Byers’ dissatisfaction with Bouton in December 2008 and his decision to terminate their employment relationship at that point affects the measure of damages. Byers made the promise to get Bouton to quit her job at the law school. She did so. Those circumstances lay the factual and legal basis for tire promissory estoppel claim. That Byers specifically wanted Bouton to then come to the ranch to work or that he later changed his mind and didn’t want her working there doesn’t have a direct bearing on the claim or the damages.
Conclusion
The district court erred in granting summary judgment to Byers. Taking the record evidence favorably to Bouton, a factfinder could conclude she reasonably relied on Byers’ March 2005 promise and Byers reasonably could have anticipated that reliance. Byers has not advanced alternative arguments that would support summaiy judgment in his favor. The record contains disputed facts and credibility determinations that preclude summary judgment and require a trial.
Reversed and remanded for further proceedings.
There appears to be a curious dearth of Kansas appellate authority on the statute of limitations applicable to promissory estoppel claims. Neither side cited a controlling case; we have found none. Byers cited Drexel v. General Motors Corp., No. 07-2063, 2009 WL 275682, at *3 (D. Kan. 2009) (unpublished opinion), in which the district court inferred the Kansas courts would apply a 2-year limitations period to the plaintiff s promissory estoppel claim, since it was “based on the underlying allegations of fraud.” But the parties in Drexel tacitly agreed a 2-year period applied. And from the decision, it is impossible to tell if the claim turned on an alleged misrepresentation and the falsity of the representation. Were that so, the claim might well have been appropriately treated as one for equitable estoppel or as a repackaging of the fraud allegation rather than as promissory estoppel, notwithstanding the plaintiff s labeling of it. Here, Bouton’s claim does not rest on a notion that Byers falsely promised to bequeath the land. Rather, the claim seeks to vindicate what Bouton contends was her reasonable reliance on the promise — a theory fully consistent with Byers honestly intending to fulfill the promise and then changing his mind after Bouton resigned her teaching position. Bouton’s claim is plainly of the sort described in K.S.A. 60-512(1). A promissory estoppel claim based on a written representation presumably would be governed by a 5-year limitations period. See K.S.A. 60-51l(l) (action on “any agreement, contract or promise in writing” must be brought within 5 years).
We are not faced with a situation in which the promisee quit after a short time or was fired for dishonesty or some other misfeasance and then sought to enforce the promise for $1 million in land or to obtain some form of restitution. Circumstances of that type could undercut or severely curtail any form of equitable relief. See Green v. Higgins, 217 Kan. 217, Syl. ¶ 1, 535 P.2d 446 (1975) (“[N]o person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct.”); Inman v. Inman, 67 P.3d 655, 659 (Alaska 2003) (recognizing and applying “the maxim that a party must do equity to receive equity”)’ | [
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Hill, ].:
A jmy found Joshua M. Walker guilty of rape and two counts of sodomy of his 5-year-old daughter. He raises four trial errors and one sentencing issue. We must first decide whether the notice of appeal in this case limits our jurisdiction to the extent that we cannot review the trial errors claimed by Walker. The notice simply states:
“Notice is hereby given that the above named defendant appeals from the sentencing before this Honorable Court in the above captioned case to the State of Kansas Court of Appeals.” After reviewing the statutes and applicable cases, we conclude that we can only review the issue concerning Walker’s presumptive sentences.
What may be appealed in a criminal case is set by the Kansas Code of Criminal Procedure. As stated by the legislature, the public policy of Kansas is that a defendant has a right to appeal any judgment rendered against that defendant:
“Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” K.S.A. 2013 Supp. 22-3602(a).
Generally, any ruling, decision, order, or judgment can be the subject of an appeal in any conviction. See K.S.A. 2013 Supp. 22-3601; K.S.A. 2013 Supp. 22-3602. But there is no mention in the criminal code of how to raise an appeal.
How such an appeal is brought is governed by the Kansas Code of Civil Procedure and Supreme Court Rules, and it begins with the notice of appeal. K.S.A. 2013 Supp. 60-2103(b) provides: “Notice of Appeal, The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” This statute explains how to appeal and exercise the right to appeal granted in K.S.A. 2013 Supp. 22-3602. See also Supreme Court Rules 2.02 (2013 Kan. Ct. R. Annot. 11) (notice of appeal); 2.04 (2013 Kan. Ct. R. Annot. 13) (docketing an appeal); 2.041 (2013 Kan. Ct. R. Annot. 16) (docketing statement).
This two-code (criminal-civil) approach is not new. The history is found in State v. Boyd, 268 Kan. 600, 604, 999 P.2d 265 (2000). The Boyd court explained how such appeals were handled before the second coming of the Kansas Court of Appeals:
“Prior to tire codification of the rules of appellate procedure in 1963, the General Statutes of Kansas required parties wishing to appeal to the Supreme Court to file a notice of appeal and an abstract. The notice of appeal statute required that ‘die party filing die same appeals from the judgment, order or decision complained of to the supreme court, and if the appeal is taken from only a part of die judgment, or from a particular order or decision, then by stating from what part of the judgment, or from what particular order or decision the appeal is taken.’ [Citation omitted.]
“The appellate statutes also required that appellants file an abstract which would ‘include a specification of the errors complained of, separately set forth and numbered.’ [Citation omitted.]” 268 Kan. at 602-03.
The Supreme Court, in those days, vigorously enforced the requirement that an appellant specify all of the rulings appealed from in his or her notice of appeal.
Then, with the revision of the law in 1963, the Boyd court noted die simplified process and the public policy goal of affording one appeal to every defendant:
“It is clear drat by die legislative changes in 1963, die legislature intended it to be easier to take an appeal to an appellate court in Kansas. The process was simplified, with the goal being to afford every criminal defendant at least one appeal. K.S.A. 1999 Supp. 60-2103 was originally drafted, and remains virtually die same today, to only require an appellant to ‘designate the judgment or part thereof appealed from.’ There is no statute or court rule which expressly requires an appellant to set forth all of the errors that will be contested on appeal in the notice of appeal. When the legislature repealed G.S. 1949, 60-3306, and 60-3826 and enacted K.S.A. 60-2103, it was a signal that it is no longer necessary to specify each and eveiy issue to be contested on appeal in die notice of appeal.” (Emphasis added.) 268 Kan. at 604.
In Boyd, the notice of appeal simply stated that Boyd was appealing his conviction. The court held that notice was sufficient to give the Court of Appeals jurisdiction to consider the defendant’s substantive trial errors. The court explained what a limited role the notice of appeal plays in this process:
“The notice of appeal should not be overly technical or detailed. The notice of appeal is not a device to alert the parties to all possible arguments on appeal. That is the purpose and function of die docketing statements and briefs filed by the parties. The briefs should list all of the issues to be argued by the parties and should contain the arguments and authorities for each issue. [Citation omitted.] The State does not generally take any significant action when receiving a notice of appeal. The fact that a notice may generally state that the defendant is appealing his ‘conviction does not harm or even affect the State in any appreciable way. The State determines the issues to be argued by reading the docketing statement and brief filed by the appellant and is given an opportunity to respond by filing its own brief. Whether a party has detailed its arguments in die notice of appeal does not affect the State’s practice or its appellate strategy.” 268 Kan. at 606.
Then, in State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000), the court ruled that errors in tire notice could be overlooked at times:
‘Wilkins’ notice of appeal stated drat he was appealing from the ‘judgment of sentence.’ The State contends the language in the notice limits Wilkins to raising issues regarding his sentencing only. Wilkins asserts that the notice of appeal should have read ‘judgment and sentence’ and that the use of the word ‘of was a typographical error. Wilkins further states that ‘it is clear from an overall review of this entire Appellate File that it was always the Defendantiappellant’s intention to challenge the judgment rather than his sentence.’ In fact, the sentence itself toas not appealable in this case.” (Emphasis added.)
The court went on to say this is really just a notice of intent to take an appeal and such criminal appeals should be just, speedy, and inexpensively determined:
“Given that the notice of appeal ‘should not be overly technical or detailed’; that the ‘State does not generally take any significant action when receiving a notice of appeal’; that the typographical error in this case ‘does not harm or even affect tire State in any appreciable way’; that the State has not shown surprise or prejudice; that this courtis to construe K.S.A. 60-2103(b) liberally to assure justice in every proceeding; and that actions should be just, speedy, and inexpensively determined, we hold that the ‘judgment of sentence’ language found in Wilkins’ notice of appeal sufficiently conferred jurisdiction on the Court of Appeals to determine the substantive issues raised in the robbery case.” 269 Kan. at 270.
Then, in State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012), the court ruled there is a jurisdictional aspect to the notice of appeal:
“ ‘It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over tire rulings identified in the notice of appeal.’ [Citations omitted.]”
But Coman went on to state that the words of the notice of appeal will not be stretched beyond their normal meanings:
“Although our appellate courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one simply cannot construe a notice that appellant is appealing his or her sentence to mean that he or she is appealing tire conviction.” 294 Kan. at 90.
Then, recently in State v. Laurel, 299 Kan. 668, 673-74,325 P.3d 1154 (2014), the Supreme Court stated there is a substantive minimum for a notice of appeal:
“K.S.A. 2011 Supp. 60-2103(b) provides that ‘[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.’ We liberally construe K.S.A. 60-2103(b) ‘ “to assure justice in every proceeding,” ’ [citations omitted]; but there is still a substantive minimum below which a notice cannot fall and still support jurisdiction. See, e.g., State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012) . . . [citations omitted].”
In other words, an appellate court will not rewrite a notice of appeal for the defendant. That brings us back to the notice of appeal filed here. We note that Walker vainly attempted to file an amended notice of appeal in the district court where he was convicted. This filing was a nullity since the docketing statement had already been filed in this court and thus the district court lost jurisdiction over this case. See State v. Dedman, 230 Kan. 793, Syl. ¶ 2, 640 P.2d 1266 (1982). No motion to remand to the district court for the purpose of filing an amended notice of appeal was filed in this court — the only court with jurisdiction to hear the matter.
Considering Walker s notice of appeal, there is no hint of any subject in his notice other than his sentence. Following the rulings in Coman and Laurel, we will confine our review to the issue of Walker’s sentence.
Walker sought a downward departure from a hard-25 sentence for each conviction to 155 months’ imprisonment. He asserted seven factors drat favored a reduced sentence:
(1) He only had a criminal history score of I, meaning he had no prior convictions;
(2) though maintaining his innocence, he has strong remorse for his actions as a parent; to
(3) his age of 27 years; co
(4) his alleged lack of pedophilic tendencies, as reflected in a psychosexual evaluation conducted “before he was found guilty”; xp
(5) his willingness to participate in the sexual offender treatment plan the psychosexual evaluation report recommended “if he were to be found guilty”;
(6) his ability to work and contribute financially for his two young children, one being the victim; and CO
(7) his two children would be young adults when he was released and “no longer under his ability to nurture or control.” -4
The record also indicates Walker testified at sentencing regarding his remorse “for not being a good father.” In this Jessica’s Law case, the district court denied the motion and found that the arguments fell “far short” of being substantial and compelling. Under K.S.A. 21-4643(d), a district court is not required to state its reasons for denying a departure because the statute only requires the district court state on the record the substantial and compelling mitigating factors for a departure. State v. Florentin, 297 Kan. 594, 601-02, 303 P.3d 263 (2013). We review the ruling of the sentencing court for an abuse of discretion. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013).
Walker raped his 5-year-old daughter and sodomized her twice. The record reflects that the district court considered Walker’s departure motion and his asserted mitigating factors. The court found his seven mitigating factors were not substantial. Given the nature of Walker’s crimes we cannot say that no reasonable person would agree with the district court’s decision to impose the presumptive sentences. Walker has not met his burden to show on appeal that the district court abused its discretion by denying his departure motion.
Walker s sentences are affirmed. Walker s claims of trial errors are dismissed.
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The opinion of the court was delivered by
Brewer, J.:
This is an original action of mandamus, brought to compel the defendant, as state treasurer, to receive certain moneys, and give a receipt therefor. The allegation is, that the plaintiff made a contract with the agent of the state, appointed under an act of the legislature of date February 23, 1866, for the purchase of a certain tract of land; that he presented this contract, and the money due under it, to the defendant, and demanded a receipt, and this for the purpose of tendering the receipt to the governor, and obtaining from him a patent. To this application the defendant in due time answered, and plaintiff files a motion to quash this answer, or return to the writ, on the grounds that the defenses are inconsistent and impertinent.
A preliminary question is, as to the scope and effect of a motion to quash; and in this we must be guided by the statute, rather than by the rules which controlled the old common-law proceeding by mandamus. The entire nature of this proceeding is, as we have had occasion heretofore to notice, changed by statute. (The State, ex rel., v. Jefferson Co., 11 Kas. 66.) It is now in its form very like an ordinary action. No other pleadings are allowed than the writ and answer. These pleadings are to be construed and to have the same effect as pleadings in a civil action, and the issues are to be tried and further proceedings had as in a civil action. (Code, § 696.) Under those rules, a motion to quash the answer is a challenge of the substance of such answer. It asks that as a whole it be rejected; in other' words, it claims that, construed by the ordinary rules of pleading, it contains no defense. If sustained, it strikes out the entire pleading, and leaves the plaintiff’s pleading admitted. It is not in the nature of a motion to make specific and definite, for such a motion implies a defense presented, though imperfectly pleaded; neither is it equivalent to a motion to compel defendant to elect, for such a motion implies the existence of two or more defenses. This motion denies any defense. It is like a motion to strike out the answer as containing no defense, or a motion for judgment over the answer, or a demurrer to the answer. It attacks the substance and not the form, and says that no defense is presented. Strictly, then, if any defense appears jn the answer, the motion must be overruled; and if two defenses, even though inconsistent, the same ruling must be made.
A demurrer will not lie on the ground of inconsistent de fenses. (Larimer v. Kelley, 10 Kas. 298.) Neither will any other objection which merely denies the existence of any defense. Further, if impertinent matter be found in such an answer, a motion to quash must be overruled, providing a sufficient defense be also pleaded. The authorities cited by counsel from the old common-law practice do not obtain. The reasons for this difference are fully stated in the opinion in 11 Kas., supra, and need not be here repeated.
The answer -commences with a general denial. As there are many facts in and essential. to plaintiff’s petition which require proof, and are not admitted by a failure to deny under oath, this of itself is a sufficient answer, and compels the overruling of this motion, unless the matters thereafter admitted in the answer of themselves show that plaintiff is entitled to the relief asked. As they do not, we might properly stop here in this opinion, and simply overrule the motion.
Two matters are presented which, however, may be of importance in the further progress of this case, and which, therefore, we shall consider. The petition alleges that the plaintiff contracted with the agent to purchase the land at the appraised value. The answer, besides the general denial, specifically denies that the lands were ever appraised as required by the statute. Tire original act was silent as to appraisement, and simply provided that no lands should be sold at less than $1.25 per acre; (§4.) In 1869 said §4 was amended so as to read: “ Before said agent shall sell any of said lands, each railroad company ..... shall appoint a commissioner, to be approved by the governor, whose duty it shall be to proceed at once to view, list and appraise said lands, .... and said agent shall sell said lands at not less than their value according to such appraisal: Provided, however, that such company shall appoint such commissioner within two months from the approval of this act, and said appraisal shall be made within six months.” Now such appraisal was a condition precedent to the fight to sell. No contract of the agent was of any force until it was made. And if the companies who were the beneficiaries under the act failed to appoint a commissioner, and no appraisal was in fact made, the right to sell ceased. Nothing could thereafter be done until further action of the legislature. The failure . of the companies to act under this amended section did not revive the section as it stood before amendment, for it was in terms repealed, nor did it authorize the agent to proceed and sell as though no such section had been enacted. The appraisal was a condition precedent, and if the condition failedy the authority of the agent ceased. He had no general power to act.
Again, the answer alleges that a decree was duly rendered against the predecessor of the present agent and the railroad companies, enjoining further sale of these lands, the payment of the proceeds of any sales to the companies, and the companies from ápplying for or receiving any such proceeds. A • copy of the decretal order or judgment is attached to the answer. The allegation of the answer is, that this decree was rendered in an action against a prior agent who was sued as the agent, and the companies who were sued as the beneficiaries wider said act. The decree reads as though it were agáinst the agent as an individual, and not as an officer. Now the mere language of the decree may not disclose its full scope. This may be determined in a measure by the allegations of the petition and the scope of the issues. If from the whole record it should appear that there was simply a personal attack upon the individual, then a decree enjoining him from selling would be personal only, and would not affect the right of any other or subsequent agent to proceed under the act and sell. But if the attack was alone upon the office, he being made defendant as the only incumbent of the office, and no personal disqualification the ground of relief, then the decree, although nominally only against him, might really bind the office and prevent any subsequent sale by any one. The real scope of the decree can therefore only be determined by an inspection of the whole record. Until that appears, we forbear further comment upon its scope and effect.
The motion to quash will be overruled.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by W. F. Hoch against the board of commissioners of Marion county, for a bounty claimed to have accrued to him under the provisions of the “ act to encourage the growing of hedges,” etc. (Comp. Laws of 1879, pp. 453, 454.) The plaintiff grew an Osage-orange hedge in accordance with the provisions of said act. Judgment was rendered in the court below, upon an agreed statement of the facts of the case, in favor of the plaintiff and against the defendant for the amount of the bounty claimed, and the defendant now brings the case to this court for review.
The facts agreed to entitled the plaintiff to the judgment rendered, provided any person can ever be entitled to receive a bounty under said act. The only question, then, in this case is, whether the act will under any circumstances authorize the rendering of such a judgment as was rendered; or, to state the question exactly, it is, whether the act has sufficient force, under any circumstances, to authorize the county board to pay the bounty therein provided for, for growing Osage-orange hedges. The plaintiff in error, defendant below, claims that it had not such power — first, because the growing of a hedge is a purely private purpose; and second, because there is no fund provided for by statute out of which the bounty can be paid. Now, it is true that there is no fund provided for specifically by statute out of which the bounty can be paid, but the defendant in error, plaintiff below, claims that the bounty may be paid out of the general county fund. Arid the statute seems to authorize this. Section 3 of the act reads as follows: “Upon the county board of commissioners being satisfied that the provisions of the second section of this act have been complied with, they shall order warrants to be issued upon the county treasurer for the bounty above specified.” The “warrants” above mentioned are evidently ordinary warrants upon the general county fund. We think that said ant has sufficient force to authorize the board of county commissioners to pay the bounty provided for in the act, and to pay it out of the general county fund. And therefore we do not think that the court below erred in rendering the judgment which it did render; and therefore the judgment will be affirmed.
Horton, C. J., concurring.
Brewer, J.:
While I concede that the general tenor of the authorities is in favor of the validity of this statute in full, I think that upon sound principles' it can be sustained only so far as respects fences along the highway, in the improvement of which the public as a whole is interested. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error was plaintiff in the court below, and in 1875 obtained a judgment of foreclosure of a mortgage deed, an order of sale of the mortgaged premises, and became the purchaser of the same at the sheriff’s sale, took possession thereof, and was in possession by tenant when in 1879 the defendants, plaintiffs in error, filed their motion to vacate and set aside the judgment and sale as void. The only service upon defendants in the original action was by publication, and they made default, but afterward appeared specially and moved the court to set aside the judgment as void, for reasons, among others, that the petition of plaintiff did not state facts sufficient to confer upon the court jurisdiction to render the judgment; for misnomer of minor defendants, for whom no guardian ad litem was appointed; and because no service upon the minor defendants was made as required -by law. Notice of this motion was served upon L. W. Keplinger, who was plaintiff’s attorney of record in the action. To this service plaintiff appeared specially by-his attorney, Keplinger, and moved to set it aside as 'unauthorized and insufficient. The court overruled his motion, to which he duly excepted.
It may be premised that this motion was not made under § 77 of the code, for the opening of the judgment and leave to defend. The time for such a motion had passed. Butthe judgment was challenged as absolutely void, and the proceeding was under the last clause of § 575 of the code. Now the district court unquestionably had jurisdiction of the subject-matter of the action, the foreclosure 'of a mortgage, and if it also had jurisdiction of the parties, its proceedings and judgment were not nullities, even though many errors were apparent on the face of the record. (Burke v. Wheat, et al., 22 Kas. 722; Bryan v. Bauder, 23 Kas. 95; Hodgin v. Barton, 23 Kas. 740.) The petition alleges that H. Walkenhorst and Wilhelmina Walkenhorst, to secure a debt which they owed to one Schultz, gave to him a deed of a certain tract of land, describing it, and at the same time received back a bond to convey upon the payment of this debt. Copies of the deed and bond are attached, and it appears that the latter ran to H. Walkenhorst alone. The petition alleges default in payment, and that- Shultz assigned and transferred to plaintiff all his rights and interest in said contract and land. The assignment was upon the bond, and read simply that Shultz “hereby transfers and assigns to J. TI. Lewis, all my right, title and interest in and to the within land.” The petition then further alleges the death of JEL Walkenhorst, and that the defendants are his only heirs. It prays a personal judgment against Wilhelmina Walkenhorst, that the deed and bond be treated as a mortgage, and for a foreclosure and sale.
Two objections are made to this petition. It is said that the petition fails to show any personal indebtedness of, while it claims a personal judgment against, Wilhelmina Walkenhorst, and this because the bond to reconvey runs to H. Walkenhorst alone. But the petition alleges that to secure a debt which they owed, they conveyed, etc. Now we know of no reason why husband and wife may not be jointly indebted, or why the election of the parties that the reconveyance shall be to one alone, disproves the fact of such joint indebtedness. We think the petition not only not open to objection on this ground now, but that it should have been sustained if it had been attacked at the time by demurrer. But suppose no personal judgment was permissible under the pleadings: would the decree of foreclosure and sale be thereby rendered a nullity? Is it the intention of §399 of the code to prevent foreclosures without a personal judgment against some party? If the mortgagor be deceased, cannot the mortgage be foreclosed without the appointment of an administrator?
Again, it is objected that the assignment is insufficient, and that Shultz, the assignor, was a necessary party defendant. The assignment, it is said, does not transfer the legal title, and that it still remains in Shultz. But equity which .treats the original transaction as a mortgage, although the legal form is that of a conveyance and a bond in return, equally regards an assignment as sufficient to transfer the mortgagee’s interest. Even if Shultz were a necessary party, a defect of parties, if not raised by demurrer or answer, is waived. It seems to us that, so far from this petition being fatally defective, if it had been challenged after default and- before judgment, it must have been sustained. Of course, then, there can be no doubt that it contained enough to challenge judicial action; and the judgment .founded upon it, if the court had jurisdiction of the parties, is not a nullity.
We pass, then, to the question of service. This was by publication. The regularity of the publication proceedings is not challenged, but the claim is that as to certain of the defendants, they being minors, such a manner of service is unauthorized. We do not so understand the statute. We suppose that a non-resident minor may be served by publication as well as a non-resident adult. The statute says that “The manner of service may be the same as in the case of adults.” (Code, § 71.) We suppose this to apply to constructive as well as actual service. We are not at liberty to consider objections to the service not presented to the district court, in the motion whose review is sought by this proceeding in error. Of course, if any defendant was not named in the publication notice and not otherwise served, the judgment has no effect upon his rights of interests in the property.
It is also insisted that the judgment is void, at least, as to the minor defendants, because no guardian ad litem was appointed to protect their rights, and no answer filed for them. This objection also we think untenable. By the service, jurisdiction over the persons of the minors is secured. The appointment of a guardian ad litem is a step, a proceeding in the case possible only after jurisdiction is acquired. An appointment before that would- be a nullity. But if it be something which may be done only after jurisdiction be acquired, then an omission of it is not a jurisdictional defect, but an error in the proceedings. Such an error may be a ground for reversal, but does not -render the proceedings and judgment nullities. Nor does/such a ruling destroy any substantial rights of the minor. Under §§ 413 and 568, he may have any errors in the judgment corrected at any time within one year' after becoming of age, but if there be no errors,, and his rights have been fairly adjudicated, why should he be per- • mitted to treat the whole.proceeding as a nullity? A party may not always know the exact ages of the various defendants. The court may be misinformed by the testimony as to ages. Do the validity of the whole proceeding, and all rights acquired upon the faith of such validity, hinge upon the fact whether the plaintiff and the court were correctly advised of the ages of the defendants? The authorities almost uniformly hold in accordance with the views herein expressed. See ámong others, Bloom v. Burdick, 1 Hill, 130; Freeman on Judgments, §151; McMurray v. McMurray, 66 N.Y. 175; Porter v. Robinson, 3 A. K. Marshall, 253, also reported in 13 Am. Dec. 158, to which is added a note with a citation of many authorities.
There being no other question requiring notice, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an original action, commenced in “this court by the state of Kansas, on the relation of the attorney general, against the defendants, D. ~W. Stormont, S. F. Neely, C. C. Furley, C. H. Guibor, R. Morris, W. W. Cochrane and G. W. Haldeman, who comprise the board of ■examiners of the Kansas medical society, appointed under the provisions of the act of the legislature, entitled “An act to regulate the practice of medicine in the state of Kansas,” approved February 27, 1879. The object and prayer of the petition is, to require the defendants to show by what authority or right they exercise the duties of medical examiners. The answer sets forth that the Kansas medical society is a legally-incorporated body, and that the defendants exercise their duties by virtue of the act of February 27, 1879. To this answer the plaintiff has filed a general demurrer. The disposition of this demurrer is to determine the case. It is contended by the counsel representing the state, that the Kansas medical society is not a legally-incorporated body, and that it does not possess the power to appoint a board of examiners under the act of 1879. The reasons for this contention, as summarized by counsel, are:
1. That the charter of the society has expired by statutory limitation.
2. That the power of the territorial legislature, being permissive and temporary only, could confer no vested right by contract or otherwise, which would bind the state against its consent.
3. That the charter of the society was granted by a territorial act, not accepted or preserved by the state; and
4. That the legislature did not, and has not the power under the constitution, to recognize or validate the existence of the society, nor to grant it additional powers by the act of 1879.
As all these objections to the existence of the corporation, and the future action of the defendants as a board of examiners, are fully discussed in the briefs, we 'shall consider them without reference to whether they are fairly raised upon the record.
The society was incorporated by a special act of the territorial legislature, on the 10th day of February, 1859. The first section of the act provides “that Amory Hunting, S. B. Prentiss, J. P. Eoot, .... and their associates and successors, who shall be elected to membership as hereinafter provided, are hereby constituted a body corporate and politic, by the name of the ‘ Kansas Medical Society/ and shall have perpetual succession forever.” It is conceded that the legislature of the territory had the power to incorporate the society by a special act. Having the power to create the corporation, it had the further power to endow it with all the attributes of a corporation, not inconsistent with the provisions of the con - stitution of the United States and the act organizing the territory of Kansas, approved May 30, 1854. Chief Justice Marshall, in giving a practical definition of a corporation and its uses, says: “It is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed to be best calculated to effect the object for which it was created. Among the most important are immortality, and if the expression may be allowed, individuality — properties by which a perpetual succession of many persons is considered as the same, and may act as a single individual..... By these means a perpetual succession of individuals is capable of acting for the promotion of the particular object, like an immortal being.” (Dartmouth College v. Woodward, 4 Wheat. 636.) Therefore, within this definition, immortality is a legitimate attribute to be conferred on a corporation. Of course, we speak of such immortality only as may be created by law. Even then, it is not literally true that a corporation is immortal, as in point of fact, like natural persons, it is subject to death and dissolution in various ways, and in some states can only be created for a limited period, and in others, like ours, only organized under general laws, which may be amended or repealed at any time. (State Const., art. 12, § 1.) Yet, when not limited or forbidden by constitutional or organic law, the right to confer perpetual succession by legislative authority, so far, at least, as human agency can confer such an attribute, cannot be logically questioned. Perhaps we might go farther and say, (speaking in a comparative sense,) a corporation is presumably immortal; that words of limitation or exception are essential to deprive it of that attribute.
As the “Kansas medical society” was endowed with perpetual succession or immortality in its creation, we next inquire whether the constitution of the United States, or the organic act, or any territorial law, restricted or limited its term of existence. It is not alleged that the act of incorporation contravened the fundamental principles of the constitution of the United States, or the organic law of the territory; it is contended only, that the charter expired by limitation on February 10,1869, under the provisions of the act of 1855 concerning corporations. This act, among other things, provided as follows:
“Sec. 1. Every corporation, as such, has power, first, to have succession by its corporate name for the period limited in its charter, and when no period is limited, for ten years.” (Laws 1855, pp. 185, 193.)
As the special act of February 10,1859, creating the society, only limited the life of the corporation to the end of all human affairs, or the close of finite existence, the law of 1855 has no application. Again, it was not in the legislative mind that the law of 1855 should apply to this act, because the next day after its adoption, (February 11,1859,) the general corporation act of 1855 was repealed by the territorial legislature. (Laws 1859, p. 544, §1.) Furthermore, the legislature of 1855 could not impose any limitation on the legislature of 1859, and the latter legislature, having granted the society “ perpetual succession forever,” the only limit to its existence is, the end of all things, unless subsequent laws, constitutional or state, have or shall suspend or repeal its charter. This much is clear — the charter did not expire by the law of 1855.
The second objection deserves only a passing notice. Whether the state legislature can suspend or repeal the special acts of incorporation adopted by the territorial legislature prior to the admission of the state into the union, is not before us, and, so far as this case is concerned, it may be left an open question. No attempt has been made by any state legislation to repeal the charter of the society, or limit its corporate life. On the other hand, the act of February 27, 1879, in clear language recognizes the society as an existing corporation. Until the institution of this suit, no attempt had ever been made to debar it from doing business; nor had its life ever before been attacked or threatened by a state official.
If we properly understand the nature of the third objection, it is, that as the act of incorporation was granted by the territorial legislature, and as §1, art. 12 of the state constitution inhibits the state legislature-from conferring corporate powers by special acts, the charter of the society, upon the acceptance of our constitution by congress, at once ceased to have validity — that then its life instantaneously ended. In brief, that the territorial act of incorporation then suffered sudden and permanent syncope by the higher law of the constitution ; and as the act' of incorporation has not and could not be rehabilitated, or the corporate existence revivified by the state legislature, on account of § 1, art. 12, the society had no corporate existence after the admission of the state into the union. Now, §4 of the schedule of the constitution provides that “all laws and parts of laws in force in the territory at the time of the acceptance of this constitution by congress, not inconsistent with this constitution, shall continue and remain in full force until they expire, or shall be repealed.” In The State v. Hitchcock, 1 Kas. 178, this court held that all laws passed by the territorial legislature, until superseded, according to the mode prescribed by law, if their provisions were not in conflict with the constitution of the United States, or of the state, were valid. But counsel assert that the territorial act is inconsistent with §1, art. 12, which reads: “The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.” This section has already been judicially interpreted by this court as a limitation upon the legislative power of the state, as prospective, not retroactive, and therefore it has no restraint or control over the acts of the territorial legislature. In Atchison v. Bartholow, 4 Kas. 124, it is said “that the whole of article 12 is merely restrictive of the general power conferred by section one of article two. It adds nothing to the power of the legislature, nor could it have been so intended. All legislative power upon the subject had already been conferred. It may be true, that the legislature, in exercising the power, might have done precisely what this clause requires of it, had it been omitted; but it seems to have been thought expedient to compulsorily restrain its action, and such alone was manifestly the intention of this article. . . . Before the adoption of the constitution, the practice was to create corporations and organize cities and towns by special laws. ... To prevent just such abuses, and others equally meretricious, the twelfth article was inserted in the constitution.”
Again, in The State v. The Lawrence Bridge Company, 22 Kas. 456, the language of the opinion is: “ Before the adoption of the constitution, the practice was to create corporations by special laws. This practice resulted in partial, vicious and dangerous legislation. To correct this existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power, ... it was ordained,” etc.; and in speaking of § 25, eh. 23, of Gen. Stat. 1868, it is stated, p. 458: “If sustained, corporations can again be created or extended in their existence all over the state, with such powers and franchises as the territorial legislature may have conferred by special charters at its pleasure or caprice, when its power was unrestricted by any such wholesome constitutional provision as is imposed by § 1, art. 12, on the legislative power of the state.”
The Lawrence bridge company continued to exist as a corporation to February 9, 1878, although it was created by a special act of the territorial legislature, on February 17,1857, notwithstanding § 25, ch. 23, Gen. Stat., had no effect to continue it in the enjoyment of its franchises. The charter of that corporation, although not preserved or continued in force by the state in any manner other than as the Kansas medical society has been preserved, existed in full vigor for over seventeen years after the acceptance of our constitution by congress. The “Paola town company,” chartered October 13, 1855, did not cease to exist till 1865 — over four years after Kansas became a state. (Krutz v. Paola Town Co., 20 Kas. 397.) If the theory of counsel is correct, then every ferry, bridge, railroad or other like corporation, incorporated by special acts prior to the admission of Kansas as a state, was stricken down and blotted out in 1861. Certainly no such wholesale slaughter of corporations was ever intended by the framers of the constitution, (even if they had the power to accomplish it,) and neither reason nor authority supports such a doctrine. We doubt even whether counsel would be willing to follow the logical results of their argument to this extent. (Vincennes University v. Indiana, 14 How. 268.)
Our conclusions upon the foregoing matters are, that the Kansas medical society was lawfully chartered by the territorial legislature; that it was legally endowed with perpetual succession forever; that the congj¿f.U£jon n0(¡ suspend or repeal its charter; that if the state legislature has the power to suspend or re peal the charter, (which we do not decide,) it has never exercised, or attempted to exercise, the power, and that the society is a lawfully-existing corporation.
The final objection, and the most serious of all, is, that the act of February 27,1879, grants to the Kansas medical society additional authority, thereby conferring corporate powers by a special act, and that it is therefore obnoxious to § 1,. art. 12 of the constitution of the state. If this objection is valid, it is equally fatal to the action of .the Eclectic medical society and of the Homeopathic medical society, in appointing examiners, as the latter societies are, in the law, also denominated corporations, and we believe that their corporate existences are unquestioned. If the Kansas medical society were not a corporation, but only an association of individuals, we would have no hesitation in deciding that the legislature had the constitutional right to devolve the power conferred; and if the defendants had not pleaded the act of incorporation, but alleged only that they were acting as citizens, or as an association of citizens, the defense would be sufficient. We •could have treated the words, “corporations organized and existing,” as merely “ desoriptio personarum.” The state constitution is only a limitation of powers, and as there is no provision forbidding the legislature from authorizing persons, or an association of persons, within reasonable limits, to designate examiners, with the duties defined in the law, its provisions would not be repugnant to the constitution, if confined to persons or societies not incorporated. Clearly, we think, the state, in the exercise of police power, may provide for boards authorized to examine persons seeking to be admitted to practice medicine, to be designated by any citizen or citizens. The fact that the Kansas medical society and the other societies named in the law are corporations, presents fully and fairly the inquiry, whether in fact the law •confers corporate powers. It is said, in Gilmore v. Norton, 10 Kas., p. 491: “That any power conferred upon a corporation,, and to be exercised by the corporation, is a corporate power; and á power that would not be a corporate power if ex ercised by an individual, becomes a corporate powerwhen exercised by a corporation.” The authority for these societies to appoint annually a board of examiners, (unless we may denominate it the imposition of a public duty,) is the possession of some corporate power conferred by the legislature, and the exercise of such power by the incorporated societies, (unless it be the assumption of a public duty,) is the exercise by the corporations of corporate power. If the law limited the power conferred to the mere designation of examiners, whose duties are entirely separate and independent of the corporations, and if the control or dii'ection of the corporations over the examiners ceased with such designation, and if the exercise of the selection of the examiners were not profitable or beneficial to them, the law might be held valid: this, upon the principle solely, that the state by the law imposed a public duty on the corporations, and the performance of the duty is the assumption of a public duty. To illustrate: Suppose that the legislature, by an act at its present session, should ask the city of Topeka to designate a civil engineer to examine and report to the. board of state-house commissioners, at the expense and under the direction of the state, the depth, strength and character of the foundation walls of the west wing of the state house just completed; or, suppose that the city of Leavenworth were authorized to appoint a commissioner, in the interest and at the expense of the state, to attend the world’s exposition to be holden in New York city in 1883 — we are inclined to think that such acts would be constitutional. In these cases there would be virtually no franchise or power, and no pecuniary profit to the corporations. But the law of 1879 does not restrain or limit the authority conferred to the mere designation of examiners; it .requires that the certificates shall indicate the medical society to which, the examining board is attached, (Laws 1879, ch. 122, §3); that the candidates shall pay a fee of five dollars, in advance; that all the fees received by the examiners shall be paid into the treasuries of the medical societies by which the boards are appointed, and the expenses and compensation of the boards are subject to arrangements with the societies. (Sec. 8, supra.) The act is entitled “An act to regulate the practice of medicine in the state,” yet, under its provisions, all the fees collected go into the treasuries of the societies, and thus increase, more or less, according to the number of applicants, the funds or assets of each society. By these provisions a revenue is collected directly from each candidate for some one of the corporations, and, to the extent of the fees, less the expenses and compensation returned to'the examiners, the law is for the emolument and benefit of the corporations. It confers power, the exercise of which secures pecuniary profit. Under the law, to some extent, a revenue is levied and collected on certain individuals.
Again, the power given the corporations to regulate the compensation and expenses of the examiners, gives them, in some degree, control over their appointees, and ^us further corporate, power is granted, the exercise of which by the societies is the exercise of corporate power. In our opinion, therefore, the law of 1879 does confer corporate powers on the several societies designated to select examiners, and is, in consequence thereof, unconstitutional and void. (Atchison v. Bartholow, 4 Kas. 124; Gilmore v. Norton, supra.) We have arrived at this conclusion with some hesitation, conscious that if practicable, we should favor the validity of the law, so as to give it force and effect, rather than to avoid it, or render it nugatory; but the closer our examination, the more positive are our convictions of its conflict with the constitution.
Again, some of the provisions of the law are in the interest of the public health, and attempt, in a feeble way, to protect the public from empiricism and malpractice, and thus far, are so worthy in their general purpose that we would gladly uphold them, in all their terms; but the constitution is paramount, and in our allegiance to it, it becomes our duty in a clear case, to strike down the statute, rather than to permit it to encroach upon or override the fundamental law of the state. As was said in The State v. The Lawrence Bridge Company, supra, p. 457:
“An evasion of so important a provision of the constitution ought not to be favored in any degree. The abuses and corruption in legislation are mainly the result of private and special laws, and the remedy, and the only remedy, which has proved effectual to prevent this, is found in severely depriving the legislature of the power to legislate for any citizen [or corporation] in preference to or at the expense of the whole. Obsta principiis — stop the beginnings, and stop them decisively, is very necessary to such legislation.”
We have not thought it important to discuss the question whether the act is a special act in confining the selection of the examiners to three medical societies only, and in giving them special powers and privileges not conferred on similar corporations, as it seems to us no argument is needed to sustain the proposition. Counsel do not challenge this view, and comment thereon is useless.
At one time in our investigation, we hoped to so separate the invalid provisions of the law, as to preserve the duty to the several boards to designate examiners, but the invalid provisions are so united with the other portions, that it seems that it was the intention of the legislature to build up and aid pecuniarily the corporations named, as well as to carry out the general purpose indicated by the title; therefore the poison cannot be withdrawn, so that the life of the law can be saved. If the section which is clearly unconstitutional is stricken out, no provision is left for the payment of the examiners, nor for carrying fully into effect the law.
The result we have reached, after having endeavored thoroughly to understand the subject, obliterates for all practical purposes the statute. If the Kansas medical society cannot appoint examiners, and obtain the benefits of the fees collected from the applicants to its board, because it is a corporation, then the Eclectic medical society and the Homeopathic state society (if they are corporations) are likewise debarred from enjoying the powers conferred by the law. If there are no societies to designate examiners, no examiners can be chosen; and if no examiners can be chosen, no certificates can be granted; if no certificates can be granted, the other provisions are lifeless, and without power of enforcement. It is better that this conclusion be declared at once, while the legislature is in session, than that it be postponed to a future day, because the consequences need not be disastrous to the public. The law-making power can easily correct and remedy the vice of the existing statute, and replace, in a very few days, the obnoxious law, with one harmonious and constitutional. The appointments may be lodged, perhaps, with the societies, if the power conferred is limited to the mere designation of examiners; or the governor or some other officer or person may be designated to select the examiners from the societies. Of course, the fees of the applicants cannot be turned over to two or three corporations, so as to confer on them alone special powers and privileges not enjoyed by other medical societies incorporated by law. As the fees already paid by the applicants have been advanced under'a mistake of law and not of fact, no recovery of them can be had; unless, therefore, they are voluntarily returned to the candidates, the corporations will retain them. As the defendants have no legal authority to perform the duties of examiners under the act of 1879, owing to its invalidity, the answer fails to set forth a good defense, and the demurrer thereto must be sustained.
Judgment rendered for the plaintiff for all costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
These two cases have been in this court before, and the decision will be found in 21 Kas.,555. So far as the questions then presented are concerned, that decision disposes of them, and compels a reversal of these judgments.
Two other matters are presented: First, the defendant, plaintiff in error, alleges that he paid usurious interest to the bank on notes other than those sued on, and claims the right to set off and recover double such interest in this action. The national banking law, after providing that national banks may take the interest allowed by the laws of the state in which they are located, contains this provision (§ 5198, U. S. Rev. Stat.): “The taking, reserving or charging a rate of interest, greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note . . . carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid . . . may recover back, in an action in the nature of an action of debt, twice the amount of interest thus paid,” etc. Can this claim for usurious interest be set off? This depends on the nature of the cause of action, for unless it is one arising upon contract, it cannot, under our statute, be made a matter of set-off. The cause of action is clearly not founded upon express contract. The bank never promised to pay Fraker double the usurious interest.it had received from him. The only express contract was the other way, and that contract had been performed. Is it founded upon an implied contract? The authorities say not. (Hade v. McVay, Allison & Co., 31 Ohio St. 231; Lucas v. Bank, 78 Pa. St. 228; Wiley v. Starbuck, 44 Ind. 298.) The section creates a forfeiture, and in ease the party wronged has. actually parted with his money, allows him to recover double damages. Usury, says the statute, forfeits all interest. That is the penalty for the forbidden act. It is in the nature of punishment for an infraction of the law. If no interest has been paid, but only contracted to be paid, that is the only effect of the statute. It thus far nullifies the contract, and forbids the recovery of such interest. But if it has been paid, the party may recover it back, and as much more. The forfeiture is not avoided by the fact that the contract has been performed; but, as though performance had increased the wrong, the damages are doubled. The cause of action is really one to enforce a forfeiture; but a forfeiture implies no contract. Generally where there is an express contract, the law will not infply one. Here there was an express contract, a contract forbidden by the statute, and the penalty for the breach of which is this cause of action. That the penalty goes to the party suffering the wrong rather than to the government, does not change the nature of the action. The statutes of the various states show many instances in which part or all of the penalty goes to the party specially injured by the wrong, or to the informer. Still, the nature of the action is not changed thereby. It cannot justly be said that an action to enforce a forfeiture or recover a penalty is one founded on contract, no matter who is the party chiefly benefited by the recovery. (Bank v. Commonwealth, 2 Grant’s Cases, 384.) There is, to be sure, an implied obligation resting upon every member of society, to break no law and do no wrong to his •neighbor; but this obligation is not the implied contract of which the law books speak as one whose breach gives a cause of action upon contract. The authorities cited' correctly construe the section, and the court did not erf in ruling out the set-off.
The other matter is an alleged collection of part of the judgment formerly rendered in these cases, pending the proceedings in error. The reversal of these judgments probably obviates any necessity for considering that matter, as money collected on a judgment will always be returned by the order of the court when the judgment is reversed.
The judgments will be reversed, and the cases remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
This judgment is affirmed, on the authority of J. C. & Ft. K. Rly. Co. v. Wingfield, 16 Kas. 217; Weeks v. Medler, 18 Kas. 425; Ferguson v. Graves, 12 Kas. 39; Typer v. Sooy, 19 Kas. 593; Gruble v. Ryus, 23 Kas. 195. | [
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The opinion of the court was delivered by
Horton, C. J.:
This proceeding, in the court below, was an appeal from an appraisement and assessment of damages made by commissioners appointed by the district court of Jackson county, to assess damages for land taken and' injured by the Kansas Central railway company in the location and construction of its railroad. This is the second time the case has been here. (Kas. Cent. Rly. Co. v. Allen, 22 Kas. 285.)
Certain questions are now raised as to the competency of the evidence of the owner of the land. It appears from the record that the land is improved; that the witness was in the possession of the land at the time the right of way across the land was laid out; that he was a farmer-by occupation, and had been engaged in that business for over thirty years; that he was well acquainted with the market value of lands and farms in the vicinity in 1877; also, before and after that time; that he knew what was the market value of the land before and after the location of the railroad across it.
In answer to the question, “What was the fair market value of the land as an entire thing just before the right of way was laid out?” the witness said, “Twenty dollars per acre.”
In answer to the question, “ What was the fair market value of the land as an entire thing just after the right of way was set apart and appropriated for the use of the railway?” the reply was, “Fifteen dollars an acre.”
These questions and answers were objected to, and the plaintiff in error, the railway company, claims the trial court erred in admitting this evidence.
It was decided, in the case of St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239, that damages were properly allowable for the actual value of the land taken by the railroad company, and for consequential diminution in value of the rest of the land. In M. K. & T. Rly. Co. v. Haines, 10 Kas. 439, it was held, that in assessing damages done to land by reason of the appropriation of a right of way through it for a railroad, the commissioners or jury may always take into consideration all incidental loss, inconvenience, and damages, present and prospective, which may be known, or may reasonably be expected to result from the construction and operation of the road in a legal and proper manner. That the jury may have before them such facts as will enable them to render a verdict in accordance with these rules, a plaintiff may show generally the value of the land before and after the appropriation. Of course, the opposite party, by cross-examination, may bring out the ability of the witness to judge in the premises, and what he takes into consideration in making up his judgment. While the witness cannot give his opinion as to the amount of damages which the landowner sustains by the location and operation of the railroad across the land, yet he may testify to the value of the land before and after the location of the railroad, as such evidence is mainly a statement of facts. The evidence objected to was admissible, and the judgment of the district court will be affirmed.
All the Justices concurring.
The Kansas Central Railway Company v. E. H. Ireland.
The opinion of the court was delivered by
Horton, C. J.:
The question in this case, as we understand it, is the same as in the above case, just decided, and accordingly, the judgment in this case will also be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to quiet title to certain lands in Linn county. Plaintiff based his title on a tax deed, . which described the lands as “lots 1, 2, 3 and 4, section 13, in township 23, range 24, except undivided 11 acres.” The tax sale was had on May 8th, 1872, for the tax of 1871. All the proceedings, including the deed, were under the tax law of 1868. (Gen. Stat., ch. 107.) A demurrer was interposed by the defendant to the petition. The court held that the tax deed was insufficient on its face to pass title to the plaintiff, and therefore sustained the demurrer. The contention is over the description of the land in the deed. Defendant claims that the deed does not contain a correct and pertinent description as is required by thé statute, and refers to Commissioners v. Goddard, 22 Kas. 389.
Plaintiff urges in opposition to this view, that the deed , shows the assessment and sale of an undivided interest. It is doubtful whether the deed states anything more than the sale of an undivided portion of the real estate, but if it can be upheld at all, it must be on the assessment and sale of an ' undivided interest. We assume, therefore, that the question is raised, whether an undivided interest in land can be legally assessed for taxation under the statutes of 1868; and if the taxes remain delinquent on such undivided interest, whether it can be sold for the delinquent taxes? It is well settled that the officers who exercise the power of assessing and selling land for taxes, can exercise no implied power whatever. The statute regulating assessments of land and tax sales is not ambiguous on this subject. By the statute of 1868, each parcel of land must be separately listed. (Secs. 32, 36 and 37.) The listing and assessment must contain a “correct and pertinent description of each parcel of real property,” (§32,) and of the “quantity” and “value” of each parcel, (§36.) All lands and town lots subject to sale for taxes shall be published in some newspaper for four consecutive weeks prior to the day of sale, and such lands and town lots shall be described in the publication as the same are described on the tax roll, and such publication shall state that so much of each tract of land or town lot, described in the list, as may be necessary for that purpose, will be sold at public auction for the taxes and charges thereon. (Secs. 81 and 82.) Sec. 84 reads as follows:
“On the day designated in the notice of sale, the county treasurer shall commence the sale of those lands and town lots on which the taxes and charges have not been paid, and shall continue the same from day to day, Sundays excepted, until each parcel or so much of each parcel shall be sold as shall be sufficient to pay the taxes and charges thereon, including the costs of advertising and the fees for selling.”
Sec. 85 provides:
“The person at such sale offering to pay the taxes and charges against any one piece or parcel of land for the smallest quantity of land in a square, as nearly as practicable, off from the northeast corner of the tract or piece of land, shall be the purchaser of such quantity, located as aforesaid.”
Section 86 further provides:
“If no one will bid for a less quantity than the whole, the treasurer may sell any tract or piece of land to anyone who will take the whole of such tract or piece of land' and pay the taxes and charges thereon.”
Clearly, these sections neither require nor provide for the assessment or sale of undivided interests. On the other hand, these sections distinctly set forth the listing and advertising of land in separate parcels, and that the sale shall be of the smallest quantity of land’ in a square, as nearly as practicable, qff from the northeast corner of the tract or piece of land, to pay the taxes and charges. In case no one bids for a less quantity than the whole, the treasurer may sell the tract or piece, to anyone who will take the whole of the tract or piece, for all the taxes and charges. In Hall’s Heirs v. Dodge, 18 Kas. 277, we held that a tax deed which shows upon its face that two or more separate and distinct tracts of land were sold together is void upon its face. This conclusion was reached because such a, sale is not authorized by the statute, and is in violation of its letter and spirit. So, likewise, in the present action, we think a similar result must be obtained. No statute makes any provision for the sale of an undivided interest, and it fails to point out the modus operandi whereby such a sale may be effected. There is no northeast corner of an undivided interest in land, and yet the statute is emphatic in requiring that the person offering to- pay the taxes and charges against any one piece or parcel of land, for the smallest quantity, in a square off from the. northeast corner, shall be the purchaser. If au undivided one-third were offered for sale by the treasurer, how could competitive bidders make intelligent bids therefor, and in what manner could the treasurer sell to the successful-purchaser a square of the land off from the northeast corner? -These inquiries help to suggest the fallacy of the argument of the plaintiff. As the statute makes no provision for a sale of an undivided interest for taxes, the officer had no authority to sell an undivided part of the land. Having no authority to make the sale, the deed is void upon its face, and passed no title to the plaintiff.
Counsel for plaintiff refers to § 100, ch. 107, Gen. Stat. 1868, which provides, that any owner, etc., may, etc., redeem any land or town lot, or any part thereof, or any interest therein, and § 101, which provides the same as to lands of minors, and attempts to argue therefrom that it is the policy of the law to permit the payment of taxes on an undivided interest in land before sale, as well as after a sale. Such is not the statute. Secs. 100 and 101 are only applicable after a sale has been made.
We have examined the various decisions of other states in regard to the sale of undivided shares in land for delinquent taxes, but so far as we can discern, those that assert a contrary doctrine to the one herein announced are based upon local statutes, differing essentially from ours. Several states provide by statute that the tenant-in-common, or part owner, be allowed to pay in his part, (23 N. Y. 438;) others make provision by statute to assess and sell land by undivided interests. (Renkendorf v. Taylor’s Lessee, 4 Pet. 349, 362; Wells v. Burbank, 17 N. Y. 393; Payne v. Dooley, 18 Ark. 491.) But these authorities have no application to our stat ute, and therefore the ruling and judgment of the district court will be affirmed.
Brewer, J., concurring.
Valentine, J.:
I think that the county treasurer has power to sell an undivided interest in land for delinquent taxes. | [
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The opinion of the court was delivered by
Brewer, J.:
This cause was begun before a justice of the peace by summons and attachment, both made returnable on the 8th day of July, 1879. The summons was returned, “Not found.” The attachment was served upon the custodian of a horse belonging to plaintiff in error. Thereupon the justice continued the cause to August 7, 1879, and on that day, after due publication, the justice rendered judgment against the plaintiff in error, under which his horse was sold.
The only question presented by counsel is, whether the judgment was prematurely rendered. The statute applicable thereto reads: “The justice of the peace shall continue the cause for a period not less than thirty or more that fifty days.” (Comp. Laws 1879, p.708, §35.) The contention of counsel is, that there must be thirty clear days — that is, thirty days excluding both the day of adjournment and the day of trial. The ordinary rule of computation as prescribed by statute is, to exclude the first and include the last. (Comp. Laws 1879, p. 700, § 722.) If this rule controls, the adjournment to August 7 was proper; for in July after the 8th are twenty-three days, and the first seven days in August, including in this the 7th, the day of trial, make up the thirty days. And we find the same form of expression frequently used in the statute. Thus, a summons issued to a county, other than that in which the action is commenced, is returnable in not less than ten nor more than sixty days from the date thereof. (Code, § 61.) In constructive service, the answer day is not less than forty-one days from that of the first publication. (Code, § 74.) A summons from a justice’s court must be returnable not more than twelve days from its date. (Justices’ act, § 12.) Now, are all these cases outside the statutory rule of computation ? It will be remembered that there is no abstract right or wrong in any method of computation. It might be to exclude or include both terminal days, or to exclude one and include the other, and no absolute right trespassed upon. The important matter is certainty and uniformity. And a statutory rule of computation should be universally enforced, except in cases where a different construction seems imperative. As to the time of filing depositions, such an exception seems to have been contemplated. (Garvin v. Jennerson, 20 Kas. 371.) But not in case of sales upon execution. (Northrop v. Cooper, 23 Kas. 432.)
There is no reason for any exception in the case at bar, and the language does not by its recognized and accepted meaning compel an exception. Hence none should be enforced. The statutory rule should control, and that sustains the judgment below. It must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This action was commenced in the district court of Chase county, by the defendant in error, who was plaintiff below, upon a petition in error from the action of the board of county commissioners of that county, in establishing and ordering to be opened a certain road in said county, in which said petition the board of county commissioners was made the only defendant.
Many questions are presented and discussed by counsel, but we shall consider but one, because that is both preliminary and decisive. In due season, the right of plaintiff to proceed in the district court was challenged, on the ground of a defect of parties defendant. It was insisted that the principal petitioner for the road, the party who had given bond to pay all costs and expenses in case the road should not finally be established, had such an interest, and was in fact such a party to the proceeding, that no reversal should be made of the order of the county commissioners without his presence in court. He is the one and the only one pecuniarily injured by a reversal. He must lose not only the benefits of the proposed road, a loss which he shares with others, but also all the costs and expenses which have been incurred. It is also said that the commissioners are not a proper party defendant, because it is their order which is challenged ; and the anomaly is presented of a proceeding to reverse the ruling of a court in which the court is the only party defendant. Again, the county makes by a reversal; for, if the road be established, it pays costs, expenses, and damages; if not, it pays nothing, and the principal petitioner bears all expenses,. There are reasons, however, why the commissioners should be held a necessary party defendant in a proceeding to review an order establishing a road. The question of a road is not a merely private one — one affecting a few individuals; it is a matter of general public interest; it is a county question, and the county should be heard; but the title under which the county is sued is the board of county commissioners, etc. The county commissioners occupy a twofold position : they constitute a judicial body, which passes upon the propriety and need of a proposed road, whose judgment thereon may be reviewed by proceedings in error; they also represent the county — are, as it were, trustees for the public, to look after and protect its interests. As such, it is proper that they should be made a party defendant. It is the county which in fact is defending, and which seeks to protect and preserve to the public the highways which have been attempted to be established. But it is also true that the principal petitioner is interested; he has assumed the burden of all costs and expenses, if the road be not established; nor does he occupy, as counsel argue, the position solely of an ordinary security for costs; he is the petitioner — the party on the record, upon whose application the proceedings are originally instituted. True, there are several others who join in this petition, and in one sense they are all parties plaintiff in the proceeding; but the one who gives the bond.is the principal petitioner; upon him is the burden of the proceeding. The names of the others are, in a certain sense, only guaranties to the county board that the proposed road is not one simply of individual desire, but of public advantage. If they are parties plaintiff, he is more so. He petitions as do they; he gives a bond and assumes the risk of failure, while they do not. If they should be made parties defendant in a proceeding in error, a fortiori should he. And all the question in this case is, whether he should be a party defendant. If a party whose land is sought to be taken is so far a party to the record that he can maintain proceedings in error, (and unless this be so the plaintiff had no standing in the district court,) it would seem that he who initiates the proceedings to take that land, and who is bound for all expenses in case of failure, is an adverse party, and should be heard before the proceedings are adjudged irregular and he be mulcted in a large sum. Grant that in a certain sense these are proceedings in rem: if the owner of the res is heard to challenge the proceedings, who is an adverse party if it be not he who asks the appropriation of the res9 Technically, the petitioner is the party plaintiff on the record. In fact, he is the real party pecuniarily interested in and affected by a reversal. His money is as impor tant to him as th,e land-owner’s land to him. Each should be heard; and if. either is a party, the other is.
Authority is not wanting. Our road law was borrowed from Ohio. True, there is some difference. The Ohio statute gives certain rights which ours does not; so that decisions in Ohio may perhaps not be considered absolute authority. Yet there is so much similarity in the statutes that a decision of the supreme court of that state carries great weight. In Comm’rs of Wood Co. v. Junkins, 19 Ohio St. 348, it was held that the principal petitioner was a necessary party defendant in a proceeding in error like this. The court say: “Now whatever may be said about the propriety of making the commissioners defendant by reason of some supposed interest of the county in the question, it is very clear that the parties to the controversy decided by the commissioners, and whose rights and interests were thereby affected, are necessary parties to the proceeding to review and modify or vacate the orders made in the case.” And again: “A proceeding to reverse the order establishing the road was a direct attack upon the pecuniary right of the petitioners for the road who had given such bond, as well as the interest they had in establishing the road.” Counsel would distinguish between the Ohio statute and ours, and thus avoid the force of that decision. But the points of difference do not affect this question. In the Ohio statute there is given to the land-owner a right to petition the county board for a review and to have reviewers appointed and also a right of appeal. But neither of these matters affects the question as to who are the parties to these road proceedings, who may challenge, and who be heard in defense. The initiatory proceedings are the same by the two statutes — the petition, the bond, the notice, the order, the viewers. The only difference is, in the subsequent matters of appeal and review.
Again, counsel refer to the case of Comm’rs of Wabaunsee County v. Muhlenbacker, 18 Kas. 129, in which the county commissioners were the only party, and yet the validity of the road proceedings was inquired into and determined. A sufficient reply is, that no question as to parties was there raised. We also think that the county board was a proper party, and the question of a defect of parties must be raised in the lower court or it will not be considered here.
Ve refer to the case of The State v. Anderson, 5 Kas. 90, for a further discussion as to the necessity of having all parties directly interested before the court.
For the reasons above given, the judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer to the plea iu abatement.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In an action commenced by plaintiffs in error, an attachment was issued, placed in the hands of the sheriff, and by him levied upon certain rnill property. Pending the attachment proceedings, the sheriff, under direction of plaintiffs in error, employed defendant in error to watch the property; and this action was brought by defendant in error, plaintiff below, to recover for such services. . That the sheriff was authorized by plaintiffs in error to employ defendant in error, and that the latter performed the services, are conceded facts. The dispute is as to the compensation. Webster claims that the contract price was three dollars per day, and that it was worth that amount; while Turner & Otis say that they authorized the sheriff to contract for only one dollar and a half a day, and the sheriff says that that was all he promised to pay. The misunderstanding seems to have arisen in this way: After the attachment, Turner & Otis requested the sheriff to find some one to guard the mill. Meeting Webster, he asked him what he' would undertake the job for. He replied, one dollar and a half a day, and nights the same. The sheriff' understood him to say and mean, one dollar and a half for each day of twenty-four hours, while plaintiff meant that amount for a day of twelve hours, and the same for the night time, or three dollars for every twenty-four hours. The sheriff reported the offer to Turner & Otis as he understood it, and they, after some hesitation, told him to accept the offer and employ Webster. Without further words as to the price, the sheriff' gave the key of the mill to Webster, and told him to go ahead. Now the contention of plaintiffs in error is, that the case turns on the law of agency;! that they never personally employed Webster; that the sheriff was only a special agent with limited powers, only authorized to bind them by a contract to the amount of one dollar and fifty cents per day of twenty-four hours; that Webster is chargeable with notice of the extent of the sheriff’s authority, and can enforce the contract as against the plaintiffs in error to the extent only of such authority. For any contract beyond that amount, the special agent binds himself alone, and not the principal. On the other hand, the defendant in error contends that where services are contracted for and rendered, and no price stipulated, the law awards reasonable compensation therefor, and that where there is a misunderstanding as to the price, the one party understanding it at one sum and the other at a different, there.is no stipulation as to the price, and that ijfc makes no difference whether the contract be made through an agent or with the principal directly. In the case at bar, he contends that it is immaterial that the conversation and misunderstanding were with the sheriff, the agent, and that the rule is just the same as though the talk and misunderstanding had been with Turner & Otis personally.
We think the case rests upon the propositions advanced by the defendant in error. It will not be questioned, that, where the minds of two contracting parties do not come together upon the matter' of price or compensation, but do upon all other matters of the contract, and the contract is thereupon performed, the law awards a reasonable price or compensation. Thus, where shingles were sold, and delivered, at $3.25, but there was a dispute as to whether the $3.25 was for a bunch or for a thousand, it was ruled, that unless both parties had understandingly assented to one of those views, there was no special contract as to price. (Greene v. Bateman, 2 Woodb. & M. 239.) It is said by Parsons, in his work on Contracts, vol. 1, p. 389, that “there is no contract unless the parties thereto assent; and they must assent to the same thing, in the same sense.” Here, Webster never assented to a contract to work for $1.50 a day. He agreed to do a certain work, and did it; but his understanding was, that he was to receive $3 per day. Turner & Otis employed him to do that work, and knew that he did it; but their understanding was, that they were to pay but $1.50 a day. In other words, the minds of the parties met upon everything but the compensation. As to that, there was no aggregatio mentium. What, then, should result? Should he receive nothing, because there was no mutual assent to the compensation? That were manifest injustice. Should his understanding bind both parties? That were a wrong to them. Should theirs control? That were an equal wrong to him. The law, discarding both, says a reasonable compensation must be"paid. So that if the negotiation had been between the parties directly, and this misunderstanding had arisen, the rule of reasonable compensation would unquestionably have obtained. Now, how does the law of agency interfere? The proposition of law advanced by counsel for plaintiff in error, that a special agent binds his principal to the extent only of the authority given, and himself by any promise in excess, is clear. But the agent'made no promise in excess of his authority. He promised that which he was authorized to promise. Because the other party misunder stood the extent of the promise, is surely no reason for holding the agent bound for more than he did in fact promise. The agent has rights as well as the principal. The work is not done for his benefit. He has discharged his agency in good faith, and to the best of his ability. Why should he be mulcted in any sum on account of the misunderstanding of the party with whom .he contracted? If compensation were given on the basis of his promise, then, if his promise, was in excess of his authority, he should be responsible for the excess; but where the promise is ignored,'and compensation given on the basis of value alone, he should not be charged with the excess of such value above his authority. An agent is responsible for good faith. That is not questioned. He does not insure, either to his principal or the opposite party. ' Acting in good faith, and'tq;the best of his ability, we can see no reason for. making him responsible for •any mere misunderstanding. Justice is done to all parties by ignoring any promise or understanding as to compensation, and giving to the laborer reasonable compensation for the work done, and requiring the party receiving the benefit of such work to pay a just and reasonable price therefor.
The case was submitted to the jury upon this basis, and while the instruction asked by plaintiffs in error, and refused, was unquestionably good law in the abstract, and while some criticism might fairly be placed upon one of the instructions given, and upon the answers of the jury to two special questions, we think the main question was fairly presented, and that no error appears justifying a reversal of the judgment, and it will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This case was before this court under the above title, and was decided at the July term, 1879, (22 Kas. 562.)
The error complained of was in the application of the surplus proceeds arising from the sale of real estate sold upon ■execution. The sale had been confirmed on application of both plaintiffs and defendant. The court allowed the surplus to be applied to the payment of a certain mortgage upon the real estate. The defendant Jenkins prosecuted his petition in error in this court, and that order of the court below was reversed. The plaintiff in error (defendant in the court below) moved the district court to spread the mandate of this court on its record, and to enter an order that the sheriff pay. to him the surplus proceeds, in accordance with the opinion ■of this court. The plaintiffs below (defendants in error here) interposed a motion for leave to file a motion to withdraw their motion for confirmation of said sale, and to move the court to set aside said order of confirmation. The defendant below (plaintiff here) objected to the filing or hearing of said motion, for the reason that the motion had already been adjudicated at the instance of both plaintiffs and defendant. Defendant’s objections were overruled, and he excepted, and the said motion was filed and taken up for hearing, and the grounds of said motion were alleged to be: “That at the time of the levy of the executions under which the said sale was made, the defendant, W. S. Jenkins, was a non-resident of the state of Kansas, and no service of summons or other process could be had upon him in this state; that at the time of the levy of said executions and of said sale, and ever since then, there was and is existing in full force and unsatisfied a mortgage upon said property by the defendant, Jenkins and his wife, to secure the sum of $1,500; that after said levy the property was appraised at its real value, without regard to the existence of the mortgage; that before and at the time of said sale, the plaintiffs were informed and believed that it had been decided by the district court, that where mortgaged property was levied on under execution, and appraised and sold at and for its real value, the court had the power to order the application of the proceeds of such sale to the extinguishment of the mortgage incumbrance; that the supreme court had not yet decided that this is not the law; that the plaintiffs caused said levy to be made, and made said purchase, and entered said motion for confirmation, relying on the fact that such decisions had been made, and that such would be the practice; that under the decision of the supreme court made in this action since said sale, and since said motion for confirmation, it has been established to be the law of this state, that the proceedings of the sheriff in making such sale were irregular and illegal, and this court had and has no power in cases of this character to order the application of the proceeds of sale to be applied to the extinguishment of prior incumbrances; that at the time of said levy, and at the time of said sale, and at the time of the filing of said motion, and at this time, the said property was and is worth no more than fifteen hundred dollars.”
The motion of the defendants in error (plaintiffs below) came on to be heard, and plaintiffs offered in evidence certain affidavits, to which the defendant below (plaintiff here) objected. His objections were overruled, and he excepted.
The court thereupon allowed said motion for confirmation to be withdrawn, and the defendant excepted, and the court then vacated and set aside the order confirming said sale, and defendant excepted. The court then set aside said sale, “because said sale was contrary to the statutes in such case made and provided,” and defendant again excepted. The court overruled the motion of defendant for the payment to him of the surplus proceeds, and he again excepted, and brings the rulings of the district court again before this court for review.
We do not think the absence of the defendant from the state cuts any figure in the case. We do not think the power of the court under § 481 and following of. the code is defeated by the failure of defendant to appear in response to the order. The question of his interest may be determined, although he fails to appear to the order served upon him.
The real question, stripped of all extrinsic matter, is this: When a party applies to and obtains from a court its process, under a mistaken notion of the effect of such process and the proceedings under it, under what circumstances and upon what conditions may he obtain a revocation of that process, and a setting aside of the proceedings ? We think two things must concur: first, he should pay all the costs of such process and proceedings; and second, such revocation and setting aside should not work wrong and injustice to the substantial equitable rights of the adverse party. Upon these two conditions we think a court may properly entertain such a motion, and that, although it may in the first instance have sustained the process and confirmed the proceedings. This last element calls for consideration at our hands in the present case. Are the substantial equitable rights of the defendant, plaintiff in error, prejudiced by the setting aside of the proceedings? We think not. He held the legal title to certain real property; that property was incumbered by a mortgage. His interest therein, thus burdened, was all that was in fact available for the discharge of this judgment debt. The value of that interest was all that in equity he could claim should be applied in discharge of the judgment. There is no equity in compelling the judgment creditor to pay his mortgage debt. To compel that, would make the processes of the law instruments of injustice. And the aim of the law, and all proceedings under it, is equal and substantial justice. While regularity of proceeding is in the long run essential to justice, yet a court has and must have a supervising control of its process, to prevent, in exceptional cases, the abuse of that process, to the accomplishment of wrong and injustice. Now, to insist that the plaintiffs must abide by their mistake is to enforce the process to the success of injustice. To relieve a party of his mistake is simple justice. The defendant is in no worse condition than if the mistake had not been made. His real interest in the land may still be appropriated to the payment of the judgment debt, and that is all that in equity he ought to ask; and we think a court has such control of its process that it may prevent its use for injustice, and that, notwithstanding any mistake of the party seeking such process. It follows, therefore, that in the main the court did not err in setting aside the sale or proceedings under the execution.
As to costs, it appears that the court taxed the costs of the sale to plaintiffs. We do 'not think this was enough. It would seem right that all costs of the execution and sale and subsequent motions concerning the sale should be paid by them. In other words, that the parties should, in the matter of costs, be put back into the position in which they were at the time the execution was sued out'. To that extent the order of the district court will be modified; otherwise it will be affirmed. The costs of this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question in this case is, whether the second defense of the defendants’ answer sets forth facts sufficient to constitute a defense to the plaintiff’s petition. The material question involved in the case is, whether the county commissioners of Marion county, Kansas, acted beyond their power or not, in issuing a certain warrant or order to Henry C. Koble for $4,500, and in appropriating that amount of money to make certain improvements in said county. Now while we know from the facts as set forth and shown in the cases of The State, ex rel., v. Comm’rs of Marion Co., 21 Kas. 419 and 437, that said commissioners did act beyond their power, yet we hardly think that we can know such to be the case from the facts alleged and set forth in the present case. In the present case we can know the facts only as they are set forth and alleged in the second defense of the defendants’ answer, and as thus set forth, we do not think that they show that the county commissioners acted beyond their power. In the first place, we must presume, in the absence of anything to the contrary, that the commissioners did their duty; and in the second place, we must presume, in the absence of anything to the contrary, that the court below decided correctly in holding that the said second defense did set forth facts sufficient to constitute a good defense to the plaintiff’s action. And with these presumptions in favor of the county commissioners and of the correctness of the decision of the court below, we must find, before we can hold that the commissioners (who are now defendants) acted beyond their power, that said second defense shows affirmatively that the commissioners did so act beyond their power. This we cannot do. In the former case, it was shown that said improvements were in fact a permanent county building, which was to cost at least $7,450. But in the present case, it is alleged in said second defense that said improvements are “additions, extensions and improvements to the court house of said county;” “and that said additions, extensions and improvements of said court-house are now part and parcel of said court-house,” and that they “ were necessary and proper for the immmediate use -of said county, and were urgently demanded by the business interests thereof,” and that the commissioners acted in good faith, etc., and there is nothing in the whole case that shows anything to the contrary.
It is certainly true, that before the county commissioners of any county can appropriate any money for the purpose of erecting any permanent county building, it is necessary that such commissioners should first submit the question of appropriating such money, or of erecting such building, to the legal voters of the county, (Comp. Laws of 1879, p. 276, § 18; The State, ex rel., v. Comm’rs of Marion Co., supra;) 'but for the purpose of making necessary repairs or alterations of an already existing court-house, it is not necessary that the question should be so submitted. In the former case, as the facts were then submitted to us, we decided against the power of the county commissioners to appropriate said money, and we adhere to that decision; but in the present ease, as the facts are now presented to us, we shall have to decide in favor of their power. Probably the facts are not now truly presented to us, but the plaintiff, by demurring to the second defense of the defendants’ answer, conclusively admits that they are. But even as they are now presented to us, we think the commissioners acted very indiscreetly. In all cases where a large amount of money is to be expended, it would be better for the commissioners to submit the question of its expenditure to the voters of the county. And where there is any doubt as to the power of the commissioners to expend money without such submission, they should give the benefit of the doubt to the voters, and submit the question before they expend the same. For where they have no legal power to act, they cannot plead good faith after they have acted.
As to the power of the county attorney to sue in the name of the state, the question will be found decided in the affirmative in the case of Comm’rs of Harvey Co. v. Munger, ante, p. 205; see also The State v. Comm’rs of Marion Co., supra, and authorities there cited.
We cannot say that the court below erred in overruling the plaintiff’s demurrer to the second defense of the defendants’ answer, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The vital question in this case is, whether the bond sued on is valid. The trial court held that it was executed without authority of law, and likewise without consideration, and therefore was void. As it appears from the findings of fact that after the execution of the first bond by the county treasurer, the taxable property of Neosho county had largely increased, and the amount of taxes had correspondingly increased, the necessity for the new or additional bond must be admitted. It cannot, therefore, be urged that the order for the bond was capriciously or arbitrarily made; if the power to require the bond inhered in the board of county commissioners by the provisions of the statute, the power was legitimately and justly exercised. It is expressly provided in §179, Comp. Laws Í879, p.311, that the refusal^ or neglect of a county officer to renew his official bond within the time prescribed by law, shall vacate his office. This cannot be interpreted as referring to the new bond an officer is required to give upon being reelected, because such an interpretation eliminates “or renew” from the section — it leaves the words without force or meaning. The execution of a bond by an officer upon being reelected is not the renewal of his bond; it is merely giving his official bond before entering upon an additional term of office. As the statute refers to a renewal bond, it follows that the lodgment of the power to demand a renewal bond ought to exist somewhere. The statute leaves with the county commissioners the duty of fixing the penal sum of a county treasurer’s bond, and the approval of the sureties thereto. Then, § 3 of ch. 25 prescribes that the powers of a county, as a body politic and corporate, shall be exercised by the commissioners, and under §36 of said chapter these officials represent the county and have the care of the county property and the. management of the business and concerns of the county in all cases where no other provision is made by law. Now it would seem that as representing the county, a county board, by virtue of these powers, would have the authority, when the public interests absolutely required the execution of a new bond by a county treasurer, owing to the insolvency of the securities after the acceptance of the official bond, or the levy of increased taxes for various purposes not anticipated when the original penal sum of the bond was fixed, to demand of the treasurer an additional bond. Clearly, such authority ought to exist. It often happens that a bond, amply sufficient when accepted, becomes, in a few months, insufficient from the financial failures of the sureties, and if there is no authority to compel the execution of an additional, or an increased bond on the part of a treasurer, the statute fails to fully protect the funds that come into his hands by virtue of his office. We think the omission does not exist. We think that the commissioners, acting for the county, and, by virtue of the provisions of the • statute relating to their duties and the duties of the treasurer, representing the state and the municipalities interested in the different funds to be collected by the treasurer, had the authority to make the order of January 8, 1872, requiring the treasurer’s bond to be increased to the sum of $150,000, and that the bond executed in accordance with the order is valid. Whenever, for good cause, a renewal bond is required of a treasurer by the board of county commissioners, the reasonable time allowed to the officer to execute the same will be deemed the time prescribed by law.
This conclusion does not place a county officer within the control of the whim, caprice, or political feeling of any county board, as an additional bond cannot be demanded except for some reasonable cause, and the law will protect a county official from an arbitrary or unjust demand, or an arbitrary or unjust removal.
The suggestion that the counsel who appear in this court for the plaintiff in error have no right or authority to appear for the board of county commissioners, is without merit. This is a civil proceeding. Where an attorney at law makes an appearance in a court in such a case, it will be presumed, in the absence of anything to the contrary, that he has au thority for such appearance. (Esley v. People of Illinois, 23 Kas. 510.)
Under §7, ch. 39, Gen. Stat. 1868, any excess over two thousand dollars which accrued from the fees of a treasurer, as allowed by law, was to be paid into the county treasury, and placed to the credit of the county, where the population of the county was less than 15,000. The findings show, that during Leahy’s term of office, Neosho county did not have 15,000 inhabitants. As the county was entitled to the excess retained by the treasurer, the action was rightfully brought in the court below in the name of the board of county commissioners of the county of Neosho. There is no constitutional inhibition against the power to turn over the said excess to the county as a county fund, and the provision to that effect cannot be called an unwarrantable stretch of legislative authority.
We have examined the other matters presented by the counsel, but we think it unnecessary to comment further upon the case.
The judgment of the district court will be reversed, and the case remanded with directions to enter judgment upon the findings of fact, in favor of the plaintiff in error for the sum of $1,073, with interest.
Valentine, J., concurring.
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Per Curiam:
We do not think the petitioners are entitled to their discharge, because, from the return of the sheriff of Davis county, it appears that they are in his custody by virtue of process issued on a final judgment of a court of competent jurisdiction. (Ex parte Nye, 8 Kas. 99.)
If the first commitment is in any way defective, in failing to refer to an offense over which the justice had jurisdiction, the second commitment is clearly sufficient. While it does not state that the offense was committed in Dickinson county, it refers very fully to the offense of which the petitioners were convicted, and as it nowhere shows that the justice did not have jurisdiction, but affirmatively does show that the offense is one over which, if committed in Dickinson county, the justice had jurisdiction, the reference is, in our opinion, sufficient in a process like a commitment. The jurisdiction of a, justice of the peace is inferior and limited, and while it must affirmatively appear upon the whole record from the recitals therein that the justice has jurisdiction to hear and determine the case at issue, as jurisdiction will not be presumed, yet this rule does not apply to each process, or order, or entry, issued or made by him. In brief, it is not necessary in issuing each process to recite all the facts conferring jurisdiction. It is not the practice, nor do we deem it necessary, to make an exemplification of all the proceedings in a conviction for a misdemeanor before a justice, to constitute a valid mittimus* (Comp. Laws 1879, p. 775, §19.) | [
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The opinion of the court was delivered by
Valentine, J.:
This was an application by petition for a new trial. The court below granted the new trial and the adverse parties now. (as plaintiffs in error) bring the case to this court, asking for a reversal of the ruling, order and judgment of the court below granting a new trial. The trial in the original case was had and the proper judgment rendered therein at the December term of the district court, (December 12, 1872,) and the petition for the new trial was filed March 29, 1877.' The only ground set forth for the new trial was, that the petitioners did not have a fair and impartial trial, at the original trial, on account of bias and prejudice on the part of the jury that tried the cause. The petitioners (who are now the defendants in error) have not pointed out specifically the clause or clauses of the statutes upon which they found their claim for a new trial, but they seem however to make the claim upon general principles and ■“for causes enumerated in § 306 of the code,” and they also refer to §568 of the code. (Comp. Laws of 1879, pp.641, 679.) The petitioners also set forth in their petition the following excuses for their very long delay (over four years) in filing their said petition asking for a new trial.
1. They had no knowledge-of said prejudice on the part of the jury until February 7,1877, when for the first time they were informed of such prejudice.
2. Some time after the original trial was had, and after the original judgment was rendered, they took the case to the supreme court, where said judgment was finally affirmed, (Medberry v. Soper, 17 Kas. 369 to 378,) and the cause was remanded to the district court, where, as they claim, the final judgment was finally rendered against them in the case in February, 1877.
Now, we do not think that the petitioners are entitled to a new trial upon general principles, nor under any statute, unless it be under some one or more of the provisions of subdivisions 1, 2 and 3 of § 306 of the Civil Code. If they are entitled to a new trial at all, it must be because of some “irregularity in the proceedings of the . . . jury,” or “misconduct'of the jury,” or “'accident or surprise which ordinary prudence could not have guarded against.” They have sét forth nothing else in their petition for which a new trial could be granted. But why did not the petitioners know of said prejudice at or before the original trial, or within some reasonable time afterward? It would not seem that they exercised much, if any diligence to ascertain such alleged prejudice, or to know whether said jurors were fair and impartial, or not. It would indeed seem from the affidavits of the petitioners that some sort of an examination of the jurors was had at the time the jury was impaneled, but what kind of an examination was had is not shown. What questions were asked, or what answers were given, we do not know. F. M. Shaw and C. A. Leighton were the principal petitioners, and are now the principal defendants in error. There is no claim that any of the parties other than Shaw and Leighton were, or are entitled to a new trial. Shaw and Leighton were bank ers; and it is alleged in the petition that said prejudice arose principally in connection with their business affairs as bankers. And the petition further alleges that “ Shaw & Leighton were constantly occupied in attending to said necessary and legitimate affairs, taking no thought or care as to whether prejudice existed in the minds of any as to their occupation or mode of business that might operate to their injury or prejudice in this action, or in any other respect.” This allegation is set forth as an excuse for not knowing of said prejudice prior to February 7,1877, although the trial was had in December, 1872.
We do not think tha,t there were facts sufficient alleged in said petition, or proved, to show prejudice on the part of the jury as a body. There was evidence tending to prove that one, and possibly two or three of the jurors, were prejudiced. As to what was done by the jury after it was impanneled, except to hear and determine the case and to determine the case against the petitioners, we are left almost wholly in the dark. Certainly no very great misconduct was shown. One juror took notes of the evidence, which he had in the jury room. Another juror was shown to have been prejudiced -against the petitioners, and he, or some other juror, said in the jury room, “Damn Shaw.” And this is about all we know upon the subject. For the purposes of this, case, however, we shall consider that the jurors were prejudiced against the petitioners. Whether the petitioners’ counsel knew of this prejudice, or not, at the time the jury was impanneled, we are not informed. We are only informed that the petitioners themselves did not know it. With regard to prejudice of jurors, and the duty of parties and counsel to ascertain the same, see authorities cited by counsel for plaintiffs in error.
For the purposes of this case we shall consider that the court below might have granted a new trial to the petitioners upon the grounds set forth in their petition, if the application for the new trial had been made in proper time. ' But was the application made within proper time? The law requires that the application should be made within one year after the final judgment is rendered. Section 310 of the civil code provides that “ where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition filed as in other cases, not later than the second term after discovery; . . . but no such petition shall be filed more than one year after the final judgment.” (Comp. Laws of 1879, p. 642.) Now in this case the petition was not filed for more than four years after the final judgment was rendered. The judgment was rendered in the district court on Dec. 12,1872, and it was allowed to stand for over one year, for more than two years and for a large portion of the third year, before any attempt was made to take the case to the supreme court; when, on July 14, 1875, the case was finally taken to the supreme court. Whether a bond was then given and the judgment of the district court stayed or not, is not shown. On January 2d, 1877, the case was decided by the supreme court, and the judgment of the district court was affirmed. The judgment of the district court was never disturbed in any manner or particular, but it was allowed to remain final, and just such a final judgment as is contemplated by said § 310 of the civil code. The mere taking of a case to the supreme court does not in any case destroy the judgment previously rendered therein; nor does it even suspend the operation of such judgment, unless a bond is also given for such purpose; and if the judgment is affirmed, no new judgment is rendered, but the old judgment originally rendered remains intact, in full force and effect, and final. The principal question before the supreme court when a case is brought before it on petition in error is, whether the judgment originally rendered in the case shall remain final, or whether it shall be reversed, vacated or modified; and where the supreme court affirms the judgment, it determines that the judgment shall remain final. The judgment in this case remained a final judgment for more than one year, and even for more than two years, before the case was taken to the supreme court; and it remained a final judgment for more than one year while the case was pending in the supreme court. It remained a final judgment for more than four years, altogether, before the said petition (this application) for a new trial was filed. We do not think that the petitioners filed their petition for a new trial in time, and therefore the judgment and order of the district court granting a new trial on such petition must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in replevin, brought, by the plaintiff in error against the defendant in error, before a justice of the peace of Brown county, for the recovery of a wagon, a set of double harness, and -damages for their detention. On appeal, the jury found the right of property and right of possession of the wagon to be in the defendant, and the right of property and possession of the harness in the plaintiff. Judgment was rendered accordingly, and the plaintiff brings the case here.
■ The objections taken to the record cannot prevail under the decisiqn in Lauer v. Livings, ante, p. 273, and therefore we must pasé upon the errors alleged as having occurred upon the trial. The controversy is over the wagon only, the harness having been returned to the plaintiff. Plaintiff claims that the wagon was exempt from seizure and sale upon legal process. The evidence discloses these facts: On May 7,1879, the plaintiff was a resident of Brown county, the head of a family, and the owner of the wagon in dispute, and also of a buggy. The defendant, as constable, on that day levied upon the wagon under an order of attachment in an action pending before W. J. Eichardson, a justice of the peace of Brown county, wherein C. D. Lawrence was the plaintiff, and the plaintiff in error was the defendant. At the time of this attachment, plaintiff told the officer that the wagon belonged to his wife, and not to levy on it. On May 14, 1879, the plaintiff appeared especially before the justice, had the service of summons set aside, and obtained an order on May 16, upon the constable, to deliver up the property attached. The constable released the wagon. A new summons was then issued by the justice, in the action of Lawrence v. Eaper, and the constable levied another attachment on the wagon immediately after the release. Between May 7 and May 17, plaintiff sold the buggy, called by some witnesses a butcher wagon, to one C. T. Corning. On May 17, 1879, the plaintiff in error filed his motion and affidavits to dissolve the second attachment. Upon a hearing had May 20, 1879, before the justice, the wagon was adjudged to be exempt, as not being subject to attachment. The defendant was ordered to release the property. The order was complied with, and the defendant, as constable, levied upon the wagon under an execution dated May 21, 1879, issued by the justice, upon a judgment rendered in the action of Lawrence v. Eaper. This levy was made immediately after the release of the second attachment. When the second attachment was made, plaintiff claimed the wagon as exempt. On the 21st day of May, 1879, the day of the levy under the execution, plaintiff again claimed the wagon as exempt, aud demanded it of the constable, who refused to give it up, and sold it on June 2,1879, to one Ellis Corey, for $38. Plaintiff was present, forbade the sale, and claimed the property as exempt. After the introduction of all the evidence, the plaintiff asked the court .to instruct the jury as follows:
“4th. The court instructs the jury further, that in this state .the statute specifically exempts to every person, being the head of a family and residing, within this state, one wagon and the necessary harness for the use of one team, and that it is the duty of the officer when levying on wagons or harnesses by virtue of any process, to give the execution debtor on whose goods he levies such process an opportunity to select out and claim his exemptions; .and if the officer fails so-to give the defendant such reasonable opportunity, he is not deemed to have waived his right to such exemption, if he shall claim the same in a reasonable time.”
This instruction the court gave, but modified it by adding at the bottom of it these words: “And way after such levy, and so as to not unjustly prejudice the judgment creditor.” Given — plaintiff excepting to modification; to which modification of the instruction by the court plaintiff then and there duly excepted, for the reason that the same is contrary to the law in this case.
On the part of the defendant, the court gave the following instructions, against the objections of plaintiff:
“1. The court instructs the jury that, while the exemption laws are made for the protection of the debtor and his family, that to claim such exemption where selections are to be made, it is incumbent upon the debtor to use ordinary diligence in claiming such exemptions; and where from the lack of such ordinary diligence on the part of the debtor,.it would result in loss and be unjust to the creditor, then the debtor would be barred from claiming the benefit of such exemption laws. And if you find the facts in this case in accordance with the above, you will bring in a verdict for the defendant.
“2. The court instructs the jury that the exemption laws are made for the benefit of the debtor and his family, but the debtor is required to. use reasonable and ordinary diligence in-asserting his claim to such exemption and making selections whére selections are to be made, and to do so in such time and way as will not unjustly prejudice the judgment creditor.
“ 3. The court instructs the jury that, if they believe from the evidence that at the time of the levy of the first order of attachment in the case wherein C. D. Lawrence was plaintiff and said John M. Raper was defendant (being plaintiff, herein), that the said Raper was the owner of and had two-wagons, and at the time defendant herein as constable levied the said order of attachment, the two wagons were in the possession of the plaintiff herein, and that the said Eaper at the time of the levy of said attachment was present, and made no election or claim of exemption, and afterward the said Eaper disposed of the wagon not levied upon, then the jury will take such facts into consideration in determining whether the plaintiff used reasonable and ordinary diligence in asserting the claim to said wagon claimed herein as exempt prop-, erty, and in determining whether he claimed the same in such time and way as not to unjustly prejudice the judgment creditor in the execution.
“4. The court instructs the jury that, if a party places property in his wife’s name for the purpose of defrauding his creditors, he cannot afterward and while it is so remaining, be heard to claim the same property as exempt as his own.”
Instruction No. 4, asked by plaintiff, served no useful purpose, as the evidence of Lawrence and the affidavit of Ealloou, (read as a deposition,) proved the sale of the butcher wagon before the seizure of the wagon in dispute under the execution, and therefore established the fact that plaintiff had only one wagon at the date of such seizure. Hence, there was no selection or choice to be made. The law made the property exempt, and the officer acted at his peril. (Seip v. Tilghman, 23 Kas. 289.) The modification, however, rendered the instruction injurious. Had the court rejected it in toto, no error would have been committed, but by changing it, a direction was given very different from that requested. If the instruction was asked upon the theory that no sale of the butcher wagon had been shown, it was unnecessary, as all the evidence clearly established the exercise by the plaintiff of the highest diligence in claiming the exemption of his property after the issuance of the execution. In view of the undisputed facts in the case, all the instructions for defendant were erroneous.
The trial court seems to have considered the conduct of the plaintiff at the instance of the first attachment as very important in controlling all subsequent proceedings, and because he failed then to claim the wagon as exempt, that to some extent, the rights of a judgment creditor intervened. All of the instructions of defendant, except No. 4, are concerning the necessity of using diligence in demanding the exempt property. The court must have everlooked the facts that all the attachment proceedings ended on May 21, 1879, favorably to the plaintiff. The property was released under the order of the justice on both attachments. The first release was on May 16, 1879; the second, on May 21, 1879. The only claim the defendant had after the dissolution of the attachments, was the seizure of the property under the execution of the date of May 21, 1879. As plaintiff claimed the wagon as exempt, both before and on the day of such seizure and continued to make the claim up to the day of sale and on the day of sale, the various directions about the attachments and the use of ordinary diligence were irrelevant and clearly misleading. The jury must have believed that the plaintiff was barred from claiming the wagon as exempt, if he failed to give this notification at the first attachment. In this the plaintiff was prejudiced. The issue was as to the rights of the plaintiff on the date of the seizure under the execution; that is, whether the wagon was then exempt. The court had no right to carry the question of the ¡selection of the wagon back to the attachments. If plaintiff had only one wagon at the levy of the execution, no selection was required; if he had two, sufficient diligence was proven.
Again, the fourth instruction of the defendant ought to. have been refused, because of the want of evidence to. support it. It was based, we suppose, on the declaration of plaintiff made to defendant, on May 7,1879, that the wagon belonged to his wife. This statement did not cause the defendant to release the property, or to levy on other property. In brief, the defendant was not led by the words or conduct of plaintiff to act to the prejudice of either the judgment creditor or himself. Whether the declaration was then true or false, we see no reason why the plaintiff, on a claim of exemption for the wagon seized under an execution several days thereafter, should be estopped from establishing the actual facts, and from recovering the wagon, if at the date of such seizure it was exempt. We cannot find a scintilla of evidence in the record, of the wagon being placed in the wife’s name to defraud creditors, unless the statement of plaintiff already quoted tends in that direction. In the absence of other evidence, the jurors ought not to have been confused with an issue of that character. This instruction evidently impressed the jurors, as after retirement they requested the court to explain, or rather to construe it a second time to them.
Some other questions are presented, but we think it unnecessary to make further comments.
The judgment of the district court will be reversed, and the case remanded for a new trial. '
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case has twice been in this court. (Munger v. Comm’rs of Harvey Co., 22 Kas. 318; Comm’rs of Harvey Co. v. Munger, ante, p. 205.) From the record of the case, as it is no.w presented to this court, it appears that on December 22, 1879, the court below ordered that the plaintiff below, (the county board) should amend its amended petition, in certain specified particulars. The plaintiff then “ asked for, and was granted by the court, leave to amend its petition in accordance with such orders of the court, or prepare a case-made for the supreme court, on or before the 20th day of January, 1880.” A case for the supreme court was afterward duly made. (Upon this case-made the decision, ante, p. 205, was made.) On January 24,1880, the defendants filed a motion as follows: “Now come the defendants appearing in said action, and move the court for a judgment for the costs in said action, for the reason that said plaintiff has neglected' and failed to amend its amended petition therein filed as required by the order of said court within given for it to so do, but said plaintiff has chosen to rely upon its exceptions taken to said order of said court.” Upon the hearing of this motion, the court below made the following entry, to wit:
“And now on this 24th day of January, 1880, at an adjourned term of this court, came the defendants answering herein, and as per their motion fíléd herein on the 24th day of January, 1880, of which the plaintiff had due notice, moved the court for judgment against the plaintiff for the costs accrued in this action. To the hearing of said motion and the rendering of such judgment the plaintiff, by John Reid, county attorney, and A. L. Greene, its attorney, objected, and the court having heard the arguments of counsel upon the objections of the plaintiff, overruled the objections of the plaintiff; to which ruling the plaintiff duly excepted. Whereupon .the court sustained the motion of said defendants, and ordered and adjudged that the defendants, George D. Munger, Enos Commons, A. D. Ross and Samuel Saylor, do' have, and recover of said plaintiff their costs herein, taxed at $884.96; to the sustaining of which said motion, and the rendition of such judgment, the plaintiff then and there objected and duly excepted, and asked for and was granted by the court sixty days to make and serve a case-made for the supreme court.”
This last-mentioned case-made was duly made, served, settled and signed, and upon the same the present case is now pending before us; and the only question presented by it for our consideration is, whether the court below erred in rendering the judgment for $884.96, costs.
We think the court below erred. It will be noticed that the costs were not imposed upon the plaintiff as a condition for the procurement of some benefit or privilege; nor was the imposition of costs the necessary or natural result, following some other order or judgment or proceeding. Nothing was done by the court at the time except to impose such costs. The plaintiff was not granted the privilege of amending its petition upon the payment of costs, nor was it allowed to perform any other act upon the payment of costs. Besides, it would have been an abuse of discretion to impose $884.96 as a condition for the granting of any ordinary privilege in a court of justice; nor was the plaintiff’s action dismissed; nor was it finally disposed of in any other manner. So far as the record shows, the action is still pending in the district court. The only action of the court was to adjudge the costs against the plaintiff. The action upon its merits still remains pending in the district court. No judgment upon the merits, or as to the action itself, has yet been rendered. It seems from the record that said $884.96 was imposed upon the plaintiff merely as a penalty for failing to amend the petition as ordered by the court. Now $884.96 is a pretty heavy penalty for such a failure, and especially so, as the order requiring the plaintiff to amend was partly erroneous. {Ante, p. 210.) It may have been the intention of the court below to dismiss the plaintiff’s action because of said failure, and to'let the costs be imposed as the law would direct; but the record of the case does not so show. The motion of the defendants was merely for a judgment for costs, and the order of the court upon the motion awarded nothing else. The action was not dismissed, nor were the defendants discharged, or allowed to “go hence without day.” Nothing was done to relieve the defendants (or the plaintiff) from further appearing in the action. And as the order of the district court, requiring the plaintiff to amend its petition, was partly reversed by the supreme court, it is probably well that the plaintiffs action was not dismissed. If the action had been dismissed, it would have been necessary, after the partial reversal above mentioned, to have set the dismissal aside, so as to give the plaintiff the benefit of the decision of the supreme court. The plaintiff may now, if it has not already done so, amend its petition in accordance with the decision of this court, and then the action may be tried upon its merits.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to quiet title to real estate. The defendant in his answer not only interposed a general denial to the plaintiff’s petition, but also alleged that he himself was the' owner of the property and in the possession thereof, and that thé plaintiff’s claim thereto was worthless and void. The defendant alleged in his answer that the only claim which the plaintiff had to the property was founded upon a tax deed, which tax deed he alleged was worthless and void on account of numerous irregularities in the tax proceedings, which irregularities he set out in voluminous detail; and then he prayed that said tax deed might be set aside and held for naught; that he be decreed to be the real owner and possessor of the premises; that his title be quieted; that the plaintiff and others claiming under him be perpetually enjoined from ever setting up any claim to the premises, and for other relief. The court below found in favor of the defendant and against the plaintiff, and rendered judgment accordingly, except that the court held that the taxes paid by the plaintiff, with interest thereon, were a lien on the property, and ordered that the defendant pay the same. The court, however, allowed interest only at the rate of seven per cent, per annum. The plaintiff now brings the case to this court, claiming that the court below erred in almost every particular.
We think that the plaintiff’s tax deed is irregular and voidable, and' that the court below did not err in setting it aside. Among the numerous alleged irregularities is the following: The sale upon which this tax deed is founded was of only one-half of the tract of land which had previously been assessed and taxed in bulk. That is, the tax deed is for forty acres of land. This forty acres of land is the west half of an eighty-acre tract of land; this eighty-acre tract of land was assessed and taxed in bulk ; the taxes against it amounted to $25.20; these taxes were never paid; the county treasurer then sold the west half of said eighty-acre tract of land for $9.53 of said $25.20. The east half of said eighty-acre tract of land has never been sold for the taxes,' and according to the records the taxes on said east half of said eighty-acre tract of land have never yet been paid. But my brethren say that that'makes no difference; that the sale of a half of a piece of land taxed in bulk would be voidable whether the taxes supposed to be due on the other half had been paid or not; that it cannot be known to a certainty just how much of the taxes is due on one half or the other half, when the whole is taxed in bulk. The tax deed in controversy was executed for the said west half of said eighty-acre tract of land, in pursuance of said tax sale. And hence said tax deed is voidable, and may be set aside at the instance of the original owner of the land. In connection with this question, see Corbin v. Inslee, ante, p. 154; Wall v. Wall, 124 Mass. 65; Forster v. Forster, (Supreme Court, Massachusetts, November term, 1879;) 11 Cent. L. J. 408.
The only other question which we need to consider is with regard to the taxes and interest which the defendant should repay to the plaintiff. That question has been decided in the’ case of Corbin v. Young, ante, pp. 198, 202. The plaintiff is entitled to the taxes which he has paid, and all interest and costs as allowed by law up to the date of the tax deed, and interest at twenty per cent, per annum on that amount thereafter up to the date of the rendition of the judgment, and interest at seven per • cent, per annum on the amount of the judgment until paid.
The judgment of the court below will be modified in accordance with this opinion. The costs • of this court will be equally divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
We have once before had this case under consideration. (Center v. McQuesten, 18 Kas. 476.) At that time the judgment of the court below was reversed, and the cause remanded for further proceedings. A new trial was had in the court below, before the court without a jury, and new facts were elicited and found by the court, and judgment was again rendered in favor of the plaintiff below, B. C. McQuesten, and a portion of the defendants below, to wit, Morris Center, Henry Center and Joshua Hodges again bring the case to this court for review. The findings of the court below are as follows:
“ 1. That on the 15th day of January, 1874, H. E. Cow-gill executed and delivered to the People’s National Bank, of Ottawa, the note mentioned in plaintiff’s petition; that said note was duly indorsed by H. S. Deford, and demand and notice waived.
“ 2. That the maker of said note paid thereon, February 9th, 1874, the sum of $100, and that the balance of said note remains unpaid.
“3. That before said note became due, said Cowgill proposed to the plaintiff (who was the cashier of said national bank and custodian of said note) for- an extension of time for payment thereof, and offered to secure the same by a chattel mortgage upon cattle; that said plaintiff declined to take the chattel mortgage himself, but suggested that the mortgage might be given to an additional indorser to be furnished by said Cowgill.
“4. That said Cowgill, on the same day of the payment of said $100, executed, and on the 12th day of February thereafter caused to be filed in the office of the register of deeds in Douglas county, where said Cowgill resides and where said cattle then were, a chattel mortgage to plaintiff upon thirty head of cattle, for the purpose of securing said note, and afterward, and on February 24th, informed said plaintiff by letter that he had secured said note by such chattel mortgage.
“ 5. That afterward, on the 9th day of March, 1874, Cowgill sold and delivered to defendant Williams 53 head of cattle, including the 30 head so mortgaged as aforesaid, and upon the whole of which cattle so sold there were other mortgages to various parties.
“6. That at the time of such sale and delivery, said Williams paid to said Cowgill the balance of the purchase-money, after deducting the amount due upon the several mortgages thereon, including the mortgage to the plaintiff, and also paid to the said mortgagees the several amounts due to them respectively, excepting the amount then due to plaintiff upon the note aforesaid, being the sum of $506, which said sum said Williams thereupon agreed with said Cowgill to pay to said plaintiff in full for the remainder of the consideration for said cattle.
“7. That at the sale and delivery of said cattle, the mortgage from said Cowgill to the plaintiff was by said Williams and Cowgill spoken of and recognized as a valid and subsisting lien upon 30 head of said cattle so purchased and delivered, and that the defendants Hodges, Morris Center and Henry Center were present at said sale and delivery, and Morris Center was told by said Cowgill of the mortgage to plaintiff.
“ 8. That afterward, defendants Joshua Hodges, Henry Center and Morris Center severally recovered judgments against Cowgill, the maker of the note in the petition mentioned, before a justice of the peace in Franklin county.
“9. That in said actions attachments were duly issued, and on March 14th, 1874, an order was in each case served upon defendant Williams to appear and answer as garnishee, but that prior to the service of 'said order, and on the 14th day of March, 1874, said Williams had appeared at the People’s National Bank where said note then was held, and called for the said note and mortgage to pay the same.
“10. That the vice president of said bank presented said note to Williams for payment, and said Williams was then ready and willing to pay the same, and said vice president was ready and willing to receive payment thereon, but said Williams required also the chattel mortgage before making payment, and left the bank for the purpose of procuring the same of H. S. Deford, the indorser of said note, and whilst on his way to said Deford, was served with said garnishee process as aforesaid.
“11. That said William Williams duly appeared and answered as garnishee in each of the cases of Morris Center v. H. E. Cowgill, Henry Center v. H. E. Cowgill, and Joshua Hodges v. H. E. Cowgill, before said justice; that judgments thereupon were duly rendered by said justice in said cases respectively, and against H. E. Cowgill, as follows: Morris Center, $152.85, accruing costs, $3.65; Henry Center, $127.80, accruing costs, $2.00; Joshua Plodges, $275.40; and on the jL7th day of April, 1874, said justice made orders in each of said cases that the garnishee, Williams, should pay into said court upon said judgments and as such garnishee upon his said answer, the following sums, viz.: In case of Morris Center, $156.41; in case of Henry Center, $129.80; in case of Joshua Hodges, $224.90. That upon said last-named order the defendant, Williams, out of money in his hands belonging Cowgill (other than the said fund of $506,) paid the sum of $33, leaving the sum of $191.90 unpaid on said order, and in favor of Joshua Hodges, April 22, 1874.
“12. The court further finds, as matter of fact, that the said defendant, William Williams, on the 3d day of August, 1874, deposited with the clerk of this court, subject to the order of the court, the sum of $506, being the balance of said consideration for said 53 head of cattle remaining in the hands.of said Williams on the 10th day of March, 1874.
“13. That from the said order of the justice of the peace requiring said William Williams to pay into said justice’s court the said several sums of money on said judgments against said H. E. Cowgill, said William Williams duly appealed to this court, wherein said appeals were duly docketed, and were by the said plaintiffs therein, the said Henry Cen^ ter, Morris Center and. Joshua Hodges, dismissed at their •costs respectively, on the 7th day of August, 1874.”
Of the findings above, No. 11 was asked by.the defendants, Morris Center, Henry Center and Joshua Hodges, and No. 12 was asked by the defendant William Williams, and the •finding No. 13 was asked by the plaintiff.
(Oondusions of Law:) “1. That by the arrangements of Williams and Cowgill for the sale and delivery of said cattle, and the agreement of said Williams to pay said note to McQuesten, said Williams became the principal debtor to McQuesten, .and Cowgill became his surety; and that thereupon a cause of action arose, whereby the plaintiff might maintain an action against defendant Williams for said sum of $506.
“2. That the plaintiff, by assenting through the cashier of .said bank to the arrangement made for Williams to pay the money on said note, adopted said contract as his own; and it thereby became as binding and effectual as though he had •originally been a party to it.
“3. That the plaintiff is entitled to recover in this action the said sum of $506 and interest since March —, 1874, against defendant Williams, and that defendants Joshua Hodges, Morris Center and Henry Center have not, nor has any one of them any interest in or right to said money or any part thereof.”
The said note was for $606, executed by H. E. Cowgill, payable to H. S. Deford, dated January 15, 1874, due forty •days after date, indorsed in blank (with the exception of a waiver of demand and notice) by H. S. Deford, and held by the plaintiff B. C. McQuesten, as cashier of the People’s National Bank, of Ottawa. Deford was merely an accommodation indorser for Cowgill. The sum of $506 was due on this note when the said chattel mortgage was executed and when said garnishment proceedings were commenced. We .should think that all the parties had notice, actual as well as constructive, of the existence of said chattel mortgage before said garnishment proceedings were commenced. Joshua Hodges and Morris Center certainly had such notice, as was shown by their own testimony; and Morris Center, who was the father of Henry Center, seems to have acted for and as the agent of Henry Center. Cowgill executed the mortgage, and was the mortgagor; Williams agreed to pay it; and McQuesten, who was the mortgagee, testifies that after receiving Cowgill’s letter notifying him of it, he was content and rested securely. The mortgage did not describe the indebtedness of Cowgill to McQuesten or the said note very accurately. It described the indebtedness as being $500, payable in four months, according to the tenor of a note then delivered and of even date with the mortgage, which was February 9,1874. The mortgage was executed to get an extension of time for the payment of this note. This was the only note which McQuesten held against Cowgill.
We think the judgment of the court below must be affirmed. It is possible that no single fact or set of facts less than the whole Oof them would authorize an affirmance. But taking all the facts together, we think the judgment is right, and should be affirmed. Taking this view of the case, it would be useless to discuss any of the facts unless we discuss the whole of them, and to discuss the whole of them would require too lengthy an opinion. The mortgage was irregular, and possibly, if considered alone, might be held to be void, yet, considering it along with all the other facts of the case, we think we could hardly declare it void; and Cowgill, Williams and McQuesten believed it to be valid. Cowgill and Williams believed it to be a valid and subsisting lien on thirty head of the cattle which Williams bought of Cowgill; and, to remove that lien, it was agreed that Williams should retain $506 of the purchase-money and pay it to McQuesten, the supposed holder of the lien. The Centers and Hodges knew of this arrangement. For the purpose of paying the note and mortgage, and of extinguishing said lien, Williams wentto the People’s National Bank, of Ottawa, to see McQues ten, and he took said $506 with him. McQuesten was out, but Shiras, the vice president and assistant cashier of the bank, the officer who acted for and in the place of McQuesten when McQuesten was out, and who, for the purposes of this case, must be considered as the agent of McQuesten, was in, and he presented the note to Williams, and agreed to take the money from Williams. We think that then, if not before, McQuesten became entitled to the money, and that then, if not before, Williams became the principal debtor to McQuesten, and that Cowgill was then nothing more than Williams’s surety. After this, and within a few minutes thereafter, and while Williams was hunting for the mortgage, he was served with the said garnishee process. We do not think that the fund in his hands was then subject to garnishment, and we form this opinion from all the facts of the case, and not from any isolated facts. In the case of Rogers v. Gosnell, 58 Mo. 589, it was held’that, “It is now the prevailing doctrine that an action lies on the promise made by a defendant upon a valid consideration to a third person for the benefit of a plaintiff, although the plaintiff was not privy to the consideration.” (58 Mo. 590, and cases there cited.) “It is a presumption of law that when a promise is made for the benefit of a° third person, he accepts it, and to overthrow this presumption a dissent must be shown.” (58 Mo. 591.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant was convicted in the district court of Leavenworth county of the crime of embezzlement, and from such, conviction he has appealed to this court.
The first question arises upon the overruling of the special plea filed by the defendant. The complaint filed in the police court of Leavenworth city, and the warrant thereon issued, charge that the defendant, E. M. Spaulding, as city clerk of the city of Leavenworth, embezzled $5,200 of moneys belonging to the city of Leavenworth, on the 14th day of August, A. D. 1879.
The information filed by the county attorney in the district court of Leavenworth county, contains seven counts and charges, as follows:
First, the defendant, “as officer,” to wit, city clerk of Leavenworth city, with embezzlement of $5,200 of the money of the city, etc.; second, with embezzlement as officer, agent, clerk, servant and employé; third, with embezzlement as agent, clerk, and servant;' fourth, with embezzlement as agent, servant and bailee; fifth, with embezzlement as agent of the city, etc.; sixth, with grand larceny of $5,200 of the money of Leavenworth city; seventh, with embezzlement as bailee of the city.
The objection is, that the defendant had had no preliminary examination as to any charge except that contained in the first count, and that therefore the prosecution should have been limited to that count. The matter in the sixth count may be put out of consideration, as before the commencement of the trial, that was abandoned under the ruling of the court, and the defendant was tried simply upon the counts charging embezzlement. In reference to these counts, it will be noticed that they charge the embezzlement of the same money, at the same time, and as the property of the same party. The only difference between them is in the relation which the defendant is charged to have sustained to the party whose money was embezzled. In one he is called an officer, its clerk; in another, an agent; in another, a bailee, and so on. It is the same act, the same wrong which is complained of in each count. It-is like an information for murder, which, in different counts, charges the killing to have been done with different instruments, or in a different manner. This.is done as a matter of precaution, to meet the possible differences in the testimony.- (1 Wharton’s Grim. Law, 6 ed., §§ 424, 425.) In the first of these sections, the author says: “ Every cautious pleader will insert as many counts as will be necessary to provide for every possible contingency in the evidence, and this the law permits. Thus, he may vary the ownership of articles stolen in larceny, or houses burned in arson, or the fatal instrument in homicide.”
Now in these cases, it is not necessary that a separate preliminary examination be had for each count, or that the complaint or warrant be as full and include all the various forms charged in the different counts. The statute provides that “No information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace.” (Criminal Code, § 69.) Now, if six separate offenses are charged in these six counts, the objection was well taken; but if only one offense, then, though that offense may be charged in different forms in different counts, it was not well taken. Turning to the provisions concerning preliminary examinations, we find that a complaint may be filed charging one offense, and the defendant, upon examination, may be bound over to answer for another, and that without the filing of any new complaint. (Redmond v. The State, 12 Kas. 172.) The complaint may be filed with one officer and the warrant returned to, and the examination had before, another. (Criminal Code, §§ 36, 37, 40, 44, 48.) In such case, the warrant seems to be the basis of the proceeding before the-examining magistrate, and the fullness of statement required in a criminal pleading is seldom found, and not to be expected in a warrant. It will be remembered that these preliminary proceedings are generally had before justices of the peace, officers not learned in the law, and if the same fullness and precision, the same precautions against all the contingencies of the testimony were required there as in the information or indictment, justice would be often delayed and defeated. All that cau be required is; that there shall be a single statement, containing the substantial facts of the offense charged, and then the prosecutor, in preparing the information, may use many counts, varying in them the formal and non-essential matters of the crime. He may not add a new offense. To larceny he may not add robbery; nor, to murder, arson. Neither may he add' to the larceny of one piece of property, the larceny of another. He may not substitute one offense for another; but he may, by several counts, guard against the contingencies of the testimony. (The State v. Smith, 13 Kas. 274.) We think the'ruling of the district court was correct.
A second matter is the alleged error in overruling the challenges of certain jurors. One juror testified that he had an opinion, founded upon rumor, that public money was missing; that he had no opinion as to the guilt or innocence of defendant; and that he believed defendant was city clerk. Another, that he had an opinion that public money was lost or stolen; that he had, on reading of the matter, made no inquiry whether it was true or false; and that his opinion would not influence him in any way in the trial of the case; and that he could give due consideration to the testimony. A third gave substantially the same answers to the questions put to him. Within the rule laid down in the Medlicott case, 9 Kas. 257, we think the challenges were properly overruled. It does not appear that either of these parties had such settled opinions or convictions as would prevent them from being impartial jurors. A matter of this kind always gets into the papers, and is the subject of talk in the community, and it would be almost impossible to find an intelligent man in the county who had not read or heard of it. The use of the word “opinion” is not always conclusive. If unexplained, and upon an essential and disputed fact, it may be.' (The State v. Brown, 15 Kas. 400.) But the real condition of the juror’s mind is to be determined from the whole of his testimony. He may have heard or read, but if he appears free to give full consideration to all the testimony, and to be influenced by it alone, he is competent. So far as the fact that defendant was city clerk is concerned, we do not think that actual knowledge thereof would disqualify. There are facts in many cases which must be proved, and yet facts which all men know. The fact that a certain party is an incumbent of a prominent public office, is one which would be difficult, if not impossible to find a citizen ignorant of. In a prosecution for malfeasance in that office, must the knowledge of such incumbency disqualify a juror? If a public building is destroyed by fire, every one knows of it. Could no man sit as a juror upon the trial of one charged with setting it on fire who knew that the building had been burned? We think the jurors were competent and the rulings of the district court correct.
We pass now to the vital question in the case, one very forcibly presented and fully discussed by counsel on both sides, and one of great difficulty. The facts’ upon which this question arises are these: Defendant was the city clerk; the money which he is charged with embezzling came from two sources — licenses, and from what is known as the “dog tax.” Under the city ordinances, applicants for licenses were required to pay the license fee to the city treasurer, who issued duplicate receipts therefor, upon the production of which the license was to issue. The city clerk prepared and attested the license, which was signed by the mayor, but he had nothing to do with the receipt of the money. The provisions concerning the dog tax were different, for as to that the ordinance in terms authorized the clerk to receive the tax, and thereafter pay it over to the city treasurer. Unquestionably this money, while in his hands, was city money, and an embezzlement of it was an embezzlement of city funds. But this was only a small portion of the moneys charged to have been embezzled. By far the larger portion was received from licenses, and this license-money was received by him under a custom which had existed for years, and to the knowledge of the mayor, council, and other officers of the city. The applicant for a license would go to the city clerk, pay him the money, and receive the license, which he would take to the mayor for his signature. This money, thus received, was thereafter paid over by the clerk to the treasurer. In other words, to avoid the circuity of going to the treasurer, obtaining his receipt, and with that obtaining from the clerk the license, the business was transacted directly with the clerk. This, starting as a matter of convenience, had been for years an established custom. The license-money all passed through this channel into the hands of the treasurer. It did not appear that the city had ever disavowed defendant’s authority to receive these moneys, or had ever made any effort to re-collect them from the licensees.
Upon these facts, defendant asked the court to instruct the jury that no conviction could be had for embezzling this license-money, inasmuch as the charge was of embezzling money of the city, and this money never having passed into the hands of the treasurer, was still the money of the various licensees, or at any rate was not the money of the city. This the court refused to give, and on the other hand charged in substance that the city was an incorporation and might employ agents without providing therefor by ordinance, and that if one with the assent of the mayor and council, acting in the capacity of agent, clerk, servant or bailee to the city should receive moneys belonging to the city and embezzle them, he might be convicted, although the ordinances provided that all dues of the city should be payable to the city treasurer. Upon these facts it is strenuously insisted by defendant that, within the ruling in the case of The Hartford Ins. Co. v. The State, 9 Kas. 210, this money was still the money of the licensees. In that case the law required that the license fee should be paid into the state treasury before any license should be issued by the auditor. There as here, the insurance companies had been in the habit of transacting their business entirely with the auditor, paying him the money and receiving from him the license, and leaving the auditor to settle with the treasurer. After the receipt by the auditor of the money and the issue by him of the license, but before any money had been paid to the treasurer, the old law was repealed and a new law. enacted. It was held by this court that the new law controlled, that the license was improperly issued, and that the auditor in receiving the money was the agent of the insurance company, and not of the state. In the opinion, Kingman, C. J., says: “The limits of an officer’s authority are found in the law.” And again: “ If the corporation chose to pay this [the license-money] through the auditor, then .for that purpose the auditor was the agent of the corporation, and not of the state; and until the money reached the state treasury, it was under the control of the corporation, and not of the state.” The same doctrine was reaffirmed in the case of The City of Eureka v. Davis, 21 Kas. 578. The ordinances give to a city officer the limits of his authority precisely as the statutes give to the státe officer his limits. The city is not bound by the acts of the one outside of those limits, any more than the state by the like acts of the other. The money paid by the licensees to the clerk was within their control until paid to the treasurer. They could recall and recover it. The city could ignore the payment, and collect it again. That the licensees have not asserted their right, does not disprove its existence. They may yet assert it and recover their money, and the city may yet call upon them for the license fees. As their money, they may prosecute for its embezzlement, and this prosecution would be no bar. He may yet, and rightly, pay it back to them, or they may recover it by suit — -and then upon what will this prosecution rest? The anomaly would be presented of a conviction for embezzling certain moneys as the property of one party, and a judgment asserting that it belongs to another. The question is not one simply of moral turpitude, but of legal right. The defendant is entitled to protection against several prosecutions for the one wrong.
On the other hand, the state rests upon the broad proposition that when a party assumes to act for another, he is concluded by that assumption, no matter who else is bound; that, if A. assumes to act as the agent of B., and receives money belonging to B., he cannot thereafter deny that it is Bfs money, and that, notwithstanding B. is not concluded by his acts, and though in fact he was not the agent of B.; that this doctrine, universally recognized in civil, is equally true in criminal law. A man may not say: “I have the right to receive money,” and receive it, and then, when challenged for its receipt or embezzlement, avoid liability by saying, “I had no right to receive it.” He has voluntarily assumed a position, the responsibilities of which he may not avoid. The defendant- may not say that he holds this money simply for the licensees, because he himself has issued the licenses, which he might rightfully issue only when the city had received the money; that by issuing, he conclusively, so far as he was concerned, affirmed that the money he had received and was holding was city money. The law of estoppel binds him, whether it binds any one else or not, and is equally potent in a criminal as well as a civil action. Concede that there may be a difference between a private and a municipal corporation, as to whether the corporation is bound by the knowledge of its officers of the acts of the assumed agent, (for the by-laws of the former are known only to its officers,) and if they permit one to continue acting as agent, outside the scope of his actual powers, parties dealing with him may be justified in presuming that his apparent are his real powers, and so hold the corporation to his acts. While the ordinances of the latter are of public knowledge, and every one is chargeable with notice of the limit of his powers as defined by the ordinances, yet, so far as the agent is concerned, the rule is the same, and whether he be acting for an individual, a private or a municipal corporation, he binds himself at least, and equally in all three cases. It is indeed further said, that this was, in law and in fact, the city’s money; that the doctrine of ratification applies;. that any principal may ratify the acts of an assumed agent, and that such ratification is equivalent to prior authority; that here the city council, the mayor and other officers had full knowledge of the manner of conducting the license collections; that for years they permitted it to continue in this way, and that permitting it to be so done was equivalent to granting authority to so do it; that the city has never attempted to re-collect this license-money, nor the licensees to recover it from the clerk, and that therefore all parties in interest have assented to this manner of doing business, and that it would be the height of legal absurdity to permit the chief actor, the real wrong-doer, to dispute the authority he has assumed and avoid liability for a crime which his own assumption of authority has alone given him power to commit. Eeference is made to 2 Wharton on Crim.Law, (7th ed.,) §1920, in which the author says that “ while the reason of the thing requires that the money embezzled should have been received by the defendant within the orbit of his employment, yet where he succeeds iu getting money on the basis of such employment from third parties, and when there is a legal duty resting on him to pay over such money to his employers, then the embezzlement of such money is within the statute.”
In Ex parte Hedley, 31 Cal. 108, the court ruled that “If an agent obtains the money of his principal in the capacity of an agent, but still in a manner in which he was not authorized by his agency to receive it, and converts the same to his own use with intent to steal, or embezzle it, it is money received ‘in the course of his employment as agent.’” It is true that case is not parallel with this, for in that it appeared that the master paid the checks of the agent, supposing them to have been drawn in the prosecution of the agency; he actually obtained the principal’s money. In Rex v. Beechy, 1 British C. C. 318, a clerk authorized to receive money at home from out-door collectors, received it abroad from outdoor customers; yet the case was held to be within the statute. See also Rex v. Williams, 6 C. & P. 626.
Bishop, in his work on Criminal Law, (3d ed.,) § 367, says that “In reason, whenever a man claims to be a servant while getting into his possession by force of his claim the property to be embezzled, he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply in the criminal?” See also the case of The State v. Wm. H. Heath, recently decided in the Court of Appeals of St. Louis county, Mo. In that.case the defendant was auditor, and as such had charge of the bonds and mortgages given to secure the money loans of the schools, but the money was payable to and receivable by the treasurer. Still, for several years the money was actually received by him, and the county court allowed him compensation for his services in the matter. He embezzled these funds, and it was held that he might be convicted of embezzling public funds received by him as agent of the county. The actual relation of principal and agent was held sufficient; the existence of a legal relation was unnecessary.
We are of opinion that the argument of the state is the better, and that the ruling of the district court must be sustained. We intend no departure from the views expressed in the case of the Hartford Ins. Co. v. The State, supra. We do not affirm that the city was concluded by the defendant’s acts, nor indeed that any one is estopped but himself. But we hold that when one assumes to act as agent for another, he may not, when challenged for those acts, deny his agency; that he is estopped not merely as against his assumed principal, but also as against the state; that one who is agent enough to receive money, is agent enough to be punished for embezzling it. An agency de faoto, an actual even though not legal employment, is sufficient. The language of the statute is, “If any officer, agent, clerk, or servant of any incorporation, or any person employed in such eapaoity.” (Crimes act, § 88.)
Further, that the defendant received this money as the money of the city, is conclusively as against him shown by his issue of the license, for he was authorized to issue that only a’fter the city had obtained possession of the money. The issue was an affirmance by him that all things preliminary thereto had been performed, among which was, that the title to the- money had passed from the licensee to the city — an affirmance which he might not thereafter deny. This is not the case of a single or an occasional payment by a debtor of the city to an officer thereof of his debt, where such officer is charged with no duty-springing out of the receipt by the city of its debt, and is not the legal custodian of the city’s moneys. Thus the officer might be, to the common understanding of all parties, simply the agent of the debtor, acting merely to accommodate him. Here, by settled course of business, payment of the city’s dues was made to and received by the defendant. While such payment might not legally conclude the city, yet the evident understanding of all, the defendant included, was, that payment had actually been made; that the money was now the property of the city; and that the license for which the money was due, might properly issue: and it was issued, and by defendant. He voluntarily assumed full charge of this entire matter, including the receipt of the money and the issue of the license. The money was paid to him because of his office, and to induce his official action; and he may not now say that it was not received “ by virtue of his employment or office,” or that its receipt was not one of the prescribed legal duties of such office. In the case of Regina v. Orman, 36 Eng. L. & Eq. 611, it appeared that defendant was employed in the service of the justices of Bedfordshire as storekeeper and clerk of the prison, under the governor of the county jail, and on his appointment received written instructions, in which nothing was said about the receipt of money. His duty was to keep an account of sales and make out bills of parcels and receipts. The governor usually received the money, but in his absence the defendant sometimes did. In such case, the course of business was, to enter the receipt on the same day, and hand the money to the governor. It was held that he might be convicted of embezzling this money, as the money of the justices. Jervis, C. J., said: “If he was de fado employed to receive money, it does not matter whether the rules or instructions defined the employment or not.” So it may be said here, that if defendant was de fado employed to receive this money, it matters not to him whether the ordinances prescribed that as his duty or not. He may not enter into the employment, and then deny its terms or responsibilities. He is estopped from saying that this money which he embezzled is not the money of the city.
We see nothing in the rulings of the district court materially prejudicial to the rights of defendant, and therefore the judgment must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:'
This was an action brought by S. S. MeEadden against S. S. Cartwright, to quiet title to certain city lots in King’s addition to the city of Topeka. McFadden held by a regular chain of title from the original patentee. Cartwright claimed under a tax deed. The tax deed reads as follows:
Know all men by these presents, that, whereas, the following-described real property, viz., lots Nos. 431, 433, 435, 437, 439, 441, 443, 445, 447, 449, 451, 453, 455, 457, 459, 461, 463, 465, 467, 469, 471 and 473, on Buchanan street, city of Topeka, situated in the county of Shawnee and state of Kansas, were subject to taxation for the year 1874; and whereas, the taxes assessed upon said real property for the year afore said, remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the seventh day of September, 1875, by virtue of authority in him vested by law, at the sale begun and publicly held, on the first Tuesday of September, 1875, expose to public sale, at the county seat of said county, in substantial conformity with all the requisitions of the statute, in such case made and provided, the real property above described, for the payment of taxes, interest, and costs then due and remaining unpaid upon said property; and whereas, at the place aforesaid, said property could not be sold for the sum of twenty-one dollars and eighty-six cents, being the whole amount of tax and charges thereon, the same was bid off for that amount by the county treasurer for said county; and whereas, on the seventh day of July, 1876, Daniel Harris, of the county of Adams and state of Illinois, having paid into the county treasury of the county first aforesaid the sum of twenty-six dollars and fifty-five cents, being equal to the cost of redemption of said property at that time; and whereas, J. Lee Knight, county clerk of Shawnee county, Kansas, did, on the 7th day of July, 1876, duly assign the certificate of the sale of the property as aforesaid and all the right, title, and interest to said property, to S. S. Cartwright, of the county of Albany and state of New York; and whereas, three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom, as provided by law: Now, therefore, I, J. Lee Knight, county clerk of the county aforesaid, for and in consideration of the sum of twenty-six dollars and fifty-five cents, taxes, costs and interest due on said land for the year 1874, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain and sell, unto the said S. S. Cartwright, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said S. S. Cartwright, his heirs and assigns, forever, subject, however, to all rights of redemption provided by law.
In witness whereof, I, J. Lee Knight, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto [l. s.] subscribed my name and affixed the official seal of said county, on this 1st day of October, 1878.
J. Lee Knight, County Clerk.
. J. A. Bean,
J. G. Slonecker,
Witnesses.
The deed was properly acknowledged. The plaintiff below sets forth in his petition that he “ has the legal title to, and is in the peaceable possession of, the property in controversy,” describing it, and that the defendant “sets up and claims an estate and interest in and to the said premises adverse to the estate and interest of the said plaintiff so as aforesaid,” and then prays that the defendant “may be compelled to show his said title, and that it may be determined to be null and void as against the said title of the plaintiff.” The defendant answered to this petition by setting up: first, a general denial; second, that the.defendant was the owner in fee simple, and in the actual possession of the property; and third, that the defendant had full title to the property under said tax deed, setting the same out in full. The plaintiff replied to the first and second defenses of the defendant’s answer by filing a general denial thereto, and demurred to the third defense. The court below sustained the demurrer, but as no point is made upon this ruling in this court, it will not be necessary to say anything further with reference thereto. A trial was had before the court, without a jury. The plaintiff offered to introduce evidence, and the defendant objected on the ground that the petition did not state facts sufficient to constitute a cause of action against the defendant. This is the first question necessary to be considered by this court. The real objection to the petition was, and is, that it does not state that the plaintiff was in the actual possession of the property, either by himself or tenant, which the defendant claims is essentially necessary if the action is intended to be an action under § 594 of the civil code. (Comp. Laws of 1879, p. 683; Eaton v. Giles, 5 Kas. 24; Douglass v. Nuzum, 16 Kas. 515.) .Nor does the petition sufficiently state the nature of the defendant’s claim so as to make it a good petition in equity, stating a good cause of action in equity. (See last case cited.)
We think the petition states a good cause of action under the statute. At least, the petition should be held to be good when the objection to it is rn^de in the manner it was made in the present case. Of course, the plaintiff should be in the actual possession of the property, either by himself or tenant, in order to maintain the action under the statute; but usually when it is alleged that he is in the “ peaceable possession ” of property, it should be held, prima facie, that he is in the actual possession thereof. (Entreken v. Howard, 16 Kas. 551.) The statute itself does not use the word “ actual,” or even “peaceable,” but merely uses the word “possession” without any qualifying adjective.
The next question is, whether the evidence introduced, sufficiently shows that the plaintiff had the actual possession of the property. The court below held that it did. The evidence upon this subject is as follows. The plaintiff, ás a witness, testified:
“I am, and at the time this action was brought, was in the possession of the lots in controversy, The lots lie and front on the west side of Buchanan street. Fifteen of them are south of Twelfth street, and’ seven of them north of Twelfth street, and they are consequently not all in one block. I went upon the lots and took possession. I had them plowed around. I had those south of Twelfth street plowed around, and also those north of Twelfth street. I have been upon the lots several times, and have offered them for sale, and have made sale of some of them. I had a conversation with Cartwright before this suit was commenced. ... I told him I was in possession of the lots, and he did not dispute it. I have paid the taxes on the lots since I bought them.”
And on cross-examination he said:
“I have put no buildings or fence on the lots. I have done nothing further in regard to getting and keeping possession than I have stated. The lots were and are entirely unimproved except as I have stated; and when ! went to take possession did not look as if they had ever been improved or inclosed.”
We think the foregoing evidence is sufficient to authorize the finding, made by the court below, that the plaintiff was in the actual possession of the property, (Gilmore v. Norton, 10 Kas. 492, 506; Giles v. Ortman, 11 Kas. 59,) and therefore we cannot set aside such finding.
The other questions involve<$dn this case are connected with the defendant’s tax deed. The court below held that the tax deed is void upon its face; and this holding was based upon the ground that the deed itself shows upon its face that the property which it purported to convey is composed of several separate and distinct tracts of land, and that they were all sold together in bulk and not separately for the taxes severally due upon each of them. Now it is true that the tax deed does show upon its face that all the lots which it purports to convey were sold together and in bulk, and if it also shows that these lots are separate and distinct tracts of land, not contiguous to each other, then of course the tax deed is void upon its face. (Hall’s Heirs v. Dodge, 18 Kas. 277.) But does the tax deed show this? We think not. We think that it furnishes some evidence to this effect, but still that the evidence is not complete or sufficient. The property being divided into lots, and these lots not being numbered consecutively by units, we think furnishes some evidence that the lots are not contiguous; but this evidence we think is not conclusive, or even satisfactory of the fact. The lots might very well all be in one body notwithstanding this evidence. This kind of evidence might sometimes, along with other circumstances, furnish the foundation for a finding that the lots are not contiguous; but alone, and against the statutory presumptions in favor of the regularity and validity of the tax deed, and of all the prior proceedings, it cannot sufficiently prove any such fact. We are therefore inclined to think that the tax deed upon its face is valid. In fact, however, as appears from other evidence, we know that the deed is void. This we know from evidence outside of the deed. ' The lots are not in fact contiguous; seven of them are in a body on one side of the street, while the other fifteen are in another body on the other side of the street. The tax deed is therefore void.
The defendant, however, for the purpose of bolstering up his tax deed, offered to prove that the sale of the lots was not made in gross, but that each lot was sold separately. The plaintiff objected to this evidence, and the court below ex- eluded it. We think that the court below rightfully excluded it, for it did not tend to show that the defendant’s tax deed is valid, but only that the sale was valid, and that he might have obtained a valid tax deed on the sale, if he and the county clerk had been more careful, and had made the tax deed speak the truth. Under the circumstances, he was really attempting to prove that his own tax deed is false, that it does not follow the sale that was actually made, and really that there was no sale such as is described in his tax deed. He was really attempting to contradict the recitals of his own tax deed, and to show that it is founded upon a falsehood.
The court below rendered judgment in favor of the plaintiff and against the defendant, quieting the plaintiff’s title, and also gave judgment against the plaintiff, and in favor of the defendant for $58.57, the amount of taxes, penalties, etc., paid by the defendant on the lots. The court below also divided the costs of the suit equally between the parties, and rendered the proper judgments therefor. Afterward the plaintiff paid the $58.57 and his half of the costs to the clerk of the court below. The defendant now raises the question, and claims that the plaintiff should have tendered the $58.57 to the defendant before the plaintiff commenced his action. It perhaps would have been better, but it is not essentially necessary. There is no statute requiring that it should have been paid or tendered, or that any amount should be paid or tendered in this kind of action. (Corbin v. Young, ante, p. 198; Shaw v. Kirkwood, ante, p. 476.)
The requirement that anything should be paid in this kind of action depends alone upon equitable principles. And in this case, where there was a dispute as to what the- amount should be — the defendant claiming $70 instead of $58.57— it would not be equitable to require that the plaintiff should tender the proper amount before bringing his suit. The rule of tender has its exceptions. Probably a tender before bringing suit, where the suit is in effect to nullify a tax deed, should be required in only a few cases. (Sapp v. Morrill, 8 Kas. 678.) It is never so required in actions of ejectment. (Coe v. Farwell, ante, p. 566.) And equity will follow the law. (Corbin v. Young, ante, p. 202.) But ejectment in this state is not always a legal action. It is often a purely equitable action. It is said, however, that equity will generally require a tender of the taxes due, when the action is to quiet title against a tax-sale certificate. This is true. (Knox v. Dunn, 22 Kas. 683.) But a tax-sale certificate is a means for collecting the taxes, while a tax deed is evidence of title to the property attempted to be' conveyed. As against a tax-sale certificate, the-owner of the land has a right to tender the taxes, and to redeem his land therefrom. But as against a tax deed, the original •owner has no such right. As against a tax-sale certificate, the owner of the land ordinarily has an adequate remedy, by paying his taxes without resorting to a court of justice. But .as against a tax deed, the original owner has no such remedy. There is no provision of law for redeeming land from a tax deed, nor any provision for paying the taxes on land after the tax deed has been executed. The only remedy against a tax deed is by action in a court of justice, which will determine the amount to be paid, if the tax deed is set aside or declared void.
The judgment of the court below will be affirmed. -
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On August 17, 1876, the defendants in error (plaintiffs below) filed their petition in the district court of Leavenworth county against the plaintiff in error, (defendant below) alleging that they were the owners, and in peaceable possession of certain real estate, describing it, and that plaintiff in error set up and claimed an estate and interest therein adverse to the estate and interest of the defendants in error under a certain quitclaim deed executed by one I). W. Eaves and his wife, in favor of plaintiff in error, and recorded in the office of the register of deeds in Leavenworth county, and praying that he be compelled to show his title, and that it be adjudged null and void as against them.
The answer contained, first, a general denial; second, a claim of ownership of the premises by the plaintiff in error under and by virtue of a certain tax deed made by the county clerk of the county, under a tax sale for certain delinquent county taxes on the lands — the tax deed having been made to a certain party and the premises sold and conveyed by him to defendant; that said delinquent taxes and interest amounted to the sum of $300; that the tax deed and conveyance had each been recorded in the office of the register of deeds of said county for more than two years before the commencement of the action.
The reply set forth, first, a general denial; second, the statute of limitations, and that any pretended tax deed was void and a cloud on the title of defendant in error. Upon the trial to the court, the defendants in error, to maintain the issues on their part, offered to read in evidence certain title papers, whereupon plaintiff in error objected to any and all evidence under the petition, on the ground that it did not state facts sufficient to constitute any cause of action. The court overruled the objection; the defendants in error then proceeded with their evidence, and offered title deeds showing a chain of title running from the government of the United States to plaintiffs, and proof that they were at the commencement of the suit, and yet are in actual possession of the premises, and had so been in possession since 1859. Defendants in error then offered the record of the quitclaim deed pleaded in their petition, and read it in evidence, with the official certificate of the recording of the same, dated the 9th day of November, 1869, which deed and certificate are in the words and figures following, to wit:
Know all men by these presents, That David W. Eaves and Annie Eaves, his wife, of the county of Leavenworth and state of Kansas) parties of the first part, in consideration of five hundred dollars paid by John C. Douglass of said •county and state, party of the second part, the receipt whereof is hereby acknowledged, do hereby convey, remise, release, and forever quitclaim unto the said party of the second part, the following pieces and parcels of land situated in the county of Leavenworth and state of Kansas, to wit: . . . The southwest quarter of section twenty-one (21), township eight (8), range twenty-one (21); . . . (including herewith a number of other descriptions of land.) The interest hereby conveyed and intended to be conveyed, being the same and only the same heretofore conveyed in the same property to said D. W. Eaves by William Smith and Nancy Smith, his wife, Robert Adams and Martha Adams, his wife, and Robert Clarke, by their several attorney in fact John C. Douglass, and also the interest and title derived by and through a tax deed from the clerk of Leavenworth county to D. W. Eaves, •dated May 24, 1869, and recorded on the same day in book 23, pages 250 to 264 inclusive, to have and to hold the above granted premises with all the privileges and appurtenances limited as aforesaid and to the same, belonging to the said party of the second part, his heirs and assigns, to his and their use and behoof forever. In witness whereof they, the said parties of the first part, have hereunto set their hands, this first day of October, eighteen hundred and sixty-nine.
D. W. Eaves:
Annie Eaves.
State op Kansas, County op Leavenworth, ss:
On the first day of October, A. D. 1869, before the undersigned, a notary public in and for said county and state, came D. W. Eaves and Annie Eaves, his- wife, who are personally known to me to be the same persons whose names are affixed to the foregoing deed as grantors, and who executed the foregoing instrument, and duly acknowledged the execution •thereof.
Witness my hand and notarial seal, the day and year last aforesaid. Patrick M. Lyons, Notary Public.
Recorded Nov. 9, A. D. 1869, at 3 o’clock, p. m.
George W. Huston, Register of Deeds.
Thereupon they rested, and the plaintiff in error filed his ■demurrer to the evidence, which the court overruled. No ■other evidence being presented, the court, on request, made separate findings of fact and law.
FINDINGS OF FACT.
First. The plaintiffs were at the commencement of this suit, •and had been for several years, the legal and equitable owners in fee simple, by an unbroken chain- of title from the ■government of the United States, of the land in controversy.
Second. The plaintiffs were at the commencement of this ■suit, and had been for more than fifteen years, in the peaceable and actual possession of the land in controversy.
Third. A quitclaim deed of said land from D. W. Eaves to one John C. Douglass was found recorded in the office of ■the register of deeds of said county, dated the 1st day of October, 1869, and recorded on the 9th day of November, 1869.
CONCLUSIONS OF LAW.
First. The court finds that the plaintiffs are the legal and ■equitable owners in fee simple of the property described in the plaintiffs’ petition in this suit, and that they are in actual possession thereof, and that the claim of an estate and interest of, in and to said premises asserted by said defendant adverse to said plaintiffs’ title and possession, is null and void, and that defendant has no legal or equitable claim to said premises.
Second. That plaintiffs have judgment against defendant, .and also recover their costs in this suit against him.
The first objection presented for our determination is, that the petition is not sufficient under § 594 of the code, because it does not aver actual possession, and does not sufficiently state such a title claimed by the opposing parties as to make it a good petition in equity. A like objection was considered by us at the present term to a petition very similar to the one filed in this action, and the objection was held to be without merit. In that case, an allegation of peaceable possession was held to signify, prima facie, that the owner was in the actual possession. (Cartwright v. McFadden, ante, p. 662.)
■ It is next urged .that judgment should have been given for plaintiff in error because, having offered in evidence the quitclaim deed, the recitals must be taken against defendants in error, and that the burden was upon them to establish the invalidity of the tax deed, or its non-existence. This point is not well taken. Defendants in error were required under § 594 of the code, to show title and actual possession, which they did, and then supplement this with proof that the plaintiff in error claimed an interest or estate in the land adverse to them. This proof was furnished by the introduction of the quitclaim deed, but no rule of law or equity binds a party, offering in evidence such adverse claim, by the recitals thereof, or by the recitals of the deed upon which the claim is founded. The general doctrine as to the effect of recitals-in deeds may be stated thus: if made for the purpose of influencing the conduct, or of deriving a benefit to another so-that it cannot be denied without a hreach of good faith, the law enforces the rule of good morals as a rule of policy, and precludes the party from repudiating his representations or denying the truth of his admissions. (Douglass v. Scott, 5 Ohio, 195.) No such rule obtains where a party alleges that another makes an adverse claim of title under certain deeds, and in order to prove the allegation, offers the instruments in evidence. No question of morals or good faith is involved in the issue, and no estoppel arises; nor does the introduction of such evidence compel the party thus offering it, to show the recitals to be untrue. The defendants in error complied with the statute in preparing the petition, and upon the trial offered evidence tending to establish all the'allegations contained therein. The court found upon the evidence that the defendants in error had an unbroken chain of title from the government, and had been in the actual possession of the land more than fifteen years before the commencement of the action, and as the plaintiff in error failed to make good by proof his claim of estate- and interest, the court properly rendered judgment against him. To allow the rule contended for by counsel, would require a plaintiff in actions of this na ture to prove, in the first instance, both his own case and then disprove the defendant’s case, before the latter offered any testimony to support his defense.
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
Horton, C. J.:
The bill of particulars in this case, filed with the justice of the peace November 11th, 1878, stated a cause of action under the stock law of 1874,, against the plaintiff' in error and in favor of the defendant in error, to recover for the killing of a cow in Nemaha county. The bill of particulars also stated, in addition to the allegation that the road of the railroad company was not inclosed with a fence in said county, that the agents and servants of the company so carelessly and negligently run and managed its locomotive and cars, that they ran over the cow, and so wounded and injured the animal that she died within a few days.
On appeal, the jury rendered a verdict in the district court for $214 damages, and $65 attorney’s fee. Judgment was entered in accordance with the verdict, and the railroad company brings the case here. On the trial, three witnesses, Nathan Price, E. D. Mills and J. E. Taylor, testified that a reasonable attorney’s fee for commencing and prosecuting the action before a justice of the peace would be from $25 to $30. The court also permitted the following question to be asked of John S. Hopkins, another witness for the defendant in error:
“Do you know what a reasonable attorney’s fee would be for commencing and prosecuting a case against the Central Branch Union Pacific Eailroad Company, in a justice’s court in Wetmore, Kansas, to recover the value of a cow killed by said railroad, or its agents or servants, in the operation of its railroad in Nemaha county, Kansas, where the said cow is of the value of $200, and in which case it would be necessary to take depositions of three or more witnesses at Holton, Kansas, to prove the value of such cow, when such action is brought under the statute of 1874, entitled, ‘An act relating to the killing and wounding of stock by railroads?”’ The witness answered, “I do.”
To the further question:
“What would be a reasonable charge in such a case?” he answered, “ Twenty-five dollars.”
■ Objection was taken to this question and answer, on the grounds that the witness had not shown himself competent to give an .«opinion, and that it singled out a particular company. The objections are not well taken. The witness had previously stated that his age was forty-two years; that he was a lawyer by profession; that he resided in Holton, Jackson county. It is in the knowledge of every member of the legal profession in active practice, that the value and reasonable price of the services of an attorney vary with the amount in controversy, the legal questions involved, the general importance of the case, and the ability and reputation of counsel engaged. The question and answer implied an acquaintance by the witness with the value of such professional services in an action brought against the particular railroad company defending, and this knowledge ought to have given him additional advantage in estimating the value of such services. Under such circumstances, to single out the Central Branch Railroad company was not calculated to mislead the jury, or prejudice any party’s rights. Of course, upon cross-examination, the witness could have been compelled to disclose the basis of his information, the number of like cases he had attended to against the plaintiff in error, and such other matters as would have enabled the jury to place the proper weight upon his testimony.
The cases cited by counsel are not parallel with this one, and are therefore not in point.
Another allegation of error is, that the court refused to give the following instruction:
“The jury are instructed that in estimating the amount of plaintiff’s recovery herein, if they find the plaintiff is entitled to recover, they will not take into consideration the fact that said cow would breed good calves if bred to a thoroughbred bull, but consider only her general market value.”
The court, however, did instruct the jury, that, “if they found from the evidence that the plaintiff was entitled to recover, he could not recover more than the market value of the cow, with interest thereon at seven per cent.; interest from the date of demand.” This instruction sufficiently acquainted the jury with the proper rule of damages in the case, and we perceive no error in refusing the instruction prayed for. The jury had the right to take into consideration all the qualities of the ^ow, which would offset her market value. To have limited their inquiry to the value of the cow for beef or milking purposes, would have been grossly unjust and erroneous.
The final complaint is, that the court erred in rendering any judgment for attorney’s fees. It is contended that the findings of fact show that the jury found that the animal was killed partly through the negligence of the agents and employés of the railroad company in running and operating the train, and partly through the failure of the company to fence its track.
The findings referred to are as follows:
“Was said cow injured and wounded by any negligence of said defendant, its agents or employés, in running and operating the cars on defendant’s said road?” Ans. “Yes.”
“ Was said injury complained of partly caused by the failure of defendant to fence its railroad track?” Ans. “Yes.”
The effect of the statute of 1874, in the absence of negligence on the part of the owner, is to avoid the necessity of any inquiry into the mere negligence of the railroad company beyond the failure to fence, yet, if further inquiry is had, and other negligence is shown on the part of the agents or employés in operating the road, such additional negligence does not, by any means, take the case out of the statute. More is alleged, and more is proved, in such a case,- than is essential. The facts and findings bring this case strictly within the provisions of the statute, and defendant in error was entitled to recover his attorney’s fees.
The case of A. T. & S. F. Rld. Co. v. Edwards, 20 Kas. 531, is in harmony with this ruling. This court held in that case, that the injuries caused by the negligence of the employés of the road in removing the animals from the track, were done in operating the road within the law of 1874, but as the injuries caused to the animals by falling into the bridge did not result in operating the road, and as there was no way to apportion the damages, the attorney fees were not recoverable.. In this case, all the damages resulted from the failure to fence, and in the operation of the railroad. Had the jury found that the injuries to the cow, in the case before us, were partly caused by the agents and employés of the railroad company in some other manner than in running or operating the road, the case of A. T. & S. F. Rld. Co. v. Edwards, supra, would be authority. The findings are otherwise.
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
Bheweh, J.:
This action was brought to compel the issue of $30,000 in bonds of the city of Parsons, in payment of the subscription of the city to a like amount of the capital .stock of the Memphis, Kansas & Colorado Railway Company. The aid was voted and subscription made under ch. 107, Laws of 1876, the provisions of which, so far as material, are as follows:
“Section 1. "Whenever . ... two-fifths of the resident tax-payers of any incorporated city shall petition the mayor and council of such city to submit to the qualified voters of such . . city a proposition to subscribe to the capital stock . . . of any railroad company constructing or proposing to construct a railroad through or into such . . . city, . . . the mayor and council, for such city, shall cause such an election to be held to determine whether such subscription . . . shall be made.
“ Sec. 2. Before such subscription or loan shall be made, the question shall first be submitted to the qualified electors of such . . . city, as provided in § 1 of this act, at a special or general election, as the same shall be specified in the petition ; which petition shall also designate the railroad company and the amount of stock .proposed to be taken, . . . and the terms of payment, together with the conditions upon which it is proposed to make such subscription, . . . and the form of the ballots to be used at such election for and against such proposition.
“Sec. 3. The . . . mayor and council for such city, upon the presentation of the foregoing petition and such other conditions as may be deemed advisable by the authority ordering such election to . . . the mayor of the city shall convene and make an order which order shall embrace the terms and conditions set forth in the petition, and shall fix the time for holding said election, which shall be within sixty days from the day on which . . . the members of the council shall be convened.
“Sec. 4. Thirty days’ notice of such election shall be given in some newspaper published or having a general circulation in such . . . city, and the election shall be held and the returns made and the x-esult ascertained in the same manner as provided by law for general elections.
“Sec. 5. If two-thirds of the qualified electors voting at such election shall vote for such subscription, the mayor and council, for and on behalf of such city, shall order the . . . city clerk ... to make such subscription or loan in the name of such . . . city; and shall cause such bonds, with coupons attached, as maybe required by the terms of said proposition, to be issued in the name of such . . . city, which bonds. . . . shall be signed by the mayor, and attested by the city clerk under the seal of said city: Provided, No such bonds shall be issued until the railroad to which the subscription ... -is proposed to be made shall be completed and in operation through the county, township or city voting such bonds, or to such point in sucix county, township or city as may be specified in the proposition set forth in the petition required by the first section of this act.”
“Sec. 8. Before any railroad company shall be entitled to receive any bonds issued in pursuance of the foregoing provisions for the stock of such company, said company shall deliver to the treasurer of such . . . city, stock in their said road, equal in amount with the bonds authorized to be issued, dollar for dollar.”
The plaintiff was incorporated November 26, 1877. On the 14th of December, 1877, a petition was presented to the mayor and council of the city, the terms and conditions of which are embraced in the order hereafter referred to, excepting the second proviso of the petition, which is as follows :
“ Provided further, That no such bonds shall be issued until the said . . . railway shall be constructed and in operation from the city of Cherokee ... to the road-bed of the Missouri, Kansas & Texas Eailway, in the city of Parsons, and its depot established within thirty-five rods of the brick passenger depot of the last-mentioned railway, in said city of Parsons.”
On the 19th of December, 1877, after examining the petition and finding it sufficient as to numbers and qualifications ■of petitioners, etc., the mayor and council made an order calling an election, which, so far as material, is as follows:
“Whereas, on the 14th day of December, 1878, a petition was presented to the mayor and councilmen of the city of Parsons, . . . signed by more than two-fifths of the resident tax-payers ... of said city, asking that the mayor and council aforesaid cause an election to be held to submit . . . the proposition to subscribe thirty thousand ■dollars to the capital stock of the Memphis, Kansas & Colorado Eailway Company, such stock to be paid for by the bonds of said city of Parsons, in equal amounts, dollar for dollar, which bonds are to draw interest at the rate of 8 per cent, per annum from their date, and be payable in thirty years: Provided, etc. . . . Provided further, That no •such bonds shall be issued until the said railway company .shall construct a road from the city of Parsons, Kansas, to the city of Cherokee, Kansas, according to the terms relating to the construction and equipment of said road as stipulated in the contract, dated November 24th, 1877, and published in the Parsons Eclipse, November 29th, 1877, between the Memphis & Ellsworth Narrow-Gauge Eailway Company, and Greene, Bennett & Company, and agree to maintain and continue to operate said railway from the city of Cherokee . . . to the road-bed of the Missouri, Kansas & Texas Eailway, in said city of Parsons, and its depot established within thirty-five rods of the brick passenger depot of the last-named railway, in.the city of Parsons: Provided further, That no such bonds shall be issued at all, unless the said Memphis, Kansas & Colorado Eailway Company shall have its road constructed and in operation from the said city of Cherokee to the said city of Parsons on or before the first day of July, 1878.
“ It shall be the duty of the mayor and clerk, so soon as the said railway company shall have constructed its road and commenced running its cars from said city of Cherokee to said city of Parsons, to issue said bonds in the said sum of thirty thousand dollars . . . and deliver them to said . . . railway company in exchange for a like amount of stock of said company. Now, therefore," etc. [Here follows the order calling a special election for the purpose indicated, and prescribing the form of ballots, etc., duly signed, sealed and attested.]
It will be noticed that the order differs from the petition, in this, that instead of leaving the manner of construction and extent of equipment an open question, it distinctly provides how the road shall be constructed and equipped.
Notice of the election was 'given as prescribed by statute. The election was held January 29, 1878, the day named in the order, and more than two-thirds of the votes polled were in favor of the proposition.
On the first of February, the mayor and council met and canvassed the vote, declared the result as stated, and at the regular session held on the 11th of the same month, passed a resolution reciting the steps that had been taken, etc., and proceeding as follows:
“ . . . And whereas, All of said proceedings, including the making of said petition, its presentation, and the order for said election made thereon, notice by publication of said election, the manner in which said election was held. the returns made, and the result ascertained, have been in strict conformity with law: now, therefore, be it
“Resolved, That the city clerk of this city, in the name and in behalf of the city of Parsons, subscribe thirty thousand, dollars to the capital stock of the Memphis, Kansas & Colorado railway; such subscription to be made and stock paid for in the manner and subject to the conditions and restrictions set out at large in the body of the proposition submitted at the election aforesaid,” etc.
On the 22d day of the same month, the city clerk, in behalf of the city, subscribed upon the books of the railway company for the stock as directed in the resolution.' The subscription, after referring to the authority under which it was made, and setting forth at length the resolution of the council last referred to, proceeded as follows:
“Now, therefore, I, E. S. Stevens, city clerk of the city of Parsons, ... in the name and for and in behalf of said city, do hereby subscribe to and for thirty thousand dollars of the capital stock of the Memphis, Kansas & Colorado Railway Company, to be issued and delivered to the treasurer of the city, . . . and to be paid for by the bonds of said city, to be issued in the manner prescribed by law, and subject to the conditions, restrictions and limitations in the proposition hereinbefore referred to. In witness whereofj” etc., [signed by the clerk, and seal of city attached.]
The material portions of the contract referred to in the proposition are as follows:
“That said parties of the second part, for and in consideration, etc., do hereby covenant and agree that they will construct, etc., in a good, workmanlike and substantial manner, a railroad from, etc., and complete, equip and put said road in operation according to the following specifications:
“ The road-bed to have at least twenty-six hundred and forty ties per mile — ties to be of sufficient size and strength to enable the road to be operated in safety, and to be of such timber as the country affords. The iron for the rails to be of good quality, weighing not less than thirty pounds to the yard, Eish-plate joints; the bridges to be all constructed in a good and substantial manner; the bridge over the Neosho river to be Howe truss, not less than one hundred feet span, with proper approaches, the maximum grade, etc., not to exceed sixty feet to the mile, etc. The equipment of the first section of the road from Brownsville [now Messer,] to the city of Parsons, to consist of not less than two locomotives, weighing not less than twelve tons each; one first-class passenger coach; one combination car, built to accommodate passengers, mail and baggage; one caboose car, ten box cars, thirty flat arid coal cars, four hand cars, one iron car, and such other equipments as may be necessary to keep the road in good repair and do the business of the road with reasonable promptness. Said parties of the second part also agree to build on said first section of road between the points named above, at least two water tanks, one of which shall be located at or near the crossing of the Labette creek, near Parsons, and the other where it will be most convenient for service in working the road. And they further agree to build a suitable freight and passenger depot, on block 50, in the city of Parsons, with a spur track leading thereto, and the same at the city of Cherokee, conveniently located to the business of the town. Suitable depots are to be constructed at such other points on the line of the road as the company may determine upon. Said parties of the second part further agree to construct a ‘Y’ or turn-table, at the city of Parsons.”
Plaintiff having constructed its road between Cherokee and Parsons, and having daily trains running between these cities, applied for the bonds, but the city refused to issue them, claiming that the conditions upon which the subscription was made had not been complied with. Thereupon this action was commenced in this court. The case has been tried, a large amount of testimony introduced, and the questions in issue have been fully and ably discussed by counsel.
We think the pivotal question arises on the third proviso in the petition and order for the election. These provisos, of course, enter into and form the terms of the contract between the parties. The language was chosen by them to express their mutual intent, and such construction must be given thereto as will carry into effect that mutual understanding. The province of the court is interpretation. We are to ascertain what the parties understood and intended by this language, and may not deviate therefrom, whether that contract as so interpreted be wise or unwise for either party. Unfortunately, the proviso is susceptible of two interpreta tions, in support of either of which much may be said. The proviso is, “ that the company shall have its road constructed and in operation . . . on or before the first day of July, 1878.” The proviso immediately preceding required that the road be constructed in a certain manner and in accordance with certain specifications. Now, does this proviso require that the road be by July 1st completed as so specified, or simply that it be so far constructed as to be then in operation, leaving full compliance with the specifications to be made thereafter? Th&t this is a pivotal question, is clear, for that the track was laid, that a train ran over it on the 1st of July, and that trains have been run over it daily since, is not disputed; while on the other hand, even the plaintiff does not claim that the road was then in the condition required by the seccnd proviso. We quote from the brief of counsel, which states the case for the plaintiff fully as strongly as the testimony will warrant: “From Cherokee to the Neosho river, a distance of seventeen miles, the road was substantially finished; it was fully tied, spiked, ballasted, and the track in fair condition for a mew road; from that point to Parsons, a distance of nine miles, it was unfinished; it was not fully tied and spiked; the bridge over the Neosho river was incomplete; the embankments and cuts were narrow, and the track rough.” In support of the view that only such a construction as sufficed for operating the road was ■ contemplated in the third proviso, it is argued that the purpose and idea of stock subscriptions is to secure funds with which to -do the work of the corporation; that this subscription was made under the authority of an act entitled “An act to aid in the construction of railroads;” that parties must be understood to have contracted with reference to these facts, and to have intended to provide means pending and to assist in the work, and not simply to secure a bonus after all was finished; that such construction must prevail as will promote the object in view, viz., the securing of railroad facilities to the city and of aid to the company; that each proviso is separate and independent; that they were inserted, or rather placed, in their present form at different times, and that words and phrases used in them may therefore very naturally have been used at such different times in different senses; that the union of the words “constructed and in operation” suggests and defines the meaning intended for the word “constructed” as-such a construction as will enable the company to operate the road; and further, that the word “so” would naturally have been used, and the proviso made to read, “so constructed and in operation,” if the same-extent of construction had been contemplated in the third as in the second proviso. In support of these views, the following authorities are cited: Railroad Company v. Smith, 15 Ohio St. 328; Chamberlain v. Railroad Co., 15 Ohio St. 225; Warner v. Callender, 20 Ohio St. 197; Railroad Co. v. Brooks, 60 Me. 568; Railroad Co. v. Sherman, 8 R. I. 564; Swartwout v. Railroad Co., 24 Mich. 389; McMillan v. Railroad Co., 15 B. Mon. 218; Miller v. Railroad Co., 40 Pa. St. 237; Railroad Co. v. Winkler, 29 Mo. 318.
In Chamberlain v. Rld. Co., supra, the subscriber promised to pay, provided the road was permanently located through the village, etc., and a freight-house erected within a distance named; held, that the location of the road was the only condition precedent to the subscription becoming absolute, and that the building of the road, freight-house, etc., were stipulations merely, which the company undertook to perform-at the appropriate time.
In the cases of Miller v. Rld. Co., and McMillan v. Rld. Co., supra, the subscriptions were conditional upon the road being “located and constructed” upon a certain route; held, that they were payable upon permanent location, and that construction was not a condition precedent.
In Woonsocket Union Railroad Company v. Sherman, supra, the subscription was conditioned to be payable “if the road was built through the village of P.;” held, payable when the road was located, though not built.
So in Swartwout v. Railroad Company, supra, the subscription was “ upon condition that the road should be located and built within one mile,” etc.; held, payable when the road was permanently located, though not built. Judge Cooley, in delivering the opinion of the court, said: “ Had it been their understanding that the sums subscribed were not to be available to the company for the purposes of construction of its road, but payable only when the road was wholly completed, it is only reasonable to infer that they would have expressed their intent more clearly, and would have indicated, with definiteness, what stage the work should reach before their liability should become fixed.”
On the other hand, it is claimed that the two provisos are to be construed together, the one defining the manner, and the other the time of construction ; the one declaring that the road should be constructed in accordance with certain specifications, and the other at a certain time, and that if the parties intended a different manner of construction and extent of completion in the latter proviso, such intent would have been differently and clearly expressed; that the ordinary rule of construction is, that where a matter is referred to in several places in one contract, it is to be taken in the same sense; that- the railroad company soliciting this subscription should have seen that the contract was made more specific if it intended that the language should mean one thing in one proviso and a different thing in another; that while the act is entitled and the purpose of the subscription was to aid in the construction of railroads, yet the legislature, aware that many municipalities had issued bonds without obtaining the expected road, in terms provided that “No such bonds shall be issued until the railroad to which the subscription or loan is proposed to be made shall be completed and in operation through the county, township or city voting such bonds, or to such point in such county, township or city as may be specified in the proposition set forth in the petition required' in the first section of this act.” (Sec. 5, cited, supra.) In other words, as one protection to the municipality, the legislature has ordered that a part of the road must be completed and in operation before any public aid can be given. Private capital must be invested and a railroad exist before the municipality parts with anything. The public may pay for a road already built, or assist in extending one actually completed and in operation for a certain distance; but its promises cannot be appropriated in anticipation of a road, or in aid of one only partially constructed, as in the cases cited by counsel. Those decisions compelled this precautionary legislation. And the extent of the road to be completed is known to the voter before the election. Upon the basis of such a law, the parties contracted. Suppose they had simply specified the distance which the road must be completed, as provided in the statute: the mere fact that rails were laid and a train-brought over them would not be conclusive that the company was entitled to the bonds. Certain facts as to grades, cuts, embankments, ties, spikes, etc., must also be shown before it can be held that a railroad has been constructed. The road must be placed in such condition as to furnish a safe, speedy, certain, easy and continuing means of travel and transportation of goods. (Parsons v. Tilden, 59 N. Y. 639.) Supposing the parties had gone further, and added a second and separate proviso, commencing as do the provisos in this contract, that the road should be constructed in accordance with certain specifications: could there be any question but that the road must be completed according to these specifications before it could be said to be so constructed as to entitle the company to the bonds? Would it not be conceded that the parties had .named these specifications to avoid question as to how much work must be done before any claim was made for the bonds? In this contract, the parties have gone but a single step further, and, specifying the distance and manner of construction, have added a proviso as to time. Are not all to be construed together? The entire matter was not expressed in one proviso, but separated into two, in order to make emphatic and clear the fact that time was to be of the essence of the contract. “Provided further, That no such bonds shall be issued at all, unless,” etc. In no other way could this be made clearer and more emphatic.
We agree with the views of this contract entertained by the city. It seems to us that the parties having stipulated for construction' in a certain manner, and in accordance with certain specifications, meant, when they added a proviso as to time, to refer to the manner of construction already provided for. That would be the rule of construction in any ordinary contract between individuals. A word or a phrase once used in a contract and defined, carries the same meaning all through the contract. If anything different is thereafter intended by it, the difference is plainly indicated. A fortiori, should such rule of construction obtain in this contract. While this may not be considered a public grant, and covered by the rule that nothing is granted which is not plainly named, yet it takes something of that nature and is partially, at least, subject to the same rule. It is taking something away from the public at the instance and solicitation of the individual. The reasons which compel the construction of a public grant against the grantee exist in cases like this. The moving party is the railroad. It seeks public aid. It prepares the contract; and if there be anything doubtful or obscure in its terms, the construction should be against it rather than against the public. It would seem that the proposition as prepared and presented was not satisfactory to the city authorities. It seemed to leave the manner and extent of performance by the company an open question, and they introduced the stipulation as to specifications to guard against any incomplete or doubtful performance by the railroad company. The company was under no obligation to accept the subscription as tendered with the conditions annexed. Having accepted it, it must abide by them.
Indeed, if the specifications as to the manner of construction had not been inserted, it is not clear that it could fairly be said that on the 1st of July the road was so “completed,” using the language of the statute, as to be a compliance with ■the condition as to time. True, trains were run upon that day, and have continued to run ever since, but the road was in far from good working order. West of the Neosho it was very incomplete. We have quoted the language of the plaintiff, expressing its view of the condition of the road. The testimony, going into detail, shows a track unfit for use, and one which required weeks of labor to place it in a reasonably good condition. But we do not propose to discuss this question, or consider how the case would have stood if no stipulation as to specifications had been inserted. Viewing the contract as one which required performance in a specified manner by a named time, and it being conceded as well as proved that such performance was not made by that time, we hold that the company did not comply with the conditions of the contract.
Passing this point, counsel for the plaintiff assert that, if the contract means that which we hold it to mean, the act of God alone prevented full compliance by the railroad company, and that therefore it is now, having constructed the road according to the contract • stipulations, entitled to the bonds. It is not responsible for any delay caused by matters over which it has no control. The great rains, the consequent floods, alone prevented it from doing exactly that which it contracted to do, and these, being the act of God, excuse its non-performance. Authorities have been cited showing that in certain cases equity will relieve against a forfeiture, and also that where there has been a part performance by one party and the other has accepted the benefits of such performance, the latter will be compelled to pay according to the contract, with such abatement for damages resulting from failure of full performance as may be just. But we do not think these authorities are in point. There is no question of forfeiture. The company has paid nothing to the city which the latter is seeking to retain. The company has parted with nothing. It owns all it ever owned. The city is seeking to take nothing from the company, nor is it claiming any forfeiture at its hands. It simply says that the conditions upon which it promised to aid the company have not been comlied with, and therefore it is not bound to furnish any aid. The parties inserted in their contract a condition precedent. Unless that condition was complied with, the city is not bound. The contract was executory. The city agreed to take certain stock „ - and pay for it with its bonds on a specified condition. That condition was not complied with. May the courts now compel the city to take and pay for the stock? If so, they hold the city to a contract it never made, and one which if proposed to it in the first instance, it might have refused to make. (Jones v. United States, 96 U. S. 24; Phillips, &c., v. Seymore, 91 U. S. 650.) Nor is this a case of part performance by one party and the acceptance by the other of the proceeds of such performance. The work done by the company was upon its own grounds. It owns the road absolutely and entirely. It has parted with nothing which the city has received. The city has accepted and appropriated none of its labor and none of its materials. It has received the benefit of the work in no other sense than every individual in the community, añd in no other way than that of one person receiving benefit from his neighbor’s improvement of his own property. It does not parallel at all the case of a party contracting to build for another a house upon the latter’s land, by a certain day, and only partially doing the work by that day. The partially-built house belongs to the latter. He appropriates the labor and materials of the former. But here the company has parted with nothing and the city has taken and owns nothing. And in such a case the condition must be performed or the contract does not bind the city. Nothing excuses such non-performance. Both parties stand released. . See the following authorities: Jones v. United States, 96 U. S. 24; Phillips, &c., v. Seymore, 91 U. S. 650; Oakley v. Morton, 11 N.Y. 25; Howell v. K. Ins. Co., 44 N. Y. 284; Wells v. Smith, 2 Edw. Ch. 78; 4 Kent’s Com. 125; Mizell v. Burnett, 4 Jones (N. C.) L. 249; V. & T. Rld. Co. v. Comm’rs of Lyon Co., 6 Nev. 68.
This last case is in many respects very instructive. It appears that the legislature passed a law authorizing and direct ing the defendant to issue $75,000 of its bonds to the plaintiff when the latter should have completed a railroad from Virginia City to Carson City, and passing a point not more than 1,200 feet west of Trench’s mill, in Silver City. The road was built within the specified time, but the main line did not run nearer to the mill than 2,400 feet. Within the same time a branch was built running to within 300 or 400 feet of the mill. It was held that the condition precedent was not complied with, and therefore the defendant was not bound; and this, although it was proved that the road as built was of more benefit to Lyon county than if built as specified in the law. The court held that this legislative contract was to be construed like any ordinary contract between individuals. It contained a condition precedent, and unless that was substantially complied with, no liability attached. The court would not attempt to make a new contract for the parties, even though it could make a better one for the defendant. In Story on Contracts, § 32, it is said that a condition precedent “must be strictly performed in every particular, in order to entitle the party whose duty it is to perform it to enforce the contract against the other party.” (1 Redfield on Railways, 5th ed., p. 71, § 3.)
This very contract contains another condition precedent, that named in the second proviso. Until the terms of that condition were complied with, no one would contend that the city was bound to issue its bonds, no matter what causes produced the delay. The third proviso is as vital as the second. It differs in this, that it makes time of the essence of the contract; but it is equally and no more a condition precedent. Parties may stipulate to make time of the essence of the contract. (M. R. Ft. S. & G. Rld. Co. v. Brickley, 21 Kas. 275.) A condition precedent is not less binding because it contains a time stipulation, nor have the courts any greater power to set it aside. In any aspect, then, of the conceded facts, it seems to us that under the contract the city is not liable.
We might close this opinion here, but it is due to the city to say that it contends that, notwithstanding the rains and high water during the month of June, there was ample time for the plaintiff to have completed its contract before the 1st of July; and further, that it has never yet completed the road according to the specifications. After the commencement of this action, the city caused a careful survey to be made by a competent engineer, who took down on paper as he went along the results of his survey and measurement. Such survey disclosed defects like these: in one mile of the track west of the Neosho river, out of 2,717 ties, 415 were entirely unspiked; in the next, out of 2,902, 812 were unspiked; in another, 767 out of 2,810; in a fourth, 463 out of 2,764; and in a fifth, 952 out of 2,907.
While the contract required that the maximum grade should not exceed sixty feet to the mile, out of ten places measured, eight exceeded that grade, as follows: one, 693^ feet; a second, 663^-; a third, 72^^j-; a fourth, a fifth, 683^4q-; a sixth, SO^8^; a seventh, 673®^-; and the eighth, 663-^- feet. These measurements were made at different places along, the line, and in distances of from 300 to 800 feet.
Other similar defects were noticed in the embankments, cuts, bridges, etc. Whether these defects are such that the courts would be compelled to hold that the specifications have never yet been substantially complied with, we need not stop to determine. We notice them only to show the view which the city holds of the plaintiff’s conduct in the premises, and its claimed performance of the contract.
We have given to this case full and patient investigation, and are compelled to hold that the plaintiff failed to comply with the conditions upon which alone the city contracted to issue its bonds.
Judgment must therefore be entered in favor of the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the year of 1873, Edmund Harris was the owner of lots 3 and 4, in block 94, in the city of Wyandotte, Kansas. The taxes assessed against the property for that year, $15.75, were not paid, and in 1874, it was sold by the county treasurer to one George P. Nelson. The taxes for the years 1874, 1875, 1876, and 1877, were regularly paid by the purchaser, Nelson, till the three years from the date of sale had expired, when he took a deed for the lots from Wyandotte county, dated in the fall of 1877. Nelson brought an action against Harris, to obtain possession of the property. The issue was tried at the April term, 1878, and Nelson failed on the trial for the reason that the county treasurer did not sell the lots at public auction, but at private sale, and judgment was rendered in favor of Harris. Afterward the commissioners of Wyandotte county paid Nelson the sums he had paid for taxes, with interest at ten per cent, thereon from the date of payment in each year. Thereupon the clerk of Wyandotte county entered upon the tax roll for said county for the year 1878, the sums answering to the sums paid by Nelson for the taxes from 1873 to 1877, inclusive. He also entered upon the tax roll the taxes assessed for the year 1878, being $31.27, which Harris paid. In July, 1879, as the county clerk was about to enter these lots upon the delinquent tax books for sale the following September, Harris filed his petition and applied to the judge at ■chambers for a temporary injunction, which was refused, and he excepted. Service of summons was afterward made upon the county treasurer, E. S. W. Drought, the county clerk, D. R. Emmons, and the county commissioners. The action was ■heard upon its merits at the December term, 1879, a permanent injunction against the county officers refused, and judgment rendered against plaintiff for costs, to which plaintiff •duly excepted. A motion for new trial was duly made, overruled, excepted to, and plaintiff brings the case to this court.
The question is, whether upon the facts presented, the court committed error in refusing to grant the injunction prayed for ? Sec. 99, ch.107, Gen. Stat. 1868, provides:
“If any county treasurer shall unavoidably omit or fail to sell any lands or town lots for unpaid taxes on the first Tuesday of May, he shall advertise and sell such lands or town lots on the fourth Monday of June next ensuing; and such advertisement and sale shall conform in all respects to the provisions of this act, and shall be as binding and valid as if such sale had been made on the first Tuesday in May.”
Sec. 125, ch. 107, Comp. Laws 1879, adopted in place of said sec. 99, reads:
“If any county treasurer shall unavoidably omit or fail to sell any lands or town lots for unpaid taxes on the first Tuesday of September, he shall advertise and sell such lands or town lots on the fourth Monday of October next ensuing, and such advertisement and sale shall conform in all respects to the provisions of this act, and shall be as binding and valid as if such sale had been made on the first Tuesday in September.”
Sec. 54, ch. 107, Comp. Laws 1879, is as follows:
“That it shall be the duty of county clerks to cause all lands in their respective counties, that for any reason have not been assessed for taxation, or have escaped taxation for any former year or years, when the same were liable to taxation, to place the same upon the tax roll, and charge up or carry out an assessment against said lands equal .to, and in accordance with the assessment that would have been charged against said lands had they been properly listed and assessed at the time they should have been assessed under the provisions of the general laws governing assessment and taxation of lands: Provided, That no lands shall be assessed under the provisions of this section, where the same have changed ownership other than by will, inheritance, or gift.”
These various sections were enacted to prevent the escape of lands from taxation by omissions or irregularities. Within the principle announced by the majority of the court in Haxton v. Harris, 19 Kas. 511, there was no payment of taxes in the strict sense of the term by Nelson. He never assumed to act as the agent of Harris, or to discharge the obligations of the property for thé taxes. His purchase failed, but he did not thereby become an' agent to pay. Though the sale for taxes to Nelson was invalid, yet as the county has been compelled to refund all the money paid by Nelson, the tax lien in behalf of the county has not been destroyed, the taxes have not been paid, and are a valid lien against the property. Further, the plaintiff has not been injured by any of the transactions concerning the irregular purchase, or the payment of money on the irregular certificate of sale. Nelson, in his action to recover possession of the real estate, might have had the taxes paid by him, with interest and costs, declared a lien upon the land, in accordance with the provisions of §117 of the tax law of 1868, as modified in the tax law of 1876. (Fairbanks v. Williams, ante, p. 16.) If this had been done, plaintiff would have been required to pay a sum largely in excess of $490.39, (the sum entered by the clerk for the taxes of 1873, 1874, 1875, 1876 and 1877,) to redeem the lots from such lien.-
Again, by the conduct of the county officials and Nelson, the plaintiff has obtained additional time in which to pay the taxes of 1873, 1874, 1875, 1876 and 1877, without interest thereon, and so has been really benefited by their acts. Under such circumstances, it cannot be said that he has presented any equitable cause for the interference of the court in his behalf; therefore no error was committed in refusing the injunction.
Counsel suggests that on May 24th, 1878, plaintiff sold and conveyed to S. F. Mather the lots, and under the proviso in § 54, ch. 107, Comp. Laws 1879, the ownership had so changed that Mather could sell and convey a title in fee, regardless of the taxes prior to the tax of 1878. Under the general finding of the court, this question is not in the case. We do not know that the said conveyance was made in good faith, or that it was anything more than a mere mortgage. It would seem to have been intended for the latter purpose.
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
Horton, C. J.:
A preliminary question, is presented by the defendant in error, Mary E. Mills, challenging the record by a motion to eliminate from the consideration of this court the bill of exceptions. It is alleged and proved that the original bill contained none of the pleadings, motions, affidavits or other papers now inserted in the copy of the transcript attached to the petition in error, and that the bill, when allowed and signed, was what is familiarly known as a “skeleton bill.” The court below appears to have recognized the right to interplead, but treated the motion in the nature of a demurrer, and sustained it on the ground that the facts stated in the interplea were not sufficient to entitle -the interpleader to any relief in the action. Now the office of a bill of exceptions is to bring upon the record only proceedings which do not of right and of course go upon the record; the petition, interplea, motion and journal entries are a part of the record, independent of any bill of exceptions; and as the clerk of the^ district court has certified to us that the transcript contains all the pleadings, orders and entries of record in the case, and as we are only called upon ■to review the order of the court upon the motion or demurrer to the interplea, the omission of the affidavits, and all ■other matters not of right of record from the “skeleton bill,” •does not prevent our considering the ruling of the court.
From the allegations in the interplea, admitted to be true, it is conclusively shown that on the 23d of June, 1879, F. W. Frasius, one of the defendants, under the firm-name of Frasius & Withaup, drew a sight draft for $353.45 in favor"' ■of Mary E. Mills, on Wm. Young & Co., of Chicago; thereafter, Mrs. Mills sold and indorsed said draft (without recourse) to one F. A. Farnham. Before said draft was presented for payment, Farnham, for value received, indorsed and delivered the same to the Bank of Kansas City. On the 27th of June, 1879, the Bank of Kansas City caused the draft to be duly presented to Wm. Young & Co. for payment, which was refused, and whereupon the draft was duly and legally protested, and notice of the presentation and nonpayment given to F. W. Frasius. Thereafter, the Bank of Kansas City returned the draft to J. A. Farnham, from whom it had received it, for collection against the drawers.' After, the receipt of the draft, Farnham attempted fraudulently to convert the same to his own use without the knowledge or ■consent of the Bank of Kansas City; and by falsely representing to F. W. Frasius that he was the owner of the draft, procured him to execute and deliver to Mrs. Mills the notes and mortgage sued upon by her in this case, Farnham at the time being indebted to Mrs. Mills. The said notes of Fra■sius so procured were then turned over to Mrs. Mills, in satisfaction of the debt due her from Farnham. At the time of this transaction, Frasius & Withaup were not indebted to Farnham, and the notes and mortgage were executed and delivered solely for the purpose of discharging the liability of Frasius & Withaup, as drawers of the draft in favor of Mrs. Mills on Wm. Young & Co., under the false and fraudulent representation of Farnham, that he was the owner of said draft; Farnham was insolvent, and unable to pay his debts when the notes were executed to Mrs. Mills. No part of said draft of $353.45 has been paid to the Bank of Kansas City.
As Farnham was an indorser of the draft, and was in the possession thereof when he presented it to the drawers for payment, and as the drawers had no notice to the contrary, F. W. Frasius had the legal right to regard him as the bona fide holder and proprietor thereof, and to pay or settle with him upon any terms mutually satisfactory. This, upon the principle that the possession of a draft by any subsequent indorser is prima faeie evidence that he is the true and lawful owner thereof, and that he has re-acquired the full title, and being the ostensible owner as to the drawers, and all persons liable on the bill prior to his indorsement, such indorser has the right to settle the claim upon such terms as he and the drawer, or other prior indorser (liable in the bill), may agree upon, (Story on Notes, §452; Dugan v. United States, 3 Wheat. 172; 2 Daniel on Neg. Inst., §1229.) Therefore, F. W. Frasius, acting for the firm of Frasius & Withaup, and dealing with Farnham in good faith, cannot be held liable to the bank for the fraud of Farnham, or responsible in any way for his acts. The drawers are therefore no longer liable on the draft. If they had been notified, prior to the execution of the notes and mortgage to Mary E. Mills, that Farnham held the draft for collection only as the agent of the bank, then they could have discharged their liability on the draft only by the payment of money, as an agent authorized to collect a draft, in the absence of special authority, can receive in absolute payment thereof nothing but that which the law declares to be a legal tender, or which by common consent is considered and treated as money, and passes at par. (Ward v. Smith, 7 Wall. 452; Herriman v. Shomon, ante, p. 387; 2 Daniel on Neg. Inst., § 1245.)
Mary E. Mills occupies a different position. After she had transferred the draft, under the name of Mrs. Fred. Mills, by indorsement, without recourse, she was not liable thereon. After such transfer of all her title, and after she had relieved herself of all liability on such draft, she obtained the notes and mortgage at the procurement of Farnham, to pay the individual debt of Farnham to herself. Frasius & Withaup owed her nothing; the Bank of Kansas City owed her nothing; her debt was solely against Farnham. He held the draft only as agent of the bank; and while the drawers, by commercial usage, had the legal right to treat Farnham as the owner, and settle with him accordingly, Mrs. Mills had no legal right to take the proceeds of the draft, or the notes and mortgage executed to her virtually as the proceeds or fruits of the draft, to apply on Farnham’s debt, as such property belonged to the bank, and not to Farnham. He could have used any other personal property of the bank in his possession as agent, as lawfully in payment of his debt, as the draft, or the notes given in payment of it.
Counsel for defendant in error argue that as Mrs. Mills was not a guilty party to the fraudulent conduct of Farnham, and as it does not appear in the interplea that she had notice of his fraudulent acts prior to the execution of the notes and mortgage, she ought to recover thereon. The good faith of Mrs. Mills does not concern the controversy. She had no legal right to obtain the property of a principal, in the possession of the agent, to discharge a personal debt of the agent, without consent of the principal, however innocently she may have acted in the transaction. She may be innocent in fact, but not in law. When property has been applied thus wrongfully by the agent, the creditor cannot retain it if the principal pursues his proper remedy to recover it. Again, Mrs. Mills suffers no injustice by the enforcement of this well-recognized doctrine. She will .fail, as she ought, to recover her debt from Farnham out of the property of the bank; but- she has not lost her claim against Farnham, which has in fact never been paid. It still exists. Furthermore, the delay growing out of her accepting, innocently, the notes and mortgage upon her claim has not greatly prejudiced its collection, as the allegations of the interplea show Farnham was insolvent at the' time of the procurement of the notes and mortgage.
The bank is entitled to have the notes and mortgage or their proceeds turned over to it, and the interplea ought' not to have been stricken from the files.
The order and judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin brought by C. Aultman & Co., against John P. King, for the recovery of a cei’tain mare, described as follows: “One bay mare, one hind foot white, and white spot in face, branded *G,’ 17 hands high, 5 years old, formerly the property of John Hamerberg.” John Hamerberg did, in fact, once own the property, and the plaintiffs now claim the property by virtue of a chattel mortgage given by Charles H. Camp and said John Hamerberg to them, and the defendant claims the property by virtue of a purchase of the same from said Hamerberg. The • chattel mortgage describes the property as follows: “One bay mare, one hind foot white, and white spot in face, branded G,’ 17 hands high, five years old,” and being in the possession of said mortgagors in Clay county, Kansas. It is agreed that these descriptions 'of the mare are exact, except as to the brand and the height of the mare. The evidence concerning these matters is as follows: Said Charles H. Camp, a witness for the plaintiffs, testified: “ That the animal in question was branded ‘ J,’ was 16 or 17 hands high; that it was the sole property of John Hamerberg; that he (Camp) had no interest in it,” etc. The defendant, for himself, then testified: “The animal is branded ‘J/ and is 15f hands high.” Mr. Underwood, a witness for the defendant, testified that the animal “is branded ‘ J,’ and is 15f hands high.” “The plaintiff in rebuttal proved by S. Lang-worthy, constable who sold the animal under the mortgage after the trial in the justice’s court, that when he sold her he could see no brand upon her; it was a cold morning, and she had very long hair at the time. He was afterward shown this brand; could not tell what it was.”
The court below instructed the jury as follows:
“In this case, the plaintiffs hold a chattel mortgage given by Hamerberg & Camp, which the evidence tends to show was intended to embrace a description of the mare in question. Mr. King claims to have bought the mare from Hamerberg for the sum of $125. This action is brought by the plaintiffs to recover the possession of the mare. The defense of Mr. King is, that there is not a proper description of the mare. Mr. King admits that a portion of the description in the mortgage would be applicable to the mare, but that the description is incorrect in regard to the brand on the mare, and in regard to the height. In regard to the color of the mare, white spot in the face, and one hind foot white, the description is correct. Mr. King was bound to take notice of the chattel mortgage and contents; that is, he is presumed to have known at the time he purchased the mare,, just what the chattel mortgage contained. Under these circumstances, and the other circumstances of the case, if you believe that the defendant, by examining the mortgage, would have known that the intention was to describe the mare in question, you must find for the plaintiffs; or if there was sufficient in the mortgage to cause the defendant King to make-inquiries by which he might reasonably have discovered that the intention was to mortgage the mare in question, then you must find for the plaintiffs. It is not necessary that there should be a perfect description of the mare, but it must be-such as would cause a person of ordinary prudence to make inquiries which would lead to a discovery of the fact that the-mare was intended to be mortgaged. If there was such a defect in the description, or such a misdescription that a person examining the mortgage would not be put upon his inquiry when contemplating a purchase of the mare, you must find for the defendant, King. If you find a verdict in favor of the defendant, you must also find the value of the mare.”
The jury found a general verdict in favor of the plaintiffs; the defendant then moved for a new trial, but the court overruled the motion, and rendered judgment in accordance-with the verdict, in favor of the plaintiffs and against the defendant. The defendant now brings the case to this court for review.
The only question which counsel for the defendant, now plaintiff in error, presents to this court is, whether said mistakes in regard to the brand and the height of the mare are-sufficient to invalidate the mortgage as between him, the defendant, a subsequent purchaser of the property who had no-actual knowledge of the mortgage, and the plaintiffs, the mortgagees. Said counsel, however, assumes as established facts, that the mare was branded “J” instead of “G,” and that the mare was only 15-f hands high, and not 17 hands high. Now, under the evidence, this assumption of counsel is probably not wholly warranted. The brand was evidently very indistinct and scarcely discernible, though probably it was “J;” and the mare was somewhere from 15f- hands high up to 17 hands high; though probably she was about 16 hands high, or a little higher. But even if the brand was “J,” without question, and even if the mare was only 151-hands high, still we do not think that the mortgage was void. She was the only mare that’would come anywhere near answering the above description found in the mortgage. It would seem that neither Camp nor Hamerberg, nor both together, owned or possessed any other mare with a white spot in the face, or with one hind foot white, or that was only five years old; and even if this mare was not branded “G,” and was not 17 hands high, still, neither they nor either of them had any mare branded “G,” or that was 17 hands high. This mare, however, was nearer 17 hands high than any other mare which they were shown to possess, and it does not appear that they had any other mare which was branded at all. Really, the erroneous part of said description did not apply to any other animal, nor did the correct part apply to any other animal, and taking the whole description together, it did not apply to any other animal. There was really no room to be misled by said description, and the defendant was not misled by it. Although said description was partially erroneous, partially untrue, yet we do not think that it was void, or that it rendered .the mortgage void in any respect. It applied to the mare in so many particulars, and not applying to any other animal, the defendant ought to have known that it was intended for the mare in controversy.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer J.:
The defendant was convicted of the crime of grand larceny in the district court of Montgomery county, and from such conviction has appealed to this court. No brief has been filed by counsel, and the only point made in the argument is that the verdict was not sustained by the evidence. Counsel for appellant claim, it is true, that there are other errors, but none certainly are apparent, either in the admission of testimony or in the instructions of the court. We shall not therefore' stop to notice in this opinion the various exceptions taken by counsel to the rulings of the district court. If counsel desire that any particular matter be considered, they must call our attention directly to it. We do not search for errors, but examine only the errors alleged. True, if any glaring error to the prejudice of the rights of an accused appeared, we might be constrained to notice it. None such appear upon this record.
Was the evidence sufficient to sustain the verdict? This, is a question 'of fact decided in the affirmative by the jury and the court which saw the witnesses and heard the testimony, and unless it is apparent that they erred, their decision concludes us. The larceny charged was of a wagon loaded with lumber; that this was stolen, is clearly proven. It was left in the evening in the city of Independence, and the next morning it was gone. It was tracked some miles in the direction of the defendant’s home. Some three or four weeks thereafter, it was found in his possession, and he soon traded it for another wagon. His own testimony showed that he had the possession within a day or two after it was stolen. He claimed to have traded for it with some campers one morning, and that it then had no lumber in it. This was in December, 1875. When arrested in February, 1876, he broke jail and fled from the state. Again arrested in 1879, he a second time broke jail and fled from the state. Again arrested, he was brought to trial this past summer. When first arrested and shown the wagon, he said to the sheriff, “You have got me now!” And when under arrest the second time, he made statements which, according to one version of’ them, plainly implied guilt. That a possession of recently stolen property was shown by the state, is clear; and that this possession was very recent, is apparent from his own testimony. His admission of this recent possession was, it is true, coupled with an explanation of the manner of acquiring it, but evidently this explanation -was not satisfactory. Now while the testimony, as written out, does not make as clear a case as often appears, yet taking all the circumstances together — the recent possession, the flight, his conduct and admissions — we cannot say that the jury erred in their conclusions, and therefore we may not disturb the verdict.
The judgment will be affirmed.
All the Justices concurring. | [
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Standridge, J:
Jeff Dickey appeals from the sentence imposed by the district court after he pled guilty to one count of felony theft. Relying on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S_, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), Dickey contends the district court violated his constitutional rights by classifying a 1992 juvenile adjudication for burglaiy as a person felony, which enhanced the penalty for his sentence beyond the statutorily prescribed maximum. Applying the holdings in Ap-prendi and Descamps to the facts presented here, we agree the district court erred by examining record evidence to determine whether Dickey’s prior adjudication constituted a person felony for purposes of enhancing his current sentence. Although we find error, we believe it is significant to point out that Descamps was decided on June 30, 2013, so the district court in this case did not have the benefit of its guidance when sentencing Dickey on May 16,2013. But under the analysis that is now required by Descamps, we necessarily must find that the district court was precluded from looking beyond tire statutory elements of Dickey’s 1992 prior burglary adjudication to determine whether it would now qualify as a person felony for purposes of enhancing the penalty for his current crime of felony theft beyond the statutorily prescribed maximum. Accordingly, and as explained in detail below, we must vacate Dickey’s sentence with instructions to resentence him using a criminal history score of B.
Facts
On December 7, 2012, Dickey was charged with felony theft in Saline County, Kansas. Dickey pled guilty to the charge on April 9, 2013. A hearing was held on May 16, 2013, to consider sentencing on the theft conviction and whether to revoke Dickey’s probation in four other cases. A presentence investigation (PSI) report was prepared prior to the hearing. Attached to the PSI was a criminal history worksheet, which reflected that Dickey had 55 prior offenses, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. The individual who prepared tire PSI designated Dickey’s criminal histoiy as category A based on a finding that Dickey had three adult prior convictions or juvenile adjudications for person felonies. See K.S.A. 2013 Supp. 21-6809 (offender falls into criminal history category A when offender’s criminal histoiy includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). One of the three offenses scored as a person felony in Dickey’s criminal histoiy was a juvenile adjudication for burglary committed in October 1992, which was before the legislature enacted the Kansas Sentencing Guidelines Act (KSGA).
At the sentencing hearing, Dickey responded affirmatively when the court asked whether he had reviewed his criminal history and responded negatively when the court subsequently asked whether he had an objection to any of the convictions listed. During testimony elicited on direct examination by his attorney in support of Dickey’s motion for a downward departure sentence, Dickey said he understood he had been placed in the criminal history category of A. After hearing the testimony and tire arguments of counsel, the district court denied Dickey’s motion for downward departure and sentenced Dickey to 16 months’ imprisonment, to run consecutive to his sentences in the four other criminal cases in which his probation was revoked.
Analysis
At issue is whether Dickey was deprived of his constitutional rights when the sentencing court counted his 1992 juvenile adjudication for burglary as a person felony for criminal history pur poses to enhance his current sentence beyond the maximum authorized by law. The right to appeal from the district court’s decision on this issue is specifically authorized by K.S.A. 2013 Supp. 21-6820(e)(3), which provides appellate courts with jurisdiction to consider a defendant’s claim that the sentencing court erred “in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
We note, as a preliminary matter, that Dickey raises this claim for the first time on appeal. Although our Supreme Court has held that constitutional issues generally cannot be raised for the first time on appeal, the court has recognized exceptions when:
“ ‘(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.’ [Citations omitted.]” State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
Two exceptions apply in this case. First, the claim of error asserted involves only a question of law on undisputed facts and is determinative of the case. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000) (issues implicating Apprendi maybe raised for the first time on appeal because they involve only questions of law arising on proved or admitted facts and are determinative of the cases). The claim of error asserted by Dickey here is that the sentencing court deprived him of his constitutional rights under the recent holding in Descamps. In Descamps, 133 S. Ct. at 2281-87, the United States Supreme Court held that a sentencing court may not look beyond the elements of a prior statutory conviction or adjudication for purposes of a sentencing enhancement under Apprendi unless the prior statute of conviction or adjudication satisfies certain requirements. Because resolving the issue of whether the district court deprived Dickey of his constitutional rights under Descamps depends on interpretation of the relevant statutory language, it involves only a question of law.
Second, consideration of issues implicating Apprendi generally are necessaiy to serve the ends of justice. See Conley, 270 Kan. at 30-31. This is especially true here given the timing in this particular case. Dickey was sentenced on May 16, 2013. The Descamps opin ion — which settled a split in the Circuit Courts of Appeals regarding when the sentencing court is permitted to look beyond the elements of a prior statutory conviction for purposes of a sentencing enhancement without violating Apprendi — was not decided by the United States Supreme Court until June 30, 2013. But Des-camps applies to this case because the Supreme Court issued its opinion while it was still “pending on direct review [and] not yet final.” See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). As such, consideration of the Descamps claim for the first time on appeal is necessary to serve the ends of justice and to prevent the denial of a fundamental right.
Standard of review
The issue presented in this case requires us to interpret several different Kansas statutes. Interpretation of a statute is a question of law over which appellate courts have unlimited review. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014).
State v. Murdock
In considering whether the sentencing court improperly scored Dickey’s criminal history based on misclassification of the pre-KSGA burglary adjudication in Kansas as a person felony, we are mindful that our Supreme Court recently issued an opinion in Murdock addressing a similar claim, albeit in the context of an out-of-state offense and the crime of robbery instead of burglaiy. This factual distinction is significant, as the court itself demonstrated by beginning its analysis with K.S.A. 21-4711(e), which, before recod-ification of the criminal code, governed the classification of out-of-state crimes and convictions.
“The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A. 21-4711(e).
See K.S.A. 2013 Supp. 21-6811(e) (same).
The court easily found Murdock’s prior out-of-state robbery convictions were comparable to the Kansas crime of robbery. The more difficult question was whether the sentencing court was required to compare Murdock’s out-of-state robbery offenses to robbery under the version of the Kansas statute in effect at the time the prior crimes were committed or to robbery under the current version of the Kansas statute. In answering this question, the court found indistinguishable its earlier analysis in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), a case presenting the same issue but in the context of a prior out-of-state crime committed after the KSGA was adopted. As a result, the Murdock court extended the scope of Williams to hold that when classifying a prior out-of-state conviction as person or nonperson, a prior out-of-state crime — whether committed before or after Kansas adopted the KSGA — must be compared to the comparable offense under the Kansas statute in effect at the time tire prior out-of-state crime was committed. See Murdock, 299 Kan. 312, Syl. ¶ 2, 323 P.3d 847 (“A fundamental rule for sentencing is that the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed.”).
Applying that rule, the court proceeded to compare Murdock’s prior out-of-state robbery convictions to robbery as defined in K.S.A. 21-3426 (Ensley 1981) to classify the convictions as person or nonperson for purposes of calculating his criminal history. But the penalty provision of the pre-1993 statute did not designate robbery as person or nonperson, instead classifying it only as a class C felony. In the absence of such a designation, Murdock argued his prior out-of-state convictions necessarily had to be scored as nonperson offenses under K.S.A. 21-4710(d)(8), which provided that “[ujnless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” See K.S.A. 2013 Supp. 21-6810(d)(6) (same). Although the court specifically rejected Murdock’s suggestion that K.S.A. 21-4710(d)(8) provided a mechanism to draw a distinction between current sentencing statutes and the pre-1993 criminal statutes, the majority nevertheless held, as a matter of law,«that all pre-1993 out-of-state convictions must be scored as nonperson offenses based on controlling precedent in Williams. Three of the justices in Murdock dissented from that part of tire majority’s holding that required all out-of-state crimes committed prior to 1993 be classified as nonperson offenses. Although limited to out-of-state convictions, the dissent expressed concern that “all in-state convictions prior to 1993, regardless of how violent or heinous, appear to be subject to the same outcome” because the majority’s decision was based on the court’s prior holding in Williams as controlling precedent on the issue. Murdock, 299 Kan. at 319 (Rosen, J., dissenting, joined by Luckert and Moritz, JJ.).
Based on our review of the opinion and the analysis upon which the holding is based, the court in Murdock appears to have considered and resolved two separate and distinct issues before reaching its final decision. First, the court extended its prior holding in Williams to conclude as a matter of law that when classifying a prior out-of-state conviction as person or nonperson, a prior out-of-state crime — whether committed before or after Kansas adopted the KSGA — must be compared to the comparable offense under the Kansas statute in effect at the time the prior out-of-state crime was committed. Murdock, 299 Kan. at 317-18 (overruling State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7 [Kan. App. 2012] [unpublished opinion], rev. granted 300 Kan. 1106 (2014); State v. Mims, No. 103,044, 2011 WL 4563068, at *5 [Kan. App. 2011] [unpublished opinion], rev. denied 294 Kan. 946 [2012]; State v. Henderson, No. 100,371, 2009 WL 2948657, at *3 [Kan. App. 2009] [unpublished opinion], rev. denied 290 Kan. 1099 [2010]; and State v. Boster, No. 101,009, 2009 WL 3738490, at *4 [Kan. App. 2009] [unpublished opinion], rev. denied 290 Kan. 1096 [2010]). Second, the court recognized that Kansas did not begin classifying crimes as person or nonperson offenses until the KSGA was enacted in 1993. In the absence of a person or nonperson classification in the version of the statute with which a prior out-of-state offense is to be compared or a statutory mechanism pursuant to which such a comparison is permitted, the court ultimately held that all prior out-of-state convictions committed before Kan sas adopted the KSGA must be scored as nonperson offenses. Mur-dock, 299 Kan. at 318-19.
Significantly, both of the issues considered in Murdock were resolved by the court in the context of a prior out-of-state conviction for tire crime of robbery. Conversely, this case presents a prior adjudication for the crime of burglary committed in Kansas. Given these distinctions, our first task is to determine whether the holding announced by the court in Murdock on either one of tírese issues applies to this case..
We first examine tire court’s holding that any prior conviction for an out-of-state crime must be compared to the comparable offense under the Kansas statute in effect at the time the prior out-of-state crime was committed. The stated rationale by the court for this holding was (1) the lack of statutory guidance on such a comparison and (2) the analysis it conducted under similar facts in Williams.
“In the absence of a statutoiy directive, we are left with our decision in Williams that the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. Even though the State seeks a different rule in this appeal, we must emphasize we adopted the current rule at the State’s urging in Williams. See 291 Kan. at 559 (State argued this court should score the Washington offenses according to their Kansas equivalents when the Washington offenses were committed).
“Our analysis in Williams is indistinguishable from the analysis applicable to the circumstances presented here, and tire same policy considerations continue to apply. Using tire date the prior out-of-state crime was committed to calculate a defendant’s criminal history score is ‘consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with tire penalty provisions in effect at tire time the crime was committed.’ 291 Kan. at 560. Moreover, fixing the penalty parameters as of tire date the crime was committed is fair, logical, and easy to apply. 291 Kan. at 560.” Murdock, 299 at 317-18.
Again, we find it significant that the statute to which the Mur-dock court refers as failing to provide necessary guidance is K.S.A. 21-4711(e), which applies only to classification of prior out-of-state crimes, while the case here does not involve a prior out-of-state crime. The facts here present a prior adjudication for the crime of burglaiy committed in Kansas. Thus, unlike the absence of statutory guidance as in Murdock, the applicable statute here specifi cally provides that a past burglary adjudication occurring prior to July 1, 1993, should be scored for criminal history purposes in the current case:
(1) as a prior person felony if the prior adjudication would be classified under the current statute as tire burglary of a dwelling; and
(2) as a prior nonperson felony if the prior adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 2013 Supp. 21-6811(d) (formerly K.S.A. 21-4711[d]).
Given the specific type of offense committed by Dickey in 1992 was a burglary adjudication, we are bound by the statutory provision set forth above governing the manner in which a criminal history score must be calculated for a burglary adjudication occurring prior to July 1, 1993. Pursuant to K.S.A. 2013 Supp. 21-6811(d), we conclude that Dickeys prior burglary adjudication must be compared to the current version of the burglary statute in considering whether it should be scored as a person or nonperson crime in his criminal history and expressly decline to rely on the holding in Murdock in coming to that conclusion.
We now move on to examine the second and seemingly more divisive issue decided in Murdock: that all prior out-of-state convictions committed before Kansas adopted the KSGA must be scored as nonperson offenses. Like the first issue, the rationale given by the majority of the members of the court for this holding was (1) the absence of a statutory mechanism to determine whether a pre-KSGA conviction should be scored as a person or nonperson crime for criminal histoiy purposes and (2) the analysis it conducted under similar facts in Williams.
“We hold that Murdock’s two prior out-of-state convictions must be scored as nonperson offenses under K.S.A. 21-4710(d)(8) following our controlling Williams precedent. We recognize this rule results in the classification of all pre-1993 crimes as nonperson felonies — an outcome the State characterizes as unreasonable. But the solution to the State’s complaint sits with the legislature.
“As noted above, tire legislature enacted K.S.A. 21-4724(c)(l), instructing the Department of Corrections to recalculate certain inmates’ criminal history classifications ‘as if tire [prior] crime were committed on or after July 1, 1993.’ The legislature can amend the KSGA to address this issue as well if it deems an amendment appropriate.” Murdock, 299 Kan. at 319.
But again, there is a statutory mechanism for determining whether a pre-KSGA Kansas (rather than an out-of-state) conviction or adjudication for burglary — the prior crime at issue in this case — should be counted as person or nonperson crimes for purposes of scoring a defendant’s current criminal history. K.S.A. 2013 Supp. 21-6811(d), which incorporates K.S.A. 2013 Supp. 21-5807, as amended, by reference, states that prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes (1) as a prior person felony if the prior conviction or adjudication was classified as a burglary within a structure that is a dwelling; and (2) as a prior nonperson felony if the prior conviction or adjudication was classified as a burglary within a structure that is not a dwelling. K.S.A. 2013 Supp. 21-6811(d).
Based on the statutory framework in Kansas for classifying an offender’s criminal history as set forth above, it is clear that the legislature intended to create a separate and distinct rule to govern classification when the prior conviction or adjudication was committed out of state. See K.S.A. 2013 Supp. 21-6811(e). And the court’s rationale in Murdock was based on statutory interpretation of the legislative mandate in that subsection of the statute and the absence of any other applicable legislature mandates in the statutory framework as a whole. Conversely, the issue here is governed by K.S.A. 2013 Supp. 21-6811(d), a subsection of the statute that governs classification when the prior offense was burglary, because Dickey’s pre-KSGA adjudication was for a burglary that was committed in Kansas. Because both the legal analysis and the holding in Murdock are firmly tethered to the text of K.S.A. 21-4711(e) and the absence of any other applicable legislature mandate, neither the analysis nor the holding in Murdock apply to the issue presented in this case.
Classifying Dickey’s 1992 adjudication for burglary
At the time of Dickey’s 1992 adjudication, burglary was defined as
“knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
In 1993, the legislature adopted the KSGA, which classified burglaries as either person or nonperson crimes. Also in 1993, K.S.A. 21-3715 reclassified burglaries of dwellings as person felonies, while other burglaries were nonperson felonies. See K.S.A. 21-3715 (Furse 1995); L. 1993, ch. 291, sec. 74. As we noted in the preceding section, the sentencing statute in effect when Dickey committed the current offense, however, provides that a past burglary adjudication occurring prior to July 1,1993, should be scored for criminal history purposes:
(1) as a prior person felony if the prior adjudication would be classified under the current statute as the burglary of a dwelling; and
(2) as a prior nonperson felony if the prior adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 2013 Supp. 21-6811(d).
The statute also provides that the State has the burden to establish by a preponderance of the evidence the facts necessary for the court to determine how the prior adjudication would be classified under the current statute. K.S.A. 2013 Supp. 21-6811(d).
Given this statutory language, it might appear as if the question presented on appeal — whether the sentencing court erred in counting Dickey s prior juvenile adjudication for burglary as a person felony and enhancing his sentence — can be answered by deciding whether the State established by a preponderance of the evidence that the 1992 juvenile adjudication for burglary involved a dwelling. But that is not the claim of error asserted by Dickey here. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty forsa crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” [Emphasis added.]). Dickey claims the sentencing court violated Apprendi by going beyond the fact that he had a pre-KSGA unclassified prior adjudication for burglary to consider other facts in ultimately deciding that his prior burglary adjudication involved a dwelling and was a person felony, which in turn increased the penalty for his current crime beyond the prescribed statutory maximum.
Based on the manner in which Dickey has framed the issue and the cases he relies on in support thereof, the question of whether the 1992 burglary actually involved a dwelling is irrelevant. Instead, the relevant question is whether the sentencing court was constitutionally permitted to go beyond the fact that Dickey had a prior adjudication for burglary in 1992 to determine that Dickey s prior adjudication for burglary qualified as a person felony and then to use that determination to enhance his current sentence. In order to answer that question, we must apply the analysis set forth by the United States Supreme Court in Descamps v. United States, 570 U.S_, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
In Descamps, the Government sought to use the defendant’s prior burglary conviction in California to increase his current sentence under the federal Armed Career Criminal Act (ACCA), a sentence enhancement statute based on prior convictions that is similar to California’s three strikes law. See 18 U.S.C. § 924(e) (2012); Cal. Penal Code § 667(b-i) (West 2010); Cal. Penal Code § 1170.12(a)-(d) (West 2010). Unlike the definition for generic burglary under the ACCA, the California burglary statute in effect at die time of the defendant’s prior burglary conviction did not require that there be an unlawful entry; therefore, the definition in the California statute was much broader than the ACCA definition of burglary. See Cal. Penal Code § 459 (West 2010). In order to resolve a federal circuit court split on whether the sentencing court could look beyond the elements of a prior statutory conviction when the prior statute of conviction contains a single and “indivisible” set of elements that is broader than the elements in the corresponding offense as set forth in the ACCA, die Court granted certiorari. : ■
The Descamps Court began its analysis by reviewing its earlier decisions resolving issues similar to, but distinct from, the one presented. The first of those decisions was Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), where tire defendant was charged with being a felon in possession of a firearm. The ACCA imposes a minimum sentence of 15 years’ imprisonment for any felon who possesses a firearm after three prior convictions for serious drug offenses or violent felonies. The ACCA defines a violent felony as any crime punishable by imprisonment for a term exceeding 1 year that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injuiy to another.” 18 U.S.C. § 924(e)(2)(B). The Government asked the sentencing court to invoke tire 15-year minimum (above the statutory maximum for the crime charged) based on the defendant’s prior burglary conviction, which the Government alleged qualified as a predicate offense because burglary was defined as a violent felony under the ACCA.
But the Taylor Court disagreed, concluding instead that the proper inquiry for a sentencing court in this situation is not whether the defendant’s actual conduct constituted a crime of violence (e.g., whether he, in fact, brought a gun, confronted any individuals inside the house, or conducted his crime in any particularly “violent” way) but whether the elements of the crime of conviction necessarily matched the elements of the corresponding crime under the ACCA. For purposes of determining if such a match existed, tire Court generically defined burglary under the ACCA as “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. at 598. This type of elements-only comparison has become known as the “ ‘formal categorical approach.’ ” Descamps, 133 S. Ct. at 2281, 2287.
The Taylor decision went on to acknowledge, however, a “narrow range of cases” in which the sentencing court may look beyond the elements of a prior conviction to examine the charging papers and jury instructions to determine whether the prior conviction constitutes a predicate offense under the ACCA. 495 U.S. at 602. This alternative method has become known as the “modified categorical approach” and applies when the statute defining the prior offense elements is broader than the corresponding generic offense but the jury was actually instructed that it had to find all tire elements of the predicate offense in order to convict the defendant. Descamps, 133 S. Ct. at 2281, 2283-84. Because not all of the Missouri second-degree burglary statutes at the time of Taylor s convictions included every element of generic burglary under the ACCA and the Court was unable to determine from the sparse record upon which of those statutes Taylor’s convictions were based, tire Supreme Court vacated tire judgment and remanded the case for further proceedings. Taylor, 495 U.S. at 602.
In Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), the Supreme Court was asked to decide whether — in determining whether a prior conviction constitutes a predicate offense under the ACCA — tire sentencing court could look beyond the. elements of a Massachusetts burglary statute that included “boats and cars” as well as buildings. Because the defendant pleaded guilty to violating the statute, the Court first confirmed that the categorical approach set forth in Taylor applies not just to jury verdicts, but also to plea agreements. Specifically, the Court held that “a conviction based on a guilty plea can qualify as an ACCA predicate only if the defendant ‘necessarily admitted [the] elements of the generic offense.’ ” Descamps, 133 S. Ct. at 2284 (quoting Shepard, 544 U.S. at 26).
The Court then addressed dre issue presented by tire divisible nature of the Massachusetts burglary statute. Because the burglary statute encompassed “boats and cars” as well as buildings, it was impossible to tell from the statutory elements of the crime of conviction upon which of these alternative offenses Shepard’s conviction was based. The Government argued that the sentencing court should be able to look to tire facts in the police reports or complaint applications to determine whether Shepard’s convictions fell within the generic ACCA definition of burglary. But the Supreme Court was not persuaded by this argument, holding instead that the sentencing court is'“generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” to determine if the defendant had pleaded guilty to entering a building or, alternatively, a car or boat. Shepard, 544 U.S. at 16. The Court emphasized that the purpose of such an inquiry was not to determine “what the defendant and state judge must have understood as the factual basis of the prior plea,” but only to assess whether the plea was to the version of the crime in the Massachusetts statute (burglary of a building) corresponding to the generic offense. 544 U.S. at 25 (plurality opinion).
Authored by Justice Souter, the majority in Shepard based its holding on the statutory framework of the ACCA. In Part III of the opinion, however, Justice Souter reasoned that the rationale for placing limits on the sentencing court in looking beyond the prior statutory conviction for purposes of sentencing enhancement, while focusing on the ACCA, likewise implicates the Sixth Amendment jury trial concerns expressed in Apprendi. Shepard, 544 U.S. at 24-25 (plurality opinion) (citing Apprendi, 530 U.S. at 490; Jones v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 143 L. Ed. 2d 311 [1999]). Although Justice Souter s Sixth Amendment discussion only garnered a four-justice plurality, Justice Thomas, the fifth vote, took an even stronger view of the need for constitutional protection and Apprendi. Going further than the majority, Justice Thomas argued that “the [judicial] factfinding procedure the [majority] rejects gives rise to constitutional error, not doubt”; he further argued that even the “limited factfinding” approved by die majority and by the Court in Taylor ran afoul of Apprendi. 544 U.S. at 28 (Thomas, J., concurring in part and concurring in the judgment).
The Supreme Court’s most recent opinion discussing application of the categorical approach and its “modified” counterpart is Des-camps. Like the defendants in Taylor and Shepard, Descamps was convicted of being a felon in possession of a firearm and the Government sought to enhance his sentence based on a prior conviction for burglaiy. Arguing the categorical approach was applicable, Descamps maintained die sentencing court could not count his prior burglary conviction as a predicate offense under the ACCA because the California statute under which he pleaded guilty was broader than the corresponding generic offense under the ACCA in that it did not require an unlawful entry and was not divisible in any way. Not persuaded by Descamps’ argument, the district court determined the modified categorical approach was appropriate. After reviewing the record of the plea colloquy, the district court determined Descamps admitted the elements of a generic burglary when entering his plea based on the prosecutor s proffer that the crime “ ‘ “involve[d] the breaking and entering of a grocery store” ’ ” and Descamps’ subsequent failure to object to that statement. 133 S. Ct. at 2282. Accordingly, the district court enhanced Descamps’ sentence, and the Court of Appeals for the Ninth Circuit affirmed.
Applying the same analysis as in Taylor and Shepard, the Supreme Court reversed the decision of the district court. Descamps, 133 S. Ct. at 2283. The Court reiterated that a sentencing court can utilize a “modified categorical approach” when a prior conviction involves a “divisible statute,” i.e., a statute which comprises multiple, alternative versions of the crime. 133 S. Ct. at 2284. When such a statute is involved, the sentencing court may consult “a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” 133 S. Ct. at 2284. After making this determination, the sentencing “court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” 133 S. Ct. at 2281. But the Court found that Des-camps’ prior statute of conviction was not comprised of multiple, alternative versions of tire crime. When the statute is “indivisible” (because it does not contain alternative elements) and criminalizes a broader swath of conduct than the relevant generic offense, tire Descamps Court held that the sentencing court is precluded from utilizing the “modified categorical approach” and may not consult anything more than the statutory elements of tire prior crime of conviction. 133 S. Ct. at 2281-83.
There are two important aspects of the Descamps decision that stand out. The first is that the modified categorical approach can be applied only when dealing with a divisible statute drat “sets out one or more elements of the offense in the alternative.” 133 S. Ct. at 2281-82. If the prior statute under which the defendant was previously convicted is indivisible, the modified categorical approach is inapplicable. And if the modified categorical approach is inapplicable, die sentencing court may not consult anything more than tire statutory elements of the prior crime of conviction. 133 S. Ct. at 2281-83.
The second is that application of the modified categorical approach must only “focus on the elements, rather than the facts, of a crime.” 133 S. Ct. at 2285. If the modified categorical approach does apply to a prior conviction, courts should use the record documents to determine which statutory phrase the defendant was necessarily convicted under and not to determine the facts of the underlying crime. After pinpointing the statutory phrase, courts should then use those documents to analyze whether that phrase matches the corresponding element of the generic offense. 133 S. Ct. at 2285.
Utilizing the legal principles dictated by Descamps, we begin by examining the pre-1993 burglary statute under which Dickey was adjudicated in order to determine whether the categorical approach or the modified categorical approach applies to our analysis. Because the modified categorical approach is applicable only when tire defendant was convicted of violating a divisible statute and then, only to the extent it is necessary to determine which statutory phrase formed the basis for the conviction, we begin with that determination. A criminal offense is “divisible” only when a statute lists multiple, alternative elements, thereby effectively creating several different crimes. 133 S. Ct. at 2285. Notably, however, tire modified categorical approach will not be applicable to every statute that is divisible. This is because, in some cases, none of the alternative elements will match any elements of the corresponding generic crime. Post-Descamps, a case involving a prior statute of conviction for burglary containing alternative elements, none of which match any element of a generic statute, is virtually indistinguishable from a case involving a prior statute of conviction for burglary containing a single and indivisible set of elements; thus, the modified approach has no role to play. 133 S. Ct. at 2286 (“Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not [as here] overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not” [Emphasis added.]).
In this case, the burglaiy statute forming the basis for Dickey s prior juvenile adjudication was comprised of multiple, alternative versions of the crime but none included an element relating to whether the structure was a dwelling:
“Burglary is knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
Because none of the alternatives in the prior version of the statute include any element relating to whether the structure was a dwelling, the sentencing court was permitted to engage in only a categorical comparison of the prior and current burglary statutes to determine whether to use the prior adjudication to increase Dickey s current sentence. Under that approach, we compare only the elements of the burglary statute forming the basis of the defendant’s prior conviction or adjudication and the elements of the generic offense, which in this case is the current version of the burglary statute. The prior conviction or adjudication will qualify as a predicate crime for sentence enhancement purposes under the categorical approach only if the elements of the prior statute “are the same as, or narrower than, those of the generic offense.” Descamps, 133 S. Ct. at 2281.
The “generic” offense is found within K.S.A. 2013 Supp. 21-5807(a)(1), which sets forth the current elements of burglary, a person felony, as “without authority, entering into or remaining within any [d]welling, with intent to commit a felony, theft or sexually motivated crime therein.” (Emphasis added.) The crucial element triggering the classification of the generic offense as a person felony is that the structure burglarized “is a dwelling.” In comparing the 1991 version with the current one, it is clear that the prior version of the burglary statute under which Dickey was adjudicated did not include any element relating to whether the structure was a dwelling. See K.S.A. 1991 Supp. 21-3715. Because the elements in the statute criminalizing Dickey s prior adjudication sweep more broadly than the elements in the current burglary statute, we can categorically say that Dickey’s prior adjudication for burglary would not have involved a dwelling and thus would not have been a person felony under the current burglary statute. See K.S.A. 2013 Supp. 21-6811(d).
Based on this analysis, the sentencing court erred in invoking the modified categorical approach to look behind Dickey’s conviction in search of record evidence to determine whether Dickey’s prior adjudication involved a dwelling, which in turn would have made it a person felony under the generic offense (the current statute). And because burglarizing a dwelling was not an element, or an alternative element, of K.S.A. 1991 Supp. 21-3715 under the applicable categorical approach, Dickey’s adjudication under that statute does not count as a person felony and, in turn, cannot be used to raise his criminal history score from B to A.
Before moving on to the final issue of invited error, we find it essential to our decision today that the United States Supreme Court adopted as a majority in Descamps what it had supported as a plurality in Shepard: its ruling was grounded not only in the statutory construction of the ACCA but also in the Sixth Amendment right to jury trial under Apprendi. After first applying a statutory construction analysis under the ACCA as it did in Shepard, the Court turned to die “Sixth Amendment underpinnings” of the analysis. The Court held that a sentencing court’s factfinding “would (at die least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allowing a sentencing court to ‘make a disputed’ determination ‘about what the defendant and state judge must have understood as the factual basis of the prior plea.’ ” Descamps, 133 S. Ct. at 2288 (quoting Shepard, 544 U.S. at 25). Thus, in Descamps, a majority of the United States Supreme Court held that a sentencing court’s decision to enhance a defendant’s current sentence based on the record of a prior conviction implicates the Sixth Amendment under Apprendi. Given Dickey’s claim in this case is grounded in Apprendi and not in the statutory scheme of the ACCA, tire Descamps Court’s reliance on Apprendi as an alternative ground to support its decision is significant here.
Invited error
The State argues the invited error doctrine precludes Dickey from pursuing his claim for relief on appeal. For the reasons stated below, we are not persuaded by this argument.
Like judicial estoppel, the doctrine of invited error precludes a party from asking a district court to rule a given way and thereafter challenging the court’s ruling on appeal. See State v. Hargrove, 48 Kan. App. 2d 522, Syl. ¶ 2, 293 P.3d 787 (2013) (describing invited error). As a judicially created rule, the doctrine of invited error “should be tailored as necessary to serve its particular purpose without unnecessarily thwarting tire ends of justice.” 48 Kan. App. 2d at 553. This is especially true in a case like this where there is a statute that provides appellate courts with jurisdiction to consider the precise issue presented. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (Absent some constitutional infirmity, it is the duty of the appellate courts to carry out tire intent of the legislature as clearly expressed in the words of the statute itself.). But die State seeks to have us expansively apply the doctrine of preclusion beyond errors by the district court that Dickey affirmatively invited, encouraged, induced, or participated in causing to include errors made by the court to which Dickey passively acquiesced or failed to object.
The criminal history worksheet prepared prior to sentencing reflected that Dickey had 55 prior offenses, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. Attached to the original worksheet was a supplemental criminal histoiy worksheet which set forth a table presenting additional information about each of the prior offenses. The table was 11 columns wide, 61 -rows long, and spanned four pages. The following information is embedded in-the table at row 57, which is located on page four of the supplemental worksheet, which in turn is attached to the PSI:
On page one of the supplemental worksheet, there was a list of 22 different conviction codes and corresponding classifications, one of which identified the conviction code “JFP” denoted above as “Juvenile Felony Person.” The worksheet identified a prior PSI as the source for the limited information provided about this prior adjudication.
As can be seen, the last column of the worksheet identified a prior PSI as the source for the limited information provided about this 1992 adjudication. The conviction code “JFP” was denoted on another page of the worksheet as “Juvenile Felony Person.” Significantly, the State contends the doctrine of invited error applies here based solely on the following questions directed to Dickey at his sentencing hearing about this embedded information:
“THE COURT: And, Mr. Dickey, have you reviewed your criminal history as set forth in die criminal history worksheet attached to the PSI?
“MR. DICKEY: Yes, ma’am.
“THE COURT: Do you have any objection to any of the convictions listed in that document?
“MR. DICKEY: No ma’am.
“Q. [DEFENDANT’S COUNSEL:] Okay and we are here today to ask the Court to consider two things; one of them to .. . ask the Court to consider you— to place you on probation in diis particular case, the primary case, and to ask the Court to modify the sentences in the probation violation cases, is that correct?
“A. [MR. DICKEY:] Yes, ma’am.
“Q. And you understand that for starters your criminal history A is that correct do you agree with that?
“A. Yes ma’am.”
There is no dispute that Dickey told the court that he had reviewed his criminal history worksheet; he did not object to any of the convictions listed; and in response to his attorney’s question about whether he understood that he had a criminal history score of A, he responded affirmatively. But it is completely irrational to equate these fleeting and perfunctory responses to routine and prefatory questions to invited error. Neither the record evidence nor cases cited by the State support its argument that the “Yes, ma’am,” “No, ma’am,” “Yes, ma’am,” and “Yes, ma’am” were affirmative invitations by Dickey to count his 1992 juvenile adjudication for burglaiy as a person felony. To construe Dickey to have invited the court to do so for purposes of precluding him from pursuing his claim for relief not only counters the underlying purpose of the doctrine but also unnecessarily thwarts the ends of justice.
Based on the analysis in Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), which is mandatory United States Supreme Court precedent that was not available to the district court when sentencing Dickey on May 16, 2013, we find the sentencing court erred in classifying Dickey’s pre-KSGA juvenile adjudication for burglaiy a person felony, which escalated his criminal histoiy score from B to A and enhanced the penalty for his sentence beyond the statutorily prescribed maximum. Accordingly, Dickey’s sentence is vacated and remanded with instructions to resentence him using a criminal history score of B.
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Standridge, J.:
Ami Lattice Simmons appeals from her conviction for failing to register as a drug offender. Specifically, Simmons argues retroactive application of 2007 legislation that requires her to register as a drug offender for a prior conviction that did not require registration at the time she originally was sentenced (1) illegally modifies the original sentence imposed and (2) violates the Ex Post Facto Clause of the United States Constitution. She also challenges the $200 DNA database fee imposed by the district court. Because an offender s statutoiy duty to register is imposed automatically by operation of law, without court intervention, as a collateral consequence of judgment with a stated objective of protecting public safety and not punishment, we necessarily conclude that the registration requirements — no matter when imposed — are not part of an, offender’s sentence. As such, Simmons’ illegal sentence and ex post facto claims both fail. For the reasons stated below, her challenge to the $200 DNA database fee imposed by the district court also fails.
Facts
Simmons was convicted and sentenced in 2005 after pleading guilty to possession of cocaine with intent to distribute and sale of cocaine. When Simmons committed those crimes- — and even when she was sentenced — the Kansas Offender Registration Act (KORA) did not require drug offenders to register. In 2007, however, KORA was amended to add certain drug offenders to the registration list. L. 2007, ch. 183, sec. 1. Although Simmons complied with her registration requirements until May 2011, she was charged in June 2011 with failing to register as required. Simmons filed a motion to dismiss the charges on grounds that the registration requirement violated “the Ex Post Facto Clause of the United States and Kansas Constitutions,” but the motion was denied.
Waiving her right to a juiy trial but reserving the right to appeal, Simmons’ case went to a bench trial on the following stipulated facts.
“In March of 2005, the State filed a 13 count complaint against Ami Simmons in Saline County Case No. 2005 CR 359. The complaint alleged, among other tilings, that Simmons possessed cocaine with the intent to distribute it and that Simmons in fact sold cocaine, both in violation of K.S.A. 65-4161(a).
“On June 21, 2005, Simmons entered a guilty plea to possession of cocaine with the intent to distribute and the sale of cocaine. She was sentenced to 30 months in prison with 24 months of post-release supervision, granted a border-box disposition to probation, and placed on 18 months of probation in October of 2005.
“Simmons’ probation in 05 CR 359 was eventually revoked in May 2007, and Simmons was remanded to serve her 30-month prison sentence. Simmons was incarcerated from June 21, 2007, to October 22, 2008. She began serving her 24-month post-release supervision period when she was released.
“The Kansas Offender Registration Act (KORA) was amended effective July 1, 2007, L. 2007, ch.183, §1, to include offenders who had been convicted of K.S.A. 65-4161 offenses, including the sale of cocaine. K.S.A. 22-4902(a)(ll)(C).
“Under K.S.A. 22-4906(a), Simmons’ KORA registration obligations with the Saline County Sheriffs Office began on the date of her parole, October 22, 2008.
“On May 31, 2011, a Saline County Deputy Patrick Queen attempted to serve Simmons notice that she had failed to attend her May 2011 KORA compliance visit at her last reported address .... On that date, Deputy Queen was advised by the tenant. . . that Simmons no longer lived at that address. Simmons did not report her change of address.
“On June 1, 2011, Simmons called Saline County Sheriff s Office Compliance Officer Michelle McMillan by phone and advised that the missed visit was an oversight. McMillan instructed Simmons to come in immediately to complete her May 2011 compliance visit. Simmons did not reveal her location during the call.
“Beginning in December 2008 and continuing until June 8, 2011, Simmons acknowledged her registration responsibilities on 11 prior occasions, and she provided invalid addresses on 5 prior occasions to McMillan.
“On June 8, 2011, no reported telephone numbers for Simmons were valid, attempts to contact her through her former parole officer, Shawn Homan, were unsuccessful, and she had not completed her May 2011 compliance visit.”
The district court found Simmons guilty of failing to register as required by KORA.
Analysis
Illegal sentence
Under K.S.A. 22-3504(1), an illegal sentence is where (1) the court lacked jurisdiction to sentence the defendant, (2) the character or the term of the punishment imposed as part of the sentence did not conform to the statute, or (3) the sentence was am biguous as to how it was to be served. State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). Simmons argues her 2005 sentence was rendered illegal by the 2007 KORA amendments, which retroactively imposed upon her the requirement to periodically register as a drug offender. But Simmons’ argument begs tire question in that it assumes that the drug offender registration requirement is considered a part of her criminal sentence. For the reasons stated below, we find that it is not.
Resolution of this issue requires statutory construction. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Johnson, 297 Kan. 210, 215, 301 P.3d 287 (2013).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). Generally, criminal statutes are strictly construed in favor of the accused. That rule is constrained by the rule that the interpretation of a statute must be reasonable and sensible in order to give effect to the legislative design and intent of the law. The rule of lenity arises only when there is any reasonable doubt as to meaning of the statute. State v. Cameron, 294 Kan. 884, 899, 281 P.3d 143 (2012).
K.S.A. 2013 Supp. 22-4902(a) of the registration act defines an “offender” as, among other things, a drug offender. Relevant here, the term “drug offender” is further defined in subsection (f) as:
• A person who, on or after July 1, 2007, is convicted of K.S.A. 65-4161; or
• A person who, on or after July 1, 2007, has been convicted of an offense that is comparable to any crime defined in the subsection, which includes K.S.A. 65-4161. See K.S.A. 2013 Supp. 22-4902(f)(l)(C) and (f)(2).
Before it was repealed in 2009, K.S.A. 65-4161 made it a crime to sell, offer for sale, or possess with intent to sell any opiates, opium, or narcotic drugs. Here, Simmons entered a guilty plea in 2005 to charges that she possessed cocaine with the intent to distribute and sold cocaine, both in violation of K.S.A. 65-4161(a); accordingly, she fits the definition of a drug offender, and thus an offender, under the registration act.
K.S.A. 2013 Supp. 22-4906(a)(l) requires offenders convicted of certain offenses to register for 15 years from the most recent of either the date of parole, discharge, or release or, if not confined, from the date of conviction. The list of specified offenses includes selling, offering for sale, or having in such person’s possession with intent to sell any opiates, opium, or narcotic drugs as defined in K.S.A. 65-4161, prior to its repeal. See K.S.A. 2013 Supp. 22-4906(a)(l)(P). As a drug offender who, on or after July 1, 2007, had been convicted and confined for selling a narcotic drug, Simmons is now statutorily required to register as an offender for a period of 15 years from the date she was released from confinement.
Although conceding that if convicted and sentenced for her crimes today she would be subject to the current version of the statute and required to register, Simmons’ claim of illegal sentence is grounded in the fact that she was not required to register as a drug offender when she was convicted for her crimes. And Simmons is factually correct; based on the underlying crime of her conviction, she did not fit tire definition of an offender under the 2005 version of the registration act. Thus, unlike most offenders who object to retroactive application of legislative amendments to KORA, there is no court order or journal entry in this case imposing any registration requirement on Simmons at all. In the absence of a court order, the question of whether tire requirement to register is part of an offender’s sentence turns on whether there is a statutory procedure for imposing the registration requirement on an offender like Simmons, who has never been subject to a court order to register.
In May 2007, Simmons’ probation was revoked and she was remanded to serve her underlying prison sentence. By the time she was released from prison in 2008, the offender registration statute had been amended to make her subject to a 10-year postrelease registration requirement. K.S.A. 22-4906(a)(l). Pursuant to K.S.A. 22-4905(a)(l), the staff of the facility where Simmons was confined was required to inform her about the duty to register before she was released. Under subsection (a)(2)(A) of this statute, the staff of the facility was also required before she was released to:
“(i) Explain the duty to register and the procedure for registration;
“(ii) obtain the information required for registration as provided in K.S.A. 22-4907 and amendments thereto;
“(iii) inform the offender that tire offender must give written notice of any change of address within 10 days of a change in residence to the law enforcement agency where last registered and the Kansas bureau of investigation;
“(iv) inform tire offender that if the offender changes residence to another state, the offender must inform the law enforcement agency where last registered and the Kansas bureau of investigation of such change in residence and must register in the new state within 10 days of such change in residence;
“(v) inform the offender that the offender must also register in any state or county where the offender is employed, carries on a vocation or is a student;
“(vi) inform the offender that if the offender expects to or subsequently becomes enrolled in any institution of higher education in the state of Kansas on a full-time or part-time basis or have any full-time or part-time employment at an institution of higher education in the state of Kansas, with or without compensation, for more than 14 days or an aggregate period exceeding 30 days in one calendar year, the offender must provide written notice to tire Kansas bureau of investigation within 10 days upon commencement of enrollment or employment;
“(vii) inform tire offender that if there is any change or termination in attendance or employment, at an institution of higher education, the offender must provide written notice to the Kansas bureau of investigation within 10 days of the change or termination;
“(viii) inform the offender of tire requirement of an annual driver’s license renewal pursuant to K.S.A. 8-247, and amendments thereto, and an annual identification card renewal pursuant to K.S.A. 2007 Supp. 8-1325a, and amendments thereto; and
“(ix) require the offender to read and sign the registration form which shall include a statement that the requirements provided in this subsection have been explained to the offender.” K.S.A. 22-4905(a)(2)(A).
In the current version of KORA, the corresponding duties and responsibilities of staff members at the correctional facility are set forth in K.S.A. 2013 Supp. 22-4904(b).
Pursuant to K.S.A. 22-4904(a)(l), and as the prison staff was required to explain to her before she was released, Simmons was required upon her release to register with the county sheriff within 10 days of her coming into any county in which she intended to reside for more than 10 days. Thereafter, the sheriff was required to:
“(A) Explain the duty to register and the procedure for registration;
“(B) obtain the information required for registration as provided in K.S.A. 22-4907 and amendments thereto;
“(C) inform the offender that tire offender must give written notice of any change of address within 10 days of a change in residence to the law enforcement agency where last registered and the Kansas bureau of investigation;
“(D) inform the nonresident student offender that the offender must give written notice to the sheriff and the Kansas bureau of investigation of any change or termination of attendance at the school or educational institution the offender is attending, within 10 days of such change or termination;
“(E) inform the nonresident worker offender that the offender must give written notice to the sheriff and the Kansas bureau of investigation of any termination of employment at the offender’s place of employment, within 10 days of such termination;
“(F) inform die offender diat if die offender changes residence to anodier state, die offender must inform die law enforcement agency where last registered and the Kansas bureau of investigation of such change in residence and must register in the new state within 10 days of such change in residence;
“(G) inform the offender diat the offender must also register in any state or county where die offender is employed, carries on a vocation or is a student;
“(H) inform die offender diat if the offender expects to or subsequently becomes enrolled in any institution of higher education in the state of Kansas on a full-time or part-time basis or have any full-time or part-time employment at an institution of higher education in the state of Kansas, with or without compensation, for more than 14 days, or for an aggregate period exceeding 30 days in one calendar year, die offender must provide written notice to the Kansas bureau of investigation within 10 days upon commencement of enrollment or employment;
“(I) inform the offender diat if diere is any change or termination in attendance or employment at an institution of higher education, die offender must provide written notice to the Kansas bureau of investigation within 10 days of die change or termination;
“(J) inform the offender of die requirement of an annual driver’s license renewal pursuant to K.S.A. 8-247, and amendments thereto, and an annual identification card renewal pursuant to K.S.A. 8-1325a, and amendments thereto; and
“(K) require the offender to read and sign the registration form which shall include a statement that the requirements provided in this subsection have been explained to die offender.” K.S.A. 22-4904(a)(5).
In the current version of KORA, the corresponding duties and responsibilities of the registering law enforcement agency are set forth in K.S.A. 2013 Supp. 22-4904(d).
Like prison staff and registering law enforcement agencies, the statute has a provision requiring the district court to notify all offenders subject to registration of the duty to register and the procedure for doing so. See K.S.A. 2013 Supp. 22-4904(a). Notification must occur at the time of conviction unless of course, like here, there was no duly to register when the offender was convicted. If the offender is released instead of remanded to custody, the district court is required to draft a written notice of duty to register. K.S.A. 2013 Supp. 22-4904(a)(l)(B). Significantly, there is no provision in this statute or the offender registration act as a whole that refers to, let alone authorizes, the court to order offender registration as a criminal sentence as punishment for an offender s conviction. This affirmative obligation imposed by statute on the court to inform an offender of the duty to register at the time of conviction is not an indication that the legislature intended offender registration as part of a criminal sentence. The Kansas law relating to sentencing is codified in the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2013 Supp. 21-6801 eb seq., and the offender registration statutoiy .scheme is wholly separate and distinct from the KSGA.
The KORA statutoiy scheme outlined above establishes a stat-utoiy procedure that adequately informs and explains a newly imposed registration requirement to an offender who had no requirement to register at the time he or she was convicted and sentenced. And considering this statutory scheme in its entirety, the provisions therein reflect the legislature’s clear intent that the registration requirement be imposed automatically by operation of law as a nonpunitive collateral consequence of judgment that is distinct from, and not part of, a criminal sentence.
Our Supreme Court has defined what constitutes a sentence:
“Ordinarily, in a legal sense, ‘sentence’ is synonymous with ‘judgment’ and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted. Roberts v. State, 197 Kan. 687, Syl. ¶ 1, 421 P.2d 48 (1966). In criminal cases, the judgment must be rendered and sentence imposed in open court. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.” State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993).
Although the registration requirement is a legal consequence of a conviction for designated crimes, both the United States Supreme Court and the Kansas Supreme Court have held that the duty to register is a civil penalty that is remedial in nature and intended to protect public safety, not to impose punishment. Smith v. Doe, 538 U.S. 84, 105-06, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); State v. Myers, 260 Kan. 669, 671, 681, 695-96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997). And the Kansas offender registration statutory scheme itself specifically makes clear that the requirement to register need not be imposed by court order at all, let alone imposed by the court in open proceedings. As such, the registration requirements simply are not part of an offender s sentence.
Moreover, broad principles of criminal law weigh against a finding that registration requirements are part of an offender s sentence. A criminal defendant has both a statutory right and a constitutional right to be present with counsel at all critical stages of the prosecution of the case against him or her. See Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); K.S.A. 22-3405(1); State v. Engelhardt, 280 Kan. 113, 122, 119 P.3d 1148 (2005). Sentencing is a critical stage of a prosecution. Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); State v. Bristor, 236 Kan. 313, 317-18, 691 P.2d 1 (1984) (citing Mempa with favor for the proposition that sentencing is a critical stage of a criminal proceeding to which the right to counsel applies). A district court sentences a defendant when it orally pronounces punishment and other terms and conditions associated with the disposition of the crime of conviction from the bench. State v. McDaniel, 292 Kan. 443, 445, 254 P.3d 534 (2011). As a general rule, a sentence is complete when the district court concludes the sentencing hearing. After the hearing, the district court no longer has jurisdiction to change a sentence. See State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014) (Because restitution constitutes a part of a defendant’s sentence, its amount can only be set by a sentencing judge with the defendant present in open court, and until any applicable restitution amount is decided, a defendant’s sentencing is not complete.) (abrogating State v. Cooper, 267 Kan. 15, Syl. ¶ 2, 977 P.2d 960 [1999]). Those fundamental legal principles dictate the outcome here. If the legislature had intended the registration requirements to be part of an offender’s sentencing, it would have provided a statutory procedure through which an offender could appear in open court for imposition of sentence or modification of sentence each time KORA was amended so as to affect that offender’s registration requirements. There is no such procedure in KORA.
We readily acknowledge that our decision today directly conflicts with an unpublished decision reached by another panel of our court. State v. Dandridge, No. 109,066, 2014 WL 702408, at *3 (Kan. App. 2014) (unpublished opinion); see State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010) (panels of Kansas Court of Appeals not bound by prior rulings of another panel). “While we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.” Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287 (2012).
With limited analysis, the panel in Dandridge cited to several Kansas Supreme Court cases to support its finding that offender registration is part of a criminal sentence. 2014 WL 702408, at *3. Although we agree that our Supreme Court has issued various opinions over the last few years that reference offender registration as part of a sentence, we do not construe those references to mean that the Supreme Court has considered and decided the issue on its merits. For example, the offender registration issue presented in State v. Mishmash, 295 Kan. 1140, 290 P.3d 243 (2012), was a legal issue completely unrelated to sentencing. The offender registration statute in effect when Mishmash was convicted defined an offender as “any person who has been convicted of: (A) [ujnlawful manufacture or attempting such of any controlled substance or controlled substance analog . . . unless the court makes a finding on the record that the manufacturing or attempting to man ufacture such controlled substance was for such persons personal use.” (Emphasis added.) K.S.A. 2009 Supp. 22-4902(a)(ll)(A). After the defendant was convicted, he requested the sentencing court make such a finding on the record. The State objected, arguing he traded some of the drugs for nonmonetary items. During the sentencing hearing, the parties presented evidence to support their respective positions. The court ultimately concluded on the record that Mishmash was not manufacturing solely for personal use and registration as a drug offender would be required.
Unlike the issue presented here, the issue in Mishmash on appeal was whether the phrase “personal use” as used in K.S.A. 2009 Supp. 22-4902(a)(ll)(A) implies that the manufacturer of a drug must use the drug solely or exclusively in order for the manufacturer to fall outside the classification of an offender as that word is defined in the statute. 295 Kan. at 1142-45. The Supreme Court held the district court erred in ordering offender registration and “vacatfed] that portion of the sentence requiring Mishmash to register as a drug offender.” 295 Kan. at 1145. Notably, this is the only reference to sentencing that the court makes related to registration requirements; the court was not presented with nor did it address whether the registration requirements should be considered part of a criminal sentence.
In comparing the underlying convictions in Mishmash to the one here, the sentencing court’s decision to consider testimony about Mishmash’s intended purpose for the drugs he manufactured was necessary under the KORA framework. Like here, there was no question in Mishmash that the obligation to register was automatically imposed upon an offender by operation of law and not by court order. But the question in Mishmash was whether the defendant was an “offender” as defined by statute. If the court determined he was an offender as defined by the statute (did not manufacture for personal use), he thereafter would be a person subject to the duty to register, which arises by operation of law and not by order of the court through sentencing. If the court determined that he was not an offender as defined by statute (manufactured for personal use), he would not be a person subject to the duty to register. The fact that the sentencing court decided to hear this testimony in the context of a sentencing hearing has no bearing on the issue presented or the Supreme Court’s conclusion and certainly does not mean that the registration requirement was part of Mishmash’s sentence.
Like Mishmash, the court’s reference in State v. Denmark-Wagner, 292 Kan. 870, 884, 258 P.3d 960 (2011), to the registration requirement as part of the defendant’s sentence is not a legal conclusion creating binding precedent but, again, appears to have been phrased that way for purposes of simplicity and brevity. Denmark-Wagner was convicted of one count of felony first-degree murder pursuant to the terms of a plea agreement. The court’s journal entry of judgment noted that Denmark-Wagner would be required to register as a violent offender for his lifetime based on the felony first-degree murder conviction and a finding on the record that the crime of conviction was a felony committed with a deadly weapon. On appeal, the Kansas Supreme Court determined that Denmark-Wagner had just one qualifying conviction under the offender registration statute and therefore was only required to register as an offender for a period of 10 years. It was only those persons with two or more qualifying convictions under the offender registration statute that were required to register as an offender for life. K.S.A. 22-4906(a). The court concluded that “[t]he lifetime offender registration requirement of [Denmark-Wagner’s] sentence does not conform to the statute and is illegal. It must be vacated.” 292 Kan. at 884. Although there can be no dispute that the court used the word “sentence” in its decision on the merits of the issue presented — the number of qualifying convictions — use of the word, in and of itself, cannot be construed as a legal holding that the registration requirement is part of the defendant’s sentence.
In State v. Jackson, 291 Kan. 34, 238 P.3d 246 (2010), the defendant was convicted of three counts of aggravated battery pursuant to the terms of a plea agreement. After sentencing, the district court ordered the parties to submit written briefs on the legal issue of whether Jackson’s juvenile adjudications would count as prior qualifying convictions under the offender registration statute. The court’s journal entry of sentencing provided that Jackson was subject to lifetime registration as a violent offender under K.S.A. 22-4902(a)(7) based on two qualifying convictions for crimes committed with a deadly weapon. On appeal, Jackson argued the sentencing court did not have jurisdiction to impose the registration requirement in the journal entry because the requirement was not pronounced from the bench at sentencing. Our Supreme Court was not persuaded by this argument:
“We find that the statutorily required imposition of lifetime registration is an incident of sentencing, akin to restitution. K.S.A. 22-4906 speaks of persons who are ‘required to register and of a ‘registration requirement.’ Because registration is a mandatory, not a discretionary, act, the order of registration is the same kind of standard order of probation cited by our Court of Appeals in [State v. ] Baldwin[, 37 Kan. App. 2d 140, 144, 150 P.3d 325 (2007)]. Because the defendant has constructive notice of tire regstration requirement, it is implicit in every sentence that falls within the scope of K.S.A. 22-4906. The journal entry did not modify the sentence but simply carried out a statutory imperative. The sentencing couit had jurisdiction to include the registration requirement in the journal entiy without making it part of the sentence imposed from the bench.” 291 Kan. at 37.
Like Mishmash and Denmark-Wagner, Jackson is factually and legally distinguishable from the case presented here. The legal question in Jackson was whether juvenile adjudications constitute prior qualifying convictions under KORA. Unlike Mishmash and Denmark-Wagner, however, at no point in the opinion did the Supreme Court in Jackson refer to the registration requirement as part of the defendant’s sentence. In fact, the excerpt from the opinion set forth above is much more consistent with a finding that the registration requirement is not a part of the defendant’s sentence. See Jackson, 291 Kan. at 37. To that end, the court appeared to construe the KORA obligations as we have here: (1) a statutorily mandated outcome over which a sentencing court has no discretion (2) that arises automatically by operation of law (3) upon the qualifying conviction (4) of a person who meets the definition of an offender as defined by the statute. Construing the KORA obligations this way necessarily means that the statutory duty of an offender to register is a collateral consequence of judgment that is separate and distinct from a criminal sentence. This is consistent with the underlying policy of KORA as announced in Myers, 260 Kan. at 671, 681, 695-96 (registration provisions are remedial and intended to protect public safety, not as punishment) and the stat utory and constitutional rights of a criminal defendant to be present with counsel at all critical stages of the prosecution, including sentencing. See Gardner, 430 U.S. at 358; Engelhardt, 280 Kan. at 122; see also Hall, 298 Kan. at 986 (Because restitution constitutes a part of a defendant’s sentence, its amount can only be set by a sentencing judge with the defendant present in open court, and until any applicable restitution amount is decided, a defendant’s sentencing is not complete.).
After careful review of the relevant provisions of the applicable statutes, the unambiguous language therein readily establishes that the legislature intended the KORA registration requirements to be imposed automatically by operation of law without court involvement and to represent nonpunitive collateral consequences of judgment that are distinct from, and not a part of, a criminal sentence. Because the registration requirement is not part of her sentence, we necessarily conclude there is no merit to Simmons’ claim that her sentence was illegally modified.
Ex post facto
Simmons argues that applying the 2007 KORA legislation to persons who already had been convicted of drug crimes amounts to unconstitutional punishment violating the Ex Post Facto Clause of the United States Constitution. U.S. Const, art. I, § 10. A statute violates ex post facto protections if it retroactively either criminalizes conduct that had not been proscribed or increases the punishment for conduct already treated as criminal. Myers, 260 Kan. 669, Syl. ¶ 5. In support of her particular ex post facto claim, Simmons contends imposing the registration requirements of KORA on her increases the punishment for her original 2005 drug convictions. Resolution of her claim requires us to interpret constitutional and statutory provisions on undisputed facts, which in turn presents a question of law over which appellate courts have unlimited review. State v. Johnson, 297 Kan. 210, 215, 301 P.3d 287 (2013).
Our Supreme Court’s decision in Myers essentially controls tire ex post facto issue presented by Simmons here. The court in Myers engaged in a lengthy analysis of state and federal offender registration laws and of the legislative purpose behind the Kansas Sex Offender Registration Act (KSORA), which is the sex offender component of the offender act at issue here. The court concluded that the duty to register served a sound public safety interest, was enacted to further that public interest, and did not impose obligations so onerous as to be punitive in their effect. 260 Kan. at 681, 695-96. The court ultimately held that the requirements were not a form of punishment triggering ex post facto protections. 260 Kan. at 696.
As Simmons asserts, the Myers court considered only the impact of the registration obligations themselves and not the punishment imposed under KSORA for failing to register. Rut the United States Supreme Court expressly has rejected the notion that punishment triggered by the failure to register is a factor to be considered in the ex post facto determination. Smith, 538 U.S. at 102. Specifically, the Court noted, “[a] sex offender who fails to comply with the [law’s requirements] may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.” 538 U.S. at 101-02. Thus, a separate prosecution for violation of the KORA registration provisions is not a second prosecution for the underlying offense but instead is punishment imposed as a result of the subsequent prosecution. As such, any punishment imposed under KORA for failing to register is irrelevant to the ex post facto analysis.
Although Simmons acknowledges the holdings in Smith and Myers, she suggests that both the United States Supreme Court and the Kansas Supreme Court might now reach a different result in analyzing the current version of KORA. Specifically, Simmons points to the expanded scope of the offenders who are required to register, the heightened reporting obligations, and the more aggressive public notification provisions implemented since the court in Myers considered the constitutionality of KSORA in 1996. Although the changes Simmons points out between KSORA as it was upheld in Myers and the KORA version applied to her are significant, ultimately they are matters of degree rather than differences of land. Thus, absent some indication the Kansas Supreme Court intends to retreat from its decision in Myers, it remains controlling authority. Likewise, many:of the registration features challenged by Simmons were included in the Alaska sex offender registration act upheld by the United States Supreme Court in Smith. See 538 U.S. at 90-91, 105-06.
DNA database fee
On July 25, 2012, Simmons was sentenced for failing to register and placed on probation for 24 months, with an underlying sentence of 27 months’ imprisonment, as well as 24 months’ post-release supervision. At sentencing, the court noted that Simmons would be “required to submit a DNA sample, and there’s a $200.00 DNA database fee the court is required to charge for that.” Simmons argues the district court erred in requiring her to submit the DNA sample and pay the fee because her DNA already is on file with the Kansas Bureau of Investigation (KBI) as a result of her prior incarceration.
Simmons’ argument requires us to interpret the statutes authorizing the collection of DNA samples and DNA database fees. Interpretation of a statute is a question of law over which we exercise unlimited review. Johnson, 297 Kan. at 215.
K.S.A. 2013 Supp. 21-2511 is the statute that authorizes the collection of DNA samples. Although initially limited in scope to the collection of blood and saliva from certain offenders such as sex offenders, the legislature amended K.S.A. 21-2511(a) in 2002 to require any person convicted of a felony “to submit specimens of blood and saliva to the Kansas bureau of investigation in accordance with the provisions of this act.” L. 2002, ch. 128, sec. 1. If the person is placed directly on probation, the court is required to order the sample collected within 10 days after sentencing. K.S.A. 2013 Supp. 21-2511(c)(l).
The legislature added subsection (e) to K.S.A. 21-2511 in 2006. L. 2006, ch. 171, sec. 2. This subsection extends the time period for collection from what used to be only the end of the legal process to the beginning of the legal process as well. Thus, after July 1, 2008, any adult arrested or charged with the commission or attempted commission of any felony is required to submit a specimen of blood or an oral or other biological sample “at the same time such person is fingerprinted pursuant to the booking procedure.” K.S.A. 2013 Supp. 21-2511(e)(2). Before taking this DNA sample, however,
“die arresting, charging or custodial law enforcement agency shall search the Kansas criminal history files through the Kansas criminal justice information system to determine if such person’s sample is currently on file with die Kansas bureau of investigation. In the event that it cannot reasonably be established that a DNA sample for such person is on file at the Kansas bureau of investigation, the arresting, charging or custodial law enforcement agency shall cause a sample to be collected. If such person’s sample is on file with the Kansas bureau of investigation, die law enforcement agency is not required to take die sample.” K.S.A. 2013 Supp. 21-2511(e)(3).
K.S.A. 2013 Supp. 75-724 is the statute that authorizes the collection of DNA database fees. This statute provides, in relevant part:
“(a) Any person convicted or adjudicated of an offense that, pursuant to K.S.A. 21-2511, and amendments thereto, requires submission of a DNA sample upon arrest, charging or placement in custody, shall pay a separate court cost of $200 as a Kansas bureau of investigation DNA database fee upon conviction or adjudication.
“(b) The court shall order such fees regardless of whether the person’s DNA sample was already on file with the Kansas bureau of investigation at the time such person was arrested, charged or placed in custody, unless the person can prove to the court that the person: (1) Has paid such fees in connection with a prior conviction or adjudication; and (2) did not submit specimens of blood or an oral or other biological sample authorized by the Kansas bureau of investigation to the Kansas bureau of investigation for the current offense of conviction or adjudication.”
Having set forth the applicable law, we begin our analysis by noting that the record is unclear about whether Simmons submitted a DNA sample and/or whether the agency searched the Kansas criminal history files to determine whether her DNA already was on file at the time Simmons went through the booking procedure on her charge of failing to register. See K.S.A. 2013 Supp. 21-2511(e)(2) and (e)(3). Having noted this ambiguity in the record, however, resolving it is unnecessary to our decision on the issue presented. This is because under K.S.A. 2013 Supp. 75-724(b), the court was required to order Simmons to pay the DNA database fee upon conviction — regardless of whether die person’s DNA sample was already on file with the KBI at the time such person was arrested, charged, or placed in custody — unless Simmons provided evidence to establish to the court that (1) she already paid the fee in connection with a prior conviction and (2) she was not ordered to submit a DNA sample for the current offense. Therefore, even if Simmons had submitted a DNA sample upon her release from prison in 2008 and that sample had been entered into the database, the court would still be required to order her to pay the fee unless she could prove she paid the fee for the prison test. See K.S.A. 2013 Supp. 75-724(b)(l). Because Simmons failed to sustain her burden of proof, her claim fails.
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Bruns, P.J.:
Nelson Glover appeals the district court’s order denying his motion to withdraw his plea. Glover contends that his counsel coerced him into pleading guilty. As a result, he contends that he did not voluntarily and knowingly enter a guilty plea. A review of the record reveals that Glover’s decision was not a product of coercion. Instead, we find that Glover made a tactical decision based on the advice of competent legal counsel after exten sive plea negotiations. Moreover, we reject Glover’s argument that he should be able to withdraw his plea simply because he changed his mind. Accordingly, because we conclude that the district court appropriately found that Glover failed to show good cause to withdraw his plea as required by K.S.A. 2013 Supp. 22-3210(d)(1), we affirm.
Facts
Glover was one of two men charged with the murder of John C. Tolliver II, which occurred on July 17,2011. Originally, Glover was charged with second-degree reckless murder, aggravated burglary, aggravated robbery, and criminal trespass. The State later filed an amended information alleging the same charges but under a different theory of aggravated burglary. Subsequently, the State filed a second amended information charging Glover with first-degree premeditated murder while leaving the remaining charges unchanged.
The district court set the case for a jury trial to begin on October 9, 2012. After a series of continuances, however, the jury trial was eventually rescheduled for December 10, 2012. Throughout the case, Glover was represented by Steven Mank. It is undisputed that Mank is an experienced criminal defense attorney who has defended numerous felony cases and has been on the Sedgwick County felony appointment list for approximately 20 years. In fact, Glover stated that Mank is “[o]ne of the best attorneys pertaining to a murder case.”
During Mank’s representation of Glover, the two met approximately 15 or 16 times. Early in the case, the two discussed the possibility of a plea agreement. At that point in time, Glover told Mank that he was not interested in negotiating a plea. Later, after the State filed its second amended information, Mank advised Glover that he did not believe there was enough evidence for a first-degree murder conviction. Mank, however, advised Glover that because of his criminal histoiy he would risk being sentenced to more than 25 years in prison if convicted of a lesser included offense. Accordingly, it was Mank’s advice that Glover should enter into plea negotiations.
A few days before the jury trial was scheduled to begin, Glover decided that he wished to enter into a plea agreement. From that point on, a series of discussions took place between Glover, Mank, and the prosecutor as to the amount of time Glover could realistically receive in exchange for a plea. During the negotiations, Mank told the prosecutor that he believed Glover should receive less prison time tiran the other defendant charged with killing Tol-liver because he believed Glover to be less culpable. Evidently, the other defendant pled guilty in exchange for a recommendation of 184 months in prison.
Ultimately, after significant negotiations, Glover agreed to plead guilty in exchange for a recommendation of 152 months in prison. As such, Mank prepared a “Defendant’s Acknowledgement of Rights and Plea” and met with Glover to review the document on December 9, 2012. During their meeting, Mank explained to Glover the contents of the written plea agreement and informed Glover that it was his choice alone whether to go to trial or enter a plea. After considering his options, Glover chose to sign the written plea agreement.
On the day the case was scheduled to go to trial, a plea hearing was held. During the hearing, the district court conducted an extensive colloquy with Glover. At one point during the colloquy, the following exchange occurred:
“THE COURT: All right, now the lawyers have prepared some documents here, including a Plea Agreement and an Acknowledgment of Rights form. There are signatures on these documents, including what appear to be your signatures above the word defendant on both these documents. Acre those your signatures?
“THE DEFENDANT: Yes.
“THE COURT: Have you had a chance to sit down with Mr. Mank and go over these documents, have him explain them to you, and answer any questions that you might have about what’s contained in the documents?
“A. Yes.
“THE COURT: And after doing that was it your decision alone to sign both these documents?
“A. Yes.”
Glover represented to the district court that he had no questions or concerns regarding the plea agreement. When the district court reviewed the factual basis for the aggravated burglary charge, however, and asked whether the facts were true, Glover responded, “No, it is not.” Mank stated that he believed Glover was confused regarding the theories of aiding and abetting. Shortly thereafter, Glover told the prosecutor, “There wasn’t an aggravated burglary,” and the district court warned him not to speak directly to the prosecutor but to direct his comments to the bench or to his attorney. The district court then adjourned the proceedings so Glover and Mank could confer.
After conferring with his attorney, Glover decided to go forward with the plea hearing. When the hearing resumed, the district court said to Glover, “I don’t want you to admit to anything you don’t want to admit to ... so you’ve had a chance to discuss that with Mr. Mank; is that correct?” Glover responded, “Yes.” The distxict court then asked Glover, “[A]re you willing to admit that when you went into that residence you went in there with the intent to help [the codefendant]?” Again, Glover replied, “[Y]es.” The district court then read the remaining facts relating to the aggravated burglary count, and Glover indicated they were true.
At the conclusion of the plea hearing, Glover pled guilty to involuntary manslaughter, aggravated burglary, and robbery. The district court accepted Glover’s guilty pleas and set the case for sentencing. Prior to the sentencing hearing, Mank met with Glover to discuss the presentence investigation repoxt. Glover told Mank that the codefendant had been charged with mui'der in Colorado and that he wanted to withdraw his plea. Evidently, Glover believed the Colorado charge somehow proved that the codefendant was the one who actually murdered Tolliver.
On February 14, 2013, Glover filed a motion to withdraw his plea, alleging that Mank had placed undue pressure on him. Accordingly, the district court appointed new counsel to represent Glover. At a hearing on the motion held on March 15, 2013, both Glover and Mank testified. Specifically, Glover testified:
“Q. And during the end of [the meeting] did you feel that Mr. Mank had pressured you at that point into entering the plea?
“A. Yeah, because I ended up taking it.
“Q. Well, can you describe to the Court how you felt that Mr. Mank pressured you into taking the plea?
“A. I felt how he pressured me because he said this is the best that he can do.”
Later, however, Glover admitted that Mank did not actually place undue pressure on him:
“Q. Now why do you want to withdraw your plea as to undue pressure?
“A. Undue pressure, it is not really about undue pressure. I feel that I was conned into taking the plea because they kept coming down because of my criminal history. I can't change my criminal history.”
In citing State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006) and State v. Macias-Medina, 293 Kan. 833, 268 P.3d 1201 (2012), the district court found that there was “virtually no evidence to support” the withdrawal of Glover’s plea. Rather, the district court found the extensive negotiations between Glover and the State showed drat he was fully aware of his rights:
“A review of the transcript indicates to me all the rights were properly gone over with the defendant. There was a careful discussion .... This Court does not ask the defendant specifically to tell everything that occurred, but there [was a] significant colloquy between tire Court and the defendant about the situation, about the facts, particularly the facts involving when he went into the house, why he went into the house, [and] the issue of his responsibility for going into the house.”
Thus, the district court denied Glover’s motion to withdraw his plea, and it set the case for sentencing.
On May 3, 2013, Glover was sentenced to a total of 152 months in prison. The district court ordered that restitution be left open and decided within 30 days. Glover filed a notice of appeal on the same day he was sentenced. After the appeal was docketed, we issued an order to show cause why the appeal should not be dismissed pursuant to State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011). After receiving responses from the parties, we retained the appeal.
Analysis
Standard of Review
In light of a district court’s discretion to withdraw a presentence guilty plea for “good cause” pursuant to K.S.A. 2013 Supp. 22- 3210(d)(1), we review such an order under an abuse of discretion standard. State v. Freeman, 292 Kan. 24, 27-28, 253 P.3d 1 (2011). Abuse of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). The party asserting that a district court abused its discretion bears the burden of establishing the abuse. Edgar, 281 Kan. at 38.
Although Glover recognizes that abuse of discretion is the normal standard used to review cases such as this, he argues that we should instead use a de novo standard of review because his due process rights are at issue. The Kansas Supreme Court has noted, however, that the “Edgar factors do not transform the lower good cause standard of the statute’s plain language into a constitutional gauntlet.” State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010). Further, the cases Glover relies on did not employ a de novo standard. See State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990) (“Withdrawal of a plea is discretionary with the trial court and will not be reversed on appeal unless it is established that tire trial court abused its discretion in refusing to permit withdrawal of the plea.”). Thus, we continue to review the withdrawal of a plea prior to sentencing under an abuse of discretion standard.
Meaning of “Good Cause” under K.S.A. 2013 Supp. 22-3210(d)(1)
The plain language of K.S.A. 2013 Supp. 22-3210(d)(1) grants a district court the discretion to allow a defendant to withdraw his or her plea before sentencing upon a showing of “good cause.” To determine whether a defendant has established good cause, Kansas courts first look to the Edgar factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Edgar, 281 Kan. at 36. In addition, district courts may consider other relevant factors in order not to “distort the concept of good cause.” Macias-Medina, 293 Kan. at 837.
Nevertheless, Glover encourages us to abandon the Edgar and Macias-Medina factors and instead adopt the following definition of “good cause” found in an employment law case decided by the Kansas Supreme Court in 1980:
“As applied to a teacher dismissal situation, the [Massachusetts Supreme Court] held the term ‘good cause’ to include 'any ground which is put forward by the committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.’ (quoting Rinaldo v. School Committee of Revere, 294 Mass. 167, 169, 1 N.E. 2d 37 [1936]) . . . The definition of ‘good cause’ adopted in the Massachusetts case could reasonably be applied to the dismissal or nonrenewal of teachers in Kansas.” (Emphasis added.) Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980).
Based on Gillett, Glover contends that as long as the grounds for withdrawal are not “arbitrary, irrational, unreasonable, or irrelevant,” district courts should allow defendants to withdraw their pleas prior to sentencing. On its face, however, Gillett is limited to cases involving the dismissal of teachers. Moreover, the holding in Gillett was superseded by statute and is no longer applicable even in teacher dismissal or other employment law cases. See U.S.D. No. 500 v. Robinson, 262 Kan. 357, 360, 940 P.2d 1 (1997). Accordingly, we have no reason to believe that the Kansas Supreme Court would adopt the “good cause” definition found in Gillett in cases involving motions to withdraw pleas pursuant to K.S.A. 2013 Supp. 22-3210(d)(1).
At oral argument, Glover s attorney argued that defendants should be permitted to withdraw their pleas prior to sentencing simply because they have changed their minds upon reflection. Although we find this argument to be intriguing, Glover is basically asking us to rewrite the language of K.S.A. 2013 Supp. 22-3210(d)(1) by changing the “good cause” standard to a “no cause” standard; in other words, to make withdrawal of a plea automatic if it is requested before sentencing. Of course, if such a change in public policy is to be made, it should be made by the Kansas Legislature — not by this court. See State v. Cheeks, 298 Kan. 1, 11, 310 P.3d 346 (2013).
Furthermore, the United States Supreme Court has warned against the adoption of an automatic withdrawal standard after a plea has been accepted, finding:
“Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim. In fact, however, a guilty plea is no such trifle, but a ‘grave and solemn act,’ which is ‘accepted only with care and discernment.’ ” ’ ” United States v. Hyde, 520 U.S. 670, 677, 117 S. Ct. 1630, 137 L. Ed. 2d 935 (1997) (quoting Advisory Committee’s Notes on Fed. R. Crim. Proc. 32).
See Starrs v. Virginia, 287 Va. 1, 752 S.E.2d 812 (2014); United States v. Molina-Chavez, 10-CR-0187-CVE, 2011 WL 917716 (N.D. Okla. 2011), aff'd 450 Fed. Appx. 707 (10th Cir. 2011).
Like Kansas courts, federal courts do not allow defendants to automatically withdraw their pleas once the district court has accepted them. Rather, under Fed. R. Crim. Proc. 11(d) (formerly Fed. R. Crim. Proc. 32[e]), a defendant can withdraw a plea after it has been accepted by a district court only if he or she can show a “fair and just reason” for tire withdrawal. Similar to the factors considered by Kansas courts in applying the “good cause” standard, federal courts consider the following factors in applying the “fair and just reason” standard: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. [Citation omitted.]” United States v. Muhammad, 747 F.3d 1234, 1241 (10th Cir. 2014), cert. denied 134 S. Ct. 2741 (2014).
Hence, we decline Glover’s invitation to expand the definition of “good cause” in K.S.A. 2013 Supp. 22-3210(d)(1). To do otherwise might render a guilty plea temporary and a meaningless gesture. Instead, we will continue to apply tire factors set forth in Edgar and Macias-Medina to determine whether a defendant has shown “good cause” for the withdrawal of a plea.
Application of Edgar and Other Relevant Factors
In the present case, Glover conceded that his trial attorney was competent. Instead, Glover sought to withdraw his plea because he claimed his trial attorney unduly pressured him to accept a plea agreement. At the hearing on the motion to withdraw his plea, however, Glover admitted “it is not really about undue pressure. I feel that I was conned into taking the plea because they kept coming down because of my criminal history. I can’t change my criminal history.” Thus, it appears that the pressure Glover felt to enter into a plea agreement was caused by his criminal history and the sentencing guidelines — not by any coercion from his trial attorney.
Glover also argues that he should be allowed to withdraw his plea because he was unfamiliar with the legal system. But a review of the record reveals that Glover has an extensive criminal background. In addition, Glover refused to negotiate a plea during the early stages of this case and later rejected two plea offers that he received from the State. Likewise, the record shows that there were extensive negotiations between Glover and the State regarding the length of his prison sentence. As such, we do not find that Glover was unfamiliar with the legal process or that he passively accepted the plea agreement that was ultimately negotiated.
Glover also argues that his plea was not voluntarily entered because he tried to object to the aggravated burglary count during the plea colloquy but was rebuked by the judge for talking to the prosecutor. But a review of the record of the plea hearing reflects that Glover voluntarily pleaded to aggravated burglaiy. Although Glover was told to direct his remarks to the bench or to his attorney rather than the prosecutor, the district court did not rebuke him. Moreover, the ¿strict court took time to discuss the aggravated burglary charge with Glover and adjourned the proceedings so he could confer with his attorney before deciding to enter his plea.
Glover’s last argument is that his trial attorney improperly used Glover’s mother to convince him to enter into a plea agreement. But Glover never argued this point at the district court. He, therefore, cannot raise the issue on appeal. State v. Holt, 298 Kan. 469, 477, 313 P.3d 826 (2013) (A point not raised in the district court cannot be raised for the first time on appeal.). Moreover, even if he had raised the issue below, we do not find that this constitutes “good cause” to withdraw his plea. See State v. Denmark-Wagner, 292 Kan. 870, 877, 258 P.3d 960 (2011); State v. Stegnik, No. 104,072, 2013 WL 1234186, at *8 (Kan. App.) (unpublished opinion), rev. denied 297 Kan. 1255 (2013). At most, the record reflects that his trial attorney simply conveyed to Glover that his mother believed the plea would be a good deal.
Finally, we pause to note that the same judge presided over both the plea hearing and the withdrawal hearing. This is relevant in the present case because the trial judge noted that he recalled portions of the plea hearing. The Kansas Supreme Court has recognized that this is an important consideration in light of a district court’s ability to observe witnesses:
“Perhaps most impoitantly for our purposes, the same judge presided at the plea hearing and at the motion to withdraw plea hearing. At the plea hearing, the judge was able to observe [defendant] when he stated that he understood the nature of the charges against him; that he understood his rights; that he was entering a plea of his own volition; and that he was not threatened or coerced into entering the plea. Thus, when [defendant] testified at the plea withdrawal hearing that he had been misled, coerced, and forced to enter a plea, the judge was able to ascertain that such testimony ‘did not comport with what occurred at the time of plea,’ and to draw a conclusion as to which contradictoiy testimony was more credible. Likewise, the judge had the opportunity to observe the demeanor of the attorney and interpreter when they contradicted [defendant’s] characterization of tire plea discussions.” Macias-Medina, 293 Kan. at 839.
We, therefore, conclude that the district court did not abuse its discretion in denying Glover’s motion to withdraw his plea.
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Atcheson, J.:
The State has sought interlocutory review of an order of the Douglas County District Court suppressing inculpa-tory statements Defendant Jose Fernandez-Torres made to a police officer questioning him about improper physical contact he may have had with his girlfriend’s young daughter. The district court found the circumstances of the interrogation rendered the statements involuntary, including problems with the Spanish-language translation, the officer’s false representations about evidence supposedly implicating Fernandez, and the officer’s poorly translated suggestion that some sort of momentary though improper touching of the girl could be dealt with. The record evidence supports the district court’s factual findings, and we see no error in the legal determination to suppress the statements. We, therefore, affirm the district court’s order.
I. Factual Background and Procedural History
In September 2010, the Douglas County District Attorney charged Fernandez with aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7 years old at the time. The offense was then codified in K.S.A. 2010 Supp. 21-3504 and carried a life sentence with no parole eligibility for 25 years, as provided in K.S.A. 2010 Supp. 21-4643(a)(1)(C).
During the investigation of the offense, Fernandez accompanied Lawrence police officer Anthony Brixius to the law enforcement center to be questioned about his interaction with A.L.G. Brixius had been a police officer for about 7 years and then worked as a plainclothes investigator primarily assigned to juvenile sex crimes. Fernandez was 23 years old and had moved with his family from Mexico to the United States about 8 years earlier. Fernandez attended school in Mexico until he was 14 years old. He speaks Spanish and apparently reads with some limitations. He cannot read English but speaks the language conversationally. In 2010, Fernandez worked as a waiter at a Mexican restaurant.
At the suppression hearing, Brixius testified that he and Fernandez talked in English on the ride to the law enforcement center. Brixius speaks very little Spanish. Another police officer accompanied them. No one spoke in Spanish during the brief trip. Once at the law enforcement center, Fernandez was placed in an interrogation room. Brixius testified that he had concerns about Fernandez’ fluency in English and sought out a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar Marino, a bilingual probation officer, into service. Marino was born in Venezuela and grew up speaking Spanish; he came to the United States in his teens about 30 years ago and has become fluent in English. Marino has no training in real-time translation and has never been certified as a Spanish-English translator. At the suppression hearing, Marino testified that he has translated for police officers conducting interviews or interrogations “[a] handful” of times. The interrogation was videotaped.
Fernandez does not contend he was actually or functionally under arrest or physically restrained during the 2-hour interrogation. By all accounts, he voluntarily accompanied Brixius to the law enforcement center. Fernandez was not handcuffed during the car ride or at the law enforcement center. During the interrogation, Fernandez placed and completed a couple of calls on his cell phone.
After getting general background information from Fernandez in English, Brixius relied on Marino to translate as he informed Fernandez of his Miranda rights and secured a waiver of them. Although the exchange is hardly a model of clarity or sound police procedure based on the translation, the district court found a valid Miranda waiver, a point Fernandez does not dispute on appeal. The evidence fairly suggests the interrogation was not custodial, so an imperfectly rendered waiver would have no máterial legal consequences. See J.D.B. v. North Carolina, 564 U.S. 261, 269-70, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011); State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012); State v. Morton, 286 Kan. 632, 646-47, 649, 186 P.3d 785 (2008). But see State v. Bridges, 297 Kan. 989, 1010-11, 306 P.3d 244 (2013) (noting a split of case authority on whether reading of Miranda warnings amounts to a circumstance leading a reasonable person to consider police questioning custodial).
The remainder of the interrogation was conducted with Marino translating except for a few, limited exchanges.
At the suppression hearing, the State called Isabel Ferrandis-Edwards, a court certified translator, as an expert witness on the quality of Marino’s translation during Brixius’ questioning of Fernandez. Fernandez called Sara Gardner, also a court certified translator, for the same purpose. Both experts agreed that Marino sometimes translated incompletely or inaccurately the questions Brixius posed and the answers Fernandez gave. In a few instances, he asked his own questions of Fernandez.
At the start of the interrogation, Brixius questioned Fernandez generally about his relationship with A.L.G., A.L.G.’s mother, and A.L.G.’s younger half-brothers and the sort of things he did around the house and with the children. Fernandez is the natural father of the boys but not of A.L.G. Brixius then began more pointedly asking Fernandez about touching A.L.G.’s pubic area or vagina with his hand. During the bulk of the interrogation, Fernandez denied touching A.L.G. inappropriately. Fernandez told Brixius that he occasionally checked on the children while they were sleeping. He recalled recently pulling the covers back over his son. He then noticed A.L.G. was very close to the edge of her bed and seemed on the verge of falling. Fernandez said he grabbed A.L.G. and slid her back into bed. He said he could have inadvertently brushed his hand against A.L.G.’s pubic area, but he didn’t think that happened. f
Later in the interrogation, Brixius falsely told Fernandez that a doctor had found Fernandez’ skin cells on A.L.G.’s vagina. Brixius then informed Fernandez the medical examination of A.L.G. meant he had touched her for a minute or two. Brixius began insisting that he knew Fernandez had inappropriately touched A.L.G. But he said he also knew Fernandez was not a bad person and “what happened, in part, was a mistake.” Brixius then told Fernandez that if he had the intention of touching A.L.G. “just for a second . . . that’s okay and we can deal with that because you didn’t do more.” In translating that statement, Marino used the Spanish word “negociar” for “deal with.”
At the suppression hearing, both experts on translation questioned Marino’s choice in phrasing the Spanish because “negociar” conveys a sense of negotiating or doing business. Ferrandis-Ed-wards, the State’s expert, testified that in context, negociar “ [definitely is not the best choice.” Gardner, Fernandez’ expert, agreed that “negociar” commonly referred to business transactions and suggested a negotiated exchange. She, too, thought it inappropriately used and could convey the idea that Brixius would negotiate some arrangement with Fernandez if he admitted touching A.L.G. As we have said, the experts also agreed that Marino frequently failed to translate fully or entirely accurately questions and answers, inhibiting precise communication between Brixius and Fernandez.
Brixius continued to say he knew Fernandez had inappropriately touched A.L.G. and simply wanted to know why it happened. Fernandez responded he didn’t know why. That sort of refrain recurred during the later stages of the interrogation. Several times during the interrogation, Brixius assured Fernandez that because he touched A.L.G.’s vagina only once he was a good person who had a momentaiy lapse in judgment rather than a child molester. At one point, Brixius suggested that Fernandez had too much to drink as a reason. Fernandez replied: “I am confused, because that had never happened and I don’t know.” Still later in the questioning, Brixius told Fernandez that “to touch her vagina, you had to have moved your hand there on purpose.” But he quickly added, “And it’s ok because you didn’t keep on touching her.” Fernandez answered: “No, and with that, how I continued to touch her, that is why I am confused, because that had never happened.” Brixius, however, continued to disregard those denials. Brixius then asked Fernandez when he realized what he had done was wrong. Fernandez said he realized it when he brushed his teeth a little while later. Asked again if that was when he realized he had done something wrong, Fernandez told Brixius, “Yes, kind of.” But still later in the interview, Fernandez specifically denied touching A.L.G.’s vagina.
Brixius persisted in assuming Fernandez had touched A.L.G.’s pubic area and continued to press for an explanation. Toward the end of the interrogation, Brixius asked Fernandez, “Why [do] you think . . . you had a lapse in judgment and put your hand on her crotch?” Marino translated this question as, “Why do you think you had . . . that problem?” Fernandez replied, “I don’t know why, because like I told you, maybe it was because I had been drinking . . . .” Brixius later asked why, at the start of the questioning, Fernandez hadn’t admitted to touching A.L.G. Fernandez said he thought “it was an accident.” Finally, Brixius asked, “But you knew that it had been done on purpose for [a] second because you felt bad about it afterwards?” Marino translated the question as: “So you think, you know that you did it on purpose[?]” Fernandez answered, “For a secondf] yes.”
At the end of the interrogation, Brixius arrested Fernandez.
At the suppression hearing, Brixius, Marino, and the expert translators testified. Fernandez did not. The district court also considered the testimony and report of Dr. Robert Barnett, a clinical psychologist, originally admitted during an earlier hearing in the case on a different issue. Based on a clinical examination, Dr. Barnett testified at the earlier hearing that Fernandez had “mild cognitive difficulty”- that impaired his ability to fully understand and respond to questions during the psychological testing. Dr. Barnett also suspected Fernandez had a learning disability. In his report, Dr. Barnett characterized Fernandez as “functioning [intellectually] in the low average range.” The parties do not challenge the district court’s consideration of Dr. Barnett’s evidence.
After the hearing, the district court issued a detailed memorandum decision granting Fernandez’ motion and suppressing the statements he made to Brixius during the interrogation. The district court found that the full circumstances of the interrogation demonstrated that Fernandez’ inculpatory statements were not the product of his free and independent will. The State has exercised its prerogative under K.S.A. 2013 Supp. 22-3603 to take an interlocutory appeal from a district court ruling suppressing a defendant’s statements.
II. Analysis
Standard of Review and Legal Test for Voluntariness
To assess the voluntariness of a defendant’s statements to government agents, the district court considers all of the facts bearing on the interaction leading up to and resulting in those communications. The ultimate issue is whether the statements reflect the product of a free and independent will, i.e., did the individual act voluntarily? See State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 3, 4, 276 P.3d 165 (2012); State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010); State v. Shumway, 30 Kan. App. 2d 836, 841-42, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002). In short, the district court must examine the totality of the circumstances surrounding the making of the statements. Among the factors to be considered in assessing voluntariness are: “(1) the accused’s mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” Gilliland, 294 Kan. 519, Syl. ¶ 3; see Stone, 291 Kan. at 21. A government agent may induce an involuntary statement through improper threats of harm, promises of benefit, a combination of the two, or other undue influence over the suspect. Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976); State v. Brown, 286 Kan. 170, 174, 182 P.3d 1205 (2008). The State must prove the voluntariness of the defendant’s statements by a preponderance of the evidence. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).
Voluntariness ultimately must be determined holistically. So a consideration or factor favoring the State does not directly negate another one favoring the defendant and vice versa — the outcome does not depend on a tally of factors for each side. Each relevant factor, likewise, should not be assessed in isolation. The collective effect of the circumstances drives the assessment. See Randolph, 297 Kan. at 326; Stone, 291 Kan. at 25.
An appellate court reviews the district court ruling using the well-known bifurcated standard under which factual findings must be supported by substantial evidence but the controlling legal conclusion is subject to unlimited review. An appellate court may not reweigh the evidence generally or malee independent credibility determinations. Gilliland, 294 Kan. 519, Syl. ¶ 1; Stone, 291 Kan. at 21.
The Rights at Stake
A practical vice of an involuntary confession or admission is its inherent unreliability. Jackson v. Denno, 378 U.S. 368, 385-86, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (noting the “probable unreliability” of involuntary confessions). A statement given under physical or mental duress or in exchange for the promise of a substantial benefit necessarily comes with a questionable provenance. See Dickerson v. United States, 530 U.S. 428, 432-33, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). If the statement is a criminal defendant’s' own and the pressure brought to bear by government agents is sufficient to show involuntariness, the circumstances contravene the individual’s due process rights and the protection against self-incrimination guaranteed through the Fifth and Fourteenth Amendments to the United States Constitution. Kansas v. Ventris, 556 U.S. 586, 590, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009); Dickerson, 530 U.S. at 433; State v. Schultz, 289 Kan. 334, 342-43, 212 P.3d 150 (2009). As a remedy, courts prohibit the government from using the statement against the defendant in any criminal prosecution. Dickerson, 530 U.S. at 433-34; Stone, 291 Kan. at 32-33; Morton, 286 Kan. at 649.
Because of those constitutional considerations, a court must determine the voluntariness of a defendant’s statement without regard to its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 543-44, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); United States v. Preston, 751 F.3d 1008, 1018 (9th Cir. 2014) (en banc); Parker v. Allen, 565 F.3d 1258, 1280 (11th Cir. 2009). The Framers of the United States Constitution intended due process rights and protections against self-incrimination to prohibit inquisitorial judicial proceedings in which defendants could be compelled to speak against their own interests. Preston, 751 F.3d at 1015. Inquisitions historically relied on physical torture or impressed punishment on the accused for refusing to speak — procedures the Framers considered fundamentally unfair. See Michigan v. Tucker, 417 U.S. 433, 440, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974); Malloy v. Hogan, 378 U.S. 1, 7-8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Rogers, 365 U.S. at 540-41; Preston, 751 F.3d at 1015.
In addition to the constitutional provisions bearing on the use of a defendant’s confession to government agents, the district court relied on the hearsay exception in K.S.A. 2013 Supp. 60-460(f) to bar admission of Fernandez’ statements. Under the statute, an out-of-court statement of the accused offered by the government in a criminal prosecution will be treated as inadmissible hearsay unless the circumstances show tire statement to have been knowingly and understanding^ made in the absence of threats or coercion that would render it involuntary and in the absence of threats or promises by a public official that would likely induce a false admission. K.S.A. 2013 Supp. 60-460(f). In most cases, a statement found to be constitutionally involuntary would also be excluded under K.S.A. 2013 Supp. 60-460(f). But in at least a couple of respects, K.S.A. 2013 Supp. 60-460(1) applies more broadly than the constitutional protections. Under K.S.A. 2013 Supp. 60-460(f)(2)(B), a court may exclude a statement as hearsay if threats or promises from a public official related to the charged offense wex-e “likely to cause tire accused to make such a statement falsely.” The apparent falsity of a statement is a relevant consideration favoiing statutoxy exclusion. The district court relied on that subsection. In other situations, K.S.A. 2013 Supp. 60-460(f) excludes not only statements a criminal defendant has given to government agents but those made to piivate individuals, as well.
Assessing Voluntariness in This Case
In its wiitten decision, the district court carefully addi-essed each of the six factors that have been outlined in the caselaw and looked at the totality of the circumstances, particularly as those circumstances bore on the enumerated factors. The district court’s factual detenninations have support in the record evidence. We review those factors in assessing tire district court’s legal conclusion to suppi'ess the statements Fernandez made to Brixius during the interrogation.
The factor bearing on a defendant’s mental condition primarily looks at something that would impair the individual’s ability to understand and respond to a law enforcement officer’s questions. A diagnosable and uncontrolled mental illness, such as active schizophrenia or another condition causing detachment from reality, would fall in that category. Less dramatic and more transient circumstances could impact a defendant’s mental condition — extreme intoxication or fatigue would be examples. Here, the district court found no particular indicators, that Fernandez’ mental condition contaminated the interrogation. As the district court pointed out, Fernandez appeared comparatively relaxed during the interrogation, and he made no complaints about being tired, uncomfortable, or otherwise in distress.
The district court similarly found nothing in the physical attributes of the interrogation — the surroundings and its duration — to be coercive. We put to one side Brixius’ interrogation technique for consideration as part of the fairness of the law enforcement officers conducting the questioning, as did the district court. The various factors, however, are not wholly exclusive of each other. They tend to overlap, thus underscoring the appropriateness of a collective review of those factors and any other relevant circumstances.
In this case, as we have noted, Fernandez was neither told he was under arrest nor treated as an arrestee during the interrogation, with the exception of the reading of Miranda warnings. He was not handcuffed or restrained during the trip to the law enforcement center or during the questioning. During the interrogation, neither Brixius nor Marino raised his voice to Fernandez or engaged in physically intimidating conduct. The questioning was comparatively brief at about 2 hours, especially considering the translation of questions and answers necessarily extended the length of the examination. Fernandez did not ask for a break in the interrogation to use the restroom or for some other reason. The district court found nothing coercive about those aspects of the interrogation.
A closely related factor considers the defendant’s perceived ability to communicate with the outside world. Interrogation rooms, by design, tend to be cloistered, thereby imparting a sense of isolation that itself can be coercive. See Berkemer v. McCarty, 468 U.S. 420, 437-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (recognizing that a public traffic stop typically lacks the coercive atmosphere of a station house detention); Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 516-18, 242 P.3d 1179 (2010) (citing Berkemer with favor). Commonly, courts consider whether the individual was free to leave or, more precisely, understood that he or she could leave. Schultz, 289 Kan. at 341 (whether interrogation custodial); State v. Nguyen, No. 96,430, 2008 WL 360635, at *6 (Kan. 2008) (unpublished opinion). That didn’t come up in this case, since Fernandez didn’t ask or attempt to leave. But Fernandez made a couple of cell phone calls while he was at the law enforcement center. The district court found that tended to dispel any notion that Fernandez would have felt cut off or intimidated by the environment.
In weighing Fernandez’ age, intellect, and background, the district court relied, in part, on the'dinical assessment of Dr. Barnett. Dr. Barnett’s expert opinion that Fernandez functioned intellec tually in the “low average” range and likely had some form of learning disability was unrebutted. Dr. Barnett also testified Fernandez had difficulty readily understanding and responding to questions posed to him. Again, that clinical observation went unchallenged in the sense the State offered no countering expert. The intellectual limitations Dr. Barnett suggested at least square with Fernandez’ abbreviated education and his partial literacy, especially in English. The district court found Fernandez’ intellect played a part in rendering his statements involuntaiy.
Although Fernandez did not overtly display difficulty in understanding Brixius’ examination or give facially unresponsive answers indicating a lack of comprehension, the district court had substantial evidence to support that finding of fact. The State counters that Brixius could not have deliberately exploited any hidden intellectual deficiency Fernandez might have had. But that bears more on officer fairness, not the extent to which a defendant’s intellectual capacity actually affected the voluntariness of any incriminating statements.
The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez’ fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.
Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English. See State v. Rodarte, No. 102,132, 2011 WL 1814709, at *2 (Kan. App. 2011) (unpublished opinion). Illustrating the seamlessness of tire generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish — Fernandez’ primary language, although Fernandez understands some spoken English.
To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court’s expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.
The district court was particularly troubled by Marino’s use of “negociar” in conveying Brixius’ assertion that “we can deal with” the situation if Fernandez had touched A.L.G. inappropriately for just a second. Both experts considered the translation to be misleading and suggestive of an accommodation in which Brixius could handle or negotiate any offense if Fernandez admitted to briefly touching A.L.G.’s pubic area or vagina. As translated for Fernandez, the statement might be construed as a promise of lenient treatment or an outright deal, thereby affecting the truthfulness of any inculpatory admissions on the theory a suspect might falsely confess if he or she understood no charges or only minor charges would result. See State v. Brown, 285 Kan. 261, 276-77, 173 P.3d 612 (2007). The State contends the maladroit “negociar” was one word — a blip — in an extended interrogation and couldn’t have induced Fernandez’ admissions.
The emphasis Marino imparted with his use of “negociar” may not have been what Brixius specifically wanted or intended. But the deviation was one of degree given Brixius’ interrogation technique that combined false representations about supposedly incriminating evidence with suggestions that inaccurately tended to minimize the legal consequences of some unlawful behavior. The result of those techniques over the course of the interrogation combined with communications issues resulting from subpar translation and Fernandez’ limited intellectual capacity caused the district court to find the resulting statements to be involuntary and, thus, constitutionally suspect. Fernandez’ limited fluency in English ties into the fairness of the interrogation. So we turn to that factor.
In the face of Fernandez’ denials that he inappropriately touched A.L.G. and his limited admission that he might have ac-cidently brushed her pubic area in trying to get her back into bed, Brixius falsely stated skin cell evidence conclusively proved otherwise. There was no such evidence; Brixius, however, insisted the phantom scientific evidence meant Fernandez intentionally touched A.L.G.’s vagina. Brixius then repeatedly challenged Fernandez to offer some explanation for that conduct. Brixius suggested Fernandez wasn’t a bad person and merely had a momentary lapse in judgment, perhaps because he was upset or had drunk too much or for some other reason, in contrast to being a degenerate regularly preying on children for sexual gratification. Brixius then told Fernandez if he had touched A.L.G. for a second, they could “deal with that” — the representation that Marino translated to “negociar.” Later in the interrogation, Brixius again told Fernandez that it was “okay” because he didn’t keep on touching A.L.G. Those representations falsely minimized the legal consequences of the action — brief, intentional physical contact with A.L.G.’s genitals actually would legally support a charge of aggravated indecent liberties with a child and a life sentence upon conviction.
Brixius’ interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.’s vagina and that if he had done so only for a second his actions were “okay” and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to tire suggestion would seem to cany a material benefit, though quite the reverse was true. An unwary or pliable subject — Fernandez, based on the district court’s findings, fit that bill — could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.
Although Marino poorly translated some of the specific questions and answers and occasionally injected himself into the exchange between Brixius and Fernandez, his actions did not materially blunt the overall interrogation techniques. The key components of Brixius’ effort to enhance the inculpatory evidence and to minimize the consequences of an admission to certain conduct came through. Marino actually upped the impact of that effort with his maladroit translation suggesting Brixius could work out a deal with Fernandez.
In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez’ vulnerability to be something less than freely given. The State has failed to show they were the product of an independent will rather than of the false evidence and phony inducement implied by the interrogator. A statement rendered under those circumstances must be treated as constitutionally infirm and necessarily involuntary. Accordingly, the district court reached the right legal conclusion in excluding the interrogation of Fernandez as evidence against him in this case. The interrogation violated Fernandez’ Fifth and Fourteenth Amendment rights.
We also agree with the district court that Fernandez’ statements were inadmissible hearsay under K.S.A. 2013 Supp. 60-460(f)(2)(B). Based on the evidence at the suppression hearing, the district court could fairly conclude the inculpatory statements Fernandez made to Brixius were likely false. The State offered no evidence to the contrary at the hearing. The translation using “ne-gociar” supports the district court’s finding that Fernandez reasonably may have believed Brixius had the authority to act on any criminal charges in exchange for an admission of some degree of culpability, the other statutory requirement in K.S.A. 2013 Supp. 60-460(f)(2)(B).
Analogous Case Authority — Old and New
The conclusion we reach is consistent with the analysis the Kansas Supreme Court applied in Stone to find a confession involun tary. 291 Kan. at 32-33. Although the facts in Stone and here differ in some respects, as they commonly do across cases, the court emphasized the importance of assessing all aspects of a police interrogation collectively in making a voluntariness determination. 291 Kan. at 29. Both cases involved the investigation and prosecution of sex offenses against young children. In that case, as here, the detective conducting the interrogation lied about having biological evidence establishing that Stone committed the offense. The detective questioning Stone combined those representations with a “tactic . . . minimizing the seriousness of the accusations” and suggesting that “only confessing could keep him out of jail or affect the length of his [sentence].” 291 Kan. at 29-30. The court concluded the overall impact of that method of interrogation “made the circumstances unduly coercive.” 291 Kan. at 29.
In each case, the interrogation lasted roughly 2 hours. At the beginning of the interrogation, Stone told the detective he was quite tired and had a sore throat. During the questioning, Stone repeatedly mentioned being tired, something the court considered significant. 291 Kan. at 32. Here, although Fernandez appeared rested, the language barrier and his intellectual capacity affected die interrogation.
The court pointed out that Stone consistendy denied any wrongdoing during the bulk of the interrogation and then eventually admitted to the minimized version of the offense the detective suggested. 291 Kan. at 29. The interrogation of Fernandez followed a similar pattern. Fernandez repeatedly said he did not touch A.L.G.’s vagina or otherwise act inappropriately. Confronted with Brixius’ false representation that physical evidence disproved his denial and Brixius’ suggestion that touching A.L.G. for only a second would be okay or could be dealt with, Fernandez admitted to that scenario. The analysis in Stone supports suppression in this case.
The State contends Fernandez confessed to touching A.L.G.’s pubic area, if only accidently, even before Brixius brought up the fictional skin cell evidence, meaning the interrogation techniques didn’t make any difference. That may be too generous a reading of what Fernandez told Brixius during the first part of the inter rogation. As we have outlined, Fernandez denied he inappropriately touched A.L.G. But many of the questions and answers, as translated, focused on some kind of inadvertent touching. Fernandez conceded the hypothetical possibility he might have accidently brushed against A.L.G.’s pubic area and explained how that could have happened as he moved the child from the edge of the bed. In context, however, Fernandez’ responses during that part of the questioning don’t include an obvious admission that he actually touched A.L.G.’s pubic area at all. Even after Brixius had referred to the purported skin cell evidence, Fernandez continued to deny intentionally touching A.L.G.’s pubic area.
The State’s argument remains unpersuasive on its own terms, accepting the premise that Fernandez admitted to an inadvertent or accidental touching of A.L.G.’s vagina. The State says the difference between an admitted inadvertent touching and an intentional touching isn’t all that great. We disagree. During that stage of the interrogation, Brixius had not yet injected the idea that a brief, intentional touching was “okay” or could be dealt with—the technique of minimizing criminal consequences. So early in the interrogation, an accidental touching would have seemed excusable both morally and legally, while an intentional touching, entailing a degree of sexual gratification on Fernandez’ part, would not. Only later in the interrogation did Brixius reframe the circumstances with the false representation of scientific evidence proving an intentional touching and the deceptive minimalization of the legal implications of some intentional touching. As part of a calculated strategy to coax Fernandez into admitting a serious crime, those very tactics diminished the apparent legal differences between an accidental touching and a brief, intentional touching. As the party bearing the burden of proof on the voluntariness of the admissions, the State cannot show that those techniques made no difference in this case.
More broadly, the State’s premise is counterintuitive. The legal and moral gulf between inadvertent or negligent conduct, on the one hand, and intentional conduct, on tire other, is hardly a mystery. For example, most people would say absentmindedly failing to pay a bill is different from paying it with a check written on an empty account. And most people would recognize that accidentally hitting a pedestrian with a car is far less culpable than intentionally running someone down in a crosswalk. The difference between accidental and intentional here is similarly pronounced.
Judicial concern about the coercive impact of interrogation techniques of tire sort used in Stone and here is neither isolated nor new. Nearly 50 years ago, the United States Supreme Court warned of the dangers lurking in government agents’ use of psychologically debilitating interrogation techniques. Miranda v. Arizona, 384 U.S. 436, 448-49, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Those methods replaced physical brutality with a more insidious manipulation designed to extract inculpatory statements through mental coercion rather than the tírreat or infliction of bodily pain. But they may be no less repugnant to a suspect’s constitutional rights. 384 U.S. at 448 (“’[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ ”) (quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 [1960]).
The Miranda Court went on to describe a relatively new interrogation strategy being taught to law enforcement officers that largely parallels how Brixius questioned Fernandez. 384 U.S. at 449-50 (outlining technique developed and taught by Fred E. In-bau and John E. Reid). The officer first should isolate the suspect in unfamiliar surroundings, such as a police interrogation room. Then, the guilt of the suspect “is to be posited as a fact.” The questioner should solicit reasons why the suspect might have committed the offense, such as a bad family life or having drunk too much. The technique then instructs the officer “to minimize the moral seriousness of the offense.” The intended effect of the technique is “to put the subject in a psychological state where his stoiy is but an elaboration of what the police purport to know already— that he is guilty.” To complete the strategy, the questioner must dismiss and discourage any contrary explanation, i.e., innocence. 384 U.S. at 450. This technique, often referred to as the Reid method, remains widely used. See United States v. Preston, 751 F.3d 1008, 1023 n.19 (9th Cir. 2014) (en banc); Feld, Behind Closed Doors: What Really Happens When Cops Question Kids, 23 Cornell J.L. & Pub. Pol'y 395, 412-13 (Winter 2013) (describing the Reid technique as “die leading training program in the United States” and as “underlaying] most contemporaiy interrogation practice”).
Interrogation techniques of that sort may induce individuals to give necessarily false confessions to crimes they never committed, especially if they are guileless or otherwise particularly susceptible to external influences. Juveniles and the intellectually impaired, as groups, are vulnerable, since they tend to be trusting of authority figures and lack sophistication and discernment. J.D.B. v. North Carolina, 564 U.S. 261, 273-74, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011); Preston, 751 F.3d at 1022; see Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1064 & n.69 (2010); Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 30 (2010). The susceptibility to psychologically manipulative interrogation techniques may be more pronounced in individuals unfamiliar with the criminal justice process. Although innocent, an individual may attribute the purported evidence against him or her to a horrible and likely uncorrectable mistake rather than to the interrogator s deception. And the interrogator’s categorical dismissal of each protest of innocence can cement that fear. The individual then considers the minimalized admission of guilt the interrogator has offered to be the best way out of an exceptionally bad predicament. See Kassin, 34 Law & Hum. Behav. at 14, 16-19; Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L.J. 791, 817-19 (2006); Ofshe & Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U.L. Rev. 979, 985-86 (1997).
In Commonwealth v. DiGiambattista, 442 Mass. 423, 428, 439-40, 813 N.E.2d 516 (2004), the Massachusetts Supreme Judicial Court held that the combined effects of law enforcement officers’ false representation that a security video placed DiGiambattista at the scene of a late night arson and of their suggestions that the offense was “understandable” and called for counseling rendered his confession involuntary. The court recognized either technique standing alone typically would not undermine a confession but together they easily could. 442 Mass. at 433, 438-39. Even so, the court found the individual tactics troubling. As the court observed: “If a suspect is told that he appears on a surveillance tape, or that his fingerprints or DNA have been found, even an innocent person would perceive that he or she is in grave danger of wrongful prosecution and erroneous conviction.” 442 Mass. at 434-35. And “such ‘minimization’ of the crime by an interrogator implies leniency if the suspect will adopt that minimized version of the crime, and that leniency can thereby be implicitly offered even if it is not expressly stated as a quid pro quo for the confession.” 442 Mass. at 436. Although Massachusetts requires the State to prove vol-untariness beyond a reasonable doubt, a higher standard than in Kansas, the corrosive effects of the interrogation techniques are the same. The Utah Supreme Court voiced similar concerns about those tactics resulting in overbearing and impermissibly coercive police questioning of suspects. State v. Rettenberger, 984 P.2d 1009, 1015-18 (Utah 1999). In Rettenberger, decided on a preponderance of the evidence standard, the court found a confession inadmissible when law enforcement officers used those psychological ploys — false claims of incriminating evidence and deliberate minimalization of the legal consequences of admitting incriminating conduct — with an especially vulnerable suspect over an extended time. 984 P.2d at 1021. As reflected in Stone, the Kansas courts should similarly assess the overall impact of those techniques in light of the suspect’s personal characteristics in determining vol-untariness.
Earlier this year, two other appellate courts held that inculpatory statements vulnerable suspects made to law enforcement officers should have been suppressed because interrogation techniques combining false representations about incriminating evidence with minimalization of any legal consequences for admitting circumstances amounting to criminal offenses rendered them involuntary. Preston, 751 F.3d at 1027-28; People v. Thomas, 22 N.Y.3d 629, 646, 985 N.Y.S.2d 193, 8 N.E.3d 308 (2014). As with Stone, their reasoning is illustrative of the potential constitutional perils associated with interrogation techniques comparable to those deployed in this case.
In Thomas, the New York Court of Appeals found officers im-permissibly induced Thomas to implicate himself in the death of his 4-month-old son. During a 9V2-hour interrogation conducted in two sessions, a detective told Thomas, among other things, either he or his wife was responsible for the child’s head injuries, so they would have to bring her in for questioning if he didn’t confess. But the detective also said the injuries appeared to be accidental and Thomas could go home after explaining what happened. At the end of the first segment of the interrogation, Thomas essentially agreed to take the fall for his wife because he believed she had done nothing to harm the child. Thomas continued to say he had not hurt the baby either. At that point, Thomas was sufficiently distraught that he was involuntarily committed to a psychiatric hospital for observation for 15 hours between the sessions.
In the second session, detectives told Thomas they needed to know how he hurt his son so physicians could properly treat the baby. The detectives, however, already had been informed the child could not recover. After Thomas offered that he had dropped the child onto his bed days earlier, the detectives insisted that version didn’t match what the doctors said happened because the injury required significant force. The detectives told Thomas he was lying. And eventually at their insistence, he “demonstrate[dj” how he had handled his son by forcibly throwing a clipboard to the floor of the interrogation room — a demonstration captured on video. 22 N.Y.3d at 640. Throughout the interrogation, the detectives repeatedly assured Thomas that the child’s injuries were accidental, suggesting the absence of any significant criminal liability.
After pointing out that not all police deception renders a suspect’s inculpatory statements involuntaiy and the determination rests on a case-by-case analysis dependent on the particular psychological pressures brought to bear during the interrogation and the suspect’s vulnerability, the Court of Appeals found the tactics applied to Thomas to be impermissibly overbearing. 22 N.Y.3d at 642. That coercion deprived Thomas of his right against self-incrimination. 22 N.Y.3d at 642. The court found the deceptive tactics overcame Thomas’ free will, rendering the confession constitutionally infirm regardless of its truth or falsity. 22 N.Y.3d at 644-45. Moreover, however, the circumstances also raised a veiy real possibility the confession might be false, a statutory ground supporting exclusion under New York law similar to K.S.A. 2013 Supp. 60-460(f)(2)(B). 22 N.Y.3d at 646.
In Preston, the Ninth Circuit emphasized many of the same considerations. The court underscored the importance of assessing “ ‘both the characteristics of the accused and the details of the interrogation’ ” in evaluating the totality of the circumstances. 751 F.3d at 1016 (quoting Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 147 L. Ed. 2d 405 [2000]). In that case, two law enforcement agents questioned Preston, an 18-year-old, about the alleged sexual molestation of a boy who lived next door to him in the Navajo Nation in Arizona. Preston had an IQ of 65 and was considered intellectually disabled — something that was obvious to the agents as they interviewed him. The questioning was noncustodial and lasted about 40 minutes.
The agents employed Reid-style interrogation techniques by refusing to acknowledge Preston’s denial of wrongdoing, by falsely stating that numerous witnesses put him in the company of the boy about the time the alleged assault took place, and by suggesting if this happened only once that would show that Preston wasn’t a “monster” who “ prey[s] on little kids,’ ” so they “could move on.’ ” They also told Preston they would be “ ‘cool’ ” if he admitted “ ‘something just a little bit happened.’ ” 751 F.3d at 1013. One of the officers later testified that they intended to minimize the consequences of a confession. 751 F.3d at 1013.
Preston continued to deny the assault but often answered questions with what the court characterized as confused and equivocal responses. The agents then asked Preston a series of questions about how or why he assaulted the boy, assuming as a given that the assault actually took place. Each question contained two options both of which were legally incriminating but one of which was plainly morally more reprehensible. For example, they asked: “ *[I]s it something .. . where you forced the issue or is it something that he wanted?’ ” In response, Preston always agreed he acted in the less odious way. 751 F.3d at 1014. Based on the tenor of the interrogation and expert testimony introduced at the suppression hearing, the court concluded that because of his limited intellect, Preston likely failed to appreciate those questions logically included an implicit third choice — neither. 751 F.3d at 1024.
More broadly, the court pointed out the potentially deleterious impact of those sorts of interrogation techniques, including overstating evidence and subtle or implicit promises that a statement to limited or qualified conduct would have only marginal legal consequences or none at all. 751 F.3d at 1026-27. The court, in turn, found that Preston’s pronounced intellectual disability substantially intensified that danger and compelled a determination of involuntariness. 751 F.3d at 1027-28.
While none of the cases we have discussed dictates the outcome here because each of them has particular facts different from what happened between Brixius and Feftlandez and only Stone is con trolling authority, they are all of a type. They show how the interrogation techniques Brixius applied to Fernandez have the potential to undermine free will through psychological ploys crafted to induce inculpatory statements with what amount to undue influences on some suspects in some circumstances.
Final Analysis
Here, the State argues for reversing the district court’s ruling by analyzing each problematic aspect of the interrogation individually and suggesting none of them caused any material prejudice. But the Kansas Supreme Court has specifically rejected a divide-and-conquer approach to assessing the involuntariness of a confession. State v. Stone, 291 Kan. 13, 29, 237 P.3d 1229 (2010). As we have already said, the circumstances surrounding a confession must be analyzed collectively. State v. Randolph, 297 Kan. 320, 329, 334, 301 P.3d 300 (2013) (acknowledging Stone and reviewing totality of circumstances bearing on defendant’s confession to find it voluntary). So while a specific component of an interrogation viewed in isolation might not render a suspect’s statements involuntary, the overall impact of multiple potentially coercive techniques could. 297 Kan. at 334. The Stone court made that precise point: Any one of the coercive aspects of the interrogation might not have led to the conclusion that Stone’s statements were involuntary, but a review of all of them collectively required that result. 291 Kan. at 32-33.
This case fits the Stone model. The interrogation of Fernandez was tainted by several significant forms of coercion and overreaching. Any one of them alone might not have rendered Fernandez’ statements involuntary and inadmissible, as the State argues. But that is not the correct way of looking at the issue of voluntariness. When we review the overall character of the interrogation, we arrive at the same legal conclusion as the district court. The manner of the interrogation produced statements from Fernandez that owed more to Brixius’ false representations of evidence and his concerted efforts to minimize the consequences of the admissions he sought than to an exercise of a free, uncoerced will. The communication gap resulting from the poor translation and Fernandez’ below average intellect only enhanced the pernicious effects of those tactics. Accordingly, the district court properly granted the motion to suppress on the grounds Brixius’ interrogation of Fernandez produced involuntary statements inadmissible as evidence in this case.
Affirmed.
The interrogation lasted about 2 hours and contains considerably more detail tiran we have recounted here. We have relied, in part, on a translation and transcription of the interrogation that Ferrandis-Edwards reviewed and edited. The district court admitted the document as an exhibit at the suppression hearing. The 64-page document includes the translations Marino made during the interrogation and what Ferrandis-Edwards considered to be appropriate translations of what was actually said. Unless we have indicated otherwise, we have quoted the English translations of what Marino said to Fernandez in Spanish and the English translations Marino attributed to Fernandez.
The court addressed Thomas’ confession on appeal from his murder conviction. The trial court had ruled the statement admissible. The Court of Appeals reversed tire conviction based on the erroneous admission of the confession and remanded for a new trial. Under New York law, tire State had the burden to show beyond a reasonable doubt that Thomas’ statements to law enforcement officers were voluntary, 22 N.Y.3d at 641, a higher standard than Kansas requires. As with tire DiGiambattista decision, the differing burden does not, however, diminish the reasoning of the New York Court of Appeals in finding the confession involuntary because of dre interrogation tactics. Thomas was acquitted in a retrial in June 2014. At trial, he called medical experts who testified that the fatal swelling of his son’s brain was the result of infection rather than physical trauma, contradicting tire State’s medical witnesses. See “Scenes of a Crime,” MSNBC, June 25, 2014, www.msnbc.com/documentaries/scenes-crime-subject-adrian-tiromas-found-not-guilty-retrial (accessed July 27,2014). (A copy of tire MSNBC article has been placed in the appellate court file.) | [
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Malone, C.J.:
Jessika Gooding appeals following her conviction of one count of voluntary manslaughter. Gooding claims; (1) there was insufficient evidence of a sudden quarrel to convict her of voluntary manslaughter; (2) the district court erred in instructing the jury on the definition of “knowingly”; (3) the district court erred in failing to consider her ability to pay the Board of Indigent Defense Services (BIDS) application fee; and (4) the district court violated her constitutional rights when it imposed an increased sentence based upon her prior criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt.
We agree with Gooding drat under the facts of this case, there was insufficient evidence of a sudden quarrel to support her conviction of voluntary manslaughter. We also agree with Gooding that without sufficient evidence of a sudden quarrel between her and the victim, there is no legal basis to uphold her voluntary manslaughter conviction even if the evidence may have been sufficient to support a conviction of intentional second-degree murder. Thus, we reverse the district court’s judgment and remand with directions to discharge Gooding.
Factual and Procedural Background
On the morning of January 7, 2012, Gooding was preparing to visit several rental properties with her boyfriend, Christopher Mills. Gooding had arranged to meet with the landlord of one of those properties that morning — the earlier the better. She and Mills had spent the night at the home of Gooding’s mother, located five or six houses north of the intersection of Santa Fe and Kinkaid Street in Wichita. Gooding was ready to go before Mills. She went outside to start her car, which was parked on Santa Fe in front of the house. As Gooding sat in the car, she saw Mills emerge from the house wearing a tank top. Concerned about the “chilly” temperature and Mills looking presentable for the meeting with the landlord, Gooding told him to go back inside the house and put a sweater on if he was going to accompany her to the rental property.
Mills was in a “grumpy” mood, and when he turned and reentered the house, he shut the screen door and front door. Good-ing interpreted this as a sign that Mills was not going to come with her; she figured he was going back to bed. Gooding began driving toward the intersection of Santa Fe and Kinkaid Street, where she stopped at a stop sign. While stopped at the intersection, Gooding heard Mills yelling at her to wait. Gooding later testified that Mills was not being kind or reasonable.
Mills approached Gooding’s car. He was standing close to the passenger’s side of the vehicle “right on the curb area,” looking in the window and gesturing with his hands. Gooding testified that she, too, was gesturing with her right hand and beckoning Mills to “come on” and get in the car. As this was happening, Gooding noticed a man in an SUV drive by. She testified that Mills was “cussing [her] out,” acting belligerently, and waving his arms. Gooding said she just wanted him to calm down so they could go.
The parties dispute what happened next. Gooding testified that Mills was “hyped up” and upset that she had left him at her mother’s house. He was walking back and forth between Gooding’s car and the grassy easement next to the curb. Gooding decided that she would just “get out of there” because it was obvious to her that Mills was mad and did not intend to go with her. Gooding turned the comer and started driving west on Kinkaid Street. Mills initially continued to run back and forth between Gooding’s car and die easement, but then he started walking away — “land of cooling down.”
At this point, Gooding said that she pulled up a little behind Mills and again told him to come on and get in the car. Gooding was in the driver’s seat with her left hand on the steering wheel and her right hand extended out toward Mills. She was leaning toward the passenger’s side window in order to see Mills’ face. Gooding testified: “When I was sitting like this and I was leaning in, my whole body shifted towards [Mills] and my foot accidentally pressed on the accelerator and my left hand went towards [Mills].” Gooding testified that she accidently hit Mills with the car.
The State provided a different account, based on the eyewitness testimony of D’Andre Thomas. Thomas was the driver of the SUV that drove eastward on Kinkaid Street past Gooding and Mills while Gooding’s car was stopped at the intersection of Santa Fe and Kinkaid Street. As Thomas approached the intersection, he saw a man standing outside of a car on the grass waving both of his hands. Thomas testified that the man “[hooked like he was arguing with somebody inside the car.”
As Thomas drove closer, he saw that there was a woman inside the car. The man was standing away from the car, but he was talking to the woman dirough the passenger’s side window. As Thomas approached, he saw the woman “swing the car” like she was trying to hit the man on the grass. The car “made a quick swing as if it was going to jump the curb right there where he was.” However, the car did not jump the curb at that point. When the car made the jerldng motion, the man jumped back further onto the grass.
Thomas continued to watch through his rearview mirror as he drove east on Kinkaid Street. The car at the intersection stopped for a moment, and the man turned around and started walking west on Kinkaid Street. The car turned west onto Kinkaid Street and started following the man as he walked on the grass. Thomas said the man never stepped into the street and he did not appear to be communicating with the woman in the car. Thomas testified that the man “was just walking like he was trying to get away from [the car].” According to Thomas, the car slowly followed the man before it sped up, jumped the curb, and hit him. The man flipped into the air and onto the car before rolling off into the grass. Thomas testified that he never saw any brake lights on the car.
The parties generally agree on the events that took place immediately after Mills was struck. When Thomas saw the car strike Mills, he shifted his vehicle into reverse and drove back toward the scene. Thomas saw Gooding get out of her car, run around to where Mills was lying in the grass, and start shaking him as if she were trying to see if he was okay. Gooding ran up to Thomas’ car and started yelling, “I need a phone, I need to use the phone, we were fighting, we were arguing.” Thomas ran to check on Mills. He had blood on his face and there was blood running out of his ears. Eventually, Gooding retrieved her own phone from her car and called 911. Thomas took over the 911 call because Gooding was hysterical and incoherent.
Officer Daniel Brown of the Wichita Police Department was the first law enforcement officer to arrive at the scene. Thomas con tacted Brown and identified himself as the man who had called 911. Thomas told Brown that he had seen Gooding and Mills arguing and that Gooding ran over Mills. Officer Michael O’Brien also arrived at the scene. O’Brien testified that Gooding was distraught and crying. O’Brien instructed Gooding to sit in the back of his patrol car while he waited for a female officer to arrive to conduct a search of her person. As Gooding sat in the car, she asked O’Brien whether Mills was going to be okay. She told O’Brien that Mills “jumped out in front of me.”
Emergency responders transported Mills to the hospital. Trauma physicians determined that Mills was unresponsive and called Dr. John Dickerson, the on-call neurosurgeon. Dickerson testified that Mills had a traumatic brain injury, as well as other abrasions, lacerations, and bruising on his extremities. Upon his initial examination of Mills’ head injury, Dickerson noted a lot of swelling. A CT scan revealed a depressed skull fracture that wrapped all the way around Mills’ head, centering on the right side.
Dickerson performed a decompressive craniectomy in response to severe swelling in Mills’ brain. However, Mills’ medical condition never improved. Based on the treatment administered and his own observations, Dickerson opined that Mills had sustained an unrecoverable injuiy. Mills died 11 days later on January 18, 2012. The coroner determined that Mills’ cause of death was blunt force injuries of the head.
Detective Blake Mumma of the Wichita Police Department interviewed Gooding on January 7, 2012. After being advised of her Miranda rights, Gooding agreed to speak with Mumma. When asked about the events leading up to her vehicle striking Mills, Gooding’s account started much the same as her later trial testimony. Gooding described her verbal exchange with Mills as an argument. However, her statement to Mumma differed from her trial testimony beginning at about the time she turned her car onto Kinkaid Street. Gooding told Mumma that she turned onto Kinkaid Street and that Mills followed her on foot. She then told Mumma that Mills dashed out in front of her car, causing her to make an abrupt stop. She stated that it appeared like Mills was going to strike the windshield with his fist. Gooding told Mumma that she wanted to get away from the situation, so she started to accelerate her car. At that .point, Mills again jumped in front of the car and she could not avoid hitting him.
On January 11,2012, the State charged Gooding with attempted murder in the first degree, a severity level 1 person felony. After Mills’ death, the State filed an amended complaint charging Good-ing with murder in the first degree, an off-grid person felony. After a preliminary hearing, the district court bound over Gooding for trial.
Gooding’s 4-day jury trial began on February 12,2013. Thomas, Brown, O’Brien, Mumma, and Dickerson testified for the State, as well as other law enforcement personnel involved in the criminal investigation. Gooding testified on her own behalf. As previously discussed, her trial testimony differed from her initial statement to Mumma. The district court instructed the juiy on premeditated first-degree murder, intentional second-degree murder, and voluntary manslaughter. Gooding asked for a jury instruction on involuntary manslaughter, but the district court declined her request. The jury found Gooding guilty of voluntary manslaughter.
On March 26, 2013, the district court sentenced Gooding to 71 months’ imprisonment. The district court waived the BIDS attorney fees but ordered Gooding to pay the $100 application fee. Gooding timely appealed the district court’s judgment.
Sufficiency of the Evidence
Gooding first argues that there was insufficient evidence to convict her of voluntary manslaughter because the State failed to prove that she had engaged in a sudden quarrel with Mills. Gooding acknowledges that she argued with Mills before she hit him with her car, but she maintains that she remained calm. Gooding concludes that a “mere argument” was not sufficient to make her lose control of her actions or reason.
The State’s brief does not argue that there was sufficient evidence of a sudden quarrel to uphold Gooding’s conviction of voluntary manslaughter. However, the State argues that Gooding invited any error because she requested a jury instruction on the lesser offense of voluntary manslaughter. The State also argues that even if there was insufficient evidence of a sudden quarrel, Good-ing’s conviction of the lesser crime of voluntary manslaughter can be upheld because there was sufficient evidence to convict her of the greater crime of intentional second-degree murder.
As a preliminary matter, we will briefly address the State’s assertion of invited error. Our Supreme Court has held that a litigant may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). The State submits that Gooding cannot request a jury instruction on voluntary manslaughter and then argue there was insufficient evidence of a sudden quarrel to support the conviction. But Gooding requested a jury instruction on voluntary manslaughter committed “in the heat of passion” as opposed to voluntary manslaughter committed upon a sudden quarrel. Based on this fact alone, the State’s invited error claim fails.
The State also argues that Gooding admitted at trial that there was evidence of a sudden quarrel. During closing argument, defense counsel made the following statement:
“If you cannot reach a verdict there, the law says you’ve got to consider voluntary manslaughter, the knowing — that the accused, Jessika Gooding, knowingly killed Christopher Mills. Knowingly is defined as the defendant acts knowingly when the defendant is aware of tire circumstances in which she was acting. . . . You’ve got to decide whether or not she knowingly, and that is to say Jessika knowingly — if she was aware of the circumstances in which she was acting and it was done upon a sudden quarrel. I suppose you could view the confrontation or conflict, if you will, between Jessika and Christopher in that 60 some feet of Kin-caid Street or less as being some kind of a quarrel." (Emphasis added.)
Defense counsel proceeded to argue that the jury should return a verdict of not guilty on all the charges. The thrust of defense counsel’s closing argument was that Gooding never intended to hit Mills with the car and there was reasonable doubt to acquit her of all charges. Gooding’s closing argument does not constitute a waiver preventing her from challenging the sufficiency of the evidence to support her conviction on appeal.
Gooding’s primary argument on appeal is that there was insufficient evidence to find her guilty of voluntary manslaughter because the State failed to prove that she engaged in a sudden quarrel with Mills. While Gooding acknowledges that she and Mills argued prior to the incident, she contends that this argument was not sufficient to cause her to lose control of her actions or reason. Furthermore, she asserts that even if the jury believed every aspect of the eyewitness’ testimony, there was still no evidence that Mills provoked her immediately prior to the incident.
When the sufficiency of evidence is challenged in a criminal case, an appellate court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court does not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Gooding was convicted of voluntary manslaughter under K.S.A. 2013 Supp. 21-5404(a)(1), which defines voluntary manslaughter as “knowingly killing a human being committed . . . [u]pon a sudden quarrel or in the heat of passion.” The district court instructed the jury that in order to establish the charge of voluntary manslaughter, each of the following elements had to be proved: (1) Gooding knowingly killed Mills; (2) the killing was done upon a sudden quarrel; and (3) the act occurred on or about the 7th day of January 2012, in Sedgwick County, Kansas. The district court did not instruct the jury on the meaning of the term “sudden quarrel.”
The Kansas Supreme Court has addressed the level of provocation necessary to support a voluntary manslaughter conviction in many prior decisions. “In order to reduce a homicide from murder to voluntaiy manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). The provocation, whether it be a “sudden quarrel” or some other form of provocation, must be sufficient “to cause an ordinary man to lose control of his actions and his reason.” 236 Kan. at 796. Thus, tire test of the sufficiency of the provocation is objective, not subjective. 236 Kan. at 796.
“Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered.” 236 Kan. at 797. Similarly, mere evidence of an altercation does not alone support a finding of sufficient provocation. State v. Mitchell, 269 Kan. 349, 353, 7 P.3d 1135 (2000) (quoting State v. Haddock, 257 Kan. 964, 987, 897 P.2d 152 [1995]). If assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. Mitchell, 269 Kan. at 353.
The Kansas Supreme Court’s interpretation of the term “sudden quarrel” as it relates to a conviction of voluntary manslaughter is grounded in the common law and is generally adopted in most other states. As discussed in a respected treatise on criminal law, in order to reduce a homicide from murder to voluntary manslaughter, there must be adequate provocation that “is calculated to deprive a reasonable [person] of self-control and to cause [the person] to act out of passion rather than reason.” 2 Wharton’s Criminal Law § 157 (15th ed. 1994). “At common law, mere words or gestures, however insulting, abusive, opprobrious, or indecent, do not constitute adequate provocation. But insulting words, when accompanied by other conduct, such as an assault, may be considered.” 2 Wharton’s Criminal Law § 158.
In State v. Northcutt, 290 Kan. 224, 224 P.3d 564 (2010), our Supreme Court recently addressed whether the evidence presented during a first-degree murder trial supported the defendant’s request for a juiy instruction on sudden quarrel voluntaiy manslaughter. In that case, the defendant and his brother were suspected of killing David Mason. In two custodial interviews with police, the defendant admitted to beating Mason and confessed that he and his brother had gone to Mason’s apartment with the intent to kill him. After the interviews, the defendant led officers to the location where he and his brother had buried Mason.
The defendant was charged with premeditated first-degree murder and conspiracy to commit first-degree murder. At trial, the defendant provided a very different version of events from the prior statements he had given to law enforcement officers. The defendant testified that Mason owed him money and that Mason had borrowed some camera equipment from him which he never returned. Mason lived in an apartment with the defendant’s brother. The defendant told his brother that he wanted to confront Mason and instructed his brother to call him when Mason arrived at the shared apartment. The defendant’s brother called a short time later, and the defendant immediately rode his bicycle to tire apartment.
When the defendant arrived at the apartment, he brought with him a climber’s “impelling rope” that he routinely used to secure his bicycle. The defendant testified that he came up behind Mason as he sat at a computer and “land of lacked him in the butt” and asked if he had his camera. 290 Kan. at 229. Mason jumped up, bringing some computer cords with him. According to the defendant, the two men got “tangled up” in the computer cords and the impelling rope. 290 Kan. at 229. The arguing continued and the defendant eventually followed Mason into his bedroom. As the two men struggled, Mason fell backwards, hitting his head on the bed railing. At that point, the defendant testified that he and his brother left the apartment. The defendant testified that when he and his brother returned to the apartment the next day, they found Mason dead. The juiy convicted the defendant of premeditated first-degree murder and conspiracy to commit first-degree murder. 290 Kan. at 231.
On appeal, the defendant argued that the district court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of premeditated first-degree murder. The defendant argued that die jury could have believed that Mason provoked a sudden quarrel when he stood up from the computer and entangled the defendant in the computer cords, causing a fight to ensue.
Our Supreme Court acknowledged the defendant was entitled to a voluntary manslaughter instruction as long as there was some evidence which would reasonably justify a conviction of the lesser included crime. 290 Kan. at 233; see K.S.A. 2013 Supp. 22-3414(3). However, our Supreme Court stated that the defendant’s argument “ignores Kansas precedent that requires severe provocation to justify giving a voluntary manslaughter instruction.” (Emphasis added.) 290 Kan. at 233; see e.g., State v. Vasquez, 287 Kan. 40, 55-56, 194 P.3d 563 (2008); State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008); State v. Drennan, 278 Kan. 704, 713, 101 P.3d 1218 (2004); State v. Horn, 278 Kan. 24, 40-41, 91 P.3d 517 (2004).
The Northcutt court further stated that “[u]nder our precedent, mere evidence of an altercation between parties does not alone support finding sufficient provocation” to justify instructing the jury on voluntary manslaughter as a lesser included offense. 290 Kan. at 234; see, e.g., Gallegos, 286 Kan. at 874-75; Mitchell, 269 Kan. at 353. The Northcutt court noted that the test of the sufficiency of the provocation is objective, not subjective. 290 Kan. at 234. The court further stated drat the provocation, whether it be a sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary person to lose control of his or her actions and reason. 290 Kan. at 234; see also Horn, 278 Kan. at 40; Guebara, 236 Kan. at 796-97.
Considering these rules, the Northcutt court determined that “even if the jury accepted that Mason stood up and became tangled in the computer cords and [the defendant’s] ‘impelling rope,’ such an action is not severe provocation; it is not an action that would cause an ordinary person to lose control of his or her actions and reason.” 290 Kan. at 234. The court noted that even under the defendant’s version of events, the defendant started the fight and not Mason. The court concluded that because there was no evidence of provocation by Mason, much less severe provocation, the district court was not required to instruct the jury on voluntary manslaughter. 290 Kan. at 234-35.
Returning to our facts, Gooding testified that her argument with Mills began at the corner of Santa Fe and Kincaid Street, shortly after she left him at her mother’s house. While Gooding’s car was stopped at the intersection, Mills approached the passenger side of the car and was yelling at her to wait. She testified that Mills was “cussing [her] out” and waving his arms. Gooding alternatively described Mills as belligerent, hyped up, upset, mad, and pissed off. However, she testified that she was not mad during the encounter and remained calm despite Mills’ actions.
Testimony presented by several of tire State’s witnesses painted a similar picture of the events. Thomas — the State’s sole eyewitness — testified that he saw a man standing outside of a car on the grass waving both of his hands. Thomas testified that the man “looked like he was arguing with somebody inside the car.” Thomas also told Brown that he saw Gooding and Mills arguing when Gooding ran over Mills with the car. Thomas testified that when Gooding asked to use his phone to call for help for Mills, she stated that “we were fighting, we were arguing.” Detective Mumma testified that during his interview with Gooding, she described her verbal exchange with Mills as an argument.
Gooding’s argument with Mills, by all accounts, consisted of angry words, cursing, and gestures stemming from Mills’ belief that Gooding wrongfully left him behind. Through it all, Gooding maintained that she stayed calm and tried to get away from the situation. Our Supreme Court has repeatedly held that mere words or gestures, however insulting, do not constitute adequate provocation to support a conviction of voluntaiy manslaughter. See, e.g., Guebara, 236 Kan. at 797. Even when considered in a light most favorable to the State, the evidence presented concerning Gooding’s argument with Mills failed to establish provocation sufficient to cause an ordinary person to lose control of his or her actions and reasons. Northcutt, 290 Kan. at 234; Guebara, 236 Kan. at 797.
At Gooding’s trial, the district court did not instruct the jury on the meaning of the term “sudden quarrel” in order to support a conviction of voluntary manslaughter. We note that PIK Crim. 4th 54.170 on voluntary manslaughter defines the term “heat of passion” but tire recommended instruction does not define the term “sudden quarrel.” Assuming the evidence at Gooding’s trial had been sufficient to support a jury instruction on voluntary manslaughter, the district court certainly could have assisted the jury by providing some guidance on the meaning of the term “sudden quarrel.” But based upon many years of Kansas Supreme Court precedent, which is grounded in the common law, we agree with Gooding’s primary claim on appeal that there was insufficient ev idence of a sudden quarrel to support her conviction of voluntary manslaughter.
The State argues that even if there was insufficient evidence of a sudden quarrel, Gooding’s conviction should be upheld under the analysis of State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976), disapproved of on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), and State v. Harris, 27 Kan. App. 2d 41, 998 P.2d 524 (2000). These cases generally stand for the proposition that even if the evidence is insufficient to convict a defendant of a lesser degree of homicide, such as voluntary manslaughter, the conviction will be upheld if the evidence was sufficient to convict the defendant of a higher degree of homicide.
We will first examine the Kansas Supreme Court’s decision in Bradford. In that case, the defendant was charged with first-degree felony murder, but he was convicted of second-degree murder. 219 Kan. at 337. On appeal, he argued that the district court erred in instructing the jury on second-degree murder because it was not a lesser included offense of felony murder. Our Supreme Court held that second-degree murder could be a lesser included offense of felony murder where the evidence of the underlying felony is weak. 219 Kan. at 343. The court then noted that the submission of jury instructions on lesser included offenses is to the defendant’s advantage and stated:
“ ‘... [T]he rule supported by most of the courts is that if the evidence demands or warrants a conviction of a higher degree of homicide than that found by the verdict. . . the defendant is not entitled to a reversal or a new trial on the ground that the court instructed on the lower degree of homicide as to which there was no evidence, the theory being that he is not prejudiced thereby and cannot complain. . . .’ [Citation omitted.]” 219 Kan. at 344.
The rule in Bradford was recognized earlier by the Kansas Supreme Court in State v. Carpenter, 215 Kan. 573, 527 P.2d 1333 (1974). In that case, the defendant was charged with premeditated first-degree murder, but he was convicted of the lesser included offense of second-degree murder. On appeal, the defendant claimed the district court erred in instructing the jury on second-degree murder because the undisputed evidence showed that the killing was premeditated. In rejecting the defendant’s argument, our Supreme Court relied on the “majority rule” that if the evidence is sufficient to support a conviction of a higher degree of homicide than that found by the verdict, the defendant cannot complain that the jury was instructed on a lower degree of homicide as to which there was no evidence. 215 Kan. at 578-79.
However, the Carpenter court further stated that in order for the rule to be applicable, all elements necessary to prove the lesser offense must be included in the elements required to establish the greater offense. 215 Kan. at 579. The court noted that “[sjecond-degree murder is clearly a lesser included offense under first-degree murder since all the elements of second-degree murder are included in the elements required to establish murder in the first degree.” 215 Kan. at 579. See also State v. Yargus, 112 Kan. 450, 453, 211 P.121 (1922) (defendant convicted of second-degree murder cannot complain about lack of evidence when evidence sufficient to support first-degree murder, noting that the greater offense includes all the elements of the lesser offense).
The Kansas Supreme Court’s decisions in Bradford, Carpenter, and Yargus only applied to defendants convicted of second-degree murder as a lesser included offense of first-degree murder. However, the Court of Appeals extended the rule discussed in those cases to voluntary manslaughter in Harris. In that case, the defendant was charged with second-degree murder, but he was convicted of the lesser included offense of voluntary manslaughter upon a sudden quarrel or in the heat of passion. 27 Kan. App. 2d at 43. On appeal, this court agreed with the defendant’s assertion that there was insufficient evidence to support a finding that the killing was committed upon a sudden quarrel or in the heat of passion. 27 Kan. App. 2d 44-45. Accordingly, this court found that the district court erred in instructing the jury on voluntary manslaughter. 27 Kan. App. 2d at 45.
The Harris court noted that a number of other jurisdictions have determined that when the defendant is charged with murder and is convicted of the lesser included offense of manslaughter, the conviction will stand even when there is no evidence to support the jury’s finding of provocation, as long as the evidence is sufficient to convict the defendant of the greater crime of murder. 27 Kan. App. 2d at 45. After citing the rule discussed in Bradford, this court held that when a defendant is charged with second-degree intentional murder and convicted of sudden quarrel or heat of passion voluntary manslaughter, “the conviction may stand even absent evidence of sudden quarrel or heat of passion, as long as the evidence was sufficient to convict the defendant of second-degree intentional murder.” 27 Kan. App. 2d at 46; see also State v. Cobb, 30 Kan. App. 2d 544, 562-64, 43 P.3d 855 (2002); State v. Powell, 30 Kan. App. 2d 390, 392, 42 P.3d 193 (2002). But see State v. Diggs, 194 Kan. 812, 817, 402 P.2d 300 (1965) (finding district court erred in instructing jury on manslaughter in the second degree when there was no evidence the killing was committed in a cruel and unusual manner).
Gooding argues that Harris is no longer good law because our legislature has amended several applicable statutes since the case was decided. At tire time the defendant in Harris committed his offense in 1997, K.S.A. 21-3201(b) (Furse) provided: “Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ ” In 1997, K.S.A. 21-3402(a) (Furse) defined second-degree murder as the killing of a human being committed intentionally. K.S.A. 21-3403(a) (Furse) defined voluntary manslaughter as the intentional killing of a human being committed upon a sudden quarrel or in the heat of passion. Therefore, when the Harris court compared the statutory elements of second-degree murder and voluntary manslaughter, each offense relied on the same culpable mental state of “intentionally.” The court found that “[t]he sole distinction between intentional second-degree murder and voluntary manslaughter . . . was the presence of mitigating circumstances.” 27 Kan. App. 2d at 46.
In 2011, our legislature amended the definitions of the various culpable mental states. The terms “intentionally” and “knowingly” are now separated and ranked by degree, with “intentionally” being ranked as a higher degree of culpability than “knowingly.” K.S.A. 2013 Supp. 21-5202(b)(1)-(2). The statute provides that when intentional conduct is proven, knowing conduct is also proven. K.S.A. 2013 Supp. 21-5202(c). Second-degree murder is still defined as the killing of a human being committed intentionally. K.S.A. 2013 Supp. 21-5403(a)(1). However, voluntary manslaughter is now defined as the knowing killing of a human being committed upon a sudden quarrel or in the heat of passion. K.S.A. 2013 Supp. 21-5404(a)(1).
Gooding points out that the jury convicted her of voluntary manslaughter which means that the jury unanimously found that she knowingly killed Mills. But this finding does not establish that she intentionally killed Mills. As a result, Gooding contends that the rule in Harris does not apply here. Gooding also contends that the district court’s jury instructions preclude this court from applying the Bradford and Harris analysis. Gooding points to jury instruction 5, which stated: “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, [s]he may be convicted of the lesser offense only.” Gooding contends that by finding her guilty of voluntary manslaughter, the jury necessarily possessed reasonable doubt as to the intent element of second-degree murder; thus, according to Gooding, the Harris rule does not apply.
Gooding’s contentions have merit and we reject the State’s argument that Gooding’s voluntary manslaughter conviction can be upheld under the Bradford/Harris analysis. Initially, we note that the Kansas Supreme Court has never held that a voluntary manslaughter conviction may stand absent evidence of a sudden quarrel or heat of passion as long as the evidence was sufficient to convict the defendant of intentional second-degree murder. The Kansas Supreme Court’s decisions in Bradford, Carpenter, and Yargus only applied to defendants convicted of second-degree murder as a lesser included offense of first-degree murder. Moreover, the Kansas Supreme Court has stated that the rule about lesser degrees of homicide applies only when all the elements necessary to prove the lesser offense are included in the greater offense. Carpenter, 215 Kan. at 579; Yargus, 112 Kan. at 453.
In Kansas, intentional second-degree murder is a lesser included offense of premeditated first-degree murder under the strict elements test set forth in K.S.A. 2013 Supp. 21-5109(b)(2). But voluntary manslaughter is a lesser included offense of murder only because it is a lesser degree of the same crime. K.S.A. 2013 Supp. 21-5109(b)(1); see State v. Cheever, 295 Kan. 229, 258, 284 P.3d 1007 (2012) (recognizing the following homicide degree crimes in descending order: first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter).
Voluntary manslaughter is not a lesser included offense of first or second-degree murder under the strict elements test because voluntary manslaughter includes the additional element of sudden quarrel or heat of passion that is not included in first or second-degree murder. Thus, it is questionable whether the Harris court properly extended tire rule about lesser degrees of homicide to a voluntary manslaughter conviction. The decision in Harris did not address the language in Kansas Supreme Court decisions stating that tire rale applies only when all the elements in the lesser offense are included in the greater offense. Carpenter, 215 Kan. at 579; Yargus, 112 Kan. at 453.
Even if Harris was correctly decided at the time, subsequent legislative changes have negated the court’s holding. When Harris was decided, there was no distinction under the criminal code between an intentional act and a knowing act. As Gooding points out, the terms “intentionally” and “knowingly” now are separated and ranked by degree, with “intentionally” being ranked as a higher degree of culpability than “knowingly.” K.S.A. 2013 Supp. 21-5202(b)(1)-(2). Second-degree murder is still defined as the killing of a human being committed intentionally. K.S.A. 2013 Supp. 21-5403(a)(1). Voluntary manslaughter is now defined as the knoioing lulling of a human being committed upon a sudden quarrel or in the heat of passion. K.S.A. 2013 Supp. 21-5404(a)(1).
When Harris was decided, the sole distinction between intentional second-degree murder and voluntary manslaughter was the presence of mitigating circumstances, i.e., sudden quarrel or heat of passion. Harris, 27 Kan. App. 2d at 46. So when Harris was decided, if the defendant was found guilty of voluntary manslaughter but it was later determined that there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, an appellate court could still conclude, without engaging in any judicial fact-finding, that the evidence was sufficient to convict the de fendant of the greater offense of intentional second-degree murder. Any error in instructing the jury on voluntaiy manslaughter was harmless and worked in the defendant’s favor.
Now if a defendant is found guilty of voluntary manslaughter but there was insufficient evidence to instruct the jury on sudden quarrel or heat of passion, it does not necessarily follow that the evidence was sufficient to convict the defendant of the greater offense of intentional second-degree murder. The premise of the Harris rule is that a voluntary manslaughter conviction will stand absent evidence of sudden quarrel or heat of passion, “as long as evidence was sufficient to convict the defendant of second-degree intentional murder.” 27 Kan. App. 2d at 46.
The State essentially argues that this court should uphold Good-ing’s voluntary manslaughter conviction as long as there may have been sufficient evidence to support a conviction of intentional second-degree murder. But the jury, and not this court, was the fact-finder in this case. As Gooding argues, the jury was instructed to consider the lesser offenses of second-degree murder and voluntary manslaughter only if the jury did not agree that Gooding was guilty of first-degree murder. The jury also was instructed that “[wjhen there is a reasonable doubt as to which of two or more offenses defendant is guilty, [s]he may be convicted of tire lesser offense only.” We can only assume from the verdict that the jury possessed reasonable doubt that Gooding was guilty of either first or second-degree murder. Once again, the Harris rule only applies “as long as the evidence was sufficient to convict the defendant of second-degree intentional murder.” 27 Kan. App. 2d at 46. It is not the role of this court to find that the evidence was sufficient to convict Gooding of second-degree intentional murder when the jury rejected such a finding.
In summary, we conclude there was insufficient evidence of a sudden quarrel to uphold Gooding’s conviction of voluntary manslaughter. We also reject the State’s argument that we should uphold Gooding’s conviction under the Bradford and Harris analysis. Because this ruling is dispositive of Gooding’s case, we need not address the other issues she has raised on appeal. Accordingly, we must reverse the district court’s judgment and remand with directions to discharge Gooding.
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Hill, J.:
Randall J. Ritchie appeals his commitment for treatment as a sexually violent predator. He makes three claims: The court should not have admitted the testimony of a psychologist with a temporary license; there was insufficient evidence to support a finding that he is a sexually violent predator; and the 2011 amended Sexually Violent Predator Act is unconstitutional. We do not agree. We affirm his commitment.
There is a history of sexual assaults here.
In 1994, Ritchie agreed to plead guilty to one count of aggravated kidnapping, a violation of K.S.A. 21-3421. According to Rit-chie, tire 13-year-old victim had been walking with her friends when he “grabbed her off the street, forced her into a garage and raped her vaginally.”
Ritchie received parole in November 2001. Then, in 2004, the Sex Offender Override Panel viewed Ritchie as a “low risk” to reoffend and relieved Ritchie of normal postrelease sex offender supervision protocols by allowing him to have unsupervised visits with his children and to stop attending aftercare treatment. By October 2005, Ritchie was required to report by mail.
Unfortunately, in June 2006, Ritchie saw what he believed to be a “crime of opportunity” and got out of his car to stop an 8-year-old girl riding her bicycle. Ritchie then proceeded to insert his “little finger” into the child’s vagina. Ritchie did not report this incident to his parole officer. Two other incidents involving young girls occurred just 4 months later at a Walmart store in Great Bend.
While in Walmart in October 2006, Ritchie approached a girl he believed to be around 8 years old and “picked her up, twirled her around, and sat her down and walked off.” The next day, Ritchie returned to Walmart where he walked up to an 8-year-old girl and “put [his] hand underneath her dress and touched her vagina and inserted [his] pinkie.” The girl screamed and Ritchie ran off. But he was apprehended leaving the store.
Ritchie eventually pleaded guilty to an amended charge of aggravated indecent solicitation of a child for the June 2006 offense in exchange for the State dismissing a criminal restraint charge for the same offense and the charge of aggravated indecent liberties with a child under Jessica’s Law for the incident in October 2006. The district court sentenced Ritchie to 52 months’ imprisonment.
Toward the end of his prison term, the State sought to commit Ritchie as a sexually violent predator under tire Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. In its petition, the State included a clinical services report prepared by Dr. Jane Kohrs after she evaluated Ritchie in May 2011. Dr. Kohrs has prepared approximately 500 clinical services reports. Dr. Kohrs concluded that under the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), Ritchie had an Axis I diagnosis of pedophilia, nonexclusive type, sexually attracted to females with elements of nonconsent frotteurism. Dr. Kohrs had also completed the Static-99R actuarial instrument. Ritchie’s score placed his risk of recidivism in the “moderate high” range.
Ritchie stipulated that probable cause existed to believe he was a sexually violent predator, and he waived his right to a probable cause hearing under K.S.A. 59-29a05. The district court ordered Ritchie to the Lamed State Security Hospital for a psychological evaluation.
Dr. Rebecca Farr, a postdoctoral psychologist at the Lamed State Security Hospital, evaluated Ritchie. Dr. Farr has a psychology degree from California State University and a Master of Science degree in psychology and a Ph.D. in clinical-community psychology from the University of La Veme. At the time of Ritchie’s evaluation, Dr. Farr had a temporary Kansas license to practice psychology. She had already satisfactorily completed the required 2,000 hours of postdoctorate clinical supervised work and was waiting to take the necessary examination.
Ritchie’s case was Dr. Farr’s first sexual predator evaluation assigned to her. Dr. Farr testified she interviewed Ritchie twice for his forensic evaluation. She assessed Ritchie as having Axis I diagnoses of pedophilia, frotteurism, and an Axis II diagnosis of antisocial personality disorder. Dr. Farr had also administered the Static-99R and Static-2002R actuarial instruments. Ritchie’s scores on both instruments placed his risk of recidivism in the “high-risk” and “moderate-high risk” range respectively.
The district court granted Ritchie’s request for an independent evaluation. Ritchie waived his right to a jury trial, and the matter was tried to tire court in July 2012.
At trial, the State presented testimony from Dr. Kohrs, Dr. Farr, and Dr. John R. Reid, the supervising psychologist for Dr. Farr at the Lamed State Security Hospital. Ritchie presented testimony from his own expert witness, Dr. Robert Barnett, the psychologist appointed by the district court to conduct the independent evaluation. The State also called Ritchie to testify, who likewise testified in his own behalf.
In Ritchie’s written closing arguments, he argued that the forensic evaluation report completed by Dr. Farr and Dr. Farr’s testimony should be excluded because Dr. Farr had violated the supervision requirements in the Kansas Administrative Regulations.
The district court rejected Ritchie’s objections concerning Dr. Farr. The court found that Ritchie was a sexually violent predator and committed him to the Lamed State Security Hospital for further treatment.
What must the State proveP
Whether an individual should be committed for treatment under the Sexually Violent Predator Act involves an examination by a qualified professional to determine whether that person is a sexually violent predator. K.S.A. 59-29a05(d). In his appeal, Ritchie first argues the district court abused its discretion in admitting Dr. Farr s forensic evaluation report and corresponding expert opinion testimony because her report and testimony lacked foundation. Specifically, Ritchie alleges Dr. Reid did not properly supervise Dr. Farr in conducting the forensic evaluation report as required by the Kansas Administrative Regulations.
Our standard of review on a question of whether the district court erred in admitting certain evidence in an action under the Act is one of abuse of discretion. In re Care & Treatment of Lair, 28 Kan. App. 2d 51, 53, 11 P.3d 517, rev. denied 270 Kan. 898 (2000). According to the Kansas Supreme Court in Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013), judicial discretion is abused if the judicial action is
• arbitraiy, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by tire trial court;
• based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or
° based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.
Additionally, interpretation of a statute is a question of law which the appellate courts review de novo. In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 353, 82 P.3d 861, rev. denied 278 Kan. 845 (2004).
This issue has been preserved for appeal.
The State argues that Richie did not preserve this issue of Dr. Reid’s failure to supervise Dr. Farr because he did not make a timely and specific objection at trial prior to the district court admitting the forensic evaluation report or hearing Dr. Farr’s testimony. Indeed, the record indicates that Ritchie did not object be fore or during Dr. Farr’s testimony. In fact, when the State offered the forensic evaluation report into evidence during Dr. Farr’s testimony, Ritchie’s attorney stated he had “[n]o objection.” The first time Ritchie took issue with the admissibility of the forensic evaluation report and Dr. Farr’s testimony was in his written closing arguments submitted to the district court approximately 6 weeks after the bench trial. That is sufficient to preserve the issue for our review.
In State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), superseded by statute on other grounds as stated in State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001), our Supreme Court found the nature of a bench trial allows the district court to disregard the lack of a contemporaneous objection to evidence during trial when the defendant makes the district court aware of his or her objection in a posttrial motion after the district court has taken the matter under advisement, but prior to its decision. The court held:
“Ordinarily, failure to make timely, specific objection to the admission of evidence will bar consideration of the admissibility question on appellate review. [Citations omitted.] Here, the appellant’s objection was not ‘timely’ in the strict sense, but there is no doubt the district court was apprised of the issue before it rendered its decision .... What transpired is consistent with die rationale underlying the contemporaneous objection rule — i.e. [,] objecting to admissibility and stating the grounds therefor permits the court to preclude improper evidence from affecting die decision. This was a trial by the court; no jurors had been swayed by the improper evidence. The court had not rendered its decision when die issue was raised, and we think under the circumstances of tiiis case die spirit if not die letter of the contemporaneous objection rule was satisfied.” 219 Kan. at 652.
Similarly, in State v. Parson, 226 Kan. 491, 493-94, 601 P.2d 680 (1979), our Supreme Court, citing Gordon, relaxed the contemporaneous objection rule by holding that the appellant’s objections to the evidence stated in his argument in a motion for judgment of acquittal filed at the close of the State’s case during a bench trial were sufficiently timely to obtain appellate review.
The State acknowledges the holding in Gordon but argues “it is doubtful that Gordon remains good law” in the face of our Supreme Court’s clear reinvigoration of the contemporaneous objection rule. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). King noted, “From today forward, in accordance with the plain language of K.S.A. 60-404, evidentiaiy claims . . . must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” 288 Kan. at 349. In other words, the State seeks a rigid application of the contemporaneous objection rule.
Our Supreme Court's recent decision in State v. Kelly, 295 Kan. 587, 595, 285 P.3d 1026 (2012), convinces us that the Gordon ruling is still good. In Kelly, the court held that the lack of an objection during a criminal bench trial on stipulated facts did not preclude appellate review of the pretrial denial of a defendant’s motion to suppress when a different judge conducts the bench trial. While discussing the timeliness of a defendant’s contemporaneous objection to trial evidence made at sentencing, the Kelly court acknowledged Gordon. The court stated, “Granted, we have considered posttrial motions timely in some circumstances. For example, in [Gordon] we concluded an objection stated after a bench trial but before the judge had ruled was timely interposed because ‘the spirit if not the letter of the contemporaneous objection rule was satisfied.’ ” 295 Kan. at 593. Had the Supreme Court wanted to alter the Gordon holding in any way it could have done so at that time but did not.
Ritchie had a bench trial. At the close of evidence, Ritchie’s counsel asked the district court for a transcript of the proceedings and permission to submit his closing argument in writing. Ritchie’s counsel stated, “I would want to be able to cite to the record and make legal argument and submission to the Court.” The district court agreed and ordered that each party would get a transcript and an appropriate amount of time to present arguments. In his written closing arguments, Ritchie stated his objection to Dr. Farr’s forensic evaluation report and testimony. And the State responded to Ritchie’s objection in its written closing arguments by addressing Dr. Farr’s qualifications. In doing so, the State noted that Ritchie had not objected to Dr. Farr’s qualifications during trial. But the State went on to frame Ritchie’s objection in his written closing argument as a “belated request” and did not argue the contemporaneous objection rule. Finally, the district court considered Rit- chie’s objection before rendering its decision, as evidenced by its ruling denying this objection in the journal entry committing Rit-chie under the Act.
Because there is no indication that the Kansas Supreme Court is departing from its previous position, Ritchie’s objection made during his written closing argument preserved this issue for appeal. See Gordon, 219 Kan. at 652.
A careful reading of the regulations reveals that Dr. Farr violated none of the supervision requirements.
K.A.R. 102-l-5a sets out tire supervision requirements for temporarily licensed psychologists such as Dr. Farr. K.A.R. 102-1-5a(e)(3) states the supervisor shall:
“(B) be available to the supervisee at the points of decision making regarding the diagnosis and treatment of clients or patients;
“(D) . . . review and evaluate the psychological services delivered and procedures used;
“(E) ensure that each client or patient knows that the supervisee is practicing psychology under supervision;
“(G) maintain documentation of the supervision that details each type of the psychological services and procedures in which the supervisee engages and the supervisee’s competence in each.”
Ritchie asserts that Dr. Reid’s supervision of Dr. Farr was deficient in two aspects. First, Ritchie argues Dr. Reid neither met with Ritchie nor participated in Ritchie’s two interviews conducted by Dr. Farr. Such an allegation concerns K.A.R. 102-l-5a(e)(3)(E) and K.A.R. 102-l-5a(f)(2). Second, Ritchie argues Dr. Reid was not involved at any point in Dr. Farr’s decision making in completing the evaluation. Ritchie maintains Dr. Farr “must be supervised by a supervising psychologist during all decision points in the process.” (Emphasis added.) This allegation concerns K.A.R. 102-l-5a(e)(3)(B).
For authority, Ritchie relies upon Dr. Barnett’s interpretation of the supervision requirements under K.A.R. 102-l-5a. Dr. Barnett testified that in the case of psychologists who supervise a temporary licensed psychologist, “All of the clients of the trainee are required to have been met by the supervisor at least once” and that “it is a requirement of the supervisory administration regulation [K.A.R. 102-l-5a] that the supervisor be involved at all decision points in the process of evaluating or treating a client.” Dr. Barnett opined that Dr. Reid’s failure to comply with both of these regulations rose to the level of having sanctions imposed upon him.
A plain reading of the Kansas Administrative Regulation shows Dr. Barnett’s understanding of K.A.R. 102-l-5a is erroneous and that Ritchie fails to establish the alleged violations of the regulation. No regulation requires a supervisor of a temporary licensed psychologist to personally meet the patient or attend the interviews conducted by the one supervised. Basically, Dr. Reid only had to ensure that Ritchie was notified that Dr. Farr was under his supervision. See K.A.R. 102-l-5a(e)(3)(E). Additionally, Dr. Farr had to provide to Ritchie, in writing, how to get in touch with Dr. Reid. See K.A.R. 102-l-5a(f)(2). The record reveals that both of these requirements were satisfied when Dr. Farr first met with Ritchie. Dr. Farr provided Ritchie with a supervision disclosure form that indicated she was under Dr. Reid’s supervision as a temporary licensed psychologist and provided Ritchie with Dr. Reid’s contact information.
In like manner, Ritchie’s assertion that a supervisor “must” be directly involved during all decision points is directly contradicted by the language in K.A.R. 102-l-5a(e)(3)(B), which only required that Dr. Reid “be available” to Dr. Farr. There is no suggestion in the record that Dr. Reid was unavailable to Dr. Farr. In fact, the record indicates that every week Dr. Farr met with Dr. Reid for at least 1 hour of individual supervision and had at least 1 hour of group supervision with Dr. Reid and the other staff psychologists.
This is not the first time that this issue has been raised on appeal. A prior panel of this court in In re Care and Treatment of Stanley, No. 100,611, 2009 WL 3082539 (Kan. App. 2009) (unpublished opinion), considered a similar challenge under K.A.R. 102-l-5a to the admission of a forensic evaluation report. In that case, the panel found not only that the appellant failed to establish an actual violation of K.A.R. 102-l-5a as a matter of law, but that such a vio lation would not necessarily preclude admission of an expert’s report and testimony. The panel held:
“[E]ven if we assume that a violation of K.A.R. 102-l-5a took place, Stanley fails to show why such a violation requires Dr. Subramaniaris report and corresponding testimony to be excluded from evidence. The Kansas Sexually Violent Predator Act states only that ‘[t]he evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination.’ K.S.A. 59~29a05(d). Stanley does not allege Dr. Subramanian was professionally unqualified to conduct the examination. Moreover, expert opinion testimony generally is admissible if it aids the trier of fact with unfamiliar subjects or interpreting technical facts, or if it assists the trier of fact in arriving at a reasonable factual conclusion from the evidence. [Citation omitted.].” Stanley, 2009 WL 3082539, at “3.
We adopt this reasoning.
Here, the district court’s rationale in rejecting Ritchie’s argument that Dr. Farr had violated the Kansas Administrative Regulations is in accord with the Stanley panel’s holding. When it spoke on the relevance of a K.A.R. 102-l-5a violation when considering whether a person is “professionally qualified” under K.S.A. 59-29a05(d), the district court opined:
“The bottom line for this court’s decision is Dr. Farr did complete a sexual predator evaluation, she followed the statutes in doing that evaluation and she followed the diagnostic and statistical manuals for mental disorders and other manuals that are used within this area. Her determination and decision was based upon the facts of the case and were not affected by her lack of being a fully licensed psychologist, even if you accept [Ritchie’s] argument. She has tire experience in this area and she had a temporary license. This court will not strike her testimony based upon this alleged lack of experience, licensing or supervision.”
Ritchie acknowledges the ruling in Stanley but makes no effort to distinguish that case from this one other than to allege Dr. Farr, as a temporarily licensed psychologist, was professionally unqualified. In his view, because Ritchie was the first sexual predator evaluation Dr. Farr was assigned and she had “no supervision from Dr. Reid as it pertains to her sexual predator evaluation of [Rit-chie],” she could not render an admissible opinion.
We are not convinced by Ritchie’s argument. Simply put, he has failed to establish Dr. Reid’s supervision of Dr. Farr under K.A.R. 102-l-5a was deficient. Further, Ritchie’s argumbnt regarding Dr. Farr’s license status or lack of experience is without merit. Just because she was working under a temporary license at the time, that does not mean she was unqualified to do the work. See In re Care & Treatment of Gendron, No. 97,093, 2008 WL 762506, at *1 (Kan. App. 2008) (unpublished opinion); In re Plummer, No. 96,732, 2007 WL 2080465 (Kan. App. 2007) (unpublished opinion).
Like the facts in Stanley, the record indicates Dr. Farr’s thorough forensic evaluation report and testimony sufficiently assisted the district court in reaching a reasonable factual conclusion. See State v. Cooperwood, 282 Kan. 572, 578-79, 147 P.3d 125 (2006). Because Ritchie failed to establish the alleged violations of the regulations and Dr. Farr was professionally qualified according to K.S.A. 59-29a05(d) to evaluate Ritchie, the district court did not abuse its discretion.
There is ample evidence that Ritchie is a sexually violent predator according to law.
As we address this issue, we must review all of the evidence in tire light most favorable to the State and decide if we are convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that Ritchie is a sexually violent predator. In doing so, we do not reweigh the evidence, pass on the credibility of the witnesses, or resolve any conflicting evidence. In re Care & Treatment of Williams, 292 Kan. 96,104, 253 P.3d 327 (2011).
The Kansas Supreme Court has clarified that the State must prove four elements to identify an individual as a sexually violent predator. The State must prove beyond a reasonable doubt that the individual
(1) has been convicted of or charged with a sexually violent offense;
(2) suffers from a mental abnormality or personality disorder;
(3) is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder; and
(4) has serious difficulty controlling his or her dangerous behavior. Williams, 292 Kan. at 106.
Ritchie does not dispute his convictions but does dispute the remaining three elements. We will address them in order, beginning with his alleged mental abnormality or personality disorder.
Dr. Farr stated that Ritchie presents Axis I diagnoses of (1) pedophilia, sexually attracted to females, nonexclusive type; (2) frot-teurism; and (3) alcohol dependence, sustained full remission.
To explain these diagnoses, she testified that Ritchie met the DSM-IV criteria for a pedophile because Ritchie was at least 16 years of age and admitted to having sexual relations with children at least 5 years younger; had reoccurring sexual fantasies, urges, or behaviors involving sexual activity with a child or children generally under the age of 13; and had acted on his sexual urges, causing him interpersonal difficulty. Dr. Farr also testified Ritchie’s diagnosis of pedophilia was supported by his conviction for aggravated indecent solicitation of a child and Ritchie’s own acknowledgments in his autobiography and written treatment assignments. In the forensic evaluation report, Dr. Farr noted that “Ritchie admitted to having approximately 32 contact victims and has engaged in numerous offending behaviors such as frotteurism, fondling, rape, forced fellatio, and molestation of children and animals. He also admitted to several noncontact victims while engaging in such behaviors as exposure, peeping, and showing pornography to children.”
Dr. Farr based Ritchie’s diagnoses of frotteurism and alcohol dependence on Ritchie’s statements during the clinical interviews.
In her Axis II diagnosis, Dr. Farr found Ritchie has an antisocial personality disorder, based on his pattern of disregard for and violation of the laws found in his records. Dr. Farr based her Axis II diagnosis on a review of tire record, including the written treatment assignments completed by Ritchie in which Ritchie admitted to, inter alia, repeatedly performing unlawful acts, physical and sexual aggression towards others, and an inability to sustain employment. Furthermore, the record indicated deceitfulness, reckless disregard for the safety of himself and others, evidence of the onset of a conduct disorder before age 15, and a lack of remorse.
We will not reweigh this evidence as Ritchie asks. With this record, viewed in the light most favorable to the State, a reasonable factfinder could have found that the State proved beyond a reasonable doubt that Ritchie had a mental abnormality or personality disorder. See Williams, 292 Kan. at 104. Therefore, the State met its burden on the second element.
Now, we move on to the third Williams element — whether Rit-chie is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder. Ritchie’s witness, Dr. Barnett, gave inconclusive testimony on this point. When addressing this element at trial, Dr. Barnett testified, “I don’t know if [Ritchie] will reoffend or not. I think he has the ability to control his behavior. Whether he chooses to or not, I don’t know. That’s the best I can do with that one.”
Notably different, Dr. Farr testified that she concluded that Rit-chie met the criteria of an individual likely to reoffend because of a mental abnormality or personality disorder. Dr. Farr noted that the fact this was Ritchie’s second evaluation under the Sexually Violent Predator Act supported her finding regarding Ritchie’s propensity to commit acts of sexual violence in the future. Dr. Farr also attributed her conclusion to, inter alia, her diagnoses regarding Ritchie’s different mental abnormalities, Ritchie’s attempts to minimize tire details of his past aggressive behaviors, the number of times Ritchie had been charged previously with crimes against children, and Ritchie’s admissions to having engaged in numerous sexually aggressive behaviors and a long-standing pattern of rape fantasies.
Dr. Farr’s basis for her opinion also included actuarial testing analysis. Ritchie’s score of 6 on the Static-99R placed his risk of recidivism in tire “high-risk” range, and his score of 7 on the Static-2002R indicated a “moderate-high risk” range. Dr. Farr also opined that the actuarial instruments underestimate an individual’s lifetime sexual recidivism potential because the measures only cover a 10-year period.
Ritchie’s argument on this point is unpersuasive. In response to the actuarial tests, he simply cites In re Care & Treatment of Girard, 296 Kan. 372, 294 P.3d 236 (2013), and makes the following single sentence argument: “[T]he Frye test applies to actuarial risk assessments.” He also points to Dr. Barnett’s testimony regarding the lack of reliability of using the Static-99R and Static-2002R tests.
Basically, his argument is legally insignificant. Neither Dr. Farr nor the district court placed undue weight on the test scores. In fact, Dr. Farr testified that she specifically reached her conclusion regarding the third Williams element based on all of the factors “as a whole — not just looking at the actuaríais by themselves or the diagnoses by themselves.” See Williams, 292 Kan. at 111. Williams found that “other evidence could convince a rational factfinder that the State has met its burden beyond a reasonable doubt, especially when . . . both experts based their opinions on factors other than the [actuarial] tests.” 292 Kan. at 111. Further, the record here indicates the district court placed little or no weight on the actuarial scores and found Ritchie was likely to reoffend because of the nature of Ritchie’s diagnoses and his 20- to 25-year history “of recurring issues, contact and criminal convictions of sexual deviant behavior with minors.”
Without reweighing the experts’ testimony, the facts on which Dr. Farr based her opinion, when viewed in the light most favorable to the State, presented sufficient evidence to establish the third element — that Ritchie is likely to reoffend.
The chief dispute between the parties relates to the fourth Williams element — whether Ritchie has serious difficulty controlling his dangerous behavior. Both Dr. Farr and Dr. Kohrs diagnosed Ritchie with the mental abnormality of pedophilia. The DSM-IV describes pedophilia as “a mental abnormality that critically involves what a lay person might describe as a lack of control.” In re Care & Treatment of Palmer, 46 Kan. App. 2d 805, 816, 265 P.3d 565 (2011), rev. denied 296 Kan. 1130 (2013).
The experts for each side offered contrary opinions about this element. Dr. Kohrs testified that Ritchie’s diagnoses of pedophilia and frotteurism, in conjunction with his history of acting on his fantasies, made it difficult for him to control his volitional behavior. Dr. Kohrs opined:
“I think his fantasies are so intense and his behaviors are so elevated and — -just in terms of tire choking that was involved with at least three persons from his victim sheets . . . that his brain is so conditioned to these fantasies and sexual deviancies that it will be very hard for him to control this in a community setting.”
Similarly, Dr. Farr testified that Ritchie poses a risk to others because based on Ritchie’s histoiy of not being able to control his behavior in the past, he would have difficulty controlling it in the future.
To the contrary, Dr. Barnett testified, “I don’t think [Ritchie] has serious difficulty controlling [his behavior].”
The district court acknowledged that the experts disputed this element and that the State had conceded Ritchie does have some level of control in a structured environment such as in prison or while on postrelease supervision, but found Ritchie’s “horrible” past behaviors dispositive. The district court noted:
“The evidence continued to show [Richie] was unable in an unstructured environment to control himself from having sexual urges and/or fantasies and then acting out upon those urges and fantasies to the dangerousness for tire victims he was convicted of harming and dangerousness of those he reported but he was not caught.”
When we view this evidence in the light most favorable to the State, we conclude there was sufficient evidence to allow a rational factfinder to find beyond a reasonable doubt that Ritchie had serious difficulty controlling his dangerous behavior.
Our review of tire record on appeal leads us to hold there is sufficient evidence for a reasonable factfinder to find that Ritchie is a sexually violent predator.
The Act is constitutional.
In his final argument, Ritchie summarily asks us to find that the 2011 amendment to the Kansas Sexually Violent Predator Act is unconstitutional because it violates his “due process rights, his rights [sic] to confrontation and all other procedural safeguard [sic] provided for by the Kansas Supreme Court and tire Rules of Evidence.” Ritchie fails to even explain how this change in tire law adversely affected his rights.
Indeed, with tire enactment of K.S.A. 2011 Supp. 59-29a06(c), tire legislature created an exception to K.S.A. 60-456(b), the general statute dealing with the admissibility of expert opinions. It now does not apply to the facts or data reasonably relied upon by an expert in forming opinions or inferences in actions under the Kansas Sexually Violent Predator Act.
The Act is a self-contained statutory scheme that, despite possessing many characteristics of a criminal proceeding, is a civil proceeding. In re Palmer, 46 Kan. App. 2d at 810. Therefore, the right of confrontation found in the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights concern criminal prosecutions and do not apply in civil commitment proceedings. See Kansas v. Hendricks, 521 U.S. 346, 371, 117 S. Ct. 2072, 138 L. Ed 2d 501 (1997); In re Patterson, No. 107,232, 2013 WL 2395313, at *18 (Kan. App. 2013) (unpublished opinion).
Nothing in Ritchie’s conclusoiy argument overcomes the presumption of validity that appellate courts apply when considering the constitutionality of a statute. See State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).
Affirmed. | [
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Leben, J.:
Jeffrey Diederich appeals his conviction on several charges based on his claim that the State violated his speedy-trial rights under the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. Under that act, once a defendant gives notice of a request to have outstanding charges tried, the State must do so within 180 days unless a continuance is granted under the statute’s provisions. See K.S.A. 22-4303; State v. Burnett, 297 Kan. 447, Syl. ¶ 6, 301 P.3d 698 (2013).
In Diederich’s case, none of the statutory provisions for continuing the 180-day period was used by the State. Accordingly, Died-erich is right that the 180-day period expired, and that left the State without jurisdiction to proceed on the charges. We therefore re verse DiedericlTs convictions and remand the case to the district court with directions to dismiss the charges with prejudice, meaning that they cannot be refiled.
Factual and Procedural History
Diederich was arrested in Reno County on April 26, 2010, for felony theft. He posted bond and was released from custody that same day. By May 4, 2010, the State had formally charged him in district court with felony theft, identity theft, and forgeiy. The State added a fourth charge of making a false information in September 2010.
In the meantime, Diederich had been arrested on charges arising in other Kansas counties. Between June 2010 and January 2011, he was convicted on charges in four counties, including forgery and felony theft. Although he was often in county jails while awaiting trials or transport back to the Kansas Department of Corrections, that department sent a letter to the Reno County District Court dated July 17, 2012, confirming that Diederich had “been incarcerated in the Kansas Department of Corrections since 7-18-2011.”
During that time period — on August 26, 2011 — Diederich filed notice under tire Uniform Mandatory Disposition of Detainers Act to have the pending Reno County charges disposed of within 180 days. That triggered the 180-day time limit, which would have required that DiedericlTs trial begin by February 22, 2012, unless extended.
Only one hearing was held in DiedericlTs Reno County District Court case between August 26,2011, and February 22,2012: Died-erich made his first appearance on the charges on September 14, 2011, and a public defender was appointed to represent him.
Another hearing — apparently a docket call — was scheduled for October 5, 2011, but Diederich did not appear. The district court entered a bench warrant for DiedericlTs arrest, apparently based on the assumption that Diederich had posted a bond and been released from custody. But since Diederich was serving a sentence with the Department of Corrections, that wasn’t possible. Instead, Diederich had been transferred to Douglas County for trial on charges pending there. Diederich was convicted there on October 27, 2011, of three counts of identity theft, and he was convicted of forgery in Cloud County in January 2012.
No further proceedings took place in Reno County until well after February 22, 2012. On June 13, 2012, Diederich sent a letter to the Reno County District Court providing documentation that he had not bonded out in October 2011; he said he was responding to a letter from the prosecutor stating that his request under the Uniform Mandatory Disposition of Detainers Act was no longer valid since he had bonded out and not been in custody.
On July 13, 2012, Diederich filed a pro se motion to dismiss the Reno County charges for lack of jurisdiction based on the 180-day time limit. The district court initially heard that matter on July 19 but set the matter over until August 1 to determine whether Died-erich had bonded out. On August 1, the court said that Diederich had indeed established that he had remained incarcerated since he had filed his request for disposition of the charges in August 2011.
The State argued that the 180-day limit had been tolled while Diederich was being held in other counties. After the district court asked for briefs on the matter, Diederich withdrew his motion to dismiss.
But he refiled the motion about 2 weeks later, shortly before a scheduled trial date. In that motion, filed by Diederich’s attorney, the attorney conceded that time when Diederich was being held in other counties should not count toward the 180-day period. The parties disputed how various time periods should be counted. The district court concluded that only 177 days had run when certain time periods were excluded, and the court denied Diederich’s motion to dismiss.
The parties then stipulated to certain facts for purposes of the trial. Based on tiróse stipulated facts, the district court found Died-erich guilty of identity theft, forgery, felony theft, and making false information. Diederich has appealed the convictions to this court, contending that the district court had no jurisdiction to try him because the 180-day limit under the Uniform Mandatory Disposition of Detainers Act had expired.
Analysis
Diederich contends that his right to a speedy trial under the Uniform Mandatory Disposition of Detainers Act was violated. Our Supreme Court has held that whether a defendant’s statutory speedy-trial right has been violated presents a legal question that the appellate courts must answer independently, with no required deference to the district court. Burnett, 297 Kan. at 451. To resolve that legal question, we must interpret the underlying statutes; that also is a matter we review independently. 297 Kan. at 451.
■ The key statutory provision in our case is K.S.A. 22-4303. It sets the 180-day limit, provides that a failure to meet that limit deprives the State of jurisdiction to pursue the criminal charges contained in the complaint, and provides for continuances only by stipulation, as granted in open court with the defendant or defense attorney present, or after notice to the defendant’s attorney with an opportunity for that attorney to be heard:
“Within one hundred eighty (180) days after the receipt of the request and certificate by the court and county attorney or within such additional time as the court for good cause shown in open court may grant, tire prisoner or his counsel being present, tire indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to tire attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and tire court shall dismiss it with prejudice.” K.S.A. 22-4303.
Our Supreme Court noted in Burnett that this statute provides three ways to extend the 180-day time limit: “(1) the court for good cause in open court grants additional time; (2) the parties stipulate to a continuance; or (3) a continuance is granted on notice to the attorney of record and opportunity to be heard,” 297 Kan. at 458.
Diederich’s argument on appeal is a simple one — that the 180-day time limit expired because it wasn’t extended under any of the ways authorized by tire statute. The State doesn’t argue that an extension was granted in one of the ways the statute authorizes. Instead, the State emphasizes that Diederich conceded in the dis trict court that the time during which he was being held in other counties should not be counted.
But Diederich has taken a contrary position on appeal, and because this is a question of the district court’s jurisdiction, he can do that. Parties cannot confer subject-matter jurisdiction (the authority to hear a specific claim) on a court by consent, waiver, or estoppel, so the failure to object to jurisdiction doesn’t eliminate a jurisdictional problem. See Bartlett Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 726-27, 256 P.3d 867 (2010). And our Supreme Court has applied that rule in a case involving a jurisdiction question under the Uniform Mandatory Disposition of Detainers Act.
In that case, Pierson v. State, 210 Kan. 367, 502 P.2d 721 (1972), the defendant had failed to raise the jurisdictional question not only before the district court but also on the direct appeal from his conviction. He then raised the failure to try him within the 180-day limit in a habeas corpus action under K.S.A. 60-1507. The district court granted relief, and our Supreme Court affirmed. The court did so because the failure to try a case within that 180-day time limit is jurisdictional, and the failure of the defendant to raise the issue at trial or in his direct appeal would not constitute a waiver of his rights under the Uniform Mandatory Disposition of Detain-ers Act. 210 Kan. at 371-72, 374. So the concession by Diederich’s attorney in the district court did not vest the court with jurisdiction if — under a proper interpretation of the Uniform Mandatory Disposition of Detainers Act — the time limit for trying Diederich on these charges had expired.
The State took no action to obtain an extension of the 180-day time limit before it expired. The district court did not enter any extension of the time limit before it expired. Accordingly, as of February 23, 2012, K.S.A. 22-4303 provided that “no court of this state shall any longer have jurisdiction thereof’ and that “the court shall dismiss [the complaint or information] with prejudice.” See Burnett, 297 Kan. at 459; State v. Rodriguez, 254 Kan. 768, Syl. ¶ 3, 869 P.2d 631 (1994); State v. Watson, 39 Kan. App. 2d 923, Syl. ¶ 2, 186 P.3d 812 (2008).
We therefore conclude that the district court was wtthout jurisdiction to try Diederich on these charges, and we reverse his convictions. We remand to the district court with directions to dismiss the complaint against Diederich with prejudice to its refiling. | [
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Standridge, J.:
Amy Sanchez, individually and as next friend of her son, Austin Sanchez (Plaintiffs), sued Unified School District No. 469 (USD 469); Kerry Brungardt, the Lansing Middle School principal; and two students and their parents seeking damages allegedly resulting from the students' bullying of Austin. Eventually, the only claim that remained was Plaintiffs’ claim of negligent supervision against USD 469 and Brungardt. The district court granted summary judgment in favor of Brungardt pursuant to the immunity provided in the Paul D. Coverdell Teacher Protection Act of 2001 (the Coverdell Act or the Act), 20 U.S.C. §§ 6731-6738 (2012), and in favor of USD 469 based on principles of re-spondeat superior liability and tire adoptive immunity provision of the Kansas Tort Claims Act (KTCA), K.S.A. 2013 Supp. 75-6104(i). Plaintiffs appeal only from the district court’s decision to grant summary judgment in favor of USD 469.
Facts
In the fall of 2011, Austin Sanchez, Cody Schmitendorf, and Michel Jeffries were seventh-grade students at Lansing Middle School, part of USD 469. Keriy Brungardt was the principal of the middle school and had held that position since 1998. Brooks Jenkins was tire vice principal of the middle school. The school had a zero-tolerance bullying policy in effect in the fall of 2011. Austin, Cody, and Michel each acknowledged receipt of information about bullying from presentations at the sohool.
Austin was new to the middle school in 2011 and did not know anyone there when the school year began. Austin claimed that a few weeks after school started, Cody began bullying him by pushing him and making fun of his height and his “ ‘lazy eye.’ ” On one occasion, Austin saw his sister, her friend, and Cody walking toward him as he was walking away from the building after school. Upon approach, Cody hit Austin with a water bottle, pushed him, put him into a headlock, and twice threw him to the ground. On another occasion, Cody confronted Austin outside the Lansing 4H building during an after-school party for the football team. According to Austin, Cody got mad about something, pulled out a pocket knife, and threatened to stab Austin. Austin told his mother, Amy, about both incidents. Austin also claimed that Cody would tell other students in the commons area before school that he was going to “lack Austin’s ass.” Cody said this 5 to 10 times, often loud enough for Austin to hear; sometimes Austin heard these threats from other students.
On October 25, 2011, Amy notified the police that Cody was physically bullying Austin. An officer met with Cody and his father. The officer warned Cody during this meeting that further verbal or physical abuse of Austin might result in criminal charges.
On October 26,. 2011, Amy and her boyfriend went to the school to report Cody’s bullying to Brungardt. Amy informed Brungardt that Cody had been bullying Austin since the beginning of the school year and most of the bullying occurred in the commons area before school, with some incidents taking place during football practice. Amy then told Brungardt about the two physical incidents that had occurred between the boys.
Brungardt later met with Austin to discuss the situation. Brun-gardt tiren called Cody to his office and spoke to the two boys together. Cody admitted that he bulbed Austin but denied malting fun of Austin’s lazy eye. Brungardt admonished Cody that he was to leave Austin alone and told Austin to inform Brungardt or Jenkins if Cody bothered him again. After sending Austin back to class, Brungardt talked to Cody at length about why he was engaging in the bullying behavior, about the school’s expectations for Cody’s behavior, and about how Cody should treat other students. After admonishing Cody again to leave Austin alone, Brungardt warned Cody not to retaliate against Austin. Brungardt then called Cody’s mother in Cody’s presence and informed her that Cody was being suspended for bullying Austin. Cody received 2 days of out-of-school suspension and 1 day of in-school suspension as punishment. When Cody returned to school, he met with a school social worker, who spoke with Cody about how to treat other students and told him that he should stay away from Austin.
Brungardt reported that he later checked with Austin five to six times to make sure the bullying had ceased, and Austin assured him there was no problem. Brungardt and Jenkins informed Austin’s team teachers of the situation between Austin and Cody so they could help monitor it.
On November 9, 2011, Amy and her boyfriend returned to the school to inform Brungardt that Cody was still making threats to physically harm Austin, but this time the threats against Austin were made to other students instead of directly to Austin. For example, Cody told another student to “ ‘keep Austin away from me or I will kick his ass.’ ” After meeting with Amy, Brungardt and Jenkins spoke to some of the students who were alleged to have heard Cody’s threatening statements. Those students confirmed the threatening statements were made. Brungardt next spoke with Austin, who also confirmed Cody’s threats to physically harm Austin were now being made to other students instead of directly to him. Brungardt asked Austin why he had not reported Cody’s behavior and then reiterated that Austin should let Brungardt, Jenkins, or another adult know if any additional threats or bullying occurred.
Brungardt next met with Austin and Cody together. During this meeting, Cody admitted telling his friend Dylan Hawley to “ ‘get [Austin] away from me’ or he would ‘lack [Austin] across the cafeteria.’ ” Brungardt informed Cody that his behavior violated the school’s zero-tolerance bullying policy, which had been explained in detail to Cody just weeks earlier in conjunction with the school’s decision to suspend Cody for bullying Austin. When Brungardt advised Cody’s parents of the violation, they agreed to obtain counseling for Cody in order to avoid imposition of yet another out-of- school suspension. Cody ultimately received 4 days of in-school suspension. In addition to this suspension, the school imposed the following restrictions upon Cody for the balance of the semester: (1) he was required to report to the school office upon arrival and remain in the office until school started and (2) he was required to report to and remain in the school suspension classroom during his lunch period.
During lunch period the next day, Michel — who was sitting at another table — made fun of Austin’s eye. Austin told Michel to “shut up.” Austin did not really know Michel, was not in any classes or school activities with him, and had never spoken to him prior to that day. When Austin and Michel were in the hallway after lunch, Michel said he was going to beat up Austin after school. Austin responded, “ ‘[Wjhatever,’ ” because he did not believe that Michel would do it, and he was not scared that Michel would hurt him. Austin did not report either conversation with Michel to any adult at school.
After school that day, Austin was outside near the school bus loading area when one of Michel’s friends and the friend’s brother pushed him; Austin pushed back. In response, Michel hit Austin, fracturing his jaw. Austin went to the nurse’s office. After Brun-gardt arrived at the nurse’s office, he called Amy and the Lansing Police Department to report the incident. Austin was transported to the hospital. While there, he provided a written statement to the police. Austin did not know why Michel would want to hit him and said the incident was unexpected. Neither Amy nor Brungardt were aware of any problems between Austin, and Michel prior to the November 10 incident, and there were no reports that Michel had ever previously threatened or hit anyone.
After calling Amy and the police, Brungardt called Michel’s father to request that Michel return to the school. Michel admitted to- Brungardt that he hit Austin. Michel denied, however, that hitting Austin had anything to do with Cody, who was not present when Michel hit Austin. Brungardt later met with Cody to determine if Cody was involved in any way with Michel hitting Austin. Consistent with Michel’s statement, Cody denied having anything to do with tire incident. Michel was suspended from school for the remainder of the semester and upon his return to school, he was not allowed in the general student population before school or during lunch. Amy removed Austin from the school following the incident and made arrangements for him to complete the semester by working at home with the help of a teacher. Austin enrolled in a new school at the beginning of the second semester.
On April 12, 2012, Amy filed suit individually and on behalf of Austin, bringing various tort claims against USD 469, Brungardt, Cody and his parents, and Michel and his parents. Plaintiffs ultimately dismissed or settled their claims with Cody, Michel, and their parents. Eventually, the only claim that remained was Plaintiffs’ claim of negligent supervision against USD 469 and Brun-gardt, which alleged that USD 469 and Brungardt breached their duty to provide Austin with a safe learning environment by failing to reasonably and promptly respond to notice of the ongoing bullying by Cody and Michel.
After conducting discovery, USD 469 and Brungardt moved for summary judgment alleging they were entitled to judgment as a matter of law based on immunity under the Coverdell Act and adoptive immunity under the KTCA. Plaintiffs later conceded that Brungardt was entitled to immunity under tire Coverdell Act. The district court ultimately granted summary judgment in favor of Brungardt based on Plaintiffs’ concession and in favor of USD 469 based on principles of respondeat superior liability. Plaintiffs filed a motion for reconsideration. Although denying Plaintiffs’ motion, the court noted in its order that, in addition to respondeat superior, its decision to grant summary judgment in favor of USD 469 also was based on the immunity provision set forth in K.S.A. 2013 Supp. 75-6104(i). Plaintiffs appeal from the district court’s grant of summary judgment in favor of USD 469.
Standard of Review
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, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to tire dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013).
Summary judgment should be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Nevertheless, a district court may grant a summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. In other words, if the disputed fact, however resolved, could not affect the judgment, it does not present a “genuine issue” for purposes of summary judgment. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 934-35, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013); Carr v. Vannoster, 48 Kan. App. 2d 19, 21, 281 P.3d 1136 (2012). Finally, and to the extent that resolution of this case involves statutory interpretation, the interpretation of a statute is a question of law over which appellate courts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
Analysis
On appeal, Plaintiffs argue USD 469 is not entitled to immunity for breach of its duty to properly supervise and protect its students (1) under the Coverdell Act; (2) under the doctrine of respondeat superior; or (3) under the exception to liability set forth in K.S.A. 2013 Supp. 75-6104(i). Plaintiffs also argue tire district court’s decision to grant summary judgment in favor of USD 469 violates § 18 of the Kansas Constitution Bill of Rights by effectively eliminating the common-law tort of negligent supervision without providing a substitute remedy. We address each of Plaintiffs’ arguments in turn.
Immunity under the Coverdell Act
Congress enacted the Coverdell Act as part of the No Child Left Behind Act. See 20 U.S.C. §§ 6731-6738. The Coverdell Act immunizes teachers from liability when they take “reasonable actions to maintain order, discipline, and an appropriate educational environment.” 20 U.S.C. § 6732. “Teacher” is-defined to include a teacher, instructor, principal, administrator, educational employee who works in a school, or individual school board member. 20 U.S.C. § 6733(6). The Coverdell Act applies to both public and private schools in states that receive funds under Chapter 70 of the education title. See 20 U.S.C. §§ 6733(4), 6734. Relevant here, the protection from liability provisions of the Coverdell Act provide:
“[N]o teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if—
“(1) the teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity;
“(2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
“(4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher.” 20 U.S.C. § 6736(a)(1), (2), and (4).
Plaintiffs claim that, by its veiy words, the protection provided by the Coverdell Act extends only to individual teachers, administrators, and school board members and does not provide protection from liability to entities like a school board or, as in this case, a school district. Conversely, USD 469 argues Congress intended to provide immunity not only to individuals, but to school districts as well. USD 469 presents the following rationale to support its argument:
1. The Act applies to states receiving federal funds for education. 20 U.S.C. § 6734;
2. The Act defines “State” to include its political subdivisions. 20 U.S.C. § 6733(5);
3. USD 469 is a political subdivision of the State of Kansas and receives federal funds for education;
4. Therefore, the Coverdell Act applies to USD 469.
But the rationale presented by USD 469 is incompatible with the unequivocal language of the Act. The most fundamental rule of statutory construction is that tire intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court first must attempt to ascertain legislative intent through an analysis of the language employed, giving ordinary words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history. 291 Kan. at 216. In the absence of a court ruling that is otherwise binding, our approach to interpreting federal statutes is tire same. State v. Bruce, 295 Kan. 1036, 1038, 287 P.3d 919 (2012). The language of tire Act here plainly and unambiguously states that it provides immunity from liability to individuals and not to entities. See 20 U.S.C. § 6733(6)(D) (The term “teacher” includes “an individual member of a school board [as distinct from the board].” [Emphasis added.]). Given the unequivocal language used by Congress, there is no need to speculate further about legislative intent; the protection provided by the Coverdell Act does not extend to tire school district as an entity here.
Immunity under the doctrine of respondeat superior
Although the Coverdell Act does not extend immunity to entities such as the school district here, the district court held that USD 469 was immune from liability based on tire legal principles underlying the doctrine of respondeat superior. Under this doctrine, an employer may be held liable to a third person for injuries caused by the negligence of an employee if the employee is acting within the scope of employment. Brillhart v. Scheier, 243 Kan. 591, 593, 599, 758 P.2d 219 (1988). Because the employers liability is predicated on the employee’s negligence under a theory of respondeat superior, however, a substantive finding that the employee was not negligent necessarily precludes recovery against the employer based on the employee’s actions. It is this latter principle upon which the district court relied to conclude that Brungardt’s immunity from liability necessarily precluded holding USD 469 liable for Brungardt’s acts under a theory of respondeat superior. Although this conclusion may appear logical at first glance, a careful review of the district court’s analysis casts considerable doubt on the accuracy of its conclusion.
An employer is generally relieved of liability under a theory of respondeat superior when a legal or factual determination has been made that the employee did not act negligently. In this case, however, the district court granted summary judgment without making any legal or factual determination on the issue of whether Brun-gardt committed a negligent act. We presume the district court did not reach this issue because, even if Brungardt had acted negligently, he was personally protected from liability for doing so based on the immunity provision of the Coverdell Act. But a defense personal to an employee, such as immunity, will not ordinarily extend to bar a claim against the employer for the employee’s negligence unless the rationale for the immunity also applies to the employer. See Restatement (Second) of Agency § 217(b)(ii) (1957) (“In an action against a principal based on the conduct of a servant in the course of employment!),] . . . [t]he principal has no defense because of the fact that. . . the agent had an immunity from civil liability as to the [agent’s] act.”). Although this specific language was not carried forward to the Restatement (Third) of Agency, the drafters of the updated version make clear that Restatement (Third) of Agency § 7.01 (2005) was intended to incorporate the principle that “[a]n agent’s immunity to civil liability does not shield the principal from liability based on respondeat superior for an act by an agent committed in the course of employment.” See Restatement (Third) of Agency § 7.01, Reporter’s Note (a), p. 123 (noting “[t]his section consolidates treatment of points made by Restate ment Second, Agency, in several sections, including § 217”); Restatement (Third) of Agency § 7.01, Reporter’s Note (e), p. 138 (citing Napier v. Town of Windham, 187 F.3d 177, 191 [1st Cir. 1999]).
Although no Kansas appellate court has cited to Restatement (Second) of Agency § 217 or Restatement (Third) of Agency § 7.01, our Supreme Court implicitly has adopted the underlying legal principles set forth in these sections, albeit in the context of a personal injury case involving workers compensation laws. See Bright v. Cargill, Inc., 251 Kan. 387, 837 P.2d 348 (1992). Bright was employed by Southwest, an outside company with whom Car-gill contracted to perform major repairs at a Cargill plant. Nanny was employed by LaborSource, Inc. (LSI), a temporary employment agency that had assigned Nanny to work at the Cargill plant. While working at the Cargill plant, Bright was severely injured after being struck by a box of chains that Nanny improperly positioned. Among the issues in Bright was whether Bright and Nanny, although employed by separate companies, were considered coem-ployees of Cargill. If so, Nanny would be immune from Bright’s claim of negligence under the relevant provision of the Kansas workers compensation law. And if Nanny was immune, LSI argued it should benefit from that immunity since LSI’s liability was purely derivative in nature.
The Bright court was not persuaded by LSI’s argument, concluding that any immunity granted to Nanny by the workers compensation act was personal to Nanny and did not inure to the benefit of his employer. 251 Kan. at 415. In coming to this conclusion, the court began by noting that tire Workers Compensation Act granted employers immunity in exchange for their responsibility to provide workers compensation bénefits/coverage to their injured employees. Because LSI had no workers compensation liability for Bright’s injuries, the court found LSI was not entitled to immunity under the Workers Compensation Act. See 251 Kan. at 413-15.
Although decided under the statutory framework applicable in workers compensation proceedings, the broad legal concept underlying the court’s holding in Bright is equally compelling here: The statutory immunity from liability granted by the legislature to an employee is personal to the employee and, therefore, does not shield the employer from liability under a theory of respondeat superior. 251 Kan. at 414 (“General respondeat superior principles seek to place the cost of work-related negligence on those enterprises that have produced the negligence risk. The negligent risk policy would be defeated by extending to an employer the benefit of a technical defense reserved solely for the employee.”).
The United States District Court for the District of Kansas faced a similar issue in the case of Garcia v. Estate of Arribas, 363 F. Supp. 2d 1309 (D. Kan. 2005). In Garcia, Ballard Aviation, doing business as Eagle Med (employer), argued that because its emergency medical workers (employees) were protected from liability for their own negligence under K.S.A. 65-6124, that protection extended up to shield Eagle Med from liability. According to the Garcia court:
“If, as Eagle Med suggests, the court were to conclude that the policy goals underlying [K.S.A. 65-]6124 required that employers also be absolved of liability for the ordinary negligence of their emergency medical personnel employees, that would mean the court must construe the statute to extend immunity to an entirely different class of persons tiran those expressly contemplated by the statute. Such a conclusion flies in the face of the very reasons for which respondeat superior liability was recognized. ‘The theory behind the common-law doctrine of vicarious liability was that the employer should be liable for the employee’s negligence to assure that an innocent injured third party would not have to suffer the loss due to the inability of the tortfeasor employee to respond in damages.’ Bair v. Peck, 248 Kan. 824, 843, 811 P.2d 1176, 1190 (1991). Thus, vicarious liability represents a policy choice that, as between an innocent victim and the otherwise innocent employer of a tortfeasor, the latter should bear the risk that the tortfeasor is incapable of satisfying any judgment arising from his [or her] negligence. See Bright v. Cargill, Inc., 251 Kan. 387, 406, 837 P.2d 348, 363 (1992) ([Citation omitted.]). The employer is better positioned tiran the victim to mitigate those risks by diligently selecting and training its employees, purchasing liability insurance, and passing on tire added costs to its customers.” 363 F. Supp. 2d at 1316.
In analyzing the propriety of extending immunity to employers of immune workers under the doctrine of respondeat superior, the Garcia court found two components of our Supreme Court’s analysis in Bright on that issue to be instructive:
“First, Bright states that the statutory immunity granted employees under the Workers Compensation Act was personal >to the employee, and therefore did not shield the employer from vicarious liability. Bright, 251 Kan. at 415, 837 P.2d at 368. Additionally, Bright reflects a narrow view of the immunity granted employers under that statute, stating, ‘If the tortfeasor is not the plaintiffs employer or co-employee, the statutes by necessaiy implication reserve for plaintiff his tortious remedy against defendant,’ and, ‘[T]he immunity granted by the workers’ compensation act is personal and does not purport to grant derivative immunity to general employers in the position of [LSI].’ [Citations omitted.]” 363 F. Supp. 2d at 1318.
The Garcia court ultimately held
“that if the Kansas Supreme Court were presented with the question of whether the immunity granted emergency medical workers under K.S.A. 65-6124 inured to the benefit of their employers based on the law of agency, the Kansas court would likely resolve this question under one of two alternative approaches (or perhaps a combination of both). First, the Kansas Supreme Court would likely extend its holding in Bright to conclude that the immunity conferred by K.S.A. 65-6124 was personal to the emergency medical workers and did not absolve their employers of liability. In the alternative, the Kansas Supreme Court would likely adopt the majority view, reflected in Restatement (Second) of Agency § 217, that immunities are personal to agents and employees, and may not be used as a defense for the principal or employer.” 363 F. Supp. 2d at 1320-21.
Based on die legal analysis in both Bright and Garcia, we conclude that Brungardt’s immunity from liability under the Coverdell Act was personal to him and, therefore, the doctrine of respondeat superior did not immunize USD 469 from liability for any negligent acts allegedly committed by Brungardt.
Adoptive immunity under the KTCA
The KTCA makes each governmental entity “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. 2013 Supp. 75-6103(a). The KTCA makes governmental liability the rule and immunity the exception. The burden is upon the defendant to establish immunity under one or more of the immunity exceptions. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 233, 262 P.3d 336 (2011).
Various exceptions to the general rule of liability are set forth in K.S.A. 2013 Supp. 75-6104. The exception cited by the district court in support of its decision to grant summaiy judgment in favor of USD 469 states that “[a] governmental entity . . . shall not be liable for damages resulting from . . . any claim . . . for injuries or property damage against an officer, employee or agent where the individual is immune from suit or damages.” K.S.A. 2013 Supp. 75-6104(i). Plaintiffs argue the district court erred in relying on this “adoptive immunity” exception to liability because their claim of negligence against USD 469 is based directly on the entity’s duty to properly supervise students and protect Austin from harm, as opposed to claiming USD 469 is liable for Brungardt’s negligence under the doctrine of respondeat superior.
Plaintiffs’ claim that USD 469 is directly liable for its own acts of negligence is grounded in the legal premise that a school district owes a duty of reasonable supervision and protection to elementary and secondary students. The duty flows from die district to the students and is distinct from comparable duties owed by certain district employees, including teachers. The duty has been recognized in Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 230-31, 40 P.3d 315, rev. denied 274 Kan. 1111 (2002), and Greider v. Shawnee Mission Unified School D. 512, 710 F. Supp. 296, 299 (D. Kan. 1989) (forecasting that the Kansas Supreme Court would recognize such a duty). The duty derives, in part, from the in loco parentis doctrine, recognizing that a school district stands in place of a student’s parents during school hours. An entity, such as a school district, which voluntarily assumes custody over individuals has a duty to take reasonable steps to protect those individuals when the custodial circumstances limit an individual’s ability to do so. See Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 270-71, 261 P.3d 943 (2011) (county owes reasonable duty to protect pretrial detainee held in its jail based on that special relationship, citing Restatement [Second] of Torts § 320 [1964]); Washington v. State, 17 Kan. App. 2d 518, 523-24, 839 P.2d 555 (1992) (State has duly to take reasonable steps to protect one inmate against attack from another inmate who had made threats also citing Restatement [Second] of Torts § 320); Restatement (Second) of Torts § 320, comment a, b, c (duty owed those in custody of another extends to children at school and includes reasonable protection against bullying by other students).
This duty is grounded in the special relationship between the district and the students. By comparison, a school district employee driving a district vehicle on district business owes a duty to other drivers to operate the vehicle in a nonnegligent manner. But the district itself owes no such duty to the general public, since the district has no special relationship with the general public. The district’s liability for the driver’s negligence is purely derivative under respondeat superior principles. Conversely, the district has an independent duty to reasonably protect its students from harm. When a district employee breaches that duty, the district may be held directly liable for any foreseeable injury to the student. Liability is not simply imputed to the district based on the employee’s breach of a duty he or she owed the student. To be sure, teachers and administrators individually owe a comparable duty to students, and a district could be held derivatively liable on a respondeat superior theory for a breach of that duty absent specific statutory immunities for such liability.
The Kansas Legislature has extended immunity granted government employees to government entities in K.S.A. 2013 Supp. 75-6104(i), thereby immunizing those entities when immunized employees breach their own duties of care. Whether USD 469 is entitled to adoptive immunity under this exception in this case requires us to interpret K.S.A. 2013 Supp. 75-6104(i). “Statutory interpretation raises a question of law over which this court has unlimited review. [Citation omitted.]” State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012). When a statute is plain and unambiguous, courts must give effect to its express language rather than determine what the law should be. Courts may not speculate as to legislative intent and may not read tire statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutory construction. But even if the language of a statute is plain and unambiguous, courts still must harmonize or reconcile various provisions of an act together to avoid statutory interpretations that would be unreasonable or render legislation meaningless. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010); Redd v. Kansas Truck Center, 291 Kan. 176, 201, 239 P.3d 66 (2010).
In applying this standard of review, we begin our analysis with the language of the statute itself.
• A governmental entity or an employee acting within the scope of the employee’s employment
• shall not be liable for damages resulting from any claim
• which is limited or barred by any other law or which is for injuries or property damage against an officer, employee, or agent where the individual is immune from suit or damages. K.S.A. 2013 Supp. 75-6104(i).
In order to be entitled to immunity from liability under the plain language of this provision, USD 469 must establish that Plaintiffs’ claim here, which is made directly against USD 469 and alleges USD 469 breached its own duty to properly supervise students and protect Austin from harm,
• seeks damages resulting from a claim that is limited or barred by the Coverdell Act; or
• seeks damages resulting from a claim against an officer, employee, or agent where the individual is immune from suit or damages.
Under the facts presented here, USD 469 is not entitled to adoptive immunity. First, Plaintiffs do not seek damages resulting from a claim that is limited or barred by the Act because the claim here is against the school district (USD 469) as an entity and not against any individual. Second, Plaintiffs do not seek damages resulting from a claim brought against an individual officer, employee, or agent. Again, Plaintiffs seek damages resulting from their claim against the school district as an entity; thus, individual immunity from suit or damages for claims brought against individual officers, employees, or agents is irrelevant to the analysis. Given the plain language of K.S.A. 2013 Supp. 75-6104(i), we conclude the adoptive immunity exception to liability reflects an intent by the legislature to ensure that, in applying the doctrine of respondeat superior, a governmental entity has available to it the same defenses and limitations on liability that woüld be available to the private employer in comparable circumstances. Our conclusion that K.S.A. 2013 Supp. 75-6104(i) was intended to ensure uniformity in applying the doctrine of respondeat superior is consistent with that reached by Professor William E. Westerbeke, a respected legal scholar on the issue of tort law in Kansas.
“Under respondeat superior courts impute the fault of the employee to the employer, but also make available to the employer any defenses available to the employee. The ‘other law or immunity’ provision should be viewed as simply ensuring that a governmental entity has available to it the same defenses and limitations on liability that would be available to the private employer in comparable circumstances. . . .
“. . . The traditional interpretation of respondeat superior should dictate these results even without the benefit of the ‘other law or immunity’ provision, and thus the provision should be viewed as reflecting legislative caution, not legislative intent to impose any limitations beyond those imposed by the doctrine of re-spondeat superior.” Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years, 52 Kan. L. Rev. 939, 953-54 (2004).
Given Plaintiffs are claiming USD 469 is directly liable for breaching its duty to properly supervise students and protect Austin from harm, a claim separate and distinct from its claim of indirect liability under the doctrine of respondeat superior, our decision finding K.S.A. 2013 Supp. 75-6104(i) inapplicable under the facts presented in this case is consistent with legislative intent.
For the reasons stated above, we conclude the district court erred in granting summary judgment in favor of USD 469 based on principles of respondeat superior liability and the adoptive immunity provision of the KTCA. As such, we reverse the court’s decision and remand for further proceedings. Because we are reversing and remanding this case to the district court for further proceedings, we need not address the Plaintiffs’ argument that the district court’s ruling violates § 18 of the Kansas Constitution Bill of Rights by eliminating the common-law tort of negligent supervision against a school district without providing any substitute remedy.
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Arnold-Burger, J.:
As part of a criminal investigation, law enforcement officers seized money and marijuana from Jacob Gilli-han. Several months later, the State initiated forfeiture proceedings against this property. After tire State moved for default judgment, the district court determined that it lacked jurisdiction over the action because the State failed to file its notice of pending forfeiture within 90 days of seizing the property. Accordingly, it dismissed the case. Because we find that the 90-day rule relied on by the district court does not deprive it of jurisdiction, we reverse the district court’s ruling.
Factual and Procedural History
On July 29, 2013, the State filed its initial notice of pending forfeiture over certain property it seized 5 months earlier, on Feb-ruaiy 14, 2013. The notice alleged that the property — approximately $17,023 in U.S. currency and 721.23 grams of marijuana— was either (1) the proceeds of or (2) used or intended to be used to facilitate violations of tire Uniform Controlled Substance Act, K.S.A. 65-4101 et seq. This notice was properly served on the owner of the property, Gillihan, via first class mail with return receipt and via publication. See K.S.A. 2013 Supp. 60-4109(a)(3).
After the statutory period for filing claims against the property expired without anyone claiming an interest, the State filed an application for default judgment for forfeiture. It supported this application with a verified affidavit from law enforcement. However, the district court filed a letter indicating that the State had apparently failed to comply with what it called the “90-day rule” in K.S.A. 2013 Supp. 60-4109(a)(l). The district court interpreted the statute to require that the property be automatically and permanently returned to an owner or interest holder if the State does not file its notice of pending forfeiture within 90 days of seizure. Although the district court acknowledged that no one had asserted rights over the property, it reasoned that the State needed to show it was “entitled to forfeit the money regardless of its failure to serve timely notice under the forfeiture act.” The district court requested that the State brief this issue.
The State responded first by filing an amended notice of pending forfeiture. In this amended notice, the State changed the date of seizure from February 14, 2013, to July 24, 2013. In a memorandum of law, the State argued that the 90-day rule in K.S.A. 2013 Supp. 60-4109(a) only applied if an owner or interest holder requested the return of the property — and that even a request by an owner or interest holder did not affect the State’s ability to proceed with the forfeiture action. Additionally, the State appeared to base tire changed date of seizure on when the Douglas County Drug Enforcement Unit completed its notice of seizure for forfeiture for Gillihan.
In December 2013, the district court issued a memorandum decision on the State’s motion. The district court rejected the State’s arguments, reasoning that the notice in K.S.A. 2013 Supp. 60-4109(a) constituted a due process requirement regardless of any requests for the property’s return. Finding that forfeitures are disfavored under the law, the district court strictly construed the statute against forfeiture and determined that the 90-day rule was mandatory. The district court then found that the State’s failure to comply with the statute stripped the court of jurisdiction and, accordingly, it dismissed the action.
The State timely appealed.
Analysis
On appeal, the State essentially argues that the district court misinterpreted K.S.A. 2013 Supp. 60-4109(a) and that, without any requests for return of the property, tire 90-day rule is inapplicable to the instant case. The State also discusses its theory of constructive seizure, arguing that the district court should have begun counting the 90 days in July 2013, not in February 2013.
Standard of review
Because this case revolves around the interpretation of a statute, this court exercises unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). The most fundamental rule of statutory construction is that the intent of tire legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). However, when a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013).
We examine the Kansas Standard Asset Seizure and Forfeiture Act.
The Kansas Standard Asset Seizure and Forfeiture Act (Act), K.S.A. 60-4101 et seq., provides for the seizure and civil forfeiture of property. The Act enumerates not only those offenses and behaviors that allow for forfeiture and the property that is subject to the Act, but it also establishes the procedural mechanisms by which seizure and forfeiture occur. See K.S.A. 60-4101 et seq. In this case, there is no dispute that the property in question is subject to forfeiture under the Act. Similarly, nothing in the record indicates that an owner or interest holder has claimed the property or asserted any other rights under the Act. Instead, the only issue is whether K.S.A. 2013 Supp. 60-4109(a) requires automatic dismissal of the forfeiture action if the State fails to act within 90 days of seizure.
Although this issue is narrow, it requires a broader understanding of the process and procedure of forfeiture under the Act. Property may be seized by what is called a seizing agency, provided that probable cause exists to believe the property is subject to forfeiture. K.S.A. 2013 Supp. 60-4107(a), (b). The seizing agency is simply “any department or agency . . . which regularly employs law enforcement officers and which employed the law enforcement officer who seized property for forfeiture.” K.S.A. 60-4102(r). After the property is seized, the seizing agency forwards a written request for forfeiture “to the county or district attorney in whose jurisdiction the seizure occurred.” K.S.A. 2013 Supp. 60-4107(g). The county or district attorney may then act on that request or decline it. K.S.A. 2013 Supp. 60-4107(h), (i). In certain situations, however, the seizing agency is permitted to employ an attorney other than a county or district attorney to pursue the forfeiture. K.S.A. 2013 Supp. 60-4107(h), (i). Because a variety of attorneys may litigate a forfeiture action, the Act employs the general term “plaintiff s attorney” to refer to the attorney who pursues a given forfeiture action. K.S.A. 60-4102(m).
Once property is seized for forfeiture, an owner or interest holder may file a claim to that property. K.S.A. 2013 Supp. 60-4111(a). The individual filing the claim — called the claimant— must explain both his or her interest in the property and why the property in question is not subject to forfeiture. K.S.A. 2013 Supp. 60-4111(b). Exemptions to forfeiture are listed in K.S.A. 60-4106. “The plaintiff s attorney may make an opportunity to file a petition for recognition of exemption available.” K.S.A. 60-4110(a).
Forfeiture proceedings are formally commenced either “by filing a notice of pending forfeiture or a judicial forfeiture action.” K.S.A. 2013 Supp. 60-4109(a). A notice of pending forfeiture is “a written statement by the plaintiff s attorney following a seizure of property but prior to the filing of a judicial complaint against such property.” K.S.A. 60-4102(g).
It is the first method of commencing the action — the filing of a notice of pending forfeiture — that is at issue in this case. The specific subsection relevant to this appeal provides:
“If the plaintiffs attorney fails to initiate forfeiture proceedings by notice of pending forfeiture within 90 days against property seized for forfeiture . . . , the property shall be released on the request of an owner or interest holder to such owner’s or interest holder’s custody, as custodian for the court, pending further proceedings pursuant to this act. Such custodianship shall not exceed 90 days following the release to the owner or interest holder unless an extension is authorized by the court for good cause shown.” K.S.A. 2013 Supp. 60-4109(a)(l).
Therefore, to succinctly summarize the subsection: If 90 days pass after the seizure of the property, and the State fails to file a notice of pending forfeiture and an owner or interest holder requests the property’s release, that owner or interest holder may receive the property and hold it as custodian for the court, pending further proceedings under the Act. K.S.A. 2013 Supp. 60-4109(a)(1).
The statute continues on to discuss special timing rules following the filing of a petition for recognition of exemption and to set out the notice requirements for proceedings under the Act. K.S.A. 2013 Supp. 60-4109(a)(2), (a)(3). As previously stated, no claimants came forward regarding this property, and sufficiency of notice is not an issue. Additionally, K.S.A. 60-4123 provides that the provisions of the Act “shall be liberally construed to effectuate its remedial purposes.” The statute of limitations under the Act is 5 years. K.S.A. 60-4120.
The district court was not deprived of jurisdiction when the State failed to file a notice of pending forfeiture within 90 days of the seizure of the property.
To return to the specific issue in this case, the district court examined K.S.A. 2013 Supp. 60-4109(a)(l) and determined that there was a 90-day time limitation embedded within that subsection that stripped the district court of jurisdiction when the State failed to act. By the plain language of the statute, it is obvious that some sort of 90-day time limit exists. However, the limit, in question is a narrow one, allowing for release of the property when the State fails to act within 90 days and the owner or interest holder requests tire property be released. K.S.A. 2013 Supp. 60-4109(a)(l). This language incentivizes swift action by State actors in forfeitures because it allows another individual to obtain some level of control over the seized property if the action is not timely pursued after seizure. But it is clear from the statute that the release only occurs after an individual requests it, reading that the property “shall be released on request of an owner or interest holder to such owner’s or interest’s holder’s custody.” (Emphasis added.) K.S.A. 2013 Supp. 60-4109(a)(l). We find no ambiguity in tire requirement that an owner or interest holder must first request release of the property.
Moreover, the statute indicates that the release of the property after 90 days is not a permanent relinquishment. For one, the owner or interest holder to whom the property is released holds die property “as custodian for the court,” suggesting that the disposition of the property is not permanent at that time. K.S.A. 2013 Supp. 60-4109(a)(l). Because a custodian is one who “has charge or custody (of a -.child, property, papers pr other valuables)” and custody is “[t]he care and control of a-thing or person for inspection, preservation, or security,” it is clear that tire owner or interest holder to whom the property is released is not the permanent holder of die property. Black’s Law Dictionary 467 (10th ed. 2014). The temporary nature of this disposition is consistent with other sections of the Act, which note that the seizing agency may do a number of things, including “provide for another agency or cus todian, including an owner ... to take custody of the property and service, maintain and operate it as reasonably necessary to maintain the property’s value, in any appropriate location within the jurisdiction of the court.” K.S.A. 60-4108(c)(4).
Additionally, the owner or interest holder is a custodian “pending further proceedings” under the Act. K.S.A. 2013 Supp. 60-4109(a)(1). Courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). If, as the district court reasoned, failure to act within 90 days required the automatic release of property and an end to the district court’s jurisdiction, the language referencing the necessity of a request to release the property and the “pending further proceedings” language would be rendered meaningless. Furthermore and, as previously stated, the Act’s statute of limitations is 5 years. K.S.A. 60-4120. To allow that statute of limitations to be cut dramatically short due to the untimely filing of a notice of pending forfeiture would similarly render tiróse provisions in subsection (a)(1) meaningless and create an absurd result.
No Kansas cases appear to directly address this issue, but courts from other states with similar forfeiture acts offer guidance. For instance, the similar Louisiana statute provides in relevant part:
“If the district attorney fails to initiate forfeiture proceedings against property seized for forfeiture by serving Notice of Pending Forfeiture within one hundred twenty days after its seizure for forfeiture or if the state fails to pursue forfeiture of the property upon which a timely claim has been properly served by filing a Petition for Forfeiture proceeding within ninety days after Notice of Pending Forfeiture, or if the district attorney fails to provide a written assertion, pursuant to the provisions of this Paragraph, the property shall be released from its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings pursuant to the' provisions of this Chapter.” La. Rev. Stat. § 40:2608(l)(a) (West 2014).
The Louisiana Court of Appeals discussed the operation of this statute in State v. Property Located at Oakland St., 727 So. 2d 1240 (La. App. 1999). There, the State filed a notice of pending forfeiture against a criminal defendant’s property in March 1997. The notice stated that the seizure of the property was in March 1996. After the State filed a petition for forfeiture in rem and the district court ordered that the property be forfeited, the criminal defendant challenged the validity of the proceedings in part because he argued that the State failed to comply with the 120-day rule in La. Rev. Stat. § 40:2608(1). Although the district court reversed a portion of its order of forfeiture for unrelated reasons, it dismissed the defendant’s petition as it related to the real property at issue, and the defendant appealed.
In examining an earlier but virtually identical version of La. Rev. Stat. § 40:2608(l)(a), the court construed the statute releasing property to the owner as “a property owner’s remedy for the untimely filing of Notice of Pending Forfeiture pending further proceedings ....’” 727 So. 2d at 1243. The court placed special emphasis on the statute’s “ pending further proceedings pursuant to the provisions of this Chapter’ ” language and the 7-year statute of limitations in effect at the time of the action, reasoning that “the lapse of time between the date of seizure and the Notice of Pending Forfeiture does not serve to defeat the State’s in rem action commenced by the filing of the Petition In Rem.” 727 So. 2d at 1243. Instead, the court determined that “the lapse of time would only allow a provisional release of the property on request of an owner or interest holder pending further proceedings.” 727 So. 2d at 1243. Moreover, the court noted that, according to the record, the owner — who did file a claim to the property — never requested the property’s release. 727 So. 2d at 1243. Because the owner never requested release, the court found that the argument regarding the State’s delay in acting was moot. 727 So. 2d at 1244; see also Turner v. State, 213 Ga. App. 309, 311, 444 S.E.2d 372 (1994) (holding that, under recent statutory changes, an owner or interest holder’s “sole remedy for any failure by the district attorney to initiate the present [forfeiture] action . . . was to request the return of the property pending further proceeding”); State v. Branch, 719 So. 2d 154, 155 (La. App. 1998) (“[T]he failure of the state to timely pursue forfeiture does not prevent the state from continuing forfeiture proceedings; failure to timely pursue forfeiture simply allows the property to be released upon a proper request to an owner or interest holder during the pendency of the forfeiture proceeding.”). But see In re $3,636.24, 198 Ariz. 504, 506, 11 P.3d 1043 (Ariz. App. 2000) (holding that failure to comply with a similar, 60-day rule mandated release of property from seizure after the owner requested its release); In re Property Seized From Williams, 676 N.W.2d 607, 612-13 (Iowa 2004) (holding that because the State failed to follow the 90-day rule after the owner requested the property’s release, the State lost its right to move for forfeiture and the district court lost the authority to hear the forfeiture action).
We agree with the rationale of the Louisiana and Georgia courts. Nothing in the record suggests that Gillihan or any other interest holder requested release of the property at issue here. Accordingly, the time limitation in K.S.A. 2013 Supp. 60-4109(a)(l) was inapplicable.
The State also contends that the property in question was not seized for the purposes of forfeiture until July 24, 2013, and urges this court to begin counting the 90-day time limit from the date of what it terms its constructive seizure of the property. However, the State’s proposed distinction between seizure for criminal prosecution and seizure for forfeiture is immaterial to the outcome of this case; therefore, there is no need to address it here.
Because the 90-day time limitation in K.S.A. 2013 Supp. 60-4109(a)(1) did not apply and would not have deprived the court of jurisdiction if it did, the district court continued to have jurisdiction over the proceeding. As such, it erred in dismissing the action. Accordingly, its decision is reversed and the case remanded for further proceedings.
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Leben, J.:
Laurie Herron appeals from the district court’s order requiring her to pay $6,864.10 in restitution to Oxford House to make amends for forging its checks and withdrawing money from its bank account without authorization. Herron argues that the district court abused its discretion by not considering that she only makes $680 per month before taxes and child support are subtracted when it ordered her to pay restitution and determined that repaying the full amount would be workable.
We agree. Herron certainly cannot pay $6,864 in restitution during the 18-month term of her probation. Even if Herron paid at the modest rate of $10 per month, an option the State suggested could be Workable, she would be paying restitution for the next 57 years. That isn’t workable. Poverty can justify reducing or eliminating a defendant’s obligation to pay restitution, and the district court erred by holding otherwise. Accordingly, we vacate the district court’s restitution order and remand this case so that a workable restitution order may be entered.
Factual and Procedural Background
Herron was arrested on three counts of forgery and one count of theft after she made unauthorized withdrawals of $4,966 from Oxford House’s bank account for her personal use and unlawfully endorsed $170 of Oxford House’s checks. Herron initially entered into a diversion agreement with the State, under which she agreed to pay $6,864.10 in restitution and to do community service; the State agreed not to prosecute her for 24 months.
But Herron’s diversion was revoked because she failed to make the restitution payments. As a result, the criminal proceedings against her were reinstated. She was convicted of three counts of forgery and one count of theft and sentenced to 18 months of probation with an underlying prison sentence of 8 months that she would have to serve if she didn’t successfully complete her probation.
At sentencing, the State asked for $7,709.94 in restitution for Oxford House. The court asked Herron about her financial situation, and she explained that she worked 37 hours per week at Subway (the maximum allowed there) but had little money left over after she took care of necessities. She also said that child-support payments of about $37 per week were deducted from her paycheck. Because of her low income, Herron requested that the court not make restitution a condition of her probation.
In response, the judge acknowledged Herron’s poverty but expressed skepticism about her ability to waive the restitution requirement; foe judge ultimately ordered Herron to pay foe amount to which she had previously agreed:
“I understand Ms. Herron’s indigency, but I don’t know that I can just waive restitution. I can waive court costs and I can Waive attorneys’ fees, but I don’t think I am able to just waive restitution, so I am going to order restitution in the amount that had been previously agreed upon, $6,864.10.”
Herron objected and told the court that it could decline to order restitution if it found that restitution would be unworkable. The court ordered an additional hearing so that it could determine restitution then.
The court gave Herron permission to miss the second restitution hearing so that she would not have to miss work. But before dismissing Herron, the judge told her that she expected her to make a good-faith effort to repay her debt to Oxford House and discussed extending her probation to allow her time to repay it:
“If you are working at making a good faith effort to pay what you can on the restitution, I am not going to send you to prison for that, but I still expect that you make a good faith effort on that, and then we will just look at this at the end of 18 months and see where you are on it. You may end up getting your probation extended to give you more time.”
Herron then filed a formal motion opposing restitution. In the motion, Herron told the court that monthly payments in any amount would be unworkable because she lives below the poverty line. She explained that she makes $680 a month at Subway but pays $392 per month for her car, health insurance, and rent. Herron said that after buying food at $161.10 per month, she is left with only $32 per week for items like soap, medicine, and socks. Herron contended that she had no resources with which to repay Oxford House and that restitution in her case would be unworkable.
In response, the State contended that indigency alone should not excuse a defendant’s obligation to pay restitution. Further, the State argued that while paying restitution may “take a long time . . . that does not make it unworkable.” The State suggested that Herron could at least pay $10 per month: “Even if she were to provide $10/month it is something. It would be a slow process, however, it is workable.’ ”
The court decided that Herron should be required to pay restitution and said that poverty alone doesn’t excuse the repayment of restitution under Kansas law:
“The case law is clear that indigency alone is not enough in order to forgive an order of restitution. Ms. Herron is working. I have to agree with the State that it may take a long time to get this restitution paid off, but it’s workable at some point and can be paid off. ... It just needs to become important to her to pay the restitution. So, it is ordered.”
Accordingly, the court ordered Herron to pay the amount of restitution that she’d agreed to as part of her diversion: $6,864.10. The district court made no specific order about how this amount should be paid down during the probation period.
Herron appealed the restitution order to this court.
Analysis
Herron argues that the district court erred by ordering her to pay $6,864.10 in restitution to Oxford House because the amount is unworkable in light of her financial circumstances. This court reviews the amount of restitution ordered by a district court for an abuse of discretion. State v. Hall, 297 Kan. 709, 711, 304 P.3d 677 (2013). A district court abuses its discretion when it bases its decision on an error of fact or law or when it makes a decision that no reasonable person would agree with. See State v. Hand, 297 Kan. 734, Syl. ¶ 2, 304 P.3d 1234 (2013).
Under Kansas law, district courts are instructed to order defendants to pay restitution to the victims of their crimes if they are given nonprison sentences, unless compelling circumstances make paying restitution unworkable. K.S.A. 21-4603d(b)(1) (“[T]he court shall order the defendant to pay restitution . . . unless the court finds compelling circumstances would render a plan of restitution unworkable.”). Accordingly, restitution is the rule, and finding that restitution is unworkable is the exception. State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 (2003). The burden is on the defendant to prove that paying the requested restitution is unworkable. State v. King, 288 Kan. 333, 356, 204 P.3d 585 (2009).
As an initial matter, the State argues that Herron can’t object to the amount of restitution the court ordered because it claims she didn’t present evidence of her inability to pay it at the district court. Though the State is correct that in order for this court to consider Herron’s argument, she had to have objected to the amount of restitution at the district court, Herron did protest the amount of restitution the State requested at sentencing. See Goeller, 276 Kan. at 583. In fact, she filed a formal motion requesting that restitution not be imposed as a condition of her probation, and she testified about her difficult financial circumstances at the initial sentencing hearing. Though Herron wasn’t present at the second hearing where the restitution was imposed, she’d already filed a motion explaining why she lacked the ability to pay restitution. Herron therefore sufficiently preserved this issue for our review.
Herron argues that the district court abused its discretion by ordering her to pay an amount of restitution she had demonstrated she could not pay. As we noted, a district court abuses its discretion when its decision is based on an error of fact or law or when no reasonable person would agree with its decision. See Hand, 297 Kan. 734, Syl. ¶ 2. The district court abused its discretion in Herron’s case because it based its decision on an error of law and because it ordered a restitution amount no reasonable person would agree is workable.
First, the district court’s decision was based on an error of law. The district court said that poverty alone could not justify relieving a defendant of her obligation to pay: “The case law is clear that indigency alone is not enough in order to forgive an order of restitution.” In support of this proposition, the court cited two cases: Puckett v. Bruce, 276 Kan. 59, 73 P.3d 736 (2003), and King, 288 Kan. 333. Neither case, however, stands for the proposition that a defendant’s poverty alone can’t justify relief from restitution repayment.
In Puckett, the issue was whether the district court had discretion to allow the defendant to retain some money each month in his prison account while collecting the remainder for restitution. The Kansas Supreme Court held that it was within the district court’s discretion what amount of restitution it would require a defendant to pay and that it wasn’t an abuse of this discretion to leave the defendant with some spending money. 276 Kan. at 62-64.
In King, the issue was whether the district court must question a defendant’s financial ability to pay restitution when the defendant doesn’t argue at sentencing that restitution is unworkable. The Kansas Supreme Court held that because the defendant has the burden to show that restitution is unworkable, the court doesn’t have to investigate a defendant’s financial circumstances before imposing it. 288 Kan. at 354. Thus, the district court lacked support for its unequivocal statement that poverty can’t be the basis for relieving a defendant of tire obligation to pay restitution.
More relevant dran Puckett and King is State v. Schulze, 267 Kan. 749, 985 P.2d 1169 (1999). In drat case, the district court initially entered a restitution order for $14,026.92, but after the defendant made payments for several months (totaling $1,900), the court released the defendant from the remaining obligation, subject to the condition that if the defendant unexpectedly had a dramatic increase in income before his probation ended, the court could reconsider. In that case, the defendant had an annual income of $18,000 a year, was working two jobs, and supported his wife and tirree school-age children. His telephone had been shut off for nonpayment, the propane to his farmhouse had been cut off for nonpayment, and he was behind on two car payments. The Kansas Supreme Court affirmed the district court’s ruling and concluded “that compelling financial circumstances existed which necessitated relief from the sizable bill.” 267 Kan. at 752. The court held that the district court had not abused its discretion by considering “Schulze’s evidence of his financial difficulties” as a basis for releasing the defendant from further restitution payments. 267 Kan. at 753. Schulze confirms that restitution payments maybe excused based on a defendant’s financial indigency.
Our court also has noted that “a defendant’s ability to pay restitution is a relevant factor for a district court to consider in determining whether to order restitution and the proper amount.” State v. Sullivan, No. 98,799, 2009 WL 596520, at *4 (Kan. App.) (unpublished decision), rev. denied 289 Kan. 1285 (2009). That’s consistent not only with Schulze, but also with Goeller, where the Kansas Supreme Court noted that it was the defendant’s responsibility to come forward with evidence of his inability to pay. 276 Kan. at 583. If a defendant’s inability to pay wasn’t intended to be a compelling circumstance that could justify excusing or reducing resti tution payments, then the Supreme Court would not have explained that the defendant is responsible for introducing such evidence. If the ability to pay restitution didn’t impact restitution, then the evidence Goeller was criticized for not introducing would not even have been relevant.
We do not suggest that poverty alone is always a compelling circumstance that should relieve a defendant of the obligation to pay restitution, but poverty alone can justify a decision to not impose restitution or to reduce it. In assuming that it could not, the district court made an error of law and thus abused its discretion by not considering whether Herron’s poverty made the amount of restitution she was ordered to pay unworkable.
Second, the district court abused its discretion by finding that the restitution it ordered would be “workable” in light of Herron’s financial circumstances. When no reasonable person would agree that a restitution amount would be workable in light of the defendant’s financial circumstances, the district court has abused its discretion in setting the amount.
Our court has addressed this circumstance in two unpublished decisions: State v. Burke, No. 104,014, 2011 WL 3444324, at *2 (Kan. App. 2011) (unpublished decision); State v. Orcutt, No. 101,395, 2010 WL 348281, at *5-6 (Kan. App.) (unpublished decision), rev. denied 290 Kan. 1101 (2010). In Orcutt, we held that a district court abused its discretion by ordering a defendant to pay restitution of $625 per month when he made only $980 per month because no reasonable person would find that such high monthly payments would be financially workable given the defendant’s income. 2010 WL 348281, at *5-6. In Burke, we held that a district court abused its discretion when it ordered a defendant to pay $14,348 in restitution after acknowledging that she would likely never be able to repay it. 2011 WL 3444324, at *2.
The district court in Burke stated that the defendant should make a “good-faith effort” to compensate the victims of her crimes by paying $5 a month in restitution. 2011 WL 3444324, at *1-2. In finding that such an order constituted an abuse of discretion, our court noted that if Burke paid $5 per month toward her restitution total, she’d be making payments for 239 years. 2011 WL 3444324, at *2. We therefore held that no reasonable person would agree with the district court that the amount of restitution Burke was ordered to pay was workable. 2011 WL 3444324, at *2.
Herrons case is similar to Burke or Orcutt. Like in Burke, if Herron paid the $10 per month the State suggested, she would be making payments for 57 years — an inordinately long time compared to her 18-month probation. Herron was 33 years old at the time the court ordered restitution. While her probation could be extended (giving the court supervisory power over her until payments were made), it’s not reasonable to keep someone under court supervision to make restitution payments for 57 years. See K.S.A. 21-4611(c)(7) (allowing the indefinite extension of probation to pay unpaid restitution), later recodified as K.S.A. 2013 Supp. 21-6608(c)(7); State v. Gordon, 275 Kan. 393, 402-07, 66 P.3d 903 (2003) (concluding that probation could be extended without a hearing for. unpaid restitution, applying K.S.A. 21-4611[c][7]). By contrast, if Herron attempted to pay the restitution she owed during her 18-month probation, she would be paying $381.34 per month, which would constitute more than half of her total income — obviously an unworkable situation at her income level.
In sum, while our legislature has provided in K.S.A. 21-4611(c)(7) for a potentially indefinite extension of probation to pay court-ordered restitution, K.S.A. 21-4603d(b)(1) requires that the restitution order itself be workable. The dissent suggests that our ruling might result in unpaid restitution. But the entry of high restitution orders that can’t be paid in any reasonable time frame would make the workability requirement of K.S.A. 21-4603d(b)(1) meaningless. We must read these statutory provisions together, and read together they balance the competing interests of the payment of restitution to victims of crime and the provision of reasonable requirements to a probation that is to be rehabilitative, not punitive. See State v. Schad, 41 Kan. App. 2d 805, 818-20, 206 P.3d 22 (2009).
There is no firmly established line between a workable restitution plan and an unworkable one. But we conclude that no reasonable person would agree that requiring Herron to pay either $6,864.10 in 18 months or $10 a month for the next 57 years is workable. The district court erred here by adopting only a total restitution amount while providing no plan — workable or otherwise — for paying it.
We cannot say what the proper order would be in this case. That is not our role: the restitution amount is set by the district court, exercising its discretion. On remand, the district court might choose to enter a restitution award for the full amount while providing for a payment plan that the defendant could meet and for the defendant to notify the court of any change in income. We also do not determine in this case how long such a probation might be extended to allow additional payments. We have said that keeping the defendant under probation supervision for 57 years — the required length to pay this debt off at $10 per month — would be unreasonable, but where to draw that time-line cutoff is not before us in this appeal since the district court provided no payment plan at all.
The district court’s order requiring Herron to pay $6,864.10 is therefore vacated, and this case is remanded to the district court for a restitution order consistent with this opinion. | [
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Powell, J.:
P.Z.K.’s natural father, D.A. (Natural Father), appeals the district court’s ruling terminating his parental rights and granting the stepparent adoption by D.M. (Stepfather). Natural Father argues (1) the district court should have applied K.S.A. 2013 Supp. 59-2136(d) instead of K.S.A. 2013 Supp. 59-2136(h), and (2) the district court erred by refusing to consider the involuntary payment through garnishment of his tax refund as payment towards his child support obligation. Because we hold that the district court properly applied K.S.A. 2013 Supp. 59-2136(h), we affirm.
Factual and Procedural History
P.Z.K. was born in 2002. In July 2011, P.Z.K.’s mother and the Kansas Department of Social and Rehabilitation Services (SRS) filed a petition to establish paternity, alleging Natural Father was the child’s biological father and requesting an order for child support. P.Z.K.’s mother (Mother) and Natural Father were never married. On November 10, 2011, genetic testing established Natural Father as the child’s biological father. The court ordered Natural Father to pay $205 per month in child support and reimburse SRS $5,071.47 for support it provided to the child.
Mother married Stepfather, who filed a petition to adopt P.Z.K. on October 4, 2013. Mother consented to the stepparent adoption, but Natural Father refused to consent. In January 2014, tire Lyon County district court terminated Natural Father’s parental rights and granted the adoption of P.Z.K. by Stepfather.
Natural Father timely appeals.
Should the District Court Have Applied K.S.A. Supp. 59-2136(d) Instead of K.S.A. 2013 Supp. 59-2136(h)?
K.S.A. 2013 Supp. 59-2136(d) typically governs the termination of parental rights in stepparent adoptions while K.S.A. 2013 Supp. 59-2136(h) governs the termination of parental rights in all other adoptions. For the first time on appeal, Natural Father argues drat as this was a stepparent adoption, the district court should have applied K.S.A. 2013 Supp. 59-2136(d) instead of K.S.A. 2013 Supp. 59-2136(h).
Generally, issues not raised before tíre trial court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. See State v. Breeden, 297 Kan. 567, 574, 304 P.3d 660 (2013)((declining, to consider issue for this reason). Natural Father fails to explain why we should consider this issue for the first time on appeal. Nevertheless, an exception to the general rule applies: this issue involves only a question of law which is determinative of the case. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008) (new legal theory may not be asserted for first time on appeal unless the theory involves question of law arising on proved or admitted facts and is finally determinative of case), cert. denied 555 U.S. 1178 (2009).
Because this issue involves the interpretation and application of K.S.A. 2013 Supp. 59-2136, this is a legal question over which appellate courts exercise unlimited review. In re Adoption of 293 Kan. 153, 158, 260 P.3d 1196 (2011).
Natural Father argues the district court should have applied K.S.A. 2013 Supp. 59-2136(d) because it specifically governs stepparent adoptions. K.S.A. 2013 Supp. 59-2136(d) states:
“(d) In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 2013 Supp. 23-2208 ... or who has a father as to whom tire child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent.”
Natural Father relies on J.M.D. where our Supreme Court analyzed the statutory framework in K.S.A. 2010 Supp. 59-2136 and how it applies when a stepfather seeks to adopt his wife’s children. 293 Kan. at 159. It carefully looked at subsections (d) and (h) and found:
“The clearly stated intent [of the legislature] was to treat the parental rights termination of natural or presumed fathers differently in stepparent adoptions than in other types of adoptions. That stated intent contradicts any implication that the legislature intended to incorporate the parental termination provisions of subsection (h) into the stepparent adoption provisions of subsection (d).” 293 Kan. at 162.
Our Supreme Court also stated that K.S.A. 2010 Supp. 59-2136(h)
“do[es] not apply to the question of whether a natural father must consent to the adoption of his children by a stepfather. The legislature intended for that question to be answered by the provisions of K.S.A. 2010 Supp. 59-2136(d), unaffected by the provisions governing the termination of parental rights in other types of adoptions.” 293 Kan. at 163.
In J.M.D., the father was a presumed father of the child under K.S.A. 38-1114(a)(l) because the father and mother were married when J.M.D. was bom. Therefore, the stepparent adoption of J.M.D. was governed by K.S.A. 2010 Supp. 59-2136(d) which specifically states it applies when the father is “a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114” or when the child is a “legitimate child under prior law of this state.”
This case is distinguishable from J.M.D. because K.S.A. 2013 Supp. 59-2136(d) only governs when there is a presumed father due to a marriage relationship as described in K.S.A. 2013 Supp. 23-2208(a)(l), (2), or (3), or when the child is the father’s child under the prior law of this state. In this case, Natural Father became the presumed father due to genetic testing under K.S.A. 2013 Supp. 23-2208(a)(5), not subsections (1), (2), or (3). See also In re Adoption of C.A.T., 47 Kan. App. 2d 257, 262-63, 273 P.3d 813 (2012) (distinguishing J.M.D. for same reason).
However, Natural Father does not claim K.S.A. 2013 Supp. 23-2208(a)(1), (2), or (3) apply. Instead, he claims subsection (d) applies because P.Z.K. is his legitimate child under the law due to the 2011 paternity case. However, Natural Father’s interpretation excludes a veiy important word. K.S.A. 2013 Supp. 59-2136(d) says the child must be the father’s “legitimate child under prior law of this state.” (Emphasis added.) The goal of statutoiy interpretation is to ascertain the intent of the legislature. See In re Adoption of S.J.R., 37 Kan. App. 2d 28, 33, 149 P.3d 12 (2006). Words must be given their plain meaning, and language found in the statute cannot be excluded. 37 Kan. App. 2d at 33.
The legislature’s reference to “prior law” is ambiguous because it could refer to laws prior to the current statutes, laws in effect before K.S.A. 2013 Supp. 59-2136(h) was enacted, or laws before any other specified point in time. Because the statute is ambiguous, we may look to the canons of construction, including the canon known as noscitur a sociis, which literally translates to “it is known from its associates.” This canon requires us to compare tire ele ments identified in the statute to determine the meaning of any one of those words or phrases. State v. Spencer, 291 Kan. 796, 808, 248 P.3d 256 (2011). Its effect is that the meaning of a doubtful word or phrase “may be clarified or ascertained by reference to those words or phrases with which it is associated.” Young Partners v. U.S.D. No. 214, 284 Kan. 397, 408, 160 P.3d 830 (2007).
Looking at the subsection as a whole, the use of the term “legitimate child” signals that the prior law being referred to was when Kansas statutes distinguished between legitimate and illegitimate children. Prior to 1985, Kansas law differentiated between children bom of a marriage (legitimate) and children bom outside of marriage (illegitimate). See K.S.A. 59-501 (Ensley 1983); Gross v. VanLerberg, 231 Kan. 401, Syl. ¶ 1, 646 P.2d 471 (1982) (“The father of an illegitimate child has a duty of support similar to that imposed upon the father of a legitimate child where the relationship of father and child has been established by acknowledgment of paternity or the judgment of a court of record having jurisdiction of the case.”); K.S.A. 38-1101 etseq. (Ensley 1981); K.S.A. 38-1101 etseq. (Ensley 1986) (K.S.A. 38-1101 through 38-1110 repealed in 1985 and replaced by K.S.A. 38-1111 through 38-1130); K.S.A. 38-1112 (Ensley 1986) (“The parent and child relationship extends, equally to every child and to every parent, regardless of the marital status of the parents.”).
We conclude K.S.A. 2013 Supp. 59-2136(d) refers to situations covered under Kansas statutes prior to 1985 to the extent that the statute applies if the child qualifies as “a legitimate child under prior law” of this state. The genetic test presumption in K.S.A. 2013 Supp. 23-2208(a)(5), under which Natural Father s paternity was established, was not added until 1994. L. 1994, ch. 292, sec. 5 (Subst. H.B. 2583). K.S.A. 2013 Supp. 59-2136(d) only applies to stepparent adoptions when the child has a presumed father due to a marriage or attempted marriage under K.S.A. 2013 Supp. 23-2208(a)(1), (2), or (3); or if the child qualifies as a legitimate child of the man under pre-1985 law. Natural Father does not fall into either of these categories. Therefore, the district court was not required to apply K.S.A. 2013 Supp. 59-2136(d)'.
Was There Sufficient Evidence to Support The District Court’s Finding of Unfitness?
The district court found Natural Father unfit under K.S.A. 2013 Supp. 59-2136(h)(l)(A) & (G), which state as follows:
“[T]he court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
(A) The father abandoned or neglected the child after having knowledge of the child’s birth; [or]
(G) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the fifing of the petition.”
Because K.S.A. 2013 Supp. 59-2136(h) provides that a court may terminate parental rights upon a finding by clear and convincing evidence of any of tire factors listed in that subsection, the district court’s alternative finding under K.S.A. 2013 Supp. 59-2136(h)(1)(A) — that Natural Father abandoned or neglected P.Z.K. from 2005 to the present — is sufficient to uphold its unfitness finding. The district court found “that while there was contact between the minor child and the natural father for the first three years of the child’s life, that contact largely ended in 2005.” Natural Father does not challenge this ruling on appeal.
In light of the fact that Natural Father does not challenge the district court’s finding of abandonment or neglect under K.S.A. 2013 Supp. 59-2136(h)(1)(A) as a basis for its unfitness finding, we affirm the district court on that basis alone. We need not address Natural Father’s other arguments concerning whether there was sufficient evidence to support the district court’s finding under K.S.A. 2013 Supp. 59-2136(h)(l)(G) that he failed or refused to assume the duties of a parent for 2 consecutive years preceding the filing of the petition.
Affirmed. | [
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Pierron, J.:
Madan Rattan, a partner in Kaneb Investment Group, LLC (Kaneb), individually appeals the district court’s judgment against him on a claim brought by Gleason & Son Signs (Gleason). Gleason was a subcontractor to Persona, a business entity that contracted with Kaneb to manufacture and install a sign on Kaneb’s motel property. Rattan argues the district court erred in finding Gleason was entitled to judgment against him for expenses related to the relocation of the sign.
Rattan is a partner and one-third owner in Kaneb, which owns the Sleep Inn motel in Salina, Kansas. During the construction of the motel, Kaneb contracted with Persona to manufacture and install a sign on the motel property. Persona then subcontracted with Gleason to install the sign. Neither written contract is included in the record on appeal. According to bench trial testimony, the contract between Persona and Gleason contained provisions that stated: “ ‘Please schedule a pre-install survey to mark out the location of the ground sign’ and “ ‘Invoice will not be completed without detailed completion photos and the customer signoff re-tum[ed] to us.’ ”
Gary Gleason, president of Gleason, testified that his normal practice before installing a sign is to talk to the project'supervisor and the property owner and come to an agreement about where the sign should be installed. He does not check site plans to verify that the agreed sign location is actually on the owner’s property. In July 2008, Gary spoke to Kenny McDonald, the project supervisor for the construction of the motel, and to Rattan about where to install the sign. Rattan stated he owned all of the property between the motel and the interstate, so Gary could pick the best location. Gary and McDonald chose a spot, at which point McDonald went back to Rattan and got Rattan’s approval for that location.
Gleason dug a hole and was preparing to pour concrete when an employee of the Kansas Department of Transportation (KDOT) approached and asked if Gleason was sure that the motel owned the property where tire sign was being installed. Gary and McDonald went back to Rattan, who stated the property was owned by a co-op and that he was the majority owner of tire co-op. Gaiy questioned whether the sign could be installed on co-op property. Rattan ultimately told Gaiy to “ ‘do whatever [he had] to do/ ” so Gleason filled in the first hole and moved the sign to a new location. Gleason was paid by Persona for the work performed to install the sign at the new location. However, Gleason did not invoice Persona for expenses related to the false start at die first location. Instead, it directly sent a bill to Kaneb for $2,901.06 for those expenses, which Kaneb refused to pay. Gleason did not file a mechanic’s lien.
McDonald was the job supervisor at the construction site of the motel, although he did not work for Kaneb. McDonald testified Gary approached him about where to install the sign. They chose a location and then went to Rattan for approval. Rattan gave his approval, stating he owned all the properly out to the fence line along the interstate. Gleason started to install the sign at the approved location, but a KDOT employee approached Gleason and questioned whether the location was on motel property. McDonald and Gary went back to Rattan, who approved moving the sign to a new location.
Rattan also testified at the bench trial. He stated he did not have any discussion with Gary or McDonald about where the sign should be located until after it was discovered that Gleason had begun installing tire sign on property not owned by Kaneb. Rattan further stated he refused to pay tire invoice from Gleason because he did not have a contract with Gleason and did not ask it to do anything. Rattan contacted Persona, who informed him it had denied payment to Gleason for the work related to the false start at the first location.
In October 2010, Gleason filed an action against Rattan and Kaneb, claiming it was entitled to recover costs related to moving the sign from tire first location, a location which Rattan had personally approved in his apparent capacity as owner of the motel project. Rattan and Kaneb denied Rattan had approved the first location for tire sign or that he had told Gleason to “do what needed to be done” to move the sign after the mistake was discovered. They also asserted that they had no privity of contract with Gleason.
The district court held a bench trial, at which the above testimony was presented. At the close of Gleason’s evidence, Rattan and Kaneb moved for judgment as a matter of law. They argued that under Kansas law, a subcontractor has no privity of contract with a property owner and cannot make a claim against a property owner except by filing a mechanic’s hen, which Gleason failed to do. Furthermore, if Rattan’s statements could be construed as guaranteeing the payment owed by the general contractor (Persona) to the subcontractor (Gleason), then there was no written contract that met the statute of frauds.
The district court denied the motion. It found that Gleason’s evidence showed Rattan, acting individually and with authority as the owner of the motel, had directed Gleason to install the sign in a location that turned out to be improper. Gleason, relying on Rattan’s ownership representations and his authority to make such decisions, incurred additional expenses when it had to relocate the sign from the location that Rattan had approved. Thus, Rattan was not entitled to judgment as a matter of law.
At the close of all evidence, Rattan and Kaneb argued that if the district court were to construe Gleason’s claim for payment as some kind of promissory estoppel argument, then the claim was barred by the statute of limitations. They also reiterated their argument that a subcontractor cannot make a claim against a property owner except by filing a mechanic’s lien, unless the property owner has agreed to pay. Thus even if the facts were as Gleason suggested, Rattan and Kaneb could not be held hable for the extra expenses related to moving the sign because they had never agreed to pay those expenses and Gleason never filed a mechanic’s lien:
The district court entered judgment in favor of Gleason against Rattan individually for expenses related to the false start at the first location. The district court found as a factual matter that Kaneb had contracted with Persona and Persona had subcontracted with Gleason to install the sign at the motel. Rattan stated he owned all of the property out to the interstate and personally approved the first location of the sign. Gleason then relied on those statements when it began to install the sign at the first location. After it was discovered that the first location was not motel property, Rattan authorized tire relocation of the sign and directed Gleason to do the necessary work. Rattan, as an owner of tire motel property who was frequently at the job site, had the ostensible authority to make such decisions. Persona was not involved in any of these discussions, and no attempt was made to modify either the contract between Kaneb and Persona or the contract between Persona and Gleason as a result of the false start. Persona did not enforce the terms of its contract with Gleason regarding the pre-install survey or customer sign-off and made payment to Gleason pursuant to the terms of the contract.
Based on these factual findings, the district court found that Rattan and Gleason had entered a new contract, apart from their original owner-subcontractor relationship, concerning the placement and relocation of the sign. As such, Rattan’s defense regarding the statute of limitations and mechanic’s lien requirements were inapplicable, and Gleason was entitled to judgment against Rattan for the work it performed related to the false start. Rattan timely appeals.
On appeal, Rattan argues the district court erred in granting judgment against him. He contends that under Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 549 P.2d 1376 (1976), in the absence of privity of contract Gleason’s only remedy against him was to file a mechanic’s lien, which it failed to do. Gleason could not circumvent the mechanic’s lien statute by asserting that a new contract was created between Gleason and Rattan based on Rattan’s approval of the initial location and relocation of the sign. And as a factual matter, no new contract was created because Rattan received no consideration for his alleged promise to pay. Finally, Rattan asserts Gleason breached provisions of its contract with Persona that were intended to benefit Kaneb, and therefore Gleason should be precluded from circumventing this breach by bringing a claim directly against Rattan. Gleason did not file an appellate brief.
The first question we must consider is whether, pursuant to Holiday Development and other applicable caselaw, the only remedy available to Gleason against Rattan or Kaneb was to file a mechanic’s hen. The interpretation of caselaw precedents is a question of law subject to unlimited review. Scott v. Hughes, 294 Kan. 403, 412, 275 P.3d 890 (2012).
In Holiday Development, the materialman provided rock base to a subcontractor who had contracted to build the parking lot of an office building. The subcontractor abandoned the parking lot project and failed to pay the materialman for the rock base it had furnished. The materialman then approached the general contractor, an agent of the property owner, who allegedly told him, “ ‘Don’t worry about it, you will get your money.’ ” 219 Kan. at 702. The general contractor ultimately hired a new subcontractor to finish the parking lot and paid $4,500 more than its contract price with the original subcontractor.
Sometime later, tire materialman filed a mechanic’s hen against the property owner. The property owner then filed suit against tire materialman, asking for the hen to be cancelled and seeking damages from the materialman for clouding the title to its property. The materialman counterclaimed, asking for foreclosure of its hen and for a personal judgment against the property owner based on theories that: (1) it was a third-party beneficiary of the contract between the property owner (through its agent the general contractor) and the original subcontractor; and (2) the property owner (through its agent the general contractor) had agreed to pay for the materials. The district court found the mechanic’s lien had been timely filed and denied the property owner’s motion to cancel the hen. It also entered personal judgment against the property owner in favor of the materialman, although it gave no reasons for its judgment.
On appeal, our Supreme Court first found that the mechanic’s hen was not timely filed and was therefore invalid. 219 Kan. at 704-07. It then considered the validity of the personal judgment against the property owner, noting that “[a] subcontractor or materialman generally may not obtain a personal judgment against the owner in the absence of an agreement by the owner to pay. [Citations omitted.]” 219 Kan. at 707.
The materialman sought to uphold the judgment on several different bases, including the third-party beneficiary and agreement-to-pay theories raised before the district court. Our Supreme Court rejected each of these theories, finding tire materialman was not a third-party beneficiary and the owner had not agreed to pay for the materials. 219 Kan. at 707-09. Finally, our Supreme Court considered whether the judgment could be upheld on a quasi-contract theory:
“[The materialman] further says the trial court impliedly found a quasi-contract between [the properly owner] and [the materialman] due to [the property owner’s] unjust enrichment. . . . The theory of quasi-contract is raised by the law on the basis of justice and equity regardless of the assent of the parties. [Citation omitted.] Many courts have considered whether a subcontractor or materialman can obtain a personal judgment against an owner on the basis of quasi-contract or unjust enrichment, in the absence of privity of contract or a direct promise to pay. The overwhelming weight of authority is in die negative (see Anno., Subcontractor’s Recovery Against Owner, 62 ALR 3d 288, § 4, 297-303).
“Reasons given for the position include: (1) The mechanic’s lien statute was enacted to afford the owner protection after a certain period of time from the claims of a subcontractor or materialman; if the latter did not avail himself of the statutory remedy, he should not be allowed to circumvent the statute and impose direct liability against the owner on another theory; (2) the prime contractor may already have been paid in full by the owner for the improvements furnished by the subcontractor or materialman and there really is no unjust enrichment; (3) generally the owner may assume suppliers dealing with a contractor will look to him for payment of their obligations and the subcontractor or materialman may not have exhausted his possible remedies against the person to whom he originally looked for payment; and (4) defenses which may be available to the contractor as against tire subcontractor or supplier may not be known or available to the owner. These appeal" to be sound reasons, dependent, of course, on the particular circumstances. We need not labor the matter. The defaulter here was [the subcontractor], By reasons of the default $4,500 more was required to complete the job. There was an indication [the materialman] knew [7 months before it filed its lien] diat [the subcontractor] had quit work yet it did nothing. We see no unjust enrichment in the case in support of a personal judgment.” 219 Kan. at 708-09.
In Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 21 Kan. App. 2d 56, 64-65, 896 P.2d 393 (1995), aff'd in part and rev’d in part on other grounds 259 Kan. 166, 910 P.2d 839 (1996), this court indicated that a subcontractor could not recover from a property owner on a quasi-contract theoiy if the subcontractor had failed to avail itself of an available statutory remedy:
“ ‘[A]partfrom unjust enrichment or from any special statutory rights or remedies, a subcontractor or supplier who has furnished labor or materials for an improvement has no right to a personal judgment against one not in privity.’ (Emphasis added.) J.W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 511-12, 758 P.2d 738 (1988). Consequently, under certain circumstances, an action based on unjust enrichment might be actionable if there were no statutory Hen available.”
The Haz-Mat Response court noted its previous finding that the subcontractor’s work in that case was not lienable under the mechanic’s hen statutes, K.S.A. 60-1101 and K.S.A. 60-1103. It then considered whether the circumstances of the case would permit the subcontractor to bring a quasi-contract claim against the property owner. After applying the Holiday Development factors, the court determined that a quasi-contract claim was permissible. 21 Kan. App. 2d at 65.
On petition for review, our Supreme Court acknowledged but did not specifically address this court’s conclusion that a subcontractor’s failure to avail itself of an available mechanic’s lien would preclude it from bringing a quasi-contract action against a property owner. However, our Supreme Court approved the Holiday Development factors for use in deciding whether a subcontractor can bring a quasi-contract claim against a property owner with whom it lacks privity. Our Supreme Court concluded that even if a quasi-contract action were permissible under the circumstances, the undisputed facts of the case showed that the property owner would not be Hable under that theory and thus the subcontractor was not entitled to remand on his quasi-contract claim. Haz-Mat Response, 259 Kan. at 179.
Under the above caselaw, it is unclear whether our Supreme Court views a subcontractor’s failure to avail itself of an available mechanic’s lien as an absolute bar to a quasi-contract claim against a property owner or whether such failure is merely one factor to be considered in determining whether a subcontractor can bring a quasi-contract claim under the circumstances.
In either case, a subcontractor s failure to avail itself of a mechanic’s lien only negatively impacts its quasi-contract claim against a property owner if a mechanic’s lien was actually a remedy available to the subcontractor. Since Rattan does not explicitly challenge on appeal any of the district court’s factual findings, the question of whether a mechanic’s lien was available to Gleason under K.S.A. 60-1103 is a question of law subject to unlimited review. See Haz-Mat Response, 259 Kan. at 168-70.
K.S.A. 60-1103 states in relevant part:
“(a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor
There is no dispute that Gleason furnished labor, equipment, material and/or supplies used at the site of the motel property or that Gleason did so under its agreement with Persona, which was a contractor of Kaneb. However, tire statute further states that a lien is obtainable “for the amount due in the same manner and to the same extent as the original contractor” — in this case, whatever amount was contracted between Kaneb and Persona for the manufacture and installation of the sign. But it is clear from the facts of this case that Gleason was seeking recovery for additional expenses incurred as a result of the false start. A mechanic’s lien was not an available remedy for Gleason to recover expenses beyond the contract price, expenses that were incurred as a result of its reliance on Rattan’s approval of the first sign location and authorization to relocate the sign once the mistake was discovered.
Because a mechanic’s lien was not an available remedy for the relief Gleason sought, its failure to file a mechanic’s lien did not bar it from seeking recovery under another theory.
Rattan contends the district court erred in granting judgment against him on the theory that a “new” contract existed between himself and Gleason regarding the first placement and subsequent relocation of the sign. He argues there was no evidence he received consideration for the formation of such contract and thus no con tract existed. But it appears the district court found a contract implied in law, not a contract implied in fact.
“A contract implied in fact is one ‘inferred from the facts and circumstances of the case’ but which is ‘not formally or explicitly stated in words.’ [Citation omitted.] It is the product of agreement, although it is not expressed in words. [Citations omitted.] A contract implied in law does not rest on actual agreement. It is a legal fiction created by die courts to ensure justice or to prevent unjust enrichment. [Citation omitted.]” Smith v. Amoco Production Company, 272 Kan. 58, 70, 31 P.3d 255 (2001).
Thus, Rattan’s argument that the requisites of contract formation were not met in this case is without merit. The only issue before us is whether the district court correcdy concluded that Gleason was entitled to judgment against Rattan under an equitable, quasi-contract theory.
When the material facts are not in dispute, whether a subcontractor can recover from an owner on a quasi-contract theory is a question of law subject to unlimited review. See Haz-Mat Response, 259 Kan. at 176.
In the context of a quasi-contract claim brought by a subcontractor against a property owner, the essential prerequisite for liability is
“the acceptance by the owner (the one sought to be charged) of benefits rendered under such circumstances as reasonably notify the owner that the one performing such services expected to be compensated therefor by the owner. In the absence of evidence that the owner misled the subcontractor to his or her detriment, or that the owner in some way induced a change of position in the subcontractor to his or her detriment, or some evidence of fraud by the owner against the subcontractor, an action for unjust enrichment does not He against the owner by a subcontractor.” 259 Kan. at 178.
See also Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 464-65, 507 P.2d 268 (1973) (“ ‘Quasi[-] contractual obligations are generally based on unjust enrichment or benefit, but this is not universally true. There are many cases where the law enforces in a contractual action a duty to restore the plaintiff to former status — not merely to surrender the benefit which the defendant has received.’ ”); The Haile Group v. City of Lenexa, No. 102,319, 2010 WL 4977221, at *9 (Kan. App. 2010) (unpublished opinion) (stating that the terms “quasi-contract,” “unjust enrichment,” and “quantum meruit” are used interchangeably in Kansas and a claim based on any such theory is typically considered equitable in nature), rev. denied 292 Kan. 969 (2011).
The undisputed facts show Rattan personally approved the first location of the sign and then authorized Gleason to relocate the sign when it was discovered the first location was not on motel property. Rattan was benefitted by this work, as the sign was ultimately placed in a proper location and presumably enhanced the visibility of the motel. Although Rattan did not benefit in the sense that he was placed in a better position than he would have been if the sign were placed correctly the first time, this type of excess benefit is not a necessary element of a quasi-contract claim. See Minnesota Avenue, 211 Kan. at 464-65. Furthermore, Rattan could reasonably expect under these circumstances that Gleason would seek compensation from him for this work, at least to the extent that additional expenses were incurred as a result of Rattan’s mistake regarding the first location of the sign. Although there is no evidence that Rattan intentionally misled or perpetrated fraud on Gleason, it is undisputed that Gleason relied to its detriment on Rattan’s incorrect information and Gleason would not have begun installing the sign at the first location but for this incorrect information.
Rattan argues that Gleason breached its contract with Persona. Since the provisions that Gleason allegedly breached — i.e., the requirements for a pre-install survey and customer sign-off after the sign was installed — were meant to benefit Kaneb, it would be inequitable to allow Gleason to bring a separate claim against Kaneb or Rattan. In other words, Rattan appears to contend it was Gleason’s breach of contract with Persona, not his own statements regarding where the sign could be located, that caused the additional expenses to be incurred. But the district court did not explicitly find that Gleason had breached its contract with Persona, only that Persona apparently did not enforce all the terms of the contract. Even assuming for the sake of argument that Gleason breached its contract, it is clear from the undisputed facts that the predominant cause for the improper placement of the sign was Rattan’s statements regarding his ownership of the land and his approval of the first location, not Gleason’s purported failure to conduct a pre-install survey or to submit a customer sign-off to Persona after the sign was installed.
The final question for us to consider is whether recovery under this theory should be permitted under the circumstances of the case. As discussed above, a mechanic’s lien was not an available remedy to Gleason, and thus the first Holiday Development factor is not at issue. Under the second factor, Rattan was unjustly enriched to the extent that he received the full benefit of a properly-placed sign without paying for the additional expenses incurred as a result of his own mistake regarding the first location. Under the third factor, Rattan has not suggested any remedies that Gleason could or should have pursued against Persona (the general contractor). According to Rattan’s testimony, Gleason did demand payment from Persona for the additional expenses and was denied. Without a copy of the contract between Persona and Gleason included in the record on appeal, it is impossible for us to determine whether Gleason would have a viable breach of contract claim against Persona. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013) (stating that the burden is on the party making a claim to designate a record sufficient to support that claim). For the same reason, the fourth factor is not at issue.
For the above reasons, Rattan may be held liable to Gleason under a quasi-contract theory, and the balance of the equities supports the enforcement of liability under the circumstances of the case.
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Buser, J.:
Patricia Norris appeals the district court’s dismissal of her petition for review of the Kansas Employment Security Board of Review’s (Board) decision denying her request for unemployment benefits. The district court ruled that it lacked jurisdiction over Norris’ petition because she failed to file it in a timely manner.
This case requires us to decide whether the time period to file a petition for judicial review from a decision of the Board is solely controlled by the Kansas Employment Security Law (KESL), K.S.A. 44-701 et seq., or whether, and to what extent, the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., is also applicable. The Board contends the time period is controlled by the KESL alone and that Norris filed her petition for review out of time. We agree with Norris, however, that the KJRA also applies and that both acts should be read together and in harmony. Accordingly, we hold that Norris filed a timely motion for reconsideration with the Board and a timely petition for judicial review with the district court, which resulted in the district court having jurisdiction to consider this unemployment compensation case. We reverse and remand.
Factual and Procedural Background
Norris worked as a service technician for Air and Fire Systems from 2008 until 2011 when she voluntarily terminated her employment. As alleged by Norris, she left her employment because the company’s president was wrongfully withholding commissions and behaving in an unprofessional manner.
Norris applied for unemployment benefits, but on August 30, 2011, an examiner for the Kansas Department of Labor (KDOL) denied her request, finding that Norris left work “without good cause attributable to the work or the employer.” Norris timely appealed the examiner’s decision. After a telephone hearing, the referee affirmed the examiner’s decision because Norris “ha[d] not shown that her voluntar[y] separat[ion] from her employment was due to an emergency or that she could not have waited to quit until she found new employment.”
Norris appealed the referee’s adverse decision to the Board. On February 14, 2012, the Board mailed its decision to Norris affirming the referee’s ruling and providing her with the following notice of her appeal rights:
“The Board’s decision becomes final sixteen (16) days after the above mailing date. If any aggrieved party desires to appeal, it must be filed in the district court within this period of time. The procedure for appealing to [the] district court is provided for in K.S.A. 44-709(i) and K.S.A. 77-601, et seq., as amended. After filing a petition for judicial review in [the] district court, a copy of the petition should be served on Cecelia Resnik, Executive Secretary, Employment Security Board of Review.”
Instead of filing a petition for judicial review, however, Norris filed with the Board what the parties agree was “a motion to reconsider its decision.” The motion for reconsideration was mailed to the Board on March 1, 2012, 16 days after the Board mailed its decision to Norris.
In response to the motion, on March 6,2012, Resnik sent Norris’ counsel a letter on behalf of the Board, which acknowledged the motion and stated:
“Our records indicate that on February 14, 2012, after the Board reviewed all the evidence in the case, the[ Board] issued a decision affirming the Referee’s decision. The decision mailed by the Board clearly sets forth that if you are aggrieved by the Board’s decision that you must file an appeal in the district court. The basic guidelines for filing this appeal are set forth on the decision. The Board does not handle filing the appeal for you, but you must do so individually or through your own attorney.
“An appeal must be filed within 16 days of tire mailing date of the decision of the Board. You may file your appeal in the same Kansas County in which you live. Failure to file an appeal within 16 days of that date may cause dre court to find you have failed to act in a timely manner.”
On March 21, 2012 — 36 days after the Board’s decision to deny unemployment compensation and 15 days after Resnik’s letter— Norris filed a petition in Shawnee County District Court seeking “judicial review of the Decision issued on February 14, 2012, . . . and [t]he Board’s refusal of a motion to reconsider their Decision, dated March 6, 2012.”
The Board moved the district court to dismiss the petition for lack of jurisdiction. In particular, the Board argued that Norris failed to file her petition for judicial review within 16 days of February 14, 2012, the date the Board mailed its decision affirming the referee’s ruling. The Board also asserted that Norris’ motion for reconsideration did not toll the time to file the petition because, under K.S.A. 2013 Supp. 44-709(i) of die KESL, the Board lacks the statutory authority to reconsider its decisions. Finally, the Board noted that its February 14, 2012, order “clearly informed Norris of her obligation to seek review in the district court widiin 16 days of the mailing of the [ojrder.”
In response, Norris argued that while the Board did not formally deny her request for reconsideration, Resnik’s letter qualified as an “ 'action ” of the Board, which extended the jurisdictional deadline for filing a petition for review by an additional 16 days. Norris also asserted it was the standard practice of the Board to accept motions for reconsideration; and whenever the Board denied such a request, it always “did so with an Order granting a new sixteen (16) day period for higher appeal to the District Court.”
The district court dismissed the petition for lack of jurisdiction on September 26, 2012. The district court acknowledged that “[bjoth the KJRA and [KESL] provide procedures for judicial review of unemployment insurance appeals.” Nevertheless, the dis trict court thought that “[t]he timeframe for Petitions for Review of the Board’s decisions is prescribed by [the KESL,]” specifically K.S.A. 2013 Supp. 44-709(i), which the district court read to require the filing be made within 16 days of the February 14, 2012, mailing of the Board’s decision. The district court noted that even if the motion for reconsideration had tolled the 16-day period, Norris still filed her petition for judicial review too late. Regarding Norris’ claim that the Board should have granted her “16 additional days to appeal following her motion to reconsider,” the district court disagreed, stating Norris “could indefinitely postpone the finality of the Board’s decision by filing an infinite number of motions.” Finally, the district court discounted Norris’ assertion the Board had historically granted extensions of time, explaining that “the time for making an administrative appeal is jurisdictional.”
Norris filed a motion to alter or amend the judgment under K.S.A. 2013 Supp. 60-259(f). In contrast to her previous position, Norris now argued that since Resnick’s letter of March 6, 2012, was not actually a ruling on the motion for reconsideration, she had 90 days under the KJRA to petition for judicial review. See K.S.A. 2013 Supp. 77-631(b). For its part, the Board asserted the reconsideration provisions of the KJRA did not apply because the Board had no authority to reconsider its decisions under the KESL. The Board also suggested Norris was actually seeking reconsideration under the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., see K.S.A. 2013 Supp. 77-529(b), which it similarly asserted did not apply to unemployment compensation matters.
On January 3, 2013, the district court issued an order denying Norris’ motion to alter or amend. The district court found that, despite the Board’s argument to the contrary, the filing of a permissive motion for reconsideration could toll the timeframe for fifing a petition for review but it did not entitle a claimant to a new 16-day time period. The district court, however, declined to consider Norris’ new argument pertaining to the applicability of K.S.A. 2013 Supp. 77-631(b) because “ ‘[mjotions to alter and amend judgment may properly be denied where the moving party could have, with reasonable diligence, presented the argument’ prior [to the] [c]ourt’s decision.’ ”
Norris filed a timely appeal with this court.
Did the District Court Have Jurisdiction to Consider Norris’ Petition for Review?
On appeal, Norris contends the district court erred when it dismissed her petition for judicial review for lack of jurisdiction. Norris reprises her argument from tire motion to alter or amend, claiming that although the Board had statutory authority to consider her motion for reconsideration, it neglected to take any action on that motion rendering her petition for judicial review timely under the 90-day provision set forth in K.S.A. 2013 Supp. 77-631(b) of the KJRA. The Board, on the other hand, claims that while the district court improperly inteipreted the KESL to authorize reconsideration of its prior decisions, the district court reached the correct result because Norris’ argument relies entirely upon the procedures set forth in the KAPA, even though the KESL establishes its own procedures. Of note, the Board does not brief the applicability of the KJRA aside from its effect on our court’s standard of review.
Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011), cert. denied 133 S. Ct. 158 (2012). Moreover, resolution of this issue requires our court to interpret the statutory language found in the KESL, KJRA, and KAPA. See Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500-01, 293 P.3d 707 (2013) (setting forth a summary of general rules regarding statutory interpretation). In particular, appellate courts exercise unlimited review over questions involving the interpretation or construction of a statute, owing “ ‘no significant deference’ ” to the Board’s interpretation or construction. See Hill v. Kansas Dept. of Labor, 292 Kan. 17, 21, 248 P.3d 1287 (2011); Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 456-57, 228 P.3d 403 (2010).
The fundamental question presented on appeal is whether the district court had jurisdiction to consider Norris’ petition for ju dicial review. A brief historical review of the KESL and KJRA is necessary to address this question.
The KESL is old administrative law, having its roots in an act of 1937. See K.S.A. 44-701; L. 1937, ch. 255. The KESL sets out certain procedures, which it states are controlling rather than the “common law or statutory rules of evidence.” K.S.A. 2013 Supp. 44-709(g). This is reflective of the period before the 1984 enactments of the KAPA and the KJRA, which “represented a major step toward uniformity in administrative procedures and review in Kansas after a long history of substantial diversity in both areas.” Leben, Survey of Kansas Law: Administrative Law, 37 Kan. L. Rev. 679, 680 (1989).
In a case considering the KESL shortly after its enactment, the Kansas Supreme Court held the “law is complete within itself and provides its own procedure.” Smith v. Robertson, 155 Kan. 706, 711, 128 P.2d 260 (1942). Our Supreme Court repeated this formulation in later cases, but the most recent reference was in 1973, in City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 403, 517 P.2d 117 (1973), a case the Board relies on in its brief. Research located only one statement of this formulation by our court in the 1986 case of State ex rel. Wolgast v. Schurle, 11 Kan. App. 2d 390, 392, 722 P.2d 585 (1986) (citing City of Hutchinson).
In 1986, however, the legislature amended the judicial review provisions of the KESL to incorporate the KJRA. See L. 1986, ch. 318, sec. 59. It is helpful to first consider some of the language in place before the 1986 amendment:
“(1) Any decision of the board, in the absence of an action for judicial review of tlie decision as provided by this section, shall become final 16 calendar days after the date of the mailing of the decision. Judicial review of a decision shall be permitted only after a party claiming to be aggrieved by die decision has exhausted die party’s remedies before the board as provided by this act.
“(2) Within 16 calendar days after the decision of the board has been mailed, the examiner, or any party aggrieved by the decision, may secure judicial review of the decision by commencing an action against the board for die review of its decision in the district court of the county in which the party resides or has the party’s principal place of business or, if the aggrieved party is a nonresident of the state of Kansas, in the district court of Shawnee county.” K.S.A. 1985 Supp. 44-709(i).
The 1986 amendment to the KESL produced the following language, which is still law:
“Any action of the board is subject to review in accordance with the act for judicial review and civil enforcement of agency actions [now the KJRA]. No bond shall be required for commencing an action for such review. In tire absence of an action for such review, the action of the board shall become final 16 calendar days after the date of the mailing of the decision.” L. 1986, ch. 318, sec. 59(i).
See K.S.A. 2013 Supp. 44-709(i).
Contrary to the Board’s legal position in this case, it is apparent that after the 1986 amendment, the KESL is no longer complete in itself, at least with regard to judicial review. Instead, the “[ajctions of the Department of Labor are reviewable under the . . . (KJRA). See K.S.A. 44-709(i).” Milano's Inc., 296 Kan. at 500. Our court has similarly recognized this fact, applying the KJRA’s 3-day mail rule in a KESL proceeding, notwithstanding the lack of any such procedural language in the KESL. See Transam Trucking, Inc. v. Kansas Dept. of Human Resources, 30 Kan. App. 2d 1117, 1122, 54 P.3d 527 (2002).
Turning to the KJRA, it notably frames the time period to file a petition for judicial review in terms of “reconsideration” and “final order.” So, “[i]f reconsideration has not been requested and is not a prerequisite for seeking judicial review, a petition for judicial review of a final order shall be filed within 30 days after service of the order.” (Emphasis added.) K.S.A. 77-613(b). And “if reconsideration has been requested or is a prerequisite for seeking judicial review, a petition for judicial review of a final order shall be filed: (1) Within 30 days after service of the order rendered upon reconsideration . . . [or] (2) within 30 days after service of an order denying the request for reconsideration.” (Emphasis added.) K.S.A. 77-613(c).
We can define this further beginning with “final order.” The KJRA defines “ ‘[f]inal agency action’ ” to mean “the whole or part of any agency action other than nonfinal agency action,” K.S.A. 77-607(b)(1), and “agency action” is defined to include “[t]he whole or a part of... an order.” K.S.A. 77-602(b)(l). Given that judicial review generally is provided for a “final agency action,” K.S.A. 77-607(a), “final order” and “final agency action” are synonymous. So, in accordance with the KJRA, judicial review may be taken from a “final order,” or a “final agency action.” K.S.A. 77-607(a); K.S.A. 77-613(b) and (c).
With regard to reconsideration, the KJRA does not frame the time period to file in terms of whether reconsideration is permitted by any provision of law but whether it was requested by the party seeking judicial review. In this appeal, it is undisputed that Norris requested reconsideration. This request was consonant with KJRA’s language and procedure.
We acknowledge that no provision of law requires the Board to consider a motion to reconsider. Nevertheless, the Board points to no law prohibiting it from doing so. Norris argues the Board has frequently reconsidered decisions in the past, a claim the Board does not dispute on appeal. Instead, the Board acknowledges that “[w]hy this was the practice of the Board in the past is not clear.”
The KESL provides the Board’s procedure “shall be in accordance with rules of procedure prescribed by the . . . [Bjoard ... for determining the rights of the parties.” K.S.A. 2013 Supp. 44-709(g). Pursuant to this provision, the Department of Labor issued the following regulation:
“The [B]oard . . . shall within a reasonable time announce its findings of fact and decision with respect to each appeal. The decision shall be in writing and signed by those members who concur with the decision.... Copies of all decisions of the [B]oard . . . shall be mailed to the last known address of the parties to the appeal. All decisions shall inform the parties of their appeal rights.” K.A.R. 48-2-5 (2013 Supp.).
Although this regulation does not provide for reconsideration, it also does not prohibit it.
The KAPA does provide for reconsideration of agency actions. See K.S.A. 2013 Supp. 77-529. But the KAPA “applies only to the extent that other statutes expressly provide that the provisions of this act govern proceedings' under those statutes-.” K.S.A. 2013 Supp. 77-503(a). And the KESL does not expressly provide that the reconsideration provisions of K.S.A. 2013 Supp. 77-529 shall govern in unemployment compensation proceedings.
In sum, the KESL does not prohibit reconsideration of its decisions, and it specifically states that its actions are subject to review in accordance with the KJRA which clearly provides that a party may request reconsideration. As a result, we are persuaded there is no evident reason to ignore the KJRA’s language which clearly anticipates and incorporates requests for reconsideration into its procedural scheme.
Next, we consider the time period for filing a motion for reconsideration with the Board and the effect that the Board’s reconsideration decision or failure to act on the motion has upon the time period to file a petition for review with tire district court. Once again, the language of the 1986 amendment to dre KESL guides our analysis:
“Any action of the employment security board of review is subject to review in accordance with the Kansas judicial review act. No bond shall be required for commencing an action for such review. . . . In the absence of an action for such review, the action of [the B]oard shall become final 16 calendar days after the date of the mailing of the decision." (Emphasis added.) K.S.A. 2013 Supp. 44-709(i).
The Board reads the mention of 16 calendar days in the emphasized sentence as contradicting and superseding the 30-day time limit to file a petition for judicial review provided by the KJRA, K.S.A. 77-613(b) and (c). We disagree with that interpretation.
Employing well-established rules of statutory construction, we conclude the different time periods mentioned in both statutes may be harmonized. First, the language quoted above begins with the following sentence: “Any action of tire ... [Bjoard... is subject to review in accordance with the [KJRA].” K.S.A. 2013 Supp. 44-709(i). The emphasized sentence above should not be read as contradicting this sentence found one sentence earlier in the same subparagraph. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (courts should consider various portions of an act in pari materia), cert denied 134 S. Ct. 162 (2013).
Second, the emphasized sentence applies only “[i]n the absence of an action for such review.” K.S.A. 2013 Supp. 44-709(i). The legislature would not have intended the emphasized sentence to contradict the KJRA when it specified that it would apply only in the absence of a KJRA action. See 296 Kan. at 918 (appellate courts must attempt to ascertain legislative intent through the statutory language).
Third, die emphasized sentence in K.S.A. 2013 Supp. 44-709(i) merely states the action of the Board shall become “final,” and that term is not defined. To the extent the emphasized language affects the jurisdiction of the district court under die KJRA, it would not cut off jurisdiction; a final agency action or order, as we established earlier, is plainly subject to judicial review by the district court under the KJRA.
We acknowledge the plain language of the KÉSL before die 1986 amendment did treat the 16-day period as a time limit on judicial review. But that language was amended, and “[wjhen the legislature amends a statute, this court must presume it intended to change the law from how it existed because we assume the legislature does not enact useless or meaningless legislation.” Ft. Hays St. Univ., 290 Kan. at 464. If the 16 days does not serve the same purpose that it did before die amendment, our challenge is to identify the purpose intended by the legislature after the 1986 amendment.
We interpret the reference to a 16-day time period in K.S.A. 2013 Supp. 44-709(i) as a limit on any request for reconsideration. When the legislature amended K.S.A. 44-709(i) in 1986, it was presumed to have known that the KJRA frames the time to file a petition for review in terms of reconsideration and that the KAPA (which provides for reconsideration) does not apply to the KESL. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 906, 249 P.3d 434 (2011). Thus, in 1986, the legislature did two things: It incorporated the 30-day time limit for filing a petition for review from the KJRA, and it set a 16-day time limit after which the Board’s decision would be final — meaning not subject to reconsideration. While the specific period of 16 days may have been a holdover from the prior statutoxy language, we note that it is very similar to tlie 15-day period for reconsideration established in the KAPA. See K.S.A. 2013 Supp. 77-529(a)(1).
Given this interpretation, we conclude the legislature intended that a party adversely affected by a Board decision may directly petition for judicial review under the KJRA. Alternatively, the party first may seek reconsideration by tire Board, but that request must be made within 16 days of the date of the Board’s mailing of the decision. After 16 days, the Board’s decision becomes final and is not subject to reconsideration by the Board. In our estimation, no other interpretation or construction makes sense of the relevant language in K.S.A. 2013 Supp. 44-709(i) and the applicable provisions of the KJRA.
Turning to the facts of this appeal, the Board mailed its decision on February 14, 2012, and the 16 days for reconsideration became 19 days with the addition of the 3-day mailing period. See K.S.A. 77-613(e); Transam Trucking, Inc., 30 Kan. App. 2d at 1122. Nineteen days after February 14, 2012, was March 4, 2012, a Sunday. Norris faxed and/or mailed her request for reconsideration to the Board on March 1, 2012. If faxed, the filing occurred on March 1; and if mailed, the Board’s rules governing appeals to the Board specify that notices of appeal are “considered filed on the date postmarked.” K.A.R. 48-4-1 (2013 Supp.). At the very least, the Board acknowledged a request dated March 5, 2012, which would be the first business day after the deadline. No matter how tire time period is calculated, Norris timely moved for reconsideration of the Board’s decision within 16 days of its service by mail.
On March 6, 2012, in response to Norris’ motion for reconsideration, Resnik’s letter advised Norris that her recourse was to “file an appeal in the district court.” What is to be made of this letter?
A plain reading of the Resnik letter does not state what, if any, action was taken by the Board on Norris’ motion for reconsideration. That is tire position Norris now takes on appeal. In that situation, the KJRA provides: “If an agency . . . does not act on a petition for reconsideration within the time prescribed by K.S.A. 77-529, [as amended], a party may petition for judicial review of the final order at any time within 90 days of service of such final order.” K.S.A. 2013 Supp. 77-631(b). If the Board simply failed to act on Norris’ request within 20 days, as directed by K.S.A. 2013 Supp. 77-529(b), she was required to petition for judicial review within 90 days of service of the final order. See K.S.A. 2013 Supp. 77-631(b).
There is another possibility: If the letter was meant to convey a denial of Norris’ motion for reconsideration, K.S.A. 77-613(c)(2) provided her 30 days after service of that order of denial to file her petition for judicial review.
Given the undisputed fact that Norris filed her petition for review on March 21,2012, under either scenario, we hold that her petition for judicial review was timely filed and the district court had jurisdiction to review the matter.
Reversed and remanded. | [
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Hill, J.:
After our decision in State v. Cato-Perry, 48 Kan. App. 2d 92, 284 P.3d 36 (2012), rev. granted May 29, 2014, this case returns to the Court of Appeals on remand from the Kansas Supreme Court on the issue of whether a charge of acting as a principal or aider and abettor created an alternative means case. Our Supreme Court granted the State’s petition for review, vacated our prior decision, and remanded this case to us to review the matter in light of State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). We also consider three additional alternative means arguments and the cross-appeal by the State challenging the district court’s granting of a durational departure sentence.
Because Cato-Perry committed his crime while on bond, the district court ordered him to serve the 57-month sentence consecutive to his 34-month sentence in case 07CR308. This is a dura-tional departure sentence.
Cato-Perry made four alternative means arguments on direct appeal: (1) instructing the jury it could convict him of aggravated robbery as either a principal or an aider and abettor created alternative means upon which he could be found guilty of aggravated robbery; (2) the aiding and abetting jury instruction, in accordance with K.S.A. 21-3205(1), created six alternative means by which aggravated robbery could be committed under the aiding and abetting statute; (3) the element of talcing property from the “person or presence” of ■ the victim * in the aggravated robbery instruction raises an alternative means issue; and (4) the language of taking property from the victim “by force or threat” of bodily harm to commit aggravated robbery created alternative means of committing the crime.
The first panel relied on the ruling in State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), overruled in part by Betan-court, 299 Kan. at 140-41, and reversed Cato-Perry’s conviction based on his first argument. Cato-Perry, 48 Kan. App. 2d at 95-96. Having reversed the conviction, the panel did not address Cato-Perry’s remaining alternative means arguments or the State’s cross-appeal. See Cato-Perry, 48 Kan. App. 2d at 92-93, 95. Cato-Perry also has been overruled by Betancourt, 299 Kan. at 140-41.
In Betancourt, the Kansas Supreme Court rejected the argument that the aiding and abetting statute created an alternate means for committing first-degree murder. See 299 Kan. 131, Syl. ¶ ¶ 1-3. The court held drat the aiding and abetting statute does not create an alternative means of committing the charged crime by adding distinct material elements to the definition of that crime. Instead, the aiding and abetting statute simply extends criminal responsibility to a defendant other than the principal actor. 299 Kan. at 137-40; see Soto, 299 Kan. at 109 (affirming Betancourt). Through application of the ruling in Betancourt, Cato-Perry’s first argument fails.
We will therefore move on to Cato-Perry’s remaining three arguments.
Second alternative means argument
Cato-Perry’s second alternative means argument — the six ways of aiding and abetting set out in the statute are themselves alternative means of aiding and abetting — has no merit. K.S.A. 21-3205(1), the aiding and abetting statute, states that a person is criminally responsible for a crime committed by another if such person intentionally “aids, abets, advises, hires, counsels or procures” the other person to commit the crime. Cato-Perry contends the six verbs in the statute create six alternative means. The Supreme Court in State v. Bowen, 299 Kan. 339, 352-53, 323 P.3d 853 (2014), held that any argument.that the aiding and abetting statute creates multiple alternative means of committing the underlying offense is meritless in light of Betancourt. The aiding and abetting statute does not add an element to the underlying crime. See State v. Jackson, 49 Kan. App. 2d 116, Syl. ¶ 4, 305 P.3d 685 (2013), rev. denied 299 Kan. 1272 (2014). Thus, we reject Cato-Perry’s argument that the aiding and abetting statute in this case created alternative means problems.
Third alternative means argument
Here, Cato-Perry contends the aggravated robbery jury instruction created an alternative means issue because it required the State to prove he took property from the victim's “person or presence.” Cato-Perry does not dispute that the State presented sufficient evidence to prove that he took property from the victim's presence, but he argues the State failed to present sufficient evidence that a taking occurred from the victim's person. He relies on State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000), which held that “[pjersonal property can be taken from a victim's ‘presence’ without being taken from his or her ‘person,’ but it cannot be taken from his or her ‘person’ without being taken in his or her ‘presence.’ ”
Cato-Perry’s reliance on Robinson is misplaced. Because Robinson only concerned a sufficiency of the evidence analysis as applied to the defendant's alleged jury instruction error, not an alternative means analysis, it does not apply here. See Jackson, 49 Kan. App. 2d at 134-35. More importantly, the lack of evidence that Cato-Perry took property from the victim’s person does not require reversal of tire conviction if “person” and “presence” are not alternative means under K.S.A. 21-3426 and K.S.A. 21-3427. See State v. Wright, 290 Kan. 194, 203, 224 P.3d 1159 (2010).
In Boyd, this court held that the language of “taking property from the person or tire presence” of the victim does not create alternative means under K.S.A. 21-3427. 46 Kan. App. 2d at 950-51. In doing so, the Boyd panel noted that some degree of redundancy may be tolerated in the criminal code to enhance the objective of giving fair notice of the proscribed conduct and stated:
“The essence of the crime is forcibly taking property when a person is present. The term ‘from the 'person or the presence’ of the victim describes the proximity of the properly and the individual. It does so with phraseology that overlaps. Taking property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taking property from the person of the victim refers to the immediate environs of the body such as a pocket, a purse, or tire hands. Thus, a taking ‘from the person’ is actually encompassed within a taking ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase ‘the person’ had been omitted from the definitions of those crimes.” 46 Kan. App. 2d at 950.
This court in Jackson recently agreed that the Boyd court’s analysis of “person or presence” comports with Broton, which was decided after Boyd. Jackson, 46 Kan. App. 2d at 134. The panel in Jackson held that “[t]he use of ‘person or presence’ describes the victim’s proximity to the property taken. When conducting the Broom analysis on this point, it is apparent that the two words are simply two options used to describe different factual circumstances in which aggravated robbery (or robbery) can occur.” 49 Kan. App. 2d at 135. In addition to Jackson, 49 Kan. App. 2d 116, Syl. ¶ 5, several other panels have agreed with the Boyd court’s analysis of “person or presence” to hold that the phrase does not create an alternative means of committing the crime of aggravated robbeiy. See State v. Edwards, 48 Kan. App. 2d 383, Syl. ¶ 5, 290 P.3d 661 (2012), aff'd 299 Kan. 1008, 327 P.3d 469 (2014); State v. Moore, No. 106,209, 2013 WL 1010284, at *3-4 (Kan. App. 2013) (unpublished opinion), rev. denied 297 Kan. 1253 (2013); State v. Suady, No. 105,603, 2012 WL 6734503, at *5 (Kan. App. 2012) (unpublished opinion), aff'd in part, rev’d in part, and remanded 299 Kan. 1001, 327 P.3d 466 (2014); State v. Delacruz, No. 106,082, 2012 WL 1352865, at *4-5 (Kan. App. 2012) (unpublished opinion), rev. denied 299 Kan. 1271 (2014). Similarly, we see no reason to disagree with the Boyd panel’s conclusion that the phrase “person or presence” in die. aggravated robbeiy statute does not create an alternative means of committing the crime; rather, it describes the proximity of the victim to the property taken.
Fourth alternative means argument
Cato-Perry’s fourth alternative means argument refers to that part of tire instruction requiring that the jury find “[t]hat tire taking was by force or threat of bodily, harm“ to the victim. (Emphasis added.) He relies on State v. Reed, 45 Kan. App. 2d 372, 384-86, 247 P.3d 1074, rev. denied 292 Kan. 968 (2011), where this court found sufficient evidence existed of both force and threat for each alternative means of aggravated robbery. Cato-Perry argues that the State presented no evidence that he took the money from the victim by threat of bodily harm.
We are not persuaded this language creates an alternative means issue.
Brown teaches us that statutory language describing “options within a means” or the “factual circumstances” which prove the underlying crime do not raise an alternative means issue. 295 Kan. 181, Syl. ¶¶ 10-11. K.S.A. 21-3426 defines robbery as “the talcing of property from the person or presence of another by force or by threat of bodily harm to any person.” Consequently, the words by force or by threat of bodily harm are merely different options or means of compelling the taking of someone else’s property, the focus of the crime of robbery. Four other panels have reached the same conclusion that this is not an alternative means issue. See State v. Barnett, No. 106,133, 2013 WL 4729219, at *3-5 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1271 (2014); State v. Henderson, No. 107,193, 2013 WL 3970170, at *3-4 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1272 (2014); State v. Dewberry, No. 106,701, 2013 WL 2321039, at *8-12 (Kan. App. 2013) (unpublished opinion); Moore, 2013 WL 1010284, at *3-4.
Since no alternative means issues are present in this case, there is no need to weigh the sufficiency of the evidence regarding whether Cato-Perry took property from the person or the presence of the victim by force or by threat of bodily harm. The record clearly supports that Cato-Perry aided in the crime of aggravated robbery. Sufficient evidence supports his conviction.
We turn to the State’s cross-appeal
The only issue remaining is the State’s attack on Cato-Perry’s downward departure sentence. See K.S.A. 21-4721(a) (a departure sentence is subject to appeal by either the defendant or the State). We find no reason to disturb the sentence on appeal.
Our standard of appellate review of a departure sentence depends on the question raised. The State first argues the “sentencing court’s findings of fact and reasons for justifying the departure do not constitute substantial and compelling reasons for a departure.” When tire question is whether a sentencing judge erred in concluding “particular mitigating factors constituted substantial and compelling reasons to depart in a particular case,” the appellate standard of review is abuse of discretion. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). Judicial discretion is abused if tire judicial action is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by tire district court. Fischer v. State, 296 Kan. 808, Syl. ¶ 8,295 P.3d 560 (2013). In the alternative, the State challenges the extent of the district court’s downward durational departure. When tire extent of a du-rational departure is challenged, “the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant’s criminal history.” Spencer, 291 Kan. at 807-08.
K.S.A. 21-4716(c)(l) sets out a nonexclusive list of mitigating factors a district court may consider when determining whether to grant a departure sentence. In exercising such discretion, the sentencing court must state on the record at the time of sentencing the substantial and compelling reasons justifying a departure from the presumptive guidelines sentence. K.S.A. 21-4716(a). “Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the circumstances of the case force the sentencing court “to ‘abandon the status quo’ and to venture beyond or depart from the ordinary sentence.” State v. Rochelle, 297 Kan. 32, 46, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013). We are limited to considering only the articulated rea sons for departure stated on the record at sentencing. State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008). If any of the factors articulated by the sentencing court would justify the departure, the decision will be upheld on appeal. A departure may be justified by the collective factors even if no one factor, standing alone, would justify a departure. State v. Baptist, 294 Kan. 728, 734-35, 280 P.3d 210 (2012).
Here, the district court granted Cato-Peny s motion seeking a departure from the presumptive sentencing range of 89-94-100 months’ incarceration for a severity level 3 person felony offense based on Cato-Perry’s criminal history of D because of his robb.ery convictions in case 07CR308. The district court imposed a downward durational departure prison term of 57 months. See K.S.A. 21-3427; K.S.A. 21-4704(a). In granting a departure sentence of 57 months, the district court judge stated:
“You know, I think what was done was a very serious thing and I am unable to grant probation. But I can also take into account his young age and the fact that he’s — two offenses were done prior to him doing prison time. He’s done prison time on the first one.
“I’m going to find that there are substantial and compelling reasons for a du-rational departure; one being his age at the time the offense was committed, and the second being that he has done prison time subsequent to those offenses— both these offenses being committed and I think there’s a limit to how much we can accomplish with a lengthy prison sentence.”
Consequently, we must examine whether Cato-Perry’s age or his pi-evious prison time already served in case 07CR308 either standing alone or collectively provides a substantial and compelling reason for departure. See Baptist, 294 Kan. at 734-35; Blackmon, 285 Kan. at 725.
The defendant’s age can be properly considered analogous to the substantial and compelling reason justifying departure under the mitigating factor in K.S.A. 21-4716(c)(l)(C), which states: “The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed.” See State v. Favela, 259 Kan. 215, 237-38, 911 P.2d 792 (1996). However, having the defendant’s age qualify as a substantial and compelling reason justifying departure, standing alone, is depend ent on the district court articulating that it considered the defendant’s age in the context of the defendant’s relative immaturity. 259 Kan. at 237-38. Any other type of reliance upon the relative age of a defendant by the district court is improper and does not form a substantial and compelling basis to depart from a presumptive sentence. State v. Ussery, 34 Kan. App. 2d 250, 259, 116 P.3d 735, rev. denied 280 Kan. 991 (2005).
According to the presentence investigation report, Cato-Perry was 19 years old when he committed the aggravated robbery. His counsel, during sentencing, clarified that Cato-Perry “was 19 years old when he pleaded guilty in [case 07CR308], he just turned 20 before the crimes charged in the present case were alleged to have occurred.” Because the district court did not articulate a concern other than tire young age of Cato-Periy, we are left guessing as to the context in which the district court considered Cato-Perry’s age. Consequently, without more, the fact that Cato-Perry was 19 or just turned 20 years old when he committed the aggravated robbery, standing alone, is not a substantial and compelling reason justifying a departure sentence as a matter of law. See Favela, 259 Kan. at 234-35. However, the Kansas Supreme Court in Favela also held that in such instances the defendant’s age may be “considered as part of the entire package.” 259 Kan. at 235.
We now examine the second mitigating factor articulated by the district court — Cato-Perry’s prior “prison time” in case 07CR308. The motion for departure indicated that Cato-Perry was ordered in May 2008 to serve his 34-month sentence in case 07CR308 after violating his probation for being discharged from the Labette County Correctional Conservation Camp without completing that program. Cato-Perry was then paroled on detainer in February 2010. At the time of sentencing in this case in July 2010, Cato-Perry had earned 321 days of jail-time credit since September 2009. Cato-Perry also addressed die district court about the length of his incarceration for his previous robbery convictions and its impact on his desire to change.
Previous prison time per se clearly does not fall under tire statutory list of factors in K.S.A. 21-4716(c)(l). However, by expressing a concern about “how much we can accomplish with a lengthy prison sentence,” the district court arguably concluded Cato-Perry would be just as likely to be rehabilitated with time served for his prior robberies in case 07CR308 and the 57 months he would serve under the departure sentence as he would with a presumptive sentence for the aggravated robbeiy.
The language in State v. Haney, 34 Kan. App. 2d 232, 246, 116 P.3d 747, rev. denied 280 Kan. 987 (2005), is instructive on this point. The Haney court observed that while “a particular defendant’s amenability to rehabilitation is not a substantial and compelling reason to depart from the presumptive guidelines sentence by itself, a sentencing court may properly consider such evidence in the totality of circumstances in determining the appropriate penalty to be imposed ... if other factors warrant departure.” 34 Kan. App. 2d at 246. Thus, though this second factor articulated by the district court, like the defendant’s age, is not intrinsically substantial or compelling as a matter of law, it nonetheless appears worthy of the district court’s consideration collectively. See Baptist, 294 Kan. at 734-35.
Consequently, because neither mitigating factor the district court articulated would, standing alone, necessarily justify a downward departure, the dispositive question is whether these two factors — Cato-Perry’s age and his previous prison time or amenability to rehabilitation- — aggregate to a substantial and compelling reason for the departure.
The State points to no appellate case to support either of its arguments and, instead, makes a general policy argument by citing two statutes to support its view that the Kansas Legislature would not consider the nonstatutory mitigating factors here substantial and compelling reasons for a 37-month departure sentence and tire legislature intended a harsher punishment for offenders such as Cato-Perry. First, K.S.A. 21-4603d(f)(3) provides for a prison sentence if the defendant committed the crime while on release for a felony, “even when the new crime . . . otherwise presumes a nonprison sentence.” Second, any person “convicted and sentenced for a crime while on release for a felony . . . shall serve the sentence consecutively to the . . . terms under which the person was released.” K.S.A. 21-4608(d).
Both of these statutes do little to advance the State’s position. Even ignoring that Cato-Periy’s aggravated robbery conviction carried a presumptive prison sentence, K.S.A. 21-4603d(f)(3) enables, but does not require, a district court to imprison a defendant on release on felony bond for a subsequent crime not otherwise subject to imprisonment. See K.S.A. 21-4704. And while K.S.A. 21-4608(d) does require the district court to impose consecutive sentences for the prior felony and subsequent crime, that is exactly what happened here. The district court ordered Cato-Perry s aggravated robbery sentence consecutive to his prior robbery sentence.
At sentencing, the district court departed from a standard presumptive sentence of 94 months, down to 57 months, after inquiring into the presumptive sentencing range Cato-Perry would be subject to without his robbery conviction in case 07CR308, i.e., a criminal history of I. The presumptive sentencing range for a severity level 3 person felony offense committed by a defendant with a criminal history score of I is 55-59-61 months’ incarceration. See K.S.A. 21-4704(a). The district court, in considering the timing of both convictions, noted that based on the sentencing grid, even with a criminal history score of I, the low presumptive number of 55 months “is still a substantial amount of time.” Consequently, by reducing the presumptive aggravated robbery sentence of 89 to 100 months to 57 months, the district court appeared to ensure that the mitigated sentence Cato-Perry received was still -within tire presumptive sentencing range of a severity level 3 person felony offense, albeit as if Cato-Perry had no prior criminal history or had never been convicted in case 07CR308.
We hold that under the factual circumstances presented to the district court in this case, tire departure sentence imposed was not disproportionate to the severity level of the. crime committed when weighed against the two mitigating factors, which when considered collectively were substantial and compelling reasons that justified the departure sentence. See Baptist, 294 Kan. at 734-35. The district court’s decision is not so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the court would have reached a similar decision. See Haney, 34 Kan. App. 2d at 247.
On a final note, the journal entry of judgment incorrectly reflects Cato-Perry received a 45-month sentence instead of the 57-month sentence pronounced at sentencing. A sentence is effective when pronounced from the bench; a sentence in a criminal case does not derive its effectiveness from the journal entry. A journal entry that imposes a sentence at variance with the sentence pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012).
Finding no error, we affirm Cato-Perry s conviction for aggravated robbery. Because the district court did not abuse its discretion in granting the departure sentence, we deny the State’s cross-appeal. We remand to the district court with directions to ensure the journal entry of judgment is corrected to be consistent with the sentence pronounced from the bench.
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McAnany, J.:
Vincent A. Ramirez appeals his convictions of aggravated robbery, conspiracy to commit aggravated robbery, aggravated assault, and criminal possession of a firearm arising out of the robbery of El Poblano Market in Kansas City.
Pedro Rodriguez, the owner of El Poblano, had seen Ramirez and Jorge Garcia in his store 2 or 3 weeks before the robbery. Because of the way they were acting Rodriguez thought they were going to rob him.
On the day of the robbery, two Hispanic males entered the market wearing black gloves and blue and black hoodies with bandanas covering their faces. One man pointed a shotgun at Rodriguez and his customers, who were ordered to get on the floor, while the other robber handed the clerk a bag and, in Spanish, demanded the money. Once Rodriguez complied, the two men left the store. Rodriguez looked out of the window and saw three men running across the street. The third man was dressed the same as the other two. Luis Hernandez saw the men enter a Lincoln automobile after the robbery. One of the men was carrying “a rifle or something” and fired the gun once before they fled in the Lincoln.
Rodriguez recognized the voice of one of the robbers as that of Oscar Mendoza, a customer who used to come to the market with Hilary Capíes in a white Lincoln. Mendoza was the father of Ca-píes’ three children.
Two days after the robbeiy, Rodriguez saw Mendoza in the white Lincoln getaway car. Rodriguez called the police. The police stopped the car which Capíes was driving. Mendoza was a passenger.
The police searched the Lincoln and found a pair of gloves, a single black glove, a pair of jeans, a jacket, a hooded sweatshirt, a wooden baseball bat, a speed loader, and one spent .380 caliber cartridge. The gloves and clothing matching the descriptions of items the robbers were wearing as reported by eyewitnesses. The wooden baseball bat matched the weapon Capíes would later describe Ramirez canying as he stood watch outside of the store during the robbery.
When questioned by the police, Capíes confessed that she, Garcia, Ramirez, and Mendoza participated in the robbery. They had planned the robbery at the home of Ruby Trevino. Garcia kept a shotgun at the Trevino home. Capíes drove them all to the market and dropped them off outside. She parked a block away and waited for the men to complete the robbery. She then drove the getaway car, the white Lincoln. She said Ramirez, who had a baseball bat with him, served as tire lookout man outside the market while Mendoza and Garcia went inside. Mendoza was the one who demanded the money in Spanish while Garcia held the shotgun. All the men had bandanas on their faces and wore .gloves. Garcia fired a shot from his gun before reentering the Lincoln. Capíes then drove them back to Trevino’s house.
The police searched the Trevino residence and found the barrel from a shotgun hidden under some children’s clothing. Ramirez was at the Trevino house and was arrested.
At trial, Capíes testified she pled guilty to a robbery charge for her participation in the El Poblano robbeiy and had received probation for her part in the crime. As part of her plea agreement, she agreed to testify against Oscar, Ramirez, and Garcia but was not guaranteed probation in exchange for her testimony.
Following the State’s case, the defense moved the court for a judgment of acquittal on all charges. With respect to the charge of criminal possession of a firearm, Ramirez argued there was no evidence he ever possessed a firearm and Garcia carrying a weapon should not be imputed to him. The court denied Ramirez’ motion.
Ramirez presented no evidence on his own behalf. At the court’s instructions conference, Ramirez objected to the proposed instruction on criminal possession of a firearm. The first element in his proposed instruction on this charge was “[tjhat the defendant. . . knowingly possessed a firearm.” The court’s Instruction No. 10 added the phrase “or another for whose conduct he was criminally responsible” to the first element. Ramirez’ counsel argued that Garcia’s conduct should not be imputed to Ramirez unless Garcia was a proven felon, and there was no such evidence. Earlier in the proceedings, Ramirez had stipulated to his criminal past. But Ramirez objected to the court’s proposed instruction No. 11 recounting this stipulation. Ramirez’ objections were overruled. The court included in its jury instructions the following:
“The defendant is charged in Count III with Criminal Possession of a Firearm. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That tire defendant, or another for whose conduct he was criminally responsible, knowingly possessed a firearm;
“2. That the defendant within five years preceding such possession had been convicted or released from imprisonment for a felony; and
“3. That this act occurred on or about the 28th day of November, 2011, in Wyandotte County, Kansas.” (Instruction No. 10.)
“The following facts have been agreed to by the parties and are to be considered by you as true:
“1. That the defendant, within five years preceding November 28, 2011, had been convicted or released from imprisonment for a felony.
“This prior conviction, or any other evidence of misconduct not charged in this case, may be considered only for the purpose for which it was introduced, and not to infer the defendant’s guilt with regard to the four offenses charged.” (Instruction No. 11.)
With reference to Capíes’ testimony implicating Ramirez, the court instructed the jury that it should consider accomplice testimony with caution.
During closing argument, the prosecutor stated:
“Number 10 is criminal possession of a firearm. It says tire defendant, or another whose conduct he was criminally responsible, knowingly possessed a firearm. Same theory as the aggravated robbery. Whether you’re tire doorman, the driver, tire money guy, or the gun guy, you possessed tire firearm as a group to commit that crime.
“And we know the defendant within the five years preceding such possession had been convicted or released from imprisonment for a felony because Instruction No. 11 says that was agreed to.”
During deliberations, the district court received the following question from the jury: “[I]f someone knows a crime is going to be perpetrated and you don’t report it, are you guilty of said crime?” The judge discussed the question on the record with both counsel and Ramirez present and responded to the question, with the approval of all counsel, as follows: “I don’t understand your question. Can you be more specific?” This written response was delivered to the jury room by the court’s bailiff.
Later during deliberations, the jury submitted a second question to the court: “If we think he is guiliy of knowing the robbery was going to happen, but we don’t think he was there, is he guilty?” Again, the judge discussed the question with both counsel and with Ramirez being present.
“[Defense Counsel]: I would say no.
“THE COURT: I would propose that they reread the aiding and abetting instructions and there’s two of them. I can’t answer that question directly.
“[Prosecutor]: Right.
“THE COURT: Oh, well. I mean, that’s — I’ll be happy to listen to any other suggestions.
“[Prosecutor]: I think that’s the only way we can answer it, Judge.
“THE COURT: That would be 17 and 18.
“[Defense Counsel]: Well, I think the law, except in a few circumstances, doesn’t require you to report a crime.
“THE COURT: Well, that’s — the reporting issue is — we’re past that.
“[Defense Counsel]: Okay.
“THE COURT: When they asked about the reporting issue, I don’t know what they were asking, but—
“[Defense Counsel]: Okay.
“THE COURT: —I asked diem what — could diey be more specific in what they want and this is then- response: If we think he’s guilty of knowing the robbery was going to happen, but we don’t think he was there, is he guilty?
“[Defense Counsel]: Okay.
“THE COURT: Well, it just — it depends on what you believe the evidence is.
“[Defense Counsel]: (Nodding head up and down.)
THE COURT: And 17 and 18 are the aiding and abetting instructions and it says pretty plainly what the circumstances are legally in which diey can find him guilty or not guilty.
“[Defense Counsel]: (Nodding head up and down.)
“THE COURT: I don’t know how else to answer it and that’s — if you have another suggestion, I’d be happy to listen to it.
“[Defense Counsel]: I don’t. I think that’s the best way to approach it.
“[Prosecutor]: Sounds good, Judge.
“THE COURT: I’m gonna suggest and I’ll answer it in this fashion: Please reread Instructions 17 and 18. And they are the aiding and abetting instructions. Any objection from either side about that?
“[Prosecutor]: None from the State.
“[Defense Counsel]: No, Your Honor.
“THE COURT: Okay. That’s what I’ll do and then we’ll see.
“Okay. We’ll give it to the bailiff to send back in and we’ll see what happens.”
The bailiff delivered the court’s written response. Thereafter, the jury found Ramirez guilty as charged.
Ramirez moved for new trial and/or for findings of not guilty arguing, among other things, that there was no evidence he possessed a firearm and no evidence that the person who did possess the firearm was a felon. The court denied relief, and following sentencing, Ramirez appealed.
Claims on Appeal
On appeal, Ramirez challenges (1) the district court’s procedure for answering the jury questions which, he asserts, deprived him of his rights to be present at all critical stages of his trial, to have an impartial judge, and to have a public trial; (2) the substance of the court’s answer to the second jury question; (3) the sufficiency of the evidence to support his convictions of aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault (but not criminal possession of a firearm); and (4) the prosecutor’s closing argument on the criminal possession of a firearm charge.
Answering the Jury Questions: Structural vs. Harmless Errors
Ramirez argues the claimed errors in answering the jury questions are structural and can never be viewed as harmless. He finds support in Arizona v. Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). In Fulminante, the issue was whether admitting into evidence an involuntary confession could ever be harmless. The Supreme Court noted that some constitutional rights, such as the use of a coerced confession, the right to counsel, and the right to an impartial judge, cannot be harmless. But the Supreme Court has never held that the process used in Ramirez’ case resulted in a structural error.
With respect to the right to an impartial judge, the Fulminante court cited Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), a case involving the judge’s pecuniary interest in the outcome of the case. Tumey involved the practice of the town mayor serving as the judge of the municipal court and personally receiving the court costs assessed against a defendant appearing in that court. See also Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), in which the village mayor, whose village budget was derived substantially from court fines and fees, also served as judge of the village court. But Ramirez does not contend that the trial judge in his case had any conflict of interests or had any pecuniary interest in having him convicted. Fulminante does not control. Nor does Tumey or Village of Monroeville. We find no Supreme Court case holding the process used in Ramirez’ case to constitute structural error.
Ramirez also relies on Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), to support his contention that the denial of a public trial cannot be harmless. But in Waller, the issue was whether the defendant’s right was infringed when the entire hearing on the suppression of evidence was closed to the public. The Supreme Court found that “suppression hearings often are as important as the trial itself.” 467 U.S. at 46. Further, “a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions.” 467 U.S. at 47. None of this applies to the procedure used by the trial court in Ramirez’ case. As noted earlier, the Supreme Court has never held that the process used in Ramirez’ case resulted in a structural error with respect to the right to a public trial.
Thus, we conclude that if there was any error it is subject to a harmless error analysis.
The Procedure for Answering the Jury Questions
Resolution of Ramirez’ arguments on this issue involves matters of statutory and constitutional interpretation. These are questions of law over which this court has unlimited review. State v. Hilt, 299 Kan. 176, 200, 202, 322 P.3d 367 (2014).
Though Ramirez did not object to the court’s procedure for answering the jury questions as required by State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012), we will follow the trail our Supreme Court blazed in considering this issue without the defendant having preserved the issue for appeal. See State v. Bowen, 299 Kan. 339, 354-55, 323 P.3d 853 (2014) (addressing identical issues on appeal despite the defendant’s failure to object to the procedure at the district court); State v. Bell, 266 Kan. 896, 918-20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999) (same).
Right to Be Present
With respect to the claim that Ramirez was denied his right to be present at all critical stages of his trial, K.S.A. 22-3420(3) states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Our Supreme Court has construed this to require any question from the jury concerning the law or evidence to be answered in open court in the defendant’s presence unless the defendant is voluntarily absent. State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013). Our Supreme Court has found the procedure used in our present case violates K.S.A. 22-3420(3). State v. Verser, 299 Kan. 776, 787-88, 326 P.3d 1046 (2014). According to our Supreme Court, this procedure also violates a defendant’s rights under the Sixth Amendment to the United States Constitution, which guarantees that a criminal defendant may be present at every critical stage of his or her trial. 299 Kan. at 788. Thus, we conclude the district court erred in not recalling the jurors to the courtroom to answer their questions.
Next, we apply the federal constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), to determine if the error requires us to reverse Ramirez’ convictions. State v. Herbel, 296 Kan. 1101, 1110-11, 299 P.3d 262 (2013). Under this standard,
“error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).
In the context of the trial court’s improper communication of its response to a jury question, we use the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998), to determine whether the district court’s error requires reversal. See Verser, 299 Kan. at 789-90. Those factors are (1) the overall strength of the prosecution’s case; (2) whether an objection was lodged to the improper communication; (3) whether the communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of the posttrial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at 132.
With respect to the first factor, the State’s case against Ramirez was rather strong, given the damning testimony from Capíes, the supporting testimony of other witnesses, and the physical evidence consistent with Capíes’ testimony retrieved from the Lincoln and the home search.
With respect to the second factor, Ramirez did not object to the court’s method of communicating with the jury.
With respect to the third factor, Kansas courts have generally considered written answers to jury questions as being less critical than detailed jury communications such as reading back trial testimony. State v. Womelsdorf, 47 Kan. App. 2d 307, 322-24, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013). Here, the district court’s first communication with the jurors was innocuous and insignificant. It provided no substantive information to the jury. It merely stated that the district court did not understand the question and asked for clarification. The second communication was substantive but provided no new information to the jury. It merely referred to jury instructions the court had previously given in open court and in Ramirez’ presence. Further, court bailiffs take an oath that prohibits them from communicating with the jury unless ordered to do so by the court. Ramirez provides no evidence of any untoward events in the jury room arising from the bailiffs delivery of the court’s written response.
With respect to the fourth factor, Ramirez did not raise this issue in his posttrial motion.
We conclude that there is no reasonable possibility the district court’s failure to read the answer to the jury’s question in open court in Ramirez’ presence contributed to his guilty verdicts. The jury received no new information from either communication, and there is no evidence of any misconduct by the bailiff in delivering the court’s response to the jury. The error was harmless.
Right to a Public Trial
Ramirez also argues that the procedure used by the district court violated his right to a public trial under the Sixth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because the communication of the court’s response took place in the juiy room, not the public courtroom.
This argument was raised in Womelsdorf. The court in Womelsdorf found no violation of the right to a public trial, noting that in tire same procedure used in Ramirez’ trial, the court’s written responses to the jury’s questions were available as part of the public court file and not hidden from public view. 47 Kan. App. 2d at 324-25. Further, the discussion of the court’s response was on the record. We find the analysis in Womelsdorf persuasive.
As noted earlier, Ramirez relies on Waller to support this claim. The Court in Waller noted that it “has never considered the extent to which that right [to a public trial] extends beyond the actual proof at trial.” 467 U.S. at 44. Delivering to the jury room the court’s written answer to a jury’s question was not part of the evidence-producing phase of the trial considered in Waller. The Waller Court noted the qualified First Amendment right of the press and the public to attend voir dire, as well as the evidence-producing portion of the trial itself. But the Waller Court did not consider the issue now before us, and we find no decision by the United States Supreme Court finding the practice of answering juiy questions in the fashion used in Ramirez’ case violated the constitutional right to a public trial.
The court’s response to the jury’s first question was substantively meaningless. The court’s response to the jury’s second question provided no new facts or legal principles to consider. Both questions were discussed on the record. Ramirez does not contend this discussion took place somewhere other than in the open court room. In answering the second question, the jurors were simply referred to instructions previously given to them in open court in the presence of Ramirez and any member of the public who desired to be present.
The requirement of a public trial assures that the judge and prosecutor act responsibly. It also discourages witnesses from committing perjuiy when testifying. These factors have no application in the procedure employed here. The conduct of the court and prosecutor in discussing the questions and appropriate responses was on the record and in open court. No new testimony was in volved. We find no violation of the constitutional right to a public trial.
Right to an Impartial Judge
Ramirez claims he was denied his Fourteenth Amendment right to an impartial judge under the United States Constitution because no judge was present when the actual communication to the jury took place.
As noted earlier, Ramirez finds support in Tumey, 273 U.S. 510, and Village of Monroeville, 409 U.S. 57. As discussed earlier, neither case even remotely involves the facts now before us, and neither applies. Ramirez makes no assertion that die trial judge in his case had a conflict of interests or a pecuniary interest in having him convicted.
This issue was addressed and rejected in Womelsdorf. We find Womelsdorf persuasive on this issue. Besides, we find no basis upon which to conclude that the outcome of the trial would have been any different had the judge personally addressed die jury in the courtroom, rather than through his written response.
Cumulative Error
Ramirez argues that the individual instances of error — both statutory and constitutional — regarding die procedure used here by the court acted cumulatively to deny him a fair trial, requiring reversal of his convictions. Here, we found error only with respect to Ramirez not being present when the court’s response was delivered to the jury, but we concluded the error was harmless. Thus, there are not multiple harmless errors to accumulate to warrant relief.
Substance of Court's Response
Ramirez next challenges the substance of the district court’s answer to the juiy’s second question, which he characterizes as not meaningful because it did not answer the question asked. Ramirez argues that the jury’s question went to the defendant’s guilt for failing to report a crime about which he had knowledge as opposed to a question seeking clarification of the law on aiding and abetting.
The verbatim exchanges between court and counsel on these questions are set forth above. They can be reduced to the following.
The first jury question asked the court if a person is guilty if that person knows a crime is going to be committed and does not report it. The court discussed the question with counsel and concluded the court needed further clarification from the jury. All counsel agreed.
The second question asked if the defendant is guilty if he knew the robbery was going to happen but was not present for the robbery. The court discussed the question with counsel and proposed to tell the jury to read the aiding and abetting instructions. Defense counsel said he did not think the law required one to report a crime. The court responded that the reporting issue was the substance of the first question. “We’re past that.” Now the issue turns on the aiding and abetting instructions. “I don’t know how else to answer it ... . [I]f you have another suggestion, I’d be happy to listen to it.” Defense counsel said he did not have a different answer and thought the court’s response was “the best way to approach it.” The court decided to tell the jurors to read the aiding and abetting instructions. The court asked if there were any objections. Defense counsel said he had none.
State v. Groschang, 272 Kan. 652, 672-73, 36 P.3d 231 (2001), was a murder case. One of the defenses was that at the time of the crime, tire defendant had been profoundly affected by the drug Zoloft which had been prescribed for his depression. An expert witness read at trial a section of the Physician’s Desk Reference (PDR) relating to Zoloft. The PDR itself was not admitted into evidence. During deliberations, the jury asked to see the PDR. After conferring with counsel, and with the agreement of counsel, the court sent to tire jury sections from the PDR which had been read at trial.
On appeal, tire defendant claimed the court erred in failing to include a relevant sentence in the PDR which the expert had read to the jury at trial. Our Supreme Court noted that the defendant had participated in these proceedings and had every opportunity to object or suggest a different response to the jury. The court concluded:
“Clearly the defendant had tire opportunity to object and to inform the trial court of his dissatisfaction with the court’s response to the juiy request while tire court still had a chance to correct any error. By failing to object, tire defendant waived his right to raise this issue on appeal.” 272 Kan. at 673.
Based on Groschang, we conclude Ramirez failed to preserve this issue for appellate review.
Sufficiency of the Evidence of Aggravated Robbery, Conspiracy to Commit Aggravated Robbery, and Aggravated Assault
Ramirez claims the evidence at trial was insufficient to support his convictions of aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault. He argues that there was no physical evidence proving he took part in the crimes, and the eyewitnesses were unable to identify him because the assailants’ faces were covered by bandanas. Further, while police recovered physical evidence that corroborated Capíes’ testimony about tire crime, none of that evidence physically linked Ramirez to the crime.
In considering this claim, we examine the evidence in the light favoring the State to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Charles, 298 Kan. 993, 997, 318 P.3d 997 (2014). In doing so, we do not reweigh the evidence, resolve evidentiary conflicts, or determine the credibility of witnesses. 298 Kan. at 997. There is no distinction between direct and circumstantial evidence in terms of probative value. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. The circumstantial evidence need not exclude every other reasonable conclusion or inference to support a conviction. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). It is only in rare cases in which trial testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).
We have outlined the evidence in detail earlier in this opinion. We need not repeat it all here. It suffices to say that viewing that evidence in the light favoring the State, there was sufficient evidence that Ramirez participated in the planning and execution of the armed robbery that included the aggravated assault of the victims in the market. While much of the evidence came from Capíes, none of tire physical evidence associated with the robbeiy found by the police was inconsistent with Capíes’ description of die crime. The jury heard testimony about Capíes’ plea deal. The jury was cautioned about Capíes’ testimony, but it found her testimony to be credible. “ ‘ [U]ncorroborated testimony of an accomplice is sufficient to sustain a conviction.’ ” State v. Lopez, 299 Kan. 324, 330-31, 323 P.3d 1260 (2014) (quoting State v. Bey, 217 Kan. 251, 260, 535 P.2d 881 [1975]). We do not substitute our credibility evaluation for that of the jury.
Criminal Possession of a Firearm
Ramirez was convicted of criminal possession of a firearm based on the shotgun Garcia, his accomplice, carried and used in the robbery. Ramirez does not contend the district court erred in refusing to direct a verdict in his favor on this charge at tire close of the State’s case-in-chief. Likewise, he does not contend the district court erred in instructing tire jury regarding the elements needed to convict him for criminal possession of a firearm. Rather, he contends that in- closing argument the State “misstated the law when it told the jury to find Mr. Ramirez guilty if he aided and abetted a felon in possession of a firearm.” We think Ramirez meant to say “if he, a felon, aided and abetted” because he argues that there was no evidence that Garcia, who held the shotgun, was a convicted felon at the time of the robbery and, thus, could not have committed the crime of criminal possession of a firearm.
Though there was no objection at trial to the State’s argument in closing, Ramirez argues that no objection was needed to preserve the issue as determined in State v. Morton, 277 Kan. 575, 583-84, 86 P.3d 535 (2004), a case involving a claim of prosecutorial misconduct.
Criminal possession of a firearm requires a showing that the defendant either had been convicted of a felony or released from prison for a felony within 5 years before possessing the firearm. K.S.A. 2011 Supp. 21-6304(a). Ramirez stipulated in instruction No. 11 that he was such a felon.
The State did not contend that Ramirez possessed a firearm during the course of the robbery or at any other time. The State predicates Ramirez’ criminal liability on him having aided and abetted Garcia. But Ramirez argues that there was no evidence Garcia, who actually possessed the weapon, possessed it illegally; that is, there was no evidence Garcia had been convicted of a felony or released from prison for a felony within 5 years before the robbery. Ramirez argues that even if Garcia’s conduct was imputed to Ramirez, Garcia’s conduct in possessing the shotgun was not illegal because there was no evidence that Garcia was a felon at the time. Thus, there was no evidence Ramirez aided and abetted a felon in the possession of a firearm.
Based on this analysis, Ramirez argues that the prosecutor, in discussing the court’s instructions, improperly argued to the jury in closing:
“Number 10 is criminal possession of a firearm. It says the defendant, or another whose conduct he was criminally responsible, knowingly possessed a firearm. Same theory as the aggravated robbery. Whether you’re the doorman, the driver, the money guy, or tire gun guy, you possessed the firearm as a group to commit that crime.
“And we know the defendant within the five years preceding such possession had been convicted or released from imprisonment for a felony because Instruction No. 11 says that that was agreed to.”
We analyze the prosecutor’s remarks using the rubric of prose-cutorial misconduct. In doing so, we must first determine whether the prosecutor’s comments were outside the wide latitude allowed a prosecutor in discussing the evidence. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012). If they were, we consider whether the improper comments constitute plain error, meaning whether the statements prejudiced the jury against Ramirez and denied him a fair trial. See 293 Kan. at 850.
Misstatement of Law
The claimed misstatement of the law here requires us to interpret various statutes. These áre questions of law over which we exercise unlimited review. State v. Edwards, 299 Kan. 1008, 1013, 327 P.3d 469 (2014).
With respect to the charge of criminal possession of a firearm, the jury was instructed:
“The defendant is charged in Count III with Criminal Possession of a Firearm. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, or another for whose conduct he was criminally responsible, knowingly possessed a firearm;
“2. That the defendant within five years preceding such possession had been convicted or released from imprisonment for a felony; and
“3. That this act occurred on or about the 28th day of November, 2011, in Wyandotte County, Kansas.” (Emphasis added.) (Instruction No. 10.)
“The following facts have been agreed to by the parties and are to be considered by you as true:
“1. That the defendant, within five years preceding November 28, 2011, had been convicted or released from imprisonment for a felony.
“This prior conviction, or any other evidence of misconduct not charged in this case, may be considered only for the purpose for which it was introduced, and not to infer tire defendant’s guilt with regard to the four offenses charged.” (Instruction No. 11.)
The wording of instruction No. 10 generally followed K.S.A. 2011 Supp. 21-6304(a)(2), which defines criminal possession of a firearm by a felon, and PIK Crim. 3d 64.06, the applicable pattern instruction. But the court added the phrase “or another for whose conduct he was criminally responsible,” following “the defendant,” in the first element of the PIK instruction. While for reasons not entirely clear, Ramirez does not contend the court erred in giving this instruction, what is clear is that the alteration of the PIK instruction contributed substantially to the confusion that followed.
Consistent with K.S.A. 2011 Supp. 21-5210, our aiding and abetting statute, the trial court instructed the juxy as follows:
“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.” (Emphasis added.) (Instruction No. 17.)
“A person who intentionally aids, abets, advises, hires, counsels or procures another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.” (Instruction No. 18.)
As the prosecutor properly argued in closing, the aiding and abetting instruction applied to the aggravated robbery charge. Ramirez was convicted of aggravated robbery though he did not personally take money by force using a dangerous weapon. Under the concept of aiding and abetting, he was criminally responsible for the acts of his coconspirators who did so.
But the prosecutor extended the aiding and abetting argument to the criminal possession of a firearm charge, arguing that Ramirez was criminally responsible for Garcia carrying the shotgun in the robbery based on the fact that Ramirez (not Garcia) was a felon at the time, when he argued:
“Number 10 is criminal possession of a firearm. It says the defendant, or another whose conduct he was criminally responsible, knowingly possessed a firearm. Same theory as the aggravated robbery. Whether you’re tire doorman, the driver, the money guy, or the gun guy, you possessed the firearm as a group to commit that crime.
“And we know the defendant within the five years preceding such possession had been convicted or released from imprisonment for a felony because Instruction No. 11 says that was agreed to.”
As instructed by the court, one who “intentionally aids, abets . . . another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed.” The “crime committed” at issue here is the crime of criminal possession of a firearm. Ramirez’ criminal liability was predicated on him having aided and abetted Garcia in tire crime of criminal possession of a firearm. If there is no evidence that Garcia committed the crime, then it must follow that under an aiding and abetting theory Ramirez cannot be found hable for the crime. One cannot have vicarious criminal responsibility for aiding another in the commission of a lawful act. Here, there was no evidence that Garcia committed the crime because there was no evidence he was a convicted felon at the time of the robbery.
The State relies on State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985), and State v. Martin, 241 Kan. 732, 740 P.2d 577 (1987), for support. In Cunningham two men robbed a grocery store. One of the men carried a firearm. The trial court refused to dismiss a criminal possession of a firearm charge based on the defendant’s argument that there was no evidence that he, as opposed to his companion, had actual control over the firearm. The court noted that actual control is not needed, citing instances in which control was inferred when a gun was found in the trunk of the defendant’s car, in a car over which the defendant asserted control, in a drawer in a bedroom the defendant shared with his wife, or when “two or more persons may have the power of control over [burglary tools] and intend to control and use them jointly.” 236 Kan. at 846. Our Supreme Court concluded:
“It is well settled that all participants in a crime are equally guilty without regard to tire extent of their participation, and that any person who counsels, aids or abets in the commission of an offense may be charged, tried and convicted in the same manner as though, he were a principal. [Citation omitted.]” (Emphasis added.) 236 Kan. at 846.
The court in Cunningham was not confronted with the issue we now face. There apparently was no issue in Cunningham regarding whether the defendant’s coconspirator could have been convicted of criminal possession of a firearm. But the court recognized that Cunningham could be convicted “in the same manner as though he were a principal.” 236 Kan. at 846. Under this principle, Ramirez could not be convicted if there was no evidence to support a Garcia conviction.
In Martin, the defendant had a prior felony conviction, but nothing in the decision indicates whether his accomplice also had a prior felony so as to make the defendant’s possession of a firearm criminal. Without that information, the Martin case is not helpful.
We find the decision in State v. Sophophone, 270 Kan. 703, 704, 19 P.3d 70 (2001), to be somewhat instructive. There, the police interrupted four men in the course of a home burglary and arrested the defendant. As one of the others ran, he fired a shot at the police. An officer returned fire and killed the escaping burglar. The defendant was charged with felony murder for the death of die escaping burglar, which was the result of the police officer’s lawful act in self-defense. In discussing the defendant’s culpability under an aiding and abetting theory, the Kansas Supreme Court noted:
“The overriding fact which exists in our case is that neither [the defendant] nor any of his accomplices ‘killed’ anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. This does not fall within the language of the [aiding and abetting statute] since the officer committed no crime.” 270 Kan. at 712.
The court ultimately reversed the defendant’s felony-murder conviction, holding that when the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, the defendant could not be held criminally responsible for the death of his co-felon. 270 Kan. at 713.
Obviously, Ramirez’ hands are not clean like those of the officer in Sophophone. Ramirez could have been convicted of criminal possession of a firearm if the State had shown he had physically possessed the shotgun at any point or if the State had shown that Garcia had the requisite felony record. Garcia’s possession of the shotgun may have been perfectly legal, regardless of the fact that his use of the shotgun clearly was not.
The trial court’s instructions on aiding and abetting were correct statements of the law and factually fit the aggravated robbery charge. But the interplay between the aiding and abetting instructions,and the criminal possession of a firearm instruction was hopelessly confusing.
Under instruction No. 10, Ramirez could be found guilty of criminal possession of a firearm if “another for whose conduct he was criminally responsible” (Garcia) knowingly possessed the shotgun (which he did) and Ramirez was a recent felon (which he was). But under the aiding and abetting instructions, Ramirez was guilty of criminal possession of a firearm only if he aided or abetted Garcia in the commission of that crime, which required Garcia (not Ramirez) to be a recent felon (which he apparently was not).
A prosecutor steps outside of the considerable latitude given to prosecutors if he or she deliberately misstates the controlling law. Burnett, 293 Kan at 850. Here, the prosecutor’s argument was not a mere slip of the tongue. Though prompted by instruction No. 10, his argument misstated the law with respect to aiding and abetting. Thus, we follow the protocol in State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012): “Because there was a misstatement of the law, we move to the second step of the prosecutorial misconduct analysis to determine if [the defendant] was denied a fair trial.”
To determine whether Ramirez was denied a fair trial, we must consider three factors: (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 against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. State v. Jones, 298 Kan. 324, 335, 311 P.3d 1125 (2013). None of these three factors is individually controlling, and the third factor cannot override the first two factors unless the reviewing court can say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been met. Jones, 298 Kan. at 335.
Gross and Flagrant
In considering whether the prosecutor’s misstatement was gross and flagrant, we note that the prosecutor’s closing arguments are set forth in slightly more than 10 pages of the trial transcript. The prosecutor’s argument on the criminal possession of a firearm charge comprises two paragraphs — 86 words — of that argument. The prosecutor’s accurate remarks recounted the court’s troublesome instruction on the elements of the crime, but he simply failed to take into account the application of the aiding and abetting instructions to this charge. Further, Ramirez does not contend the prosecutor’s remarks were gross or flagrant. Under the circumstances, we find the prosecutor’s mistake to be neither gross nor flagrant.
Ill Will
There is no evidence of ill will on the part of the prosecutor, and Ramirez does not contend that the prosecutor acted out of ill will towards him.
Prejudice
Finally, we must consider whether the “ ““ “ ‘misconduct would likely have little weight in the mind of jurors.’ ” ’ ” [Citations omitted.]’ ” State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011) (quoting State v. Kemble, 291 Kan. 109, 121-22, 238 P.3d 251 [2010]).
The prosecutor’s mistake was contributed to by the trial court’s refusal to direct a verdict of acquittal on this charge at the conclusion of the State’s case and in changing the PIK instruction so as to predicate Ramirez’ liability in instruction No. 10 on the conduct of “another for whose conduct he was criminally responsible” when there was no such other person with respect to this charge.
Ramirez contends that, as a result of the prosecutor’s remark, he was denied his constitutional due process right to a fair trial. In cases involving the deprivation of a constitutional right, we will find the error harmless if the party benefitting from the error persuades us beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). Stated another way, we must determine “whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of die jurors.” State v. Bridges, 297 Kan. 989, Syl. ¶ 15, 306 P.3d 244 (2013).
Here, the State, the beneficiary of the prosecutor’s misstatement, makes no claim that these remarks were harmless. No doubt this is because rather than direct and overwhelming evidence of guilt on this charge, there was simply no evidence at all to support it. In closing argument, lawyers explain how the instructions interrelate to one another and how they apply to the evidence produced at trial. Here, the prosecutor’s argument on the criminal possession of a firearm charge easily could have left the jurors with die false impression that they need not consider whether Garcia could have been guilty of the crime so as to make Ramirez vicariously liable for it. Thus, we cannot conclude beyond a reasonable doubt that these remarks had no affect on the jury’s verdict. Accordingly, while we affirm Ramirez’ other convictions, we reverse his conviction for criminal possession of a firearm.
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Arnold-Burger, J.:
The crime of unlawfully hosting minors is described by statute as recklessly permitting a person’s residence to be used by an invitee or an invitee of the person’s child in a manner that results in the unlawful possession or consumption of alcoholic liquor or cereal malt beverage by a minor. K.S.A. 2013 Supp. 21-5608(a). Sherry L. Haskell’s daughter threw a house party where a number of minors consumed alcohol. Haskell attended the party, serving as the disc jockey, dancing, and drinking with the minors. The State charged her with unlawfully hosting minors consuming alcohol under K.S.A. 2013 Supp. 21-5608. Haskell moved to dismiss, arguing that the legislature’s use of die word invitee — a word that, in the field of tort law, refers to a business visitor — rendered the statute inapplicable. The district court agreed and dismissed the charge, and the State appeals. Because we find tíiat the common meaning of the word invitee is “one who is invited,” we reverse the district court’s decision and remand the case for further proceedings.
Factual and Procedural History
In June 2013, Haskell allowed her daughter to throw a party at her home in Baldwin, Kansas. An unknown number of young people attended this party, where drey drank alcohol while Haskell acted as the party’s disc jockey and also drank. Although the record fails to reveal the ages of the guests, the parties generally acknowledge that one or more of the young people at the party were not yet 21 years old when they consumed alcohol and that Haskell knew their ages. As the party progressed, a can of either gas or oil tipped into the campfire at the residence. When one of the young men at the party attempted to pull the can out, it exploded, and he sustained burns to his head and torso. His mother contacted the police, who investigated the party. Consequently, the State charged Haskell with one count of unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage, a class A person misdemeanor.
Shortly thereafter, Haskell filed a motion to dismiss the charge, arguing that the State could not sustain a charge under K.S.A. 2013 Supp. 21-5608 due to the statute’s plain language. Specifically, Haskell argued that the word invitee, which appears in the statute, possesses a very specific and narrow definition under the law— namely, that invitees are business visitors rather than social guests. Because the young people at her home were social guests, she argued the statute did not apply. In response, the State contended that the word invitee simply referred to anyone invited onto property and, therefore, applied to the social guests of Haskell’s daughter. The State also argued that Haskell’s more narrow definition of invitee appears only in tort law and is thus inapplicable to criminal statutes and proceedings.
After hearing argument on the motion, the district court agreed with Haskell, holding that the precise legal meaning of the word invitee excludes social guests. The district court also noted that our Kansas statutory construction statute, K.S.A. 2013 Supp. 77-201, requires that “ words and phrases that have acquired a peculiar and appropriate meaning in law’ ” be construed in accordance with that peculiar and appropriate meaning. As such, the district court dismissed the charge against Haskell.
The State moved the district court to reconsider its ruling, where it objected to how narrowly the district court interpreted the statute. In her response to the motion, Haskell rejected the State’s reading of K.S.A. 2013 Supp. 21-5608; she also argued that the statute’s ambiguities required the district court’s narrower construction. The district court considered arguments on the motion to reconsider but ultimately upheld its initial ruling. The district court explained its reasoning as follows:
“I think, to me, what clearly has happened is the person who wrote this statute didn’t understand that the word invitee did not mean a social guest. Sounds like it. They are an invited person. Invitee sounds like, T invited you over.’ Invitee has a veiy specific, legal meaning, and it doesn’t mean social guest. It means a person you have invited to your place of business, not one-on-one.... This statute should just read that ⅛ be used by a person who was invited.’ That is the plain and simple, normal language. But once you add ‘invitee,’ they have totally transformed this statute into something that the legislature, I know, did not mean for it to mean .... [B]asically they are prohibiting you from telling people to come over and buy a cup, a red Solo cup for $5, which would make you an invitee, and then let you drink, while you are underage, however much you want, for that $5 out of the keg at their party.”
The district court memorialized this decision in a journal entry, and the State timely appealed the dismissal of the charge.
Analysis
The sole issue on appeal is whether the district court erred in dismissing the charge against Haskell. Central to this question is the definition of the word invitee as it appears in K.S.A. 2013 Supp. 21-5608. The State contends that the word should be construed according to its common usage, but Haskell maintains that it carries a particular legal definition and must be interpreted accordingly.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory interpretation is that the intent of tire legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). In uncovering this intent, an appellate court must first examine tire statutory language enacted and give common words their ordinary meanings. Where there is no ambiguity in the statutory language, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does tire court use canons of construction or legislative history to construe the legislature’s intent. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
The particular statute at issue in this case is K.S.A. 2013 Supp. 21-5608(a), which reads:
“Unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage is recklessly permitting a person’s residence or any land, building, structure or room owned, occupied or procured by such person to be used by an invitee of such person or an invitee of such person’s child or ward, in a manner that results in the unlawful possession or consumption therein of alcoholic liquor or cereal malt beverages by a minor.”
The outcome of this case hinges on the definition of invitee. Haskell contends that the tort-law definition must apply to this case. In the field of tort law, an invitee is “[sjomeone who has an express or implied invitation to enter or use another’s premises, such as a business visitor or a member of the public to whom the premises are held open.” Black’s Law Dictionary 955 (10th ed. 2014); see also Jones v. Hansen, 254 Kan. 499, 503, 867 P.2d 303 (1994) (“ ‘An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for die mutual benefit and advantage of both inviter and invitee.’ ”). A social guest, on the other hand, is generally considered a licensee, or “[s]omeone who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit.” Black’s Law Dictionary 1061 (10th ed. 2014); see also Jones, 254 Kan. at 503 (“ ‘A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor óf the premises, or by operation of law, so that he [or she] is not a trespasser thereon.’ ”). Although Kansas no longer treats invitees and licensees differently when considering the duty of care owed to guests by a landowner, they remain two distinct categories under the law. See Jones, 254 Kan. at 509. Clearly, invitee is imbued with a peculiar and appropriate meaning in the field of premises liability and tort law.
Applying these definitions to K.S.A. 2013 Supp. 21-5608(a) transforms it into the following:
“Unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage is recklessly permitting a person’s residence or any land, building, structure or room owned, occupied or procured by such person to be used by [a business visitor] of such person or [a business visitor] of such person’s child or ward, in a manner that results in tire unlawful possession or consumption therein of alcoholic liquor or cereal malt beverages by a minor.” (Emphasis added.)
Interpreted that way, the district court’s red Solo cup hypothetical is accurate, and the only individuals at risk of criminal prosecution under the statute are those parents or landowners who allow either their children or renters to sell cups (or alcoholic drinks) to minors.
But invitee also carries another, more common meaning. As Bryan Gamer notes, “[although nonlawyers might assume that an invitee is someone expressly invited onto property, lawyers use tire term to include those who have implied permission to enter the premises.” Garner’s Dictionary of Legal Usage 482 (3d ed. 2011). Other dictionaries agree, defining invitee as “[o]ne that is invited,” and invite as “[t]o ask for the presence or participation of’ or “[t]o welcome.” The American Heritage Dictionary 923 (5th ed. 2011). Applying these definitions, the statute instead reads:
“Unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage is recklessly permitting a person’s residence or any land, building, structure or room owned, occupied or procured by such person to be used by [someone asked to that location by] such person or [someone asked to that location by] such person’s child or ward, in a manner that results in the unlawful possession or consumption therein of alcoholic liquor or cereal malt beverages by a minor.” (Emphasis added.) K.S.A. 2013 Supp. 21-5608(a).
This reading of the statute clearly applies to the instant facts: Haskell’s daughter asked the minors to attend the party at Haskell’s home, and Haskell recklessly allowed those minors to possess or consume alcohol.
At first blush, it appears that this statute must be ambiguous, as two reasonable interpretations exist. See Board of Trustees of Butler Co. Comm. College v. Board of Sedgwick Co. Comm’rs, 257 Kan. 468, 476, 893 P.2d 224 (1995). However, this alleged ambiguity only arises because Haskell selectively applies one canon of construction while ignoring all others. In fact, a brief analysis demonstrates that tire statute is not ambiguous at all.
One of the most fundamental principles of statutory interpretation is that “[wjords are to be understood in their ordinary, everyday meanings — unless the context indicates that they bear a technical sense.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). According to our Kansas Supreme Court, “ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous meaning,” and “[i]t is presumed the legislature understood the meaning of the words it used and intended to use them ... in their ordinary and common meaning.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶¶ 7-8, 834 P.2d 368 (1992). In fact, K.S.A. 2013 Supp. 77-201, which controls Kansas’ rules of statutory construction, reinforces this principle. Specifically, “[wjords and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.” K.S.A. 2013 Supp. 77-201 Second. However, this rule — like all Kansas’ rules of statutory construction — shall not be observed when it leads to a construction that “would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” K.S.A. 2013 Supp. 77-201.
Haskell champions the last portion of K.S.A. 2013 Supp. 77-201 Second, arguing that the business visitor definition of invitee is its “ peculiar and appropriate meaning in law.’ ” Unsurprisingly, few cases grapple with the final phrase of this subsection. In State v. Fultz, 24 Kan. App. 2d 242, 246-47, 943 P.2d 938, rev. denied 263 Kan. 888 (1997), this court observed that adjudication and disposition are “terms of art within the Code for the Care of Children” and carry specific meanings. When required to interpret a will, our Supreme Court held on rehearing that heirs in fee and issue “have long possessed a peculiar and appropriate meaning in law.” Gardner v. Anderson, Trustee, 114 Kan. 778, 227 P. 743 (1923), reh. granted 116 Kan. 431, 435, 227 P. 743 (1924), disapproved on other grounds by Morehead v. Goellert, 160 Kan. 598, 164 P.2d 110 (1945). Other words or phrases that this court or our Supreme Court have termed “peculiar and appropriate” under K.S.A. 2013 Supp. 77-201 Second include pending, proceeding, probable cause, and charge. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 527, 113 P.3d 241 (2005); Foos v. Terminix, 277 Kan. 687, 696, 89 P.3d 546 (2004); State v. Gamble, 20 Kan. App. 2d 684, 686-87, 891 P.2d 472, rev. denied 257 Kan. 1094 (1995). Although not a legal term, this court in In re Application of Riverton Water Co. for Tax Exemption., 23 Kan. App. 2d 496, 499, 932 P.2d 452, rev. denied 262 Kan. 961 (1997), determined that “[r]ural water district’ ” constituted a technical term for the purposes of statutory interpretation. But not all words qualify as either technical or peculiar and appropriate. For example, in In re Vanderblomen, 264 Kan. 676, 681-83, 956 P.2d 1320 (1998), our Supreme Court rejected the argument that “ ‘organic mental disorder’ ” constituted a technical term that lost its meaning when the DSM-IV abandoned it. Contemporaneous is a word of common usage, as well. Foos, 277 Kan. at 696.
Based on these cases, it may well be that invitee possesses a peculiar and appropriate meaning in the area of tort law. But Has-kell’s argument overlooks the mandate that a court must apply the common meaning of the word invitee. Boatright, 251 Kan. 240, Syl. ¶ 7. Moreover, she also disregards the requirement that courts must construe statutes to avoid unreasonable or absurd results. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012). In fact, our Supreme Court has cautioned against applying K.S.A. 77-201 Second too stringently, explaining: “This particular element of tire statute is not to be singled out and applied to the exclusion of all other rules of statutory construction which must also be considered and given appropriate weight.” Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 381, 664 P.2d 798 (1983). Disregarding the other rules of statutory interpretation to apply the extraordinarily narrow tort-law definition of invitee runs afoul of these principles.
If any doubt as to the meaning of invitee remains after applying the foregoing principles, the legislative history of K.S.A. 2013 Supp. 21-5608 demonstrates that the legislature intended the word to carry its ordinary meaning. The statute was first introduced during the 2003 legislative session as House Bill 2319. House J. 2003, p. 140. At approximately the same time, the Senate introduced Senate Bill 197, which attempted to curb underage drinking in a number of other ways. Sen. J., p. 92. Before the end of the session, senators amended the bill to include language very similar to House Bill 2319. Sen. J. 2003, p. 369-70. When Senate Bill 197 moved to the House during the 2004 legislative session, the House struck the amendment and inserted House Bill 2319 in its place, and the legislation passed as amended. House J. 2004, p. 1081-82.
Throughout this process, the testimony provided in committee unambiguously demonstrated that the purpose of House Bill 2319 and the amendments to Senate Bill 197 was to impose criminal liability on adults who allowed minors to host house parties and consume alcohol on their property. Nothing in the testimony even remotely suggests that the legislature intended the law to apply to individuals whose business visitors allowed minors to consume alcohol; instead, the bill focused entirely on parents who either allow minor social guests to drink on their property or remain willfully ignorant to it.
Because the legislature is assumed to know and intend a word’s ordinary meaning, courts engaged in statutory interpretation are required to apply that ordinary meaning unless the context requires a more technical term. See Boatright, 251 Kan. 240, Syl. ¶¶ 7-8; Scalia & Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). Moreover, our statutory construction statute requires that its rules be observed “unless the construction would be inconsistent with the manifest intent of the legislature.” K.S.A. 2013 Supp. 77-201. The legislature clearly intended for K.S.A. 2013 Supp. 21-5608 to apply to this exact situation: a parent who allows a minor child to invite his or her minor friends over and who then allows those friends to drink.
The district court recognized this purpose but chose to (1) focus too intently on K.S.A. 2013 Supp. 77-201 Second and tort law, (2) ignore other interpretive principles, and (3) define invitee too narrowly. As the foregoing analysis shows, the word invitee is, in tire context of K.S.A. 2013 Supp. 21-5608, unambiguously defined as one who is invited — and, as such, applies to the facts of Haskell’s case.
As a final note, Haskell argues that even if the ordinary definition of invitee applies in this case, the rule of lenity requires that the statute’s ambiguity be resolved in her favor — and in favor of the narrower tort-law definition. The rule of lenity requires a court to strictly construe ambiguous criminal statutes in favor of the accused. State v. Horn, 288 Kan. 690, 693, 206 P.3d 526 (2009). But as previously discussed, the ambiguity in this case is an artificial one that stems from employing mies of statutory constmction far too narrowly. Because no true ambiguity exists, the mle of lenity is inapplicable.
In sum, the district court erred in dismissing the charge against Haskell, and its decision is reversed and remanded for further proceedings.
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Hill, J.:
In this combined appeal, Dustin J. Merryfield and Richard A. Quillen, both involuntary participants in the Kansas Sexual Predator Treatment Program, filed petitions for writs of habeas corpus under K.S.A. 2013 Supp. 60-1501. In their petitions, the two argued that a policy called RIGHT-106 violated their constitutional rights. The district court summarily dismissed both petitions. The couxt also assessed court costs against both. Because this policy has never been applied to Merryfield or Quillen, we hold that they have no standing to contest the constitutionality of this policy. With respect to the assessment of costs, we hold the court applied an incorrect statute concerning court costs and we vacate tire court’s ruling on that and remand for reconsideration.
In this case Merryfield and Quillen challenge the constitutionality of RIGHT-106. That policy establishes tire procedures for reducing privilege levels, imposing general restrictions, imposing restrictions on purchases, and assigning restriction level status for sexual predator treatment program residents. Both Merryfield and Quillen assert that the procedures under RIGHT-106 are unconstitutional. Neither contend that RIGHT-106 has been applied to them.
A litigant lacks standing to challenge the constitutionality of legislation that is not being applied to that person. See State v. Baker, 281 Kan. 997, 1022, 135 P.3d 1098 (2006). Simply put, because Merryfield and Quillen challenge a policy that was not applied to them, they lack standing to challenge its constitutionality. We do not render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). In our view, the district court correctly held that Merryfield and Quillen lack standing to challenge RIGHT-106. It properly dismissed their petitions on this point.
We need not reach the issue concerning exhaustion of administrative remedies because no procedure has been initiated against them.
We do think that the district court erred when it assessed court costs against both Merryfield and Quillen. K.S.A. 2013 Supp. 59-29a23 says that costs associated with this type of action must be assessed against the responsible county:
“(a) Whenever a person civilly committed pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, files a petition pursuant to K.S.A. 60-1501 et seq., and amendments thereto, relating to such commitment, the costs incurred, including, but not limited to, costs of appointed counsel fees and expenses, witness fees and expenses, expert fees and expenses, and other expenses related to tire prosecution and defense of such petition shall be taxed to the county responsible for the costs. Any district court receiving a statement of costs from another district court shall forthwith approve tire same for payment out of the general fund of its county except that it may refuse to approve the same for payment only on the ground that it is not the county responsible for the costs.”
Subsection (b) of that same statute provides:
“The county responsible for the costs incurred pursuant to subsection (a) shall be reimbursed for such costs by the office of the attorney general from the sexually violent predator expense fund. The attorney general shall develop and implement a procedure to provide such reimbursements.”
Subsection (c) provides:
“As used in this section, ‘county responsible for the costs’ means the county where the person was determined to be a sexually violent predator pursuant to. K.S.A. 59-29a01 et seq., and amendments thereto.”
Here, the district court erroneously relied on K.S.A. 2013 Supp. 60-1505 to assess costs. That is a general statute dealing with the costs that arise in ordinary habeas coipus cases. Because K.S.A. 2013 Supp. 59-29a23 is a more specific statute, it controls over K.S.A. 2013 Supp. 60-1505. A specific statute controls over a general statute. Likewise, a specific provision within a statute controls over a more general provision within the statute. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012).
We therefore affirm the dismissal of Merryfield’s and Quillen’s petitions for habeas corpus relief. We vacate the district court’s order concerning costs and remand that issue to the district court with directions to assess the costs to the county responsible for the costs as set out in K.S.A. 2013 Supp. 59-29a23(c).
Affirmed in part, vacated in part, and remanded with directions consistent with this opinion. | [
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Powell, J.:
In this appeal, we are called upon to answer the question of whether the 2012 amendment to the Protection from Stalking Act (Act), K.S.A. 60-31a01 et seq., that allows more than one extension to existing protection from stalking (PFS) orders, applies retroactively to orders current at the time of the amendment. See L. 2012, ch. 138, sec. 7. In the present case, Chad Dester appeals the district court’s second extension of a final PFS order in favor of Melissa Dester. Chad claims the district court did not have jurisdiction to enter a second extension as the PFS statute in effect at the time Melissa filed her PFS petition did not allow for a second extension. Melissa did not file an appellate brief.
Because we find: (1) The provisions of the Act are to be liberally construed to protect victims of stalking; (2) the relevant amendments to the Act extend the remedies in the event stalking is proven; (3) the 2012 amendments to the Act have retroactive application to pending PFS actions; and (4) the retroactive application of these amendments does not violate Chad’s due process rights as he does not have a vested right which is implicated by the retroactive effect of the amendments, we affirm the' district court.
Factual and Procedural History
Melissa and Chad divorced after 6 years of marriage. On November 3, 2011, nearly a month after she had filed for divorce, Melissa filed a petition in the Dickinson County District Court seeking a PFS order for the parties’ minor daughter and herself against Chad. The petition alleged two specific incidents of stalking: first, Chad had called Melissa’s cell phone 58 times between 11:07 p.m. on November 1, 2011, to 5:01 a.m. on November 2, 2011; and second, Chad had called Melissa’s cell and work phone 26 times around noon the following day. Melissa also alleged that Chad had lacked her car while she and their daughter were driving away and he had pulled a gun on her on more than one occasion. After granting a temporary order, the district court conducted an evidentiary hearing on November 15, 2011, and then issued a final PFS order.
On November 1,2012, Melissa filed a motion to extend the PFS order for an additional year pursuant to K.S.A. 2012 Supp. 60-31a06(c). The district court conducted a hearing on the motion and extended the November 15, 2011, final PFS order for another year, or until November 15, 2013.
On November 5, 2013, Melissa filed a second motion to extend the PFS order for an additional year pursuant to K.S.A. 2013 Supp. 60-31a06(c). The district court again conducted a hearing, and, as had occurred at the two prior hearings, Melissa appeared pro se while Chad appeared with counsel. Chad’s counsel argued the district court lacked jurisdiction to extend the final PFS order for another year because the 2011 version of K.S.A. 60-31a06(b) was applicable, which limited Melissa to one extension of the final order, not die 2012 amendment which allowed for additional extensions. The court disagreed with counsel and extended the November 15, 2011, final PFS order for another year, or until November 15, 2014.
Chad timely appeals.
Did the District Court Have Authority to Extend the PFS Order for Another Year?
Chad argues the district court did not have jurisdiction to grant a second extension of the final PFS order. He claims the 2011 version of K.S.A. 60-31a06, in effect at the time Melissa filed her PFS petition, limited the judge’s authority to extend a final PFS order for up to one additional year, not two. In 2012, the legislature revised the language regarding extensions of final PFS orders, replacing the language “for one additional year” with “an additional year.” K.S.A. 2012 Supp. 60-31a06(c). Chad claims this amendment does not apply retroactively to the final PFS order entered on November 15, 2011, because it affects his substantive rights of freedom of speech and freedom of movement. Thus, the question on appeal is whether an intervening statutory amendment to the Act applies to a second extension of a final PFS order that was entered prior to the amendment. Chad does not challenge the sufficiency of the evidence to support the second extension of the final PFS order.
Standard of Review
Interpretation of a statute is a question of law over which appellate courts exercise unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). “The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.” Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013).
Analysis
The Act provides that it is to be liberally construed to protect victims of stalking and to facilitate access to judicial protection for those victims, whether they are represented by counsel or proceeding pro se. K.S.A. 60-31a01(b); see also Wentland v. Uhlarik, 37 Kan. App. 2d 734, 736, 159 P.3d 1035 (2007) (stalking act con strued liberally to protect victims). The district court granted a final PFS order on November 15, 2011. At that time, the Act read in pertinent part:
“(b) A protection from stalking order shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year, except that, on motion of tire plaintiff, such period may be extended for one additional year. Before the expiration of an order for protection from stalking, a victim, or a parent on behalf of tire victim, may request an extension of the protection from stalking order for up to one additional year on showing of continuing threat of stalking.” (Emphasis added.) K.S.A. 2011 Supp. 60-31a06(b).
In 2012, the legislature, inter alia, revised subsection (b) and inserted subsections (c) and (d). K.S.A. 2012 Supp. 60-31a06 read in pertinent part:
“(b) A protection from stalking order shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year except as provided in subsection (c) and (d).
“(c) Upon motion of the plaintiff the court may extend dre order for an additional year.
“(d) Upon verified motion of the plaintiff and after the defendant has been personally served widr a copy of the motion and has had an opportunity to present evidence and cross-examine witnesses at a hearing on the motion, if the court determines by a preponderance of die evidence that the defendant has violated a valid protection order or (A) has previously violated a valid protection order, or (B) has been convicted of a person felony or any conspiracy, criminal solicitation or attempt tiiereof, under die laws of Kansas or die laws of any otiier jurisdiction which are substantially similar to such person felony, committed against the plaintiff or any member of die plaintiff s household, the court shall extend a protective order for not less tiian two additional years and up to a period of time not to exceed the lifetime of the defendant. No service fee shall be required for a motion filed pursuant to tiiis subsection.” (Emphasis added.)
Chad argues the revised statute does not apply to the final PFS order because of the presumption that statutory amendments only apply prospectively. He also argues drat even if the amendments to the Act do have retroactive effect, they could not in this particular case as they affect his vested and substantial rights to free speech and freedom of movement.
To determine whether a statute applies retroactively or prospectively, the general rule is that a statute operates prospectively unless (1) the statutory language clearly indicates the legislature intended the statute to operate retrospectively or (2) the change is procedural or remedial in nature, not substantive. See Jones v. Garrett, 192 Kan. 109, 115, 386 P.2d 194 (1963). Unfortunately, the legislature did not expressly indicate whether the 2012 amendments to the Act were retroactive. Thus, we must determine whether the 2012 changes to K.S.A. 60-31a06 are procedural or substantive.
Procedural laws deal with “ The manner and order of conducting suits — in other words, the mode of proceeding to enforce legal rights.’ [Citation omitted.] Substantive laws establish the ‘rights and duties of parties.’ [Citation omitted.]” Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994). “There is no vested right in any particular remedy or method of procedure.” Garrett, 192 Kan. 109, Syl. ¶ 6.
When evaluating the 2012 amendments to the Act, it appears the revisions do not create a new right ór eliminate an existing right but, instead, proscribe a method of enforcing a previously existing right, i.e., tire right not to be stalked. Cf. Halley v. Barnabe, 271 Kan. 652, 664, 24 P.3d 140 (2001) (revised statute authorizing derivative actions by members is procedural as members have no right to protection from claims for breach of limited liability company operating agreement). Since the amendments at issue deal with the remedies portion of tire Act, the part which sets out the type of relief a victim of stalking may obtain from the court and the procedure for doing so, we think the amendments are procedural or remedial in nature.
However, even if the amendments are procedural or remedial, they may not be applied retrospectively if they would prejudicially affect a party’s substantive or vested rights. Kelly v. VinZant, 287 Kan. 509, 521, 197 P.3d 803 (2008). “ ‘Vested rights’ is a term that is used to describe rights that cannot be taken away by retroactive legislation. [Citation omitted.] Retroactive legislation affecting vested rights would constitute the taking of property without due process. [Citation omitted.]” Gardner v. Gardner, 22 Kan. App. 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996). However, as our Supreme Court has observed: “The determination of whether a statute affects a ‘vested right’ is rarely straightforward.” Owen Lumber Co. v. Chartrand, 276 Kan. 218, 221, 73 P.3d 753 (2003).
“ ‘Reviewing “vested rights” cases requires a look beyond tire labels to the ingredients which shaped the courts’ conclusions. Important factors are: (1) the nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the rights were affected (e.g., were the rights partially or completely abolished by the legislation; was any substitute remedy provided), and (3) the nature and strength of the public interest furthered by the legislation.’ ” 276 Kan. at 222 (quoting Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 369, 892 P.2d 497 [1995]).
Significantly, Chad does not make the argument that the restrictions to his speech and freedom of movement contained in the original final PFS order violate his substantial rights. See Smith v. Martens, 279 Kan. 242, 256, 106 P.3d 28 (2005) (stalking act “sufficiently tailored [to] not substantially infringe upon speech protected by the First Amendment”). Instead, the gravamen of Chad’s argument is that he somehow has a vested right in not having a stalking order imposed upon him for another year. However, our Supreme Court has rejected this argument by stating: “There can be no vested right in an existing law which precludes its change or repeal as applied to pending litigation.” Board of Greenwood County Commr's v. Nadel, 228 Kan. 469, 473, 618 P.2d 778 (1980); see also Southwestern Bell Tel. Co. v. Kansas Corporation Comm'n, 29 Kan. App. 2d 414, 423, 29 P.3d 424 (2001) (“[A] mere expectancy of future benefit, . . . founded on anticipated continuance of existing laws, does not constitute a vested right.”).
When applying the factors set forth in Owen Lumber, 276 Kan. at 222, Chad simply does not have a vested right in stalking or harassing anyone, nor does he have a vested right in not having a PFS order entered against him for an additional year. The limited restrictions on Chad’s freedom of speech and movement are narrowly tailored under the Act and are not unlawful. Also, the amendments, which simply allow a protective order to be continued beyond the original 2-year limitation, are minimally restrictive when compared to the public interest at stake — the need to protect victims of stalking. Such a conclusion comports with the purpose of the Act, which “shall be liberally construed to protect victims of stalking and to facilitate access to judicial protection for stalking victims.” K.S.A. 60-31a01(b).
Accordingly, we conclude the revised statute is remedial and procedural, implicates no vested rights, and therefore applies retroactively to PFS orders in existence at the time the amendments were adopted. See In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 540, 957 P.2d 473 (1998) (citing Rios, 256 Kan. at 191) (general rule is that all actions subject to new procedure whether they accrued before or after change in the law and whether or not suit had been instituted).
Affirmed. | [
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